Rieder v. State Dept. of Transp.

Citation221 N.J.Super. 547,535 A.2d 512
PartiesSolomon RIEDER, Plaintiff-Appellant, v. The STATE of New Jersey, DEPARTMENT OF TRANSPORTATION, Defendant-Respondent and The Township Committee of the Township of Plainsboro, a municipal corporation, The Planning Board of the Township of Plainsboro, Ernest Mosley, Henry Schaefer, Arthur Lehrhaupt, Jonas Bingeman, Barbara Wright, Clifford Luther, William Hay, Bobbie Schott, June Snook, Thomas Shuster, and Delores Corona, Defendants.
Decision Date10 December 1987
CourtNew Jersey Superior Court – Appellate Division

Klein, Chapman, Greenburg, Henkoff & Siegel, Clifton, for plaintiff-appellant (Herbert C. Klein of counsel; Michael A. Saffer, on the brief).

W. Cary Edwards, Atty. Gen., for defendant-respondent (James J. Ciancia, Deputy Atty. Gen., of counsel; Paul A. Leodori, Deputy Atty. Gen., on the brief).

Before Judges DREIER and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

This is an appeal from an order of the Superior Court, Law Division, dismissing plaintiff's complaint against defendant New Jersey Department of Transportation (DOT) for failure to state a claim upon which relief can be granted. R.4:6-2(e). Our thorough reading of the record convinces us that the factual allegations contained in the complaint, viewed liberally and considered in a light most favorable to plaintiff, are legally insufficient and do not state a cause of action. We thus affirm.

The salient facts are not in dispute and are essentially a matter of public record. Plaintiff Solomon Rieder instituted this action by filing a complaint in lieu of prerogative writ against the Plainsboro Township Committee, the Planning Board and its individual members, and the State of New Jersey by the DOT. Although separate claims were advanced against the different public entities and individuals, the principal thrust of plaintiff's varying assertions was that the defendants had unlawfully precluded him from developing and using his property. As set forth in the first count of the complaint, plaintiff's action against the Planning Board was grounded in the contention that it had arbitrarily and capriciously rejected his plan for the "cluster residential development" of his property. Plaintiff asserted that the Planning Board had incorrectly characterized his proposal as "incomplete" and had abused its discretion by denying his application for approval of the plan. In the second count, plaintiff contended that the land use ordinance enacted by the Township Committee was unlawful because it delegated authority to the Planning Board without establishing appropriate standards. Because the third count is the subject of this appeal and requires some elucidation, we briefly skip to the fourth count, which alleged that individual members of the Planning Board had acted in bad faith when they voted to deny approval to plaintiff's development plan.

All of these counts were dismissed by way of motions for summary judgment. Although the truncated record submitted to us is largely uninformative, it appears that plaintiff's action against the Township Committee, the Planning Board, and its individual members was not filed in a timely manner and the summary judgments were granted on that basis. In any event, no appeal has been taken from those orders and we have no occasion to determine whether or not they were correctly entered.

As we have noted, the third count of the complaint is the subject of this appeal. Although inartfully pleaded, plaintiff's claim against the DOT, as therein set forth, is predicated on the theory of inverse condemnation. It was alleged in count three that in August 1973 the DOT determined that a portion of plaintiff's property was needed for the construction of State Highway 92. Plaintiff contended that, based upon that determination, the DOT, the Township Committee and the Planning Board had "directed [him] not to develop or use the [h]ighway tract." Plaintiff alleged that, despite these directives, "no formal declaration of taking ha[d] been filed by the DOT," and he thus was "deprived of the total use and enjoyment of his property."

Viewing the complaint in its entirety, we discern the following facts. On December 4, 1969, the DOT filed an alignment preservation map, which indicated various tracts of land through which the State was contemplating the construction of Route 92. During the early 1970's, plaintiff purchased property which was covered by the alignment preservation map. Sometime in August of 1973, plaintiff submitted an application to the Plainsboro Planning Board, seeking approval of a cluster residential plan for the entire tract. According to plaintiff, he was then advised by the Planning Board that part of the property was included in the alignment preservation map. Plaintiff thereafter submitted an amended plan which excluded the portion of the land which he believed would be subsequently condemned by the DOT. A resolution was adopted by the Planning Board, recommending approval of the amended plan. By resolution, the Township Committee adopted this recommendation and granted approval on September 10, 1973.

