Modification of highway access is one of the most problematic and confusing areas of the law. As a general rule, the government’s use of its “police power” enables it to regulate the state highway system. In New Jersey, the government also has the benefit of the Highway Access Management Act.

In adopting the Highway Access Management Act, the New Jersey Legislature declared: (1) “[t]he State has a public trust responsibility to manage and maintain effectively each highway within the State highway system to preserve its functional integrity and public purpose for the present and future generations” (N.J.S.A. 27:7-90c), and (2) “[t]he access rights of an owner of property abutting a State highway must be held subordinate to the public’s right and interest in a safe and efficient highway.” (N.J.S.A. 27:7-90g).

Often, the government will use these powers to change access to a property and refuse to pay just compensation or damages to the owner. If the change in access is severe but does not rise to the level of an actual taking, the property owner may be left with no recourse. This article provides a brief overview of the process for the modification of highway access.

By way of background, the government can adjust, modify or revoke access. As defined by the Highway Access Management Code:

“Adjustment of access” means changes to an access point, in conjunction with the implementation of a highway improvement project, which result in changing the width of an access point by five feet (1.5 meters) or less, changing the location of an access point by 10 feet (three meters) or less, moving an access point away from the centerline of the highway, or changing the elevation or profile of an access point.

“Modification of access” means changes to access in conjunction with the implementation of a highway improvement project, which results in changing the number of access points, changing the width of an access point by more than five feet (1.5 meters), or changing the location of an access point by more than 10 feet (three meters).”

“Revocation” means termination of an access permit by the Commissioner after a determination that alternative access is completed and available for use.

If the government adjusts access, no notice of the decision to adjust access is provided to the owner, only notice of the construction (unless the government is also acquiring a right-of-way). However, the government cannot modify or revoke access without first providing the property owner with: (1) written notice of the decision to modify or revoke access, (2) a copy of the new access plan showing to changes to access, and (3) an opportunity to have a hearing.

Assume you own property fronting on a highway and the NJDOT wants to modify your access by moving it 30 feet (which is still on your property) and construct a sidewalk. Assume further that the government sends you a copy of the plan showing the change in access, accompanied by a written notice of the change. If you do not like the change in access, what should you do if you want to object?

First, file a timely notice of appeal and object to the change in access. The most important deadlines are:

• A property owner has 30 days from receipt of the initial notice to reject the plan and file an appeal with the New Jersey Department of Transportation. The appeal must be in writing.

• After receiving the written appeal, the Manager of the Bureau of Major Access Permits schedules an informal meeting with the property owner to resolve any differences. A property owner is given an opportunity to present further information regarding access at the meeting.

• Within 30 days of the meeting, the Manager of the Bureau of Major Access Permits issues a decision in writing.

• If a property owner does not agree with the decision, the property owner has 30 days to submit an appeal to the Director, Division of Design Services.

• The Director, Division of Design Services, schedules an informal hearing within 10 days of receipt of the appeal. Within 30 days of the hearing, the Director, Division of Design Services, renders the final agency decision, with reasons.

• A property owner can file an appeal of the final decision to the Appellate Division of the Superior Court of New Jersey within 45 days of the final decision.

It is important to file a timely appeal from the initial notice from NJDOT in order to present your objections to the Department of Transportation. Failure to file the initial appeal within 30 days of receiving notice of the proposed modification is generally deemed a waiver of your right to appeal and object to the modification.

It is also very important to be prepared for the meeting with the NJDOT. Often, it is prudent to have a traffic engineer review the access plan and advise the property owner of how the access modification will impact traffic to and from the property, and any potential onsite circulation problems caused by the modification of access.

Finally, it is important to know the difference between damages caused by the modification to access and damages caused by a small taking (ie. slight road widening or installation of sidewalk). Some damages are compensable; others are not. Due to the important differences between modification to access and takings, it is advisable to seek component legal counsel to assist you in your analysis of the government’s action.