Lomarch Corp. v. Mayor and Common Council of City of Englewood
Decision Date | 22 January 1968 |
Docket Number | No. A--74,A--74 |
Citation | 51 N.J. 108,237 A.2d 881 |
Parties | , 36 A.L.R.3d 745 LOMARCH CORP., a New Jersey corporation, Plaintiff-Respondent, v. MAYOR AND COMMON COUNCIL OF the CITY OF ENGLEWOOD in the County of Bergen, State of New Jersey, Defendant-Appellant. |
Court | New Jersey Supreme Court |
Herbert A. Chary, Westwood, for respondent (Chary & Porcoro, Westwood, attorneys).
William V. Brslin, Englewood Cliffs, for appellant.
Fred G. Stickel, III, Cedar Grove, for The New Jersey Institute of Municipal Attorneys and The New Jersey Federation of Official Planning Boards, amici curiae (Sachar, Sachar & Bernstein, Plainfield, attorneys for The New Jersey Federation of Official Planning Boards, John H. Dorsey, Cedar Grove, on the brief).
The opinion of the court was delivered by
This action in lieu of prerogative writs tests the constitutionality of N.J.S.A. 40:55--1.32 and N.J.S.A. 40:55--1.38, a part of what is commonly known as the Official Map Act, as well as an orinance adopted by the Common Council of Englewood pursuant thereto. The Law Division found the Act unconstitutional and the defendant appealed to the Appellate Division. While pending there we certified the case on motion of both parties. R.R. 1:10--1A.
In April of 1967, plaintiff, who was and is the owner of some sixteen acres situate in Englewood, applied for approval of its plans to subdivide the property in order to construct single family dwellings. While consideration of the application was pending, the Common Council of Englewood adopted what is Ordinance #1724 pursuant to N.J.S.A. 40:55--1.32 and N.J.S.A. 40:55--1.34 which placed the land on the Official Map of the City and designated it land reserved for use as a park.
N.J.S.A. 40:55--1.32 provides that a municipality may designate land uses upon an official map and that
Read in connection with N.J.S.A. 40:55--1.32, the practical effect of the ordinance was to 'freeze', for a one year period, any attempt to develop the designated land.
On May 23, 1967 plaintiff's subdivision plan was granted initial approval. At the same time plaintiff was notified by letter that the land in question had been reserved for park land acquisition. Subsequently, the resolution granting final approval provided
'The approval granted by this Resolution does not in any way obligate the City of Englewood, and the applicant is acting solely at its own peril since the applicant is on notice that this property has been reserved by the City of Englewood on the official map under the Green Acres Program and the applicable Statutes of the State of New Jersey.'
Eight days before final approval was granted, plaintiff brought this suit to challenge the statutory authority by which it had been denied the right to develop its lands for a period of one year. Such a denial it argues constitutes a taking of property without compensation as the statute makes no provision for payment and therefore violates both the Fourteenth Amendment to the Federal Constitution and Art I 20 of the State Constitution. The defendant denies that the statute violates the constitutional prohibitions and further argues that plaintiff is prevented from bringing the suit, since it has not availed itself of the relief provisions of the Act (N.J.S.A. 40:55--1.38) which provides:
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