Goldmann, Freund and Foley.
The City of Hackensack appeals from a Law Division judgment in favor of the County of Bergen for condemnation by the county of certain lands in the City of Hackensack and appointing three commissioners to examine and appraise the property and to assess the damages for the taking, including the damage, if any, resulting to any remaining property.
The lands in question comprise a tract of some 11 acres with riparian rights on the Hackensack River. The city had sold these lands to defendant S. Goldberg & Co., Inc. (Goldberg), with the requirement that it construct a building costing no less than $300,000 on or before November 1, 1962. In the event Goldberg failed to do so, it was to pay the city taxes in an amount equal to that which would be assessed against a $300,000 building. Goldberg did not contest the condemnation in the trial court and will abide by our determination.
The complaint, filed December 20, 1961, alleges that the Bergen County Board of Chosen Freeholders had, by resolution, determined that it was necessary to acquire the 11-acre tract for improvement and enlargement of the site and facilities of the county court house and administrative building. (It was, however, recognized on the adjourned return date of the order to show cause, about to be mentioned, that the acquisition was for jail facilities.) The county having been unable to acquire the property by agreement, the board authorized its acquisition by condemnation. The persons named as having an interest were Goldberg as owner, and the city by reason of its deed reservations. The complaint demanded judgment against them and the appointment of three commissioners in accordance with the Eminent Domain Act, R.S. 20:1-1 et seq. , as amended and supplemented.
Upon the filing of the complaint and its accompanying affidavit, the court ordered defendants to show cause on January 12, 1962 why judgment should not be entered granting the relief prayed for. At the request of the city, the return day was continued to February 2 and further time granted for the filing of an answer. The city's answer admits the county's power to condemn. By way of affirmative defenses the city alleged:
(1) It had voluntarily cooperated in the Bergen County Sewer Authority's sewerage development project, not only because it would benefit the city but would make available for industrial development, with resultant tax ratables, lands formerly used by the city for sewage disposal. Condemnation would frustrate the development and was therefore arbitrary and unreasonable.
(2) The 11-acre tract was unique and valuable land, suitable for industrial development, and for the county to acquire it represented an unwarranted and unnecessary use of tax revenues, and was arbitrary and unreasonable.
(3) There was no public necessity for the condemnation of this particular tract since adequate county lands existed on which the expanded jail facilities could be placed. To condemn the tract would therefore be an abuse of reasonable discretion.
(4) The county's action was discriminatory because it placed additional burdens on the city as the county seat, other lands outside the city limits being available and more appropriate for the proposed development.
On the adjourned date of the order to show cause, counsel for the city stated that he did not question the authority of the county to condemn, nor did the city charge fraud or bad faith. He insisted, however, that the condemnation amounted to an abuse of discretion, as asserted in the affirmative defenses. The trial court pointed out that these allegations did not constitute proof, and he called upon counsel to produce his witnesses. He said he was not prepared to do so, although insisting that he was entitled to produce evidence. The judgment under appeal was then entered.
At oral argument counsel agreed that we might examine and refer to the freeholder board resolution authorizing the condemnation and ...