Imo the Revocation of the Access of Block 613, Lots 4 & 5 , 224 N.J. 53 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In re Revocation of the Access of Block #613 (A-102-13) (074011)
Argued September 17, 2015 -- Decided January 14, 2016
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers the standard governing revocation of direct access from a state highway
to property used for commercial purposes pursuant to the State Highway Access Management Act (the Act),
N.J.S.A. 27:7-89 to -98, and the State Highway Access Management Code (Access Code), N.J.A.C. 16:47-
3.5(e)(11) and -3.8(k)(2).
Arielle Realty, L.L.C. (Arielle) is the owner of a three-tenant commercial property located on the
northbound side of Route 166 in Toms River. The property is located on the corner of West Gateway and Route 166
with direct access to both streets. Eight parking spaces in the front of the building are located in a right of way
acquired by the Department of Transportation (DOT) in the early 1970s. Currently, a motorist driving north or
south along Route 166 has direct access to the eight parking spaces in the front of the building. A motorist exiting
one of those spaces must back into the northbound lane of Route 166. Eleven other parking spaces are accessed
from West Gateway. A motorist driving north or south on Route 166 may also turn onto West Gateway to access
the remaining eleven parking spaces.
By an April 1, 2009 letter, the DOT informed Arielle that access to its property from Route 166 would be
eliminated because the DOT intended to construct an additional northbound travel lane. The DOT also advised
Arielle that it intended to construct a median to separate northbound and southbound traffic on Route 166. This
design would eliminate the eight parking spaces in the front of the building and prevent direct access to Arielle’s
property for motorists traveling south on Route 166 because a motorist would no longer be able to make a left-hand
turn onto West Gateway. The DOT design plan provides for an alternate route to West Gateway that traverses
approximately three-quarters of a mile.
Arielle notified DOT of its objection to the modification of its access and requested a hearing. At a May
2009 meeting, Arielle outlined the consequences of the plan, including the reduced parking, the circuitous route
proposed for access by some patrons, the prospect of loss of existing tenants, and the anticipated loss of value of the
property. The DOT responded that the proposed project had been designed to increase safety and traffic movement
in the area and noted that it had considered and rejected several alternative designs, including a 2007 proposal that
would have permitted motorists traveling south on Route 166 to make a left turn onto West Gateway. By a June 9,
2009 letter, the Office of Access and Design (OAD) of the DOT advised Arielle that safety concerns associated with
cars backing out of parking spaces onto Route 166 and the low clearance from the West Gateway unsignalized
intersection prevented modification of the design. The OAD determined that these conditions did not conform to the
Access Code, specifically N.J.A.C. 16:47-3.5(e)(11) and -3.8(k)(2).
Arielle appealed and the matter was referred to the Office of Administrative Law (OAL). At a hearing
before an Administrative Law Judge (ALJ), the DOT outlined the purpose of the project, the various designs
developed, the factors it considered in determining the final design, and its reasons for eliminating direct access
from Route 166 to the Arielle property. The ALJ concluded in her Initial Decision that the DOT plan satisfied all of
the applicable legal requirements for revocation of Arielle’s access to Route 166. The DOT Commissioner
(Commissioner) issued a final decision that adopted the ALJ’s findings of fact, concluding that the DOT plan
provided Arielle with reasonable access to the State’s system of roads and highways.
The Appellate Division affirmed the Commissioner’s final decision in an unreported opinion. The
appellate panel determined that the DOT met its burden of proof that the alternative access plan was not only
reasonable but also provided a convenient, direct, and well-marked means to enter the business and to return to the
state road. Accordingly, the Appellate Division determined that the property owner failed to overcome the
presumption of validity accorded to the DOT design.
The Supreme Court granted Arielle’s petition for certification. 218 N.J. 273 (2014).
HELD: The record fully supports that the Department of Transportation satisfied its burden of proof to establish
that the revocation of direct access from Route 166 to commercial property belonging to Arielle Realty, L.L.C.
conforms with the State Highway Access Management Act and the State Highway Access Management Code.
