In Re the Revocation of the Access of Block 613, Lots 4 & 5

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

In re Revocation of the Access of Block #613 (A-102-13) (074011)

Argued September 17, 2015 -- Decided January 14, 2016

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the standard governing revocation of direct access from a state highway
to property used for commercial purposes pursuant to the State Highway Access Management Act (the Act),
N.J.S.A. 27:7-89 to -98, and the State Highway Access Management Code (Access Code), N.J.A.C. 16:47-
3.5(e)(11) and -3.8(k)(2).

Arielle Realty, L.L.C. (Arielle) is the owner of a three-tenant commercial property located on the
northbound side of Route 166 in Toms River. The property is located on the corner of West Gateway and Route 166
with direct access to both streets. Eight parking spaces in the front of the building are located in a right of way
acquired by the Department of Transportation (DOT) in the early 1970s. Currently, a motorist driving north or
south along Route 166 has direct access to the eight parking spaces in the front of the building. A motorist exiting
one of those spaces must back into the northbound lane of Route 166. Eleven other parking spaces are accessed
from West Gateway. A motorist driving north or south on Route 166 may also turn onto West Gateway to access
the remaining eleven parking spaces.

By an April 1, 2009 letter, the DOT informed Arielle that access to its property from Route 166 would be
eliminated because the DOT intended to construct an additional northbound travel lane. The DOT also advised
Arielle that it intended to construct a median to separate northbound and southbound traffic on Route 166. This
design would eliminate the eight parking spaces in the front of the building and prevent direct access to Arielle’s
property for motorists traveling south on Route 166 because a motorist would no longer be able to make a left-hand
turn onto West Gateway. The DOT design plan provides for an alternate route to West Gateway that traverses
approximately three-quarters of a mile.

Arielle notified DOT of its objection to the modification of its access and requested a hearing. At a May
2009 meeting, Arielle outlined the consequences of the plan, including the reduced parking, the circuitous route
proposed for access by some patrons, the prospect of loss of existing tenants, and the anticipated loss of value of the
property. The DOT responded that the proposed project had been designed to increase safety and traffic movement
in the area and noted that it had considered and rejected several alternative designs, including a 2007 proposal that
would have permitted motorists traveling south on Route 166 to make a left turn onto West Gateway. By a June 9,
2009 letter, the Office of Access and Design (OAD) of the DOT advised Arielle that safety concerns associated with
cars backing out of parking spaces onto Route 166 and the low clearance from the West Gateway unsignalized
intersection prevented modification of the design. The OAD determined that these conditions did not conform to the
Access Code, specifically N.J.A.C. 16:47-3.5(e)(11) and -3.8(k)(2).

Arielle appealed and the matter was referred to the Office of Administrative Law (OAL). At a hearing
before an Administrative Law Judge (ALJ), the DOT outlined the purpose of the project, the various designs
developed, the factors it considered in determining the final design, and its reasons for eliminating direct access
from Route 166 to the Arielle property. The ALJ concluded in her Initial Decision that the DOT plan satisfied all of
the applicable legal requirements for revocation of Arielle’s access to Route 166. The DOT Commissioner
(Commissioner) issued a final decision that adopted the ALJ’s findings of fact, concluding that the DOT plan
provided Arielle with reasonable access to the State’s system of roads and highways.

The Appellate Division affirmed the Commissioner’s final decision in an unreported opinion. The
appellate panel determined that the DOT met its burden of proof that the alternative access plan was not only
reasonable but also provided a convenient, direct, and well-marked means to enter the business and to return to the
state road. Accordingly, the Appellate Division determined that the property owner failed to overcome the
presumption of validity accorded to the DOT design.

The Supreme Court granted Arielle’s petition for certification. 218 N.J. 273 (2014).

HELD: The record fully supports that the Department of Transportation satisfied its burden of proof to establish
that the revocation of direct access from Route 166 to commercial property belonging to Arielle Realty, L.L.C.
conforms with the State Highway Access Management Act and the State Highway Access Management Code.

