MAPLE SHADE EQUITIES, LLC VS. NEW JERSEY DEPARTMENT OF TRANSPORTATION (NEW JERSEY DEPARTMENT OF TRANSPORTATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3709-19

MAPLE SHADE EQUITIES, LLC,

Appellant,

v.

NEW JERSEY DEPARTMENT
OF TRANSPORTATION,

Respondent.

Argued October 18, 2021 – Decided November 17, 2021

Before Judges Messano, Accurso and Rose.

On appeal from the New Jersey Department of
Transportation.

Keith A. Davis argued the cause for appellant (Nehmad
Perillo Davis & Goldstein, PC, attorneys; Keith A.
Davis and Michael J. Lario, Jr., on the briefs).

Brian Ashnault, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; David M.
Kahler, Deputy Attorney General, on the brief).
PER CURIAM

Plaintiff Maple Shade Equities, LLC (Maple Shade or developer),

challenges a final agency decision of the New Jersey Department of

Transportation (DOT or agency), deeming untimely Maple Shade's appeal of

certain major access permit conditions, and finding no grounds for relaxation of

the time requirements under section 4.32(b)(1) of the State Highway Access

Management Code, N.J.A.C. 16:47-1.1 to 16:47-14.1 (Access Code). 1 The

Director of the DOT's Division of Right of Way and Access Management issued

the agency's final decision after affording Maple Shade an informal hearing on

the merits of its application. We affirm.

We summarize the relevant facts and procedural history from the record

evidence. Maple Shade purchased commercial property located at the

intersection of Route 38 and Lenola Road in Maple Shade Township. By all

accounts, the intersection was marked by high volume traffic during commuter

hours; the DOT rated the intersection as "F," for the lowest level of service.

At the time of the purchase, the property consisted of a car wash, and a

gas station with a convenience store. Four existing driveways were located

1
On July 16, 2018, after Maple Shade submitted its application, the Access
Code was revised and renumbered. We cite the Access Code provisions in effect
at the time of Maple Shade's April 10, 2016 application.
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along the sides of the property: one provided open access along Lenola Road;

three fronted Route 38. Of the Route 38 driveways: the eastern-most permitted

ingress only; the center allowed open access; and the western-most permitted

egress only by right turns onto the highway.

Maple Shade planned to redevelop the property by constructing a drive -

through bank and drive-through coffee and donut shop. Pertinent to this appeal,

on August 10, 2016, Maple Shade submitted to the DOT a major access permit

application, seeking to revise the property's direct access to Route 38. The

developer proposed closing the eastern and center driveways along Route 38 and

expanding the western driveway to allow open access.

In February 2017, after consulting with the agency's various experts, the

DOT notified Maple Shade of several concerns. Citing the existing volume of

traffic at the intersection during morning and evening peak hours, the DOT

"strongly recommend[ed]" that Maple Shade add an auxiliary "100[-]f[oo]t right

turn lane" to address the agency's concerns. The developer countered that its

existing third lane was an auxiliary lane, which was designed to serve the

property's gas station and adjacent shopping center. Accordingly, Maple Shade

argued an additional auxiliary lane increased the danger to drivers by requiring

merger across two lanes.

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 In June 2017, the DOT revised its position, "strongly recommend[ing] that

[Maple Shade] provide at least a [ten-foot-]wide shoulder along the Route 38

site frontage" instead of adding a fourth lane. The DOT also noted it was in the

process of proposing a plan for the intersection that would reduce congestion.

Accordingly, a widened shoulder would reduce delays caused by the Maple

Shade development, while serving as an effective interim mitigation device until

the DOT's future Route 38 project was completed.

Following a series of exchanges between the parties, in December 2017,

Maple Shade submitted revised plans that included the ten-foot-wide shoulder.

According to the plans, a six-foot portion of the shoulder was located on

property owned by the DOT, and Maple Shade would convey the remaining

four-foot, 785 square-foot strip to the agency. On March 19, 2018, the DOT

issued the permit, which included the ten-foot-wide shoulder among fifty-five

conditions. Maple Shade completed the project in accordance with the agency's

conditions.

