[153 NJSuper Page 389] This is a motion by defendant State of New Jersey to dismiss the first count of plaintiff's complaint for failure to state a claim upon which relief can
be granted. In the alternative, the State moves for summary judgment on the First Count in its favor.
Plaintiff owns a tract of land in Linden, which is located in Union County, New Jersey. Part of that tract was subject to a tidelands claim by the State. As a result, plaintiff applied to the New Jersey Department of Environmental Protection in 1971 for a conveyance of the State's interest in the tract. On March 13, 1974 the Natural Resource Council in the Department of Environmental Protection approved the conveyance of the State's interest to plaintiff for the sum of $160,000. The Commissioner of Environmental Protection also authorized this conveyance.
Plaintiff's application for the conveyance was then forwarded to the Attorney General's Office. Although the Attorney General's approval is not statutorily required, the Governor, who must approve any conveyance of the State's tideland interests, apparently will not sign such a conveyance without the Attorney General's agreement. The Attorney General considered the sum of $160,000 to be inadequate and returned plaintiff's application to the Natural Resource Council. The Attorney General had relied upon an appraisal of plaintiff's tract by James Hyde, the Director of Right of Way in the Department of Transportation. Hyde valued the State's interest in plaintiff's tract at $215,000.
In comparative terms, the Natural Resource Council's figure of $160,000 represented $60,000 for the defined watercourses on plaintiff's tract and $100,000 for the roughly 100 acres remaining which were subject to a tidelands claim. The Attorney General's figure of $215,000 represented $103,000 for watercourses and $112,000 for the remaining 100 acres.
Continuing negotiations having failed, plaintiff filed a complaint in lieu of prerogative writs against the State in the Superior Court, Hudson County, in December 1975. The first count of the complaint alleged that the Attorney General's refusal to forward plaintiff's application to the
Governor was arbitrary and capricious. Plaintiff demanded that the appropriate officials be compelled to grant plaintiff's application at a consideration comparable to prior grants to persons situated similarly to plaintiff. The second count of the complaint alleged that the unresolved tidelands claim by the State had improperly clouded plaintiff's title. Plaintiff correspondingly demanded that title to the tract be quieted solely in plaintiff. Venue in the action was changed from Hudson County to Bergen County in February 1976.
In April 1976 plaintiff moved for partial summary judgment on its second count. On July 9, 1976 this court entered partial summary judgment in plaintiff's favor and quieted title in the tract in plaintiff, except for clearly defined watercourses. The property description in the July 1976 order was amended by an order of December 13, 1976.
In June 1977 plaintiff moved to compel the deposition of James Hyde, the Director of Right of Way in the Department of Transportation, in order to prosecute the first count of the complaint. Hearing on this motion was adjourned until September 15, 1977. Defendant State of New Jersey also moved on September 15, 1977 to dismiss the first count or, in the alternative, for summary judgment on that Count. The court heard argument on September 15, 1977 only as to the State's motion to dismiss, since a determination in the State's favor would obviate the necessity of compelling Hyde's deposition.
The State's contention is that the court cannot compel the Executive Branch, as proprietary holder of tide-flowed lands, to convey a tidelands interest to a private person. More specifically, the State contends that the Natural Resource Council's original approval of a conveyance to plaintiff for $160,000 is immaterial because the Council, the Commissioner of Environmental Protection and the Governor are each ...