On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, MER-L-2246-99; opinion reported at
Before Judges Pressler, Kestin and Ciancia.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 21, 2001
Defendant, Trap Rock Industries, Inc., appeals from a judgment entered in the Law Division on February 18, 2000, declaring that the State of New Jersey through the Commissioner of Transportation had lawfully exercised its powers of eminent domain to acquire certain property belonging to defendant; appointing condemnation commissioners; and granting possession of the property to the condemnor, subject to a stay pending appeal. In a comprehensive written opinion published at 331 N.J. Super. 258 (Law Div. 2000), Judge Feinberg articulated her reasons for that result. We are in substantial agreement with her decisional rationale and affirm on that basis.
The facts of the matter are set out in the trial court's opinion. 331 N.J. Super. at 262-66. We will not repeat them except as necessary to discuss at greater length one of the grounds for decision employed by the trial court. That ground is based upon an interpretation of N.J.S.A. 27:7A-4.1, a section of the Limited Access Highway Act, N.J.S.A. 27:7A-1 to -10. We construe that provision to confer authority on the Commissioner to condemn the subject property notwithstanding that 1) it is located about one mile from the limited access highway its acquisition was designed to serve; and 2) the condemnation proceedings were commenced two years after the Department of Transportation had originally acquired the rights of way for the highway itself.
The power of eminent domain, although inherent in sovereignty where founded in necessity, State v. Lanza, 27 N.J. 516, 529 (1958), appeal dismissed, 358 U.S. 333, 79 S. Ct. 351, 3 L. Ed. 2d 350 (1959), and subject to the payment of just compensation, id. at 529-30, U.S. Const. amend. V and XIV; N.J. Const. art. I, § 20, may not be exercised without a specific grant of authority from the Legislature. Lanza, supra, 27 N.J. at 530; see also N.J.S.A. 20:3- 1 to -50 (the Eminent Domain Act of 1971 establishing the uniform procedures to be followed by all entities authorized to exercise the power); 6 Nichols on Eminent Domain § 24.07 (Sackman & Van Brunt ed., 3d ed. rev. 1989). And, it is well established that statutes granting the power are to be given a strict construction because, by definition, they derogate the private property rights so comprehensively protected by the federal and State constitutions. See State Highway Comm'r v. Maas & Waldstein Co., 83 N.J. Super. 211, 217 (App. Div. 1964); 3A Sutherland on Statutory Construction § 67.02 (Singer ed., 5th ed. 1992); 6 Nichols, supra, at § 24.07.
Judge Feinberg's rationale properly applied the prevailing standards. Her determination that the Legislature had acted to confer the eminent domain power upon the Commissioner of Transportation with considerable breadth, 331 N.J. Super. at 268, is not at war with the general policies and standards which aid in determining whether that power has been granted. See, e.g., Mass & Waldstein, supra, 83 N.J. Super. at 217 ("The Highway Act should be liberally construed to reflect its purpose, the building of state highways."); State Highway Comm'r v. Totowa Lumber & Supply Co., 96 N.J. Super. 115, 119 (App. Div. 1967) ("We have adopted the liberal view as to the meaning of 'public use.'"); see also 6 Nichols, supra, at §24.07.
We agree with the trial court's disposition of defendant's argument that environmental mitigation is not expressly within the ambit of the purposes stated in N.J.S.A. 27:7A-3(a) for which the power to condemn may be exercised in the construction of limited access highways.
There is a solid basis in the reasons articulated for determining that, in every practical sense, the property at issue here was needed for "the traveled way", ibid., for without that property's availability for mitigation purposes, the conditions of the environmental permit would not have been met and the highway could not have been constructed.
We also subscribe to Judge Feinberg's characterization of the terms of N.J.S.A. 27:7A-4.1 as "appear[ing] to actually expand the Commissioner's powers by allowing the Commissioner to take more property for purposes of limited access highways than is necessary." 331 N.J. Super. at 273-74. Because of an emphasis in some of defendant's arguments, that is the concept worth enlarging. Defendant has contended that the condemnation was invalid because (1) the property used for mitigation is far from the habitat that was destroyed by the highway's construction, (2) defendant is being penalized because the acreage taken for the required mitigation was twice the amount of the actual acreage that was destroyed, and (3) an innocent property owner has no involvement in the mitigation decision and no opportunity to challenge the assumptions on which the mitigation requirement was based.
N.J.S.A. 27:7A-4.1 states:
In connection with the acquisition of property or property rights for any limited access highway or portion thereof, the commissioner, with respect to limited access highways under his jurisdiction, and the governing body of a county, with respect to limited access highways under its jurisdiction, may, in his or its discretion, acquire by gift, devise, purchase or condemnation, an entire lot, block or tract of land, if, by so doing, the interests of the public will be best served even though said entire lot, block or tract is not needed for transportation purposes, but only if the portion not needed for transportation purposes is landlocked or is so situated that the cost to the State will be practically equivalent to the total value of the whole parcel of land. For purposes of this section, "transportation purposes" means all uses of property which are, in the judgment of the commissioner, useful or beneficial in promoting an efficient, integrated, and balanced transportation system.
We note specifically the clause stating that "the commissioner, with respect to limited access highways under his jurisdiction . . . may, in his . . . discretion, acquire by . . . condemnation, an entire lot, block or tract of land[.]" It is undisputed here that Route 29 is a limited access highway and that the Commissioner used the condemnation power to acquire the whole of appellant's tract in question.
The statute also states that the Commissioner may condemn the entire lot "if, by so doing, the interests of the public will be best served even though said entire lot, block or tract is not needed for transportation purposes[.]" It is beyond question ...