Before Judges Havey, Skillman and Lesemann.
The opinion of the court was delivered by: Lesemann, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey Department of Transportation.
Petitioner, Parkway 17 Associates (Parkway), owner of premises in Paramus, appeals from a decision of the Commissioner of the Department of Transportation, *fn1 which revoked Parkway's existing highway access permit concerning passage between its property and the southbound lane of State Highway Route 17. The DOT purported to act under authority of N.J.S.A. 27:7-94, which authorizes such a revocation provided that suitable "alternative access" is available. The DOT claims the existing access did not meet current access standards and that it provided suitable alternative access. Parkway claims, however, that the proposed alternative access is unsuitable and does not comply with statutory standards. It also claims that the Administrative Law Judge (ALJ) who heard the matter, and the Commissioner who affirmed the decision of the ALJ, erred by unduly restricting Parkway's presentation in two respects:
"first, they refused to permit Parkway to explore a contract between the DOT and a major nearby landowner, Alexander's, *fn2 which Parkway claims improperly motivated the DOT to act as it did respecting its access; and second, they refused to consider an alternative access plan prepared by Parkway."
We conclude that, bearing in mind our normal deference to administrative fact finding and decision making, the decision of the Commissioner, based on the findings and Conclusions of the ALJ, should be affirmed. We also conclude that neither the Commissioner nor the ALJ erred in refusing to permit Parkway to inject the Alexander's contract and negotiations into this proceeding and, while the ALJ and the Commissioner should have considered Parkway's alternative plan of access, the refusal to do so did not constitute prejudicial error.
Parkway's property lies on the southbound side of Route 17, north of its intersection with Route 4 and just south of a side road (Century Road) which approaches from the west and intersects Route 17. The ramp connecting Century Road and Route 17 actually constitutes the northerly boundary of Parkway's property.
Parkway's building is a modern office building which was built in 1983 and which faces Route 17. Since it was constructed, it has had two entries and two exits onto adjacent streets. One, on Route 17, is near the southerly end of the property. The other is at the northerly end of the property, on the Century Road ramp.
To use these entry or exit points, southbound traffic on Route 17 would turn right, through an entry drive, and into the property and, when leaving, it would pass out an exit next to the entry and then turn right and join southbound Route 17 traffic. On the Century Road ramp, entry traffic would move from the eastbound lane of the ramp onto Parkway's property and, when leaving the property, would drive through the exit and onto the same eastbound ramp, and then proceed easterly to the ramp intersection with southbound Route 17.
The DOT says that as part of an overall, extensive reconstruction of the Route 17/Route 4 intersection, it undertook an examination of existing highway access locations in the area to determine compliance with present access standards. It acknowledges that Parkway's highway access did comply with applicable standards when its building was constructed in 1983, but it contends that it does not now comply with applicable codes. The essential problem with both the access point from the Century Road ramp and from southbound Route 17, involves the passage of vehicles entering or leaving Parkway's property, across and through a so-called "acceleration lane." As the ALJ described the problem:
"The ramp from Century Road to Route 17 southbound enables vehicles to accelerate from a relatively low speed to a highway speed on Route 17 southbound. In order for someone to use a driveway, they have to slow down from highway speed to a relatively low speed in order to leave the highway. Driveways on acceleration lanes are precluded because motorists on the acceleration lane are trying to go faster at the same time that other motorists are slowing down to enter the driveways."
The ALJ also referred to a visibility problem when vehicles pass through an acceleration lane to enter or leave adjacent property:
"There is also a problem with egress along an acceleration lane. Motorists on an acceleration lane look left to select a gap to get into the highway traffic. Driveways are on the right, so someone pulling out of a driveway on the right, while the motorists in the acceleration lane are looking to the left, also presents an unexpected problem. Both ingress and egress are precluded along acceleration lanes."
N.J.S.A. 27:7-94 deals with revocation of access permits. Its essential provisions read as follows:
"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 for the property served by the access permit . . . ."
"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 . . ."
"(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 . . . ." *fn3
Thus, as all the parties agree, and as discussed further below, the statute sets out five criteria which must be met if an alternative access is to be deemed in compliance with the statute. The alternate 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, which it contended (and the ALJ and the Commissioner found), complied with the statute, provided no direct access to the property from either Route 17 or the Century Road ramp. Rather, it called for southbound traffic on Route 17 to proceed past the existing entry point and beyond the southerly line of Parkway's property to a newly constructed entry point and road leading westerly off Route 17 identified as "Access Drive D." From that point, vehicles would proceed westerly on Access Drive D until that drive intersected with another newly constructed roadway, Access Drive F. At that point, vehicles would then turn northerly and proceed in that direction on Access Drive F until entering Parkway's property at one of two newly created entry points off Access Drive F, on the westerly side of the property. Vehicles leaving the property would exit from essentially those same two points on Access Drive F, and would normally proceed northerly on that road until Access Drive F intersected with the Century Road ramp, at which point the vehicles would turn easterly and then merge into southbound Route 17.
The newly created access route would also serve three properties lying south of Parkway's property but north of Route 4. In addition, both Access Drive D and Access Drive F--but primarily the latter--would also serve the Alexander's property. It was anticipated that Alexander's would be redeveloped with a 550,000 square foot retail mall. Vehicles leaving Alexander's, which is located at the northwest intersection of Routes 17 and 4, would reach southbound Route 17 by proceeding north out of the ...