1. In 1989, the Legislature adopted the State Highway Access Management Act, N.J.S.A. 27:7-89 to -98. The Act
is designed to provide a statutory and regulatory framework for managing access to state highways. To that end, the
Legislature contemplated the classification of state highways and the development of standards for the design and
location of driveways, intersections, and interchanges, and directed the Commissioner to adopt a highway
management access code. N.J.S.A. 27:7-91. The Act also addresses the standards for revocation or modification of
existing access. N.J.S.A. 27:7-94. Any access to a state highway in existence prior to the effective date of the Act
was deemed conforming to the terms of the Act and the Access Code. N.J.S.A. 27:7-92(c). The Act also permits
the Commissioner to revoke access to a state highway “after determining that alternative access is available which
meets the standards” for the property based on its use or zoning. N.J.S.A. 27:7-94(a). An access permit, however,
may not be revoked without written notice and a hearing. (pp. 12-19)
2. As the owner of property situated along a state highway, Arielle has a right of reasonable access to Route 166.
N.J.S.A. 27:7-90(e). N.J.S.A. 27:7-94(c)(1) establishes the standard for reasonable access to a state highway for
property zoned or used for commercial purposes, when the Commissioner revokes or modifies access to a state
highway. There are two criteria for reasonable access. First, there must be direct access to a street, highway, or
service road; second, if improvements alter the route that patrons must take to gain access to the commercial
property, the new route must be able to “support the traffic to the business” and must be convenient, direct, and
well-marked. In re Bergen County Parkway 17 Associates, 324 N.J. Super. 322, 330 (App. Div. 1999). In addition,
the DOT must design and install appropriate signage marking the alternative route to the property. N.J.S.A. 27:7-
94(d). The DOT plan for the segment of Route 166 that affects Arielle’s property was designed to increase the
capacity of the roadway and to improve the safety and efficiency of the roadway. Eliminating the parking spaces
along Route 166 permits the DOT to add an additional travel lane, thereby increasing the capacity of the roadway
and curing the safety concerns caused by vehicles backing into the travel lane. Installation of a median also furthers
the primary goals of the project by minimizing turns by southbound motorists that require crossing oncoming traffic.
The DOT has designed a route that will lead directly to Arielle’s property, will install signage directing patrons to
the site, and will install a traffic signal to permit motorists to safely cross Route 166, turn onto West Gateway, and
enter Arielle’s property. As such, the DOT plan fully satisfies the statutory and regulatory requirements for access
to the State’s system of highways. (pp. 19-23)
3. The record fully supports that the DOT satisfied its burden of proof to establish that the revocation of direct
access from Route 166 to Arielle’s property conforms with N.J.S.A. 27:7-94(a) and N.J.A.C. 16:47-4.33(d)(2)(i). In
other words, the DOT demonstrated that its alternative access plan provided not only reasonable access to Route 166
but also a convenient, direct, and well-marked means of reaching the commercial property and returning to the
highway. In advancing an alternative design for the entire project that furthered its individual commercial ends
rather than the DOT’s overarching goal of providing reasonable access to the State’s system of roads and highways,
the property owner failed to overcome the presumption of validity afforded to the DOT plan. (p. 23)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON
join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
2
SUPREME COURT OF NEW JERSEY
A-102 September Term 2013
074011
IN THE MATTER OF THE
REVOCATION OF THE ACCESS OF
BLOCK #613, LOTS #4 & 5,
TOWNSHIP OF TOMS RIVER, OCEAN
COUNTY (ARIELLE REALTY, LLC).
ARIELLE REALTY, LLC,
Appellant.
Argued September 17, 2015 – Decided January 14, 2016
On certification to the Superior Court,
Appellate Division.
Harry Jay Levin argued the cause for
appellant Arielle Realty, LLC (Levin
Cyphers, attorneys; Mr. Levin and Colleen
Flynn Cyphers, on the brief).
Wanda Y. Ortiz, Deputy Attorney General,
argued the cause for respondent State of New
Jersey Commissioner of Transportation (John
J. Hoffman; Acting Attorney General of New
Jersey, attorney; Lewis A. Scheindlin,
Assistant Attorney General, of counsel;
David R. Patterson, Deputy Attorney General,
on the letter brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In this appeal, we consider the standard governing
revocation of direct access from a state highway to property
used for commercial purposes pursuant to the State Highway
1
Access Management Act (the Act), N.J.S.A. 27:7-89 to -98, and
the State Highway Access Management Code (Access Code), N.J.A.C.
16:47-3.5(e)(11) and -3.8(k)(2). The issue is presented in the
context of a challenge to a New Jersey Department of
Transportation (DOT) design to widen a state roadway that
involved elimination of eight parking spaces of a commercial
building accessed directly from a state highway and installation
of a median.
