Is Preliminary Entry a Taking Requiring Just Compensation?
The Eminent Domain Act of 1971 grants a condemnor a right to “preliminary entry.” The statute provides:
“Prior to the commencement of any action, a prospective condemnor and its employees and agents, during reasonable business hours, may enter upon any property which it has authority to condemn for the purpose of making studies, surveys, tests, soundings, borings and appraisals, provided notice of the intended entry for such purpose is sent to the owner and the occupant of the property by certified mail at least 10 days prior thereto. No tests, soundings or borings shall be made on property in which there exists a pipeline or other underground utility installation except in the presence of a representative designated by the public utility owning or using the same. If an action to condemn is not commenced within 2 years after such preliminary entry, any damages sustained as a result thereof, shall be paid by the condemnor to the person or persons so damaged. The amount of such damages, if any, and the person or persons entitled thereto, shall be determined by the court in a summary action pursuant to the rules.” N.J.S.A. 20:3-16.
Notably, the above provision was enacted as part of the original act (L.1971, c.361, s.16) and has never been changed or amended since enactment. Nor are there many published New Jersey cases interpreting this section of the statute.
In New Jersey, the first notice a property owner usually receives about the potential taking of its private property for public use is a letter from an appraiser offering the owner the opportunity to accompany him on an appraisal inspection. If the owner does not respond, the appraiser will drive-bye the property and complete the appraisal without a physical inspection of the property and its improvements. (this procedure and its origins could be a blog topic by itself).
Sometimes, however, the owner receives a certified mail letter from a condemning agency seeking “preliminary entry” for the statutory purposes qouted above. The issue is not often litigated in New Jersey and the entry is usually limited in scope and “damages” are not contemplated by the entry. Many times, the owner will agree provided it is insured and indemnified for premises liability occurring during the condemnor’s (and its consultants’) preliminary entry.
Maybe it’s time to reconsider the constitutionality of New Jersey’s preliminary entry statute for a couple of reasons: 1) U.S. Supreme Court opinion in the Cedar Point Nursery case; and 2) the more recent Idaho Power Co. v. Bean case (opinion Oregon Pre-Condemnation Entry Order). In brief, the former says denying a property owner the “right to exclude” persons from its property is a “taking” for which just compensation is due, and the latter says that if Oregon’s preliminary entry statute grants a utility company the right to enter private property over the owner’s objection without payment of just compensation, it is unconstitutional. As with all things, I suppose it is a question of the degree of invasion and context.
In Oregon, the power company’s requested surveys contemplated entering the property thirty-two times. Sometimes it would be by pick-up truck, sometimes there would be additional vehicles and equipment (geo-probe and other equipment to take soil and bore samples). The Oregon statute is more carefully tailored than the New Jersey analog. It expressly grants the owner a right to “reasonable compensation.” In the end, as in most cases, the judge in Oregon advised that the parties would be better served to resolve the issue amongst themselves because if they did not, the power company would have to commence a condemnation action to gain preliminary entry….
Another arrow in the quiver.
