These matters are before the court on motion for summary judgment by defendant, New Jersey Sports and Exposition Authority (hereinafter Authority), and complaint and order to show cause why relief should not be granted. Defendants urge that the three complaints in lieu of prerogative writs fail to state a claim upon which relief may be granted.
The material facts are not disputed. Defendants accept as true all relevant factual allegations contained in the plaintiff's pleadings and all inferences that reasonably flow therefrom. Accordingly, these cases are ripe for disposition. R. 4:46-2; Bruno v. Long Branch , 35 N.J. Super. 304, 310 (App. Div. 1955), aff'd 21 N.J. 68 (1956). The parties are generally in accord with respect to the propriety of a summary judgment disposition and recognize that the issues in controversy are legal rather than factual in nature.
In a recent decision, New Jersey Sports and Exposition Authority v. McCrane , 119 N.J. Super. 457 (Law Div. 1971), aff'd 61 N.J. 1 (1972), this court had occasion to observe that the question of whether there has been a taking of property in a given situation "can be a vexing and thorny problem when encountered in the context of a regulation upon land use." In that case, it was held that the mere enactment of a statute and the stipulation by counsel for the Authority as to the projected site for the complex do not constitute a "taking" of property in the constitutional sense. See Wilson v. Long Branch , 27 N.J. 360, 373-375 (1958), cert. den. 358 U.S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104; Jersey City Redevelopment Agency v. Kugler , 58 N.J. 374
(1971). In this case, the court is confronted with regulatory actions by a state agency in contemplation of the construction of the aforesaid sports complex. The facts are as follows:
The plaintiffs in all three actions consolidated herein for the purpose of summary judgment are possessed of some interest in lands located in the Hackensack meadowlands. Plaintiff Smila-Rutherford, Inc., is the owner in fee title of various premises located therein. In the second action plaintiff East Rutherford Industrial Park, Inc. (hereinafter Park, (is a lessee of approximately 89 acres of land therein owned by the Borough of East Rutherford and leased for a term of 60 years. Among the various obligations on the part of Park were the securing of a release from the State of its riparian claims and the development of the land which is presently undeveloped. Costa Enterprises and East Rutherford Industrial Centers are sublessees of Park. In the third action the plaintiffs are sublessees of Costa Enterprises, one of the plaintiffs in the second action.
All of the lands in question lie within the special district created by the Hackensack Meadowlands Reclamation and Development Act (hereinafter Commission) (N.J.S.A. 13:17-1 et seq.) and are under the jurisdiction of the Commission. Prior to June of 1971, the respective plaintiffs had commenced to develop their respective parcels and Smila to construct commercial buildings thereon with the intention of leasing the same. To date, several buildings have been completed and are currently occupied. After undertaking the construction of those buildings, the plaintiffs, during the Spring of 1971, filed the necessary applications for a waiver of subdivision regulation with the Commission in accordance with the rules and regulations promulgated by it.
On May 10, 1971, the Legislature of the State of New Jersey enacted the "New Jersey Sports and Exposition Authority Law" granting exclusive jurisdiction upon a site not to exceed 750 acres in the Hackensack Meadowlands to the Authority. N.J.S.A. 5:10-1 et seq. The Authority is
possessed with the power of eminent domain and is authorized to construct various facilities for the holding of sporting events, expositions, etc. N.J.S.A. 5:10-2, 6(a), 9.
On May 12, 1972, the New Jersey Supreme Court upheld the constitutionality of that act and declared the Authority to constitute a valid public purpose. New Jersey Sports and Exposition Authority v. McCrane, supra.
In the aforementioned case, attorneys for the Authority stipulated arguendo that the projected site for the complex is the area adjacent to and bounded by Route 3, Berry's Creek, Paterson Plank Road and the New Jersey Turnpike's western spur. Plaintiffs also allege that the Authority has publicly announced the above location, which announcement has been publicized through the various news media.