In response to an objection by the affected property owner,
a hearing was conducted by the Office of Administrative Law
(OAL) at which the DOT explained the general and specific
reasons for the design it proposed and the property owner
adduced expert opinion that argued in favor of an earlier
proposed design that had been rejected by the DOT. Following a
comparative analysis of the various design proposals, the DOT
Commissioner (Commissioner) concluded that the proposed design
challenged by the property owner best satisfied the statutory
and regulatory goals for access by the public to this segment of
the state system of roads and highways.
In affirming the Commissioner’s decision, the Appellate
Division determined that the DOT met its burden of proof that
the alternative access plan was not only reasonable but also
provided a convenient, direct, and well-marked means to enter
the business and to return to the state road. Accordingly, the
2
Appellate Division determined that the property owner failed to
overcome the presumption of validity accorded to the DOT design.
We affirm the judgment of the Appellate Division. We also
take this opportunity to underscore that any design proposed by
the DOT that restricts or revokes direct access to a commercial
property from a state highway is presumed valid. If a property
owner challenges the proposal, however, the DOT bears the burden
of proving that the alternative access to the commercial
property is reasonable and that it provides a convenient,
direct, and well-marked route to enter the property and to
return to the state highway. The Commissioner must also compare
any alternative plan advanced by the property owner with the
plan advanced by the agency and explain why the agency proposal
better advances the statutory and regulatory scheme. Finally,
although the Commissioner must engage in a comparative analysis
of the features of the DOT’s and the property owner’s access
plans, the Commissioner’s analysis is ultimately aimed at
selecting the plan that will best achieve the overarching goal
of providing reasonable access to the state’s system of highways
rather than maximizing the business interests of a particular
property owner.
I.
A.
3
Arielle Realty, L.L.C. (Arielle) is the owner of a three-
tenant commercial property located on the northbound side of
Route 166 in Toms River. An appliance store, a stained glass
gallery, and a healthcare business currently occupy the
premises.
The property is located on the corner of West Gateway and
Route 166 with direct access to both streets. Eight parking
spaces in the front of the building are located in a right of
way acquired by the DOT in the early 1970s. Currently, a
motorist driving north or south along Route 166 has direct
access to the eight parking spaces in the front of the building.
A motorist exiting one of those spaces must back into the
northbound lane of Route 166. Eleven other parking spaces are
accessed from West Gateway. A motorist driving north or south
on Route 166 may also turn onto West Gateway to access the
remaining eleven parking spaces. Route 166 serves as a
connection between State Highway 37 and the downtown center of
Toms River.
By an April 1, 2009 letter, the DOT informed Arielle that
access to its property from Route 166 would be eliminated
because the DOT intended to construct an additional northbound
travel lane. The DOT also advised Arielle that it intended to
construct a median to separate northbound and southbound traffic
on Route 166. This design would eliminate the eight parking
4
spaces in the front of the building. The plan would also
prevent direct access to Arielle’s property for motorists
traveling south on Route 166 because a motorist would no longer
be able to make a left-hand turn onto West Gateway. According
to the DOT design plan, a southbound motorist on Route 166, who
intends to access Arielle’s property, would be required to drive
past the property, turn right onto a local road, turn right onto
another local road, turn left onto Route 166 at an intersection
controlled by a traffic signal, and turn right onto West
Gateway. This alternative route traverses approximately three-
quarters of a mile.1
B.
Upon receipt of the notice, Arielle notified DOT of its
objection to the modification of its access and requested a
hearing. At a May 2009 meeting, Arielle outlined the
consequences of the plan, including the reduced parking, the
circuitous route proposed for access by some patrons, the
1 The DOT design would permit exiting northbound patrons of
Arielle’s tenants to turn right onto Route 166 from West Gateway.
Southbound exiting motorists could either 1) turn right onto Route
166 northbound, enter a ramp for Route 37 eastbound, exit Route 37
onto a connecting street, and use a residential street or streets
to reach their destination, 2) travel on West Gateway away from
Route 166 and south through residential streets, or 3) turn right
onto Route 166 northbound, enter a left-turning lane, cross Route
37, use a jughandle in the northwest corner to reverse direction
on Route 166, and again cross Route 37.
