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4 N.J.A.R. 220

Industrial Land Reclaiming, In the Matter of
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Citation: 4 N.J.A.R. 220
Decision Date: 1981
Synopsis: Petitioner, which operates a sanitary landfill in several counties in New Jersey, sought to acquire, through the power of eminent domain, interests in 37 additional lots to be used in the operation of its landfill. The petitioner argued that N.J.S.A. 48:3-17.6 which lists those types of utilities which may exercise the power of eminent domain was illustrative and was not an exclusive listing of such utilities. The administrative law judge concluded that N.J.S.A. 48:3-17.6 contained an exclusive listing of those types of utilities which may exercise the power of eminent domain. The judge based this con- clusion on a determination that the inclusion of an extremely detailed and numerous listing of the types of public utilities having the power of condemnation indicates on its face an intention by the Legislature that the list be exclusive and not merely illustrative. The judge noted that if there is a reasonable doubt concerning the existence of a particular power in an agency, that power is denied. This is particularly true concerning the power of eminent domain which is to be construed strictly. The judge rejected the petitioner's argument that the Board of Public Utilities may authorize condemnation by sanitary landfill by virtue of N.J.S.A. 48:3-17.7 as without merit. That provision provides no additional authority to grant the power of condemnation but merely specifies the procedures to be followed by the Board in approv- ing the exercise of eminent domain by a utility which has been granted that power by the Legislature. Accordingly, the administrative law judge concluded that the peti- tioner lacked the legal authority to acquire property by condemnation. Jack B. Kitsten, Esq., Dolores M. Delabar, Esq., and Joseph Bonk, Esq., for petitioner (Kitsten, Rriedman & Cherin, attorneys) G. Richard Malgran, Esq., for intervenor, Tenneco Chemicals Inc. (Venezia & Nolan, attorneys) Edward J. Egan, Esq., for intervenor, Filcrest Realty, Inc. David M. Greene, Esq., for intervenor, Josephine AI Ibrahim State of New Jersey 221 In Re: Industrial Land
Statute(s) Cited: 48:3-17.6 48:3-17.7