Down-Zoning Invalidated by Appellate Division

by: Joseph Grather
10 Sep 2013

In Griepenburg v. Township of Ocean, decided August 29, 2013, the a New Jersey appellate court invalidated an Ocean Township zoning ordinance that down-zoned the plaintiffs’ thirty-one acre property from a mix of residential and commercial uses (including hotel) to one residential unit per twenty acres.  The Township’s offered justification for the ordinance was to preserve environmentally sensitive areas.  At the time of ordinance enactment, there was a single family residence on the subject property, and the new zoning would prevent any additional development on the parcel.

The property owners directly challenged the legality of the ordinance, and alleged that if the ordinance were sustained, it would result in a regulatory taking of their property without payment of just compensation.  The trial court bifurcated the claims, and sustained the ordinance.  Then it dismissed the property owners’ takings’ claim on exhaustion grounds.  The property owners’ appealed.

The appellate court found that the ordinance was not reasonably related to its stated purpose because the subject property and its surroundings were not environmentally sensitive lands.  It then concluded that the municipality could achieve its stated purpose by acquiring the property through exercise of eminent domain:

“While the rezoning of the subject property for lower density development will result in preservation of a greater amount of open space, Ocean may not compel private property to be devoted to preservation for open space by restrictive zoning that is not justified by environmental constraints or other legitimate reasons. … Instead, Ocean must acquire any properties that it deems necessary for open space preservation by payment of fair market value to the owners. (slip op. at 17)(citations omitted).

Score one for the property owners!