This matter is before the court on the return date of an Order to Show Cause appointing Condemnation Commissioners. The plaintiff Township of Hillsborough ("Township") adopted a resolution determining that an easement across real property owned by defendants Charles Robertson and Thomas A. Robertson should be acquired in order to complete a cross access easement between two commercial shopping centers. Subsequent thereto, the Township instituted the within condemnation proceeding to acquire the Robertson property.
Defendants John S. Kline, Mary E. Kline and Alfred R. Kline own real property located at the rear of one of the shopping centers (not yet built) and have an express easement for ingress and egress over the Robertson property. Defendants Kline filed an answer to the Township's complaint raising a number
of defenses including the Township's lack of authority to maintain the action.
In opposition to the Order to Show Cause, defendants Kline, based upon the defenses asserted in their answer, contend that the within action should be dismissed in its entirety.
The threshold issue is whether the Township's adoption of a resolution as opposed to an ordinance precludes it from maintaining this action. The determination of this issue relies, in part, upon an interpretation of the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 et seq., and several statutes which authorize the exercise of the power of eminent domain.
In short, defendants rely upon the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 et seq., and assert that a municipality must pass an ordinance in order to acquire real property by condemnation. Defendants contend that since the Township acted pursuant to a resolution rather than an ordinance, it lacks statutory authority to maintain this action.
The Township argues that the Eminent Domain Act is the final and only authority governing the rules for condemnation. As such, the Act supplants other statutes, including sections of the Local Lands and Buildings Law which deal with condemnation. Since the Eminent Domain Act is silent as to whether a municipality must act pursuant to a resolution, ordinance or otherwise, the Township contends that it is free to authorize condemnations in any way it customarily exercised that authority in the past.
Although the power of eminent domain is the exclusive province of the Legislature, it may delegate the exercise of that right. N.J. Housing and Mortgage Finance Agency v. Moses, 215 N.J. Super. 318, 326, 521 A.2d 1307 (App.Div.1987) citing Wes Outdoor Advertising Co. v. Goldberg, 55 N.J. 347, 351, 262 A.2d 199 (1970); State v. Lanza, 27 N.J. 516, 530, 143 A.2d 571 (1958), app. dism., 358 U.S. 333, 79 S. Ct. 351, 3 L. Ed. 2d 350 (1959). The parties do not dispute that the Township has the
authority to condemn. Rather, they disagree as to the origin ...