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In re Revocation of Access of Block #613

Superior Court of New Jersey, Appellate Division

February 14, 2014

IN THE MATTER OF THE REVOCATION OF THE ACCESS OF BLOCK #613, LOTS #4 & 5, TOWNSHIP OF TOMS RIVER, OCEAN COUNTY (ARIELLE REALTY, LLC). [1] ARIELLE REALTY, LLC, Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2013

On appeal from the New Jersey Department of Transportation, Docket No. TRP-6443-09.

Levin Cyphers, attorneys for appellant (Harry Jay Levin, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney general, of counsel; David R. Patterson, Deputy Attorney General, on the brief).

Before Judges Yannotti and Leone.

PER CURIAM

Arielle Realty, LLC appeals from a final determination of the Commissioner of Transportation, who found that a plan by the New Jersey Department of Transportation (NJDOT) for certain proposed road improvements did not deny Arielle reasonable access to its property. We affirm.

I.

The relevant facts are essentially undisputed. Arielle is the owner of a three-tenant, commercial property on Route 166 in the Township of Toms River, Ocean County. In the area near Arielle's property, Route 166 is primarily a north-south highway. West Gateway, a local street, runs perpendicular to Route 166 and meets the highway at a T-intersection on the east side of the highway. Arielle's property is located in the southeast corner of this intersection. Another intersection is located south of the Route 166-West Gateway intersection, where Highland Parkway meets Route 166 on the west side of Route 166.

Arielle's property presently has two points of access to Route 166. One is a direct opening perpendicular to Route 166, that allows access to eight parking stalls, which are partly located on the NJDOT's right of way. A motorist travelling north or south on Route 166 who wanted to park in one of these stalls could turn off the highway and pull into one of these spaces. The motorist could exit Arielle's property by backing out from the stalls onto Route 166. The other access point to Arielle's property is on West Gateway, where there are an additional eleven parking stalls. A motorist exiting one of these eleven parking stalls must back out onto West Gateway.

By letter dated April 1, 2009, the NJDOT informed Arielle that the access point to its property on Route 166 would be eliminated, because an additional northbound travel lane and median were going to be constructed. Therefore, access to Arielle's property would be limited to West Gateway.

The NJDOT provided Arielle with a copy of its Revocation of Access Plan. Under the plan, motorists traveling north on Route 166 could turn right onto West Gateway and access Arielle's property from that roadway. However, motorists travelling south on Route 166 could not turn left onto West Gateway because the new median in the highway would be located at that location.

Thus, motorists travelling south on Route 166 would be required to drive past West Gateway, turn right onto Colfax Street (a local road), turn right onto Highland Parkway, turn left onto Route 166 northbound, and then turn right onto West Gateway. In total, the length of this detour is about three-quarters of a mile. Signage would be installed informing motorists of the detour.

Under the NJDOT's plan, motorists exiting Arielle's property and returning to Route 166 northbound would still be able to turn right where West Gateway intersects with Route 166. However, motorists exiting the property who wished to travel southbound on Route 166 would be prevented from doing so by the new median.

Motorists returning to Route 166 southbound could either: (i) turn right onto Route 166 northbound, enter a ramp for Route 37 eastbound, exit Route 37 by way of a connecting street, and use a residential street to reach their destination; (ii) travel on West Gateway away from Route 166, and south through residential streets running parallel to the highway; or (iii) turn right onto Route 166 northbound, enter a left-turning lane, cross over Route 37, use a jug handle in the northwest corner to reverse direction on Route 166, and again cross Route 37.

On May 20, 2009, Arielle raised a number of concerns about the plan during an informal meeting with staff members of the NJDOT's Office of Access Design (OAD). Thereafter, the OAD issued a letter dated June 20, 2009, which reviewed the access points from Arielle's property and informed Arielle of the OAD's initial determinations.

In the letter, the OAD stated, among other things, that the existing conditions did not conform to the State's highway access code. The OAD wrote that "due to safety concerns and a general lack of space we cannot alter the proposed access design[.]" Arielle sought review of the OAD's decision, and the case was referred to the Office ...


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