1. In 1989, the Legislature adopted the State Highway Access Management Act, N.J.S.A. 27:7-89 to -98. The Act
is designed to provide a statutory and regulatory framework for managing access to state highways. To that end, the
Legislature contemplated the classification of state highways and the development of standards for the design and
location of driveways, intersections, and interchanges, and directed the Commissioner to adopt a highway
management access code. N.J.S.A. 27:7-91. The Act also addresses the standards for revocation or modification of
existing access. N.J.S.A. 27:7-94. Any access to a state highway in existence prior to the effective date of the Act
was deemed conforming to the terms of the Act and the Access Code. N.J.S.A. 27:7-92(c). The Act also permits
the Commissioner to revoke access to a state highway “after determining that alternative access is available which
meets the standards” for the property based on its use or zoning. N.J.S.A. 27:7-94(a). An access permit, however,
may not be revoked without written notice and a hearing. (pp. 12-19)

2. As the owner of property situated along a state highway, Arielle has a right of reasonable access to Route 166.
N.J.S.A. 27:7-90(e). N.J.S.A. 27:7-94(c)(1) establishes the standard for reasonable access to a state highway for
property zoned or used for commercial purposes, when the Commissioner revokes or modifies access to a state
highway. There are two criteria for reasonable access. First, there must be direct access to a street, highway, or
service road; second, if improvements alter the route that patrons must take to gain access to the commercial
property, the new route must be able to “support the traffic to the business” and must be convenient, direct, and
well-marked. In re Bergen County Parkway 17 Associates, 324 N.J. Super. 322, 330 (App. Div. 1999). In addition,
the DOT must design and install appropriate signage marking the alternative route to the property. N.J.S.A. 27:7-
94(d). The DOT plan for the segment of Route 166 that affects Arielle’s property was designed to increase the
capacity of the roadway and to improve the safety and efficiency of the roadway. Eliminating the parking spaces
along Route 166 permits the DOT to add an additional travel lane, thereby increasing the capacity of the roadway
and curing the safety concerns caused by vehicles backing into the travel lane. Installation of a median also furthers
the primary goals of the project by minimizing turns by southbound motorists that require crossing oncoming traffic.
The DOT has designed a route that will lead directly to Arielle’s property, will install signage directing patrons to
the site, and will install a traffic signal to permit motorists to safely cross Route 166, turn onto West Gateway, and
enter Arielle’s property. As such, the DOT plan fully satisfies the statutory and regulatory requirements for access
to the State’s system of highways. (pp. 19-23)

3. The record fully supports that the DOT satisfied its burden of proof to establish that the revocation of direct
access from Route 166 to Arielle’s property conforms with N.J.S.A. 27:7-94(a) and N.J.A.C. 16:47-4.33(d)(2)(i). In
other words, the DOT demonstrated that its alternative access plan provided not only reasonable access to Route 166
but also a convenient, direct, and well-marked means of reaching the commercial property and returning to the
highway. In advancing an alternative design for the entire project that furthered its individual commercial ends
rather than the DOT’s overarching goal of providing reasonable access to the State’s system of roads and highways,
the property owner failed to overcome the presumption of validity afforded to the DOT plan. (p. 23)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON
join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-102 September Term 2013
074011

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

ARIELLE REALTY, LLC,

Appellant.

Argued September 17, 2015 – Decided January 14, 2016

On certification to the Superior Court,
Appellate Division.

Harry Jay Levin argued the cause for
appellant Arielle Realty, LLC (Levin
Cyphers, attorneys; Mr. Levin and Colleen
Flynn Cyphers, on the brief).

Wanda Y. Ortiz, Deputy Attorney General,
argued the cause for respondent State of New
Jersey Commissioner of Transportation (John
J. Hoffman; Acting Attorney General of New
Jersey, attorney; Lewis A. Scheindlin,
Assistant Attorney General, of counsel;
David R. Patterson, Deputy Attorney General,
on the letter brief).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

In this appeal, we consider the standard governing

revocation of direct access from a state highway to property

used for commercial purposes pursuant to the State Highway

1
Access Management Act (the Act), N.J.S.A. 27:7-89 to -98, and

the State Highway Access Management Code (Access Code), N.J.A.C.

16:47-3.5(e)(11) and -3.8(k)(2). The issue is presented in the

context of a challenge to a New Jersey Department of

Transportation (DOT) design to widen a state roadway that

involved elimination of eight parking spaces of a commercial

building accessed directly from a state highway and installation

of a median.

