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Cappture Realty Corp. v. Board of Adjustment of Borough of Elmwood Park

Decided: March 18, 1975.

CAPPTURE REALTY CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF ELMWOOD PARK, PLANNING BOARD OF THE BOROUGH OF ELMWOOD PARK, BOROUGH OF ELMWOOD PARK, A MUNICIPAL CORPORATION IN THE COUNTY OF BERGEN AND STATE OF NEW JERSEY AND MICHAEL BUCK, BUILDING INSPECTOR OF THE BOROUGH OF ELMWOOD PARK, DEFENDANTS-RESPONDENTS



Carton, Crane and Kole.

Per Curiam

The facts in this case are fully set forth in the opinion of the Law Division judge, 126 N.J. Super. 200.

By various amendments to the zoning ordinance of the borough, commencing October 1971 and extended for yearly periods thereafter until November 22, 1974, a moratorium was declared prohibiting construction on certain lands, including that of plaintiff, within what is referred to as a flood-prone or flood-plain area of Fleischer Brook. A property

owner may obtain relief from the prohibition against construction by applying to the board of adjustment for a special exception use permit under N.J.S.A. 40:55-39(b). That board is authorized to recommend to the governing body that the exception be granted, provided that the municipal planning board has issued an advisory report finding that the proposed construction will not generate or create any additional surface water runoff from the site and will not impair the general safety, health and welfare. Such special exception use, if recommended, is subject to all other requirements of the zoning and other applicable ordinances.

Plaintiff applied for such a permit but the board of adjustment denied the application. As part of its application plaintiff also sought a special use exception in the E Industrial zone under another provision of the zoning ordinance, ยง 88-17. This was also denied.

The trial judge found the moratorium declared by the ordinances to be a valid and reasonable exercise of the police and zoning power for the period provided therein, i.e., October 1971 to November 1974, and additionally for a period of two years from the date of its December 21, 1973 decision, provided (1) construction of the necessary flood control project in connection with the area was started in good faith within six months from the date of the decision, and (2) the moratorium, to be extended by ordinance, did not go beyond December 21, 1975. He indicated that failure to meet these limitations would result in the ordinance being found to be unreasonable as to plaintiff's property. The judge further held that the temporary moratorium did not deprive plaintiff of its property without compensation. The judge also upheld the denial of the application for the special use exceptions by the board of adjustment.

Plaintiff appeals from the resulting judgment against it.

At oral argument it was stated that the moratorium has now been extended by ordinance to July 31, 1975. There

was some dispute as to whether the necessary construction work had in fact commenced, but we do not believe that this factor is of major significance in determining the validity or reasonableness of the moratorium here involved.

We agree with the trial judge that under the special circumstances of this case a moratorium as to construction with respect to these flood-prone lands for the period indicated by the judge, that is, to December 21, 1975, constitutes an appropriate exercise of police and zoning power and does not involve a deprivation of property without just compensation. This conclusion is supported by the extensive planning, as well as the nature of the work, involved in this necessary contemplated regional flood control project, and the fact that both the county and the municipality, as well as other municipalities affected, are actively engaged therein. We affirm, essentially for the reasons set forth by the court below, the reasonableness of the moratorium period for these purposes, which have a substantial relationship to health, welfare and safety. See Meadowland Reg. etc. v. Hackensack, etc., 119 N.J. Super. 572 (App. Div. 1972), certif. den. 62 N.J. 72 (1972). Cf. E. Rutherford Indust. Park v. State, 119 N.J. Super. 352 (Law Div. 1972); Morris Cty. Land, etc. v. Parsippany-Troy Hills, 40 N.J. 539, 556, n. 3 (1963).

We express no views as to that portion of the judge's opinion which implies that failure to terminate a moratorium by December 21, 1975, or to start the work within six months after December 21, 1973, would convert this municipal action into a taking requiring just compensation, or that an extension beyond that time necessarily would be unreasonable. ...


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