Opinion
DOCKET NO. A-4339-14T4
08-01-2016
IN THE MATTER OF THE ISSUANCE OF ACCESS STREET INTERSECTION PERMIT NO. S-10-N-0002-2013.
Richard F. Ricci argued the cause for appellant Maria Esposito (Lowenstein Sandler LLP, attorneys; Kevin G. Walsh, on the brief). Michael D. Sullivan argued the cause for respondents Township of Hanover and Hanover Township Planning Board (Dorsey and Semrau, attorneys for respondent Township of Hanover; Stickel, Koenig, Sullivan and Drill, attorneys for respondent Hanover Township Planning Board; Dawn M. Sullivan and Mr. Sullivan, on the joint brief). Kevin J. Coakley argued the cause for respondent Hanover 3201 Realty, LLC (Connell Foley LLP, attorneys; Mr. Coakley, of counsel; Nicole B. Dory and Nicholas W. Urciuoli, on the brief). Andrew M. Kuntz, Deputy Attorney General, argued the cause for respondent New Jersey Department of Transportation (Robert Lougy, Acting Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Kuntz, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Kennedy. On appeal from the New Jersey Department of Transportation. Richard F. Ricci argued the cause for appellant Maria Esposito (Lowenstein Sandler LLP, attorneys; Kevin G. Walsh, on the brief). Michael D. Sullivan argued the cause for respondents Township of Hanover and Hanover Township Planning Board (Dorsey and Semrau, attorneys for respondent Township of Hanover; Stickel, Koenig, Sullivan and Drill, attorneys for respondent Hanover Township Planning Board; Dawn M. Sullivan and Mr. Sullivan, on the joint brief). Kevin J. Coakley argued the cause for respondent Hanover 3201 Realty, LLC (Connell Foley LLP, attorneys; Mr. Coakley, of counsel; Nicole B. Dory and Nicholas W. Urciuoli, on the brief). Andrew M. Kuntz, Deputy Attorney General, argued the cause for respondent New Jersey Department of Transportation (Robert Lougy, Acting Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Kuntz, on the brief). PER CURIAM
Maria Esposito, an employee of Village Supermarket, Inc. (Village) appeals from the April 23, 2015 New Jersey Department of Transportation (NJDOT) issuance of a Street Intersection Permit related to a commercial development in Hanover Township (the Wegmans project). Hanover 3201 Realty, LLC (Hanover 3201) is the developer of the site, which includes a Wegmans supermarket. The Wegmans project is located on a 38-acre parcel situated between State Highway Route 10 and Interstate 287. Village owns numerous ShopRite supermarkets, including one on Route 10 in Morris Plains, and one under construction in Hanover Township, both of which are less than two miles from the location of the Wegmans project. Village has been objecting to this development since 2013. Other competitors objected to prior projects on this property.
Esposito lives approximately two miles away from the site of the proposed Wegmans project. Village was denied standing to challenge a Planning Board determination by the trial court on June 30, 2014. Village Supermarkets, Inc. v. Planning Board of Township of Hanover, A-5651-13 (App Div. Dec. 14, 2015) (slip op. at 10). Esposito filed this appeal in June 2015, well before we overturned that decision. See Id. at 1.
A history of the site, or "Campus" of the proposed Wegmans project is provided by our unpublished decision in Village Supermarkets, Inc. v. Planning Board of Township of Hanover, A-5651-13 (App Div. Dec. 14, 2015):
Prudential Insurance Company of America (Prudential), the original owner of the Campus, had previously sought to develop it into a multi-million square foot office complex. On November 14, 1978, Prudential entered into a developer's agreement with the New Jersey Department of Transportation (NJDOT). This agreement required Prudential to construct various roadway improvements in exchange for the right to develop the Campus in four phases. On June 16, 1981, Prudential and the NJDOT entered into an addendum to the developer's agreement as part of the project's second phase. Prudential thereby agreed to construct additional traffic improvements, and obtained approval to build two office buildings and a hotel. On May 27, 1986, Prudential and the NJDOT entered into a second addendum to their developer's agreement that obligated Prudential to make additional traffic improvements in the third and fourth phases of the development. Exhibit A-2 of the 1986 addendum described the phase three construction schedule as consisting of 1,750,000 square feet of office space. Notably, in connection with the fourth phase, Prudential was required to construct a grade separation with ramps above I-287 (the "overpass").