In response to an objection by the affected property owner,

a hearing was conducted by the Office of Administrative Law

(OAL) at which the DOT explained the general and specific

reasons for the design it proposed and the property owner

adduced expert opinion that argued in favor of an earlier

proposed design that had been rejected by the DOT. Following a

comparative analysis of the various design proposals, the DOT

Commissioner (Commissioner) concluded that the proposed design

challenged by the property owner best satisfied the statutory

and regulatory goals for access by the public to this segment of

the state system of roads and highways.

In affirming the Commissioner’s decision, the Appellate

Division determined that the DOT met its burden of proof that

the alternative access plan was not only reasonable but also

provided a convenient, direct, and well-marked means to enter

the business and to return to the state road. Accordingly, the

2
Appellate Division determined that the property owner failed to

overcome the presumption of validity accorded to the DOT design.

We affirm the judgment of the Appellate Division. We also

take this opportunity to underscore that any design proposed by

the DOT that restricts or revokes direct access to a commercial

property from a state highway is presumed valid. If a property

owner challenges the proposal, however, the DOT bears the burden

of proving that the alternative access to the commercial

property is reasonable and that it provides a convenient,

direct, and well-marked route to enter the property and to

return to the state highway. The Commissioner must also compare

any alternative plan advanced by the property owner with the

plan advanced by the agency and explain why the agency proposal

better advances the statutory and regulatory scheme. Finally,

although the Commissioner must engage in a comparative analysis

of the features of the DOT’s and the property owner’s access

plans, the Commissioner’s analysis is ultimately aimed at

selecting the plan that will best achieve the overarching goal

of providing reasonable access to the state’s system of highways

rather than maximizing the business interests of a particular

property owner.

I.

A.

3
 Arielle Realty, L.L.C. (Arielle) is the owner of a three-

tenant commercial property located on the northbound side of

Route 166 in Toms River. An appliance store, a stained glass

gallery, and a healthcare business currently occupy the

premises.

The property is located on the corner of West Gateway and

Route 166 with direct access to both streets. Eight parking

spaces in the front of the building are located in a right of

way acquired by the DOT in the early 1970s. Currently, a

motorist driving north or south along Route 166 has direct

access to the eight parking spaces in the front of the building.

A motorist exiting one of those spaces must back into the

northbound lane of Route 166. Eleven other parking spaces are

accessed from West Gateway. A motorist driving north or south

on Route 166 may also turn onto West Gateway to access the

remaining eleven parking spaces. Route 166 serves as a

connection between State Highway 37 and the downtown center of

Toms River.

By an April 1, 2009 letter, the DOT informed Arielle that

access to its property from Route 166 would be eliminated

because the DOT intended to construct an additional northbound

travel lane. The DOT also advised Arielle that it intended to

construct a median to separate northbound and southbound traffic

on Route 166. This design would eliminate the eight parking

4
spaces in the front of the building. The plan would also

prevent direct access to Arielle’s property for motorists

traveling south on Route 166 because a motorist would no longer

be able to make a left-hand turn onto West Gateway. According

to the DOT design plan, a southbound motorist on Route 166, who

intends to access Arielle’s property, would be required to drive

past the property, turn right onto a local road, turn right onto

another local road, turn left onto Route 166 at an intersection

controlled by a traffic signal, and turn right onto West

Gateway. This alternative route traverses approximately three-

quarters of a mile.1

B.

Upon receipt of the notice, Arielle notified DOT of its

objection to the modification of its access and requested a

hearing. At a May 2009 meeting, Arielle outlined the

consequences of the plan, including the reduced parking, the

circuitous route proposed for access by some patrons, the

1 The DOT design would permit exiting northbound patrons of
Arielle’s tenants to turn right onto Route 166 from West Gateway.
Southbound exiting motorists could either 1) turn right onto Route
166 northbound, enter a ramp for Route 37 eastbound, exit Route 37
onto a connecting street, and use a residential street or streets
to reach their destination, 2) travel on West Gateway away from
Route 166 and south through residential streets, or 3) turn right
onto Route 166 northbound, enter a left-turning lane, cross Route
37, use a jughandle in the northwest corner to reverse direction
on Route 166, and again cross Route 37.

5
prospect of loss of existing tenants, and the anticipated loss

of value of the property. The DOT responded that the proposed

project had been designed to increase safety and traffic

movement in the area and noted that it had considered and

rejected several alternative designs during development of the

project design.

