Lima & Sons, Inc. v. Borough of Ramsey

• Decision Date: 05 January 1994
• Citation: 635 A.2d 1007,269 N.J.Super. 469
• Parties: LIMA & SONS, INC., a New Jersey Corporation, Plaintiff-Appellant, v. BOROUGH OF RAMSEY, John Doe, James Doe, Jane Doe, and Richard Roe, Individually and as Members of the Governing Body of the Borough of Ramsey, Defendants-Respondents, and New Jersey Department of Transportation, Belezza Construction Co., Inc., and James Brennan, Individually and as Ramsey Borough Attorney, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 469

269 N.J.Super. 469

635 A.2d 1007

LIMA & SONS, INC., a New Jersey Corporation, Plaintiff-Appellant, v. BOROUGH OF RAMSEY, John Doe, James Doe, Jane Doe, and Richard Roe, Individually and as Members of the Governing Body of the Borough of Ramsey Defendants-Respondents and New Jersey Department of Transportation, Belezza Construction Co., Inc., and James Brennan Individually and as Ramsey Borough Attorney, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Nov. 16, 1993.

Decided Jan. 5, 1994.

Kurt E. Johnson, Westwood, argued the cause for appellant.

Matthew S. Rogers, Hackensack, argued the cause for respondents (Contant, Scherby & Atkins, attorneys; Mr. Rogers, of counsel; Andrew T. Fede, on the joint brief).

Frank N. Yurasko, Somerville, argued the cause for respondents.

Before Judges PRESSLER, DREIER and KLEINER.

The opinion of the court was delivered by

KLEINER, J.S.C. (temporarily assigned).

Plaintiff Lima and Sons, Inc. appeals an order dismissing its complaint which sought (1) a permanent injunction to prevent its loss of access to an abutting public street, (2) compensatory and punitive damages attributed to defendant Borough of Ramsey's alleged violation of its rights under the federal and state constitutions and under 42 U.S.C.A. § 1983, and (3) alternatively an order either directing defendant Ramsey to initiate a condemnation proceeding or requiring Ramsey to construct a driveway or curb cut so as to facilitate plaintiff's access to an abutting roadway.

Lima & Sons, Inc. owns real property, which is zoned for commercial use, consisting of two adjacent lots in the Boroughs of Ramsey and Upper Saddle River, commonly known as 319 Nottingham Road. The property is located at the northwest corner of what was formerly the intersection of State Highway Route 17 and Nottingham Road in Ramsey. Lima operates a retail boat dealership on this property. Although one side of the property abuts Nottingham Road, the main frontage is on Route 17 and the building on the property faces Route 17. The neighborhood along Nottingham Road is residential.

Prior to October 1987, Nottingham Road ran through a residential area and terminated at Route 17. Vehicles travelling on Nottingham Road could use that street for access to Route 17 south, and vehicles could exit Route 17 south at the Nottingham Road exit.

At some point in time not made clear by the record, the New Jersey Department of Transportation (D.O.T.) contracted for the construction of an overpass to carry traffic on Lake Street, which is north of Nottingham Road, over Route 17 into the Borough of Ramsey. One question which arose in the design of the Lake Street project was whether to continue to allow access to Route 17 from Nottingham Road. After soliciting public input, Ramsey decided that Nottingham Road would end with a cul-de-sac before its intersection with Route 17, thereby discontinuing access from Nottingham Road to Route 17, and curbing would be constructed for the first time along Nottingham Road. ¹ On October 21, 1987, D.O.T. notified the Borough of Ramsey that the intersection of Nottingham Road at Route 17 would be permanently closed. Ramsey passed a resolution on March 9, 1988 supporting the closing of the intersection.

In October 1987, two sets of temporary barricades were set up which cut off access to Route 17 from Nottingham Road. The D.O.T. erected a set directly on Route 17, and Ramsey pursuant to a resolution installed a second set about 150 feet west of the D.O.T. barricade. Prior to October 1987, there was a fence with a gate along plaintiff's Nottingham Road property line. According to plaintiff, when the two sets of barricades were erected by the D.O.T. and Ramsey, their gate was situated between the barricades, thus closing off plaintiff's access to Nottingham Road. Plaintiff therefore moved the gate in its fence to the west of the Ramsey barricade and thereafter continued using the gate for access to Nottingham Road, although it could not use Nottingham Road for access to Route 17.

While the project was still in the design stage, plaintiff communicated on December 9, 1987 with the D.O.T. to request that the project design include a curb cut to allow access from its property onto Nottingham Road. The D.O.T. responded on January 5, 1988. It advised plaintiff that the D.O.T. had concluded on October 21, 1987 that the intersection of Nottingham Road at Route 17 would be permanently closed. It also advised plaintiff that it had no objection to including a curb cut as requested in the project design, but advised that it would abide by the decision of Ramsey, since the D.O.T. had no jurisdiction over Nottingham Road. Ramsey, apparently as a result of informal inquiries, discussed the concept of access from plaintiff's property to Nottingham Road in executive session on April 16, 1989, and concluded it still opposed access onto Nottingham Road from plaintiff's property.

