Leonard, Seidman and Bischoff.
Plaintiff filed this prerogative writ action against defendants Mayor and Commissioners of the Borough of Beach Haven (borough), Beach Haven Building Inspector Robert Shomo and Robert D. Spiegle and Doris Lorraine Spiegle (Spiegles) to (1) restrain construction by the Spiegles of a dwelling in violation of the Borough's "dune ordinance"; (2) invalidate a building permit issued for said dwelling; (3) declare void and ultra vires an agreement between the borough and the Spiegles which led to the issuance of the permit, and (4) compel the borough to institute condemnation proceedings. At the conclusion of trial judgment was entered in favor of defendants, and plaintiff appeals.
The current litigation is an outgrowth of two previous actions instituted by the Spiegles against the borough, both reported. Spiegle v. Beach Haven, 46 N.J. 479 (1966) cert. den. 385 U.S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966) and Spiegle v. Beach Haven, 116 N.J. Super. 148 (App. Div. 1971). A review of the opinions in those cases is essential to a proper understanding of the issues involved here.
Plaintiff is the owner of a tract of land in Beach Haven described as Block 42, Lots 10, 11 and half of Lot 12. The Spiegles own the other half of Lot 12, as well as Lots 13 and 14 of the same Block. Both are oceanfront tracts 100' X 100' in area. Plaintiff's tract contains a dwelling. The Spiegles' tract is undeveloped.
After a severe storm in March 1962 the borough enacted ordinances regulating construction on the oceanfront and establishing a building line beyond which no structures other than fencing, boardwalks, steps, pavilions, small platforms and bulkheads could be erected. The purpose of the ordinance, titled "Borough of Beach Haven Beach Protection Ordinance" and commonly known as the "dune ordinance," was to protect the dunes from erosion which, in turn, would protect the borough from high tides and flooding. The building line thus created by the ordinance runs through the land of both plaintiff and Spiegles. The Spiegles instituted an action
against the borough to have this and another similar ordinance set aside as unconstitutional, contending that the ordinance, as applied to them, constituted a taking of their property for public purposes without just compensation.
The Supreme Court in that first action upheld the constitutionality of the ordinance. However, since the Spiegles had not adduced proof of any economic use to which the property could be put, the court in ruling against them did so "without prejudice, however, to any further proceedings based upon a claim and showing of an actual taking of a beneficial use." 46 N.J. at 494. The Spiegles then instituted another action against the borough, claiming the dune ordinance deprived them of the beneficial use of their property without just compensation. We reversed a judgment adverse to the Spiegles with respect to the tracts of land here involved. We held, in the exercise of our original jurisdiction, that the Spiegles had a sincere intention to use the property for the erection of a one-family residence on their land; that this land straddled the dune area; that the land was suitable for building a residence, and that the dune ordinance, insofar as it prohibited construction east of the building line, represented a taking of property for which the Spiegles should be compensated. Defendant borough was "ordered to institute eminent domain proceedings against [the Spiegles] as to Lots 13 and 14 and one-half of Lot 12, Block 42, on the tax map." 116 N.J. Super. at 170. This order is dated August 11, 1971.
There is nothing in the record to indicate that condemnation proceedings were actually instituted. However, it is clear that the borough entered into negotiations with the Spiegles which culminated in an agreement dated "the 36th [sic] day of June 1973," by the relevant terms of which:
(1) The Spiegles agreed to lease to the borough certain beachfront property owned by them for $1 a year for 19 years;
(2) the parties agreed to apply to the Appellate Division for modification of the judgment requiring condemnation;
(3) the borough agreed to issue a building permit for construction of a structure on the ...