By a June 9, 2009 letter, the Office of Access and Design

(OAD) of the DOT advised Arielle that two factors prevented

modification of the design. The OAD remarked that motorists

using the parking spaces along Route 166 had to back into a

travel lane to leave the property. The existing conditions

raised safety concerns, impeded traffic flow, and did not

conform to the Access Code, specifically N.J.A.C. 16:47-

3.5(e)(11) and -3.8(k)(2). Moreover, the clearance from the

West Gateway unsignalized intersection was less than the

required 50 feet. Arielle appealed and the matter was referred

to the OAL.

At a hearing before an Administrative Law Judge (ALJ), the

DOT outlined the purpose of the project, the various designs

developed, the factors it considered in determining the final

design, and its reasons for eliminating direct access from Route

166 to the Arielle property. Brian Mausert, a civil engineer

employed by a private engineering firm, testified on behalf of

the DOT as a fact and expert witness. He noted that Arielle’s

6
current use and roadway access encroached on the state’s

existing right of way and violated the Access Code. Mausert

opined that the proposed access plan to Arielle’s property was

“convenient, direct, and well-marked,” and complied with the

Access Code. He also opined that the DOT plan would be safer

than the present access arrangement because it would reduce the

number of total traffic points of conflict by eliminating turns

across traffic by southbound motorists and motorists backing

into the northbound lane to exit the site. Mausert stated that

the route identified for southbound patrons to access Arielle’s

property would be safe because all traffic movement proximate to

the Arielle site would occur under a controlled condition,

namely, the traffic signal at the intersection.

Mausert also testified that an alternative design developed

in 2007 would have permitted motorists traveling south on Route

166 to make a left turn onto West Gateway. He stated that the

2007 design was rejected for many reasons, including opposition

from residents who lived on and near West Gateway and the need

to condemn Arielle’s property to effectuate the design.

Arielle presented the testimony of John N. Ernst, an expert

in civil engineering, site development including highway access,

and municipal zoning and parking requirements. Ernst testified

that the Arielle property should have twenty-nine parking spaces

and that the remaining eleven parking spaces were not sufficient

7
to support the commercial use of the property. Ernst conceded

that eliminating the parking spaces along Route 166 was a

reasonable step to enhance safety along the corridor. However,

he opined that the circuitous access route for southbound

patrons was unreasonable. Ernst maintained that using West

Gateway as the primary access for the property contravened the

Access Code. Finally, Ernst contended that the earlier

proposals, particularly the 2007 proposed design, better

addressed the DOT’s safety concerns than the current plan.

Arielle also presented testimony from John Rea, a traffic

engineer. He opined that the DOT plan did not satisfactorily

address traffic safety. In fact, he concluded that the design

plan was unreasonable. Rea stated that the prior proposals,

including the 2007 proposal favored by Arielle, were “a more

reasonable and more conventional engineering solution[.]” He

criticized the placement selected for the traffic control device

on Route 166 because it created offsetting T-intersections that

violated certain legal and engineering standards.

The ALJ concluded in her Initial Decision that the DOT bore

the burden of proof regarding the reasonableness of its access

plan for Arielle, and that the DOT plan satisfied all of the

applicable legal requirements for revocation of Arielle’s access

to Route 166. The ALJ noted that Arielle attempted to

concentrate its objections on the elimination of eight parking

8
spaces, yet she concluded that its primary complaint focused on

the installation of the median to separate the travel lanes.

The ALJ recognized that the existing parking along Route 166 was

located in a DOT right of way and violated the Access Code, and

found that revocation of access from Route 166 cured those

problems. The ALJ found that access from West Gateway was

direct and convenient and concluded that the revised access plan

was direct with appropriate signage.

The Commissioner issued a final decision that adopted the

ALJ’s findings of fact. The Commissioner determined that the

DOT plan provided Arielle with reasonable access to the State’s

system of roads and highways. The Commissioner rejected

Arielle’s contention that he should evaluate such factors as

safety, changed traffic patterns on local roadways, and earlier

designs that the DOT considered, finding that those factors “are

not part of the standards set forth in the Access Act and the

Access Code, [and] are not relevant in determining whether the

proposed alternative access satisfies the statutory and

regulatory requirements.” The Commissioner also concluded that

the loss of the left-turn access from southbound Route 166 due

to the installation of the median was the core of Arielle’s

complaint.

