NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4765-17T2
AMBA CORPORATION, a Virginia Corporation,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION,
Defendant-Respondent. ___________________________
Argued January 13, 2020 – Decided July 24, 2020
Before Judges Messano, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0673-17.
Drew K. Kapur argued the cause for appellant (Duane Morris LLP, attorneys; Drew K. Kapur, of counsel and on the briefs; Meredith E. Carpenter, on the briefs).
Alexander J. Falciani, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Alexander J. Falciani, of counsel and on the brief).
PER CURIAM
Plaintiff AMBA Corporation appeals from orders denying its motion for
summary judgment on its inverse condemnation claim against defendant State
of New Jersey, by the Commissioner of the Department of Transportation (DOT)
and granting the DOT summary judgment on the claim. Having considered the
record and the parties' arguments in light of the applicable law, we affirm.
I.
The facts presented in support of the cross-motions for summary judgment
are not disputed. Plaintiff is the owner of real property and improvements,
including a forty-six-room motel, in Bellmawr Township. Plaintiff's property is
a highway-front lot that abuts the northeast side of Route 168.1 Benigno
Boulevard runs perpendicular to Route 168, intersects with Route 168 directly
across from plaintiff's front lot line, and terminates at its intersection with Route
168.
1 Route 168 is commonly referred to as Black Horse Pike.
A-4765-17T2 2 Prior to the events giving rise to the inverse condemnation claim at issue
here, a driveway on plaintiff's property provided access to and from Route 168.2
The access to Route 168 was authorized by a DOT access permit.
In 2008, the DOT determined it was in the public interest to reconfigure
the intersection of Route 168 and Benigno Boulevard to improve traffic flow in
the vicinity. The DOT further determined the reconfiguration required
termination of plaintiff's access permit to Route 168 through the existing
driveway. Instead, access to Route 168 would be provided through an
alternative and shared driveway over an easement on property owned by A.A.
Hospitality, LLC (AAH) that abuts plaintiff's northern property line. 3
The DOT's decision revoking plaintiff's existing access permit and
modifying its access to Route 168 required compliance with the State Highway
Access Management Act (the Act), N.J.S.A. 27:7-89 to -98, and its
implementing regulations, the State Highway Access Management Code (the
Code), N.J.A.C. 16:47-1.1 to -9.1. By letter dated March 7, 2008, the DOT
notified plaintiff of the proposed access changes and provided a plan showing
2 The driveway intersected with Route 168 just north of the intersection of Route 168 and Benigno Boulevard. 3 A.A. Hospitality, LLC also owns and operates a motel located on, and with access to, Route 168. A-4765-17T2 3 the existing and proposed access to Route 168. The letter informed plaintiff it
had an opportunity to raise any issues or concerns about the access changes and
advised plaintiff that a failure to respond within thirty days constituted a waiver
of its right to a hearing concerning the changes. Plaintiff did not respond to the
letter.
In January 2009, the DOT sent plaintiff another letter, noting its previous
correspondence and providing an additional seven days to object to the proposed
access plan. The DOT further advised that if plaintiff did not respond, the DOT
would incorporate the proposed access changes into the design and construction
of the Route 168 and Benigno Boulevard reconfiguration project.
In its brief on appeal, plaintiff explains that it did not respond to the DOT's
letter "because it did not object to the alternative access" through an "easement
over AAH's property." Plaintiff also acknowledges the DOT's proposed access
plan "became final under the . . . Act" and its regulations.
On March 1, 2011, the DOT filed a condemnation action against plaintiff
and took ownership of a portion of plaintiff's property abutting Route 168. The
condemned property included the area where plaintiff's existing driveway
accessed Route 168. The complaint did not seek condemnation of plaintiff's
alternative reasonable access over AAH's property, but, eight days later, the
A-4765-17T2 4 DOT filed a condemnation action against AAH and a declaration of taking, and
thereby obtained an easement on AAH's property. The easement "consist[ed] of
the permanent, nonexclusive right of ingress and egress for the owners,
successors and assigns, as well as business invitees and guests of" plaintiff's
abutting property. The easement encompassed those portions of AAH's property
the DOT's access plan showed would provide the reasonable access to plaintiff's
property necessitated by the revocation of plaintiff's access to Route 168 from
its existing driveway.
