                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-1996

287 Corp Ctr Assoc v. Bridgewater Twp.
Precedential or Non-Precedential:

Docket 95-5164




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 95-5164
                           ___________


                287 CORPORATE CENTER ASSOCIATES,
                                          Appellant

                               v.

            THE TOWNSHIP OF BRIDGEWATER, A Municipal
             Corporation of the State of New Jersey


         _______________________________________________

         On Appeal from the United States District Court
                  for the District of New Jersey
               (D.C. Civil Action No. 94-cv-03686)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                         October 31, 1996

            Before: SCIRICA and COWEN, Circuit Judges
                   and POLLAK, District Judge*

                    (Filed November 27, 1996)


                             ROY E. KURNOS, ESQUIRE
                             Belsole & Kurnos
                             3 Prospect Street
                             Morristown, New Jersey 07960

                               Attorney for Appellant


                             WILLIAM W. LANIGAN, ESQUIRE
                             Law Offices of William W. Lanigan
                             361 Vanderveer Avenue
                             Somerville, New Jersey 08876-3360

                               Attorney for Appellee



*The Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                            ______________

                          OPINION OF THE COURT
                             ______________


SCIRICA, Circuit Judge.

         In this inverse condemnation action, 287 Corporate
Center Associates ("Associates") sued the Township of Bridgewater
("Township") under 42 U.S.C. § 1983 and the Fifth Amendment of
the United States Constitution for allegedly taking its property
without just compensation. The district court dismissed the case
as time-barred under the applicable statute of limitations.
Associates has appealed. We will affirm.
                               I.
         The district court had subject matter jurisdiction
under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C.
§ 1291. Our review is plenary. See Nelson v. County of
Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995), cert. denied, 116
S. Ct. 1266 (1996).
                              II.
         Associates owns a piece of property (Lot l2) in
Bridgewater Township, New Jersey. Lot l2 is a 39 acre tract
split-zoned into two categories: approximately one half is zoned
single family residential; the remainder is zoned for office and
service facilities. After various proposals to develop Lot l2,
Associates entered into a developer's agreement with the township
planners.
         Associates contends that under the developer's
agreement and the Township's zoning scheme, it has been unable to
develop its property. Specifically, Associates asserts it was
forced to accept conditions as part of the developer's agreement
which restricted the lot from being developed and foreclosed
proper access to the site. Associates also contends the dual
zoning designation prevented Lot l2 from being developed in
accordance with either the residential or the commercial zoning
ordinance.
         Associates brought an inverse condemnation suit against
the Township under 42 U.S.C. § l983 and the Fifth Amendment of
the United States Constitution. The complaint alleged both a
regulatory taking and a physical taking, and it sought damages or
in the alternative an injunction directing the Township to zone
the entire Lot l2 "commercial" and permit reasonable access to
the property. The facts alleged in the complaint occurred
between 1981 and 1985, but suit was not filed until August 2,
1994. The Township filed a motion to dismiss the complaint as
time-barred under New Jersey's two year statute of limitations
for personal injury actions. The district court granted the
motion to dismiss and Associates appeals, contending
alternatively its claims should be exempt from any statute of
limitations or subject to a limitations period of six or twenty
years. Associates also contends that, regardless of which
statute of limitations applies, the limitations period has not
yet expired.
                              III.
A.       No Exemption from the Statute of Limitations
         Associates argues that actions to recover just
compensation for the taking of property should not be restricted
by the application of a statute of limitations. In its brief,
Associates asserts, "[T]he legislature has placed the burden on
the defendant to acquire the property it needs through
condemnation. Because this action is brought about as a result
of the defendant's failure to use its eminent domain powers, it
would be unjust to allow the defendant to circumvent its
obligation to make compensation by raising the statute of
limitations." (Appellant's Br. at 14.)
         We agree with Associates that the standard mode of
taking is through a sovereign's use of its eminent domain powers.
But when, as would be customary in an inverse condemnation suit,
it is alleged that a governmental body has effectuated a taking
without recourse to eminent domain proceedings, "[s]uch a taking
. . . shifts to the landowner the burden to discover the
encroachment and to take affirmative action to recover just
compensation." United States v. Clarke, 445 U.S. 253, 257
(1980). We see no reason why shouldering that burden does not
carry with it the obligation to initiate suit within the time
specified by the appropriate statute of limitations.
Associates' argument, therefore, lacks merit.
         Associates also contends the policy underlying statutes
of limitations is not advanced by its application to inverse
condemnation actions. But federal causes of action are subject
to time limitations. "A federal cause of action `brought at any
distance of time' would be `utterly repugnant to the genius of
our laws.'" Wilson v. Garcia, 471 U.S. 261, 271 (1985) (quoting
Adams v. Woods, 6 U.S. (2 Cranch) 336, 342 (1805)).
B.       The Applicable Statute of Limitations
         Neither 42 U.S.C. § 1983 nor the Fifth Amendment
contains a limitations period. When Congress has not established
a time limitation for a federal cause of action, we must look to
the most "appropriate" or "analogous" state statute of
limitations. Wilson, 471 U.S. at 268.
         1.   42 U.S.C. § 1983
         In Wilson v. Garcia, the Supreme Court determined that
the most appropriate statute of limitations in a § 1983 action is
the state personal injury statute. See Wilson, 471 U.S. at 276.
Accordingly, the district court applied New Jersey's two year
personal injury statute to Associates' § 1983 claim and dismissed
it as time-barred. Associates asserts its cause of action is not
analogous to the one in Wilson. But the directive in Wilson is
clear. The Court recognized that not all § 1983 claims fit
perfectly within the "personal injury" category, but found
nonetheless that "a simple, broad characterization of all § 1983
claims best fits the statute's remedial purpose." Id. at 272.
See also Gavalik v. Continental Can Co., 812 F.2d 834, 843 (3d
Cir.) ("[A] uniform time limit for all § 1983 actions --
regardless of the nature of the precise claim -- must be applied
. . . ."), cert. denied, 484 U.S. 979 (1987). Therefore, we will
affirm the district court's application of New Jersey's two year
statute of limitations to Associate's § 1983 action. See, e.g.,
McMillan v. Goleta Water Dist., 792 F.2d 1453 (9th Cir. 1986)
(applying personal injury statute of limitations to § 1983 action
for inverse condemnation), cert. denied, 480 U.S. 906 (1987).
         2.   Fifth Amendment to the United States Constitution
         Associates also brought suit under the Fifth
Amendment. Following Wilson v. Garcia, some Courts of Appeals,
for purposes of consistency, have applied the personal injury
statute of limitations to actions brought directly under the
Constitution. See, e.g., Bieneman v. City of Chicago, 864 F.2d
463, 469-70 (7th Cir. 1988) (action brought directly under 5th
Amendment), cert. denied, 490 U.S. 1080 (1989); Chin v. Bowen,
833 F.2d 21 (2d Cir. 1987) (action brought directly under 14th
Amendment).
         Associates contends, however, that we should ignore
Wilson and instead apply the most analogous state statute of
limitations. Associates argues for the application of New
Jersey's twenty year statute of limitations, N.J. Stat. Ann. §
2A:14-7, which provides, "Every action at law for real estate
shall be commenced within 20 years next after the right or title
thereto, or cause of such action shall have accrued." But in New
Jersey, the most analogous state statute provides a six year
limitations period. See N.J. Stat. Ann. § 2A:14-1. Although
the statute does not explicitly reference inverse condemnation
actions, New Jersey decisional law indicates it is the proper
statute of limitations in such cases. See, e.g., Russo Farms,
Inc. v. Vineland Bd. of Educ., 655 A.2d 447, 450 (N.J. Super. Ct.
App. Div. 1995) (applying six year statute of limitations to
inverse condemnation action), aff'd in part and rev'd in part,
675 A.2d 1077 (N.J. 1996) (issue not raised on appeal); Harisadan
v. City of East Orange, 453 A.2d 888, 890 (N.J. Super. Ct. App.
Div. 1982) (applying six year statute of limitations to inverse
condemnation action). Therefore, regardless of which approach we
take, at most this claim is subject to a six year statute of
limitations.
         The facts underlying the alleged taking occurred
between 1981 and 1985. Associates did not file suit until
August 2, 1994, well after the time limit under both the two year
and six year statutes of limitations.
C.       The Limitations Period Has Expired
         1.   This is Not a Continuing Wrong
         Associates contends the taking of its property amounts
to a "continuing wrong," which effectively tolls the statute of
limitations. We have held that under proper circumstances, the
"continuing wrong" doctrine may apply:
         In most federal causes of action, when a
         defendant's conduct is part of a continuing
         practice, an action is timely so long as the
         last act evidencing the continuing practice
         falls within the limitations period . . . .

