Undersized Lot Receives Variance From Court to Avoide Inverse Condemnation Claim

While not our prototypical condemnation case, a trial judge in Ocean County aptly reversed a local zoning board in Jerman v. Tp. of Manchester (Docket No. OCN-L-1844-13).  If affirmed the zoning board’s denial of a bulk variance that would have zoned the property into inutility; that is, it would have rendered the property valueless and would thereby give rise to a claim for an unconstitutional taking of private property without payment of just compensation.

Jerman applied to the zoning board for a variance to construct a single-family residence on an undersized lot.  Before applying, Jerman unsuccessfully attempted to purchase portions of neighboring lots to cure the bulk deficiency and offered to sell the lot to the neighbors.  Hence, all other criteria having been satisfied, the bulk variance should have been granted.  Had the judge on appeal not reversed the decision, the property owner could have filed suit against the municipality for a taking, i.e. an inverse condemnation action.

The municipality should be thanking the judge for saving it the time and expense of defending the inverse, which it was bound to lose.  And in that event, the municipality would have been on the hook for all of the property owners’ expenses, including attorneys’ fees.