Construction on the reconfiguration project began in September 2012, and
in November the DOT contractor excavated in the area of plaintiff's existing
driveway. Between September 2012 and November 2012, physical access to
plaintiff's property was provided first through its existing driveway and,
thereafter, through the driveway within the DOT's easement on AAH's property.4
On November 16, 2015, the DOT recorded a deed conveying to plaintiff title to
the easement across AAH's property.
Plaintiff later filed a complaint and an amended complaint for inverse
condemnation. Plaintiff alleged that between September 12, 2012, and
4 A December 14, 2017 "Stipulation" between plaintiff and the DOT states that from September 12, 2012 through November 12, 2012, access to plaintiff's property was provided "by way of" the existing driveway. A-4765-17T2 5 November 16, 2015, the DOT denied plaintiff its property right to reasonable
alternative access without just compensation.
The DOT answered the complaints and subsequently moved for summary
judgment, arguing the reasonable alternative access required by the Act was
provided between September 12, 2012 and November 16, 2015, first through
plaintiff's existing driveway and then through the shared driveway over the
DOT's easement on AAH's property. The DOT contended access was provided
in accordance with the access plan it presented to plaintiff prior to the
condemnation of plaintiff's property; access was both "completed and available"
as required by the Act, see N.J.S.A. 27:7-94(d); and, at all times, plaintiff's
property had uninterrupted access to Route 168 through the shared driveway.
Plaintiff also moved for summary judgment. It did not dispute there was
uninterrupted physical access available between its property and Route 168
between September 12, 2012, and November 16, 2015. Instead, it asserted
reasonable alternative access was not "completed and available" within the
meaning of the Act, see N.J.S.A. 27:7-94(d), because it did not have a legally
enforceable right to reasonable access across AAH's property until the DOT
conveyed and recorded the November 16, 2015 deed of easement.
A-4765-17T2 6 After hearing argument, the motion judge found there were no genuine
issues of material fact and noted plaintiff "has the burden of production and the
burden of proof to establish a taking by clear and convincing evidence." The
court noted plaintiff's "basic complaint is that the State did not file the easement"
on AAH's property in plaintiff's "name . . . for . . . [thirty-eight] months and,
therefore, [plaintiff] had no legal right to traverse the property and, therefore,
[reasonable alternative access] was not full and complete."
The court found plaintiff's claim turned on an interpretation of N.J.S.A.
27:7-94(d), which provides that an access permit shall not be revoked "[u]ntil
the alternative access is completed and available for use." The court reasoned
the statute's "clear language" "indicate[s] that [reasonable alternative access] is
full and available for use" when physical access to the property is provided and
maintained. The court found compliance with N.J.S.A. 27:7-94(d) did not
require delivery of the deed of easement but instead required only that plaintiff's
property have physical access to Route 168. The court also determined:
The undisputed facts are that the State got an easement on the neighboring property owned by [AAH], provided access to plaintiff's property, specifically the hotel, before closing the highway access directly to plaintiff's property. Nothing in the record would indicate that any customers or use of the property was affected.
A-4765-17T2 7 Although plaintiff's cause of action is based solely on an alleged taking
without just compensation of its right to reasonable access, the court also
determined there was no physical or regulatory taking of plaintiff's fee interest
in its property. The court found there was no "permanent physical occupation"
of plaintiff's property, and any "alleged interference [with plaintiff's fee interest]
was temporary, approximately [thirty-eight] months at most." The court found
plaintiff's "ability to use and make investments has never been curtailed" by the
DOT, and "it is undisputed that plaintiff continued to occupy the [motel]
between 2012 and 2015, the period of time during which plaintiff claims there
was a taking for which it seeks compensation." The court further reasoned that
"[b]ecause the State did not substantially destroy the beneficial use of plaintiff's
property, there's [also] no 'regulatory taking.'"
