2/27/2007

N.J. Senate Eminent Domain Reform: New Jersey Eminent Domain Blog, 2/24/07

By Bill Ward

Senator Ronald Rice (D-Essex), Chair of the New Jersey Senate Community and Urban Affairs Committee will introduce the latest version of S-1975 on Monday February 26. Senator Rice's bill differs significantly from the New Jersey Assembly's eminent domain reform bill ("Burzichelli Bill") which passed in June 2006 by a wide margin.

The most significant change is that this bill proposes a Land Use Court which would be staffed by judges appointed by the Governor. All cases involving eminent domain, zoning, and planning issues would be referred to the Land Use Court. Presently, zoning and related issues are considered in prerogative writ suits which are heard without a jury by the assignment judge in the county where the action is filed.

Eminent domain cases are venued in the Superior Court and valuation is a two-step process. The first is the hearing before condemnation commissioners, a panel which typically consists of two lawyers and a realtor appointed by the assignment judge. If either side is dissatisfied by the award of commissioners, an appeal can be made within 20 days. The final step in the valuation of the property is a Superior Court jury trial de novo. It is not clear, in the present version of S-1975, whether property owners in eminent domain case would continue to have the benefit of a jury trial. This is of paramount importance to property owners, as the jury as seen as the last hope of the owner to get a fair price for the property taken. The municipalities, developers, and other condemning authorities would love to do away with jury trials, as it would lessen their exposure considerably in the litigation. This bill, if adopted, must state clearly and unequivocably, that the right to a jury trial is protected.

[Here are] the new sections of the bill proposing the Land Use Court.

