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Appellate Division Declines to Allow Developer’s Four-Month-Late DOT Permit Appeal, Citing No Change in Circumstances

A Maple Shade Township developer’s appeal of permit conditions was untimely when they appealed four months past the deadline and without any change in circumstances justifying deadline relaxation, the Appellate Division held this month.

In Maple Shade Equities, LLC v. New Jersey Dep’t of Transportation, Docket No. A-3709-19 (App. Div. Nov. 17, 2021), developer Maple Shade Equities, LLC (Maple Shade) appealed the conditions of a March 2018 permit issued by the Department of Transportation (DOT). After purchasing commercial property with frontage on Route 38, with hopes of turning it into a drive-through bank and drive-through coffee and donut shop, Maple Shade applied for a DOT permit to revise the Route 38 frontage in 2016. Over the next year and a half, Maple Shade and the DOT went back and forth over how to revise the highway frontage. Eventually, the DOT “strongly recommend[ed]” that Maple Shade create a 10-foot-wide shoulder. Following this recommendation, Maple Shade applied for a permit and received it in March 2018. Maple Shade then built the shoulder.

After finishing the project, in August 2018, Maple Shade appealed the DOT’s permit conditions, nearly four months past the 30-day deadline imposed by the State Highway Access Management Code, N.J.A.C. 16:47-1.1 to -14.1 (Access Code). Maple Shade argued that the DOT’s permit condition of creating the shoulder was an overreach, requiring “illegal conditions” not mandated by the Access Code. They also claimed that the time restriction should not apply to the “unique legal and factual situation” of their application. The DOT issued a final agency decision rejecting these arguments, finding a legitimate exercise of the agency’s police powers.

On appeal, the Appellate Division affirmed the agency’s decision, noting that equitable principles did not excuse Maple Shade from the 30-day deadline to appeal, as the developer presented no change of circumstances between the time the permit was issued and the time of appeal. The court emphasized that in order for the court to grant leeway in the Access Code’s deadline for appealing permit conditions, a party must show sufficient actual change in conditions surrounding the property. Where circumstances have not changed, deadline flexibility will not be granted.

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