IN THE MATTER OF THE REVOCATION OF THE ACCESS OF BLOCK #613, LOTS #4 amp; 5

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4809-11T4

IN THE MATTER OF THE

REVOCATION OF THE ACCESS

OF BLOCK #613, LOTS #4 & 5,

TOWNSHIP OF TOMS RIVER,

OCEAN COUNTY (ARIELLE

REALTY, LLC).1

______________________________________

ARIELLE REALTY, LLC,

Appellant.

______________________________________

February 14, 2014

Submitted December 9, 2013 Decided

Before Judges Yannotti and Leone.

On appeal from the New Jersey Department of Transportation, Docket No. TRP-6443-09.

Levin Cyphers, attorneys for appellant (Harry Jay Levin, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney general, of counsel; David R. Patterson, Deputy Attorney General, on the brief).

PER CURIAM

Arielle Realty, LLC appeals from a final determination of the Commissioner of Transportation, who found that a plan by the New Jersey Department of Transportation (NJDOT) for certain proposed road improvements did not deny Arielle reasonable access to its property. We affirm.

I.

The relevant facts are essentially undisputed. Arielle is the owner of a three-tenant, commercial property on Route 166 in the Township of Toms River, Ocean County. In the area near Arielle's property, Route 166 is primarily a north-south highway. West Gateway, a local street, runs perpendicular to Route 166 and meets the highway at a T-intersection on the east side of the highway. Arielle s property is located in the southeast corner of this intersection. Another intersection is located south of the Route 166-West Gateway intersection, where Highland Parkway meets Route 166 on the west side of Route 166.

Arielle s property presently has two points of access to Route 166. One is a direct opening perpendicular to Route 166, that allows access to eight parking stalls, which are partly located on the NJDOT's right of way. A motorist travelling north or south on Route 166 who wanted to park in one of these stalls could turn off the highway and pull into one of these spaces. The motorist could exit Arielle's property by backing out from the stalls onto Route 166. The other access point to Arielle s property is on West Gateway, where there are an additional eleven parking stalls. A motorist exiting one of these eleven parking stalls must back out onto West Gateway.

By letter dated April 1, 2009, the NJDOT informed Arielle that the access point to its property on Route 166 would be eliminated, because an additional northbound travel lane and median were going to be constructed. Therefore, access to Arielle s property would be limited to West Gateway.

The NJDOT provided Arielle with a copy of its Revocation of Access Plan. Under the plan, motorists traveling north on Route 166 could turn right onto West Gateway and access Arielle's property from that roadway. However, motorists travelling south on Route 166 could not turn left onto West Gateway because the new median in the highway would be located at that location.

Thus, motorists travelling south on Route 166 would be required to drive past West Gateway, turn right onto Colfax Street (a local road), turn right onto Highland Parkway, turn left onto Route 166 northbound, and then turn right onto West Gateway. In total, the length of this detour is about three-quarters of a mile. Signage would be installed informing motorists of the detour.

Under the NJDOT s plan, motorists exiting Arielle s property and returning to Route 166 northbound would still be able to turn right where West Gateway intersects with Route 166. However, motorists exiting the property who wished to travel southbound on Route 166 would be prevented from doing so by the new median.

Motorists returning to Route 166 southbound could either: (i) turn right onto Route 166 northbound, enter a ramp for Route 37 eastbound, exit Route 37 by way of a connecting street, and use a residential street to reach their destination; (ii) travel on West Gateway away from Route 166, and south through residential streets running parallel to the highway; or (iii) turn right onto Route 166 northbound, enter a left-turning lane, cross over Route 37, use a jug handle in the northwest corner to reverse direction on Route 166, and again cross Route 37.

On May 20, 2009, Arielle raised a number of concerns about the plan during an informal meeting with staff members of the NJDOT s Office of Access Design (OAD). Thereafter, the OAD issued a letter dated June 20, 2009, which reviewed the access points from Arielle's property and informed Arielle of the OAD's initial determinations.