On February 25, 1986, the [Hanover Township Planning] Board adopted a resolution granting Prudential preliminary major subdivision approval for the Campus development. The Board's approval was conditioned on Prudential's compliance with the Township's engineering report, and "[i]mplementation of the highway improvement plan . . . including the construction of Dryden Way ramps, Ridgedale Avenue extension and improvements, and the bridge over I-287 with ramps."
On February 28, 1989, the Board adopted a second resolution granting Prudential
preliminary major subdivision approval for the Campus project. The 1989 approval was conditioned on Prudential's compliance with designated items contained in the December 20, 1988 Township engineer's review list. Although the 1989 resolution itself was silent as to the I-287 overpass requirement, item 1(c) on the engineer's list contained the notation, "[NJDOT] 287 overpass approval pending."
On February 23, 1993, the Board granted Prudential final major subdivision approval for the Campus project. This third Board resolution required Prudential to enter into a developer's agreement with the Township regarding the Route I-287 overpass improvements.
On March 23, 1995, the Township entered into a developer's agreement with Prudential's affiliate, PRUBETA-3, to implement the Board's 1989 and 1993 preliminary and final subdivision approvals. Under this agreement, all work was to be completed within forty-eight months, unless extended by the Township. . . .
. . . .
The agreement also provided that it "shall run with the land as shall also the covenants herein contained, and shall be to the benefit of the Developer and the Township and their respective successors and assigns."
In 1998, Prudential sold the Campus to [Mack-Cali], which agreed to assume all of Prudential's obligations under its developer's agreement with the Township. At that time, Prudential had completed most of the traffic improvements required by the 1978 NJDOT developer's agreement, but not the phase four improvements or the I-287 overpass. In March 1999, [Mack-Cali] wrote
to the Township requesting a two-year extension to complete the improvements. The record before the trial court appears to be silent on whether this request was granted.
On December 13, 2012, the Township amended its zoning ordinance, thereby rezoning the Property to an Office Building Designated Shopping Center Zone District in which supermarkets were a permitted use. Following the zone change, Hanover 3201 applied to the Board for preliminary and final site plan approval and bulk variance relief ("the 2013 application"). Hanover 3201 sought approval to construct five buildings totaling 170,550 square feet on the Property, including a 140,000 square foot Wegmans supermarket, three restaurants, and a bank.
Encompassed within the 2013 application were proposed changes to the intersection of Route 10 and Ridgedale Avenue. Hanover 3201 sought to transform this intersection into the shopping center's primary means of ingress and egress. Specifically, Hanover 3201 proposed to: (1) add an exclusive left-turn lane to eastbound Route 10; (2) modify southbound Ridgedale Avenue to add a double left-turn lane and a through lane within the intersection; and (3) modify northbound Ridgedale Avenue to include a double left-turn lane and a through lane.
[Village Supermarkets, Inc., supra, slip op. at 3-7 (second, third, fourth and fifth alterations in original).]
Village challenged the approval of the Hanover Planning Board, first through an action in lieu of prerogative writs and then an appeal. See Id. at 9-11.
Village also challenged various approvals from the New Jersey Department of Environmental Protection (NJDEP). Village filed an action challenging certain permits issued to Hanover Realty by the NJDEP, which the Chancery Division ultimately characterized as "futile." Village also contested the manner in which Hanover Township has handled the Planning Board's determination in a separate action pending before the Law Division. Esposito v. Hanover 3201 Realty, LLC, et al., MRS-L-1320-15.
