This administrative appeal concerns a State roadway project's alteration of a commercial property owner's access to a State highway. It is the first published opinion to address certain provisions adopted in 2018 that extensively revised the State Highway Access Management Code (the "Access Code"), N.J.A.C. 16:47-1.1 to -14.1.
The pivotal legal issue concerns whether the roadway project's replacement of appellant's direct access to State Highway 66 through an existing driveway with access through a shared driveway connecting to an adjacent landowner's parcel comprises a "revocation" or "removal" of appellant's means of access, or, alternatively, whether the change is simply a "modification" of access. The configuration will enable motorists going to appellant's property from Route 66 to turn into the shared driveway, briefly travel on an easement through the adjacent property, and then branch off to an internal driveway on appellant's lot leading to appellant's commercial building.
The court affirms the Department of Transportation's final agency decision deeming the new configuration a "modification" of appellant's access to Route 66, rather than a "revocation" of access under N.J.S.A. 27:7-94, or a “removal" of access under N.J.A.C. 16:47-2.1. Under the revised 2018 version of the Access Code, the configuration is a modification because it entails "replacing all ingress or all egress between a State highway and a lot or site with ingress or egress via a private easement on a different lot or site." N.J.A.C. 16-47-2.1.
The configuration is not a revocation or a removal because it does not eliminate all access to Route 66 and does not require motorists to traverse another public street in order to connect to appellant's premises. The Department did not misapply its authority and regulatory expertise in deeming the roadway changes a modification.