Griffith v. State Department of Environmental Protection

Argued April 24, 2001

This is an inverse condemnation case involving an alleged regulatory taking. Ultimately, and before entry of final judgment, defendant Department of Environmental Protection (DEP), by way of amelioration pursuant to the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, and more particularly 13:9B-22b, accorded plaintiff Darwin R. Griffith all of the permits and approvals he required in order to develop his property in Little Egg Harbor Township, allowing him to construct a 26-foot road over wetlands and to subdivide the upland portion into forty-three sewered lots. The amelioration also included waiver by DEP of an $80,000 environmental mitigation expense chargeable to plaintiff and waiver of his application fees which would have amounted to an estimated $10,700. DEP now appeals from final judgments and orders of the Law Division, entered after the amelioration was effected, holding that prior to the amelioration, DEP had, by reason of its course of administrative action, temporarily taken the land of plaintiff Darwin R. Griffith; fixing damages for the temporary taking; and awarding plaintiff a counsel fee pursuant to N.J.S.A. 20:3-26c. We reverse both the temporary taking award and the counsel fee award.