Opinion
DOCKET NO. A-3552-14T2
07-25-2016
IN THE MATTER OF THE ISSUANCE OF ACCESS CONFORMING LOT PERMIT NO. A-17-N-N028-2013.
Steven R. Tombalakian argued the cause for appellant Pak's Fast Services, Inc. (Weiner Lesniak LLP, attorneys; Mr. Tombalakian, on the brief). Jason R. Tuvel argued the cause for respondent Bolla Mahwah Realty Group (Gibbons P.C., attorneys; Mr. Tuvel, of counsel; Jennifer P. Smith and Kaitlyn Stone, on the brief). Melissa H. Raksa, Assistant Attorney General, argued the cause for respondent New Jersey Department of Transportation (Robert Lougy, Acting Attorney General, attorney; Ms. Raksa, of counsel; Amy Chung, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from the New Jersey Department of Transportation. Steven R. Tombalakian argued the cause for appellant Pak's Fast Services, Inc. (Weiner Lesniak LLP, attorneys; Mr. Tombalakian, on the brief). Jason R. Tuvel argued the cause for respondent Bolla Mahwah Realty Group (Gibbons P.C., attorneys; Mr. Tuvel, of counsel; Jennifer P. Smith and Kaitlyn Stone, on the brief). Melissa H. Raksa, Assistant Attorney General, argued the cause for respondent New Jersey Department of Transportation (Robert Lougy, Acting Attorney General, attorney; Ms. Raksa, of counsel; Amy Chung, Deputy Attorney General, on the brief). PER CURIAM
Appellant Pak's Fast Services, Inc. (Pak's) challenges a final agency decision of the New Jersey Department of Transportation (DOT) to issue a major access permit, N.J.A.C. 16:47-4.4(a)(2), for two driveways between the property of respondent Bolla Mahwah Realty Group (Bolla) and Route 17 in Mahwah. Discerning nothing arbitrary, capricious, or unreasonable in the DOT's decision, we affirm.
I.
In June 2013, Bolla purchased property located at 130 Route 17 South in Mahwah. The property consisted of approximately two acres and had existing commercial operations that included a gas station, a tire service center, a retail building containing a Dunkin' Donuts, a restaurant, and a convenience store. Combined, the existing buildings had approximately 9566 square feet of commercial space. Several existing access points were located along three different sides of the property: (1) open access along Route 17 south, with two designated curb cuts; (2) one ingress-only driveway from the southbound Route 17 off-ramp; and (3) undefined, open access to South Houvenkopf Road, which is a local roadway. Bolla planned to redevelop the property by removing the existing buildings, constructing a new building with a 7151 square-foot convenience store on the ground level and 2769 square feet of office space on the second story, and expanding the gas station. The existing gas station had five truck fueling stations and eight passenger vehicle fueling stations. Bolla proposed to renovate the gas station so that it would have eighteen passenger vehicle fueling stations and five truck fueling stations.
Bolla later added two more passenger vehicle fueling stations to its proposal.
To obtain approvals for its plans, Bolla made applications to both the Mahwah Planning Board for site plan approval and the DOT for a highway access permit. Pak's owns a competing gas station approximately half a mile south on Route 17. Pak's filed objections before both the Mahwah Planning Board and the DOT arguing that it would be negatively impacted by approval of Bolla's redevelopment plan.
In September 2013, Bolla and the DOT held a pre-application meeting to discuss Bolla's proposed plan for the property and the property's access to Route 17. Bolla proposed that the existing access along Route 17 be consolidated into one right-turn ingress-only driveway and one right-turn egress-only driveway; the existing ingress driveway from the adjacent Route 17 ramp would be removed, and alternative access to Route 17 via the adjacent South Houvenkopf Road would be provided through one "full-movement driveway" and one truck egress-only driveway. As part of their pre-application meeting, Bolla and the DOT discussed improving Route 17 and the ramp to Route 17 next to Bolla's property. Ultimately, Bolla agreed to make certain improvements to Route 17 and its ramp, including creating an auxiliary lane.