In the letter, the OAD stated, among other things, that the existing conditions did not conform to the State's highway access code. The OAD wrote that "due to safety concerns and a general lack of space we cannot alter the proposed access design[.]" Arielle sought review of the OAD s decision, and the case was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ).

At the hearing, Charles R. Miller, an engineer who is manager of the OAD, testified for the NJDOT as both a fact witness and an expert "in the field of roadway design and state highway access." Miller stated that Arielle s current access by way of Route 166 violated the State's highway access code. Miller reviewed the plan, and noted that the NJDOT typically considers an additional mile travelled for alternative access to be reasonable. Miller opined the NJDOT's plan provides reasonable access to Arielle's property.

On cross-examination, Miller acknowledged that the OAD and its consultants previously had devised other alternative access proposals for Arielle's property, but he did not consider those proposals when determining whether the present plan provided reasonable access. Miller explained that the OAD did not consider the plan s impact upon West Gateway because: the access code does not govern side streets, West Gateway was lightly travelled, and access to Arielle's property by way of West Gateway was an existing condition.

Brian Mausert, a civil engineer employed by Greenman-Pederson, Inc., testified for the NJDOT as both a fact witness and an expert in the field of "roadway design and access regulations to state highways." Mausert noted that Arielle's current use violated the State's access code in several ways.

He opined that the alternative access provided by the NJDOT's plan is "convenient, direct, and well marked." He also opined that the access by way of West Gateway would be safer than the present arrangement because it would reduce the number of traffic conflicts. Mausert stated that the plan complied with the access code.

On cross-examination, Mausert acknowledged that he was involved with one of the NJDOT's prior proposals for alternative access to Arielle's property, and he believed that plan to be reasonable. Mausert acknowledged that the realignment of Highland Parkway and West Gateway, as proposed in the earlier plan, was eliminated as a result of a public meeting with local residents. Cost was another reason the previous plan was not implemented.

John N. Ernst, an engineer with Ernst, Ernst, & Lissenden, testified for Arielle as an expert "in the areas of civil engineering, site development including highway access, zoning use, and municipal parking requirements." Ernst stated that the local zoning regulations for Arielle's property required twenty-nine parking spaces. Ernst opined that the local zoning and planning board would not approve development of a property similar to Arielle's, with only eleven parking stalls.

Ernst additionally stated that the new route and the Colfax Street detour were unreasonable. He said the planned access on West Gateway violated certain provisions of the access code. Ernst also said that the Colfax Street detour was insufficient, since Colfax is a thirty-feet-wide, two-way street and parking is permitted on both sides of the street. Ernst stated that the NJDOT's previous proposals better addressed its safety concerns than the present plan.

John Rea, President of McDonough and Rea Associates, testified for Arielle as an expert in the field of traffic engineering. Rea said the NJDOT's plan was unreasonable. He said he was concerned about the Colfax Street loop, essentially for the same reasons that Ernst cited.

Rea stated that the NJDOT s previous proposals were "a more reasonable and more conventional engineering solution to the issues that we face at Route 166 and West Gateway." He noted that the close proximity of the plan's offsetting T-intersections at Highland Parkway and West Gateway violated certain legal standards, and this played a factor in his reasonableness evaluation.

Rea estimated that Arielle s current tenants likely generated less than twenty peak-hour trips, which included vehicles entering and leaving. Rea estimated that, if a daycare center began to operate on Arielle's property, it would generate one hundred peak-hour trips.

The ALJ issued an initial decision dated January 23, 2012. The ALJ concluded that the NJDOT's plan satisfied all of the applicable legal requirements for revocation of Arielle's access to Route 166. The ALJ noted that the plan eliminated the parking situation on Route 166, which violated the State's access code. The ALJ found that the NJDOT's plan provided Arielle with reasonable access to its property.

The Commissioner issued a final decision on April 19, 2012. The Commissioner adopted the ALJ s findings of fact. The Commissioner also found that Arielle s current use of the Route 166 access points violated the State's access code. The Commissioner determinedthat the plan provided Arielle with reasonable access to the State's system of roads and highways.

II.

