This case involves the condemnation by plaintiff Borough of Tenafly of an area of land owned by Centex Homes Corporation (Centex) located in that community's East Hill district. The action originated by the filing of a complaint on May 9, 1974 against defendant Centex and others. After considerable procedural maneuvering, including a proper, yet unsuccessful, attempt by defendant Centex to challenge Tenafly's authority to condemn, the court entered judgment in favor of Tenafly on January 28, 1975 permitting the appointment of condemnation commissioners.
Throughout the summer of 1975 extensive commissioners' hearings were conducted wherein both sides presented voluminous evidence and testimony. The proofs at the hearings were so complex and extensive that a stenographic record was made -- this is a rare but permissible procedure under the Eminent Domain Act of 1971, L. 1971 c. 361; N.J.S.A. 20:3-12(c).
On July 28, 1975 the commissioners issued their report and rendered a decision determining the compensation to be paid for the property in question to be $6,600,000. This figure is approximately $1,500,000 above Tenafly's estimated appraisal and it is approximately $2,500,000. below Centex's estimated appraisal.
The commissioners' award was duly appealed by defendant Centex on August 12, 1975 by the filing of its notice of appeal with the court. N.J.S.A. 20:3-13(a); R. 4:73-6(a). On September 18, 1975, the return date for Centex's notice of appeal, this court set a trial date of December 1, 1975.
Both parties have indicated their readiness to proceed at that time.
This case is before the court on a motion by defendant Centex. Centex seeks either to compel Tenafly to file a declaration of taking and to make a deposit in the amount of $6,600,000 with the clerk of the court pursuant to N.J.S.A. 20:3-25, or, in the alternative, to require Tenafly to abandon the condemnation action as per N.J.S.A. 20:3-35. In essence, Centex is calling for Tenafly to "either fish or cut bait!"
The question presented to the court by this motion is entirely one of law. It involves the statutory construction of part of the Eminent Domain Act of 1971, L. 1971, c. 361: N.J.S.A. 20:3-1 et seq.
The court is cognizant of the political and social ramifications that may follow from its decision today. The court is also well aware of the history of adversity between Tenafly and Centex. The court has considered the briefs and oral arguments of all counsel. It has weighed the instant public policy considerations as urged by Tenafly against the theoretical framework of the Eminent Domain Act of 1971 as urged by Centex. The court is gravely troubled by the apparent inadequacy of the act to deal clearly with the type of problem presented here. The act, which was intended to remedy the abusive practices which occurred under the myriad provisions of prior condemnation law, is itself here today a potential agent of mischief to these parties. A construction of the act which minimizes the mischief is obviously the preferred course of action.
After a careful consideration of the interplay among the various statutory provisions and the judicial gloss placed upon many of them, the court comes to the following conclusions of law:
The New Jersey Supreme Court has ruled that all public entities vested with the power of eminent domain have the
power to file a declaration of taking. County of Monmouth v. Wissell , 68 N.J. 35 (1975). No specific grant of power to file a declaration of taking is necessary.
Tenafly has argued that (1) Wissell is incorrect and (2) Tenafly is not empowered by specific legislation to file a declaration of taking. The ambiguity inherent in the present Eminent Domain Act of 1971 was properly and correctly clarified by the Wissell court. The rationale of Wissell is entirely applicable here. Notwithstanding that the references in Wissell to N.J.S.A. 20:3-25 (pp. 42-43) and to N.J.S.A. 40:60-25.58 (p. 43) may be characterized as dicta , the fundamental issue decided by Wissell is that public bodies holding the power of eminent domain do not need specific enabling legislation to file a declaration of taking.
This proposition is the law of this State. If the Legislature intended otherwise, it is for that body to now take the initiative and clarify its statutory meaning.
There is no basis, either constitutional or statutory, for the proposition that a municipal condemnor is entitled to special consideration. The Eminent Domain Act of 1971 and the Report of the Eminent Domain Revision Commission of 1965 (Report) clearly contemplated the creation of a uniform law which was to be uniformly applied.
The Commission recommended a statute creating a "uniform practice and procedure for the exercise of the power of eminent domain, equally applicable to all bodies vested with such power. * * *" Report at 6-7; Wissell, supra at 38. It is clear that the Legislature also adopted the ...