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State v. Lanza

Decided: November 1, 1957.

STATE OF NEW JERSEY, BY JOSEPH E. MCLEAN, COMMISSIONER OF CONSERVATION AND ECONOMIC DEVELOPMENT, PLAINTIFF,
v.
SILVIO A. LANZA, AND MRS. SILVIO A. LANZA, WIFE OF SILVIO A. LANZA, WHO MAY BE KNOWN AS FRANCES P. LANZA OR ALBINA LANZA, SAID NAME "MRS. SILVIO LANZA" BEING FICTITIOUS AND UNKNOWN, DEFENDANTS



Hall, J.s.c. (orally).

Hall

[48 NJSuper Page 365] By this action under R.R. 4:85 the State of New Jersey, through the Commissioner of Conservation and Economic Development, seeks to condemn lands of the defendants, described in the complaint, which are located in Round Valley, Hunterdon County. The plaintiff's exercise of eminent domain is based on L. 1956,

c. 60 (N.J.S.A. 58:20-1 et seq.), approved June 1, 1956, commonly known as the Round Valley Act.

Defendants by their answer deny the State's right to condemn, principally on the grounds that the cited statute is unconstitutional and the Commissioner's exercise of power granted him thereby has been unlawfully exercised.

Chapter 60 of the Laws of 1956 begins with the following preamble:

"Whereas, It has long been recognized that additional supplies of water will be needed to meet the future requirements of the people of the State; and

Whereas, To meet this need various proposals have been made for the creation of new water supply systems and, in particular, the projects for the establishment of a water supply system to be known as the Round Valley Water Supply System, for the use of the Delaware river waters; and

Whereas, It is advisable to authorize the acquisition of certain real property which will be needed for additional water supply systems, without awaiting the enactment into law of such statutes as may be necessary to specifically create and establish new and additional water systems; now, therefore * * *."

Then follows these presently pertinent sections:

"[Section] 1. The Commissioner of Conservation and Economic Development is authorized and directed to acquire, in the name of the State, within 2 years from the effective date of this act, such part of the area commonly known as Round Valley, located in Hunterdon county, which in the judgment of the commissioner is appropriate and useful for the future establishment of a water supply system the source of which shall be solely the Delaware River, exclusive of its tributaries.

[Section] 2. Acquisition of said real property authorized and directed by this act may be made by purchase or by the exercise of the power of eminent domain, pursuant to the provisions of chapter 1 of Title 20 of the Revised Statutes.

[Section] 3. In the event of condemnation proceedings pursuant to this act, the Attorney-General shall represent the State and the Commissioner of Conservation and Economic Development.

[Section] 4. Real property acquired pursuant to this act shall be held primarily for use in connection with a water supply system the source of which shall be solely the Delaware River, exclusive of its tributaries, but shall also be made available, as a State reservation, for recreational and other State uses consistent with its primary use, in accordance with rules and regulations to be

promulgated by the Commissioner of Conservation and Economic Development.

[Section] 6. No part of funds appropriated by this act shall be used for any purpose other than for payment of the cost of acquisition of real property by purchase or condemnation award, expenses incurred for the examination of title to the property to be acquired and for expert appraisals and testimony with regard as to the value of property to be acquired.

[Section] 7. There is hereby appropriated to the Department of Conservation and Economic Development for the purposes of this act, $3,000,000, or so much thereof as may be needed, from the Veterans Loan Guaranty and Insurance Fund established pursuant to chapter 126 of the laws of 1944, as heretofore amended, which is in excess of the total amounts of guaranteed or insured loans outstanding now or hereafter as obligation of the Veterans Loan Authority created pursuant to said chapter."

The basic constitutional objection which is raised derives from the particular language of section 1 which directs the Commissioner to acquire "such part of the area commonly known as Round Valley, located in Hunterdon County, which in the judgment of the commissioner is appropriate and useful for the future establishment of a water supply system the source of which shall be solely the Delaware River, exclusive of its tributaries." It is claimed that:

First, basing the appropriateness and usefulness for the precise statutory purpose of the lands decided to be taken on the "judgment of the commissioner," rather than on a determination of these criteria grounded on factual findings, is an improper delegation of legislative power to an administrative official.

Second, there is a complete absence of necessary definitions, designations and standards as to "the area commonly known as Round Valley" (the area being said to be without known geographical limits), as to the part "of the area" to be affected, as to what constitutes "a water supply system," and as to how to determine what is "appropriate and useful for the future establishment" thereof, having in mind the limited source of supply prescribed. Vagueness is alleged to render the grant of authority nugatory. The further point is that the Commissioner cannot properly exercise his judgment as to what lands are appropriate and useful without first knowing

what kind of a water supply system using only Delaware River water there is to be, and the Legislature has given him no guidance, and so his exercise of judgment cannot have been and was not properly and lawfully grounded or exercised.

Third, affected property owners, including defendants, are deprived of due process of law in that the statute makes no provision for a hearing and opportunity to be heard with respect to the Commissioner's basic determinations or with special regard to the determination as to the taking of a particular owner's lands.

It is to be noted that defendants' attack is very broad. They do not contend that their property is not within Round Valley or that the Commissioner abused his discretion on that score in determining to acquire it. In fact, their lands are clearly in the very center of the valley. The defendants' attack has been answered by plaintiff on the same broad basis and all questions will be so considered by the court.

A further objection is raised on the theory that the appropriation made by section 7 violates Article VIII, Section II, paragraph 2, of the New Jersey Constitution of 1947 in that there was no certification by the Governor that the appropriation contained therein, together with all prior appropriations made for the fiscal year, did not exceed the total amount of revenue on hand and anticipated which would be available to meet all appropriations during the fiscal period.

Finally, defendants contend that the action must be dismissed because it is prosecuted by special counsel rather than by the Attorney-General, contrary to section 3 of the act, which as I have said states that the Attorney-General shall represent the State and the Commissioner in condemnation proceedings, and in any event it is said there is no appropriation for such special counsel as required by N.J.S.A. 52:17 A -13.

Despite the summary nature of the proceeding, the parties were given full opportunity to present all pertinent evidence

at a regularly conducted trial of the issues raised. The plaintiff proved the allegations of the complaint -- i.e. , that the Commissioner had determined to acquire defendants' lands, which were within the area and in his judgment appropriate and useful for the statutory purpose, and that he had been unable to do so by reason of disagreement as to price. The State also voluntarily produced the Commissioner's staff ...


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