On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Gaulkin,*fn1 Shebell and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
[250 NJSuper Page 21] This is a condemnation action brought by the Department of Transportation (DOT) to acquire land required in connection with the widening of Route 70 in Ocean County. The subject property consists of approximately five acres out of a twenty
acre parcel located on the southwest corner of Routes 70 and 9 in Dover Township.
On October 10, 1986, DOT notified the then owner of the property, Joseph A. Citta, of its intention to make the acquisition. Shortly thereafter, Citta sold the property to Vincent J. Craparotta. On December 12, 1986 Craparotta entered into an option agreement with Francis and John Zengel, the principals in defendant F & J Partnership (hereinafter referred to as F & J), to sell them the twenty acre parcel for $3,150,000. That agreement included a recital that:
Purchaser also understands that the DOT has given Option Seller notice of its intent to take five (5) acres of the subject property. Option Purchaser has seen the notices and maps with respect to said taking and is entering this option agreement with full knowledge of the taking. In the event DOT takes more than five (5) acres, then Purchaser may either void this contract or the parties may renegotiate the purchase price.
Thereafter, the Zengels met with representatives of DOT in June, July and September 1987 in an effort to persuade them to redesign DOT's plans for widening Route 70 to eliminate the need for acquisition of the subject property. However, the DOT rejected the Zengels' proposed alternative route widening plan and determined to proceed with the planned acquisition.
During the same time period as their meetings with DOT, the Zengels were also pursuing an application to the Dover Township Board of Adjustment (the Board) for a use variance which would permit commercial development of the property. On October 1, 1987, the Board conducted a hearing on the application at which F & J's appraiser denied any awareness of plans by the State to acquire property in the area. By a resolution dated October 29, 1987, the Board granted F & J a use variance, subject to the condition "[t]hat the applicant submit a site plan for approval within six months of the date of this resolution." Thereafter, F & J exercised its option to purchase the property.
F & J then retained the engineering firm of Fellows, Read and Associates (Fellows, Read) to prepare a site plan. Fellows, Read utilized Matthew Smith as its project manager for the
plan; Smith was also the secretary to the Board of Adjustment at that time.*fn2 Smith commenced preparation of the site plan sometime in January 1988, and F & J filed the plan with the Board on March 17, 1988. The completed plan included a five story, 100,000 square foot hotel and restaurant located in the middle of the five acre parcel which the State planned to acquire.
At the same time F & J was filing its site plan application with the Board, DOT officials were attempting to schedule a meeting with the Zengels in order to negotiate the acquisition of the five acre parcel. On March 23, 1988, the meeting was held, at which DOT tendered a written offer to purchase the property for $801,800. After the Zengels summarily rejected this offer, DOT's representatives indicated that they would be filing an action to condemn the property within three to four months.
Nevertheless, F & J vigorously pursued its efforts to obtain site plan approval. Smith, in his role as project manager for the site plan, was responsible for communicating with the Board's engineer and making the revisions to the site plan required to obtain a "certificate of completeness." Although Smith had seen the State's plans delineating its proposed five acre acquisition, the site plan he presented to the Board delineated a strip along the ...