5
prospect of loss of existing tenants, and the anticipated loss
of value of the property. The DOT responded that the proposed
project had been designed to increase safety and traffic
movement in the area and noted that it had considered and
rejected several alternative designs during development of the
project design.
By a June 9, 2009 letter, the Office of Access and Design
(OAD) of the DOT advised Arielle that two factors prevented
modification of the design. The OAD remarked that motorists
using the parking spaces along Route 166 had to back into a
travel lane to leave the property. The existing conditions
raised safety concerns, impeded traffic flow, and did not
conform to the Access Code, specifically N.J.A.C. 16:47-
3.5(e)(11) and -3.8(k)(2). Moreover, the clearance from the
West Gateway unsignalized intersection was less than the
required 50 feet. Arielle appealed and the matter was referred
to the OAL.
At a hearing before an Administrative Law Judge (ALJ), the
DOT outlined the purpose of the project, the various designs
developed, the factors it considered in determining the final
design, and its reasons for eliminating direct access from Route
166 to the Arielle property. Brian Mausert, a civil engineer
employed by a private engineering firm, testified on behalf of
the DOT as a fact and expert witness. He noted that Arielle’s
6
current use and roadway access encroached on the state’s
existing right of way and violated the Access Code. Mausert
opined that the proposed access plan to Arielle’s property was
“convenient, direct, and well-marked,” and complied with the
Access Code. He also opined that the DOT plan would be safer
than the present access arrangement because it would reduce the
number of total traffic points of conflict by eliminating turns
across traffic by southbound motorists and motorists backing
into the northbound lane to exit the site. Mausert stated that
the route identified for southbound patrons to access Arielle’s
property would be safe because all traffic movement proximate to
the Arielle site would occur under a controlled condition,
namely, the traffic signal at the intersection.
Mausert also testified that an alternative design developed
in 2007 would have permitted motorists traveling south on Route
166 to make a left turn onto West Gateway. He stated that the
2007 design was rejected for many reasons, including opposition
from residents who lived on and near West Gateway and the need
to condemn Arielle’s property to effectuate the design.
Arielle presented the testimony of John N. Ernst, an expert
in civil engineering, site development including highway access,
and municipal zoning and parking requirements. Ernst testified
that the Arielle property should have twenty-nine parking spaces
and that the remaining eleven parking spaces were not sufficient
7
to support the commercial use of the property. Ernst conceded
that eliminating the parking spaces along Route 166 was a
reasonable step to enhance safety along the corridor. However,
he opined that the circuitous access route for southbound
patrons was unreasonable. Ernst maintained that using West
Gateway as the primary access for the property contravened the
Access Code. Finally, Ernst contended that the earlier
proposals, particularly the 2007 proposed design, better
addressed the DOT’s safety concerns than the current plan.
Arielle also presented testimony from John Rea, a traffic
engineer. He opined that the DOT plan did not satisfactorily
address traffic safety. In fact, he concluded that the design
plan was unreasonable. Rea stated that the prior proposals,
including the 2007 proposal favored by Arielle, were “a more
reasonable and more conventional engineering solution[.]” He
criticized the placement selected for the traffic control device
on Route 166 because it created offsetting T-intersections that
violated certain legal and engineering standards.
The ALJ concluded in her Initial Decision that the DOT bore
the burden of proof regarding the reasonableness of its access
plan for Arielle, and that the DOT plan satisfied all of the
applicable legal requirements for revocation of Arielle’s access
to Route 166. The ALJ noted that Arielle attempted to
concentrate its objections on the elimination of eight parking
8
spaces, yet she concluded that its primary complaint focused on
the installation of the median to separate the travel lanes.
The ALJ recognized that the existing parking along Route 166 was
located in a DOT right of way and violated the Access Code, and
found that revocation of access from Route 166 cured those
problems. The ALJ found that access from West Gateway was
direct and convenient and concluded that the revised access plan
was direct with appropriate signage.
The Commissioner issued a final decision that adopted the
ALJ’s findings of fact. The Commissioner determined that the
DOT plan provided Arielle with reasonable access to the State’s
system of roads and highways. The Commissioner rejected
Arielle’s contention that he should evaluate such factors as
safety, changed traffic patterns on local roadways, and earlier
designs that the DOT considered, finding that those factors “are
not part of the standards set forth in the Access Act and the
Access Code, [and] are not relevant in determining whether the
proposed alternative access satisfies the statutory and
regulatory requirements.” The Commissioner also concluded that
the loss of the left-turn access from southbound Route 166 due
to the installation of the median was the core of Arielle’s
complaint.
