1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"287 Corp Ctr Assoc v. Bridgewater Twp." (1996). 1996 Decisions. Paper 33.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/33
 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.