On appeal from the Superior Court of New Jersey, Law Division, Union County, L-2592-00.
Before Judges King, Coburn and Lefelt.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Elizabeth Board of Education (Board) appeals from a judgment dismissing its complaint which sought to condemn property owned by the New Jersey Transit Corporation (NJT). The board wanted the property for educational purpose. We affirm because there is no express, or necessarily implied, statutory authority which permits a board of education to condemn land owned by the State. We also affirm the counsel fees awarded to NJT pursuant to N.J.S.A. 20:3-26(b).
The property in question is designated as Block 8, Lot 1123 on the Elizabeth tax map, commonly known as 801-871 Division Street, located at the intersection of Division and Livingston Streets. The site, between four and six acres, is currently vacant land. NJT has owned the property for about twenty years.
NJT is a corporation and "an instrumentality of the State exercising public and essential governmental functions." N.J.S.A. 27:25-4(a). NJT is allocated to but independent of the Department of Transportation. Ibid. See generally N.J.S.A. 27:25-1 to -34 (New Jersey Public Transportation Act of 1979, L. 1979, c. 150).
Since early 1999, NJT and the City of Elizabeth (City) have been engaged in negotiations for the sale of the property, which the City intends to use for redevelopment purposes. In mid-1999 the Board informed NJT that it wanted to acquire the property to build educational facilities to relieve overcrowding. NJT told the Board to discuss the matter with the City. The Board apparently had difficulty obtaining a response from the City but eventually was informed that the property was scheduled for future development by the City. Upon receipt of this letter, the Board informed the City it intended to use all of its legal power to acquire the property for public school purposes, including the power of condemnation. The Board then wrote to NJT expressing its desire to acquire the property and inquiring as to NJT's willingness to enter into negotiations for sale of the property. NJT informed the Board it was in the process of negotiating a sale of the property to the City and it did not intend to negotiate with the Board.
On March 23, 2000 the Board informed NJT that it intended to institute condemnation proceedings and offered to purchase the property at an appraised price of $1,075,000. NJT responded that the property could not be condemned because it was owned by an instrumentality of the State. On May 2, 2000 the Board adopted a resolution authorizing the acquisition of the property for up to $1,075,000, by negotiation and purchase or, in the event that failed, by the exercise of the Board's power of eminent domain.
On May 23, 2000 the Board filed a complaint for condemnation. In addition, the Board filed a notice of lis pendens and a declaration of taking. Also on May 23, 2000 Judge Beglin signed an order to show cause and an order entitling the Board to take immediate possession of and title to the property and directing that $1,075,000 be paid into court.
On July 3, 2000 NJT filed an answer and a motion to dismiss the complaint. The motion was heard by Judge Beglin on July 7, 2000; he rendered an oral decision that day granting the motion. He also signed an order divesting the Board of title to the property; voiding and nullifying the declaration of taking and the lis pendens, and ordering NJT to advise him within thirty days whether it would seek a hearing regarding damages, counsel fees and costs. On that date, the judge also signed an order which allowed the City to intervene in the action and entered a judgment dismissing the action. On August 2, 2000 NJT advised the judge it would seek damages, attorney fees and costs.
On August 18, 2000 the Board filed a notice of appeal from the July 2000 orders. On August 21, 2000 the judge signed an order awarding NJT $9,000 in attorney fees and dismissing the complaint with prejudice. On September 29, 2000 the Board filed an amended notice of appeal from the August 21, 2000 order. We denied the Board's motion for relief by way of entry onto the subject property during the appeal.
The Board contends that it may condemn the subject property because there are no restrictions in Title 18A on its power of condemnation and the Legislature has explicitly barred condemnation of State property by counties and municipalities by statute, but has not barred condemnation by boards of education. NJT responds that no statute expressly or impliedly ...