Littman v. Gimello
| Citation | 115 N.J. 154,557 A.2d 314 |
| Parties | Seymour LITTMAN, individually and as Mayor of the Township of Millstone and The Township of Millstone, Plaintiffs, and Dianamic Industries and Cobblestone Penn Limited Partnership, Plaintiffs-Appellants, v. Richard GIMELLO, Executive Director and the Hazardous Waste Facilities Siting Commission, Defendants-Respondents. The TOWNSHIP OF EAST GREENWICH, a Municipal Corporation of the State of New Jersey, Carl A. Bressler, Walter P. George, Hargreen Associates, Milton S. Dunn, Frederick Waibel, Adelbert Thompson, and Anna Pennell, Plaintiffs, v. The HAZARDOUS WASTE FACILITIES SITING COMMISSION and Richard Gimello, Executive Director, Defendants. |
| Decision Date | 04 May 1989 |
| Court | United States State Supreme Court (New Jersey) |
Michael A. Pane, Hightstown, for plaintiffs-appellants.
John A. Covino, Trenton, for defendants-respondents (Donald R. Belsole, Acting Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Francine A. Schott, Deputy Atty. Gen., on the brief).
Lewis G. Adler submitted a letter in lieu of brief on behalf of amicus curiae, Gloucester County (Hasbrouck & Uliase, Woodbury, attorneys).
The opinion of the Court was delivered by
Plaintiffs claim that the declaration of their property as a potential site for a hazardous-waste facility under the New Jersey Major Hazardous Waste Facilities Siting Act ("Act"), N.J.S.A. 13:1E-49 to -91, L.1981, c. 279, constitutes a taking of property without just compensation in violation of the United States and New Jersey Constitutions. We hold that it does not.
The New Jersey Hazardous Waste Siting Commission ("Commission") was established pursuant to the Act to designate sites for hazardous waste storage, treatment, and disposal. In March 1985 the New Jersey Major Hazardous Waste Facilities Plan was formulated by the Commission. The plan anticipated that within three years the amount of hazardous waste requiring off-site treatment would exceed present capabilities by at least 167,000 tons. Therefore, it called for the construction of one or two rotary kiln incinerators and one land-storage facility.
The Commission is statutorily charged with the responsibility of locating appropriate sites for the future construction of hazardous waste facilities needed by the State of New Jersey. N.J.S.A. 13:1E-59. After the Commission identifies a potential facility site, that site is tested to determine if it conforms to the regulatory criteria enumerated in N.J.S.A. 13:1E-57 and N.J.A.C. 7:26-13.1 to -13.7. If a site does not meet the criteria, it is dropped from consideration. If the site satisfies the specifications, the Commission determines whether to propose the site for adoption. Once a site is proposed, a grant is made to the municipality so that a suitability study may be conducted. N.J.S.A. 13:1E-59(a)(1). This site-suitability study is to be completed in six months and the results transmitted to the Commission.
Within forty-five days after receipt of the study, an administrative hearing must be held to determine the appropriateness of the site. The administrative law judge makes a recommendation concerning the site. Under N.J.S.A. 13:1E-59(a)(4), the administrative law judge cannot recommend a site unless there is "clear and convincing evidence" that it will not constitute a substantial detriment to public health, safety or welfare. Once the Commission receives this recommendation, it may accept or reject it and adopt or withdraw the site. This final action is subject to judicial review. N.J.S.A. 13:1E-59(a)(5).
Following adoption of the site, private firms will submit engineering designs for the facility. On approval of a design, the Commission will enter into negotiations for the purchase of the adopted site. If these negotiations fail, the Commission has the power to condemn the property. N.J.S.A. 13:1E-81.
In February 1986, the Commission identified eleven potential facility sites. Seven of these sites were potential incinerator sites and four were possible land storage sites. At the start of this litigation, the Commission completed testing of two of the eleven sites, 1 both of which were determined to be unsatisfactory.
This appeal arises from two separate actions brought by affected landowners and municipal officials of two of the potential sites--East Greenwich and Millstone. 2 Both suits alleged that the Act constituted a "taking" of property without just compensation and due process in violation of the United States and New Jersey Constitutions. The plaintiffs also questioned the authority of the Commission to enter their land to do the initial testing of the identified sites.