C.

9
 The Appellate Division affirmed the Commissioner’s final

decision in an unreported opinion. The panel determined that

the Commissioner’s decision was supported by substantial

credible evidence in the record. The appellate panel observed

that “[i]t is irrelevant that other plans might also be

reasonable or safe.” Rather, under the Act and Access Code, the

Commissioner is vested with the authority to select a plan that

comports with the statutory and regulatory criteria. The

appellate panel also found that the ALJ properly assigned the

burden of proof regarding the reasonableness of the plan to the

DOT and that the Commissioner re-evaluated the evidence in

accordance with the correct principles of law.

The Appellate Division also concluded that Arielle’s

objection to the access plan was founded in part on the

construction of a median that would eliminate left-turn access

to its property from southbound Route 166. The panel noted,

however, that neither the ALJ nor the Commissioner based their

decisions on this element of the plan. Rather, their decisions

focused on whether the DOT plan provided reasonable access to

Arielle’s property.

This Court granted Arielle’s petition for certification.

In re Revocation of the Access of Block #613, 218 N.J. 273

(2014).

II.

10
 Arielle asserts that the DOT access plan “woefully” fails

to provide reasonable alternative access to its property.

Arielle contends that the elimination of all parking spaces

along Route 166 and restricted access from Route 166 affects the

commercial viability of its property and the businesses located

at the site. Furthermore, Arielle contends that any access plan

must account for the use of the property affected by the plan

and “the expected traffic plan.”

Arielle insists that the proposed route for southbound

motorists is neither reasonable nor direct. It contends that it

proposed a more reasonable alternative. More importantly,

Arielle asserts that any consideration of the reasonableness of

an access plan is a comparative process. Therefore, Arielle

contends that the Commissioner’s determination, which does not

reflect consideration of other access plans, is inherently

flawed and cannot be sustained. Finally, Arielle argues that it

demonstrated that the alternative access plan it advanced, which

requires the DOT to acquire its property, is a “more reasonable

alternative.”

The DOT responds that the revocation of access from Route

166 to Arielle’s property satisfies the statutory standards for

reasonable alternative access and that the Commissioner’s

decision should be affirmed. The DOT emphasizes that the

existing access to Arielle’s property does not conform to the

11
Access Code in several respects and the modification of access

required by its project design resolves all of the safety

concerns caused by the existing access from Route 166. The DOT

contends that Arielle’s objections to the revocation of one of

two access points to its property is a thinly disguised

objection to the construction of the median.

III.

In 1989, the Legislature adopted the State Highway Access

Management Act, N.J.S.A. 27:7-89 to -98. The Act is designed to

provide a statutory and regulatory framework for managing access

to state highways. Assembly Appropriations Comm., Statement to

S. No. 772 (Assembly Statement) (1988). The Legislature

declared that the State has a public responsibility “to manage

and maintain effectively each highway within the State highway

system[,]” N.J.S.A. 27:7-90(c), and recognized that every owner

of property that abuts a public highway has “a right of

reasonable access to the general system of streets and highways

in the State,” N.J.S.A. 27:7-90(e), but acknowledged that

“unrestricted access to State highways can impair the purpose of

the State highway system[,]” N.J.S.A. 27:7-90(d). To that end,

the Legislature contemplated the classification of state

highways and the development of standards for the design and

location of driveways, intersections, and interchanges, Assembly

Statement, supra, and directed the Commissioner to adopt a

12
highway management Access Code. N.J.S.A. 27:7-91. The Act also

addresses the standards for revocation or modification of

existing access. N.J.S.A. 27:7-94. Any access to a state

highway in existence prior to the effective date of the Act was

deemed conforming to the terms of the Act and the Access Code.

N.J.S.A. 27:7-92(c).

The Act also permits the Commissioner to revoke access to a

state highway “after determining that alternative access is

available which meets the standards” for the property based on

its use or zoning. N.J.S.A. 27:7-94(a). For property zoned or

used for commercial purposes,

[a]lternative access shall be assumed to exist
if the property owner enjoys reasonable access
to the general system of streets and highways
in the State and in addition . . . (1) access
onto any parallel or perpendicular street,
highway, easement, service road or common
driveway . . . is so situated that motorists
will have a convenient, direct, and well-
marked means of both reaching the business or
use and returning to the highway.