C.
9
The Appellate Division affirmed the Commissioner’s final
decision in an unreported opinion. The panel determined that
the Commissioner’s decision was supported by substantial
credible evidence in the record. The appellate panel observed
that “[i]t is irrelevant that other plans might also be
reasonable or safe.” Rather, under the Act and Access Code, the
Commissioner is vested with the authority to select a plan that
comports with the statutory and regulatory criteria. The
appellate panel also found that the ALJ properly assigned the
burden of proof regarding the reasonableness of the plan to the
DOT and that the Commissioner re-evaluated the evidence in
accordance with the correct principles of law.
The Appellate Division also concluded that Arielle’s
objection to the access plan was founded in part on the
construction of a median that would eliminate left-turn access
to its property from southbound Route 166. The panel noted,
however, that neither the ALJ nor the Commissioner based their
decisions on this element of the plan. Rather, their decisions
focused on whether the DOT plan provided reasonable access to
Arielle’s property.
This Court granted Arielle’s petition for certification.
In re Revocation of the Access of Block #613, 218 N.J. 273
(2014).
II.
10
Arielle asserts that the DOT access plan “woefully” fails
to provide reasonable alternative access to its property.
Arielle contends that the elimination of all parking spaces
along Route 166 and restricted access from Route 166 affects the
commercial viability of its property and the businesses located
at the site. Furthermore, Arielle contends that any access plan
must account for the use of the property affected by the plan
and “the expected traffic plan.”
Arielle insists that the proposed route for southbound
motorists is neither reasonable nor direct. It contends that it
proposed a more reasonable alternative. More importantly,
Arielle asserts that any consideration of the reasonableness of
an access plan is a comparative process. Therefore, Arielle
contends that the Commissioner’s determination, which does not
reflect consideration of other access plans, is inherently
flawed and cannot be sustained. Finally, Arielle argues that it
demonstrated that the alternative access plan it advanced, which
requires the DOT to acquire its property, is a “more reasonable
alternative.”
The DOT responds that the revocation of access from Route
166 to Arielle’s property satisfies the statutory standards for
reasonable alternative access and that the Commissioner’s
decision should be affirmed. The DOT emphasizes that the
existing access to Arielle’s property does not conform to the
11
Access Code in several respects and the modification of access
required by its project design resolves all of the safety
concerns caused by the existing access from Route 166. The DOT
contends that Arielle’s objections to the revocation of one of
two access points to its property is a thinly disguised
objection to the construction of the median.
III.
In 1989, the Legislature adopted the State Highway Access
Management Act, N.J.S.A. 27:7-89 to -98. The Act is designed to
provide a statutory and regulatory framework for managing access
to state highways. Assembly Appropriations Comm., Statement to
S. No. 772 (Assembly Statement) (1988). The Legislature
declared that the State has a public responsibility “to manage
and maintain effectively each highway within the State highway
system[,]” N.J.S.A. 27:7-90(c), and recognized that every owner
of property that abuts a public highway has “a right of
reasonable access to the general system of streets and highways
in the State,” N.J.S.A. 27:7-90(e), but acknowledged that
“unrestricted access to State highways can impair the purpose of
the State highway system[,]” N.J.S.A. 27:7-90(d). To that end,
the Legislature contemplated the classification of state
highways and the development of standards for the design and
location of driveways, intersections, and interchanges, Assembly
Statement, supra, and directed the Commissioner to adopt a
12
highway management Access Code. N.J.S.A. 27:7-91. The Act also
addresses the standards for revocation or modification of
existing access. N.J.S.A. 27:7-94. Any access to a state
highway in existence prior to the effective date of the Act was
deemed conforming to the terms of the Act and the Access Code.
N.J.S.A. 27:7-92(c).
The Act also permits the Commissioner to revoke access to a
state highway “after determining that alternative access is
available which meets the standards” for the property based on
its use or zoning. N.J.S.A. 27:7-94(a). For property zoned or
used for commercial purposes,
[a]lternative access shall be assumed to exist
if the property owner enjoys reasonable access
to the general system of streets and highways
in the State and in addition . . . (1) access
onto any parallel or perpendicular street,
highway, easement, service road or common
driveway . . . is so situated that motorists
will have a convenient, direct, and well-
marked means of both reaching the business or
use and returning to the highway.