  1. a. A Land Use Court is hereby established as a court of limited jurisdiction pursuant to Article VI, Section 1, paragraph 1 of the New Jersey Constitution for the purpose of deciding land related matters in an expedited manner that are transferred to it from the Superior Court in accordance with the Rules of the Supreme Court.
    b. It shall be the goal of the Land Use Court to hear matters within 90 days of the transferal of a matter to the Land Use Court, unless otherwise agreed by the parties to the controversy.
  2. The Land Use Court shall be a court of record and shall have a seal.
  3. The Land Use Court shall have jurisdiction in matters transferred to it for expedited proceedings according to the Rules of the Supreme Court with respect to:
    a. any matter concerning the declaration of an area in need of redevelopment or a condemnation area under P.L.1992, c.79 (C.40A:12A-1 et seq.);
    b. any matter concerning eminent domain under P.L.1971, c.361 (C.20:3-1 et seq.);
    c. any matter concerning appeals from decisions of the Department of Environmental Protection or any other agency that issues environmental permits;
    d. any land use decision of a county or municipal government, authority or other instrumentality thereof or a department of State government or agency or instrumentality thereof including, but not limited to, any land use approval which is required as a prerequisite for the issuance of a construction permit pursuant to section 12 of P.L.1975, c.217 (C.52:27D-130), any dispute regarding the adoption or implementation of a county or municipal master plan or development regulation or the State Development and Redevelopment Plan, and such other land use disputes as provided by the Rules of the Supreme Court; and
    e. actions cognizable in the Superior Court which raise issues as to which judicial expertise in matters involving eminent domain and land use is desirable, which are not within the jurisdiction of the Chancery division of the Superior Court, and which have been transferred to the Land Use Court pursuant to the Rules of the Supreme Court;
    f. matters involving fair housing disputes pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al);
    g. any other matters as may be provided by statute; and
    h. the exercise of any powers that may be necessary to effectuate its decisions, judgments and orders.
  4. a. The Land Use Court, in all causes within its jurisdiction, and subject to law, may grant legal and equitable relief so that all matters in controversy between the parties may be completely determined.
    b. The right to trial by jury shall exist in the Land Use Court.
    c. Judgments of the Land Use Court may be appealed to the Appellate Division of the Superior Court pursuant to Rules of the Supreme Court.
  5. a. The Rules of the Supreme Court may provide that filing fees associated with a proceeding be transferred to the Land Use Court along with the transfer of the matter to the Land Use Court.
    b. Additional fees and the reduction or waiver of fees for particular classes of cases shall be established by the Rules of the Supreme Court.
    c. No proceeding shall be heard by the Land Use Court unless the fees are paid or waived.
    d. All fees shall be payable to the clerk of the Land Use Courtfor the use of the State, and shall not be refundable except as specifically provided by the Rules of the Supreme Court.
    e. Practice and procedure in the Land Use Court shall be as provided by the Rules of the Supreme Court.
    f. Decisions of the Land Use Court shall be published in the manner directed by the Supreme Court.
  6. a. The Land Use Court shall maintain permanent locations in Trenton and Newark and may hold sessions at other locations throughout the State.
    b. The State shall provide courtrooms, chambers and offices for the Land Use Court at the required permanent locations in Trenton and Newark and shall arrange for courtrooms, chambers and offices or other appropriate facilities at other locations throughout the State.
  7. a. The Governor shall nominate and appoint, with the advice and consent of the Senate, the judges of the Land Use Court.
    b. All appointments to such judgeships shall be made in such manner that the appointees shall be, as nearly as possible, in equal numbers, members of different political parties so as to constitute the Land Use Court bipartisan in character. The words "political parties" mean such political parties as shall have cast the largest and next to the largest number of votes, respectively, for members of the General Assembly at the last preceding general election held for the election of all the members of the General Assembly prior to the making of any such appointments.
  8. a. The Land Use Court shall consist of not less than one or more than 12 judges, each of whom shall exercise the powers of the court, subject to the Rules of the Supreme Court. The number of judges shall be determined by the Chief Justice based on the foreseeable workload of the court. The Chief Justice annually shall review the workload of the court and determine the adequate judicial staffing level.
    b. The judges of the Land Use Court shall have been admitted to the practice of law in the State for at least 10 years prior to appointment and shall be chosen for their special qualifications, knowledge, and experience in matters of land use. The judges so appointed may be retired judges from the Superior Court.
  9. a. The judges of the Land Use Court shall hold their offices for initial terms of seven years and until their successors are appointed and qualified, and upon reappointment shall hold their offices during good behavior; provided, however,that the initial term and subsequent terms may be reduced by the Chief Justice for reasons of economy and efficiency, or other good cause.
    b. The judges of the Land Use Court may retire upon attaining the age of 70 years, upon the same terms and conditions as judges of the Superior Court, and shall have the same pension rights and other benefits as judges of the Superior Court.
  10. a. Each judge of the Land Use Court shall receive annual compensation and other benefits equal to those of a judge of the Superior Court and which shall not be diminished during the term of appointment.
    b. The judges of the Land Use Court shall not engage in the ractice of law or other gainful pursuit or shall they hold other office or position of profit under this State, any other State or the United States.
  11. a. The judges of the Land Use Court shall be subject to impeachment, and upon impeachment shall not exercise judicial office until acquitted. The judges of the Land Use Court shall also be subject to removal from office by the Supreme Court for the causes and in the manner as is provided by law for the removal of judges of the Superior Court.
    b. Whenever the Supreme Court certifies to the Governor that a judge of the Land Use Court appears to be substantially unable to perform the duties of office, the Governor shall appoint a commission of three persons to inquire into the circumstances. Upon the recommendation of the commission, the Governor may retire the judge from office, on pension, as may be provided by law.
  12. The Chief Justice shall assign one of the judges of the Land Use Court to be the presiding judge of the Land Use Court. The presiding judge shall, subject to the supervision of the Chief Justice and the Administrative Director of the Courts, be responsible for the administration of the Land Use Court.
  13. The presiding judge shall submit a report to the Chief Justice of the Supreme Court annually. The report shall be published as part of the Annual Report of the Administrative Director of the Courts. The report shall contain information and statistics for the previous fiscal year concerning the operation of the Land Use Court. The report may also contain recommendations by the presiding judge regarding the clarification or revision of legislation, rules, and regulations relating to eminent domain, land use, or the practice and procedure in the Land Use Court.
  14. The Chief Justice may assign judges of the Land Use Court to the Superior Court or to any other court as the need appears, and any judge so assigned shall exercise all of the powers of a judge of that court. A judge of the Land Use Court who is terminated for reasons of economy and efficiency, or for other good cause, shall not be entitled to be reassigned in accordance with this section.
  15. The Supreme Court shall appoint to serve at its pleasure a Clerk and a Deputy Clerk of the Land Use Court, neither of whom shall be subject to the provisions of Title 11A, Civil Service, of the New Jersey Statutes.



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