Fritz, Seidman and Milmed. The opinion of the court was delivered by Milmed, J.A.D.
Appellant Township of Wayne (township) petitioned the Department of Transportation (Department) for permission to install a grade crossing at Haul Road and the tracks of the Erie Lackawanna Railway Company (railroad) in the township. According to the petition the township was at the time "involved in the construction, reconstruction and installation of a drainage system and realignment of * * * Haul Road * * *," and the construction of the proposed grade crossing had "the concurrence of the Erie Lackawanna Railroad Company."
A hearing on the petition was held before the Chief of the Bureau of Utilities in the Department, who served as hearing examiner.*fn1 It appears from the testimony at the hearing that the township intends by the project to provide a drainage system to alleviate flooding and also to provide additional access to industrial projects and to "the Old Wayne area."*fn2
The township's petition makes no reference to the cost or method of financing the project. It is, however, apparent from the testimony at the hearing that the municipality was proceeding on the assumption that it was to assume the cost of the grade crossing.*fn3 A grade crossing engineer of
the railroad testified that if the railroad were required by the Department to contribute funds for the grade crossing, his "recommendation to Management would be that we refuse the acceptance of the Commissioner's Order to spend any funds on this project."
Following the hearing the Commissioner of the Department of Transportation issued the Department's decision and order granting, "in consonance with the provisions of N.J.S.A. 48:2-28," permission to the township "to construct a crossing at grade of Haul Road and the tracks of the Greenwood Lake Branch of the Erie Lackawanna Railway Company"; directing the railroad "in accord with the provisions of N.J.S.A. 48:2-29 to install automatic flashing light signals and bell, with same being activated by a motion detector system," and directing the township "to install Railroad Advance Warning Signs and Railroad Approach Pavement Markings in strict conformity to the 'Manual on Uniform Traffic Control Devices for Streets and Highways.'"*fn4
The Department's permission was granted subject to the following conditions:
1. The entire project shall be accomplished at no cost to the Department of Transportation and at no cost to the Railroad.
2. The petitioner shall notify the Department of Transportation when the project is completed.
The township appealed from that portion of the decision and order "which requires the Township of Wayne to pay for the required safety devices and the finding of the Department of Transportation that said improvements are necessary." It now contends that the Department's "imposition of the entire cost of constructing the grade crossing and the protective devices associated therewith upon the petitioner is contrary to law." Both the railroad and the department argue, in effect, that the township, at the Department hearing, waived any right to contribution by the Department and railroad and is accordingly estopped from now changing its position and seeking such contribution.*fn5
The township clearly lacks authority to bind itself to an agreement providing for its assumption of the cost of construction of the grade crossing and installation of protective devices. See N.J.S.A. 48:12-79; N.J.S.A. 48:12-49.1. As pointed out in Sinclair Refining Co. v. Bergen Cty. , 103 ...