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County of Camden v. South Jersey Port Corp.

June 25, 1998

COUNTY OF CAMDEN, A BODY POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
v.
SOUTH JERSEY PORT CORPORATION, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND CHRISTINE TODD WHITMAN, GOVERNOR OF THE STATE OF NEW JERSEY, DEFENDANT. NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, INTERVENOR-RESPONDENT.



Before Judges King, Muir, Jr., and Cuff.

The opinion of the court was delivered by: Muir, Jr., J.A.D.

[9]    Argued June 12, 1998 *fn1

On appeal from the Superior Court of New Jersey, Law Division, Camden County.

We hold on this appeal that it is not the intent and purpose of the South Jersey Port Corporation Act (Act), N.J.S.A. 12:11A-1 to -29, to permit the County of Camden, holder of a $1.25 million judgment against the South Jersey Port Corporation (SJPC), to conduct, under a writ of execution, a levy and sale of the SJPC equipment when the record discloses that such a sale would terminate the SJPC operation and that the SJPC has no financial means to otherwise satisfy the judgment. Accordingly, we vacate the trial court order denying the SJPC's application for a permanent stay of the writ of execution, levy, and sale; and we remand for entry of an order of permanent stay of the writ of execution against the SJPC personal property.

I.

THE SOUTH JERSEY PORT CORPORATION ACT

We begin with a review of the Act. The Act creates the SJPC in order to purchase, construct, lease, and operate marine terminals within the South Jersey Port District, which includes Camden County. It also deems the operation and maintenance of these marine terminals "an essential governmental function." N.J.S.A. 12:11A-5a.

N.J.S.A. 12:11A-6 outlines the powers of the SJPC. Among these powers is the power to "sue and be sued in its own name," N.J.S.A. 12:11A-6(d); the power to enter into lease agreements with private marine terminal operators for the purpose of operating and maintaining marine terminals, N.J.S.A. 12:11A-6(f); the power to issue bonds or notes for any corporate purposes, N.J.S.A. 12:11A-6(g); and the power to fix and collect rents, tolls, and charges for use and services rendered, N.J.S.A. 12:11A-6(h).

N.J.S.A. 12:11A-12 addresses the payment of bonds and notes. Subsection (a) authorizes the SJPC to secure the payments of its bonds or notes by (1) "pledg[ing] all or any part of its rents, tolls, fees or revenues"; (2) "covenant[ing] against pledging all or any part of its rents, tolls, fees or revenues, or against mortgaging all or any part of its real or personal property"; or (3) covenanting "against permitting or suffering any lien on such rents, tolls, fees, revenues or property." N.J.S.A. 12:11A-12(a)(i), (ii).

N.J.S.A. 12:11A-12(b) outlines the priority of the lien created by an SJPC pledge of rents, tolls, revenues, and fees. It states, "[a]ny pledge of rents, tolls, fees or other revenues or other moneys made by the [SJPC] shall be valid and binding from the time when the pledge is made." The subsection states that the lien created by the pledge is "valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the [SJPC] irrespective of whether such parties have notice." Ibid. Moreover, the subsection states that neither the bond resolution nor any other instrument "need be filed or recorded." Ibid. Finally, the subsection provides security to bondholders by prohibiting the SJPC from entering into bond resolutions that provide for the issuance of bonds or notes that "convey or mortgage any project or any part thereof." Ibid.

The Act goes on to establish a "South Jersey Port Corporation Reserve Fund" solely for the purpose of "payment of the interest on and principal of bonds of the [SJPC] as the same shall become due and payable and for the retirement of bonds." N.J.S.A. 12:11A-13(a). The provision also outlines that the source of the money for the Fund shall come from "(1) moneys appropriated . . . by the State, (2) proceeds of bonds required to be deposited therein by terms of any contracts between the [SJPC] and its bondholders, and (3) other moneys or funds of the [SJPC] which it determines to deposit." Ibid.

As further assurance to the SJPC bondholders that their investments will be protected, the Act provides:

In order to assure the maintenance of the maximum debt service reserve in the South Jersey Port Corporation Reserve Fund, there shall be annually appropriated and paid to the [SJPC] for deposit in said fund, such sum, if any, as shall be certified by the chairman of the [SJPC] to the Governor as necessary to restore said fund to an amount equal to the maximum debt service reserve. The chairman shall annually, on or before December 1, make and deliver to the Governor his certificate stating the sum, if any, required to restore said fund to the amount aforesaid, and the sum or sums so certified shall be appropriated and paid to the [SJPC] during the then current State fiscal year.

[N.J.S.A. 12:11A-14.]

In N.J.S.A. 12:11A-20a, the Act exempts the SJPC from taxation. It states that "as the development, operation and maintenance of marine terminals by the [SJPC] will constitute the performance of essential governmental functions, the [SJPC] shall not be required to pay any taxes or assessments upon any marine terminal or any property" or any income derived from the property or operation of the terminal. Ibid. The Act also excludes from taxation income derived from the issuance and redemption of bonds and notes. Ibid.

Recognizing that the tax exempt status may create substantial revenue loss to counties and municipalities, the Act provides a mechanism for in lieu of tax payments. N.J.S.A. 12:11A-20b states that the SJPC is authorized, empowered and directed to enter into . . . agreements . . . with any county or municipality, prior to the issuance of bonds of the [SJPC] for financing such acquisitions or the expenditure of moneys (other than proceeds of such bonds) for improvement of said property for the purposes of the [SJPC], whereby it will undertake to pay a fair and reasonable sum or sums (hereinafter called ...


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