Sheerr v. Evesham Tp.

• Decision Date: 22 January 1982
• Citation: 184 N.J.Super. 11,445 A.2d 46
• Parties: Mona R. SHEERR, Individually, and As the Personal Representative of the Estate of Sally Sheerr, Deceased, Plaintiff, v. The TOWNSHIP OF EVESHAM and the Mayor and the Township Council of the Township of Evesham, Defendants.
• Court: New Jersey Superior Court

Page 11

184 N.J.Super. 11

445 A.2d 46

Mona R. SHEERR, Individually, and As the Personal Representative of the Estate of Sally Sheerr Deceased, Plaintiff, v. The TOWNSHIP OF EVESHAM and the Mayor and the Township Council of the Township of Evesham, Defendants.

Superior Court of New Jersey, Law Division Burlington County.

Decided Jan. 22, 1982.

Michael D. Varbalow, Collingswood, for plaintiff (Jubanyik, Varbalow & Tedesco, Collingswood, attorneys).

William S. Ruggierio, Marlton, for defendants (Ruggierio & Freeman, Marlton, attorneys).

HAINES, A. J. S. C.

This is a "taking" case. A large wooded portion of the Sheerr property was first zoned by Evesham Township for public park and recreation purposes and, by later amendment, for conditional uses considered appropriate for environmental reasons. No permitted use was established, except in the sense that conditional uses are permitted uses. Other ordinances provided further restrictions.

These regulations are claimed to be so restrictive as to constitute a taking of private property for public use, requiring just compensation under the Fifth Amendment to the United States Constitution and Art. I, par. 20, of the New Jersey Constitution (1947).

Regulation may constitute a taking:

The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. [Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922) ]

The present case raises difficult and largely unanswered questions concerning such takings. The basic issue, whether the regulations have gone too far, is not easily decided, and novel questions arise when it is decided, as here, that they have. It must then be determined whether the municipality is obliged to acquire the property, paying "just compensation," or whether the regulation should be invalidated and, if so, whether damages for a temporary taking are recoverable.

In addition to the "taking" issue, plaintiffs advance the theory that Evesham, through its adoption of arbitrary and otherwise invalid legislation, has violated their right to due process under the Fourteenth Amendment to the United States Constitution and Art. I, par. 1, of the New Jersey Constitution (1947), consequently entitling them to the recovery of damages under the Federal Civil Rights Act, 42 U.S.C.A. § 1983. The theory has only inferential support in a few cases.

Plaintiffs also attack another zoning provision of the township which restricts part of their property to commercial uses; they claim that this zoning is arbitrary.

The two portions of plaintiff's property involved in these proceedings consist of vacant land fronting on Route 73, a busy state highway; the frontage of the wooded tract is 1,250 feet, of the commercial tract, 1,050 feet. Existing land uses along the highway are primarily commercial, becoming somewhat scattered in the area of plaintiff's premises. Across Route 73 are a funeral home, a life care facility and undeveloped woodlands. South of the property are a commercial office and a residential development. To the rear is a major residential development with reverse frontage. To the north lies the Garden State Community Hospital and a medical center. Route 73 and two side roads provide access. A by-pass road, shown on Evesham Township's master plan and official map, will bisect the property, connecting Route 73 and routes to the Ashland High Speed Line. The residential development in the rear of plaintiff's property is planned to accommodate this by-pass.

Prior to the adoption of the challenged ordinance plaintiff's property (meaning, throughout this opinion, the portions thereof in dispute) was zoned "GB" and "GB-5," permitting commercial uses along the highway. The GB zone permitted uses on one-acre lots; GB-5 required five-acre lots. In January 1979 Evesham adopted Ordinance 1-1-79, amending its zoning legislation to conform to the new Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. This ordinance placed the wooded portion of plaintiff's property (formerly zoned GB-5) in a "PPR" district, which permitted only public park and recreational uses. The remaining portion of the property (formerly zoned GB) was zoned "CH-5," a highway commercial district, in which subdivisions of not less than five acres were permitted. Plaintiff's claim that the PPR designation amounted to a taking of their property and that the CH-5 designation is arbitrary.

On April 17, 1979 the township adopted Ordinances 9-4-79 and 11-4-79 changing plaintiff's PPR designation to "EP-1: Environmental Protection." No permitted use was allocated to the EP-1 zone. Conditional uses, allowed after obtaining municipal permission, consisted of:

Private recreational areas such as camps, golf courses, playgrounds, athletic fields, lakes, picnic areas, operated for profit or hire ....

Single family detached dwellings ....

The following commercial uses ....:

1. Retail stores

2. Offices

3. Bank or other financial institution

4. Bakery, confectionery or custom shop

5. Restaurants

6. Theaters

7. Any use of the same general character as above.

No use was permitted on a lot of less than five acres and significant design criteria were established. The ordinance recited, as reasons for the EP-1 designation, the "unique character by virtue of the presence of a Beech and Maple hardwood forest with many Holly trees thereon, the function of the area as a natural replenishing of ground water and the function of the area as a natural habitat for birds and other wildlife."

Written protests were filed (pursuant to N.J.S.A. 40:55D-63) against the adoption of the EP-1 ordinance, which thereafter received a favorable vote of 3 to 2. The statute required a 4 to 1 favorable vote. The municipality, relying upon the Appellate Division's opinion in Levin v. Parsippany-Troy Hills Tp., 164 N.J.Super. 409, 396 A.2d 1144 (1978), believed that the protest statute did not apply in its circumstances, and therefore considered the ordinance valid. Levin was reversed by the Supreme Court, 82 N.J. 174, 181, 411 A.2d 704 (1980). As a consequence, Evesham's ordinance establishing the EP-1 zoning was invalidated in a summary judgment ruling in these proceedings. Finally, in June 1980, new, but identical EP-1 legislation was adopted by a 4 to 1 vote.

On April 17, 1979 Evesham enacted Ordinance 12-4-79, which adopted an official map for the township. This map placed a portion of plaintiff's property in a "Proposed Preservation Area." The township's master plan designated that property "Park or Preservation Area." Plaintiff argues that these restrictions significantly and adversely affected every potential use of her property.

On February 5, 1980 the township adopted Ordinance 43-10-79, restricting the cutting of trees and shrubs on lands reserved for public use. This ordinance affected plaintiff's property while it was zoned PPR, and so long as the official maps carried it in a "Park or Preservation" classification. In December 1980 Ordinance 43-10-79 was amended by Ordinance 56-12-80, designed to protect trees and shrubs growing in a natural state anywhere within the township; it required a permit, renewable annually, to be obtained before any trees or shrubs could be removed and also authorized the planning board to protect trees in a development by requiring a developer to convey a "tree preservation easement" to the township. The amended ordinance affected and continues to affect all of plaintiff's property.

Plaintiff claims that these ordinances, severally and collectively, effected a taking of their property without just compensation. They also claim that they are arbitrary, violating due process and equal protection requirements. Relief sought consists of (1) an order requiring the municipality to purchase the property, or (2) invalidation of the ordinances and (3) damages.

The Setting

Evesham's legislative history underlines an intent to preserve the plaintiff's property for the benefit of the public while avoiding payment of compensation.

On January 30, 1979 its governing body adopted the new zoning ordinance applying a "PPR" (Public Parks and Recreation) classification to the property. When the new ordinance was discussed on January 16, 1979 the solicitor warned members of the township council that the PPR designation probably amounted to unconstitutional taking. The governing body, not prepared to treat plaintiff's property otherwise, decided to adopt the ordinance without change, believing that any damages it might have to pay would be minimal. At the same time, township officials knew that plaintiff had executed an agreement to sell the entire tract of land. The attorney for the buyers had appeared before the governing body, advised them of his client's interest and warned them that the PPR designation under consideration was illegal. Shortly after the new ordinance was adopted these buyers terminated their agreement because they could not use the property as zoned.

In December 1978 the township adopted a master plan and an official map. The map designated the plaintiff's property as "Park or Preservation Area." Under N.J.S.A. 40:55D-44, in connection with subdivision or site plan approval, a property so designated in a master plan or on an official map is subject to acquisition. The statute permits the planning board to reserve the location and extent of streets, drainageways, basins and public areas for a period of one year after approval of a final plat of a development, during which it may arrange for the acquisition of the reserved areas. Thus, a developer must risk considerable time and expense in taking a proposed plan of development through planning board processes to the point of final approval and then face a one-year delay before he knows whether he may proceed with his approved plans or whether all or part of the property is to be acquired by the municipality. While the...