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In the Matter of the Issuance

December 9, 2010

IN THE MATTER OF THE ISSUANCE OF ACCESS CONFORMING LOT PERMIT NO. A-17-N-N040-2007 BY THE NEW JERSEY DEPARTMENT OF TRANSPORTATION FOR BLOCK 136, LOTS 2 AND 3 IN MAHWAH TOWNSHIP, NEW JERSEY.


On appeal from the New Jersey Department of Transportation.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 3, 2010 - Decided Before Judges Skillman, Parrillo and Espinosa.

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

The dispositive issue presented by this appeal is whether the Department of Transportation (DOT) is required, in reviewing an application for a highway access permit under the State Highway Access Management Act (Access Act), N.J.S.A. 27:7-89 to -98, to consider data and arguments submitted by a party who objects to issuance of the permit. We conclude that the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, confers a right upon any objector with a sufficient interest in issuance of a highway access permit to qualify as an "interested person" within the intent of N.J.S.A. 52:14B-3.1(a) to submit relevant "data, views or arguments" to the DOT and imposes a corresponding obligation upon the DOT to consider these materials. We also conclude that appellant, which owns property abutting the highway to which the applicant seeks an access permit and is a competitor of the applicant, has a sufficient interest in issuance of the permit to qualify as "interested person." Because the DOT declined to consider the data and arguments submitted by appellant, we reverse the DOT's issuance of the permit.

I.

The party to which the DOT issued the highway access permit challenged in this appeal is respondent Mahwah Management, which owns property abutting the southbound lanes of Route 17. Mahwah Management leases this property to respondent Pilot Corporation, which operates a truck stop on the site through its subsidiary, respondent Pilot Travel Centers, LLC (Pilot).

Pilot proposes to demolish the existing structures used for this business and construct a new convenience store and service station with six diesel fueling positions and twelve gasoline fueling positions. Pilot plans to construct separate parking areas for cars and trucks on the site, with separate driveways providing ingress and egress to Route 17 from each parking area.

This development proposal required the grant of use and bulk variances and site plan approval by the Mahwah Township Board of Adjustment. The proposal also required Pilot to obtain a permit for access to Route 17 from the DOT, which regulates the number, placement, and configuration of driveways along State highways pursuant to the Access Act and the State Highway Access Management Code (Access Code), N.J.A.C. 16:47-1.1 to -9.1.

One precondition for issuance of this permit was the grant of a waiver from the requirement of N.J.A.C. 16:47-3.5(c)(4), which allows a lot located on a State highway to have two driveways only if it has a specified minimum frontage between the centerlines of the two adjoining lots. Pilot needed a waiver because its lot has approximately 200 feet less frontage on Route 17 than required under this section of the Access Code.

Appellant Paks Fast Service, Inc. (Paks) owns and operates a gasoline station, which also abuts the southbound lanes of Route 17 and is located approximately .2 mile north of Pilot's site. Paks participated in the hearings before the Mahwah Board of Adjustment seeking the land use approvals required for Pilot's development project. After the Board granted those approvals, Paks filed an action challenging the Board's approvals in the Law Division, which recently affirmed the Board's resolution.

On October 25, 2007, Mahwah Management filed an application for the required access permit to Route 17 together with a request for various waivers of the provisions of the Access Code, including the one specifying the minimum frontage for construction of two driveways to a single lot. In accordance with N.J.A.C. 16:47-4.3(n), Mahwah Management sent notice of this application and copies of the supporting materials to Mahwah Township and Bergen County.

The Vice Chairman of the Bergen County Board of Freeholders sent a letter to the DOT, dated February 13, 2009, which expressed various concerns about the application. The letter claimed that Mahwah Management's application required a major access permit "with Planning Review." The letter contended that such planning review was required because Mahwah Management's submission to the DOT erroneously stated that its development proposal would result in a less than 200 additional peak-hour trips to and from the lot, in which event planning review is not required, see N.J.A.C. 16:47-4.4(a)(3), but that the applicant's own data showed that its development would result in more than 200 additional peak-hour vehicle trips. The County's letter also indicated that "in the interests of safety," it would prefer that no waivers be granted. The letter closed by requesting that "the application not be acted upon until your professional staff has the opportunity to meet with our professional staff to discuss the matter."

On February 27, 2009, the DOT sent a letter to Mahwah Management's representative indicating that it had approved the access permit application.

On March 31, 2009, the Commissioner of DOT sent a letter to Bergen County, which indicated that the access permit had been issued to the applicant for signature, but had not yet been executed. The letter also stated that although the DOT had already completed its review of the application, DOT staff would be "happy to meet with your staff to discuss your concerns." Insofar as the record before us indicates, no such meeting ever occurred.

After Mahwah Township received notice of Pilot's application for a highway access permit, its Board of Adjustment began hearings on Pilot's application for the land use approvals required for its development project. During those hearings, the Chairman of the Board and Township Engineer sent a letter to the DOT, dated March 27, 2009, expressing concern that Pilot's proposed highway access would increase congestion and suggesting that "in the interest of public safety and the safety of the traveling public along Route 17 and those that would ...


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