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Philip Carroll v. Township of Mount Laurel

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 24, 2011

PHILIP CARROLL, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF MOUNT LAUREL, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-388-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 26, 2011 - Decided: Before Judges Cuff and Sapp-Peterson.

Plaintiff Philip Carroll filed an inverse condemnation complaint regarding property owned by him in the Township of Mount Laurel (Mt. Laurel). Plaintiff appeals from an order granting Mt. Laurel's motion to dismiss his complaint and denying plaintiff's motion for summary judgment. We affirm.

Plaintiff owns approximately fourteen acres in Mt. Laurel having frontage on Route 38 and Union Mill Road. Plaintiff's property is located in an industrial district permitting seventeen categories of use. A business development overlay permits another twenty-nine categories. Plaintiff asserts that a Resolution adopted by Mt. Laurel on September 19, 2005, effected a total regulatory taking of his property. The Resolution declared the intention and desire of the municipal governing body to preserve the corridor on which plaintiff's property is located from commercial uses and to preserve the corridor for open space. Mt. Laurel has not amended the master plan or zoning ordinance to effectuate its stated intention.

Plaintiff filed an inverse condemnation complaint in the United States District Court for the District of New Jersey. The judge granted Mt. Laurel's motion for summary judgment because the matter was not ripe for adjudication on the merits. The United States Court of Appeals for the Third Circuit affirmed. Plaintiff filed a complaint seeking compensation for his property due to inverse condemnation in Superior Court, Law Division. By order dated May 28, 2010, Judge Michael Hogan dismissed the complaint. In his opinion of the same date, the judge noted that the matter had previously been adjudicated on the merits.

Judge Hogan properly dismissed the complaint. The federal district court granted summary judgment in favor of Mt. Laurel because the matter was not ripe for adjudication. This disposition was required because the municipal governing body had taken no action other than to express its desire to preserve that area of the township. No other action had been taken. The federal district court did not consider or adjudicate the validity of the Resolution. The complaint filed by plaintiff in state court alleges no action by defendant other than adoption of the Resolution. In this context, Judge Hogan was required to recognize and follow the dispositions of the federal trial and appellate courts. Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 406 (1991). We note, however, that plaintiff is not precluded from challenging municipal action if there is a change of circumstances that actually affects the use of plaintiff's property.

Affirmed.

20110224

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