The court entered orders granting the DOT summary judgment and
denying plaintiff's summary judgment motion. Plaintiff appeals from the court's
orders.
II.
We review orders granting or denying summary judgment by applying the
same standard as the trial court in its ruling on a summary judgment motion.
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
A-4765-17T2 8 N.J. 189, 199 (2016). The moving party is entitled to summary judgment if the
record shows "there is no genuine issue as to any material fact challenged
and . . . the moving party is entitled to a judgment or order as a matter of law."
Ibid. (quoting R. 4:46-2(c)). When determining whether a genuine issue of
material fact exists, the court must view the evidence in the light most favorable
to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995). Issues of law are subject to the de novo standard of review, and the
trial court's determination of such issues is accorded no deference. Kaye v.
Rosefielde, 223 N.J. 218, 229 (2015).
Prior to addressing plaintiff's claims, we note it does not challenge the
DOT's condemnation of its fee interest in its property or the DOT's access plan.
Plaintiff does not claim a violation of the Act or any error in the DOT's adoption
of the access plan that provided for revocation of the access permit for the
existing driveway and reasonable alternative access through an easement on
AAH's property. 5 Plaintiff also does not claim its property was deprived of
actual physical access to Route 168 between September 12, 2012, and November
5 A challenge to the DOT's access plan required exhaustion of administrative remedies before the Commissioner of the DOT. See State ex rel. Comm'r of Transp. v. Marlton Plaza Assocs., LP, 426 N.J. Super. 337, 348-50 (App. Div. 2012) (explaining the procedure for appealing the revocation of an access permit). As noted, plaintiff never challenged the plan. A-4765-17T2 9 16, 2015. Plaintiff argues only the DOT took its property right to reasonable
alternative access without just compensation by failing to convey legal title to
the easement over AAH's property until November 16, 2015.
The Fifth Amendment to the United States Constitution provides that
"private property" shall not "be taken for public use, without just compensation."
U.S. Const. amend. V. This provision has been made applicable to the states
through the Due Process clause of the Fourteenth Amendment. Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005). The New Jersey Constitution,
article I, paragraph 20, and article IV, section 6, paragraph 3, also protects
against governmental takings of private property without just compensation, and
its protections are coextensive with that of the federal provision. Klumpp v.
Borough of Avalon, 202 N.J. 390, 404-05 (2010).
The United States Supreme Court has identified two "narrow categories"
of regulatory actions that are "deemed per se takings for Fifth Amendment
purposes." Lingle, 544 U.S. at 538; see also Marlton Plaza, 426 N.J. Super. at
352-53. "The first is 'where government requires an owner to suffer a permanent
physical invasion of [its] property,'" and "[t]he second 'applies to regulations
that completely deprive an owner of all economically beneficial use of [its]
A-4765-17T2 10 property.'" Marlton Plaza, 426 N.J. Super. at 353 (quoting Lingle, 544 U.S. at
538).
Where an alleged taking does not fall within one of the two narrow
categories of per se takings, "regulatory takings challenges are governed by the
standards set forth in Penn Central [Transportation] Co. v. New York City, 438
U.S. 104, (1978)." Lingle, 544 U.S. at 538; see also Marlton Plaza, 426 N.J.
Super. at 353. The United States Supreme Court summarized the Penn Central
analysis as follows:
[W]hen a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on "a complex of factors," including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.
[Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017) (citation omitted).]
A property owner must establish more than "lost economic opportuniti es,
forgone financing, and diminution in market value" to satisfy the economic
impact prong. Littman v. Gimello, 115 N.J. 154, 164 (1989). The owner must
demonstrate the regulation "'substantially destroys the beneficial use of private
property,' or does not allow an 'adequate' or 'just and reasonable' return on
A-4765-17T2 11 investment." Karam v. Dep't of Envtl. Prot., 308 N.J. Super. 225, 236 (App.
Div. 1998) (quoting Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 211
(1991)).