After completing the project, and nearly four months beyond the Access

Code's thirty-day deadline for appeals, Maple Shade filed its appeal with the

DOT on August 1, 2018. Seeking compensation for the costs of construction,

and "fair market value of the land it was required to dedicate," the developer

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claimed the agency exceeded its powers by requiring conditions that were not

mandated by the Access Code. Initially denying Maple Shade's request as

untimely, the agency afforded Maple Shade an informal hearing to address the

developer's "assertions of unsafe conditions on the site," and "improper acts"

allegedly committed by DOT staff.

On the March 6, 2019 return date, the parties requested an adjournment to

continue negotiations. After failing to reach an agreement, the DOT moved to

dismiss Maple Shade's appeal as untimely. The Director conducted a plenary

hearing over two days in November 2019 and February 2020. Joshua Idowu,

the DOT's project manager for Maple Shade's application, testified on behalf of

the agency. Maple Shade presented the testimony of three witnesses: Clifton

Quay, a licensed professional engineer, who served as a civil consulting

engineer on the project; Adam Catherine, a professional traffic operations

engineer; and Kenneth Lowther, an equity partner of Maple Shade.

In essence, Idowu testified about the agency's safety concerns regarding

the projected increase in traffic flow anticipated by Maple Shade's proposed

development plan, and the need for an expanded shoulder to address those

concerns. In view of the DOT's anticipated future project at the location, the

agency granted a waiver under the Code, without which Maple Shade's plan

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would have been rejected. See N.J.A.C. 16:47-4.24(a)(1)(ii) (prohibiting

deterioration in the level of service at the proposed site plan); see also N.J.S.A.

7-90(c), (e), and (g).

Conversely, Catherine stated he opposed widening the shoulder, which he

opined would cause confusion for drivers accessing the Maple Shade property

and the adjacent restaurant. Notably, however, Catherine acknowledged that the

DOT's request was "reasonable."

Quay testified he had argued against expanding the shoulder but believed

the DOT would not approve the permit unless Maple Shade included the

shoulder expansion in its design plans. Quay was concerned Maple Shade would

be unable to meet contractual deadlines with its lessees if the developer

continued to oppose the shoulder expansion.

Lowther confirmed the permit process delayed the commencement of

those leases. He acknowledged Maple Shade intended to file an appeal soon

after executing the permit. According to Lowther, the developer claimed

$174,500 for costs of construction, loss of income, and the value of the property

dedicated for the expanded shoulder.

Following summations, the Director reserved decision. On April 23,

2020, the Director issued a cogent written decision, again concluding Maple

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Shade's appeal was untimely. Because the conditions imposed were "proper

exercises of the state agency's police power," the Director found no grounds for

relaxation of the then-existing time requirements. According to the Director:

Despite being provided a full opportunity to
present facts and testimony setting forth how the []DOT
"coerced" the [d]eveloper, the record contains nothing
more than conclusory arguments . . . and innuendo that
the []DOT was seeking to minimize its costs related to
a proposed . . . [p]roject which may or may not occur at
some indefinite point in the future. The [d]eveloper
failed to provide any specific testimony or
documentation reflecting improper behavior by the
Bureau.

Rather, the record shows that the Bureau acted to
protect the public by working to ensure that site
conditions provided for a safe and efficient roadway
while working with the [d]eveloper to create an
acceptable construction plan. The Bureau engaged in a
substantive back-and-forth conversation with the
[d]eveloper over several months and was receptive to
the [d]eveloper's responses, at one point changing its
recommendation for a 100[-]foot right turn lane to a
[ten-]foot-wide shoulder after receiving responses from
[Maple Shade,] clearly indicating flexibility in spite of
the Bureau commentary's use of the phrase, "strongly
recommended."

