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Ararat Inc. v. State

Decided: February 4, 1975.

ARARAT, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION (FORMERLY DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT), DIVISION OF WATER RESOURCES, WATER POLICY AND SUPPLY COUNCIL AND HACKENSACK WATER COMPANY, DEFENDANTS-RESPONDENTS



Lora, Lynch and Handler.

Per Curiam

On March 15, 1967 defendant Hackensack Water Company (Hackensack) filed an application with the State of New Jersey, Department of Conservation & Economic Development, Division of Water Resources, for approval of the right to exercise the ower of eminent domain pursuant to N.J.S.A. 58:1-17 et seq. and N.J.S.A. 58:6-1 et seq., affecting the lands of plaintiff-appellant, Ararat, Inc., in the Borough of Old Tappan. Hearings were held on July 14, 1967, September 5, 1967, and November 27, 1967, before the Water Policy & Supply Council (Council). The Council ultimately granted Hackensack's application and notified plaintiff by letter dated April 28, 1972.

On June 12, 1972 plaintiff filed an action in lieu of prerogative writs in the Superior Court, Law Division. The Attorney General, acting on behalf of the State, filed a motion to dismiss on the ground that the Law Division lacked jurisdiction over the subject matter. On July 18, 1972 the matter was transferred to the Superior Court, Appellate Division, in accordance with R. 1:13-4. On January 22, 1973 the matter was remanded upon the Attorney General's motion to the Council for the preparation of findings of fact and conclusions of law based on the existing record.

By letter dated April 4, 1973 plaintiff received a copy of the hearing examiner's report and filed a reply thereto on May 11, 1973. An amended final decision of the Council was sent to plaintiff on October 24, 1973.

Plaintiff asserts that since the decision rendered by the Council was not made within the 60-day period prescribed in N.J.S.A. 58:1-21, the Council's decision is invalid. The State claims that the 60-day requirement is inapplicable because the present hearing was conducted pursuant to N.J.S.A. 58:6-1 et seq.

A distinction between N.J.S.A. 58:1-17 et seq. and N.J.S.A. 58:6-1 was recognized in Juzek v. Hackensack Water Co., 48 N.J. 302, 313 (1966), wherein the court pointed out that the power of condemnation and approval for its exercise

are the primary concern of N.J.S.A. 58:6-1 et seq., although proceedings for the approval of plans under N.J.S.A. 58:1-18 and for condemnation are frequently combined.

We conclude, therefore, that the statutory 60-day requirement under N.J.S.A. 58:1-21 was not specifically applicable to this proceeding.

Plaintiff further claims that the decision by the Council is invalid since it was not filed in writing, as prescribed by N.J.S.A. 58:1-22, and did not state the grounds upon which it was based. Aside from the pertinency of that statutory provision, the issue was effectively mooted by the remand to the Council and its subsequent submission of findings of fact and conclusions of law.

Plaintiff argues that the Council's failure to notify plaintiff of any action or decision for four years and five months constitutes a violation of constitutional due process.

In no sense can the extreme delay which occurred in these proceedings be condoned. An administrative agency must notify the parties affected by its decision of its determination. Cf. N.J.S.A. 52:14B-10(d). Although the Council had a duty to notify the parties of its determination, plaintiff itself failed to request an earlier decision. Irish v. S E C, 367 F. 2d 637 (9 Cir. 1966), cert. den. 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967); cf. In re Emberton, 109 N.J. Super. 211, 216 (App. Div. 1970). Moreover, it has not shown that it was prejudiced in any way by the delay. Cf. In re Darcy, 114 N.J. Super. 454, 462 (App. Div. 1971).

Plaintiff also complains of the Council's failure to furnish it with a copy of the hearing examiner's report so that exceptions could ...


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