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Atlantic City Elec. Co. v. Bardin

Citation: 7 ELR 20297
368 A.2d 366/145 N.J. Super. 438, (N.J. Super. Ct. App. Div., 12/14/1976)

The court affirms a state agency decision requiring payment of a monetary consideration for issuance of a revocable license to a utility to lay a submarine cable beneath tidal waters. Upon application by appellant, the Natural Resources Council of the Department of Environmental Protection issued a revocable license to use the state's underwater land for a 15,000-foot cable for a fee of $40,851. Rejecting appellant's claim, the court finds that the Council, as agent implementing statement ownership of tidelands, has the power to issue revocable licenses and to fix fees therefor. Even though detailed standards are lacking, the Council may, pursuant to existing statutory authority and a general statement of objectives, exercise proprietary functions involving price determinations. The charge for conveyance of an interest in tidelands is not a tax violative of the statute governing taxation of utilities. The charge is not a general tax levy but rather an exchange of money for a specific property interest. There is no indication that the charge was unreasonable or not within the discretionary power delegated to the Council. Finally, the Council need not comply with notice and hearing requirements of the state administrative procedure act because the grant of license with the consideration is not a rulemaking but rather an exercise of business judgment.

Counsel for Appellant
Henry P. Megargee, Jr.
Lloyd, Megargee & Steedle
600 Fire Rd., P.O. Box 850, Pleasantville NJ 08232
(609) 645-2201

Counsel for Appellees
William F. Hyland, Attorney General; Arnold Lakind, Dep. Attorney General; Stephen Skillman, Ass't Attorney General
Department of Law & Public Safety
State House Annex, Trenton NJ 08625
(609) 292-4925

Joined by Kole & Larner, JJ.