On appeal from the Superior Court of New Jersey, Law Division, Union County.
Before Judges J.h. Coleman, Dreier and Villanueva.
The opinion of the court was delivered by
Plaintiffs appeal from the dismissal of their action for inverse condemnation and for damages under 42 U.S.C.A. § 1983. plaintiffs are two partnerships the principals of which are Howard Walters and Barry Walters. The partnerships own lots 23 and 24, block 151 on the tax map of the City of Summit, commonly known as 41-47 Maple Street, Summit. The brothers' partnership already owned 47 Maple Street, and their limited partnership purchased 41 Maple Street from their mother, Miriam Walters and from the estate of their late father Charles Walters.
Plaintiffs' predecessors in title, Charles and Miriam Walters, applied to the Planning Board of the City of Summit to develop the property by (1) adding a two-story addition over an existing one-story clothing store operated by them at 41 Maple Street and (2) connecting the expanded building by an atrium to the adjoining office building at 47 Maple Street. The applicants requested a site plan approval as well as a variance from the parking requirements which effectively prohibited development in the central retail business district and a bulk variance because the new structure would exceed the height limitation. After two evenings of hearings, the Planning Board approved plaintiffs' application on September 28, 1987 and memorialized its decision by a resolution dated November 23, 1987.
After the Planning Board granted this preliminary and final site plan approval, the applicants' son, Barry Walters, spoke to the City of Summit Construction Official concerning the applicants' filing for a construction permit. The construction official allegedly informed Mr. Walters that any filing of an application for a construction permit would be futile, because the Common Council of the City of Summit had already determined to file suit against the Planning Board and the applicants to stop the development. After being informed that no construction permit would issue, Mr. Walters immediately called the Mayor of the City of Summit who also informed Mr. Walters that there was "no way in hell they're going to let you build." The City then filed the threatened action in lieu of prerogative writs against the Planning Board and applicants, alleging that the ordinance prohibited development in the central retail business district and was not susceptible to a variance by the Planning Board.
While the City asked the court to rule on the validity of the parking ordinance that served as a building moratorium, Judge Beglin granted the Planning Board's and applicants' motion to dismiss the complaint on the grounds that the City lacked standing to sue its own Planning Board. The City appealed. By an unpublished opinion dated April 19, 1990, we affirmed Judge Beglin's decision, stating:
[A] municipality may challenge a planning board's grant of a variance only where that variance substantially affects the zoning plan of the municipality. Township of Dover v. Board of Adj. of Dover, 158 N.J. Super. 401, 386 A.2d 421 (App. Div. 1978).
We further adopted Judge Beglin's Conclusion that the variance granted here "did not significantly affect the municipal zoning plan."
At or about the time of our earlier decision, the Board of Adjustment of the City of Summit ruled that the moratorium ordinance violated the Municipal Land Use Law, N.J.S.A. 40:55D-90b and was, therefore, unenforceable. That decision was not appealed.
Plaintiffs contend that because of the actions of the City of Summit they were delayed from January 1988 through April 1990 from proceeding on their development. They are seeking substantial money damages.*fn1
Plaintiffs initially claim that the moratorium imposed by the Summit parking ordinance was ipso facto a violation of plaintiffs' constitutional rights, and that plaintiffs thus had an absolute right under AMG Assoc. v. Township of Springfield, 65 N.J. 101, 112 (1974) to claim damages caused by the allegedly illegal moratorium. In this context, however, the moratorium issue is moot because of their failure to apply for a construction permit, an issue discussed infra. Also, whether plaintiffs' predecessors in title were correct or incorrect concerning the moratorium issue, the fact that they were granted a variance and later prevailed in their action had the same practical effect as if there were no moratorium. The property became potentially available for the requested development after the variance approval. The moratorium issue became, in the words of Judge Beglin, "just . . . an interesting diversion."
In plaintiffs' second point, they contend that the trial Judge should not have disregarded the Board of Adjustment's Conclusion that the parking ordinance created an illegal moratorium. As previously noted, the trial Judge did not have to reach this ...