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High Horizons Development Co. v. New Jersey Department of Transportation

Decided: March 23, 1989.

HIGH HORIZONS DEVELOPMENT COMPANY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF TRANSPORTATION, RESPONDENT



On appeal from New Jersey Department of Transportation.

Brody, Ashbey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

The primary issue presented by this appeal is whether the denial by the staff of the Department of Transportation (DOT) of an application for a state highway access permit presents a "contested case" under N.J.S.A. 52:14B-2(b) which entitles the applicant to an evidentiary hearing before the Office of Administrative Law.

On April 27, 1987, appellant High Horizons Development Company filed an application with the DOT for a permit allowing direct access from its proposed condominium complex onto Route 36 (also called Ocean Boulevard) in the City of Long Branch. The complex is bounded by two other roads: Clifton Avenue, a secondary road parallel to Route 36, and Joline Avenue, a secondary road that intersects Clifton Avenue and Route 36.

On June 19, 1987, Stephen P. Witkowski, Principal Engineer, Construction and Maintenance, Region III permits, sent a letter to appellant denying the application. The letter set forth the following reasons for the denial:

The site for the proposed residential development is located several hundred feet north of Joline Avenue which is a signalized intersection with exclusive left turn lanes provided on Route 36. It is recommended that direct access to the site from Route 36 be denied due to the alternate access which is available on Clifton Avenue. This would allow all required traffic movements to be accomplished at the signalized intersection.

On August 12, 1987, appellant sent a letter appealing the denial of its permit application. On October 2, 1987, Carl A. Breccia, another official of the DOT, responded by letter which stated: "Be advised that we maintain our original position and uphold our denial." Breccia's letter also stated that the DOT would consider allowing access for emergency vehicles from Route 36 to the site.

By letter dated January 22, 1988, Anthony J. Muscillo, the Director of Public Safety for the City of Long Branch, expressed the City's support for appellant's being allowed access to Route 36 from its site. Muscillo stated:

All of the approvals granted [by the Long Branch Planning Board] have indicated a means of ingress and egress being shown on both Clifton Avenue and Ocean Boulevard. The development faces on Ocean Boulevard, and the main entrance is located on Ocean Boulevard. Clifton Avenue provides an additional means of ingress and egress as well.

Clifton Avenue is a secondary City street which will be improved by the developers as part of their municipal approvals. Even after it is improved, it will still be a secondary street and not designed to handle the totality of the traffic to be generated by this site. As the Public Safety Director of the City of Long Branch, it is essential that this site be provided with a means of ingress from Ocean Boulevard so that the same can be reached by emergency vehicles and personnel, and also receive other municipal services without causing all of the traffic to impact on the local City street.

I understand that the Department is considering limited access to Ocean Boulevard for emergency vehicles by use of installation of break away chains. The City would not be in favor of this since it desires the main access to be on Ocean Boulevard. Further, it believes that the use of the break away chains would be aesthetically unpleasant and would cause probable safety and traffic problems with people attempting to turn into the site off of Ocean Boulevard.

By letter dated January 28, 1988, appellant asked the DOT to reconsider its decision. Appellant relied upon the letter of the Long Branch Public Safety Director and a Traffic Impact Study prepared by Abbington-Ney Associates. The Abbington-Ney report stated, among other things, that "[s]ight distance was found to be excellent from the access point to Ocean Boulevard."

By letter dated February 29, 1988, Nicholas J. Cifelli, Regional Engineer of the DOT, advised appellant that DOT had reaffirmed its decision denying direct access to Route 36.

On April 25, 1988, a hearing was held before Walter W. Caddell, Director of the Division of Right of Way Support Services. Caddell described the hearing as "an informal meeting" at which "[w]e will listen to any reasons or additional data or information that the applicant may have to present to us."

No witnesses were sworn and the DOT presented no ...


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