Plaintiffs made interlocutory applications to prevent the Commission from entering their property to test, but these requests were rejected by this Court on December 2, 1986. 3 Thereafter, the cases were consolidated, and plaintiffs moved for summary judgment on the issues of the Commission's authority to enter and test the site and whether the Act constituted a taking of property without just compensation or due process. The Commission cross-moved for dismissal of the complaints.
On January 7, 1987, the trial court, in an unpublished decision, granted defendant's motion for summary judgment and dismissed plaintiffs' complaints. It rejected their "taking" claim based on a long line of New Jersey cases, reasoning "that the mere plotting or planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected." It also rejected the plaintiffs' claims that a diminution in market value or loss of financing constitutes a compensable taking. Nonetheless, the trial court recognized that in very limited circumstances an extraordinary delay on the part of the governmental authority in determining whether the property is to be condemned may lead to a finding of inverse condemnation. Hence, the trial court dismissed plaintiffs' claims without prejudice to plaintiffs to institute another action alleging inverse condemnation.
The plaintiffs in the consolidated actions appealed. The Appellate Division affirmed the trial court's order granting defendants summary judgment and dismissing the complaints substantially for the reasons stated in the trial court's opinion.
The plaintiffs filed a petition for certification seeking review only of the lower courts' judgments that there had not been a compensable "taking" of their property. Specifically, they claim that the identification of their property as a potential site for a hazardous waste incinerator, combined with the time involved in the siting process, has created a "yellow cloud" that hangs over their property and has denied them all beneficial use of the land. We granted certification. 111 N.J. 639, 546 A.2d 550 (1988).
Because we are Portee v. Jaffee, 84 N.J. 88, 90, 417 A.2d 521 (1980).
There are two affected landowners involved in the instant case, Dianamic and Cobblestone-Penn. Dianamic owns a portion of the property in Millstone designated as a possible site. Specific harm caused to Dianamic by designation as a potential site is not explicitly alleged. Cobblestone-Penn owns property adjacent to a portion of the possible site, and this property may have to be condemned inasmuch as N.J.S.A. 13:1E-57 requires development of a "buffer zone" between the facility and certain land around it.
Prior to the identification of the site, Cobblestone-Penn was planning to develop a senior citizens mobile-home park on its property. This plan fell through following the identification of the property, and Cobblestone-Penn claims the Act has prevented it from using its property for its zoned purpose. It appears the financial backers for the trailer park became uneasy about the identification and withdrew financing, and Cobblestone-Penn could not find backing elsewhere. Also, Cobblestone-Penn takes the position that senior citizens' susceptibility to respiratory ailments renders this property unsuitable for such a purpose.
Although neither landowner appears to be involved in substantial farming operations, both assert that the threat of condemnation has made it unfeasible for them to make initial investments necessary for a long-term, successful farming operation.
Both article I, paragraph 20 of the New Jersey Constitution and the fifth and fourteenth amendments to the United States Constitution prohibit the government from taking property without paying just compensation. The protections afforded under both constitutions are coextensive. See Rieder v. State Dep't of Transp., 221 N.J.Super. 547, 553, 535 A.2d 512 (App.Div.1987).
The clearest example of a taking is a situation in which property is physically invaded. 2 Nichols on Eminent Domain, § 6.05 at 6-34 (J. Sackman ed. 1985). Traditionally, physical invasion was an indispensable element of a "taking" claim. Note, A Proposal for Compensating Landowners for the Effects of Urban Redevelopment, 5 Wm. Mitchell L.Rev. 165, 171 (1979). This requirement, however, began to erode, and "[i]t is generally held in New Jersey [and] elsewhere ... [that] in a few narrowly defined situations" compensation will be awarded for "noninvasive" governmental activity: namely, off-site activities that spill over onto the claimant's property; diminition in value flowing from governmental regulation; and diminution in value caused by pre-taking activities. Payne, A Survey of New Jersey Eminent Domain Law, 30 Rutgers L.Rev. 1111, 1188 (1977). This case involves the third type of claim (pre-condemnation activity).
Government plans ordinarily do not constitute invasion or taking of property. Danforth v....
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