Pub. 11 2012-2013 Issue 4

N e w J e r s e y C o a l i t i o n O f A u t o m o t i v e R e t a i l e r s w i n t e r 2 0 1 3 14 new jersey auto retailer A commercial propertymay be deemed to have “reasonable” access even if it is separated from the main roadway by a service road or loses all direct access to the property. “Reasonable access” may be deemed to exist even if, to gain access, customers and vendors are forced to exit the main roadway and use a service or access road long before the property itself can be seen. Likewise, curb cuts can be closed, moved or realigned even if on-site vehicle circulation is altered. Once there is a finding that the access provided to a property or the access that remains after a roadway or curb cut is altered is “reasonable,” a governmental entity may move forward with its project and the owner is not entitled to any compensation for the negative consequences the project has on his or her business. This is due to the fact that access and changes to access by governmen- tal agencies are deemed to be exercises of the government’s police powers, like zoning and land use restrictions, not takings of property, as to which, the Federal and State constitutions require payment of just compensation. As long as “reasonable” access is provided, the exercise of the police power is deemed valid, and no compensation is required. At the State level, access changes caused by roadway projects or curb cut changes are handled by the Department of Transportation (DOT) through formalized proceedings. Prior to any change, the Department gives notice to the affected property owner, who has the right to meet with DOT staff to discuss alternatives and to a hearing before the DOT and appeals in Court to challenge whether the DOT proposal affords “reasonable” access to the property. At the county and municipal levels, the process can be less for- malized and less transparent than with the DOT. A property owner may not be given notice of a proposed access change until late in the agency’s development of a project and may not be given much in the way of avenues to rectify problems caused by the change beyond pleading with the municipal or county engineer or the design engineers for the project. Absent success in such informal discussions with the agency, dealers may have to resort to the courts in order to challenge the reasonableness of an access change. Given the poten- tial consequences of an access change, it is advisable for a motor ve- hicle dealer faced with a pro- posed change to fully investigate its potential and pursue all available avenues to minimize negative consequences. If pur- sued, modifications of an agency’s plans are possible and unreasonable plans can be defeated. However, too often, property owners pay little heed to the notices from DOT or to what- ever notice and information comes to them from county or municipal officials. They either fail to challenge the access proposal at all, fail to present their side through competent, prepared engineers, or fail to pursue all of their hearing and appellate rights. The end result is that the reasonableness of access is approved almost by default, even though modifica- tions or an outright prohibition of the change might have been possible. In fact, there have been recent cases of New Jersey dealerships that have been left with properties that were no longer suitable for dealership purposes because they did not properly protect their interests. The conclusion then is: Beware. Notices of access changes must be taken seriously. The consequences of the changes must be carefully assessed and, if they will have any significant ad- verse impact, the access changes must be challenged at the first opportunity and the challenges must be vigorously pursued. The alternative is a property that may be significantly harmed and a business owner with a weakened ability to address the potential harm. Marvin J. Brauth is a shareholder with Wilentz, Goldman & Spitzer, Woodbridge, New Jersey. He has been representing automotive retailers for over 30 years in connection with issues affecting their dealerships, including access issues as discussed in this article. Mr. Brauth can be reached at 732-855-6084 or mbrauth@wilentz.com. Notices of access changes must be taken seriously. The consequences of the changes must be carefully assessed and, if they will have any significant adverse impact, the access changes must be challenged at the first opportunity and the challenge must be vigorously pursued. beware  continued from page 13