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In re Hackensack Water Co.

Decided: February 4, 1975.

IN THE MATTER OF HACKENSACK WATER COMPANY APPLICATION TO AUTHORIZE CONDEMNATION OF CERTAIN LANDS OF ROBERT JUZEK AND ANNA JUZEK, HIS WIFE, ALSO KNOWN AS ROBERT JUSEK AND ANNA JUSEK, HIS WIFE, HACKENSACK WATER COMPANY, PETITIONER-APPELLANT,
v.
ROBERT JUZEK AND ANNA JUZEK, HIS WIFE, RESPONDENT, AND WATER POLICY AND SUPPLY COUNCIL, RESPONDENT



Lora, Lynch and Handler. The opinion of the court was delivered by Handler, J.A.D.

Handler

On July 6, 1965 the application of Hackensack Water Company (Hackensack) for the construction of Reservoir No. 3 (also referred to as Lake Tappan Reservoir), primarily in the Township of River Vale and the Borough of Old Tappan, was approved by the Water Policy and Supply Council (Council). On December 14, 1966 Hackensack filed an application with the State of New Jersey, Department of Conservation and Economic Development, Division of Water Resources, for approval of the right to exercise the power 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 land of Robert and Anna Juzek in the Township of River Vale. Five separate hearings were held between February 6, 1967 and August 17, 1967, before the Council. On October 30, 1967 the Council filed its recommendations with the Commissioner. The Commissioner did not approve the Council's action and remanded it for further consideration.

On August 18, 1969 the Council affirmed its action of October 30, 1967, subject to reopening the hearings, if necessary, for the introduction of new evidence. This action was approved by the Commissioner, although no formal notification thereof was given. The Council's decision was subsequently confirmed by letter dated July 22, 1971. Thereafter, on August 13, 1971, Hackensack filed an application with the Council for further hearings for the introduction of new evidence.

On August 20, 1971 the Council requested Hackensack to submit a statement outlining the new evidence to be presented. Such an outline was forwarded to the Council by letter dated

October 21, 1971. On April 19, 1972 the application for a rehearing was denied.

Hackensack filed a notice of appeal on May 12, 1972. On August 2, 1972 the Appellate Division denied Juzek's motion to dismiss the appeal. On February 6, 1973, however, the matter was remanded to the Council for the preparation of findings of fact and conclusions of law based on the existing record. New findings were prepared and submitted to the parties, and Hackensack filed objections thereto. The Council's final decision was rendered on April 23, 1973.

The Council approved Hackensack's acquisition by eminent domain of a portion of the Juzek property east of a line located 120 feet west of and parallel to the center line of the Lake Tappan Dam as extended therefrom. The Council also determined that the Juzeks should grant to Hackensack an easement for flooding to the 45-foot contour line of the Juzek property as said contour existed as of April 23, 1973, the date of decision, and in conjunction therewith that the parties should enter into an agreement whereby Hackensack would not be held responsible for flood damage to the Juzek property caused by controlled releases over the dam or by severe storms.

Hackensack claims that the Council's determination is invalid as a matter of law because of the inadequacy of its findings of fact, and that its findings, such as they are, are not supported by the evidence in the record.

We are satisfied, from our review of the record, that the findings of fact incorporated in the determination of the Council are adequately expressed and that there is substantial credible evidence on the record as a whole to support the determination of the Council, which approved in part and denied in part the application of Hackensack to secure approval for the condemnation of the Juzek property. In reaching this conclusion we have been mindful of the broad discretionary powers accorded the agency below. In re Application of Hackensack Water Co., 88 N.J. Super. 362, 368-369 (App. Div. 1965). A reviewing court should avoid supplanting

the determination of the administrative tribunal with its own independent judgment where there are essentially only differing evaluations as to the persuasiveness of evidence. In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). Deference must be accorded the findings of the agency where they could reasonably have been reached on sufficient credible evidence present in the record in light of all of the proofs, with due regard not only to the opportunity of the agency to assess witness credibility but also to the agency's expertise where this is a salient feature in the controversy. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Against this standard of review there was adequate competent evidence in the record to sustain the determination of the Council. There was no essential dispute that the taking line fixed by the Council would afford access to the dam and reservoir. The Council properly rejected the testimony concerning an auxiliary dam and an increased taking to accommodate such a dam as "irrelevant" since such plans were not encompassed in the present project. It was also sufficiently established by the evidence that the periodic or occasional flood of Juzek's lands within ...


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