In addition, the property owner's investment-backed expectations must be
reasonable. E. Cape May Assocs. v. Dep't of Envtl. Prot., 300 N.J. Super. 325,
337 (App. Div. 1997). "Whether or not expectations are considered reasonable
will depend to a significant extent on whether the property owner had notice in
advance of its investment decision that the governmental regulations which are
alleged to constitute the taking had been or would be enacted." Ibid.
The nature of the government action must also be considered. Marlton
Plaza, 426 N.J. Super. at 353. "[T]aking challenges have been dismissed 'on the
ground that, while the challenged government action caused economic harm, it
did not interfere with interests that were sufficiently bound up with the
reasonable expectations of the claimant to constitute "property" for Fifth
Amendment purposes.'" Id. at 354 (quoting Penn Cent., 438 U.S. at 124-25).
It is fundamental that the proponent of a takings claim must possess a
"property interest" cognizable under the Fifth Amendment. Phillips v. Wash.
Legal Found., 524 U.S. 156, 164 (1998) (applying the definition of "property"
developed in due process cases to takings cases). It is also well-established that,
A-4765-17T2 12 even though the interest "may take many forms over and above the ownership
of tangible property," Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77
N.J. 145, 154 (1978), the range of protected property interests is not limitless ,
Bd. of Regents v. Roth, 408 U.S. 564, 570-72 (1972). The determinative
question is whether the claimant possesses a "legitimate claim of entitlement,"
not merely an "abstract need or desire" or "unilateral expectation," in the
interest. Id. at 577. These entitlements "are created and their dimensions are
defined by existing rules or understandings that stem from an independent
source such as state law." Ibid.
State law defines a plaintiff's right to reasonable access to a State highway.
Marlton Plaza, 426 N.J. Super. at 355; see also N.J.S.A. 27:7-90(e). The Act
"delegate[s] authority over State highway access to the DOT." In re IMO Route
206 at New Amwell Road, Block 161 (Hillsborough), 322 N.J. Super. 345, 353
(App. Div. 1999).
"[A] property owner has a right of reasonable access to the State's highway
system," but not from a "particular point on his or her property." Marlton Plaza,
426 N.J. Super. at 355; see also N.J.S.A. 27:7-90(e) ("The right of access is
subject to regulation for the purpose of protecting the public health, safety and
welfare."). "Thus, modification or revocation of an access point, so long as free
A-4765-17T2 13 and reasonable access remains, does not constitute a taking" for Fifth
Amendment purposes. Marlton Plaza, 426 N.J. Super. at 355.
There is a constitutional taking of the right to reasonable access where the
DOT revokes a property owner's access permit but does not otherwise provide
free and reasonable access from the property to the State highway. "[I]f the
access that remains following DOT regulation is not reasonable, the property
owner's Fifth Amendment rights are implicated," and, under those
circumstances, the Act "and the common law, require that the [DOT] acquire the
property interest [to reasonable access] through condemnation." Id. at 356
(citation omitted); see also Magliochetti v. State by Comm'r of Transp., 276 N.J.
Super. 361, 371 (Law Div. 1994) (explaining that "[i]n lieu of providing
reasonable alternative access when revoking a permit, 'the commissioner may
acquire, by purchase or condemnation, any right of access to any
highway . . . .'").
The Act permits the revocation of an existing access permit, such as
plaintiff's permit to access Route 168 from its existing driveway, but not "[u]ntil
the alternative access is completed and available for use." N.J.S.A. 27:7-94(d).
Plaintiff claims alternative access across the easement on AAH's property was
not "completed and available" as required by N.J.S.A. 27:7-94(d) until the DOT
A-4765-17T2 14 deeded the easement on November 16, 2015. Plaintiff's argument is founded on
a flawed interpretation of the Act.
"When construing a statute, our primary goal is to discern the meaning
and intent of the Legislature. In most instances, the best indicator of that intent
is the plain language chosen by the Legislature." State v. Gandhi, 201 N.J. 161,
176 (2010) (citation omitted); accord DiProspero v. Penn, 183 N.J. 477, 492
(2005). Determining the Legislature's intent, "begins with the language of the
statute, and the words chosen by the Legislature should be accorded their
ordinary and accustomed meaning." State v. Hudson, 209 N.J. 513, 529 (2012).
