Collester, Lora and Handler. The opinion of the court was delivered by Handler, J.A.D.
[133 NJSuper Page 236] Plaintiff Kingston East Realty Co. instituted this action by filing a complaint in lieu of prerogative writs against the State of New Jersey, by the Commissioner of Transportation. In the first count of the complaint plaintiff sought damages because the actions of the Department of Transportation in delaying the issuance of a building permit and in otherwise inhibiting or discouraging the preparations for and development of the land for a large 18-building research, office and laboratory complex, caused plaintiff to suffer substantial financial loss. The second count, which incorporated the factual allegations of the first count,
asserted that the activities of the State resulted in "constructive condemnation" since the utilization of the property through development had thereby been substantially inhibited or denied. The third count characterized the conduct of the State in negotiating for or acquiring other properties, but refusing to negotiate for or acquire the premises in question, as arbitrary and capricious and as a result substantial damages were suffered. Plaintiff sought on these latter two counts a judgment compelling defendant to institute an action for the acquisition of its property. The fourth count, which also included by reference preceding allegations, stated that there had been a depreciation in the value of plaintiff's property for which it demanded judgment seeking the appointment of commissioners to assess the value of damages. On the second, third and fourth counts -- those "sounding" in condemnation -- plaintiff sought an award for various expenditures under N.J.S.A. 20:3-26(c). The complaint was verified and supported by a certification in lieu of affidavit by one of plaintiff partners.
On application plaintiff obtained an order to show cause why the requested relief should not be granted. The State made a motion returnable on the adjourned return day for an order to dismiss plaintiff's complaint on the ground that it failed to state a claim upon which relief could be granted. The judge entered an order dismissing the complaint with prejudice and plaintiff took this appeal.
The facts may be gathered from the pleadings, the moving papers and supporting briefs.
It appears that in 1964 plaintiff, a partnership, purchased approximately 93 acres of land fronting on Route 27 in Franklin Township, Somerset County, New Jersey. Under the applicable zoning ordinance the land may be used for research, office and laboratory purposes. In February 1971 a highway alignment preservation map was filed pursuant to N.J.S.A. 27:7-66. This map showed the proposed alignment of Route 92 Freeway, which included a portion of plaintiff's
property. In February 1972 a revised map was submitted, still including some of plaintiff's property.
It further appears that the State had acquired some properties for the Route 92 Freeway, utilizing funds from a bond issue of 1968. One of these acquisitions was a piece of property across from plaintiff's premises on the other side of Route 27. This property was one of four properties located in section 3 of the proposed plan and was the only parcel in that section which was taken. Plaintiff's property is in section 4, with respect to which there have been no acquisitions. It is also alleged that, since the defeat of the 1972 transportation bond issue, no further acquisitions or condemnation actions have been instituted in section 3. Plaintiff asserts that, according to the filed map of Route 92, his property is intended to be used for the construction of ingress and egress for the proposed road, and that the property already acquired across the street is of no use for the highway unless plaintiff's property is also obtained.
Plaintiff contends that "several years" after the alignment map was filed it decided to develop a research office laboratory complex. This decision allegedly was made after responses by the State that acquisition would not occur for some time. Engineers and architects were hired to prepare studies, surveys and plans for a complex consisting of 18 primary buildings, accessory buildings and roads. Financing was also obtained.
On January 8, 1973 plaintiff submitted an application for obtaining a building permit to the building code enforcement officer of Franklin Township. The application was forwarded to the Department of Transportation pursuant to N.J.S.A. 27:7-67. The Department notified plaintiff by letter dated March 7, 1973 that "the proposed building is in the center of the alignment [and] we are now preparing acquisition documents for our needs in this area." On March 8, 1973 plaintiff received a letter from the building code enforcement officer of Franklin Township that the building permit was
denied because of the action by the Department of Transportation. Thereafter plaintiff wrote to the Department of Transportation on July 23, 1973 asking for a statement of the Department's intention ...