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Fta Realty, L.P. and the v. State of New Jersey

February 24, 2012

FTA REALTY, L.P. AND THE GENERAL'S GROUP, L.L.C., PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2002-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2012 -

Before Judges Parrillo and Skillman.

Plaintiffs appeal from a final judgment of the Law Division, which dismissed their complaint challenging various decisions of the Department of Transportation (DOT) relating to a change in the access points from plaintiffs' properties onto the adjoining roadways on the ground this court has exclusive jurisdiction to review such State agency decisions.

FTA Realty, L.P. (FTA) and the General's Group, L.L.C. (General) are affiliated real estate development companies that own contiguous lots located on Route 46 and the Bergen Turnpike near the Little Ferry Circle. On January 31, 2008, the DOT notified General and FTA that it planned to improve Route 46 and Little Ferry Circle, and that, as a part of its improvements, it planned to revoke the access from Route 46 to plaintiffs' properties as required by the New Jersey State Highway Access Management Code (Access Code). This notice was accompanied by a copy of the DOT's "Revocation of Access Plan" for the site. This plan included the DOT's proposal for alternative access, under which the only access to Route 46 from plaintiffs' lots would be from the Bergen Turnpike.

Following receipt of this notification, plaintiffs, who have plans to construct a ninety-two room hotel and possible restaurant/bar/catering facility on their property, had a series of meetings with representatives of the DOT to discuss their concerns regarding the elimination of their direct access to Route 46 as a result of the planned improvements to Route 46 and the Little Ferry Circle. These discussions resulted in a revision of the DOT's plans.

After receiving those revisions, General executed a "Lot Owner's Consent" form on June 10, 2008, agreeing to the DOT's revised plan for a change in its access to Route 46. This form also stated that the DOT "will provide all assistance necessary to provide the alternative, reasonable access as shown on the Plan . . . at its expense."

On November 21, 2008, General sent a letter to the DOT indicating that it was revoking its consent to the Revocation of Access Plan for its property on the ground that the plan was unreasonable and that their consent had been procured through misstatements and misrepresentations. According to the letter, when General signed the Lot Owner's Consent form on June 10, 2008, it was advised that the traffic ingressing and egressing its property would have the benefit of a jughandle, which was to have been constructed at Valley Road and its intersection with Bergen Turnpike. Subsequently, however, General was informed that the State was proceeding with the improvement project but was not proceeding with construction of the jughandle.

On February 6, 2009, the DOT responded by a letter which stated:

I am writing in reply to your November 21, 2008 letter to Mr. Richard Thayer of this office concerning the captioned project.

Neither the Department nor its designer ever showed you[r] client a plan with a jughandle at Valley Rd. and Bergen Turnpike. Our designer may have indicated to your client that it was possible to make u-turns at this intersection but the construction of a jughandle was never part of the design of this project.

The General's Group does not have the right to revoke its consent to the access alteration.

Based on the above the Department will continue with its plans for this project based on having a signed Lot ...


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