Plaintiff used the gate in its fence for access to Nottingham Road from October 1987 until November 1989, when the D.O.T. finally constructed the cul-de-sac and curbing. This curbing prevented further use of the gate. Plaintiff has been able to continue business operations by virtue of its direct access to Route 17, but it contends that the denial of access to Nottingham Road has created significant inconvenience as well as creating an economic impact on the value of its property.

After initiation of this suit, the matter was pretried, and a bifurcated non-jury trial without testimony was scheduled to consider separately the issues of liability and damages. On the day of trial, the court allowed opening statements but then considered the matter summarily. Two maps were admitted into evidence. Plaintiff argued that since Ramsey did not pass any ordinance or resolution specifically restricting plaintiff's access to Nottingham Road, Ramsey's actions preventing plaintiff access to the road were illegal and violated its civil rights. In response, Ramsey contended that Lima never had an absolute right of access to Nottingham Road and therefore there was no need for an ordinance to take away any existent access. The trial judge then concluded the proceedings allowing the parties one week to supplement their arguments. No supplements were filed.

The trial judge thereafter rendered an oral decision and dismissed plaintiff's complaint. ² He determined that the actions taken by Ramsey were not arbitrary, capricious, or unreasonable and that Lima had suffered no compensable damages. The trial judge found as a matter of law that the denial of secondary access to a municipal roadway was a proper exercise of Ramsey's available police power since plaintiff still maintained reasonable access to Route 17.

On appeal, plaintiff argues: (1) the trial court's summary disposition of the matter was an abuse of its discretion; (2) plaintiff has an absolute right of access to Nottingham Road, or alternatively, has a right to reasonable access to Nottingham Road; (3) plaintiff's access was taken without due process of law; (4) the respondent Borough of Ramsey did not vacate the closed portion of Nottingham Road; (5) plaintiff has a statutory right to move and continue using its driveway onto Nottingham Road; (6) 42 U.S.C.A. § 1983 is applicable to its claim against Ramsey.

We initially consider whether a property owner has an absolute right of access to all abutting highways or merely has a right of reasonable access to the general system of streets and highways. In support of its contention that it has an absolute right of access, plaintiff relies on Antonelli v. Planning Bd. of Waldwick, 77 N.J.Super. 119, 123, 185 A.2d 431 (Law Div.1962), rev'd on other grounds, 79 N.J.Super. 433, 191 A.2d 788 (App.Div.1963), where the trial court stated:

There is no question that a property owner has a right of ingress or egress upon streets on which the property fronts. The question here is whether such right exists on a street where there is another way to secure entrance.

From the examination of the authorities, the court has come to the conclusion that an owner has a right to ingress and egress on all streets on which his property faces. A municipality can regulate ingress and egress to one street where another exists, under the police power of the municipality, and then only in such unusual circumstances as may by definite proof be shown to require the exercise of such power.

However, it is generally accepted that a "property owner is not entitled to access to his land at every point between it and the highway but only to 'free and convenient access to his property and the improvements on it.' " High Horizons Dev. Co. v. Dep't of Transp., 120 N.J. 40, 48, 575 A.2d 1360 (1990) (quoting Mueller v. N.J. Highway Auth., 59 N.J.Super. 583, 595, 158 A.2d 343 (App.Div.1960)). The pronouncement in Antonelli must be read in conjunction with High Horizons Dev. Co., supra. See also Comm'r of Transp. v. Nat'l Amusements, Inc., 244 N.J.Super. 219, 581 A.2d 1353 (App.Div.1990), certif. denied, 127 N.J. 327, 604 A.2d 601 (1991); State v. Charles Investment Corp., 143 N.J.Super. 541, 363 A.2d 944 (Law Div.1976), aff'd o.b., 151 N.J.Super. 14, 376 A.2d 534 (App.Div.1977), aff'd o.b., 76 N.J. 86, 385 A.2d 1227 (1978).

In State by Comm'r of Transp. v. Van Nortwick, 260 N.J.Super. 555, 558, 617 A.2d 284 (App.Div.1992), we recently recited the principles of law regarding compensable injury to a landowner's right of access:

Access to a public highway is a property right and its deprivation requires just compensation. Mueller v. N.J. Highway Auth., 59 N.J.Super. 583 (App.Div.1960). On the other hand, "the property owner is not entitled to access to his land at every point between it and the highway but only to 'free and convenient access to his property and the improvements on it.' " Id. at 595 . Where, by virtue of state action, access is limited but remains reasonable,...