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In the Matter of the Revocation of the Access of Block #1901, Lot #1, Borough of Paramus

324 N.J. Super. 322, 735 A.2d 594 (App. Div. 1999)

HIGHWAYS; ACCESS PERMITS—The Court rules that the terms, “direct,” “convenient,” and “sufficient design” may be interpreted by the Department of Transportation in a flexible way to accommodate its regulatory mission.

An office building faced a State highway and had two entries and two exits onto adjacent streets. One was onto a State highway; the other was onto a ramp from the State highway as part of an overall, extensive reconstruction of a major intersection, the Department of Transportation (DOT) undertook an examination of highway access locations in the area to determine compliance with present access standards. The examination acknowledged that although the office building’s highway access complied with applicable standards when constructed, it no longer did so. The primary problem was that both access points involved the passage of vehicles across and through a so called “acceleration lane.” State law allows the DOT, upon written notice and hearing, to revoke an access permit after determining that alternative access of a certain standard is available. Essentially, alternative access is assumed to exist if the property owner enjoys reasonable access to the general system of streets and highways. For property used for commercial purposes, the alternative access must be (1) “onto” a parallel or perpendicular street or highway; (2) of “sufficient design”; (3) convenient; (4) “direct”; and (5) “well-marked.” The alternate access plan proposed by the DOT complied with the statute, but provided no direct access to the property from either the State highway or the ramp. The access route to be created was designed to serve additional properties including a very large property that was expected to be redeveloped as a major shopping center. The owner of the office building contended that a portion of the new access road was inadequate for the expected traffic. The DOT, however, estimated that the new traffic to be generated (mostly from the retail development) would use approximately ninety-one percent of the capacity of the road during evening peak hours. On that basis, it concluded that the design was sufficient for the anticipated traffic load. The DOT also estimated that the additional time to traverse this route would be approximately 33 seconds. In conclusion, it claimed that the alternate access was “onto” a parallel or perpendicular street; that it was of sufficient design; and that it was convenient and direct and could be “well-marked.”

The property owner argued that the DOT engaged in improper informal “rule making” by applying dictionary definitions to statutory terms without formally adopting regulations embodying those definitions. The Court was unsympathetic. It held that in determining whether a property owner was being treated fairly, general terms such as “convenient,” “direct,” and “sufficient design” are probably necessary in order to avoid narrow distinctions which, in a given case, might lead to technical compliance with the Act, but nevertheless frustrate the fair treatment which the Legislature required. “It is fundamental that administrative regulations must ... be sufficiently definite to inform those subject to them as to what is required. At the same time, regulations must be flexible enough to accommodate the day-to-day changes in the area regulated… .” In addition, the Court felt that the terms in question were “general terms,” and that there was no indication that the Legislature had used them as terms of art. The Court then gave judicial deference for areas of expertise that are specifically assigned by the Legislature to an administrative agency. In doing so, it accepted the DOT testimony that the proposed new access plan constituted “reasonable alternative access.” With respect to specific elements, the property owner argued that the DOT had interpreted the statute to permit the proposed new access to be separated by both a perpendicular street and an additional parallel roadway. It claimed that the statute required the access to be either from a parallel roadway “or” from a perpendicular roadway. The Court refused to indulge an argument as to whether the “or” could sometimes mean “and.” As far as the Court was concerned, the statutory reference to access onto a parallel or perpendicular roadway did not disqualify the new access plan. As to whether the roadways were of “sufficient design,” the Court recognized that while there was room for debate as to the capacity of the ramp and the anticipated traffic volume, the DOT provided more than ample evidence to justify its conclusions. Further, the Court endorsed the DOT’s position that the term “direct” should not be read as requiring an immediate passage from a State highway onto an abutting property. In fact, the reference to “parallel” and “perpendicular ” roads in the statute indicated the likelihood that passage would be via such a perpendicular or parallel road and then onto the property in question. That being so, it was acceptable for the DOT to define the term “direct” consistent with a common dictionary definition to mean “relatively straight.” The Court also concluded that the term “convenient” referred to the entry of vehicles onto the property itself, rather than the means of reaching the property.

The office building property owner was upset about an agreement between the DOT and the shopping center developer by which the two exchanged certain parcels of land related to the reconstruction of the highway interchange and the surrounding areas. Pursuant to that agreement, the DOT assured the shopping center developer of direct access to the State highway. Consequently, the property owner argued that either it should have been permitted to participate in the negotiations, or the DOT should have negotiated with it in the same manner that it negotiated with the shopping center developer. It claimed that by closing its pre-existing access points, the DOT, in essence, used the office building as a pawn in its dealings with the shopping center developer. The Court refused to presume that the DOT acted for improper motives in negotiating with the shopping center developer. In fact, if the office building property owner had an objection to the agreement, it should have made a direct challenge. Further, the Court did not believe that the DOT was required to permit the office building owner to participate in the negotiations. Lastly, the ALJ refused to consider the office building owner’s alternative access plan. The Court agreed that the alternate plan should have been considered, but found that the refusal to do so did not constitute prejudicial error. The Court reviewed the office building property owner’s revised plan and held that it certainly would have been rejected. Consequently, it saw no harm in rejecting the plan at the appellate stage since the proposal would inevitably have been rejected by the ALJ.

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