In an action brought by Hanover 3201 against Village and others in federal court, the Third Circuit stated the following:
All in all, the allegations and the record show that Hanover [3201] received the Flood and Wetlands Permits, it got the state-court action dismissed, and it avoided having to make significant highway improvements. Defendants' meager record on the merits supports Hanover [3201]'s allegation that that the filings were not brought to redress any grievances. Nor have Defendants articulated any genuine interest in flooding or traffic near the proposed Wegmans (which is two miles away from the ShopRite), or in protecting the Indiana bat. Rather, Hanover [3201] sufficiently alleges that Defendants brought these actions under a policy of harassment with the effect of obstructing Hanover [3201]'s access to governmental bodies. The filings have imposed significant expense on Hanover [3201], have continued to delay the project, and threaten the viability of the project altogether.
[Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 182 (3d Cir. 2015).]
I. The Wegmans Proposal
On October 4, 2012, Hanover 3201 submitted a Scope of Study (SOS)/Traffic Impact Study regarding proposed intersection improvements at Route 10 and Ridgedale Avenue in Hanover Township. The study was prepared by Staigar & Peregoy, LLC (Staigar Engineering) "to assess the distribution of site generated traffic associated with the addition of a southbound approach of Ridgedale Avenue to Route 10 associated with the construction of a proposed shopping center." The development would "necessitate the need for [a] proposed traffic signal modification[,] and the traffic volumes anticipated to utilize the approach requires a Street Intersection Application [(SIA)] with Planning Review."
Before any modification, eastbound Route 10 "provide[d] an exclusive right-turn lane and four (4) through lanes. Westbound Route 10 provide[d] a channelized right-turn ramp and four (4) through lanes." The northbound lane of Ridgefield "provide[d] a double left-turn lane and channelized double right-turn lane." The proposed modification "contemplated that an exclusive left-turn lane [would] be added to eastbound Route 10." "Southbound Ridgedale Avenue [would] maintain the channelized right-turn lane to westbound Route 10 and a double-left-turn lane and a through lane [would] be added within the signalized intersection." The northbound lane of Ridgedale Avenue would "be modified to include a double-left-turn lane, a through lane and the existing channelized double right-turn lane." In December 2012 NJDOT approved the SOS and advised that Hanover 3201 could proceed in preparing a comprehensive Traffic Impact Study. That same month, Hanover Township adopted Town Ordinance No. 23-12, amending the zoning ordinance to render the Wegmans project a permitted use within its zone.
The following month, Hanover 3201 Realty, LLC (Hanover 3201) submitted a SIA to NJDOT. The County of Morris Department of Planning and Development wrote to NJDOT offering several comments, including concerns about the construction of a left-turn lane on Route 10.
In April 2013, NJDOT sent Staigar Engineering a NJDOT internal memorandum outlining concerns with the proposed project, including the proposed left-turn lane to be included on Route 10:
The proposed [eastbound] left-turn lane is in violation of [the] current access code and violates driver expectancy on this road. Left turning vehicles have existing alternate access point from NJ Route 10 at Dryd[e]n Way underpass as well as U-turn capability at Jefferson Road. Granting a waiver is not recommended, unless alternate
distribution of left[-]turning vehicles is shown to have a significant detrimental impact to the alternate access points.
Staigar Engineering responded to NJDOT's letter by noting that the proposal already considered the utilization of the access points at Jefferson Road and Dryden Way. Hanover 3201 also submitted a revised Traffic Impact Assessment (TIA) for the Wegmans project, which was received in May 2013 and continued to include a left-turn lane on Route 10.
In June 2013 the Hanover Township Planning Board approved Hanover 3201's application for preliminary and final site plan approval and bulk variance relief for the Wegmans project.
On September 17, 2013, Village wrote to NJDOT and attached a traffic assessment from Henry J. Ney, P.E. Ney raised concerns regarding the waivers for the left-turn lanes on the eastbound lanes of Route 10 and the southbound lane of Ridgedale Avenue. He also expressed disagreement with the use of "pass-by" credits in Staigar Engineering's traffic assessment.