N.J.S.A. 1:1-1 requires that "[i]n the construction of [our] laws and
statutes, . . . words and phrases shall be read and construed with their context,
and shall, unless inconsistent with the manifest intent of the [L]egislature or
unless another or different meaning is expressly indicated, be given their
generally accepted meaning, according to the approved usage of the language."
Where a statute's language "leads to a clearly understood result, the
judicial inquiry ends without any need to resort to extrinsic sources." Hudson,
209 N.J. at 529. Courts may "resort to extrinsic evidence" if the legislation is
ambiguous and susceptible to more than one interpretation, DiProspero, 183 N.J.
at 492-93, however, a court should not "rewrite a plainly-written
A-4765-17T2 15 enactment . . . or presume that the [drafter] intended something other than that
expressed by way of the plain language," id. at 492. "It is not our job to engraft
requirements [on a statute] that the Legislature did not include. It is our role to
enforce the legislative intent as expressed through the words used by the
Legislature." Lippman v. Ethicon, Inc., 222 N.J. 362, 388 (2015).
By its plain terms, N.J.S.A. 27:7-94(d) requires alternative access be
completed and available "for use" prior to the revocation of an existing access
permit. The phrase "for use" modifies the terms "completed and available." The
standard for the completion and availability requirements is defined simply but
solely in terms of the utility of the alternative access. That is, for alternative
access to satisfy the statute, the access must be completed "for use" and available
"for use."
This interpretation is not only required by the unambiguous language of
N.J.S.A. 27:7-94(d), it is consistent with N.J.S.A. 27:7-94(c), which defines
alternative access under the Act. N.J.S.A. 27:7-94(c) provides that "alternative
access shall be assumed to exist if the property owner enjoys reasonable access
to the general system of streets and highways in the State." For commercial
property, reasonable access also requires "access onto any parallel or
perpendicular street, highway, easement, service road or common driveway,
A-4765-17T2 16 which . . . support[s] commercial traffic to the business or use" and provides "a
convenient, direct, and well-marked means of both reaching the business or use
and returning to the highway." N.J.S.A. 27:7-94(c)(1) (emphasis added). The
Code identically defines the requirements for alternative access following the
revocation of existing access from a driveway. See N.J.A.C. 16:47-11.4(c).
Our Supreme Court has explained that N.J.S.A. 27:7-94(c) "establish[es]
two criteria for reasonable access" to commercial property. In re Revocation of
Access of Block No. 613, Lots No. 4 & 5, Twp. of Toms River, Ocean Cty., 224
N.J. 53, 67 (2016). "First, there must be direct access to a street, highway, or
service road" and "if improvements alter the route that patrons must take to gain
access to the commercial property, the new route must be able to 'support the
traffic to the business' and must be convenient, direct, and well-marked."6 Ibid.;
see also In re Revocation of Access of Block 1901, Lot No. 1, Borough of
Paramus, 324 N.J. Super. 322, 336-40 (App. Div. 1999) (finding reasonable
alternative access is established where the requirements on N.J.S.A. 27:7-94(c)
are satisfied). Where such access is provided, the DOT satisfies its obligation
to provide reasonable alternative access under the Act. See Revocation of
6 The Court noted the DOT is also required to "design and install appropriate signage marking the alternative route to the property." Ibid. (citing N.J.S.A. 27:7-94(d)). A-4765-17T2 17 Access of Block No. 613, 224 N.J. at 67-69 (finding the DOT satisfied the
requirements of N.J.S.A. 27:7-94(c) and provided reasonable access under the
Act where the DOT "designed a route that [led] directly to" the plaintiff's
property and "provid[ed] direct access to the . . . property").
The undisputed facts establish that at all times between September 12,
2012 and November 16, 2015, the DOT provided plaintiff's property with
access—through the existing driveway and then through the shared driveway—
to and from Route 168. Plaintiff does not argue otherwise. Based on those facts,
we find, as did the motion court, the reasonable access required under the Act
was "completed and available for use" within the plain meaning of N.J.S.A.
