In Re Issuance of Access Con. Lot

Citations: 8 A.3d 820; 417 N.J. Super. 115Docket: A-0605-09T3

Court: New Jersey Superior Court; December 8, 2010; New Jersey; State Appellate Court

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The case involves the appeal by Paks Fast Service, Inc. against the New Jersey Department of Transportation (DOT) regarding the issuance of a highway access permit (No. A-17-N-N040-2007) for properties in Mahwah Township. The appeal centers on whether the DOT must consider objections raised by parties with a sufficient interest in the permit application under the State Highway Access Management Act and the Administrative Procedure Act. The court determined that objectors, such as Paks Fast Service, which owns adjacent property and competes with the applicant, qualify as "interested persons" and have the right to submit relevant data and arguments. The DOT's failure to consider these submissions led to the reversal of the permit issuance. The permit in question was sought by Mahwah Management and its tenant, Pilot Corporation, for the construction of a new convenience store and service station with specified fuel positions, which required variances and site plan approval. Pilot's application also necessitated a waiver due to insufficient lot frontage for the number of driveways proposed.

Paks Fast Service, Inc. operates a gasoline station near Route 17 and challenged the Mahwah Board of Adjustment's approval of Pilot's development project in court, which upheld the Board's decision. On October 25, 2007, Mahwah Management applied for an access permit to Route 17, requesting waivers from the Access Code, including minimum frontage requirements for driveways. They notified Mahwah Township and Bergen County per N.J.A.C. 16:47-4.3(n). On February 13, 2009, the Vice Chairman of the Bergen County Board of Freeholders expressed concerns about the application, stating a major access permit requiring planning review was needed due to discrepancies in traffic increase estimates. The letter emphasized safety and requested a meeting between the DOT and County staff before any action was taken. Despite these concerns, the DOT approved the access permit on February 27, 2009, and notified Bergen County on March 31, 2009, indicating a willingness to discuss the matter, but no meeting occurred. Following notice of Pilot's access permit application, Mahwah's Board of Adjustment held hearings and, on March 27, 2009, expressed concerns about potential congestion and suggested widening the shoulder along Route 17. Pilot agreed to the widening, and on May 20, 2009, Mahwah Management submitted a revised plan to the DOT reflecting this change and other layout adjustments. On July 16, 2009, they provided further materials, including a new waiver request regarding driveway limits. Paks submitted an objection letter to the DOT on June 10, 2009, opposing Mahwah Management's permit application.

Pilot's development project is claimed to generate over 200 additional peak-hour vehicle trips, necessitating a classification as a major access permit application "with planning review." This assertion is backed by a detailed traffic impact assessment and a supplemental report by a traffic engineer. An expert for Paks opposed a waiver for constructing two driveways on safety grounds. On July 9, 2009, the Department of Transportation (DOT) informed Paks that their submission would not be considered, citing a lack of authorization for direct public input on highway access permit applications. The DOT directed any opposition to be presented to the municipal planning board or board of adjustment, which serve as forums for public concerns.

On September 11, 2009, the DOT approved Mahwah Management's highway access permit, including a waiver from spacing requirements. Paks appealed this decision, but the DOT moved to dismiss the appeal, arguing that Paks lacked standing. The motion was denied, and Paks sought to join Mahwah Management and Pilot Corporation as additional parties to the appeal. The respondents countered with a cross-motion to dismiss, claiming Paks did not join Mahwah Management in a timely manner. While Paks' motion to join was granted, the decision on the cross-motion was reserved.

Pilot subsequently moved to dismiss the appeal, citing Paks' late service of the notice of appeal to Mahwah Management, which occurred about seven months post-filing. The principles of "substantial compliance" with court rules regarding appeals from state agency actions were referenced. The determination of whether dismissal was warranted considered whether Paks was misled about indispensable parties and whether Mahwah Management suffered any prejudice from the delay. Despite Mahwah Management's status as an indispensable party, the appeal was not dismissed due to a close community of interest between Mahwah Management and Pilot, as well as potential misunderstandings from the submitted documentation suggesting Pilot was the permit applicant.

Joseph Staigar Engineering, L.L.C. represented Pilot Travel Centers, L.L.C. in its application to develop a Pilot Travel Center, as detailed in an October 15, 2007 letter to the DOT. Pilot, not Mahwah Management, submitted the application for necessary land use approvals. Paks may have mistakenly identified the permit's recipient, but Mahwah Management did not indicate a lack of awareness regarding Paks' appeal of the DOT's access permit grant. It was determined that Paks’ timely appeal filing and service constituted substantial compliance with appellate rules.

Pilot sought dismissal of Paks' appeal on the grounds of lack of standing, but a previous motion to dismiss by the DOT, supported by Pilot, was denied, establishing the "law of the case." While this doctrine is discretionary, the court affirmed that its prior ruling on standing need not be reconsidered. New Jersey adopts a liberal stance on standing for reviewing administrative decisions, allowing anyone aggrieved by a decision to seek judicial review. To establish standing, an appellant must show a significant stake in the outcome, adverseness to the matter, and a likelihood of suffering harm from an unfavorable decision. Owners of nearby properties and competitors of the permitted entity can appeal approvals. Paks has standing to appeal the DOT's access permit issuance to Pilot due to its property ownership adjacent to Route 17 and its status as a competitor.

