05/06/14 NEW JERSEY TRANSIT
CORPORATION VS.
MORI
A-0122-12T4
This appeal concerns property
acquired by New Jersey Transit through condemnation. The property contains navigable waters of the United
States under the exclusive jurisdiction of the United States Army Corps of
Engineers (ACOE). We held that because the ACOE has exclusive jurisdiction to
determine whether the taking area falls under the category of wetlands, it was
error to submit this issue to the jury.
We also held that the trial
judge should have conducted a pre-trial N.J.R.E. 104 hearing and rendered a
determination that there existed the reasonable probability the ACOE would have
granted a Section 404 permit as of the taking date for the proposed private
development.