27:7-94(d). As a matter of fact and law, the DOT therefore did not deprive
plaintiff of its right to reasonable access to Route 168 at any time relevant to its
inverse condemnation claim.
Plaintiff seeks refuge from the Act's plain language and requirements
defining the right to reasonable access, arguing that despite the DOT's provision
of uninterrupted access to its property over the existing driveway and shared
driveway, a taking without just compensation occurred because the DOT did not
convey title to the easement over AAH's property for more than three years.
Plaintiff claims that prior to the November 16, 2015 deed of easement, the DOT
A-4765-17T2 18 held plaintiff's title to the easement and, by doing so, took plaintiff's property
interest in reasonable access without just compensation.
Plaintiff's argument ignores that the Act requires only the provision of
reasonable access and imposes no obligation to provide reasonable access by
deeding title to an easement through which the reasonable access is provided.
Plaintiff's inverse condemnation claim and arguments on appeal are founded
solely on an alleged taking without compensation of its right to reasonable
access and, as we have explained, there was never a time plaintiff was denied
the reasonable access required under the Act.
The Act and Code make express provision for the use of an easement to
provide the required reasonable access, but they do not require transfer of title
to the easement to the property owner for the provision of reasonable access.
N.J.S.A. 27:7-94(c)(1); N.J.A.C. 16:47-11.4(c)(1). To the contrary, they
provide only that reasonable access for commercial properties must include ,
where appropriate, "the use of [an] . . . easement." Plaintiff does not point to
any provision of the Act requiring the DOT deliver a deed of easement to a
property owner, and it is not our role to write into the statute a requirement the
Legislature chose not to include. Lippman, 222 N.J. at 388.
A-4765-17T2 19 Plaintiff also does not claim the DOT's access plan, which plaintiff
accepted without objection, required delivery of a deed of easement to plaintiff
for the shared driveway on AAH's property. The access plan materials included
in the record show an easement for the shared driveway on AAH's property, but
the plan does not include any discernable requirement the DOT transfer title of
the easement to plaintiff. And plaintiff makes no claim the DOT breached the
conditions of the plan by failing to provide a deed to the easement. Additionally,
if plaintiff believed the plan failed to provide reasonable access because it did
not include a requirement the DOT deed the easement, it was required to object
to the plan when it was offered, on two separate occasions, the opportunity to
do so. See generally Marlton Plaza, 426 N.J. Super. at 348-50.
We therefore find no support in the law or the DOT's access plan for the
premise underlying plaintiff's claim—that its right to reasonable access included
an entitlement to delivery of a deed to the easement across AAH's property.
Moreover, plaintiff's claim it was deprived of reasonable access without the deed
because it lacked the legal authority to use the shared driveway is wholly
undermined by the record.
The DOT provided uninterrupted access to Route 168 through "use of" its
easement, which vested plaintiff with legal authority to use the shared driveway
A-4765-17T2 20 as the means of reasonable access. The easement makes express provision for
plaintiff's physical access to the shared driveway, authorizing its use for the
ingress and egress of plaintiff's "owners, successors and assigns, as well as
business invitees and guests." Plaintiff's claims it had no legal right to use the
easement; it was a trespasser while using the easement prior to the deed of
easement; and it had no legally available access to its property across the
easement are contradicted by the easement's plain language.
Plaintiff argues the DOT's easement was for the DOT's use and benefit
and therefore did not provide plaintiff with a legal right to use the shared
driveway. For the reasons noted, we reject the claim plaintiff did not have a
legal right to use the shared driveway pursuant to the DOT's easement that
expressly authorized that use. The Act required the DOT provide plaintiff with
"all necessary assistance . . . in establishing the alternative access," N.J.S.A.
27:7-94(d), authorized the DOT to "acquire access easements to provide
alternative access," N.J.S.A. 27:7-97, and allowed for the use of an easement for
"access onto" a State highway, N.J.S.A. 27:7-94(c)(1). That is precisely what
the DOT did here. It obtained an easement that provided plaintiff with the lawful
authority to use the shared driveway as the means of reasonable alternative
access to Route 168.
