The instant consolidated condemnation cases involve the State of New Jersey's ("the State") acquisition of two parcels of unimproved property for state highway purposes in accordance with N.J.S.A. 27:7-22 and -66 et seq. (the "Alignment Preservation Law"). The subject property is located in Montgomery Township, Somerset County.
The parties were unable to agree on the amount of compensation to be paid for the taking; thus, an action was commenced under "the Eminent Domain Act of 1971." N.J.S.A. 20:3-1 et seq. Verified complaints were filed, and orders to show cause were entered pursuant to N.J.S.A. 20:3-8. By order dated July 14, 1989, the State was adjudged to have duly exercised its power of eminent domain, and three condemnation commissioners were appointed under the authority of N.J.S.A. 20:3-12. After a number of extensions of the date by which the commissioners
were to file their report, the matter is now on the eve of the commissioners' hearing.
The State has filed a motion in limine, whereby it seeks an order excluding, from the commissioners' hearing, evidence that the subject property had received preliminary major subdivision approval from the Montgomery Township Planning Board ("the planning board"). Defendants have filed a cross-motion for an order permitting introduction of evidence of the subdivision approval in question.
The immediate dispute arises from an apparent conflict between provisions of both the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) and the aforementioned Alignment Preservation Law. In short, the State relies upon N.J.S.A. 27:7-67 and maintains that, at the time the subdivision approval was granted, the planning board was without authority to take any action on the application. It further contends that the planning board's approval was, therefore, ultra vires, and evidence of said approval must be barred from the commissioners' hearing. Defendants argue that N.J.S.A. 40:55D-22 supercedes or modifies N.J.S.A. 27:7-67. Approval by the planning board, defendants assert, was entirely proper, and evidence of same should be introduced at the commissioners' hearing.
It is apparent that the ultimate resolution amounts to a determination of whether the evidence that the property was preliminarily approved for subdivision is admissible at the commissioners' hearing. The more fundamental question of whether the court has jurisdiction to resolve this dispute emerges.*fn1 Exhaustive research has failed to disclose a reported decision which addresses this question.*fn2 For the reasons expressed
below, I am of the opinion that, at this stage of the litigation, this court is without jurisdiction to consider the motion and cross-motion.
Prior to the enactment of the current Eminent Domain Act in 1971, condemnation actions were governed by N.J.S.A. 20:1-1 et seq. At that time, judicial participation in condemnation proceedings was extremely circumscribed. The following passage from Bergen County Sewer Authority v. Little Ferry, 5 N.J. 548, 76 A.2d 680 (1950), accurately reflects this limited role:
In 1953, N.J.S.A. 20:1-2 was amended to require the institution of a condemnation proceeding by "an action in the Superior Court." As noted by the Supreme Court in Morris May Realty Corp. v. Bd., etc., County of Monmouth, 18 N.J. 269, 275, 113 A.2d 649 (1955) it appeared that "the Legislature relieved the Superior Court judges of the duty of functioning individually as statutory agents and placed condemnation actions in the category of judicial actions within the jurisdiction of the Superior Court." Thereafter, the function of the judiciary in condemnation proceedings expanded. See, e.g., N.J. Turnpike Authority v. Jersey City, 36 N.J. 332, 177 A.2d ...