[N.J.S.A. 27:7-94(c)(1).]

An access permit may not be revoked without written notice

and a hearing. N.J.S.A. 27:7-94(a). The Commissioner must also

provide the property owner with a plan detailing the manner in

which the alternative access shall be obtained and a description

of the improvements that will be provided to secure the

alternative access. N.J.S.A. 27:7-94(b). The improvements may

13
include signage for motorists marking the alternative route to

the site. N.J.S.A. 27:7-94(d).

The Access Code, N.J.A.C. 16:47-1.1 to -8.5, addresses

revocation of access. N.J.A.C. 16:47-4.33(d)(2)(i) mirrors the

statutory provision for revocation of access. In re Route 206

at New Amwell Road, Block 161, Lot 13B (Hillsborough), 322 N.J.

Super. 345 (App. Div.), certif. denied, 162 N.J. 197 (1999),

summarized the Access Code requirements when modifying or

revoking access as follows:

When the DOT initiates a highway project
that modifies access, the regulations require
the DOT to notify each lot owner in writing of
the proposed access modification and provide
the lot owner with a plan showing the
modification prior to beginning construction.
N.J.A.C. 16:47-4.33(c)2. The lot owner is
provided with thirty days from receipt of the
DOT’s notice to advise the DOT whether it
accepts the modification plan or intends to
appeal the administrative decision. N.J.A.C.
16:47-4.33(c)4. In the event an administrative
appeal is filed, the Manager of the Bureau of
Civil Engineering must schedule an informal
meeting with the property owner to resolve any
differences. Thereafter, the Manager is
required to issue a written decision within
thirty days. In the event of disagreement
with that decision, the property owner has an
additional thirty days to appeal to the
Director who must then schedule an informal
hearing within ten days. N.J.A.C. 16:47-
4.33(c)5. At this informal hearing, the
property owner is given an opportunity to
present further information regarding
objections to the modification plan. N.J.A.C.
16:47-4.33(c)6. Within thirty days of the
informal hearing, the Director’s written

14
 “final agency decision” is required to be
issued, in which the Director shall:

consider the information presented
at the hearing and the
recommendation of the hearing
officer if designated and the
criteria set forth in the Act and
these regulations, the lot owner’s
right of reasonable access to the
general system of streets and
highways in the State and the
public’s right and interest in a
safe and efficient highway system.

[N.J.A.C. 16:47-4.33(c)7.]

[Id. at 356-57.]

In Hillsborough, the DOT proposed to eliminate one of two

access driveways from a highway to a service station and to

widen the remaining driveway. Id. at 350. It also proposed

closing one of two driveways fronting on a local street and

widening the remaining driveway. Ibid. Although the plan

maintained direct access to the state highway, the internal

traffic circulation pattern of the service station was altered.

Id. at 352. The Commissioner rejected the property owner’s

challenge to the access plan, reasoning that the modification

would not prevent use of the site as a service station. Ibid.

The Commissioner also determined that the modified access plan

would serve a substantial public benefit. Id. at 358.

The Appellate Division determined that the DOT plan was a

modification of access rather than a revocation of access.

15
Ibid. It also recognized that the DOT “has reasonable

discretion in developing methodology to fulfill its statutory

obligation,” id. at 357, and that the agency “enjoys ‘a great

deal of flexibility in selecting the proceedings most likely to

achieve their regulatory aims[,]’” ibid. (quoting N.J. Dep’t of

Envtl. Prot. v. Stavola, 103 N.J. 425, 436-37 (1986)). The

panel concluded that the property owner failed to rebut the

presumption of validity accorded to the Commissioner’s decision

and that the Commissioner’s determination was a reasonable

exercise of agency discretion and neither arbitrary nor

capricious. Id. at 358.

In re Bergen County Parkway 17 Associates (Parkway 17

Assocs.), 324 N.J. Super. 322, 328-29 (App. Div.), certif.

denied, 162 N.J. 664 (1999), addressed revocation of all ingress

and egress from a state highway to a modern office building in

the context of the extensive reconstruction of the intersection

of two heavily used state highways. The proposed access plan

maintained the ability to enter and exit the property from a

local road. Id. at 330.

