On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-72-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Chambers.
Plaintiff Cotswold, LLC appeals from the trial court decision holding that a sculptured fountain which plaintiff removed from the Cotswold Estate in the Borough of Tenafly is an historic landmark and must be returned to the site.
The fountain, consisting of four figures around an urn, is six foot high, weighs over 1,000 pounds and was designed by Enid Yandell, an American sculptor. It had been located on the grounds of the Cotswold Estate in the Borough of Tenafly since at least 1925. In 2002, defendant Borough of Tenafly adopted an Ordinance designating the Cotswold Estate as an historic site pursuant to its power to designate and regulate historic sites under N.J.S.A. 44:55D-65.1 and its Preservation of Historic Landmarks Ordinance, Borough of Tenafly, N.J. Code § 35-807.
Plaintiff, owner of the Cotswold Estate, thereafter converted the property into condominium units. The master deed was filed in 2005. Plaintiff removed the fountain from the property at that time, without obtaining a Certificate of Appropriateness*fn1 from the Borough before doing so. Plaintiff took the position that since the fountain was not mechanically attached to the land, it was not a fixture and hence was not encompassed within the historic site designation. When the Borough directed that the fountain be returned to the property, plaintiff brought this declaratory judgment action seeking a finding that the fountain was not subject to the Ordinance. The Borough filed a counterclaim seeking an order for the return of the fountain plus penalties.
The dispute was submitted to the trial judge on stipulated facts and trial briefs. The trial judge issued a written opinion dated February 21, 2007, holding that the fountain was an improvement governed by the historic designation and must be returned to the historic site and remain there unless and until plaintiff obtains the requisite Certificate of Appropriateness. The trial judge denied the Borough's request for civil penalties and exemplary damages.
On appeal, plaintiff does not contest the designation of the Cotswold Estate as an historic site, but argues that the fountain is not governed by that designation. Plaintiff contends that the Borough's Preservation of Historic Landmarks Ordinance "do[es] not have the requisite standards to declare the statue an historic site" and that the language in the Ordinance designating the Cotswold Estate as an historic site "did not designate the statue as an historic site." We reject these arguments and affirm for the reasons expressed by Judge Doyne in his well-reasoned and thorough opinion.
Plaintiff raises on appeal a third point which was neither addressed below nor pled in the complaint. Plaintiff contends that the Ordinance is unconstitutional as applied because it effectively confiscates the fountain. We find that this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that the Ordinance does nothing more than require that the fountain remain on the property where it has been for more than eighty years unless a Certificate of Appropriateness is obtained. These circumstances do not constitute a governmental taking. See Mansoldo v. State, 187 N.J. 50, 58-59 (2006) (stating that regulation of a property does not constitute a taking unless it denies "all economically beneficial or productive use of [the] land" or diminishes the value of the property by restricting its use to such an extent that it constitutes a taking). Here, the Borough neither physically took the property nor did it deny plaintiff all economic or beneficial use of the fountain. Plaintiff argues that if the fountain cannot be removed from the property, then plaintiff is deprived of its economic value. This is not so. Whenever the property is sold with the fountain on the grounds, whatever value the fountain adds to the property may be reflected in the sale price. The fact that plaintiff, who has since sold the property, must now return the fountain to the property and may be unable to obtain additional compensation for it from its current owners is due to plaintiff's mistake and not any constitutional flaw in the Ordinance or its application here.