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January 25, 1982


The opinion of the court was delivered by: BIUNNO

Ward owns land fronting on Route 17, known as Lot 7 in Block 4704 in Ridgewood, NJ. At one time, the entire block was zoned residential. The zoning ordinance was amended in about 1970 to rezone the block for office buildings.

Thereafter, Ward made arrangements with a developer to construct an office building, the transaction being contingent on the developer's securing site plan approval and building permit. Site plans were drawn up and presented to the Planning Board which, after hearing, denied the application.

 Over this period there were some six or so hearings on the subject of use for the Block, culminating in a recommendation by the Planning Board to the governing body to amend the zoning ordinance by returning the permitted use of Block 4704 to the original residential category. An ordinance to that end was duly introduced, notice given and passed.

 A series of civil actions were then filed in Superior Court, Bergen County. One was by Ward's developer. Another was by Ward. The third was by the proposed developer and owner of other lots in the same block, who had also applied for and were denied site plan approval. The fourth was by the owner of another lot in the same block who had long made use of the property for the storage of heavy machinery or equipment as a "non-conforming" use even before the original residential classification.

 All the actions were consolidated by order of Judge Trautwein, for trial purposes, except that the claim of inverse condemnation was severed for later consideration. The ensuing pretrial order also noted that damage claims would be tried later without prejudice to the parties. Trial was had on the basis of the testimonial record before the Planning Board and the various exhibits including the Board's denials, the amended ordinance, and the like.

 As to the Ward property involved here, the trial judge ruled that the denial of the site plan approval was unwarranted and ordered the issuance of the building permit. He also ruled that the later amendment to the ordinance rezoning Block 4704 to residential was valid.

 On cross-appeals to the Superior Court, Appellate Division, the validity of the amendment to the zoning ordinance was upheld but the ruling directing issuance of the building permit was reversed on the well-established principle that the law in effect at the time of judgment (either at trial or on appeal) controls, and since at that time the land use was restricted to residential purposes, no permit could issue later for an office building. *fn1" Petition to the Supreme Court of New Jersey for certification was denied.

 The foregoing history is reflected in the moving affidavit and exhibits, and in the answering affidavit and exhibits, which between them presented the essential documents. The municipal defendants moved for summary judgment under F.R.Civ.P. 56, and at oral argument counsel said, in response to questions from the court, that there was no dispute about the factual history or about the authenticity of any of the document exhibits.

 The motion is grounded on the proposition that the present suit, filed here about a year after the final judgment of the Superior Court (modified as required after appeal) is barred by that judgment under the doctrines of res judicata and collateral estoppel. This is an affirmative defense and was raised by the answer. Ward resists, arguing that the claim of inverse condemnation and damages for a taking of property for public use without just compensation was never tried. The suit here is said to be one for a remedy created by 42 U.S.C. § 1983, with jurisdiction resting on 28 U.S.C. § 1343(3). It is argued that neither the trial court nor the appellate court ever addressed or decided the "taking" claim because the inverse condemnation and damages issue was severed, much less the § 1983 claim (which was not pleaded there by explicit mention). *fn2"

 Full understanding of the Superior Court suit requires a brief historical excursion. Under long established law, the former Supreme Court of New Jersey was vested with the power of the King's Bench to issue prerogative writs, such as certiorari, mandamus, quo warranto, prohibition and procedendo. This authority was exclusive (with one minor exception) and was protected against legislative invasion by the State's constitution. See the opinion of Chief Justice Beasley in Dufford v. Decue, 31 N.J.L. 302 (Sup.1865), and Flanagan v. Treasurer, etc. 44 N.J.L. 118 (Sup.1882); Flanigan v. Guggenheim, etc., 63 N.J.L. 647, 44 A. 762 (E & A 1899); and Green v. Heritage, 64 N.J.L. 567, 46 A. 634 (E & A 1900), for example.

 It is also of interest to note that through the prerogative writ power, the former Supreme Court had the right to review the proceedings of municipal corporations that do acts affecting the rights and property of individuals, in a supervisory fashion. Carron v. Martin, 26 N.J.L. 594 (E & A 1857); Gregory v. Jersey City, 34 N.J.L. 390 (Sup.1871). Where a review of municipal ordinances required the investigation of questions of fact, the court's power to inquire into them existed as part of its constitutional power and was not dependent on any statute, such as the former Certiorari Act, N.J.R.S. 2:81-1, et seq. (1937), now repealed except for the vestige remaining as N.J.S.A. 2A:66-1 to 4. Lighthipe v. Orange, 75 N.J.L. 365, 68 A. 120 (Sup.1907), aff'd 76 N.J.L. 817, 74 A. 1135, 76 N.J.L. 823 (E & A 1908); Dubelbeiss v. West Hoboken, 82 N.J.L. 683, 82 A. 897 (E & A 1912).

 With the adoption of the 1947 Constitution and its restructuring of the judicial branch, two important changes were made on the subject. One, the former individual prerogative writs, which had presented serious difficulties because of an encrustation of technical principles, were superseded. Two, in lieu thereof, review, hearing and relief was to be afforded in the Superior Court "as of right" in civil cases. See, N.J.Const. 1947, Art. 6 § 5, P 4. These changes ...

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