In the course of its examination, the DOT identified safety

and visibility concerns regarding the existing state highway

access. Id. at 329. The DOT proposed an alternative access

plan in which a southbound motorist on the state highway would

travel past the existing entry to a newly constructed ramp

16
leading off the highway until the motorist reached the

intersection of the ramp with a to-be-constructed-entry drive

that would provide motorists access to two newly created entries

from the access drive. Id. at 330. The newly created access

drives would serve the office building and other properties,

including a large retail store. Id. at 331.

The owner of the office building objected to the proposed

alternative access plan. Ibid. The DOT concluded that the

proposed access drives could handle the traffic volume, and

would add a minimal amount of additional travel time for

motorists. Ibid. Finally, the DOT determined that the proposed

access drives satisfied the statutory requirement of alternative

access to a parallel or perpendicular street and that the plan

was convenient, direct, and well-marked. Id. at 331-32.

Following a hearing before the OAL and issuance of an Initial

Decision, the Commissioner rejected the property owner’s

objection to the proposed alternative access plan. Id. at 327-

28.

The Appellate Division rejected the property owner’s

contention that the proposed plan did not provide reasonable

alternative access. It determined that the direct access

requirement of section 94(c) of the Act does not mean “an

immediate passage from a state highway onto an abutting

property.” Id. at 338. Rather, the panel stated that the

17
agency’s interpretation of direct as “reasonably straight” and

its interpretation of convenient as referring “to the entry of

vehicles onto the property itself, rather than the means of

reaching the property,” were realistic. Id. at 338-39.

Moreover, the panel noted that the new entry points aligned with

the existing traffic aisles within the property, thereby

underscoring the convenience of the alternative access plan.

Id. at 339.

Importantly, the Appellate Division emphasized that

determining whether the agency’s proposed access plan satisfies

the statutory requirements is best accomplished when one

proposed plan is compared or contrasted with another. Id. at

342. The panel explained that

the statutory criteria which include standards
such as “direct” and “convenient” are not
precise, mathematical terms, but rather
generally stated objectives. That being so,
those terms may well be given more specific
meaning and content when one proposed plan is
compared or contrasted with the other. A
proposed additional plan which is more
“direct” or more “convenient” than one before
the Commissioner, may well have an impact in
determining whether the proposal under review
can properly be deemed “direct” or
“convenient.” Thus, when a reasonable
alternative is presented, fair treatment and
realistic appraisal of the subjective and
generalized terms of the statute would
normally call for the Commissioner to consider
such alternatives in reaching a decision.

[Id. at 342-43.]

18
 The panel held that the Commissioner is required to

consider an alternative access plan submitted by a property

owner. Id. at 343. When a property owner proposes an

alternative access plan that contains features that fail to

address the very concerns that triggered the need for a new

design, or contains other features that would have been

inevitably rejected, adoption of the agency-proposed alternative

access plan and rejection of the property owner’s plan cannot be

considered arbitrary, unreasonable, or capricious. See ibid.

(finding no harm in Commissioner’s failure to consider property

owner’s alternative plan).

IV.

As the owner of property situated along a state highway,

Arielle has a right of reasonable access to Route 166. N.J.S.A.

27:7-90(e). N.J.S.A. 27:7-94(c)(1) establishes the standard for

reasonable access to a state highway for property zoned or used

for commercial purposes, when the Commissioner revokes or

modifies access to a state highway. The plain language of

section 94 declares that alternative access to commercial

property “shall be assumed to exist” when there is reasonable

access to the property from a parallel or perpendicular street

or highway that can support the traffic to the business and the

route is convenient, direct, and well-marked. Ibid. We

construe this language to establish two criteria for reasonable

19
access. First, there must be direct access to a street,

highway, or service road; second, if improvements alter the

route that patrons must take to gain access to the commercial

property, the new route must be able to “support the traffic to

the business” and must be convenient, direct, and well-marked.

See Parkway 17 Assocs., supra, 324 N.J. Super. at 330. In

addition, the DOT must design and install appropriate signage

marking the alternative route to the property. N.J.S.A. 27:7-

94(d).

The alternative access plan proposed by the DOT is presumed

valid. Parkway 17 Assocs., supra, 324 N.J. Super. at 334-35.

However, if a property owner objects to the agency-proposed

alternative access plan, the DOT bears the burden of

demonstrating that its plan satisfies the statutory and

regulatory requirements. Id. at 336.

