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In Re Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007

417 N.J. Super. 115, 8 A.3d 820 (App. Div. 2010)

HIGHWAYS; ACCESS —Because there is an obvious public interest in the issuance of a highway access permit, the Department of Transportation should be liberal in allowing interested persons, including business competitors, to present information to the Department when the Department is considering the issuance of a highway access permit.

The owner of property along a New Jersey highway planned an expansion, including constructing new parking lots and driveways. The expansion required a permit from the New Jersey Department of Transportation (DOT) because the DOT regulates the number, placement, and configuration of driveways along State highways. To get it, the property owner needed a waiver from minimum frontage requirements. A neighbor sent a letter to the DOT claiming that the development would generate more than 200 additional peak-hour vehicle trips and therefore the application should be classified as one for a major access permit with planning review. The letter was supported by a twenty-three-page traffic impact assessment and by a ten-page supplemental report prepared by a traffic engineer. The DOT replied by letter, stating that the submission would not be considered because state law did not authorize direct, public input concerning applications for highway access permits. The DOT granted the permit application, and the neighbor appealed.

The property owner moved for dismissal of the appeal, arguing that the neighbor lacked standing. Under New Jersey’s liberal standing rules, anyone who is affected or aggrieved, in fact, by an administrative agency’s final action or decision is permitted to seek judicial review. Even competitors of a party who has received a governmental approval required for a proposed business operation have standing, as do owners of other properties in the vicinity. The neighbor was both and, therefore, had standing to appeal.

The Court observed that New Jersey law does not include any provisions regarding the procedures that the DOT must follow in considering an application for an access permit. Therefore, the Court found that the Administrative Procedure Act (APA) governed. The APA establishes two different types of procedural rights. First, a party who has a particularized property interest or is directly affected by a permitting decision is entitled to an adjudicatory hearing. Second, other interested persons are afforded a reasonable opportunity to submit data, views or arguments, orally or in writing, during any proceedings involving a permit decision.

The neighbor did not claim the right to an adjudicatory hearing. Rather, as an interested person, it had sought to have the DOT consider its data regarding the application. The APA does not include any definition for an interested person. Therefore, the Court looked to two previous reported cases in which courts found that certain parties were interested, but did not elaborate on the reasons. By comparing the neighbor to the parties in those cases, the Court held that the neighbor was similarly interested. Additionally, the Court explained that New Jersey has taken a liberal view as to the standing of businesses to participate in proceedings involving an application by a potential competitor, and pointed to the obvious public interest in the issuance of an access permit. Additionally, the Court noted that New Jersey has a generally expansive view of the obligation of State agencies to consider information submitted by parties opposed to the grant of a governmental approval. Because the DOT refused to consider the neighbor’s reports, the neighbor had been denied the reasonable opportunity afforded by state statute. For this reason, the Court reversed the issuance of the permit and remanded the issue to the DOT for further proceedings.

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