Opposition Brief — Pheasant Bridge Corp. v. Township of Warren

No. 01-807

IN THE SUPREME COURT OF THE

UNITED STATES

PHEASANT BRIDGE CORP.,

Petitioner

V.

THE TOWNSHIP OF WARREN,

Respondent.

On Petition for Writ of Certiorari

To The Supreme Court of New Jersey

RESPONDENT'S BRIEF IN OPPOSITION

TIMOTHY P. BECK (Counsel of Record)

BATEMAN, COLEY, YOSPIN,

KUNZMAN, DAVIS & LEHRER

15 Mountain Boulevard

Warren, New Jersey 07059-5686

Telephone: (908) 757-7800

Facsimile: (908) 757-8039

Counsel for Respondent

PARTIES TO THE PROCEEDING

RESPONDENT

Respondent Township of Warren is a municipal

entity situated in Somerset County, New Jersey. The

Township was formally established in 1806.

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Page

Parties to the Proceeding i

Table of Contents ll

Table of Authorities ill

Counter-Statement of the Case

Reasons for Denying Writ 6

I. THE DECISION OF THE NEW JERSEY

SUPREME COURT IS COMPLETELY

CONSONANT WITH THE DECISIONS

OF THIS COURT, AND CORRECTLY

FOUND NO TAKING OF THE

PROPERTY HAD OCCURRED 6

Il. THE NEW JERSEY SUPREME COURT

DECISION DOES NOT CONFLICT

WITH FIRST ENGLISH 12

Conclusion 16

iii

Agins v, City of Tiburon, 447 U.S. 255,

100 S. Ct. 2138, 65 L.Ed. 2d 106 (1980)

Feiler v, Ft, Lee Bd, of Adjustment, 240 N.J.

Super. 250 (App. Div. 1990), certif. Den.

127 N.J. 325 (1992)

irst Engli Vv ical Luthern Ch V.

County of Los Angeles, 482 U.S. 304, 107

S. Ct. 2378, 96 L. Ed. 2d 250 (1987)

Nectow v, Cambridge, 277 U.S. 183,

48 S. Ct. 447, 72 L. Ed. 842 (1928)

Penn Central Transportation Company v.

New York City, 438 U.S. 104, 98 S. Ct.

2646, 2666, 57 L. Ed. 2d 631 (1978)

Pheasant Bridge Corporation v.

Township of Warren, 169 N.J. 282 (2001)

Williamson County Regional Planning

mmission v i] ank,

473 U.S. 172 (1985)

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14

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Statutes:

N.LS.A. 40:55D-1 et seq. 1 |

N.LS.A. 40:55D-28 l

N.LS.A. 40:55D-63 3,14

N.LS.A. 40:55D-89

BRIEF IN OPPOSI” NTO

PETITION FOR CERTIORARI

Respondent Township of Warren respectfully requests

that this Court deny the Petition for Writ of Certiorari

seeking review of the judgment of the Supreme Court of New

Jersey.

¢

COUNTER-STATEMENT OF THE CASE

The Township of Warren is a municipality located in

Somerset County, New Jersey. Its northern border is formed

by the Passaic and Dead Rivers. Historically, the properties

abutting the rivers were either vacant or utilized for

agricultural purposes.

In New Jersey, zoning and land use powers are delegated

to municipalities under the Municipal Land Use Law,

N.JS.A. 40:55D-1 et seq.. The Municipal Land Use Law is

comprehensive, and requires each municipality to establish a

Master Plan to guide the use of lands within the municipality.

N.JS.A. 40:55D-28. In 1988, the Warren Township

Planning Board undertook the required re-examination of the

Warren Township Master Plan pursuant to N..S.A. 40:55D-

89. The new Master Plan, published and adopted in January

1990, had, among other things, a renewed focus on the

recognition of environmental issues, conditions and problems

which had become pronounced within the Township. (Pet

App 30). The Master Plan undertook an evaluation to

determine what areas of the Township were suitable for

normal development, and which portions were not suitable

for anything but lower density development. In that vein, the

1990 Master Plan recommended the establishment of an EP-

250 zone in the northern tier of the Township coinciding with

that section of the Township characterized by large lots

which were primarily undeveloped or utilized for agricultural

purposes. The tracts within the proposed zone were typically

constrained by specified environmental factors, including ~

open water, wetlands and wetlands buffers, steep slopes,

flood plains, and a zero to one foot depth to seasonal high

water table. The new zone would replace an existing zone

which permitted, among other things, residential

development based on a 1 % acre minimum lot size.