The DOT plan for the segment of Route 166 that affects

Arielle’s property was designed to achieve two primary goals.

The first goal was to increase the capacity of the roadway. The

second goal was to improve the safety and efficiency of the

roadway. As presently designed, a patron of an Arielle tenant

may access one of eight parking spaces in the front of the

building directly from Route 166. When departing, the patron

must back into the northbound lane of traffic on Route 166.

That maneuver creates safety problems and also impedes the free

20
flow of traffic. Furthermore, those eight parking spaces occupy

a right-of-way obtained by the DOT in the 1970s. Eliminating

the parking spaces along Route 166 permits the DOT to add an

additional travel lane, thereby increasing the capacity of the

roadway and curing the safety concerns caused by vehicles

backing into the travel lane. Installation of a median also

furthers the primary goals of the project by minimizing turns by

southbound motorists that require crossing oncoming traffic.

To be sure, Arielle’s loss of eight parking spaces burdens

the property. Arielle readily concedes, however, that the

property has functioned for many years with significantly fewer

parking spaces than required for commercial uses in the

municipality. The Arielle site is further burdened by the DOT

design because a patron of one of the Arielle tenants traveling

south on Route 166 is denied direct access to the site. The

DOT, however, has designed a route that will lead directly to

Arielle’s property, will install signage directing patrons to

the site, and will install a traffic signal to permit motorists

to safely cross Route 166, turn onto West Gateway, and enter

Arielle’s property. The route may be longer but it provides

direct access to the remaining parking spaces on the property.

As such, the DOT plan fully satisfies the statutory and

regulatory requirements for access to the State’s system of

highways. Parkway 17 Assocs., supra, 324 N.J. Super. at 338-39.

21
 Moreover, the Commissioner evaluated Arielle’s objection to

the DOT’s proposed design by comparing it to the plan advocated

by Arielle. Indeed, the Commissioner was familiar with the plan

advanced by Arielle because it was one of several designs

developed but rejected by the DOT during the design phase of the

project.

Here, Arielle advocated for the use of the DOT’S 2007

design for widening Route 166, arguing that it was reasonable

and in conformity with N.J.S.A. 27:7-94(c)(1). It insists that

the 2007 plan included a four-way intersection at Route 166 and

West Gateway controlled by a traffic signal that would have

permitted northbound and southbound traffic to turn safely onto

local roads. Arielle ignores, however, that the intersection

contemplated by the 2007 plan required substantial changes to

existing roadways because West Gateway, on the east side of

Route 166, does not align with the nearest cross-street on the

west side of Route 166. Moreover, the roadway configuration

contemplated by the proposed four-way intersection requires the

acquisition of some, if not all, of Arielle’s property.

Understandably, a property owner might favor the taking of its

property when facing the elimination of direct access to a

highway and the loss of eight parking spaces. A plan that

requires a direct purchase or condemnation of a commercial

property owner’s property is not an alternative access plan for

22
the property owner. It is a different design plan that furthers

the property owner’s personal commercial interests rather than

the public interest.

V.

In sum, the record fully supports that the DOT satisfied

its burden of proof to establish that the revocation of direct

access from Route 166 to Arielle’s property conforms with

N.J.S.A. 27:7-94(a) and N.J.A.C. 16:47-4.33(d)(2)(i). In other

words, the DOT demonstrated that its alternative access plan

provided not only reasonable access to Route 166 but also a

convenient, direct, and well-marked means of reaching the

commercial property and returning to the highway. In response

to the objection advanced by the property owner, the DOT

compared its proposed plan with the alternative advocated by the

property owner. In the end, the record establishes that the

property owner advanced an alternative design for the entire

project that furthered its individual commercial ends rather

than the DOT’s overarching goal of providing reasonable access

to our system of state highways and roads. In doing so, the

property owner failed to overcome the presumption of validity

afforded to the DOT plan.

VI.

The judgment of the Appellate Division is affirmed.

23
 CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUDGE CUFF’s opinion. JUSTICE
FERNANDEZ-VINA did not participate.

24
 SUPREME COURT OF NEW JERSEY

NO. A-102 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court

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

ARIELLE REALTY, LLC,

Appellant.

DECIDED January 14, 2016
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6