[N.J.S.A. 27:7-94(c)(1).]
An access permit may not be revoked without written notice
and a hearing. N.J.S.A. 27:7-94(a). The Commissioner must also
provide the property owner with a plan detailing the manner in
which the alternative access shall be obtained and a description
of the improvements that will be provided to secure the
alternative access. N.J.S.A. 27:7-94(b). The improvements may
13
include signage for motorists marking the alternative route to
the site. N.J.S.A. 27:7-94(d).
The Access Code, N.J.A.C. 16:47-1.1 to -8.5, addresses
revocation of access. N.J.A.C. 16:47-4.33(d)(2)(i) mirrors the
statutory provision for revocation of access. In re Route 206
at New Amwell Road, Block 161, Lot 13B (Hillsborough), 322 N.J.
Super. 345 (App. Div.), certif. denied, 162 N.J. 197 (1999),
summarized the Access Code requirements when modifying or
revoking access as follows:
When the DOT initiates a highway project
that modifies access, the regulations require
the DOT to notify each lot owner in writing of
the proposed access modification and provide
the lot owner with a plan showing the
modification prior to beginning construction.
N.J.A.C. 16:47-4.33(c)2. The lot owner is
provided with thirty days from receipt of the
DOT’s notice to advise the DOT whether it
accepts the modification plan or intends to
appeal the administrative decision. N.J.A.C.
16:47-4.33(c)4. In the event an administrative
appeal is filed, the Manager of the Bureau of
Civil Engineering must schedule an informal
meeting with the property owner to resolve any
differences. Thereafter, the Manager is
required to issue a written decision within
thirty days. In the event of disagreement
with that decision, the property owner has an
additional thirty days to appeal to the
Director who must then schedule an informal
hearing within ten days. N.J.A.C. 16:47-
4.33(c)5. At this informal hearing, the
property owner is given an opportunity to
present further information regarding
objections to the modification plan. N.J.A.C.
16:47-4.33(c)6. Within thirty days of the
informal hearing, the Director’s written
14
“final agency decision” is required to be
issued, in which the Director shall:
consider the information presented
at the hearing and the
recommendation of the hearing
officer if designated and the
criteria set forth in the Act and
these regulations, the lot owner’s
right of reasonable access to the
general system of streets and
highways in the State and the
public’s right and interest in a
safe and efficient highway system.
[N.J.A.C. 16:47-4.33(c)7.]
[Id. at 356-57.]
In Hillsborough, the DOT proposed to eliminate one of two
access driveways from a highway to a service station and to
widen the remaining driveway. Id. at 350. It also proposed
closing one of two driveways fronting on a local street and
widening the remaining driveway. Ibid. Although the plan
maintained direct access to the state highway, the internal
traffic circulation pattern of the service station was altered.
Id. at 352. The Commissioner rejected the property owner’s
challenge to the access plan, reasoning that the modification
would not prevent use of the site as a service station. Ibid.
The Commissioner also determined that the modified access plan
would serve a substantial public benefit. Id. at 358.
The Appellate Division determined that the DOT plan was a
modification of access rather than a revocation of access.
15
Ibid. It also recognized that the DOT “has reasonable
discretion in developing methodology to fulfill its statutory
obligation,” id. at 357, and that the agency “enjoys ‘a great
deal of flexibility in selecting the proceedings most likely to
achieve their regulatory aims[,]’” ibid. (quoting N.J. Dep’t of
Envtl. Prot. v. Stavola, 103 N.J. 425, 436-37 (1986)). The
panel concluded that the property owner failed to rebut the
presumption of validity accorded to the Commissioner’s decision
and that the Commissioner’s determination was a reasonable
exercise of agency discretion and neither arbitrary nor
capricious. Id. at 358.
In re Bergen County Parkway 17 Associates (Parkway 17
Assocs.), 324 N.J. Super. 322, 328-29 (App. Div.), certif.
denied, 162 N.J. 664 (1999), addressed revocation of all ingress
and egress from a state highway to a modern office building in
the context of the extensive reconstruction of the intersection
of two heavily used state highways. The proposed access plan
maintained the ability to enter and exit the property from a
local road. Id. at 330.
