                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2009

Philip Carroll v. Township of Mount La
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3156




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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-3156
                                       ___________

                                   PHILIP CARROLL,
                                                        Appellant
                                             v.

                          TOWNSHIP OF MOUNT LAUREL
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Civil Action No. 06-cv-05515)
                       District Judge: Honorable Noel L. Hillman
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                February 25, 2009
        Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

                                 (Opinion filed: March 03, 2009)

                                        OPINION
                                       ___________

PER CURIAM.

              Philip Carroll appeals from an order of the United States District Court for

the District of New Jersey granting the Township of Mount Laurel’s motion for summary

judgment in an action seeking “redress” for an allegedly “uncompensated regulatory

taking of his private property.” We will affirm the District Court’s order.

                                             1
              Because the District Court’s ruling contains a thorough recitation of the

facts, we will not discuss them in detail; rather, we will briefly describe the undisputed

relevant events leading to this action. Carroll owns approximately 14 acres located

between Route 38 and Union Mill Road in the Township of Mount Laurel, New Jersey.

In September 2004, Carroll entered into an agreement to sell the property to the

Township. The agreement was never consummated, however, because Carroll was

unable to satisfy a condition of the sale, namely, receipt of a Letter of Interpretation

(“LOI”) from the New Jersey Department of Environmental Protection (“DEP”),

“showing no greater degree of constraint caused by wetlands on the property than that

shown” on prior environmental reports.1

              In September 2005, the Township Council passed a “Resolution Creating a

Preserved Corridor Along Portions of Union Mill Road” (the “resolution”), including

Carroll’s property. The resolution stated that the Township “is desirous of pursuing the

preservation for the corridor along Union Mill Road . . . so that commercial development

along State Highway 38 . . . cannot and does not negatively impact the largely residential

corridor now existing at that location.” Therefore, it was resolved that “it is the Policy of

the Township . . . to protect this corridor . . . from incursion of commercial or non-



   1
     “A letter of interpretation does not grant approval to conduct any regulated
activities. The sole function of a letter of interpretation is to provide or confirm
information about the presence or absence, boundaries, and/or resource value
classification of freshwater wetlands, transition areas, and/or State open waters.”
N.J.A.C. § 7:7A-3.1(b)

                                              2
residential development.” The resolution indicated that the Township would “take

immediate steps to notify property owners along this corridor that the Township is

communicating with its open space consultant to define the proper amount of property

along the . . . corridor to adequately protect Union Mill Road from commercial uses,

including traffic and the noise therefrom.” Finally, the resolution directed the Township

Manager and Township Solicitor to “immediately communicate with the Township’s

open space consultant, . . . and proceed expeditiously with providing recommendations to

the Township Council for action on this issue.”

              Just over a year later, Carroll filed a complaint pursuant to 42 U.S.C. §

1983, alleging that the resolution effected an “uncompensated regulatory taking of his

private property[,] . . . which has totally deprived him of all economically beneficial use

of his land and economically impacted him by interfering with his legitimate and distinct

investment-backed expectations for it.” The Township filed a motion for summary

judgment, arguing that Carroll’s claim was not ripe for adjudication. The District Court

agreed, and granted the Township’s motion.2 Carroll appealed.3

              The Fifth Amendment, made applicable to state and local governments



   2
     The District Court also dismissed as moot motions filed by Carroll seeking summary
judgment and dismissal of a counterclaim filed by the Township. The Township had
agreed to the dismissal of the counterclaim if its motion for summary judgment was
granted.
   3
    Our review of the District Court’s ripeness determination is plenary. See Sameric
Corp. v. City of Philadelphia, 142 F.3d 582, 597 (3d Cir. 1998).

                                              3
under the Fourteenth Amendment, proscribes the taking of private property for public use

without just compensation. U.S. C ONST. amend. V, XIV; Cowell v. Palmer Township,

263 F.3d 286, 290 (3d Cir. 2001). “The general rule at least is, that while property may

be regulated to a certain extent, if regulation goes too far it will be recognized as a

taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). “A court cannot

determine whether a regulation goes ‘too far’ unless it knows how far the regulation

goes.” MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986).

Consequently, a claim that the application of a government regulation effects a taking of a

property interest is not ripe until (1) “the government entity charged with implementing

the regulations has reached a final decision regarding the application of the regulations to

the property at issue,” and (2) the property owner has “unsuccessfully attempted to obtain

just compensation through the procedures provided by the State for obtaining such

compensation[,]” if those procedures are adequate. Williamson Planning Comm’n v.

Hamilton Bank, 473 U.S. 172, 186, 195 (1985). These requirements “inform[] the

constitutional determination whether a regulation has deprived a landowner of ‘all

economically beneficial use’ of the property, . . . or defeated the reasonable

investment-backed expectations of the landowner to the extent that a taking has

occurred.” Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001) (internal citations

omitted); see also Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1291 (3d Cir.

1993) (“This finality rule recognizes that, with respect to zoning disputes, a property



                                               4
owner suffers no mature constitutional injury until the zoning authority defines the

application of the zoning ordinance and defines the harm to the owner.”).

              Carroll claimed that, prior to the resolution, the property was zoned as an

industrial district, in which residential uses are prohibited. He argued that by stating a

policy of protecting the area in which his property is located “from incursion of

commercial or non-residential development,” the resolution effectively prohibited all uses

(industrial, commercial, and residential) of his property.4 Importantly, however, Carroll

has not sought approval to develop the property, nor has he applied for variances from the

perceived zoning restrictions. Indeed, the legal effect of the Township’s resolution –

which merely stated an intention to protect the area from commercial or non-residential

development – is not clear. Because the extent of a restriction, if any, on the property is

not known, a regulatory taking has not yet been established. See Palazzolo, 533 U.S. at

620-21 (recognizing that “[u]nder our ripeness rules a takings claim based on a law or

regulation which is alleged to go too far in burdening property depends upon the

landowner’s first having followed reasonable and necessary steps to allow regulatory




   4
     Carroll did not bring a facial challenge to the resolution, see County Concrete Corp.
v. Town of Roxbury, 442 F.3d 159, 165 (3d Cir. 2006) (stating that a facial attack on a
zoning ordinance did not need to comply with the finality rule of Williamson County), nor
did he argue that the resolution lacked a public purpose, see Carole Media LLC v. New
Jersey Transit Corp., 550 F.3d 302, 308 (3d Cir. 2008) (holding that “unlike the Just
Compensation Clause claim at issue in Williamson County, a Public Use Clause claim is
ripe before the plaintiff seeks just compensation through state procedures because such
‘proceedings do not supply the appropriate remedy.’”) (citation omitted).

                                              5
agencies to exercise their full discretion in considering development plans for the

property, including the opportunity to grant any variances or waivers allowed by law.”).

Therefore, Carroll cannot at this time show a violation of the Just Compensation Clause,

and the District Court properly granted summary judgment in favor of the Township.

              Accordingly, we will affirm the District Court’s order.




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