The Administrative Code provides "pass-by credits" in traffic impact studies for a "vehicle which stops at the site after coming directly from the traffic stream going by the site headed for an ultimate destination other than the site." N.J.A.C. 16:47-1.1. --------
Over the next few months, Staigar Engineering submitted other revised TIAs and plans, addressing the concerns raised by NJDOT and Village. On October 9, 2013, Village wrote to NJDOT regarding the 1978 and subsequent agreements between Prudential and NJDOT, insisting that they be enforced. Later, in May 2014, an agreement was reached between Mack-Cali, Hanover 3201's parent company, and NJDOT addressing the expressed concerns.
In February 2014 NJDOT sent Staigar Engineering a letter stating that the SOS approved on December 4, 2012 was satisfactory, "and that the methodology used for the traffic count program in establishing the exiting traffic volumes was also satisfactory." NJDOT concurred with Staigar Engineering's calculation of the induced traffic at Route 10. NJDOT, however, stated that it would not approve the left-turn lane, and suggested that a "reverse loop jughandle" be constructed at the intersection because it would eliminate the need for any waiver and improve service at the intersection. NJDOT also found the 1978 agreement with Mack-Cali, previously amended in 1981 and 1986, not to be feasible, and further amended it in May 2014.
Dynamic Traffic, formerly Staiger Engineering, responded to NJDOT with a revised plan that eliminated the left-turn on eastbound Route 10 and incorporated the suggested reverse loop jughandle. The plan continued to contain the left-turn lanes on southbound Ridgedale Avenue.
The following month, NJDOT wrote to the Mayor of Hanover Township, the attorneys for Hanover 3201 and Village, and the consultants involved in the application to advise them the record was being closed so that NJDOT could fairly evaluate the submissions. NJDOT stated, "The last several submissions from Village and [Hanover 3201] . . . have not introduced any new information of substance but rather expressed differing interpretations and opinions of information and analyses previously available."
On October 24, 2014, NJDOT sent separate correspondence to Village and Hanover 3201. In the letter to Village, regarding the "pass-by trip" credits, NJDOT stated:
The Department agrees that the credit for "pass-by" trips taken by the applicant is not appropriate. ITE [(Institute of Transportation Engineers)] clearly defines Pass-By trips as trips made "As intermediate stops on the way from an origin to a primary trip destination without a route diversion." Intuitively, just as there was an "induced traffic" component to the intersection, there will be vehicles leaving Route 10 on their way to another destination, using the local street network and stopping at the proposed shopping center before returning to Route 10. ITE describes these trips as "diverted link" trips. ITE cautions on the use of both pass-by trips and diverted link trips but specifically does not include average percentages for diverted link usage. The [State Highway] Access [Management] Code does not include consideration of diverted link trips. Therefore the traffic analysis of all study locations should be performed without the credit for pass-by trips taken by the applicant.
In correspondence to Hanover 3201, NJDOT addressed the "pass-by credits," stating that the application of a credit would be inconsistent with the New Jersey State Highway Access Management Code (Access Code), N.J.A.C. 16:47-1.1 to -9.1. NJDOT stated that "the traffic analysis of all study locations should be performed without the credit for pass-by trips taken by the applicant."
Dynamic Traffic responded to NJDOT, including a revised TIA and Plan that eliminated the use of pass-by credits at all study locations, but included the addition of two left-turn lanes on southbound Ridgedale Avenue, which required waivers.
On March 24, 2015, Mitchell Hersh, Mack-Cali's President, sent an e-mail to NJDOT asking for an update on the application. The email noted that Hanover 3201 had "spent well over . . . $1 million in professional fees" pursuing the application and complying with NJDOT's requirements.
Six days later, Dynamic Traffic wrote to NJDOT, stating:
In an effort to eliminate the waivers previously requested for the above referenced project, the development proposal has been amended to remove the southbound left-turn approach to Route 10 from Ridgedale Avenue. Accordingly, the development proposal now contemplates only the far-side jughandle along eastbound Route 10 and the restriping of the northbound Ridgedale Avenue approach to the intersection. The analysis of the new configuration results in no violations to
Access Code criteria and eliminates the need for any waivers.
