New Jersey § 48:12-35

§ 48:12-35.

Any railroad utility incorporated in this State or in any other s tate and operating in New Jersey may exercise the power of eminent domain as provided herein in taking : (a) any land and property required for the right-of-way of its main line and branches,

not exceeding 200 feet in width, unless more shall be required for slopes of cuts

or embankments or retaining walls ; (b) all such other land and property adjoining such right-of-way as exigencies of business

may demand for the erection or expansion of freight and passenger depots and all other railroad purposes, provided, however, that any railroad utility exercising condemnation for this purpose

must demonstrate to the Department of Transportation that alternative property suitable

for the specific proposed use of the property to be taken is unavailable, either through

on-site accommodation or through voluntary sale of alternative, reasonably situated

property, and that the interest in the property to be taken does not exceed what is

necessary for the proposed use, and shall also demonstrate to the Department of Transportation

at an informal hearing the specific use to be made of the land or other property or

interest to be acquired and that such proposed use is necessary and consistent with

the purposes enumerated for such railroad utility and with the extent of the land

or other property or interest to be condemned; and (c) any land and property necessary to comply with any order , determination, rule or regulation of the Department of Transportation . Thereafter, the application for approval shall be considered a contested case pursuant

to the “Administrative Procedure Act,” P.L. 1968, c. 410 ( C.52:14B-1 et seq. ). A hearing, upon the written request by the railroad utility to condemn and challenge

thereto, shall be heard by the Office of Administrative Law pursuant to section 9

of P.L.1968, c. 410 ( C.52:14B-9 ), after the informal hearing is completed before the Department of Transportation. Timely notice by the railroad utility must be provided to a prospective condemnee

holding a fee interest, easement, or leasehold in the property sought to be condemned

by the railroad utility. At the hearing held before the Office of Administrative Law, the railroad utility

shall make the same demonstrations of satisfying the prescribed conditions as set

forth above. The burden of proof shall be upon the railroad utility no matter who makes the request

for a formal hearing. The Office of Administrative Law shall then make a recommendation to the Commissioner

of Transportation as to whether the railroad utility has met its statutory obligations

to enable it to file a condemnation proceeding to acquire real property and that a

determination of necessity should be issued. The determination shall become final on the 45th day after the release of the initial

determination of necessity by the Department of Transportation, unless the railroad

utility or any other interested party whose real property, lease, or easement may

be impacted by the condemnation seeks, in writing, from the Department of Transportation

a formal hearing before the Office of Administrative Law within that 45 day period. Any appeal of a final determination made by the Department of Transportation or

by the Commissioner of Transportation shall be made to the Superior Court, Appellate

Division based upon the record below. No informal or formal hearing shall be held until written notice by certified mail

or by private courier has been demonstrated as being sent by the railroad utility

to anyone holding an interest in the real estate to be acquired whether in fee, easement,

or by lease at their current known address, and if not known by publication based

upon production of a certification of inquiry, as well as to the municipality, municipal

planning board and the county and county planning board where the property is located. In addition, any railroad utility shall have the right to take and acquire, by the

exercise of the power of eminent domain as provided in this section and the “Eminent Domain Act of 1971,” P.L.1971, c. 361 ( C.20:3-1 et seq. ) , any land, property or private road as shall be necessary for any branch line or

lines, spur or sidetrack to the premises of a horse race track as provided in P.L.1947, c. 17 ( 48:12-32.1 ) , but not in excess of 200 feet in width, for such branch line or lines, spur or sidetrack

of railroad; provided that additional land may be so acquired where necessary for

the slopes of cuts or embankments or for retaining walls. When the line of any railroad utility of the State is constructed to the Delaware

river and extension of such line is to be undertaken pursuant to R.S.48:12-44 , the utility may acquire, by the exercise of the power of eminent domain as provided

in this section , such lands as may be necessary upon filing and recording the survey of the route

with the Secretary of State and in the office of the clerk of the county wherein the

lands are situate, and making the deposit required by R.S.48:12-25 . No railroad utility shall take, use or occupy by condemnation any franchise, land

or located route of any other railroad or any utility chartered for the purpose of

facilitating transportation, except for the purpose of crossing such land or route

and except the land of any such utility not necessary for the purpose of its franchise. No railroad utility shall take or acquire by condemnation any land, property, easements,

or other interest belonging to the State of New Jersey, or any authority, corporation,

or other instrumentality of the State. The Department of Transportation and its commissioner are hereby authorized and empowered

to determine the necessity as aforesaid for the use of the land, easements, or other

property or interests therein so sought to be condemned, to establish the form and

method of any application for such condemnation and the time and the manner of notice

of the application and scheduling of the initial informal hearing or any hearing before

the Office of Administrative Law, and to enforce the provisions of this section the

commissioner may designate a division or office of the department to make the determination

of necessity. The Commissioner of Transportation may prescribe any rules, regulation, or procedure

applicable to an application by a railroad utility to commence a condemnation proceeding

including, but not limited to, how the railroad utility shall demonstrate its satisfaction

of the above stated conditions for commencing a condemnation proceeding; to any challenge

made by a prospective condemnee holding a fee interest, easement, or lease in the

property sought to be condemned by the railroad utility; and to the provision of

notice to interested parties. The New Jersey Transit Corporation shall not be considered a railroad utility for

the purposes of this section. The powers of condemnation vested in railroads under this section shall govern over any provisions of Title 48 as amended and supplemented by this act and which have

not been repealed.