Petitioner Pheasant Bridge owned a 28.9 acre undeveloped

lot located within the proposed EP-250 zone. The property

abutts the Passaic River and was subject to potential

flooding. (Pet App 30). Petitioner had acquired the lot in

1986, and used it for production of hay. (Pet App 30). At no

time during its period of ownership had Pheasant Bridge

obtained any development approvals. In fact, Petitioner had,

prior to trial of the within matter, withdrawn its application to

the New Jersey Department of Environmental Protection for

a Wetlands Letter of Interpretation, a necessary prerequisite

to any development on the site. Petitioner conceded at the

trial level that a significant portion of the tract is consumed

by wetlands, but it presented no evidence at trial to establish

the extent or delineation of the wetlands on the site. (Pet

App 87).

In October 1993, Respondent introduced Ordinance 93-

24, the zoning ordinance substantially implementing the

changes recommended by the adopted Master Plan. The

proposed ordinance included the creation of the EP-250 zone,

which was to consist of over 800 acres of land abutting the

rivers. The introduction of the ordinance was published

consistent with law. The Municipal Land Use Law contains

a Protest provision by which a protest against any proposed

amendment or revision of a zoning ordinance may be filed

with the Municipal Clerk signed by the owners of 20 percent

or more of the area within the proposed changed zone, or of

the lots essentially abutting the zone. N.J.S.A. 40:55D-63.

No protest was filed by Petitioner or any other property

owners affected by the proposed creation of the EP-250 zone.

After public hearing, Ordinance 93-24 was adopted by

the Warren Township Committee on December 2, 1993. The

ordinance created the new EP-250 zone, which established a

minimum lot size of six acres. The permitted uses within the

EP-250 zone included farming and single-family detached

dwellings, the use for which the Pheasant Bridge property

was being used at the time, as well as its intended use if

Petitioner obtained development approval. Ordinance 93-24

did not, of course, only establish the EP-250 zone. The

zoning ordinance was a comprehensive re-evaluation of land

use planning within the Township, a proposition which was

not disputed at the trial level. Consistent with the Master

Plan, the ordinance established several new zones, including

other residential zones having smaller lot size requirements.

After the passage of Ordinance 93-24, Petitioner filed an

Action in Lieu of Prerogative Writs in the Superior Court of

New Jersey, Law Division, Somerset County. There,

Petitioner alleged that the provisions of the EP-250 zone

were invalid facially and as applied, and constituted a taking

as the regulations operated “to deprive the plaintiff of

substantially all of its beneficial and economic use of its

aforesaid lands”. Respondent defers to the New Jersey

Supreme Court Opinion for the essential procedural history

of the Court action. However, it is significant that during the

course of the trial, Petitioner conceded that it could not

establish how many lots could actually be developed on the

tract under the former one and a half acre zoning scheme. It

also conceded that it could not establish the extent of

ee a

wetlands present on the tract, and had voluntarily withdrawn

its application to the New Jersey Department of

Environmental Protection for a delineation of the wetlands on

the site. Consequently, the Petitioner did not prove any

damages, or any actual diminution of value or use of the

property, although it continued to assert a “theoretical” loss.

6

REASONS WHY THE WRIT SHOULD BE

DENIED

I. THE DECISION OF THE NEW JERSEY

SUPREME COURT IS COMPLETELY

CONSONANT WITH THE DECISIONS OF

THIS COURT, AND CORRECTLY FOUND

NO TAKING OF THE PROPERTY HAD

OCCURRED.

Petitioner contends that the New Jersey Supreme

Court’s decision is in conflict with Agins v. City of

Tiburon, 447 U.S. 255, 100 S.Ct. 2138 (1980), and

other United States Supreme Court cases. However,

the decision is entirely consistent with current case

law, and reached a result required by the facts of the

case.

First, the New Jersey Supreme Court’s decision

necessarily took into account the specific facts of this

case. It is clear that Petitioner did not and could not

assert that it was deprived of substantially all use of

its property after the passage of the ordinance.

Ordinance 93-24 permitted Pheasant Bridge to

develop its tract for residential uses, the same use

which it purportedly wished to pursue under the

former ordinance. Rather than depriving Petitioner of

the use of the property, the ordinance simply reduced

the density at which the property could be developed

for the desired use. In addition, Petitioner had not

established the extent to which it could develop its

property under the former ordinance It had not filed

a Protest after the challenged ordinance was

introduced, and there had been no administrative

proceeding below by which the Township was made

aware of the specific characteristics of Petitioner’s

tract which would have made the tract’s exclusion

from the EP-250 zone rational. Even after the

ordinance was passed, Petitioner sought no review or

relief from the governing body, but filed its

Complaint in Superior Court of New Jersey.