In the course of its examination, the DOT identified safety
and visibility concerns regarding the existing state highway
access. Id. at 329. The DOT proposed an alternative access
plan in which a southbound motorist on the state highway would
travel past the existing entry to a newly constructed ramp
16
leading off the highway until the motorist reached the
intersection of the ramp with a to-be-constructed-entry drive
that would provide motorists access to two newly created entries
from the access drive. Id. at 330. The newly created access
drives would serve the office building and other properties,
including a large retail store. Id. at 331.
The owner of the office building objected to the proposed
alternative access plan. Ibid. The DOT concluded that the
proposed access drives could handle the traffic volume, and
would add a minimal amount of additional travel time for
motorists. Ibid. Finally, the DOT determined that the proposed
access drives satisfied the statutory requirement of alternative
access to a parallel or perpendicular street and that the plan
was convenient, direct, and well-marked. Id. at 331-32.
Following a hearing before the OAL and issuance of an Initial
Decision, the Commissioner rejected the property owner’s
objection to the proposed alternative access plan. Id. at 327-
28.
The Appellate Division rejected the property owner’s
contention that the proposed plan did not provide reasonable
alternative access. It determined that the direct access
requirement of section 94(c) of the Act does not mean “an
immediate passage from a state highway onto an abutting
property.” Id. at 338. Rather, the panel stated that the
17
agency’s interpretation of direct as “reasonably straight” and
its interpretation of convenient as referring “to the entry of
vehicles onto the property itself, rather than the means of
reaching the property,” were realistic. Id. at 338-39.
Moreover, the panel noted that the new entry points aligned with
the existing traffic aisles within the property, thereby
underscoring the convenience of the alternative access plan.
Id. at 339.
Importantly, the Appellate Division emphasized that
determining whether the agency’s proposed access plan satisfies
the statutory requirements is best accomplished when one
proposed plan is compared or contrasted with another. Id. at
342. The panel explained that
the statutory criteria which include standards
such as “direct” and “convenient” are not
precise, mathematical terms, but rather
generally stated objectives. That being so,
those terms may well be given more specific
meaning and content when one proposed plan is
compared or contrasted with the other. A
proposed additional plan which is more
“direct” or more “convenient” than one before
the Commissioner, may well have an impact in
determining whether the proposal under review
can properly be deemed “direct” or
“convenient.” Thus, when a reasonable
alternative is presented, fair treatment and
realistic appraisal of the subjective and
generalized terms of the statute would
normally call for the Commissioner to consider
such alternatives in reaching a decision.
[Id. at 342-43.]
18
The panel held that the Commissioner is required to
consider an alternative access plan submitted by a property
owner. Id. at 343. When a property owner proposes an
alternative access plan that contains features that fail to
address the very concerns that triggered the need for a new
design, or contains other features that would have been
inevitably rejected, adoption of the agency-proposed alternative
access plan and rejection of the property owner’s plan cannot be
considered arbitrary, unreasonable, or capricious. See ibid.
(finding no harm in Commissioner’s failure to consider property
owner’s alternative plan).
IV.
As the owner of property situated along a state highway,
Arielle has a right of reasonable access to Route 166. N.J.S.A.
27:7-90(e). N.J.S.A. 27:7-94(c)(1) establishes the standard for
reasonable access to a state highway for property zoned or used
for commercial purposes, when the Commissioner revokes or
modifies access to a state highway. The plain language of
section 94 declares that alternative access to commercial
property “shall be assumed to exist” when there is reasonable
access to the property from a parallel or perpendicular street
or highway that can support the traffic to the business and the
route is convenient, direct, and well-marked. Ibid. We
construe this language to establish two criteria for reasonable
19
access. First, there must be direct access to a street,
highway, or service road; second, if improvements alter the
route that patrons must take to gain access to the commercial
property, the new route must be able to “support the traffic to
the business” and must be convenient, direct, and well-marked.
See Parkway 17 Assocs., supra, 324 N.J. Super. at 330. In
addition, the DOT must design and install appropriate signage
marking the alternative route to the property. N.J.S.A. 27:7-
94(d).
The alternative access plan proposed by the DOT is presumed
valid. Parkway 17 Assocs., supra, 324 N.J. Super. at 334-35.
However, if a property owner objects to the agency-proposed
alternative access plan, the DOT bears the burden of
demonstrating that its plan satisfies the statutory and
regulatory requirements. Id. at 336.
The DOT plan for the segment of Route 166 that affects
Arielle’s property was designed to achieve two primary goals.