In fact, the record indicates the Bureau clearly
attempted to accommodate the [d]eveloper [by]
voluntarily granting waivers necessary for the
[d]eveloper to move forward with their project.
Without a waiver, the [d]eveloper's application would
have been rejected as the Access Code prohibits any
further degradation of the nearby intersection's level of

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 service. N.J.A.C. 16:47-4.24. The Bureau's
recommendations, in part, were intended to minimize
the impact on the level of service at the intersection and
to accommodate the [d]eveloper's application.

This appeal followed.

On appeal, Maple Shade does not dispute it failed to file its appeal before

the DOT within the thirty-day time frame mandated by N.J.A.C. 16:47-

4.32(b)(1), and was granted an informal hearing on the merits. Instead, Maple

Shade reprises its argument that the DOT improperly applied the Code's time

restriction to the developer's "unique legal and factual situation" here, where the

agency's "recommendations" were not "required" under the Code. Maple Shade

maintains it is entitled to just compensation for the DOT's unjust taking of its

property, and the DOT failed to "turn square corners" by including "illegal

conditions" in its permit.

Appellate review of a final agency decision is well-settled. Ordinarily,

we defer to the agency's determination unless it was "arbitrary, capricious, or

unreasonable." Melnyk v. Bd. of Educ. of Delsea Reg'l High Sch. Dist., 241

N.J. 31, 40 (2020). Our Supreme Court has long recognized

the judicial role is generally restricted to three
inquiries: (1) whether the agency's action violates
express or implied legislative policies, that is, did the
agency follow the law; (2) whether the record contains
substantial evidence to support the findings on which

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 the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995); see also
In re Stallworth, 208 N.J. 182, 194 (2011); In re Carter,
191 N.J. 474, 482-83 (2007).]

"Through the State Highway Access Management Act, N.J.S.A. 27:7-89

to -98 [(Access Act)], the Legislature delegated authority over State highway

access to the DOT." In re Route 206 at New Amwell Rd., 322 N.J. Super. 345,

353 (App. Div. 1999). Although property owners with access to public roads

enjoy a right of access, that right "is subject to regulation for the purpose of

protecting the public health, safety and welfare," N.J.S.A. 27:7-90(e), and

"subordinate to the public's right and interest in a safe and efficient highway,"

N.J.S.A. 27:7-90(g).

The Access Act requires "[a]ny person seeking to construct or open a

driveway . . . entering into a State highway [to] first obtain an access permit

from the [DOT]." N.J.S.A. 27:7-92(a). The DOT manages access to the State

highways under the Access Act and its implementing regulations, the Access

Code, which sets forth the "administrative procedures for the issuance of access

permits." N.J.S.A. 27:7-91(d). For certain access levels, applicable here, the

DOT "may modify a proposed access or deny an access permit application

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otherwise in conformance with th[e] Access Code if site-specific highway

efficiency and safety concerns so warrant." N.J.A.C. 16:47-3.17(a)(1).

To appeal a major permit application, applicants must "submit a written

request for reconsideration to the Bureau of Major Access Permits within [thirty]

days of a notice of rejection or unacceptable permit conditions. The request

shall include reasons for the appeal." N.J.A.C. 16:47-4.32(b)(1). "If the request

is granted," the applicant is afforded "an opportunity to present additional

information in support of the application." N.J.A.C. 16:47-4.32(b)(2). If the

applicant disagrees with the decision rendered by the Manager of the Bureau of

Major Access Permits, an appeal may be made to the Director of Design

Services,2 who "shall schedule an informal hearing within [ten] days of receipt

of the applicant's appeal." N.J.A.C. 16:47-4.32(b)(2) and (3).

Guided by these principles and in view of the record, we are satisfied the

Director correctly determined Maple Shade's appeal before the DOT was

untimely and the conditions imposed in the permit were consistent with the

safety and efficiency concerns embodied in the Access Code. See N.J.A.C.

