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In re ADPP Enterprises, Inc.

A-355-00T1 (N.J. Super. App. Div. 2001) (Unpublished)

HIGHWAYS; ACCESS—A neighboring property owner along a common highway can’t require the Department of Transportation to hold a revocation hearing with respect to its neighbor’s access rights.

The New Jersey Department of Transportation (DOT) decided to improve a highway to enhance safety. It sent copies of its initial plans to the operator of a gasoline station and convenience store with access to the highway and to the gasoline station’s immediate neighbor, the owner of a major shopping center, which also had such access. Both letters advised that “existing highway access would be revoked but that alternative access, as laid out in the [enclosed] plans, would be provided.” The letter to the service station operator also added that one of its buildings would have to be demolished for a required easement. Each landowner was advised that it was entitled to an informal hearing. The gasoline station operator responded, and an informal hearing resulted in a reconsideration. That reconsideration concluded that “egress problems” were insurmountable at the gasoline station and therefore the property would be condemned. The gasoline station operator demanded a hearing before the administrative law judge but also requested an additional and informal hearing. The informal hearing took place, and the DOT rendered its final decision, which was that the gasoline station’s property would be condemned. Essentially, the gasoline station had objected to the DOT’s initial proposal that a shared driveway served both the gasoline station property and the shopping center next door. It was because of the gasoline station’s objection, that the DOT determined that the proposed shared driveway would not be able to service both properties. On appeal, the gasoline station argued that it was wrongfully denied the opportunity “to participate in the revocation hearing offering to [the shopping center owner] because, by revoking [the shopping center owner’s] access to the highway, the gasoline station’s property [was] directly affected.” According to the Court, the difficulty with that position was that the shopping center operator had “not requested a revocation hearing and, indeed, ha[d] expressed its satisfaction with the DOT’s plan.” Consequently, while the plan affected the gasoline station owner’s property, it could not be challenged in a “non-existent hearing.” Also, the gasoline station owner attempted to suggest “that the record supports the inference that DOT relied on information received from [the shopping center owner] critical of [the gasoline station owner’s] plans.” Consequently, it claimed that it was entitled to a rehearing to oppose that information. The Court rejected that argument because there was “no basis for it in the record.” Further, case law provided no justification for such a position. The “DOT’s original plan, which would have permitted access by both parties, was rejected by [the gasoline station owner] as unworkable. ... As a result, [the] condemnation of [the gasoline station owner’s] property was the only solution that made economic and engineering sense. There was no competition here regarding location of the planned acceleration lane,” and no evidence that the shopping center owner criticized anything proposed by the gasoline station owner.

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