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CROW-NEW JERSEY 32 L.P. v. TWP. OF CLINTON

July 28, 1989

CROW-NEW JERSEY 32 LIMITED PARTNERSHIP and CROW-CENTRAL OFFICE, INC., PLAINTIFFS,
v.
TOWNSHIP OF CLINTON, DEFENDANT



The opinion of the court was delivered by: LIFLAND

 Plaintiffs are developers who own property in the Township of Clinton, New Jersey. They seek a judgment setting aside and declaring null and void a land use ordinance. Jurisdiction is predicated upon 28 U.S.C. § 1331.

 Plaintiffs claim that the ordinance violates federal and state constitutional rights and that the ordinance is preempted by and inconsistent with legislation enacted by the State of New Jersey.

 I. FACTUAL BACKGROUND

 Plaintiffs own approximately 35.5 acres in the township. Before passage of Ordinance #386-88, the allowable floor area ratio *fn1" for building was 15%, resulting in a maximum permitted floor area of 231,968 square feet. Further, the allowable impervious coverage *fn2" was 33%, or 510,330 square feet.

 Ordinance #386-88 was duly adopted by the Township of Clinton on October 12, 1988. Section 1 of the ordinance requires developers to obtain certain documentation from either a state or federal agency. Section 2 reduces the permissible area available for development on properties containing "critical areas." These areas include:

 
stream corridors, wetlands, slopes greater than twelve percent (12%), highly erodible soils, areas of high water table, mature stands of native vegetation, aquifer recharge and discharge areas and other environmentally sensitive features, areas or conditions not addressed elsewhere in the EIS [Environmental Impact Statement].

 Clinton, N.J. ch. 72, § 72-68C(3)(1), as amended (1988).

 Ordinance #386-88 reduced development potential of the site by excluding the aforementioned "critical areas" from the area of the property used for calculating the floor area ratio and allowable impervious coverage. Defendant does not dispute the plaintiffs' expert's affidavit to the effect that the total amount of "critical areas" (consisting of wetlands, flood plain and slope constraint) consist of 9.287 acres, and that Ordinance #386-88 thus reduces the allowable building size by 60,682 square feet and the allowable impervious coverage by 133,499 square feet.

 Plaintiffs move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on the grounds that Ordinance #386-88 1) effects a taking without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution; 2) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the New Jersey Constitution; 3) is preempted by the New Jersey Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq ; and 4) is preempted by and is inconsistent with the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

 Regarding plaintiffs' claim that the ordinance is inconsistent with the New Jersey Municipal Land Use Law, the Superior Court of New Jersey has entered an order voiding Section 2 (the floor area ratio provision) on the ground that the township exceeded its statutory authority. Clinton Hills Corporate Center v. Township of Clinton, Hunterdon County #W-506-89 (Law Div. 1989). Thus, this court is obligated to address the issue of mootness as a threshold matter. See Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980), cert. denied sub nom. Mark-Garner Associates v. Bensalem Township, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981).

 II. MOOTNESS

 "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979), citing Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969). Further, a case may become moot if (1) "it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur" and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. at 631.

 As noted, the state court has voided the floor area ratio provision of Ordinance #386-88. The issues presented to the state court did not include federal constitutional claims, preemption issues under the New Jersey Freshwater Wetlands Protection Act, or state constitutional claims. Thus, the state court's relief cannot be said to have "completely eradicated" the effects of the alleged violation. Rogin v. Bensalem Township, 616 F.2d at 684-685. Nor can it be said that there has been an "irrevocable eradication" since the state law issues are subject to appeal. Id. Finally, inasmuch as the state court decided only questions of state law, there is no assurance that the federal constitutional violations will not recur. "In short, there are present here 'live' federal constitutional issues that have not been adjudicated in any other court." Id. at 685. Accordingly, this court holds that the case is not moot.

 III. RIPENESS

 The township has moved to dismiss plaintiffs' complaint. It argues that the federal constitutional challenge to Ordinance #386-88 is not ripe because plaintiffs have failed to submit a development plan to the planning board or seek a variance or otherwise seek compensation through available state court remedies. This court denies the township's motion for the following reasons.

 As noted, plaintiffs allege that the ordinance violates the Fifth and Fourteenth Amendments to the United States Constitution because it effects a taking without just compensation. The ordinance does not contemplate the township's physical occupation of property. Instead, it reduces the development potential of the site. Since plaintiffs have not submitted a development plan nor sought a variance, the ordinance has never been enforced against them. Thus, plaintiffs' takings claims amount to what the United States Supreme Court has called a "facial challenge" to the ordinance.

 In Agins v. Tiburon, 447 U.S. 255, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1979), the Supreme Court addressed the issue of whether a municipal zoning ordinance took certain property without just compensation in violation of the Fifth and Fourteenth Amendments. The Supreme Court noted that "because the [property owners] have not submitted a plan for development of their property . . ., there is as yet no concrete controversy regarding the application of the specific zoning provisions. Thus, the only question properly before [the court] is whether the mere enactment of the zoning ordinance constituted a taking." Id. at 260. The Court went on to hold that the ordinance withstood this facial challenge because it substantially advanced a legitimate governmental interest. Id. at 261.

 In Hodel v. Virginia Surface Mining & Reclamation Assoc., 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981), the Supreme Court distinguished a facial challenge to the Surface Mining Act from an actual taking challenge involving a specific piece of property. "Because . . . the taking claim arose in the context of a facial challenge", the court found that "it presented no concrete controversy concerning the application of the Act to particular surface mining operations or its effect on a specific parcel of land. Thus, the only issue before the District Court . . . was whether the 'mere enactment' of the [Act] constitutes a taking." Id. at 295. The Court thus adjudicated the facial challenge to the Surface Mining Act and held that "the Act does not, on its face, prevent beneficial use of coal-bearing lands." Id. at 296-297, n. 37.

 Also, in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987), the Supreme Court noted that:

 
The posture of [a taking] case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation.

 Thus, the Supreme Court in Agins, Hodel and Keystone Bituminous Coal Ass'n has not refused to address facial challenges made pursuant to the Fifth and Fourteenth Amendments on the ground that they were not ripe.

 The township nevertheless argues that plaintiff's taking claims are not ripe because they have failed to obtain a final decision regarding the application of the ordinance to their land and have failed to utilize the remedies the State of New Jersey provides for obtaining just compensation. The township relies on Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985).

 
[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.

 Williamson, 473 U.S. at 186.

 In Williamson, a developer obtained approval from the local planning commission of a preliminary plat for development of a tract of land, in accordance with the requirements of a zoning ordinance for "cluster" development. After construction of some units, the ordinance was changed so as to reduce the allowable density of the remaining units. Based upon the amended ordinance, the commission disapproved plats for further development. The developer filed an action in federal district court pursuant to 42 U.S.C. § 1983, alleging that the commission had taken his property without just compensation.

 The developer had submitted a development plan but did not seek a variance. Noting that Fifth and Fourteenth Amendment taking claims are based primarily upon the economic impact of government regulations, the Supreme Court found that economic factors "simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question." Id. at 191.

 Further, "if the government has provided an adequate process for obtaining compensation, and if resort to that process 'yields just compensation' then the property owner 'has no claim against the Government for taking'." Id. at 194-195, citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984). As the township points out, plaintiffs have not submitted a development plan to the planning board nor have they applied ...


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