In its appeal, Arielle argues that the Commissioner's decision must be reversed because the proposed alternative access plan is not reasonable. We do not agree.

Appellate review of a decision of an administrative agency is "limited in scope." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009) (citing In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007)). An appellate court will not set aside an agency's decision unless shown that it was arbitrary, capricious, or unreasonable. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

In reviewing a decision of an administrative agency, we consider whether the decision violates express or implied legislative policies; whether there is substantial evidence to support the factual findings upon which the decision is based; and whether, in applying the law to the facts, the agency "'clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.'" Circus Liquors, supra, 199 N.J. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

The State Highway Access Management Act of 1989 (the Access Management Act), N.J.S.A. 27:7-89 to -98, provides in pertinent part that

a. The commissioner may, upon written notice and hearing, revoke an access permit after determining that alternative access is available which meets the standards provided in subsection c. of this section . . . .

c. For the purposes of this section, alternative 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, in the case of the following classes of property, the applicable following condition is met:

(1) For property zoned or used for commercial purposes, 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 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.]

The Access Management Act requires the Commission to adopt a State highway management code (the Access Code). N.J.S.A. 27:7-91(a). The Access Code is set forth in N.J.A.C. 16:47-1.1 to -8.5. The provision of the Access Code governing revocation of access permits is N.J.A.C. 16:47-4.33(d)(2)(i). The regulation mirrors the statutory standards for revocation of an access permit.

In this case, the ALJ found that the NJDOT's proposed closure of the eight parking stalls on the Route 166 side of Arielle's property "alleviates a situation that already is unsafe and would be made more hazardous by the [NJDOT's] other plans for the Route 166 area." The ALJ additionally found that that movement of access "around the corner to the West [Gateway] entrance" meets the criteria under the Access Management Act and Code.

The Commissioner adopted the ALJ's factual findings and also concluded that Arielle's present access on Route 166 violated the Access Code. The Commissioner noted that N.J.A.C. 16:47-23.5(e)(11) prohibits backing maneuvers onto a highway. the Commissioner also noted that N.J.A.C. 16:47-3.8(k)(2) prohibits access points within fifty feet of an intersection. The Commissioner determined that the alternative access provided to Arielle under the plan was reasonable.

We are convinced that there is sufficient credible evidence in the record to support the ALJ's and the Commissioner's factual findings. Those findings are amply supported by the testimony provided by Miller and Mausert, who both opined that Arielle's access on Route 166 violated the Access Code and the alternative access provided to Arielle's property was reasonable. Although Arielle's experts testified that the plan did not provide reasonable access, neither the ALJ nor the Commissioner was required to accept their testimony.

Arielle argues that the NJDOT's plan is invalid because it is does not provide convenient, direct and well-marked access to its property, as required by N.J.S.A. 27:7-94(c)(1). In support of this contention, Arielle relies upon In the Matter of the Revocation of the Access of Block No. 1901, Lot No. 1, Borough of Paramus, Bergen County Parkway 17 Assocs., 324 N.J. Super. 322 (App. Div.), certif. denied, 162 N.J. 664 (1999).

In Bergen County Parkway 17 Assocs., we held that a plan for alternative highway access met the statutory criteria under N.J.S.A. 27:7-94. Id. at 336-40. We noted that the new route was only one-third of a mile and consisted of a single, free-flowing passage, with "free turns" for vehicles traveling to the newly-designed access point. Id. at 339.

Arielle contends that the plan for its property is not reasonable because, unlike the plan at issue in Bergen County Parkway 17 Assocs., it will require motorists to drive almost a mile out of their way to reach the property. According to Arielle, the plan is not "direct" or "convenient." Arielle additionally contends that the proposed plan is not as safe as other plans.

We are convinced, however, that Arielle's reliance upon Bergen County Parkway 17 Assocs. is misplaced. As the Commissioner recognized in his final decision, whether an alternative access plan is reasonable depends on the particular facts and circumstances. Here, the Commissioner found that the NJDOT's plan provided Arielle with reasonable access to its property, and as we have explained, there is substantial evidence in the record to support that finding.