16:47-3.17(a)(1). Pursuant to our limited standard of review, Stallworth, 208

2
According to the Director's decision in the present matter, following the DOT's
reorganization, the duties previously assigned to the Office of Design Services
fall within his office, which oversees the Bureau of Major Access.
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N.J. at 194, we therefore affirm substantially for the reasons expressed in the

Director's comprehensive written decision. R. 2:11-3(e)(1)(D). In doing so, we

determine the agency's decision was not arbitrary, capricious, or unreasonable.

Melnyk, 241 N.J. at 40. We add only the following comments.

Citing our Supreme Court's decision in Toll Brothers, Inc. v. Board of

Chosen Freeholders of County of Burlington, 194 N.J. 223 (2008), Maple Shade

argues it is entitled to relief from the Access Code's time constraints under

equitable principles. Maple Shade's contentions are misplaced.

In Toll Brothers, the developer acquired an interest in a 540-acre

commercial, residential, and retail development in Burlington County. 194 N.J.

at 230. The local planning authorities had conditioned their approvals on the

developers' willingness to make certain road improvements to address the

increased traffic development would generate. Id. at 231-32. Toll Brothers

executed a developer's agreement, whereby it adopted those conditions and

agreed it would "be responsible and solely liable to complete . . . [road]

improvements" related to the development. Id. at 234. Toll Brothers was

granted approval based on those conditions. Ibid.

Thereafter, Toll Brothers was forced to abandon construction plans for

one portion of the parcel it had originally acquired, and it subsequently sought

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to renegotiate its obligations under the developer's agreement. Id. at 240. Toll

Brothers sought recalculation of the costs it was required to assume to "more

adequately reflect its pro-rata share." Ibid. The County Planning Board refused

to amend the developer's agreement, prompting Toll Brothers to seek

reformation in court, asserting it should be permitted to move before the County

to demonstrate that there was a change in circumstance that required

reconsideration of the conditions set forth in the developer's agreement. Id. at

239-40. Toll Brothers argued that enforcement of the developer's agreement

would violate the off-tract contribution provision set forth in N.J.S.A. 40:55D-

42 of the Municipal Land Use Law (MLUL), which prohibits the government

from requiring off-tract improvements beyond a developer's pro-rata share. Id.

at 240.

The trial judge granted summary judgment to the defendants, finding "the

terms of the developer's agreements 'clear and unambiguous.'" Ibid. The judge

rejected Toll Brothers' contention that it was entitled to a Board hearing because

that argument "'confuse[d] a Developer's Agreement with an ordinary condition

of approval' and would 'ignore[] basic principles of contract law that preclude[]

such reconsideration.'" Ibid. (alterations in original). Toll Brothers appealed,

and we affirmed. 388 N.J. Super. at 103 (App. Div. 2006).

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 The Supreme Court rejected the County's argument that the developer's

agreement was a binding contract and concluded that planning boards were

required to exercise their delegated powers in "strict conformity with . . . the

MLUL." Id. at 243. The Court concluded that the trial court erred in denying

access to a hearing before the Board and held that a developer's agreement is not

an independent obligation that frees the parties from the restraints in the MLUL.

Id. at 254. The Court held that Toll Brothers had a right to appear before the

County to establish a sufficient change in conditions surrounding the property .

Ibid. The Court relied on N.J.S.A. 40:55D-12(a), which codifies the right of a

party to request a change in the conditions of approval, public notice , and a

hearing for modification of conditions reflected in a developer's agreement . Id.

at 247.

The facts and circumstances of the present case are inapposite.

Significantly, no change of circumstances was presented to the DOT. Nothing

changed between the developer's signing of the permit and its filing of a notice

of appeal with the agency. Notably, Maple Shade planned to file an appeal

around the time it signed the permit, but completed the project as agreed, and

waited four months to appeal. There simply was no change of circumstances

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between the signing of the permit and the filing of the appeal comparable to the

change of circumstances demonstrated by the developer in Toll Brothers.

To the extent not addressed, Maple Shade's remaining contentions lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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