STATE EX REL. COMMISSIONER OF TRANS. v. MARLTON PLAZA

No. A-2164-10T4.

44 A.3d 626 (2012)

426 N.J. Super. 337

STATE of New Jersey, by the COMMISSIONER OF TRANSPORTATION, Plaintiff-Appellant, v. MARLTON PLAZA ASSOCIATES, L.P., a Delaware Limited Partnership; and Marlton Plaza Associates II, L.P., a Delaware Limited Partnership, Defendants-Respondents, and Bank of America, National Association, successor to Bank of New England, National Association, by various mergers and name changes; Freedman and Lorry Retirement Plan, Freedman and Lorry P.C. Retirement Plan, Components Corporation of America Pension Trust; John Hancock Life Insurance Company (U.S.A.), successor to The Manufacturers Life Insurance Company (U.S.A.), successor to The Manufacturers Life Insurance Company; Lasalle Bank, N.A., as Trustee for Bear Stearns Commercial Securities, Inc.; Wells Fargo Bank, N.A., as Trustee for the benefit of the Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Corporation, Commercial Mortgage Pass-Through Certificates, Series 2006-LDP6; Marlton Crossing Maintenance Association, a New Jersey Non-Profit Organization; The TJX Companies, Inc., a Delaware Corporation doing business as T.J. Maxx; Carter's Retail, Inc., a Delaware Corporation, doing business as Carter's; Household Finance Corporation III, a Delaware Corporation; Lee Tsuy, doing business as Oriental Nail Salon; Supercuts, Inc., a Delaware Corporation, doing business as Supercuts; HomeGoods, Inc., a Delaware Corporation, doing business as HomeGoods; Tween Brands, Inc., a Delaware Corporation, doing business as Justice for Girls; Cosmetic Gallery, Inc., a New Jersey Corporation, doing business as Image Cosmetics; Burlington Coat Factory Warehouse of Montville, Inc., a New Jersey Corporation; Five Below, Inc., a Pennsylvania Corporation, doing business as Five Below; Difillippo X, Inc., a New Jersey Corporation, doing business as Saladworks; Blink Hair/Face/Body Inc., a New Jersey Corporation, doing business as Blink Spa; The Spaghetti House, Inc., a New Jersey Corporation, doing business as The Spaghetti House; TD Ameritrade, Inc., a New York Corporation, doing business as TD Waterhouse; PRG Group, Inc., a New Jersey Corporation, doing business as Fleet Feet of Marlton; Andreas Boutique, Inc., a New Jersey Corporation, doing business as Andrea's Boutique; Bob Timmins, doing business as Great Wraps; Donna's Bag, Inc., a New Jersey Corporation, doing business as Donna's Bag; Marlton Crossing Fitness, a New Jersey Limited Liability Company, doing business as Smart Bodies; The Little Gym International Inc., a Delaware Corporation, doing business as The Little Gym of Marlton; Giadon Corporation, a New Jersey Corporation, doing business as Scruples Hair Salon; Dish It Out Ltd., a New Jersey Corporation, doing business as Dish It Out; South Jersey Tanning and Spa, L.L.C., a New Jersey Limited Liability Company, doing business as Planet Beach Tanning Salon; Palz Foods, Inc., a New Jersey Corporation, doing business as Food for Thought; Circle Center Cleaners, a New Jersey Limited Liability Company; Scrubs & Beyond, L.L.C., a Delaware Limited Liability Company, doing business as Scrubs & Beyond; Guitar Center Stores, Inc., a Delaware Corporation, doing business as Music & Arts; Dana's Hallmark; Joe's Peking Duck House, Inc., a New Jersey Corporation; Noppakao of Marlton, Inc., a New Jersey Corporation, doing business as Thai Taste; Claudia Hughes, doing business as Smoothie King; Joyce Leslie, Inc.; Jay Madi, Inc., a New Jersey Corporation, doing business as Quizno's Subs; Pearle Vision, Inc., a Delaware Corporation; The Playing Field Too, a New Jersey Limited Liability Company, doing business as The Playing Field; Kaplan Educational Centers, Inc., a Delaware Corporation, doing business as Kaplan Learning Center; Jenny Craig Weight Lost Centre's, Inc., a Delaware Corporation; DSW Shoe Warehouse, Inc., a Missouri Corporation; Carryl Slobotkin, doing business as Jazz Unlimited Dance Studio; Champps of Marlton, Inc., a New Jersey Corporation, doing business as Champps American Restaurant; and Township of Evesham, in the County of Burlington, a Municipal Corporation of New Jersey, Defendants.

Superior Court of New Jersey, Appellate Division.

Decided June 8, 2012.


Attorney(s) appearing for the Case

David R. Patterson , Deputy Attorney General, argued the cause for appellant ( Jeffrey S. Chiesa , Attorney General, attorney; Melissa H. Raksa , Assistant Attorney General, of counsel; Nonee Lee Wagner , Deputy Attorney General, on the brief).

David B. Snyder argued the cause for respondents (Fox Rothschild LLP, Atlantic City, attorneys; Mr. Snyder , of counsel and on the brief).

Jamie M. Bennett argued the cause for amicus curiae New Jersey Coalition of Automotive Retailers, Inc. (Wilentz, Goldman & Spitzer, attorneys; Marvin Brauth , Woodbridge, of counsel and on the brief; Ms. Bennett , on the brief).

Drew K. Kapur argued the cause for amicus curiae Maple Shade Properties, LLC (Duane Morris LLP, attorneys; Mr. Kapur , of counsel and on the brief; Michael J. McCalley , on the brief).

Before Judges PARRILLO, SKILLMAN and HOFFMAN.


The opinion of the court was delivered by

PARRILLO, P.J.A.D.

At issue is the scope of damages awardable to condemnees at a just compensation trial where a highway improvement project involves both a modification of access and a condemnation.

Pursuant to its authority under the State Highway Access Management Act, N.J.S.A. 27:7-89 to -98 (Access Act), the New Jersey Department of Transportation (DOT) closed one of several access driveways leading...

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