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In re Carwash

July 15, 2004

IN RE AMICO/TUNNEL CARWASH


On appeal from New Jersey Meadowlands Commission.

Before Judges Skillman, Coburn and C.S. Fisher.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 27, 2004

This appeal requires us to interpret the 1993 amendment to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, which prohibits a state administrative agency from adopting"any rule or regulation that would allow a third party to appeal a permit decision." N.J.S.A. 52:14B-3.3(a). We conclude that this amendment withdrew the power of an administrative agency to adopt a rule or regulation that authorizes a hearing before the Office of Administrative Law (OAL) even though a hearing is not required by the APA. Consequently, to be entitled to an OAL hearing, a person other than an applicant for a permit must have a"particularized property interest sufficient to require a hearing on constitutional or statutory grounds." N.J.S.A. 52:14B-3.2(c). We also conclude that the owner of property adjacent to a property that is the subject of a variance application to the New Jersey Meadowlands Commission (NJMC) does not have such a"particularized property interest" and therefore is not entitled to an OAL hearing. In addition, this appeal requires us to decide whether the NJMC may delegate the power to issue a variance to its Executive Director. We conclude that only the NJMC may exercise the quasi-judicial power to issue a variance.

On October 19, 2001, respondent Paul Amico applied to the NJMC for three bulk variances that are required to construct a proposed car wash on his property located on the Route 3 service road in Secaucus. Amico applied for variances from N.J.A.C. 19:4-8.7(a)(1), which requires a fifty-foot strip of wetland for any development that borders the Hackensack River or any of its tributaries, to allow a twenty-three foot wide strip of wetland adjacent to Mill Creek; N.J.A.C. 19:4-8.2(b)(3), which prohibits driveway entrances and exits within fifty feet of an intersection, to allow a forty-one foot separation from the intersection of Roosevelt Avenue and the service road to the edge of his proposed driveway; and N.J.A.C. 19:4-8.14(h)(4), which restricts the maximum sign area on a property to five percent of the building's front facade, which in this case would be ninety-five square feet, to allow a double-sided pole sign that contains 112 square feet of sign area and a seventy-two square foot wall sign.*fn1

On April 16, 2002, the NJMC's Chief Engineer conducted a hearing on Amico's variance application. Appellants, John and Virginia Heldon, who own an adjacent property, participated in the hearing. John Heldon testified in opposition to the application, and their counsel was allowed to cross-examine Amico's witnesses. Appellants indicated that they had attempted to retain experts to appear at the hearing, but had been unsuccessful. Consequently, appellants requested additional time to submit expert reports. After the hearing, the Chief Engineer accepted two expert reports submitted by appellants, which concluded that Amico's development plan would create unsafe traffic conditions and have an adverse impact on the surrounding neighborhood. Amico subsequently submitted three expert reports that responded to appellants' reports.

On August 23, 2002, the NJMC's Executive Director transmitted a thirty-seven page written decision to Amico, appellants and other interested parties which approved Amico's variance application. The approval of the variance from the requirement of a fifty-foot distance between the intersection of Roosevelt Avenue and the Route 3 service road and the driveway exiting Amico's proposed car wash was conditioned upon Amico obtaining the Department of Transportation's approval.

The decision approving the variances was signed by the Chief Engineer with the notation,"Recommendation on Variance Requests," and by the NJMC's Executive Director with the notation,"Decision on Variance Request." The letter transmitting the decision stated:

Any person who claims to be aggrieved by this decision may request an appeal pursuant to N.J.A.C. 19:4-6.25(b).... Upon grant of the request for an appeal, the Executive Director or his designee shall transmit the matter to the [OAL] for a hearing.

On August 30, 2002, appellants sent a letter to the NJMC which appealed the Executive Director's August 23, 2002 decision approving Amico's variance application. On September 13, 2002, the NJMC transmitted the appeal to the OAL as a contested case. However, the Attorney General's office subsequently advised the NJMC that the matter had been improperly transmitted to the OAL, because the 1993 amendment to the APA prohibits a state administrative agency from adopting a rule or regulation that allows a third party to appeal a permit decision, unless the party has a statutory or constitutional right to appeal, N.J.S.A. 52:14B-3.3, and appellant does not have such a right.

On March 28, 2003, the NJMC adopted a resolution which concluded that appellants do not have a statutory or constitutional right to appeal the approval of Amico's variance applications to the OAL and requested the OAL to return the case. Although this resolution does not indicate that the NJMC reviewed and approved the Executive Director's August 23, 2003 decision, the NJMC's staff treated the withdrawal of the previous transmittal of the Executive Director's decision to the OAL as having the effect of making the Executive Director's decision the NJMC's final decision. Consistent with this view, the NJMC staff issued a conditional zoning permit to Amico.

Appellants filed a notice of appeal from the NJMC's March 28, 2003 resolution. Appellants' motions to stay that resolution were denied by the NJMC and then by this court. We now affirm the March 28th resolution but reverse the decision of the NJMC's staff to treat this resolution as a final decision of the NJMC which granted the bulk variances required for Amico to construct a car wash on his property.

I.

The APA provides that"[i]n a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice." N.J.S.A. 52:14B-9(a). A contested case hearing is required to be conducted by an Administrative Law Judge (ALJ) unless the agency head conducts the hearing personally. N.J.S.A. 52:14B-10(c); N.J.S.A. ...


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