Village wrote in opposition and on April 15, 2015, NJDOT responded to Village, indicating: 1) the removal of the left-turn lanes on Ridgedale Avenue eliminated the need for any waivers, including for "Level of Service" violations 2) upon further review, the traffic analysis submitted by Dynamic Traffic was proper and "diverted site trips" would not be considered new trips and were consistent with the percentage of trips attributed to "pass-by trips," rendering the traffic study consistent with the Access Code and acceptable to NJDOT; and 3) the concept of the jughandle was satisfactory. NJDOT stated no work should commence prior to receiving full construction plans. NJDOT sent an executed permit to Dynamic Traffic in April 2015.
II. Standing
Hanover 3201 and the Township of Hanover argue that Esposito does not have standing to challenge the grant of the permit. "Standing is a creature of the common law, as New Jersey courts 'will not . . . entertain proceedings by plaintiffs who do not have sufficient legal standing to maintain their actions.'" Jen Elec., Inc. v. Cty. of Essex, 197 N.J. 627, 647 (2009) (quoting Al Walker Inc., v. Stanhope, 23 N.J. 657, 660, (1957)). "New Jersey takes 'a liberal approach to standing to seek review of administrative actions.'" In re Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007, 417 N.J. Super. 115, 126 (App. Div. 2010) (quoting In re Camden Cty., 170 N.J. 439, 448 (2002)). Parties who own property in the vicinity of a proposed land development and competitors of a business operation may have standing to appeal. Ibid. We review the issue of standing de novo. Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 381 (App. Div. 2010).
We have held that an objector had standing because it (1) owned property .2 miles north of the property at issue, (2) alleged that it would "be negatively impacted by the congestion and accidents caused by the [applicant's] site's faulty [highway access] design," and (3) would suffer economic harm. In re Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007, supra, 417 N.J. Super. at 127 (second alteration in original).
Plaintiff does not argue that she has "a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, [or there is] a substantial likelihood that [she would] suffer harm in the event of an unfavorable decision." 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., supra, 170 N.J. at 449), certif. denied, 219 N.J. 627 (2014). Rather, plaintiff points out that "when an issue involves a 'great public interest, any slight additional private interest [is] sufficient to afford standing.'" Ibid. (quoting Salorio v. Glaser, 82 N.J. 482, 491, cert. denied, 449 U.S. 804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980)). Plaintiff argues that the permit implicates great public interest because of unsafe driving conditions near Route 10's intersection with Interstate 287, the unsafe conditions presented by the proximity of the jughandle and the access point of the corner lot, the interest in having NJDOT properly enforce its own Access Code, and the confidence that NJDOT is making its decisions without the influence of improper political pressure. Plaintiff then points to her private interest as a resident of Hanover Township living two miles from the intersection, stating that "allowing a reverse jughandle to be built, for the sole benefit of a private developer and at the expense of traffic safety and efficiency," would result in consequences that are "detrimental to all property owners in the vicinity of this heavily-traversed highway and Intersection, and [would] directly and negatively impact Plaintiff as a local township resident and taxpayer."
Lastly, plaintiff argues that our decision in a related appeal granting standing to Village in making an objection to the Hanover Township Planning Board determination confirms that her status as a "taxpayer" and "property owner" provide her with standing on this appeal. See Village Supermarkets, Inc. v. Planning Board of Township of Hanover, supra, slip op. at 14.
The challenge in that case was to a Planning Board determination, which directly implicated Village's status as a taxpayer. Further, we noted the taxpayer and property owner status in conjunction with the business owner status in finding that Village had "a sufficient stake in the approval" of the Wegmans project. Ibid. In addition, standing to appeal the decisions of a zoning board is rooted in statutory authority, which allows "interested part[ies]," defined as "any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [the Municipal Land Use Law]." N.J.S.A. 40:55D-18; N.J.S.A. 40:55D-4.
Unlike the facts of In re Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007, supra, the Town and its Planning Board have now given full support to the Wegmans project. See 417 N.J. Super. at 127. The jughandle does impact those in the area who travel the roadway, which is a sufficient public interest under the standards articulated. Ibid. Additionally, we assume Village would have filed this appeal, had it not been wrongly denied standing by the trial court in a related matter.