Brenner v. Local 514, United Bhd. of Carpenters and Joinders of
Am., 927 F.2d 1283, 1295 (3d Cir. 1991). The focus is on the
defendant's "affirmative[] act[s]." Id. at 1296.
         The Township has not committed an affirmative act since
1985. The facts of the alleged taking stabilized almost ten
years before Associates filed its lawsuit. Associates is unable
to allege facts which might bring it under the "continuing wrong"
doctrine. See United States v. Dickinson, 331 U.S. 745, 749
(1947) (holding that a landowner may "postpon[e] suit until the
situation becomes stabilized.").
         2.   Associates' Cause of Action was Not Created by
              Lucas v. South Carolina Coastal Council, 505 U.S.
              1003 (1992).

         Associates claims its cause of action did not exist,
and the limitations period did not start to run, until the
Supreme Court held in Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992), that a taking occurs when government
regulation denies a property owner of all economically viable use
of his property. But the court in Lucas emphasized there was
nothing new to its finding that a taking occurs "where regulation
denies all economically beneficial or productive use of land."
Id. at 1015 (citing Agins v. City of Tiburon, 447 U.S. 255, 260
(1980); Nollan v. California Coastal Comm'n, 483 U.S. 825, 834
(1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.
470, 495 (1987); Hodel v. Virginia Surface Mining & Reclamation
Ass'n, Inc., 452 U.S. 264, 295-96 (1981)). Where a decision of
the Court applies a rule that the Court has already set forth on
"numerous occasions," Lucas, 505 U.S. at 1016, that decision
cannot be said to create any new causes of action. Therefore,
this argument fails as well.
         3.   Equitable Tolling
         Associates asserts its equitable defenses to the
Township's timeliness argument should preclude dismissal on the
pleadings. Associates never raised this issue before the
district court. Rather it raised the "equitable tolling" theory
for the first time in its appellate brief. Ordinarily we will
not consider allegations initially raised on appeal. See McCray
v. Corry Mfg. Co., 61 F.3d 224, 226 n.2 (3d Cir. 1995).
         In any event, equitable tolling does not apply here.
There are no allegations, at least from 1985 on, the Township
"actively misled" Associates into forgoing prompt action to
vindicate its rights. Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).
                         IV. Conclusion
         For the foregoing reasons, we will affirm the judgment
of the district court.