It is irrelevant that other plans might also be reasonable or safe. Under the Access Management Act and Code, the choice rests with the Commissioner. We are required to affirm the Commissioner's determination where, as in this case, the decision meets the statutory and regulatory criteria, is supported by substantial evidence, and is not arbitrary, capricious or unreasonable.

Arielle additionally argues that the ALJ and the Commissioner erroneously relied upon State ex rel. Commissioner of Transportation v. Monmouth Hills, Inc., 110 N.J. Super. 449 (App. Div.), certif. denied, 57 N.J. 133 (1970), where we held that "'an abutting landowner has no vested interest in the flow of traffic past his premises and . . . any damages sustained because of a diversion of traffic is not compensable.'" Id. at 453 (quoting Painter v. State, Dep't of Roads, 131 N.W.2d 587, 590-91 (Neb. 1964)).

Arielle contends that the ALJ and Commissioner erred by suggesting that its objection to the plan was essentially a challenge to the construction of the median. Arielle says it is not contesting that aspect of the plan, but rather is arguing that the alternative access provided to its property under the NJDOT's plan is unreasonable.

However, the record makes clear that the construction of the median has an impact upon access to Arielle's property for motorists traveling to or from the property. Because the median affects the NJDOT's plan, the ALJ and the Commissioner did not err by suggesting that Arielle's complaint involved a challenge to that feature of the plan.

Nevertheless, neither the ALJ nor the Commissioner based their decisions on this consideration. Both the ALJ and the Commissioner recognized that the key issue to be decided was whether the NJDOT's plan provides reasonable access to Arielle's property. They found that it did, and the record supports their findings on this issue.

III.

Arielle contends that the ALJ erred by permitting Miller and Mausert to testify for the NJDOT as expert witnesses, and the Commissioner's "ratification" of this error warrants reversal of the agency's final decision. Again, we disagree.

Arielle maintains that, while it knew that Miller and Mausert might testify as fact witnesses, it was not aware that they would be testifying as experts. Arielle says that principles of fundamental fairness dictate that a party identify its expert witnesses prior to the hearing and provide the opposing party with the witnesses' credentials, the substance of the testimony and the information upon which the experts base their opinions.

We are convinced that the ALJ did not abuse her discretion by permitting Miller and Mausert to testify for the NJDOT as experts, and the Commissioner did not err by affirming that decision. The ALJ noted that in an administrative proceeding, a party is not required to produce an expert report. The ALJ also noted that Arielle received sufficient notice of the "sum and substance" of the testimony that Miller and Mausert would present. The record also shows that counsel was provided with statements of these witnesses' credentials at the hearing.

Furthermore, there is no indication that Arielle was prejudiced in any way by the ALJ's decision to allow Miller and Mausert to testify as experts. As the Commissioner found, the testimony of these witnesses was not a surprise and Arielle's counsel had a full and fair opportunity to cross-examine them.

IV.

Arielle further argues that it was prejudiced because the ALJ initially determined that the NJDOT's plan was entitled to a presumption of correctness and Arielle had the burden of proof to show the plan was invalid. However, as Arielle notes, in her initial decision, the ALJ correctly determined that the NJDOT's decision was not presumptively valid and the agency had the burden of proof in this dispute.

Arielle argues that, because the ALJ initially stated that Arielle had the burden of proof, the entire proceeding was tainted to its detriment. Arielle asserts that, when the ALJ heard the evidence, she did so with the "impression" that the NJDOT's actions were presumptively valid and Arielle had the burden of proving otherwise. Arielle says this error affected the manner in which the ALJ conducted the hearing and had an impact on the outcome.

Again, we disagree. The Commissioner determined that the ALJ's initial, erroneous statement on the burden of proof did not affect the outcome of the case. The record supports that determination. In her initial decision, the ALJ applied the correct standard and evaluated the evidence on that basis. Arielle's argument on this point is without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).

Affirmed.

1 The caption in the notice of appeal was incorrect. The modified caption is the caption in the decision being appealed.