The first goal was to increase the capacity of the roadway. The
second goal was to improve the safety and efficiency of the
roadway. As presently designed, a patron of an Arielle tenant
may access one of eight parking spaces in the front of the
building directly from Route 166. When departing, the patron
must back into the northbound lane of traffic on Route 166.
That maneuver creates safety problems and also impedes the free
20
flow of traffic. Furthermore, those eight parking spaces occupy
a right-of-way obtained by the DOT in the 1970s. Eliminating
the parking spaces along Route 166 permits the DOT to add an
additional travel lane, thereby increasing the capacity of the
roadway and curing the safety concerns caused by vehicles
backing into the travel lane. Installation of a median also
furthers the primary goals of the project by minimizing turns by
southbound motorists that require crossing oncoming traffic.
To be sure, Arielle’s loss of eight parking spaces burdens
the property. Arielle readily concedes, however, that the
property has functioned for many years with significantly fewer
parking spaces than required for commercial uses in the
municipality. The Arielle site is further burdened by the DOT
design because a patron of one of the Arielle tenants traveling
south on Route 166 is denied direct access to the site. The
DOT, however, has designed a route that will lead directly to
Arielle’s property, will install signage directing patrons to
the site, and will install a traffic signal to permit motorists
to safely cross Route 166, turn onto West Gateway, and enter
Arielle’s property. The route may be longer but it provides
direct access to the remaining parking spaces on the property.
As such, the DOT plan fully satisfies the statutory and
regulatory requirements for access to the State’s system of
highways. Parkway 17 Assocs., supra, 324 N.J. Super. at 338-39.
21
Moreover, the Commissioner evaluated Arielle’s objection to
the DOT’s proposed design by comparing it to the plan advocated
by Arielle. Indeed, the Commissioner was familiar with the plan
advanced by Arielle because it was one of several designs
developed but rejected by the DOT during the design phase of the
project.
Here, Arielle advocated for the use of the DOT’S 2007
design for widening Route 166, arguing that it was reasonable
and in conformity with N.J.S.A. 27:7-94(c)(1). It insists that
the 2007 plan included a four-way intersection at Route 166 and
West Gateway controlled by a traffic signal that would have
permitted northbound and southbound traffic to turn safely onto
local roads. Arielle ignores, however, that the intersection
contemplated by the 2007 plan required substantial changes to
existing roadways because West Gateway, on the east side of
Route 166, does not align with the nearest cross-street on the
west side of Route 166. Moreover, the roadway configuration
contemplated by the proposed four-way intersection requires the
acquisition of some, if not all, of Arielle’s property.
Understandably, a property owner might favor the taking of its
property when facing the elimination of direct access to a
highway and the loss of eight parking spaces. A plan that
requires a direct purchase or condemnation of a commercial
property owner’s property is not an alternative access plan for
22
the property owner. It is a different design plan that furthers
the property owner’s personal commercial interests rather than
the public interest.
V.
In sum, the record fully supports that the DOT satisfied
its burden of proof to establish that the revocation of direct
access from Route 166 to Arielle’s property conforms with
N.J.S.A. 27:7-94(a) and N.J.A.C. 16:47-4.33(d)(2)(i). In other
words, the DOT demonstrated that its alternative access plan
provided not only reasonable access to Route 166 but also a
convenient, direct, and well-marked means of reaching the
commercial property and returning to the highway. In response
to the objection advanced by the property owner, the DOT
compared its proposed plan with the alternative advocated by the
property owner. In the end, the record establishes that the
property owner advanced an alternative design for the entire
project that furthered its individual commercial ends rather
than the DOT’s overarching goal of providing reasonable access
to our system of state highways and roads. In doing so, the
property owner failed to overcome the presumption of validity
afforded to the DOT plan.
VI.
The judgment of the Appellate Division is affirmed.
23
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUDGE CUFF’s opinion. JUSTICE
FERNANDEZ-VINA did not participate.
24
SUPREME COURT OF NEW JERSEY
NO. A-102 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
IN THE MATTER OF THE REVOCATION OF
THE ACCESS OF BLOCK #613, LOTS #4 & 5,
TOWNSHIP OF TOMS RIVER, OCEAN
COUNTY (ARIELLE REALTY, LLC).
ARIELLE REALTY, LLC,
Appellant.
DECIDED January 14, 2016
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6