The New Jersey Supreme Court found,

essentially, the otherwise valid land use regulations

established under the EP-250 zone did not rationally

advance the ordinance’s stated purpose when applied

to the Petitioner’s specific property. The Court

therefore concluded that the zoning ordinance was

arbitrary, capricious, and unreasonable as applied to

the plaintiff's property only. The Petitioner was thus

granted relief from the ordinance in the only forum in

which Petitioner had sought that reiief.

The New Jersey Supreme Court’s conclusion that,

under the facts 6f the case, Petitioner was not entitled

to damages as a remedy for the “temporary taking”

during the period between the adoption and the as

applied invalidation of the EP-250 zone is completely

consistent with Agins, supra and the other cases

which Petitioner urges conflict with the New Jersey

decision.

Petitioner repeatedly cites to the Agins principal

that “the application of a general zoning law to

particular property effects a taking if the ordinance

does not substantially advance legitimate State

interests, see Nectow v. Cambridge, 277 U.S. 183,

188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928), or

denies an owner economically viable use of his land,

see Penn Central Transportation Company v, New

York City, 438 U.S. 104, 138, N. 36, 98 S.Ct. 2646,

2666, 57 L.Ed. 2d 631 (1978).” There is nothing in

the New Jersey Supreme Court Opinion which fails to

comport with Agins. Agins involved a challenge to

an ordinance enacted by the City of Tiburon,

California, which placed the plaintiff's five acre tract

in a zone restricted to one-family dwellings,

accessory buildings and open space uses and

prohibited construction until the owner submitted

development plans compatible with “adjoining

patterns of development and open space”. Agins, 447

U.S. at 257, 262. The density restrictions permitted

the property owners to build between one and five

single-family residences on their five acre tract. The

plaintiffs there filed a Complaint against the City

seeking damages for inverse condemnation and

declarations that the zoning ordinances were facially

unconstitutional. The gravamen of both claims was

the plaintiffs’ assertion that the City had taken their

property without just compensation in violation of the

Fifth and Fourteenth Amendments.

This Court in Agins found that no taking had

occurred under any theory advanced by the plaintiffs

there. The Agins Court acknowledged that the

ordinance did regulate and restrict the developability

of the plaintiffs’ property, although there was no

physical invasion of the property by the City. The

Agins Court articulated a balancing test between the

private and public interests involved, and concluded

that the ordinances satisfied the Constitutional

requirements.

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Although the New Jersey Supreme Court found Warren

Township’s ordinance to be arbitrary and capricious as

applied to the plaintiff's property, that finding does not

establish a compensable taking under the Agins test. In

Agins, the plaintiffs had not submitted a plan for the

development of the property, and therefore this Court found

no concrete controversy regarding the application of the

specific zoning provision. While the Court ultimately found

that the ordinance in question did not work a taking of the

property in question, it found that the plaintiffs’ temporary

inability to sell or develop their property during the later-

abandoned condemnation proceeding instituted by the City

also was not a taking as “mere fluctuations in value during

the process of governmental decision making, absent

extraordinary delay, are ‘incidents of ownership’ which

cannot be considered as a taking in the constitutional sense.”

Agins, supra, 447 U.S. at 263. [Fn. 9]. It was thus clear that

the Agins decision correctly recognized that the course of

normal land use regulatory activities may in fact result in

temporary restrictions on a property owner’s use of his

property, which restrictions neither constitute a taking of the

property, nor a deprivation of a recognized Constitutional

right.

This holds particularly true in this case where the

property owner sought no relief at any municipal level prior

1]

to instituting the Court action. Consequently, there was no

body of information available to the Township at that time to

warrant the Pheasant Bridge tract’s exclusion from the EP-

250 zone which was specifically designed to address the

large, undeveloped properties along the Passaic River which

typically contained environmental constraints. As no taking

would presumably occur had Petitioner filed for and

subsequently obtained an exclusion or relief from the EP-250

zone regulation, it necessarily follows that no taking occurs

when that relief is first sought and obtained in Court. For

that reason, the New Jersey Supreme Court correctly

concluded that “we see no distinction justifying the need to

provide for interim monetary damages between regulatory

delay in securing a change in, or variance from, a zoning

ordinance and delay occasioned by resort to judicial process

to challenge application of a zoning ordinance to one’s

property. (Citations-omitted).” Pheasant Bridge, 169 N.J. at

298. (Pet App 16). That conclusion is supported by the entire

body of case law cited by the Court. Thus, there is neither

need nor basis for review of the New Jersey Supreme Court

decision here.