Prior to the McCrane decision, supra , on or about June 11, 1971, the Commission communicated with the plaintiffs concerning their subdivision applications by the following letter:
The Hackensack Meadowlands Development Commission at a public meeting, on this date, adopted a Resolution directing me to deny your application without prejudice. This action was taken by the Commission after the New Jersey Sports and Exposition Authority had officially informed the Commission that your property may be the site of the Sports Complex.
After receiving this communication, plaintiff Smila-Rutherford, Inc. requested a review of the file with the Commission. In response to that request, Mr. Richard F. Harries, the Chief Engineer of the Commission wrote:
Pursuant to your request, I have reviewed our file and determined that you have fully complied with all the Regulations of the Hackensack Meadowlands Development Commission pertaining to a final plat of a subdivision.
As you are aware, the Hackensack Meadowlands Development Commission has been requested by the New Jersey Sports & Exposition Authority to with hold [sic] any approval on the proposed site for the Sports Complex in East Rutherford. A couple of days
ago, you received correspondence from me indicating that your application has been denied without prejudice pending a final determination by the New Jersey Sports & Exposition Authority regarding the site of the Sports Complex.
In addition to denying the subdivision applications of the plaintiffs, Smila-Rutherford on November 17, 1971 was notified by letter to cease construction of a manufacturing and warehouse building which it had undertaken pursuant to a building permit previously granted by East Rutherford.
All complaints allege that the Commission's actions are arbitrary and interfere with the property rights of plaintiffs without due process. It is contended that these acts constitute a taking of property without compensation in violation of the Federal and State Constitutions. Accordingly they seek injunctive relief compelling the approval of the subdivision applications, or in the alternative compelling the defendants to compensate the plaintiffs. Further, they seek damages for the unreasonable delay in approving the applications. Alternatively, the Costa and Park cases seek a declaration to the effect that the premises are not within the jurisdiction of the Hackensack Meadowlands Development Commission.
Smila-Rutherford, in addition to the aforementioned relief, seeks an injunction against the interference with the construction of its warehouse currently under way. Further, this plaintiff petitions for a declaration that the Commission's actions constitute an option to purchase its premises for which it is to be compensated.
The other two actions contain additional demands. All plaintiffs seek damages for the publicizing of the proposed site which they claim has interfered with their ability to rent their premises or otherwise derive profits therefrom. Additionally, the Costa suit contains prayers for reformation or recission of its contracts (leases) with the Borough of East Rutherford and its lessees.
The Borough of East Rutherford has adopted the position of the State, Commission and Authority to dismiss the complaints
in the Costa case. However, the matter at hand is not concerned with the relationships arising out of the respective leases of the parties. The Authority's position is concerned only with the actions of the Commission and not with the leases emanating from East Rutherford. Accordingly, the recission and reformation aspects of the Costa case are not dealt with herein. Those issues will be decided another day when East Rutherford formally moves for summary judgment or other relief.
We shall consider the merits of the respective claims. The issues to be decided are whether (1) Smila-Rutherford's claim is barred for failure to comply with the time limitations imposed by R. 4:69-6(a); (2) publicizing of the proposed site for the Sports Complex creates an actionable suit for damages sustained therefrom; (3) defendants' actions constitute a taking in the constitutional sense.
The defendants attack the action instituted by Smila-Rutherford on the grounds that it has failed to comply with the time limitations of R. 4:69-6(a) which require the bringing of an action in lieu of prerogative writs within 45 days after the accrual of the right to review. In addition, the Commission argues that the action should have been brought pursuant to R. 2:4-1 which provides for appeals from final determination of state administrative agencies to the Appellate Division.
Smila-Rutherford's complaint was filed on January 17, 1972, some six months subsequent to the initial action by the Commission. A second basis for the complaint relates to the cease and desist order of November 17, 1971. The time for review expired on that claim at the beginning of 1972.
The plaintiff urges the reasoning in the case of Thornton v. Ridgewood , 17 N.J. 499 (1955), wherein Justice Burling permitted a late action on ...