On appeal from Superior Court, Law Division, Ocean County.
Judges Pressler, Deighan and A. M. Stein.
Defendant Jersey Central Power and Light Company (JCP&L) appeals from the grant of a summary judgment in favor of defendant New Jersey Department of Transportation (DOT) and plaintiffs Pine Belt Chevrolet, Inc. (Pine Belt) and Nicholas and Jean Sportelli. That judgment determined that JCP&L is responsible for utility pole relocation costs involved in the widening of Route 88, a state highway, as required by DOT as a condition for a driveway access permit issued to plaintiffs. The issue presented is whether the property owners, JCP&L or DOT should bear the expense of the relocation of JCP&L's utility poles.
The facts are not in dispute. Both plaintiffs own recently developed property adjacent to State Highway Route 88. During 1985 and 1986, Pine Belt constructed an automobile sales and service center and the Sportellis constructed a private residence and medical office. Both plaintiffs applied to DOT for permits and approvals for access to Route 88. Several utility poles owned and maintained by JCP&L were located in front of plaintiffs' respective properties. DOT informed plaintiffs that the curb line of Route 88 fronting their properties must be set back 22 feet from the highway's center line as a condition for approval of plaintiff's respective access permit applications. Further, JCP&L's utility poles were to be relocated beyond the curb line.
The site plan prepared by an engineering firm for the Sportellis provides for a widening of the highway. The Sportellis
submitted their plan to DOT and received the required permit. No determination was made as to who was responsible for the costs of relocation of the utility poles. After the Sportellis obtained the permits, their contractor proceeded to develop their property. The Sportellis subsequently contacted JCP&L to inform it that the utility poles abutting their property had to be moved. JCP&L refused to move the poles unless the Sportellis agreed to pay the costs of relocation. The Sportellis refused and thus the poles remained in the right of way of the relocated curb line.
As to Pine Belt, DOT made the same requirement that revised plans be submitted showing a 22-foot roadway from the center line of Route 88 and relocation of the JCP&L's utility poles beyond that line. Pine Belt refused to pay the relocation costs so JCP&L requested DOT to intervene. DOT notified Pine Belt that it was required to enter into an agreement for relocation of JCP&L's poles abutting its property and that its failure to do so within 30 days would result in revocation of DOT access permits. Without waiving its rights to challenge DOT's actions and JCP&L's failure to accept responsibility for moving its own utility poles, Pine Belt entered into an agreement with JCP&L and deposited $34,866.25.
After plaintiffs filed this action for a declaratory judgment, the parties moved and cross-moved for summary judgment. The trial judge granted plaintiffs' and DOT's motions and denied JCP&L's motion for summary judgment.
The trial judge, in ruling that JCP&L was responsible for the costs of relocation of its utility poles, relied on Port of N.Y. Authority v. Hackensack Water Co., 41 N.J. 90 (1963). There, the Supreme Court held that the Port Authority could not be compelled to absorb the costs of relocation of the utility facilities necessitated by improvements undertaken by the Authority. Id. at 106-08. The Court noted that
the obligation to relocate "rests upon the common law's view of the rights and responsibilities of the recipient of a so-called franchise to use the public streets." Id. at 96. The court rationalized that, as between the State and the public utility with respect to relocation of the utility's equipment, the utility
is permitted to use the public way because it serves a public interest, but since its venture is for gain and since in any event the primary purpose of the public easement is the public's own use of it, the utility's interest in the public way is subordinate to the public's enjoyment of it. Hence the utility runs the risk that the public welfare may require changes in the road which will call for relocation of its facilities.
Id. at 96-97; cf. Sussex Rural Elec. Coop. v. Township of Wantage, 217 N.J. Super. 481, 486-87, 491 (App. Div. 1987) (where the utility's right antedates the public's right, forced relocation of utility transmission lines required by township's road construction project amounted to a compensable taking and the utility was entitled to recover costs of relocation). Emphasizing that any change in the common law doctrine "should be left to legislative decision," the Court noted that the "Legislature changed the rule of the common law with respect to toll roads in New Jersey Highway Authority Act, (N.J.S.A. 27:12B-6), New Jersey Expressway Authority Act (N.J.S.A. 27:12C-16) and New Jersey Turnpike Authority Act of 1948 (N.J.S.A. 27:23-6) . . . . [And] the Legislature shifted the burden of relocation in N.J.S.A. 27:7A-7, which deals with non-toll freeways and parkways." 41 N.J. at 107, 108.
Since the Supreme Court in Port of N.Y. Authority noted that any change in the common law doctrine "should be left to legislative decision," JCP&L and the amicus curiae point out that pursuant to L.1983, c.283, § 1, eff. July 29, 1983, the legislature has mandated such a change from the common law by the enactment of N.J.S.A. 27:7-44.9(a), which provides in relevant part:
Whenever the commissioner determines that it is necessary that facilities which now are, or hereafter may be, located in, on, along, over or under any highway
project shall be relocated in the project or should be removed from the project, the public utility . . . owning or operating the facilities shall relocate or remove the same in accordance with the order of the commissioner.
The statute further provides:
The costs and expenses of such relocation. . . including the cost of installing the facilities in a new location . . . shall be ascertained and paid by the commissioner as a part ...