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I/M/O Route 206 at New Amwell Road

322 N.J. Super. 345, 731 A.2d 56 (App. Div. 1999)

HIGHWAYS; ACCESS PERMITS—Even “grandfathered” highway access permits may be modified by the State and the modification need only leave commercially reasonable means for motorists to get to and from the State highway.

A gasoline station was located with two driveways fronting on a State highway. One driveway provided both ingress and egress to the property; the other provided egress only. There was also a third driveway leading to and from a secondary road. The Department of Transportation (DOT) advised the property owner that as part of improvements to the State highway, it would be closing one of the two driveways. The DOT also proposed to widen both the remaining State highway entrance (to make it more suitable for two-way traffic) and the driveway to the secondary road. The gasoline station operator was concerned that the DOT’s plan would not permit motorists to enter the station from one driveway, stop at the fueling area, and then exit from the second driveway back to the State highway. Instead, the operator contended that motorists entering the site from the sole remaining driveway on the State highway would have to make a U-turn on the station itself which it considered neither convenient nor safe. The station believed that it was not practical for customers wishing to return to the State highway to use the exit that remained on the secondary road, because the customers would have to cross two lanes of traffic on the secondary road in order to return to the highway. The “final agency decision,” based on all the documents and testimony that was presented at the final hearing, concluded that “while the proposed modification of access will effect a change to the circulation pattern within the site, the modification would not prevent the continued use of the site as a service station.” The Appellate Division pointed out that, generally, an agency regulation is “presumptively valid,” and, therefore, the party challenging it bears the burden of proving its invalidity. In this case, although the driveways in question were constructed prior to January 1, 1970 and were therefore presumed to have been constructed in accordance with an access permit, “grandfathered permits” are subject to the same regulations as actual permits. The service station argued that a grandfathered permit could not be modified, but the Court held otherwise. When access to a State highway is revoked, the DOT is responsible for providing all necessary assistance to the property owner in establishing an alternative access. That alternative access must be reasonable and under the relevant statute, reasonable alternative access for commercial property is “access onto any parallel or perpendicular street, highway, easement, service road or common driveway, which is of sufficient design to support commercial traffic to the business or use, and is so situated that motorist[s] have a convenient, direct, and well marked means of both reaching the business or use and returning to the highway.” In establishing regulations for modifications to existing state highway access, the DOT has reasonable discretion in developing methodology to fulfill its statutory obligation. Here, the Director of the DOT determined that the proposed modification of access would represent a substantial benefit and that it would enable the service station on the property to continue operation, although internal traffic circulation patterns might change. Based on the record before the Court, it would not conclude that the Director’s decision was an unreasonable exercise of agency discretion or that it was arbitrary or capricious.


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