Appellate Division Gives Train Case One-way Ticket Back to ALJ with Remand
Norfolk Southern Railway Company petitioned the New Jersey Department of Transportation for authorization to acquire the neighboring property owned by Intermodal Properties, LLC, by eminent domain after the property owner refused an arms-length sale. Railroads, as a public utility, can receive authorization under N.J.S.A. 48:12-35.1 once they show that the land is needed for a public use, and that the taking is not incompatible with the public interest and would not unduly injure the rights of the private property owner. Following a hearing on the matter, an Administrative Law Judge (ALJ) determined that a federal law preempted a provision of N.J.S.A. 48:12-35.1 which required Norfolk to examine on-site alternatives, and that Norfolk had provided sufficient evidence that it had a reasonable need, based upon its future business demands, for the property.
The Appellate Division, in affirming the ALJ’s decision, held that N.J.S.A. 48:12-35.1 permits the taking of property if the railroad establishes that the reasonable needs of its business demand acquisition of the property, even if it is for a future use. Additionally, the court held the property owner has the burden of proof on the issue under N.J.S.A. 48:3-17.7 as to whether the taking would cause it undue injury because it is in the best possession to present evidence of any alleged damages. Finally, the court reversed on the issue of federal preemption because the provision of N.J.S.A. 48:12-35.1, which requires a railroad to establish that “alternative property suitable for the specific proposed use” is not available “thorough on-site accommodation” did not regulate railroad transportation, but merely the condemnation of property.
The Appellate Division’s opinion in Norfolk Southern Railway Co., v. Intermodal Properties, L.L.C., __ N.J. Super. __ (App. Div. 2012), may be found here.
For more blog posts discussing utility companies and eminent domain, please see the following:
Keystone Pipeline Project Chugging Along
