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State v. Malibu Beach Inc.

Decided: February 21, 1986.

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF,
v.
MALIBU BEACH, INC., A CORPORATION OF NEW JERSEY; SEAVIEW MARINA ASSOCIATES, A PARTNERSHIP OF PENNSYLVANIA; CONTINENTAL BANK, A CORPORATION OF PENNSYLVANIA; STATE OF NEW JERSEY; THE R.C. MAXWELL COMPANY, A CORPORATION OF NEW JERSEY; TOWNSHIP OF EGG HARBOR, IN THE COUNTY OF ATLANTIC, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS



ATLANTIC COUNTY.

Williams, A.j.s.c.

Williams

[209 NJSuper Page 292] This condemnation action comes before the court on an order to show cause wherein plaintiff seeks a judgment appointing commissioners and determining that it has duly exercised its power of eminent domain with respect to certain property of defendant abutting State Highway No. 152 in Egg Harbor Township. Defendants Malibu and Seaview oppose the application. No other defendant appeared in opposition thereto.

With respect to condemnation actions N.J.S.A. 20:3-8 provides:

The action shall be instituted by filing of a verified complaint in form and content specified by the rules and shall demand judgment that a condemnor is duly vested with and has duly exercised its authority to acquire the property being condemned, and for an order appointing commissioners to fix the compensation required to be paid.

Complementing the statute, our rules provide for summary proceedings. Rule 4:73-1, dealing with condemnation actions, refers to R. 4:67, which sets forth the procedures for summary actions. Rule 4:67-4(a) requires, before the return day, that defendant file either an answer, an answering affidavit or a motion returnable on the return day.

Prior to the return day of the order to show cause defendants Malibu and Seaview filed a certification of Albert A. Ciardi, Jr., a principal of both corporations, asserting:

It is my belief that the property in question is governed by the Coastal Area Facility Review Act and the Wetlands Act of 1970. Therefore, I have not been advised by the State that it has complied with the requirements of these acts.

Defendants asserted that plaintiff had no authority to condemn the property in question because of noncompliance with the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq., and the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq., through its failure to obtain requisite approvals.

The State thereafter, prior to the return day, submitted a copy of a letter of July 18, 1983 from the Department of Environmental Protection (DEP), Division of Coastal Resources, indicating that a CAFRA permit was not required. It also submitted a copy of a DEP permit of August 22, 1985. The permit was issued subject to the following conditions:

1. Prior to site preparation receive an approved U.S. Army Corps of Engineers permit and submit a copy to this Division's BCE & BP & PR.

2. Prior to site preparation receive an approved U.S. Coast Guard permit(s) for all navigable waterway crossings and submit a copy to this Division's BP & PR.

3. Prior to site preparation stake for approval by this Division's Bureau of Coastal Enforcement and Field Services (BCE & FS) Pomona Office (609-652-0004) the extent of the ...


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