On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, O'Brien and Conley. The opinion of the court was delivered by O'Brien, J.A.D.
The opinion of the court was delivered by
Plaintiff appeals from the final judgment of the Law Division dismissing his claim for inverse condemnation. We affirm.
Plaintiff is the owner of Lots 16b and 17b in Block 38, as shown on the Tax Assessment Map of the Borough of Leonia. These two lots comprise a parcel measuring 75 feet square containing 5,625 square feet. The property is vacant land fronting on Orchard Place, which was purchased by plaintiff in 1980 for $15,000. Plaintiff and his wife own adjoining property known and designated as Lots 49 and 50 in Block 38 on the Tax Assessment Map, commonly known as 119 Orchard Place, which they acquired as tenants by the entirety in 1978.
The vacant lot is located in an A-3 residential district, which, by amendment to the zoning ordinance in 1986, requires a depth of 100 feet although retaining a required frontage of 50 feet
and a minimum square-foot area of 5,000 square feet. Plaintiff's application for a variance of 25 feet from the required depth of 100 feet was denied by the Board of Adjustment.
Plaintiff filed a two-count complaint in lieu of prerogative writs, which sought in the first count to reverse the denial of his application for a variance, and in the second count sought inverse condemnation. In a written opinion dated April 20, 1989, the Law Division reversed the denial of the variance and ordered the building inspector to issue a building permit. On defendants' appeal, in an opinion dated July 13, 1990, we reversed the Law Division and reinstated the resolution of the Board of Adjustment denying the requested variance. Since the Law Division Judge had not addressed the second count of plaintiff's complaint seeking inverse condemnation, we remanded that issue to the Law Division "for consideration of the question of inverse condemnation about which we express no opinion."
On December 12, 1990, a different Law Division Judge conducted a hearing on our remand. Plaintiff had retained new counsel and all parties had apparently filed briefs in the Law Division. At the hearing, plaintiff's counsel offered photographs of the property and an earlier subdivision map, which plaintiff had submitted in the belief that he needed a subdivision.*fn1 The court sustained defendant's objection to the subdivision map saying, "[B]ecause this is -- the nature of this, there's no testimony set down and it's really nothing additional."
Thereafter argument ensued during the course of which the trial Judge inquired, "Why did the Appellate Division remand the inverse condemnation? That's my question," to which counsel for respondent Borough of Leonia stated,
Judge, we have talked about that ourself. Why didn't they put everybody out of their misery here and why make us all come back and argue these points all over again? My only explanation is that because these issues were raised
below and counsel had an opportunity to present them to the trial Court, and the trial Court simply did not address, that the Appellate Division was not going to exercise original jurisdiction and decide that issue without giving counsel an opportunity to come before the court, show the photographs or whatever pieces of evidence ...