On appeal from Superior Court, Law Division, Morris County.
Fritz, Joelson and Petrella. The opinion of the court was delivered by Petrella, J.A.D.
Plaintiff appeals from its unsuccessful challenge to the constitutionality of an amendment to a Jefferson Township (township) zoning ordinance in a suit in lieu of prerogative writs. Although plaintiff never presented any development plan before either the planning board or zoning board of the township, it contends that the rezoning of its property from commercial to residential use was arbitrary, unreasonable and capricious; that the rezoning constituted a taking without due process, and that it did not conform to State or municipal law. Plaintiff also contends that the trial judge improperly took into account his own personal knowledge of the area. We reverse and remand for failure of compliance with N.J.S.A. 40:55D-62(a), noting as well that plaintiff did not exhaust its administrative remedies.
The land involved consists of approximately three acres located in Jefferson Township on a median strip between the northbound and southbound lanes of State Highway 15 about two miles north of Interstate Route 80. In 1968 or 1969 the State converted what was a two-lane road into a dualized highway by
constructing separate northbound lanes on the easterly portion of property now owned by plaintiff. Plaintiff's property is 134 feet wide at the northern boundary and 167 feet wide at the southern side. There is 854 feet of frontage on the southbound roadway and 860 feet of frontage on the northbound roadway. The record indicates that the property is at the base of a relatively steep hill and, moreover, that most of the property is below the highway grade on either side. Hence it is asserted that development would require a substantial amount of fill or complex drainage arrangements.
Plaintiff, a partnership whose principals are not disclosed, apparently purchased this particular property in September 1970, which is after the State's construction of the northbound lanes. The record does not disclose the purchase price of the property. Likewise, it does not reveal whether and to what extent the owner of the property at the time of any condemnation action by the State Transportation Department was paid compensation for damages to the remainder.
The property was zoned for commercial uses until 1979. The 1979 zoning ordinance amendments rezoned portions of the median strip, including plaintiff's property, for single-family residences. A thumbnail review of the area indicates that on the far side of the northbound lane near the property in question there is a partially wooded lot on which is located a heavy-equipment business. That side of Route 15 is now zoned for industrial use. On the far side of Route 15 on the southbound lane is a one-family dwelling in an area now zoned commercial. South of plaintiff's property there is vacant land, and at Route 15's intersection with a cross street there is a gas station. To the north of plaintiff's property on the median there is an old house and more vacant land. The vacant land is characterized by a steep upward grade and extreme narrowness of the median strip. At the top of the hill the median strip widens and becomes level. It contains some business establishments, including a shopping center, about a mile north of plaintiff's property. There are existing homes on the median
strip which are 15 to 100 years old. No construction has taken place on the median strip in the past 10 to 15 years.
The parties apparently do not dispute that the best use of the property would be as a median strip and nothing more. Although at oral argument a question was raised as to whether any development of plaintiff's property would be economically feasible, plaintiff's experts at the trial were of the opinion that commercial use was feasible, assuming appropriate precautions were taken to mitigate the traffic hazard. It was recognized that commercial development would be costly because of the drainage problem and traffic considerations. Defendant's expert was of the opinion that commercial or office use at that location would not be safe. He testified that the property was zoned for residential use because no one could propose another use which would be safe. Essentially, plaintiff seeks inverse condemnation on the thesis that the property has been zoned into inutility. Here plaintiff presented no proposal for development to either the planning or zoning board. We are satisfied from the record and the testimony therein that some development may be feasible, albeit expensive. Plaintiff cannot yet assert that he has been completely precluded from using his property. See AMG Assoc. v. Springfield Tp., 65 N.J. 101, 111-114 (1974); Morris Cty. Land Improvement Co. v. Parsippany-Troy Hills Tp., 40 N.J. 539, 554-559 (1963); Sheerr v. Evesham Tp., 184 N.J. Super. 11, 53-56 (Law Div.1982). The trial judge did not rule on that issue and the possible inverse condemnation which was raised in the fourth count of plaintiff's complaint. Such action is presently premature.
Plaintiff contends that the amendment placing its property in a residential zone is invalid because the municipality, in amending its zoning ordinance, did not comply with N.J.S.A. 40:55D-62(a), in that the governing body did not state its reasons in the minutes of the meeting for adopting an amendment to the zoning ordinance which is in ...