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Board of Fire Commissioners, Township of Millstone v. Cascella

326 N.J. Super. 83, 740 A.2d 675 (App. Div. 1999)

CONDEMNATION; FIRE COMMISSIONERS—Boards of Fire Commissioners do not have the inherent power of eminent domain; they can, however, petition municipalities to employ their condemnation powers to secure property for use as fire facilities.

A board of fire commissioners owned a tract of land in a fourteen lot residential subdivision. The land had been purchased for the purpose of erecting a firehouse substation. All of the lots in the subdivision were subject to a declaration of easement which provided, in relevant part, “In addition to all the covenants contained herein, the use of the subject lots is restricted to residential purposes ... no lot shall be used except for residential purposes.” The board then commenced a condemnation proceeding claiming that the “property” which it was trying to condemn was a incorporeal legal right rather than an actual parcel of land. Essentially, the board was seeking, through the condemnation proceeding, to relieve the property of the burden of the Declaration of Easement. After giving notice to all of the residents within the subdivision, the case was placed on the inactive list pending the outcome of a companion case. The issue in the companion case was “[a]n application by the Board of Fire Commissions to the Board of Adjustment of the Township of Millstone for a use variance [that] resulted in the Board of Adjustment determination that the Board of Fire Commissioners is a public entity.” In that companion case, the lower court held that those proceedings were a violation of the Public Meetings Act. That same court adjudged that the Board of Fire Commissioners, as a municipal public body, was not exempt from the zoning ordinance of the municipality and remanded the matter to the zoning board for further hearings. This left the question as to whether the Board of Fire Commissioners had the power of condemnation. The New Jersey State Constitution states that the power of eminent domain must be specifically enumerated by the Legislature. Consequently, that power is not automatic. Nonetheless, “[since] 1975 approximately 188 fire districts have been created in New Jersey, and each has been operating under the assumption it possesses the same powers as the municipality, particularly with regard to the power of eminent domain.” No statute, however, specifically enumerated any condemnation power upon a Board of Fire Commissioners. The State statute which created such boards, “grants [them] the power to ‘acquire, hold, lease sell or otherwise convey ... such real and personal property as the purposes of the corporation shall require.’” As a result, the Court accepted the challengers’ argument “that if the Legislature had intended for the Local Lands and Buildings Law to govern acquisition of property by the Commissioners, it would have specifically indicated such, just as they indicated that Local Lands and Building Laws should govern sales and leases.” Instead, the Legislature enacted a separate statute to govern the acquisition of property by a board of fire commissioners. That statute is entitled in part, “Acquisition of property and equipment for fire districts.” Nowhere does it grant the power of condemnation. Consequently, the Court held that since the power of eminent domain was not specifically granted by the Legislature, the Board could not exercise the power of condemnation. The Board also argued that because it was a municipal public entity, it should be seen as the “alter ego” of the municipality and share in all of its powers insofar as they concern fire prevention. As an “alter ego,” it would enjoy the inherent power of condemnation. Unfortunately, although that might be true for State agencies, because a municipality, unlike the State Government, does not have the inherent right of eminent domain, a Fire Board does not have the right of eminent domain. Despite holding against the Board of Fire Commissioners, the Board was not left without a remedy. The Court stated that the Board could petition the municipality to institute condemnation proceedings on the Board’s behalf to secure a firehouse.


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