A-4765-17T2 21 Plaintiff also contends it lacked the legal authority to use the shared
driveway because the DOT had the authority to revoke the easement it obtained
from AAH. We reject the argument for two reasons. First, the DOT never
revoked the easement, and plaintiff was never deprived of the legal authority the
easement expressly provided. Second, DOT revocation of the easement would
have violated the access plan, which plaintiff had the legal authority to enforce,
and any interruption of the reasonable access required under the plan and the
Act would have given rise to a takings claim. See Marlton Plaza, 426 N.J. Super.
at 356. There were no such occurrences here, and even if there were, plaintiff
had a legally enforceable right to compel compliance with the access plan, which
required and permitted access through the easement.
We do not suggest the DOT is prohibited from transferring title to an
easement to a property owner that allows the owner's use of the easement for
reasonable alternative access across another's property, or that it might not, for
many reasons, be advisable for it to do so. In November 2015, the DOT chose
to do so here. We find, however, that under the circumstances presented,
transfer of title to the easement was not required for the reasonable access
defined by, and required under, the Act, and plaintiff's claimed right to a deed
A-4765-17T2 22 to the easement was not required under the Act or the access plan it accepted
without objection.
Plaintiff's property right to reasonable access is defined by State law, the
Act, Marlton Plaza, 426 N.J. Super. at 355-56, and, for the reasons we have
explained, the undisputed facts establish the DOT provided plaintiff with the
reasonable access prescribed by the statute. Where the DOT provides a property
owner with the requisite reasonable access in accordance with the Act by
obtaining an easement and allowing for its use by the property owner, and by
providing uninterrupted physical access to the property across the easement, the
property owner suffers no taking of its right to reasonable access, and its Fifth
Amendment rights are not implicated. 7 See Marlton Plaza, 426 N.J. Super. at
355-56. Plaintiff claims only a taking of his right to reasonable access, and he
suffered no taking of that right here.
Plaintiff's inverse condemnation claim is founded on a purported property
right—to a transfer by deed of title to the DOT's easement—that is not included
within the right to reasonable access defined and required by the Act, was not
required by the access plan, and for which plaintiff otherwise fails to identify
7 To provide reasonable access, the DOT must also satisfy other conditions not at issue here. See N.J.S.A. 27-7(c) and (d); N.J.A.C. 16:47-11.1 and -11.4. A-4765-17T2 23 any legal entitlement under State law. Lacking any legal entitlement to the
purported property right upon which its claim is exclusively based, plaintiff 's
taking claim fails as a matter of law. See Phillips, 524 U.S. at 164; see also
Singer v. Twp. of Princeton, 373 N.J. Super. 10, 21-22 (App. Div. 2004)
(determining "there is no cognizable property right" in feeding wild deer and
therefore "any regulatory or legislative limitation or qualification placed on that
right would not constitute an unlawful taking of property or otherwise impair a
protected property interest"). We therefore affirm the court's grant of summary
judgment on plaintiff's inverse condemnation claim based on the alleged taking
of its right to reasonable access without just compensation, and we affirm the
court's order denying plaintiff summary judgment.
Although unnecessary to our determination, we also observe that even
assuming plaintiff had a property interest in the deed of easement as a condition
of the DOT's provision of reasonable access, the record establishes that any
delay in delivering the deed prior to November 16, 2015, while uninterrupted
reasonable access was provided through the use of the DOT's easement, did not
cause plaintiff to suffer either a "permanent physical invasion of," or
"completely deprive [plaintiff] of all economically beneficial use of," its right
of reasonable access. Marlton Plaza, 426 N.J. Super. at 353 (quoting Lingle,
A-4765-17T2 24 544 U.S. at 538). There are similarly no facts supporting a conclusion that any
purported delay in the delivery of the deed constituted a regulatory taking of
plaintiff's right to reasonable access under the Penn Central standard. See Murr,
137 S. Ct. at 933.
Affirmed.
A-4765-17T2 25