III. Standard of Review
"The Legislature has delegated to the [NJ]DOT authority over highway access management in this state." In re Revocation of Access of Block 1901, Lot No. 1, Borough of Paramus, Bergen Cnty. Parkway 17 Assocs., 324 N.J. Super. 322, 335 (App. Div.), certif. denied, 162 N.J. 664 (1999). In granting NJDOT authority to regulate the state highways, the Legislature also required NJDOT to adopt the Access Code to govern its functions and authority. Ibid.
The review of NJDOT's determinations, like other final agency determinations, is limited. Id. at 334; In re Carter, 191 N.J. 474, 482 (2007). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious or unreasonable; that it lacked fair support through substantial evidence; or that it violated legislative policies expressed or implied in the act governing the agency. In re Musick, 143 N.J. 206, 216 (1996). "A determination by an administrative agency carries a presumption of correctness." In re Paramus, supra, 324 N.J. Super. at 334. When an agency operates within the specific functions delegated by statute, their decisions are accorded wide discretion. Ibid. Importantly, "agency action is accorded even greater judicial deference when it falls within an area of expertise specifically assigned by the Legislature to a particular administrative agency." Ibid.
We do not substitute our judgment for that of NJDOT "so long as 'there is substantial credible evidence present in the record to support'" its determination. Tosco Corp. v. N.J. Dept. of Transp., 337 N.J. Super. 199, 206 (App. Div. 2001) (quoting Twp. of Hopewell v. Goldberg, 101 N.J. Super. 589, 597 (App. Div.), certif. denied, 52 N.J. 500 (1968)).
IV. Traffic Counting Figures
Plaintiff argues that NJDOT acted arbitrarily, capriciously, and unreasonably by issuing the permit despite certain violations of the Access Code. She argues that Hanover 3201 failed to utilize the required amount of traffic machine counters and failed to increase the traffic volume weekday counts to the highest hour machine count for the week, in contravention of N.J.A.C. 16:47-4.37(c).
Pursuant to N.J.A.C. 16:47-4.37(a), "Traffic counts shall be taken by the applicant or, if available at the Department, obtained from the Department for study area locations." As required by the Access Code:
The number of two-way, all lane, machine counters shall be no less than the number of signalized intersections to be counted. Generally, the counters shall be placed to cordon the State highway limits of the study area.
[N.J.A.C. 16:47-4.37(c) (emphasis added).]Plaintiff argues that Hanover 3201 was required to conduct a count on two separate intersections, Route 10 and Jefferson Road, and Route 10 and Ridgedale Avenue, but only did so for the Ridgedale Avenue location. Plaintiff claims that NJDOT's acceptance of this incomplete data was an arbitrary and capricious decision, and the additional manual counts were insufficient to cure any deficiency.
NJDOT responds that the Access Code affords NJDOT "wide latitude to accept traffic count methods which do not explicitly conform with these requirements but nonetheless comply with the regulation's overall intent." NJDOT points to N.J.A.C. 16:47-4.37(e), which states, "At or after a pre-application meeting, the Department may approve alternative proposals for counting programs as long as they conform to the intent of (b) through (d) above."
A reasonable interpretation of N.J.A.C. 16:47-4.37(e) allows NJDOT to accept any counting program that "conform[s] to the intent" of the code provision governing traffic counts. As NJDOT points out, subsection (b) through (d) reference various methodologies that are utilized to promote accuracy in obtaining the traffic count.
Plaintiff fails to demonstrate how NJDOT's method of calculating the traffic volume is arbitrary and unreasonable. The determination of what calculation to use pursuant to the provisions of the code falls within the "special knowledge or expertise" of NJDOT, and since the TIA was accepted, deference to NJDOT's analysis is warranted. See Abbott by Abbott v. Burke, 149 N.J. 145, 211 (1997). Plaintiff has articulated no reason why NJDOT's calculations are "plainly unreasonable." See Merin v. Maglaki, 126 N.J. 430, 436-37 (1992). We defer to NJDOT's expertise in accepting a different counting method to fulfill the overall purpose of the provision in the code.
