client alert

Client Alert: Government to Take Property and Commandeer Services

On March 9, 2020, New Jersey’s Governor Phil Murphy declared a state of emergency in light of the coronavirus pandemic. By declaring a state of emergency, Governor Murphy is able to invoke certain far reaching powers that are not otherwise available. For example, pursuant to N.J.S.A. § App.A:9-34, entitled “Emergency powers of Governor,” Governor Murphy is expressly authorized to commandeer private persons, services and properties to avoid or protect against the emergency. This is particularly important for certain private businesses, such as nursing homes, hospitals, warehouse spaces and other business that might be necessary in fighting the pandemic, which may be requisitioned or commandeered by the government to assist during the crisis. In most such instances, the government is required to provide “reasonable” compensation, although the compensation can be determined after the fact.

For example, N.J.S.A. App.A:9-51, authorizes the Governor to employ, take or use personal services or real property from the purpose of protecting or promoting the public health, safety or welfare. Compensation for any personal services required is to be paid at prevailing established rate for such services.  Emergency compensation boards exist in each county, which determine the reasonable compensation due for any property taken and for any injury caused thereby. In order to be compensated, the party must file a petition with the emergency compensation board in the county in which the property is located. Moreover, the compensation board will grant a hearing and the award shall be paid within one year after the compensation decision is rendered.

In addition, the New Jersey Commissioner of the Department of Health has similar emergency powers. Pursuant to N.J.S.A. 26:13-19, the Commissioner may procure, by condemnation or otherwise, property and facilities as may be reasonable and necessary to respond to the public health emergency, with the right to take immediate possession.  Such possession is subject to the payment of reasonable costs. N.J.S.A. 26:13-25 provides direction with respect to compensation. After the termination of the public health emergency, but not before 180 days from the last date the services or property were employed, the person may file a petition for an award with the State Public Health Emergency Claim Reimbursement Board. The statute also notes that, in the event funds are made available for reimbursement, such as pursuant to an agreement, a person shall not be required to file a petition for an award.

Our firm is in the middle of a matter involving these cutting edge and unique issues. These are complicated times. If your business has been contacted by the Governor’s office or the Department of Health, the attorneys at McCusker, Anselmi, Rosen and Carvelli (MARC) can assist you in determining your rights and identifying the best path forward. We can negotiate with the State to obtain compensation and work with you to protect your business in these difficult times. If you have any questions, please feel free to contact William Munday, Esq., wmunday@marc.law, or Alicyn Craig, Esq., acraig@marc.law.

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