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Wes Outdoor Advertising Co. v. Goldberg

Decided: March 2, 1970.

WES OUTDOOR ADVERTISING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND WESLEY K. BELL, PLAINTIFFS-APPELLANTS,
v.
DAVID J. GOLDBERG, COMMISSIONER OF TRANSPORTATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.

Haneman

This is an appeal from a judgment of the Law Division of the Superior Court sustaining the constitutionality of N.J.S.A. 27:7-22.4 and authorizing the Commissioner of Transportation to condemn certain property allegedly for the purposes stated in said statute.

Plaintiffs are the owners, lessees or contract purchasers, of various parcels of real estate situated in the Township of Stafford, Ocean County, which lands lie, as stated in the hereafter referred to complaint, "adjacent to, but not within the right of way of New Jersey State Highway Route 72." On December 5, 1968, defendant, Commissioner of Transportation

of the State of New Jersey (Commissioner) announced his intention to acquire certain of the above referred to lands for highway beautification purposes in accordance with and as authorized by N.J.S.A. 27:7-22.4. Plaintiffs commenced an action in Lieu of Prerogative Writs contesting the Commissioner's power to condemn lands, on the ground that the said statute is unconstitutional because it contains no adequate standard to guide him in the selection of lands to be taken for the designated purpose. Plaintiffs obtained a temporary restraint and an order to show cause why an interlocutory injunction should not issue against defendant's proceeding with the acquisition. Defendant filed an answer, obtained a temporary restraint against plaintiffs, enjoining them from "destroying vegetation, erecting signs, structures, or in any way interfering (sic) with restoration, preservation and enhancement of scenic beauty of the lands identified in Exhibit A, * * *", and an order to show cause why an interlocutory injunction should not issue enjoining plaintiffs from committing said acts. Upon the return day, the court dissolved the temporary restraint against the defendant, denied plaintiffs' and granted defendant's motion for an interlocutory injunction. Plaintiffs' application to the Appellate Division for leave to appeal was granted. We certified the case on our own motion prior to argument in the Appellate Division. R. 2:12-1.

The only question before this Court is the constitutionality of N.J.S.A. 27:7-22.4 which reads:

"The commissioner is hereby authorized to acquire by gift, purchase or condemnation, real or personal property for landscape and roadside development appropriate for the restoration, preservation and enhancement of scenic beauty adjacent to Federal-aid highways and for the development of controlled rest and recreational areas and sanitary and other facilities to accommodate the public traveling on said highways; provided, however, that no such real or personal property shall be acquired by the commissioner for such purposes without first notifying in writing the governing body of the municipality or county owning such property or if such property is not owned by a municipality or county, the governing body of the municipality in which such property is located. Any property thus acquired shall be considered to be integral

parts of the Interstate Highway System and the State highway system and the cost of said acquisition shall be considered as a part of the cost of the right-of-way of such highways. Any person whose property is purchased or otherwise acquired pursuant to this act shall receive just compensation therefor."

The statement accompanying the bill which became N.J.S.A. 27:7-22.4 reads:

"Under the provisions of the 'Highway Beautification Act of 1965' the State of New Jersey is eligible to receive funds for the restoration, preservation and enhancement of scenic beauty within and adjacent to Federal-aid highways and to develop rest and recreational area(s) and sanitary and other facilities to accommodate the public traveling on said highways. Approximately $1,464,137.00 could be allocated for these purposes to New Jersey if this bill is enacted and proper application is made prior to July 1, 1966." (Revised Statutes Cumulative Supplement, 1965, 1966, Chapter Titles and Statements, p. 659).

The "Highway Beautification Act of 1965" (23 U.S.C.A. ยง 319) reads:

"(b) An amount equivalent to 3 per centum of the funds apportioned to a State for Federal-aid highways for any fiscal year shall be allocated to that State out of funds appropriated under authority of this subsection, which shall be used for landscape and roadside development within the highway right-of-way and for acquisition of interests in and improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to such highways, including acquisition and development of publicly owned and controlled rest and recreation areas and sanitary and other ...


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