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Department of Transportation v. Fountains of Wayne

OAL Docket No. TRP 7052-98 (Department of Transportation 1999)

HIGHWAYS; ACCESS PERMITS—The Department of Transportation can revoke an access permit for a driveway in a deceleration lane but must propose alternate access that is convenient, direct, and well-marked, on a road parallel or perpendicular to the highway.

The Department of Transportation (DOT) sought to revoke an access permit for an existing driveway that had served a business for almost forty years. The proposed action stemmed from a concern that the driveway, presently accessible from a “shoulder” of the highway, fell within a proposed deceleration lane which was to be part of a major highway improvement project. In matters involving proposed highway access permit revocations, the burden of proof rests upon the DOT to demonstrate that its proposed closure of an existing access to commercial property is accompanied by reasonable alternative access. In particular, it must be demonstrated that the proposed alternative access “(a) is on or to any parallel or perpendicular street, etc., (b) is of sufficient design to support commercial traffic to the business or use, (c) and is so situated that motorists will have a: (1) convenient, (2) direct and (3) well-marked means of both reaching the business for use and returning to the highway.” The DOT proposed that the alternate access be from a side street that abutted the property and intersected the highway. With respect to the property in question, this would serve to eliminate the ability to turn directly into the property from the highway and would require all ingress and egress to and from the property to be from the side street. The DOT also proposed to close an existing driveway access from that same side street and to relocate it further north because the DOT believed the existing driveway was too close to the intersection of the deceleration lane and the side street. The DOT offered expert testimony, including testimony regarding traffic counts, and with respect to whether its proposed alternative was “convenient.” The testimony tended to support the DOT’s position that the proposed alternative access met the statutory requirements. The property owner offered testimony that deliveries were made by tractor trailer on an average of more than three times per week and that, if the DOT’s plan was implemented, safe entry and exit from the property by those tractor trailers would be impaired. In addition, during the Christmas season, large tractor trailers would not be able to both enter and leave the property because of the manner in which the parking was configured. An expert testifying on behalf of the property owner disputed that the highway’s “shoulder” was being converted into a “deceleration lane.” Instead, the expert testified that the proposed plan created an “auxiliary” lane. The expert’s testimony was also that a 50-55 foot long tractor trailer could not exit the property without having to back out onto the side street, thereby substantially interfering with existing traffic both on the site and in the busy roadway. In short, according to the property owner’s expert, the DOT plan would not meet the statutory and regulatory requirement that the alternative access be of “sufficient design.” To rebut the testimony offered by the property owner, the DOT claimed that the “shoulder” was a “deceleration” lane because all traffic using that lane would have to exit onto the side road. Moreover, the DOT’s witness testified that with the property configured in its present condition, it was very, very difficult for trailers to make the turns which the property owner described as the present method of egress by those vehicles. The property owner was then allowed to offer further rebuttal testimony to the effect that it never observed, nor even heard of, any problem with respect to tractor trailers having any difficulty exiting onto the side road or maneuvering on the site itself. An “auxiliary lane” is different than an “acceleration” lane, which is just long enough for vehicles to reach highway speed before they merge into traffic. On the other hand, an auxiliary lane can be several thousand feet or a mile in length. The lane shown on the DOT map was very short, and consequently the Administrative Law Judge (ALJ) held that it was not intended to be an auxiliary lane. Any such designation on the DOT’s map was an error. According to the ALJ, there are two traffic engineering components to proving sufficiency of design of an alternative ingress route. “The first is the ability of the roadway to handle the anticipated volume of traffic and the second is the ability of the driveway to handle the anticipated volume of traffic.” The ALJ held that both the side road and the driveway had sufficient capacity, even during peak holiday shopping seasons. “Convenience” is determined by how well an alternative ingress fits with the site. According to the ALJ, there would be no effective change in the “convenience” experienced by customers. “Any conflict that currently exists between vehicles and pedestrians would still exist after the existing direct ingress is revoked.” The DOT offered computer-generated graphics to show how tractor trailers could enter and leave the property. From those graphics, it was clear that tractor trailers would need to back up a maximum distance of 150 feet, but the ALJ did not find this to be an insurmountable problem. “While backing up a truck in order to prepare to exit the site is a cause for concern, it is and can be limited because, generally these deliveries are made when there are few people on site.” In conclusion, the ALJ held that the DOT had met its burden of proof with respect to establishing the essential elements needed to support revocation of the access permits. Moreover, the ALJ held that the property owner easily could accommodate the ability of large vehicles to make a turn on the property either by reducing the number of outside display items and/or by removing some parking spaces. “It seems to me that those small steps are not burdensome in light of the interest of the public in eliminating a potential safety problem… .”


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