V. The Jughandle
Plaintiff argues the permit was issued in violation of N.J.A.C. 16:47-3.5(g) because the construction would create a nonconforming lot, pointing to the "spacing distance" between the frontage of different buildings on the highway. Plaintiff contends the "mouth" of the jughandle is closer than 275 feet to the centerline of the frontage on the corner lot, although no precise measurement is provided in the record.
A non-conforming lot pursuant to N.J.A.C. 16:47-3.5(a)(4) must be 275 feet when the speed limit is 50 miles per hour. The relevant provision regarding the creation of a nonconforming lot states:
On all State highways classified as access level 3, 4, and 5, a street proposed to extend to the State highway may only intersect a State highway if it does not create nonconforming lots on either side of the intersection or if the nonconforming lots created have no direct access to the State highway.
[N.J.A.C. 16:47-3.5(g).]
Plaintiff argues in footnote 10 of its brief that the Access Code does not exclude a jughandle from the definition of a "street." A street is defined in N.J.A.C. 16:47-1.1 as:
any public or private right-of-way, whether open or improved or not, including all existing factors of improvements, where:
1. In a distance of 1,320 feet (402 meters) on its centerline, there are 20 or more houses within 100 feet (30.5 meters) of the centerline;
2. The governing body in charge thereof and the Commissioner may declare a street; or
3. The incorporated municipality is over 12,000 in population.
NJDOT argues to the contrary, that the jughandle is not a street, but rather a "State Highway" under the definition in the Access Code. A State Highway is defined as "a road owned, taken over, controlled, built, maintained, or otherwise under the jurisdiction of the State." N.J.A.C. 16:47-1.1. NJDOT argues that because the jughandle is being constructed on a state right of way, it is under the jurisdiction of the state and, thus, no change would occur by the creation of the jughandle. Categorizing the jughandle as a state highway is not arbitrary, capricious or unreasonable.
VI. The Scope Of Study
Plaintiff argues that NJDOT improperly allowed Hanover 3201 to utilize "pass-by credits" in the traffic impact study and that this decision was arbitrary, capricious, and unreasonable. Plaintiff contends NJDOT improperly allowed "pass-by credits" to substitute for "diverted link trips." Plaintiff further contends NJDOT's decision relieved Hanover 3201's burden of assessing other intersections that would have been impacted if the credits were not given.
The "Trip Generation Handbook" defines the trips:
1) A pass-by trip is made as an intermediate stop on the way from an origin to a primary trip destination without a route diversion. Pass-by trips are attracted from traffic passing the site on an adjacent street or roadway that offers direct access to the generator. Pass-by trips are not diverted from another roadway not adjacent to the site.
2) A primary trip is made for the specific purpose of visiting the generator.
3) A diverted trip is attracted from the traffic volume on roadways within the vicinity of the generator but without direct access to the site. A diverted trip requires diversion from a roadway not adjacent to the site to another roadway to gain direct access to the site. A diverted
trip adds traffic to streets adjacent to a site and could remove a trip on streets from which it diverted.
NJDOT argues that it properly considered the diverted link trips in allowing them to be treated as pass-by trips. NJDOT points to the general provisions governing traffic studies:
For trip generation, applicants shall use the Institute of Transportation Engineers [ITE] publication entitled "Trip Generation, 6th Edition," 1997 or superseding edition, or superseding rates adopted by the Department. For land uses not listed in this source or when an applicant believes these rates are not representative, the Department may accept alternative evidence of representative rates. The rates shall be summarized in tabular form for each analysis time period and indicate size, type, and appropriate ITE land use code. The applicant must seek prior approval from the Department or request a waiver for trip generation rates other than those specified above. The documentation must cite specific locations and describe the land use in detail. Facts supporting the use of rates from these locations must be supplied.NJDOT argues the guidelines in the ITE publication allow for the deviation, and the decision to attribute pass-by credits was not arbitrary or capricious.
[N. J.A.C. 16:47-4.30(d)(1)(emphasis added).]
