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Littman v. Gimello

Decided: May 4, 1989.

SEYMOUR LITTMAN, INDIVIDUALLY AND AS MAYOR OF THE TOWNSHIP OF MILLSTONE AND THE TOWNSHIP OF MILLSTONE, PLAINTIFFS, AND DIANAMIC INDUSTRIES AND COBBLESTONE PENN LIMITED PARTNERSHIP, PLAINTIFFS-APPELLANTS,
v.
RICHARD GIMELLO, EXECUTIVE DIRECTOR AND THE HAZARDOUS WASTE FACILITIES SITING COMMISSION, DEFENDANTS-RESPONDENTS. THE TOWNSHIP OF EAST GREENWICH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, CARL A. BRESSLER, WALTER P. GEORGE, HARGREEN ASSOCIATES, MILTON S. DUNN, FREDERICK WAIBEL, ADELBERT THOMPSON, AND ANNA PENNELL, PLAINTIFFS, V. THE HAZARDOUS WASTE FACILITIES SITING COMMISSION AND RICHARD GIMELLO, EXECUTIVE DIRECTOR, DEFENDANTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

Plaintiffs claim that the declaration of their property as a potential site for a hazardous-waste facility under the New Jersey Major Hazardous Waste Facilities Siting Act ("Act"), N.J.S.A. 13:1E-49 to -91, L. 1981, c. 279, constitutes a taking of property without just compensation in violation of the United States and New Jersey Constitutions. We hold that it does not.

I

The New Jersey Hazardous Waste Siting Commission ("Commission") was established pursuant to the Act to designate sites for hazardous waste storage, treatment, and disposal. In March 1985 the New Jersey Major Hazardous Waste Facilities Plan was formulated by the Commission. The plan anticipated that within three years the amount of hazardous waste requiring off-site treatment would exceed present capabilities by at least 167,000 tons. Therefore, it called for the construction of one or two rotary kiln incinerators and one land-storage facility.

The Commission is statutorily charged with the responsibility of locating appropriate sites for the future construction of hazardous waste facilities needed by the State of New Jersey. N.J.S.A. 13:1E-59. After the Commission identifies a potential facility site, that site is tested to determine if it conforms to the regulatory criteria enumerated in N.J.S.A. 13:1E-57 and N.J.A.C. 7:26-13.1 to -13.7. If a site does not meet the criteria, it is dropped from consideration. If the site satisfies the specifications, the Commission determines whether to propose the site for adoption. Once a site is proposed, a grant is made to the municipality so that a suitability study may be conducted. N.J.S.A. 13:1E-59(a)(1). This site-suitability study is to be completed in six months and the results transmitted to the Commission.

Within forty-five days after receipt of the study, an administrative hearing must be held to determine the appropriateness of the site. The administrative law judge makes a recommendation

concerning the site. Under N.J.S.A. 13:1E-59(a)(4), the administrative law judge cannot recommend a site unless there is "clear and convincing evidence" that it will not constitute a substantial detriment to public health, safety or welfare. Once the Commission receives this recommendation, it may accept or reject it and adopt or withdraw the site. This final action is subject to judicial review. N.J.S.A. 13:1E-59(a)(5).

Following adoption of the site, private firms will submit engineering designs for the facility. On approval of a design, the Commission will enter into negotiations for the purchase of the adopted site. If these negotiations fail, the Commission has the power to condemn the property. N.J.S.A. 13:1E-81.

II

In February 1986, the Commission identified eleven potential facility sites. Seven of these sites were potential incinerator sites and four were possible land storage sites. At the start of this litigation, the Commission completed testing of two of the eleven sites,*fn1 both of which were determined to be unsatisfactory.

This appeal arises from two separate actions brought by affected landowners and municipal officials of two of the potential sites -- East Greenwich and Millstone.*fn2 Both suits alleged that the Act constituted a "taking" of property without just compensation and due process in violation of the United States and New Jersey Constitutions. The plaintiffs also questioned

the authority of the Commission to enter their land to do the initial testing of the identified sites.

Plaintiffs made interlocutory applications to prevent the Commission from entering their property to test, but these requests were rejected by this Court on December 2, 1986.*fn3 Thereafter, the cases were consolidated, and plaintiffs moved for summary judgment on the issues of the Commission's authority to enter and test the site and whether the Act constituted a taking of property without just compensation or due process. The Commission cross-moved for dismissal of the complaints.

On January 7, 1987, the trial court, in an unpublished decision, granted defendant's motion for summary judgment and dismissed plaintiffs' complaints. It rejected their "taking" claim based on a long line of New Jersey cases, reasoning "that the mere plotting or planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected." It also rejected the plaintiffs' claims that a diminution in market value or loss of financing constitutes a compensable taking. Nonetheless, the trial court recognized that in very limited circumstances an extraordinary delay on the part of the governmental authority in determining whether the property is to be condemned may lead to a finding of inverse condemnation. Hence, the trial court dismissed plaintiffs' claims without prejudice to plaintiffs to institute another action alleging inverse condemnation.

The plaintiffs in the consolidated actions appealed. The Appellate Division affirmed the trial court's order granting defendants summary judgment and dismissing the complaints substantially for ...


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