The matter remained dormant until 1983. On December 1, 1983, plaintiff submitted an application to the Planning Board for approval of a cluster residential development plan on the remainder of his property which, as we have noted, was covered by the alignment preservation map. In correspondence dated December 27, 1983, the Planning Board notified plaintiff that his application was incomplete and requested additional specified information. On March 8, 1984, plaintiff resubmitted his application and provided the Planning Board with the requested data. However, on July 16, 1984, the Planning Board adopted a resolution, rejecting plaintiff's application on the basis that it remained incomplete. It is to be noted that the resolution did not set forth in what particulars the application was lacking. Rather, the Board merely recited its finding, in conclusory fashion, that the application was incomplete.

Despite the time requirements of R. 4:69-6(b)(3), plaintiff took no action challenging the determination of the Township Committee and the Planning Board until January 23, 1986, when the complaint, which we have described at length, was filed. Following entry of the summary judgments in favor of the other defendants, the DOT, pursuant to R. 4:6-2(e), moved for dismissal of the complaint for failure to state a claim upon which relief can be granted. The trial judge rendered an oral opinion in which she determined that no factual issues existed and that plaintiff's complaint was legally deficient because the mere filing of the alignment preservation map by the DOT did not amount to a taking of property. An order dismissing the complaint was accordingly entered and this appeal followed.

I.

Preliminarily, we observe that plaintiff in his brief has incorrectly framed the issue presented in terms of whether "summary judgment" was properly granted in favor of the DOT. This erroneous characterization of the trial judge's action is compounded by the placement of plaintiff's certification in the appendix to his brief. We emphasize that this certification was not submitted to the trial judge in response to the DOT's motion to dismiss the complaint. In point of fact, nothing outside of the pleadings was presented by either party and, thus, the DOT's motion was not treated as one for summary judgment. See R. 4:6-2. See also Enourato v. N.J. Building Auth., 182 N.J.Super. 58, 64-65, 440 A.2d 42 (App.Div.1981), aff'd 90 N.J. 396, 448 A.2d 449 (1982).

On a motion made pursuant to R. 4:6-2(e) "the inquiry is confined to a consideration of the legal sufficiency of the alleged facts apparent on the face of the challenged claim." P. & J. Auto Body v. Miller, 72 N.J.Super. 207, 211, 178 A.2d 237 (App.Div.1962). The court may not consider anything other than whether the complaint states a cognizable cause of action. Ibid. For this purpose, "all facts alleged in the complaint and legitimate inferences drawn therefrom are deemed admitted." Smith v. City of Newark, 136 N.J.Super. 107, 112, 344 A.2d 782 (App.Div.1975). See also Heavner v. Uniroyal, Inc., 63 N.J. 130, 133, 305 A.2d 412 (1973); Polk v. Schwartz, 166 N.J.Super. 292, 299, 399 A.2d 1001 (App.Div.1979). A complaint should not be dismissed under this rule where a cause of action is suggested by the facts and a theory of actionability may be articulated by way of amendment. Muniz v. United Hsps. Med. Ctr. Pres. Hsp., 153 N.J.Super. 79, 82-83, 379 A.2d 57 (App.Div.1977). However, a dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted.

II.

Measured against these standards, we are convinced that plaintiff's complaint failed to state a claim and was properly dismissed by the trial judge. As noted previously, plaintiff's action against the DOT is grounded upon the premise that beneficial use of his property was substantially impaired by the action of the State. He asserts that the filing of the alignment preservation map and the DOT's subsequent long-standing indecision in determining whether to condemn prevented him from developing his property and constituted a constructive taking in contravention of the Fifth and Fourteenth Amendments. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 244, 17 S.Ct. 581, 586, 41 L.Ed. 979, 986 (1897). Although our Constitution contains a similar prohibition against the taking of "[p]rivate property ... for public use without just compensation," N.J. Const., Art. I, § 20 (1947), no claim is made here that this provision is more inclusive than its federal counterpart. See State v. Alston, 88 N.J. 211, 225, 440 A.2d 1311 (1981); Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489, 491 (1977). We thus proceed under the assumption that the...

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