As NJDOT stated in its explanation to Village:
[U]pstream and downstream along Route 10, trips are not diverted link and a percentage of the trips destined for the site can be considered to be taken from the existing stream of traffic. This is no different
than the "induced traffic" that the Department agreed should be considered at this intersection as being diverted from other existing routes once a more direct option was available. Therefore, these diverted site trips are not considered new site trips. The Department has determined that in this case, it would be reasonable to consider the percentage of these diverted site trips to be consistent with the percentage utilized for "pass-by trips." Adopting this methodology, the study area outlined in the traffic impact study appears consistent with the Access Code and is acceptable to the Department.
Plaintiff notes that the Access Code contains no definition of diverted link trips. This argument fails to account for NJDOT's express reference to the ITE Guide, which does reference diverted link trips and how they should be handled: "Overall, diverted linked trips represent a change in local area travel patterns but constitute no new increase on a macroscopic scale. Within the immediate study area, diverted linked trips do represent additional traffic on individual streets and should be analyzed that way." See N.J.A.C. 16:47-4.4(b) (stating that the ITE Guide "shall be the basis for determining the type of application, traffic analyses for potential traffic signals, and traffic impacts"). While these trips are generally classified as diverted-link because of the use of Ridgedale Avenue to access the site, they share the characteristics of a pass-by trip relating to travel on Route 10. Further, the pass-by credits were not included in the final submission. Plaintiff fails to demonstrate that NJDOT acted arbitrarily and capriciously.
VII. Political Pressure
Plaintiff argues Hanover 3201 subjected the NJDOT to improper pressure through "political, legal, and reputation-threatening" means in order to gain approval of the permit.
Plaintiff cites to a case from the Second Circuit Court of Appeals that states: "To support a claim of improper political influence on a federal administrative agency, there must be some showing that the political pressure was intended to and did cause the agency's action to be influenced by factors not relevant under the controlling statute." Orangetown v. Ruckelshaus, 740 F.2d 185, 188 (2d Cir. 1984). Using this proposed standard of determining whether political pressure influenced an agency decision, plaintiff's argument fails.
Plaintiff contends that the following correspondence is evidence NJDOT succumbed to political pressure in issuing the permit:
1. An email dated June 3, 2013 suggesting that ideas be presented to James Simpson regarding "waivers or issues that Simpson may have influence over."
2. A letter dated July 1, 2014 to NJDOT from Hanover 3201's counsel suggesting that
it was time for NJDOT to render a decision on the permit.
3. A letter dated July 17, 2014 from the Mayor of Hanover Township asking NJDOT to take expeditious action on the approvals, copying Governor Christie and Lieutenant Governor Guadagno, along with several others.
4. An email dated February 6, 2015, from Hersh, Mack-Cali's President, to NJDOT stating denial of the permit would cost jobs and cause detriment to the New Jersey economy. The email also copied several senators and the Lieutenant Governor.
5. An email dated February 6, 2015 from Hersh to NJDOT, copying Hanover 3201 requesting that any response from NJDOT regarding the possible loss of jobs and commerce if the project were not approved should be sent to the press.
6. A letter dated February 9, 2015 addressed to the Governor from the Township Committee suggesting that NJDOT was procrastinating in issuing the permit and asking for help in "advanc[ing] the project."
7. An email dated March 24, 2015, from Hersh to NJDOT copying several senators and the Lieutenant Governor, among others, asking for an update on the permit application and threatening legal action if NJDOT did not intend to approve the permit.
While these communications may have been designed to apply political pressure to NJDOT, plaintiff presents no evidence of any meaningful effect. See Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132, 134 (2d Cir. 2009) (finding that, while there was evidence of political pressure, the evidence was insufficient to establish that it caused the agency to act based on factors not expressed in the controlling statute), cert. denied, 562 U.S. 947, 131 S. Ct. 127, 178 L. Ed. 2d 243 (2010). NJDOT consistently maintained it could not grant approval of the plan with left-turn lanes, and it did not issue the approval until Hanover 3201 removed the left-turn lanes from its proposal. NJDOT utilized its expertise to issue the permit based on substantial credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION