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. e du/thir dc ir c uit_1996/33UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 95-5164

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287 CORPORATE CENTER ASSOCIATES, Appellan t

v.

THE TOWNSHIP OF BRIDGEWATER, A Municip al Corporation of the State of New Jerse y

__________________________________________ _____

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 Jud ges and POLLAK, District Judge*

(Filed November 27, 1996)

ROY E. KURNOS, ESQUIR E
Belsole & Kurnos 3 Prospect Street Morristown, New Jerse y 07960

Attorney for Appell ant

WILLIAM W. LANIGAN, E SQUIRE Law Offices of Willia m W. Lanigan
361 Vanderveer Avenue Somerville, New Jerse y 08876-3360

Attorney for Appell ee

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

OPINION OF THE COURT

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SCIRICA, Circuit Judge.

In this inverse condemnation action, 287 C orporate Center Associates ("Associates") sued the Township of Bridgewater ("Township") under 42 U.S.C. § 1983 and the Fifth A mendment of the United States Constitution for allegedly taking its property without just compensation. The district court dism issed the case as time-barred under the applicable statute of limi tations. Associates has appealed. We will affirm.

I. The district court had subject matter juri sdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Nelson v. Coun ty 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 l 2) in Bridgewater Township, New Jersey. Lot l2 is a 39 a cre tract split-zoned into two categories: approximately one half is zoned single family residential; the remainder is zoned f or office and service facilities. After various proposals to dev elop Lot l2, Associates entered into a developer's agreement wit h the township planners. Associates contends that under the develop er's agreement and the Township's zoning scheme, it has been unable to develop its property. Specifically, Associates ass erts it was forced to accept conditions as part of the develope r's agreement which restricted the lot from being developed and f oreclosed proper access to the site. Associates also contend s the dual zoning designation prevented Lot l2 from being deve loped in
accordance with either the residential or the comme rcial 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 alle ged both a regulatory taking and a physical taking, and it sou ght damages or in the alternative an injunction directing the Town ship to zone the entire Lot l2 "commercial" and permit reasonabl e access to the property. The facts alleged in the complaint o ccurred between 1981 and 1985, but suit was not filed until August 2, 1994. The Township filed a motion to dismiss the c omplaint as time-barred under New Jersey's two year statute of limitations for personal injury actions. The district court gr anted the motion to dismiss and Associates appeals, contendin g alternatively its claims should be exempt from any statute of limitations or subject to a limitations period of s ix or twenty years. Associates also contends that, regardless o f which statute of limitations applies, the limitations per iod has notyet expired.

III. A. No Exemption from the Statute of Limitatio ns 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 t he burden on the defendant to acquire the property it needs thro ugh condemnation. Because this action is brought about as a result
of the defendant's failure to use its eminent domai n powers, it would be unjust to allow the defendant to circumven t its obligation to make compensation by raising the stat ute 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 conde mnation suit, it is alleged that a governmental body has effectua ted a taking without recourse to eminent domain proceedings, "[s ]uch a taking
. . . shifts to the landowner the burden to discove r the
encroachment and to take affirmative action to reco ver just compensation." United States v. Clarke, 445 U.S. 2 53, 257 (1980). We see no reason why shouldering that burd en does not carry with it the obligation to initiate suit withi n the time specified by the appropriate statute of limitations

. Associates' argument, therefore, lacks merit. Associates also contends the policy underl ying statutes of limitations is not advanced by its application t o inverse
condemnation actions. But federal causes of action are subject to time limitations. "A federal cause of action `b rought at any distance of time' would be `utterly repugnant to th e genius of our laws.'" Wilson v. Garcia, 471 U.S. 261, 271 (1 985) (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 Ame ndment contains a limitations period. When Congress has n ot 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 det ermined 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 cl aims fit perfectly within the "personal injury" category, bu t 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 8 34, 843 (3d Cir.) ("[A] uniform time limit for all § 1983 actio ns -- regardless of the nature of the precise claim -- mu st be applied . . . ."), cert. denied, 484 U.S. 979 (1987). Ther efore, we willaffirm the district court's application of New Jers ey'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. 9 06 (1987).
2. Fifth Amendment to the United States Constitution Associates also brought suit under the Fif th Amendment. Following Wilson v. Garcia, some Courts of Appeals, for purposes of consistency, have applied the perso nal injury statute of limitations to actions brought directly under the Constitution. See, e.g., Bieneman v. City of Chica go, 864 F.2d 463, 469-70 (7th Cir. 1988) (action brought directl y under 5th Amendment), cert. denied, 490 U.S. 1080 (1989); Chi n v. Bowen, 833 F.2d 21 (2d Cir. 1987) (action brought directly under 14th Amendment). Associates contends, however, that we shou ld ignore Wilson and instead apply the most analogous state s tatute of limitations. Associates argues for the application of New Jersey's twenty year statute of limitations, N.J. S tat. Ann. § 2A:14-7, which provides, "Every action at law for r eal estate shall be commenced within 20 years next after the r ight 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 c ondemnation actions, New Jersey decisional law indicates it is the proper statute of limitations in such cases. See, e.g., R usso Farms, Inc. v. Vineland Bd. of Educ., 655 A.2d 447, 450 (N .J. Super. Ct. App. Div. 1995) (applying six year statute of limit ations to inverse condemnation action), aff'd in part and rev 'd in part, 675 A.2d 1077 (N.J. 1996) (issue not raised on appe al); Harisadan v. City of East Orange, 453 A.2d 888, 890 (N.J. Sup er. Ct. App. Div. 1982) (applying six year statute of limitation s to inverse condemnation action). Therefore, regardless of whi ch approach we take, at most this claim is subject to a six year s tatute of
limitations. The facts underlying the alleged taking oc curred
between 1981 and 1985. Associates did not file sui t until August 2, 1994, well after the time limit under bot h 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 prop erty amounts to a "continuing wrong," which effectively tolls th e statute of limitations. We have held that under proper circum stances, the "continuing wrong" doctrine may apply: In most federal causes of action, when a defendant's conduct is part of a continuin g practice, an action is timely so long as t he last act evidencing the continuing practic e 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 thedefendant's "affirmative[] act[s]." Id. at 1296.

The Township has not committed an affirmat ive act since 1985. The facts of the alleged taking stabilized a lmost ten years before Associates filed its lawsuit. Associa tes is unable to allege facts which might bring it under the "con tinuing wrong" doctrine. See United States v. Dickinson, 331 U.S. 745, 749 (1947) (holding that a landowner may "postpon[e] su it until the situation becomes stabilized.").
2. Associates' Cause of Action was Not C reated by
Lucas v. South Carolina Coastal Counc il, 505 U.S. 1003 (1992).

Associates claims its cause of action did not exist, and the limitations period did not start to run, un til the Supreme Court held in Lucas v. South Carolina Coast al Council, 505 U.S. 1003 (1992), that a taking occurs when gov ernment regulation denies a property owner of all economica lly viable use of his property. But the court in Lucas emphasized there was nothing new to its finding that a taking occurs "wh ere regulation denies all economically beneficial or productive us e 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. DeBenedic tis, 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 dism issal on the pleadings. Associates never raised this issue befo re the district court. Rather it raised the "equitable to lling" theory for the first time in its appellate brief. Ordinar ily we will not consider allegations initially raised on appeal . See McCray v. Corry Mfg. Co., 61 F.3d 224, 226 n.2 (3d Cir. 19 95). In any event, equitable tolling does not a pply here. There are no allegations, at least from 1985 on, th e Township "actively misled" Associates into forgoing prompt a ction 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.