Bolla then submitted a major access permit application to the DOT in October 2013. Bolla estimated that the proposed redevelopment would generate more than 500 vehicle trips per day directly accessing Route 17, with less than 200 peak-hour vehicle trips. Bolla also estimated that 21% of vehicles would use South Houvenkopf Road.
In December 2013, Bolla submitted a land use application to the Mahwah Planning Board. Initially, Bolla proposed to have the same driveway access as it proposed to the DOT. The Planning Board, however, informed Bolla that it did not have jurisdiction over the application because the full-movement driveway onto South Houvenkopf Road would require a type of variance that can only be granted by the Zoning Board of Adjustment. Bolla, therefore, revised its plan and removed the full-movement driveway, leaving intact the two driveways accessing Route 17 and the truck egress-only driveway onto South Houvenkopf Road. Following four public hearings, during which Pak's participated, the Mahwah Planning Board approved Bolla's site plan.
After the municipal site plan had been approved, Bolla and the DOT continued to communicate. During that time frame, Pak's filed objections with the DOT, including submissions made in May and November of 2014. Both Bolla and the DOT responded to Pak's objections.
In October 2014, as Bolla continued to refine its proposal, it provided the DOT with a revised site plan that depicted two access driveways on Route 17 and one driveway onto South Houvenkopf Road with a lane labeled "TRUCK EXIT" and another lane labeled "EXIT." After considering the comments and information provided by both Bolla and Pak's, the DOT issued an access permit on February 26, 2015. On April 1, 2015, the DOT re-issued the permit with corrected traffic volumes.
Pak's now appeals the DOT's highway access permit issued to Bolla.
II.
A.
Initially, we address Pak's standing to challenge the access permit because Bolla argues that Pak's is not an interested party and lacks standing.
"In New Jersey, courts take 'a liberal approach to standing to seek review of administrative actions.'" In re Grant of Charter to Merit Preparatory Charter Sch. of Newark, 435 N.J. Super. 273, 279 (App. Div.) (quoting In re Camden Cty., 170 N.J. 439, 448 (2002)), certif. denied, 219 N.J. 627 (2014). An appellant appealing an administrative decision has standing if it demonstrates "a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that [appellant] will suffer harm in the event of an unfavorable decision." In re Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007, 417 N.J. Super. 115, 126 (App. Div. 2010) (alteration in original) (quoting In re Camden Cty., supra, 170 N.J. at 449).
In Permit No. A-17-N-N040-2007, we addressed Pak's standing to appeal a DOT decision. Id. at 127. In that case, Pak's was less than a quarter mile north of a competitor gas station that received an access permit. Ibid. Based on the similarities between that case and the record here, Pak's has standing to appeal the DOT's decision.
B.
On appeal, Pak's makes five arguments: (1) Bolla's elimination of an alternative access to the State highway system rendered the lot non-conforming and ineligible for a conforming lot access permit under the Highway Access Management Code; (2) the issued access permit improperly authorized excess traffic volume beyond the site's capacity; (3) Bolla's trip generation estimates exceeded the safe capacity of its non-conforming lot and should have triggered planning review; (4) the access permit compromises public safety; and (5) the DOT's consideration of Bolla's access application was unduly influenced by inappropriate consideration of roadway improvements to be financed by Bolla.
Appellate review of a decision of an administrative agency is "limited in scope." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009) (citing In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007)). An appellate court will not set aside an agency's decision unless shown that "it was arbitrary, capricious or unreasonable." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In reviewing the decision of an administrative agency, we consider whether the decision "violates express or implied legislative policies," there is substantial evidence to support the factual findings upon which the decision is based, and, in applying the law "to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Circus Liquors, supra, 199 N.J. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).
