Possible Inverse Condemnation Looms in Variance Denial Case

A New Jersey appellate court recently affirmed the dismissal of a lawsuit challenging a local municipality’s denial of a variance application to build one single family residence on a 24 acre lot.  The Last Frontier, Inc. v. Blairstown Tp. Zoning Bd. of Adj., Docket A-5205-08T2 (May 24, 2010).  A variance was required because the property does not abut, or have direct access to, the public right of way.  Accordingly, the focus of the case was access to the property from a driveway off County Road 521.  The required variance was originally granted in 2002 to the property owner, but it was conditioned on the property owner obtaining an easement to cross land owned by the New Jersey State Department of Transportation and County Planning Board approval.  The property owner did not obtain these approvals until 2005.

In the meantime, County Road 521 was improved in such a manner that ingress and egress from the existing driveway became a safety issue.  Therefore, when the property owner applied for a building permit in 2005/06, the municipality advised that a new variance application was needed because the old permit expired.  Ultimately, the zoning board denied the variance for safety reasons, and the property owner appealed to the Law Division.  The third count of the complaint included a claim for inverse condemnation.  The Law Division failed to address that claim.  Therefore, while the appeals court affirmed the zoning denial it remanded the case for adjudication of the inverse condemnation claim noting  a “plaintiff is entitled to compensation if it is deprived of all or substantially all of the beneficial use of the totality of the property.”  A property that is land-locked solely due to a regulatory denial would appear to meet the stated legal threshold.    Time will tell if the zoning denial provides the property owner with sufficient basis to prevail on its taking claim before the trial court.