On appeal from Superior Court, Law Division, Bergen County.
Coleman, Muir, Jr.*fn1 and Levy. The opinion of the court was delivered by Coleman, P.J.A.D.
[268 NJSuper Page 460] This case requires us to decide whether there has been an administrative taking of plaintiffs' land through zoning regulations requiring the payment of just compensation.
Plaintiffs are the owners of an undersized, isolated lot located in the Borough of Old Tappan (Borough) which does not meet the requirements of the local zoning ordinance for construction of a single family house. Plaintiffs were denied a hardship variance to construct a single family house on the lot because they failed to satisfy the negative criteria of N.J.S.A. 40:55D-70. They then filed a complaint in lieu of prerogative writs seeking to reverse the denial of the variance application, (Count Two), or, in the alternative, to compel the Borough to commence condemnation proceedings, (Count One). On January 22, 1992, an order was entered affirming the denial of the hardship variance. The Judge found that "although the plaintiffs have satisfied the positive criteria, the negative criteria cannot be met in this case."
On August 24, 1992, the same Judge in the Law Division entered judgment in favor of plaintiffs for inverse condemnation. He found that on January 22, 1992, the date he affirmed the denial of the hardship variance, inverse condemnation occurred. The Judge appointed three Commissioners to determine the fair market value of the lot in accordance with N.J.S.A. 20:1-1 et seq. That judgment was deemed final for purposes of appeal. Defendants have appealed only the inverse condemnation aspect of the judgment. We affirm.
The property involved in this appeal is designated on the Borough's tax map as Lot 2, Block 1604 (Lot 2), located on the corner of Russell Avenue and Old Tappan Road and is contiguous to the Ambulance Corps. Across the street is the Borough's Fire Department and the new Municipal Complex. Lot 2 is located in an RA-15 Residential One Family Zone of the Borough. The ordinance was adopted in 1947 and has been substantially unchanged since its adoption. This property has been a separate lot, not under common ownership with any contiguous lot, since prior to the 1947 ordinance.
The chain of title discloses that Louis M. and Margaret Budinick acquired title to the lot in 1953 upon foreclosure of a Tax Sale Certificate. Plaintiffs acquired title to Lot 2 and another noncontiguous lot with improvements by Deed from the Budinicks, dated April 13, 1984, and recorded April 23, 1984. The consideration for the single Deed for the two properties was $100,000. There was no allocation of the consideration between the two properties either in the Deed or the Contract of Sale. Plaintiffs made additional improvements to the home located on the larger lot and sold it by Deed dated August 24, 1984, for $110,000.
In June 1984, plaintiffs filed an application with defendant Board of Adjustment (Board) seeking hardship variances to construct a single family dwelling on Lot 2. The controlling ordinance requires a buildable corner lot to be at least 100 feet wide, building setback of 35 feet and 15,000 square feet in bulk. The Plot Plan for the proposed house shows the lot as 50 feet wide, 10 feet setback for the building and 5,220 square feet in bulk. The proposed house would cover thirty-six percent of the lot rather than the twenty-five percent maximum coverage established in the ordinance. The Board denied the application in a resolution adopted May 10, 1990. The Board found the negative criteria had not been met because "[t]he lot in question is at a high traffic intersection, used by fire, ambulance, and emergency vehicles, in close proximity to the Fire Department and Ambulance Corps. driveways, and a variance to allow new construction within ten feet of the Russell Avenue right-of-way cannot be granted without substantial detriment to the public good and public safety."
On this appeal, the Mayor and Council of the Borough contend plaintiffs, as subsequent owners, were not entitled to inverse condemnation. They argue that the lot was zoned into uselessness before plaintiffs became the owners and that variance cases provide no assistance in deciding this inverse condemnation case. The Mayor and Council take the untenable position that although
the lot is useless to the plaintiffs based on proper denial of the hardship variance application, they are entitled to no relief, not even from the burden of paying taxes on the useless land which benefits the public. For the reasons which follow, we ...