"Through the State Highway Access Management Act, N.J.S.A. 27:7-89 to -98 [(the Highway Access Act)], the Legislature delegated authority over State highway access to the DOT." In re Route 206 at New Amwell Rd., 322 N.J. Super. 345, 353 (App. Div.), certif. denied, 162 N.J. 197 (1999). The Highway Access Act requires "[a]ny person seeking to construct or open a driveway . . . entering into a State highway [to] first obtain an access permit from the [DOT]." N.J.S.A. 27:7-92(a). The DOT manages access to the State highways under the Highway Access Act and its implementing regulations, the State Highway Access Management Code, N.J.A.C. 16:47-1.1 to -9.1 (the Highway Access Code). The Highway Access Code sets forth the "administrative procedures for the issuance of access permits." N.J.S.A. 27:7-91(d).
Applying our standard of review to the applicable law and the record in this matter, we conclude that the DOT's decision to issue the permit was reasonable and supported by substantial credible evidence. First, the DOT applied a reasonable interpretation to the Highway Access Code's definition of alternative access. Pak's argues that the elimination of the full-movement driveway onto South Houvenkopf Road indicates that the property no longer provides alternative access to Route 17. We disagree.
"Alternative access" is defined as "the ability of any vehicle to enter a State highway indirectly through another improved roadway instead of directly from a lot across its State highway frontage." N.J.A.C. 16:47-1.1. The DOT encourages alternative access "to minimize the number of access points on the State highway system." N.J.A.C. 16:47-3.2(c).
Pak's first contends that the only driveway from the property onto South Houvenkopf Road does not provide alternative access because the driveway does not allow ingress from Route 17. Pak's grounds its argument in N.J.S.A. 27:7-94(c), which relates to revocation of an access permit. See N.J.S.A. 27:7-94(a) ("The commissioner may . . . revoke an access permit after determining that alternative access is available . . . ."). Here, Bolla's access permit was not revoked, thus the question is whether "any vehicle [can] enter a State highway indirectly." See N.J.A.C. 16:47-1.1 (emphasis added).
Pak's next argues the phrase "any vehicle" in N.J.A.C. 16:47-1.1 should be interpreted to mean that all vehicle types must be able to use the driveway onto South Houvenkopf Road for alternative access to exist. Because Bolla's plan only allows truck egress, Pak's argues the property does not provide alternative access. The DOT contends that the site plan depicts a driveway labeled "EXIT," which would allow both trucks and passenger vehicles to exit onto South Houvenkopf Road. The DOT also argues that "any vehicle" should be interpreted to mean that alternative access exists as long as one type of vehicle is able to exit. Regardless of whether the lane labeled "EXIT" on the site plan permits passenger vehicles, the DOT reasonably concluded the property would provide alternative access to Route 17 because trucks would access Route 17 through South Houvenkopf Road. See Acoli v. N.J. State Parole Bd., 224 N.J. 213, 230 (2016) ("We will defer to an agency's interpretation of both a statute and implementing regulation, within the sphere of the agency's authority, unless the interpretation is 'plainly unreasonable.'" (quoting In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010))).
Second, the DOT reasonably concluded that the site was in "conformance" with DOT regulations. N.J.A.C. 16:47-3.5(a) sets forth the various calculations used to determine conformance. Those calculations vary by type of lot. The parties do not dispute that the property here is a "corner lot." See N.J.A.C. 16:47-3.5(a)(4)(i). They also do not dispute that the first component of conformance for a corner lot, which involves the distance to the "the next adjacent, non single-family residential lot," is satisfied. Ibid.
The second component depends on whether alternative access is provided to the lot. As already noted, the DOT reasonably concluded the property provides alternative access. The question before us is whether "one-half of the State highway frontage plus one-half of the side street frontage is greater than or equal to the spacing distance required on the State highway." N.J.A.C. 16:47-3.5(a)(4)(i)(2). The DOT provided two explanations for how the property is conforming. One explanation involved an interpretation of what constituted "State highway frontage" as it related to the property and the other explanation related to the property's "side street frontage." Given our standard of review and the record, we conclude the DOT was not arbitrary or capricious in finding that under the Highway Access Code the property is conforming.
We also conclude, the DOT did not act arbitrarily or capriciously in reviewing Bolla's permit as a major access application, as opposed to a major access application with planning review. Specifically, the DOT's trip generation estimates were reasonable.