Paks claims that its property, located 0.2 miles south of Pilot's site on Route 17, will suffer adverse effects from congestion and accidents resulting from Pilot's inadequate highway access design. Paks also asserts economic harm due to competition from Pilot's gasoline sales. Additionally, Paks' opposition to Pilot's access permit aligns with Bergen County's opposition, highlighting a public interest in judicial review of the DOT's decision. Under New Jersey's liberal standing doctrine, these concerns grant Paks standing to appeal.

The central issue is whether the DOT must consider Paks' submissions regarding Pilot's access permit application. The Access Act lacks specific procedural guidelines for DOT, which are instead governed by the Administrative Procedure Act (APA). The APA delineates two levels of procedural rights for parties affected by permit decisions. A party with a "particularized property interest" is entitled to an adjudicatory hearing, while those with lesser interests may submit "data, views or arguments" to the decision-maker. Paks does not seek a hearing but wishes for the DOT to consider its input as an "interested person" under N.J.S.A. 52:14B-3.1.

The APA does not define "interested person," and judicial precedent provides limited clarity on the necessary interest for presenting arguments. Previous cases, such as Freshwater Wetlands Permits and In re Riverview Development, focused primarily on adjudicatory hearings but acknowledged the right of property owners to submit their views under N.J.S.A. 52:14B-3.1(a).

Neighboring homeowners qualify as "interested persons" with the right to contest permit issuance for wetland filling on an applicant's property. The New Jersey Legislature allows third-party objectors to present concerns about proposed permits before final agency decisions, as highlighted in cases like Freshwater Wetlands Permits and Riverview. These rights include submitting data, views, or arguments, albeit in a less formal manner than a contested case. There was no dispute regarding the objectors' rights in these cases, which left the definition of "interested person" under N.J.S.A. 52:14B-3.1(a) unexamined. However, it is evident that property owners with interests similar to those in the cited cases are considered "interested persons." For example, in Freshwater Wetlands Permits, objectors were affected by runoff and flooding, while in Riverview, objectors were concerned about obstructed views and increased traffic from a proposed high-rise development. Although the interest of property owners in the Freshwater case appeared more direct than that of Paks opposing Pilot's access permit, Paks' interest is deemed comparable, particularly regarding traffic concerns and competition. New Jersey courts typically adopt a broad interpretation of standing for businesses in opposition to competitor permit applications, especially when public interest is involved. There is a clear public interest in assessing the implications of an access permit that could exacerbate highway congestion and accident risks, emphasizing the responsibility of State agencies to consider opposing viewpoints on governmental approvals.

The Council on Affordable Housing (COAH) is obligated to consider information from parties opposed to a municipality's petition for substantive certification regarding compliance with the Fair Housing Act, even if those parties did not file timely objections. Valuable insights from property owners or interested parties should not be disregarded due to procedural issues. This principle extends to the Department of Transportation (DOT) when evaluating highway access permit applications. The DOT's assessment can benefit from considering data from objectors, allowing for a more balanced evaluation beyond the applicant's perspective.

In the case of Paks regarding Pilot's access permit to Route 17, Paks is deemed an "interested person" entitled to a "reasonable opportunity" to submit data, views, or arguments as per N.J.S.A. 52:14B-3.1(a). The Access Code mandates that an access permit applicant must notify the local municipality and county planning board of their application, allowing thirty days for comments. The DOT's refusal to consider Paks' substantial opposition, which included detailed expert reports, in favor of relying on comments that may not reflect Paks' concerns, was inadequate. The opposition from Bergen County was less comprehensive and thus did not substitute for Paks' substantive submissions. Consequently, the DOT's failure to consider Paks' detailed opposition is deemed a violation of the statutory requirement, leading to a reversal of the permit issuance and a remand for reconsideration in light of the information provided by Paks. There is no need to address Paks' additional arguments regarding the adequacy of the DOT's findings related to spacing distance requirements, as the reconsideration of the application is prioritized.

An agency is required to provide basic findings of fact that are supported by evidence, even when an adjudicatory hearing is not mandated. This is to ensure transparency for interested parties and reviewing tribunals, allowing them to assess whether the agency’s decision is well-founded or arbitrary. The final decision granting a highway access permit to Pilot is reversed, and the case is remanded to the Department of Transportation (DOT) for further proceedings consistent with this guidance.

Pilot Corporation, the parent company of Pilot, was not timely joined as a party, and the motion to dismiss pertains only to the late joinder of Mahwah Management. The legal context includes N.J.S.A. 52:14B-3.1(a), a provision from the 1993 amendments to the Administrative Procedure Act (APA), which grants interested persons the right to present data and arguments regarding permit applications. This right is unique to this subsection and is supported by legislative intent to provide substantive effect.

The term "interested person" is referenced in various sections of the APA, but the court does not need to clarify its meaning across those sections for the purposes of this appeal. A liberal interpretation of "interested person" has been applied, allowing for a minimal private interest to align with the broader public interest in determining standing.