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Il. THE NEW JERSEY SUPREME COURT

DECISION DOES NOT CONFLICT WITH

FIRST ENGLISH.

Petitioner also urges that the New Jersey Supreme Court

decision somehow contravenes this Court’s decision in First

English Evangelical Lutheran Church of Glendale v. County

of L.A., 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed. 2d 250

(1987). That is nothing but wishful thinking. The facts of

this case are so clearly distinguishable from those in First

English that First English provides absolutely no support for

Petitioner’s position. First of all, in First English, the

landowner alleged in its Complaint that the challenged

ordinance had denied it “all use of its property” and the

Supreme Court expressly limited its holding to such facts.

482 U.S. at 320. Quite obviously, the Pheasant Bridge

situation was different, as Ordinance 93-24 simply reduced

the number of lots which could presumably be developed

following appropriate subdivision application. By contrast,

the First English ordinance effectively denied the plaintiff the

right to construct or reconstruct any building in an interim

flood protection area after a flood destroyed that plaintiff's

existing campground. In rejecting the California policy of

refusing to provide any damages for temporary or regulatory

takings, the United States Supreme Court in First English

13

held that the plaintiff landowner in that case could recover

damages for the period before a land use regulation is finally

determined to constitute a taking. However, the Court

expressly limited its holding to the specific facts of the First

English case. The Court declined to address “the quite

different questions which would arise in the case of normal

delays in obtaining building permits, changes in zoning

ordinances, variances and the like...”. 482 U.S. at 321

(emphasis added). Therefore, this Court acknowledges that

the normal course of municipal zoning, which necessarily

includes periodic zoning changes, certainly does not

automatically result if a “takings claim” whenever the zoning

change impacts on the extent of the development of property,

even if relief from the regulations is later obtained by the

property owner.

First English certainly acknowledges that municipal

governments simply cannot be held liable for damages of any

kind due to a temporary heightened development regulation

which is enacted during the course of establishing a valid

land use regulatory scheme, even when the heightened

regulation is thereafter found to be unreasonable as to a

particular property. To hold otherwise would destroy any

municipality’s ability to zone on a district-wide basis, forcing

the municipality to either inventory each tract within its

borders before adopting any land use plan in order to avoid

potential financial ruin, or abandon any meaningful

comprehensive zoning altogether.

Lastly, Petitioner contends that this case is “ripe” for

adjudication by this Court. The issue of this case’s ripeness

is distinct from whether the Petitioner exhausted available

administrative remedies so as to allow for a takings claim.

See Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 192-93 (1985). Petitioner

here had administrative remedies available from which relief

could be obtained. The New Jersey Municipal Land Use

Law contains a Protest provision which allows property

owners to protest a change in a zoning ordinance. N.J.S.A.

40:55D-63. Even after the new zoning ordinance was passed,

the Petitioner had a procedural right to petition the Warren

Township Planning Board for a recommendation that the

property be relieved from the regulations of the EP-250 zone.

Feiler v. Fort Lee Board of Adjustment, 240 N.J. Super. 250,

256-57 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991).

By taking that route, Petitioner would have created a record

at the municipal level by which the Township could either

grant or deny the Petitioner’s request for relief. That plaintiff

here was permitted to seek relief from the EP-250

requirements in the Court system as a forum of first resort

does not mean that the Petitioner’s choice to so proceed does

not affect its takings argument. The Petitioner here did not

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provide Warren Township with the opportunity to issue a

“final decision” required under Williamson, supra.. Under

these facts and circumstances, the plaintiff's takings claim is

defective. The New Jersey Supreme Court correctly found

no basis for a takings claim.

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CONCLUSION

The petition for writ of certiorari should be denied. The

New Jersey Supreme Court’s decision was based upon an

accurate evaluation of the law in light of the specific facts of

this case. The decision is consistent with Agins v, City of

Tiburon, supra, and is not in conflict with any other decision

of this Court. This case requires and deserves no further

review.

Respectfully submitted,

TIMOTHY P. BECK

Counsel of Record

BATEMAN, COLEY, YOSPIN,

KUNZMAN, DAVIS & LEHRER

15 Mountain Boulevard

Warren, New Jersey 07059-5686

Telephone: (908) 757-7800

Facsimile: (908) 757-8039

Counsel for Respondent