The Highway Access Code provides three types of access permit applications: minor, major, and major with planning review. N.J.A.C. 16:47-1.1, -4.4(a). To trigger a major access application, the proposed plan must generate 500 or more two-way vehicle trips per day but less than 200 two-way vehicle trips during peak-hours. N.J.A.C. 16:47-4.4(a)(2). To trigger a major access application with planning review, which has more stringent requirements, compare N.J.A.C. 16:47-4.11 (major), with N.J.A.C. 16:47-4.13 (major with planning review), the proposed plan must exceed both the 500 daily vehicle trip threshold and the 200 peak-hour vehicle trip threshold. N.J.A.C. 16:47-4.4(a)(3). To determine vehicle trips, the DOT applies traffic generation techniques outlined in a publication by the Institute of Transportation Engineers (ITE). N.J.A.C. 16:47-4.3(i)(1), -4.4(b).
Here, the parties do not dispute that Bolla's proposed use would generate over 500 daily vehicle trips. Pak's contends that the DOT incorrectly calculated the peak vehicle trips and that the correct calculations would exceed the 200 peak-hour limit, thus triggering planning review. In accordance with the ITE's guidelines, the DOT calculated the estimated vehicle trips by classifying the property's usage and using the equation associated with such use, inserting into the equation the square footage of the building which would provide that use. Because the property had two separate proposed uses, the DOT separated the convenience store's square footage from the office space square footage. Pak's claims the DOT incorrectly separated the two uses. We defer to the DOT and its application of the techniques described by the ITE in calculating the two uses of the structure separately.
The ITE guidelines also allow trip estimates by using the number of vehicle fueling positions, but according to the DOT, the agency "long ago established the [relevant] variable as square footage." --------
Additionally, because the property was going "to be served by alternative access as well as direct access," N.J.A.C. 16:47-4.4(b), Bolla received a 21% credit for the amount of vehicle trips estimated to use South Houvenkopf Road. As a result, Bolla's peak-hour trip estimates were below 200. Consequently, the DOT was not arbitrary or capricious in failing to require planning review.
There is also nothing in the record to suggest that the access permit compromises public safety. Pak's primarily relies on a traffic impact study Bolla submitted to the Mahwah Planning Board to argue that the traffic will result in unsafe conditions. Neither Bolla nor Pak's provided that traffic impact study to the DOT. See Permit No. A-17-N-N040-2007, supra, 417 N.J. Super. at 133 (holding that data submitted to the DOT by Pak's was required to be considered). Because that traffic study was not presented to the agency during its review of the application, we will not consider it for the first time on appeal. See R. 2:5-4(a); In re Registrant P.B., 427 N.J. Super. 176, 188 (App. Div. 2012). Pak's also argues the traffic volumes would be unsafe because they exceed the amount permitted for a non-conforming lot. See N.J.A.C. 16:47-3.5(b). In light of our conclusion that the lot is in conformance, we need not address this argument.
Finally, Pak's made no showing that the DOT was unduly influenced by inappropriate considerations. Pak's argues that the DOT improperly considered Bolla's agreement to build an auxiliary lane on Route 17 as part of its conformance determination. Pak's argument is essentially that the DOT engaged in an illegal quid pro quo scheme. This case is not, however, like Nunziato v. Planning Board of Edgewater, 225 N.J. Super. 124, 134 (App. Div. 1988), where a municipality's "free-wheeling bidding" arrangement compelled a developer to pay a substantial sum of money as a condition of receiving a variance. Moreover, the Highway Access Code allows the DOT to request an applicant to contribute to "capacity improvements to the State highway system necessitated by traffic attributable to the development of the lot." N.J.A.C. 16:47-4.34(a). Accordingly, the DOT acted reasonably in requiring Bolla to improve Route 17 by constructing an auxiliary lane, and as we noted earlier, the conformance calculations were reasonable without taking the auxiliary lane into consideration.
In summary, the DOT's decision to issue the highway access permit was reasonable and we discern nothing arbitrary, capricious or unreasonable in that agency action.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION