TRANSPORTATION (a) NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018 (CITE 50 N.J.R. 11)

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1 PROPOSALS (a) DIVISION OF RIGHT OF WAY AND ACCESS MANAGEMENT DIVISION OF STATEWIDE PLANNING State Highway Access Management Code Proposed Repeals and New Rules: N.J.A.C. 16:47 Authorized By: Richard T. Hammer, Commissioner, Department of Transportation. Authority: N.J.S.A. 27:1A-5, 27:1A-6 and 27:7-44.1, and 27:7-89 et seq., specifically 27:7-91. Calendar Reference: See Summary below for explanation of exception to calendar requirement. Proposal Number: PRN Submit comments by March 3, 2018, to: Paul F. Sprewell Administrative Practice Officer New Jersey Department of Transportation PO Box 600 Trenton, NJ Fax: (609) Submit electronically at: This rule may be viewed or downloaded from the Department s website at: state.nj.us/transportation/about/rules/proposals.shtm. The agency proposal follows: Summary N.J.A.C. 16:47 was first adopted on April 20, 1992, and in the ensuing 25 years has been readopted with numerous amendments to keep it current and consistent with the purpose for which it was intended. These rules, however, have never been evaluated for ease of use, simplification of organizational layout, or clarity of intent. The Department has undertaken such an evaluation and believes that extensive revisions are needed. With this in mind, a full repeal and replacement of the rules is proposed. It is the Department s belief that the proposed reorganization, simplification, and clarification of N.J.A.C. 16:47 will be of benefit to those seeking an understanding of, among other things, the conditions under which access to a State highway will be allowed, the requirements for an access permit, the permit process, and the technical requirements for traffic impact studies and traffic signals. Because the Department has provided a 60-day comment period for this notice of proposal, this notice is excepted from the rulemaking calendar requirement, pursuant to N.J.A.C. 1:30-3.3(a)5. The purpose of N.J.A.C. 16:47 is to manage vehicular traffic to and from State highways and minimize its interference with through traffic by utilizing an access classification system, which regulates the construction and operation of access points along these highways. To accomplish this, the State Highway Access Management Code (Access Code) establishes a general classification system for the State highway system based on (1) the function that segments of State highways serve and are planned to serve within the State highway system and within the general system of streets and highways; (2) the environment within which highways are located including, but not limited to, urban and rural environments; (3) the appropriate and desirable balance between facilitating safe and convenient movement of through traffic and providing access to abutting property; and (4) the desirable rate of speed and the degree to which traffic should be protected from major variations in speed. Access classification also provides a system for regulating driveway access and establishing permissible turning movements to and from State highways. The access classification system consists of six access levels, which range from the most restrictive, Access Level One, to the least restrictive, Access Level Six. The access level controls the allowable turning movements to and from the State highway. The Department determines the access level (AL) for a segment of State highway after considering highway function, surrounding land use patterns, traffic characteristics, speed limit, and desirable typical section (DTS), which is the Department s long-range plan for number of highway lanes, of the highway. Changes in any of these parameters may necessitate a change in the access classification level for a segment of State highway. In anticipation of a full repeal, the Department published a notice of pre-proposal in order to solicit comments from the regulated community. The notice of pre-proposal was published in the November 5, 2012, issue of the New Jersey Register at 44 N.J.R. 2470(a). The Department received comments from several engineering and transportation-related firms, the Township of Montgomery, and the County of Somerset. The Department has chosen to respond to these comments in this notice of proposal as follows: Subchapter 1. COMMENT: Subchapter 1, as well as the chapter in general, appears to be strictly focused on access permits. Should the focus also include how the Access Code provisions should be addressed in State highway projects? agrees that revisions are warranted. The Department agrees that language needs to be included in Subchapter 1 that addresses how the Access Code provisions apply to Department projects. Language has been added at N.J.A.C. 16:47-1.2(d), which incorporates some language found at pre-proposed N.J.A.C 16: (a), describing the adjustment, modification, or removal of a driveway done in conjunction with State highway projects advanced by the Department or others with Department approval, or through separate access projects. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-1.2(b), is there a need to identify from whom to seek appropriate mitigation associated with the traffic using non-state highway access? agrees that revisions are warranted. Language has been added to identify that the lot or site owner is the appropriate person from whom to seek appropriate mitigation. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-1.3, is there a need to include guidance regarding how the DTS should be used by the Department in improvement projects involving State facilities? State highway projects are noted in the definitions of adjustment of driveways, alternative access, and modification of driveways. RESPONSE: The Department does not believe it is necessary to provide guidance regarding how the DTS should be used by the Department in improvement projects. DTS is clearly identified as the Department s long range plan for each State highway segment. As this chapter is intended to regulate how lot or site owners access the State highway, not how the Department develops its improvement projects, it is not necessary to include guidance regarding the use of DTS by the Department for its own projects. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-1.3(a), the timeframe of two years for completion of work is overly restrictive. Commenters noted that obtaining approvals from other agencies and variables, such as winter weather, economic conditions, and actual construction of roadway improvements can span two construction seasons. Once construction has started, the applicant should not be required to get an extension. Access permits should be valid for five years. RESPONSE: The Department understands that construction timeframes can span two seasons because of variables outside the developer s control, but it is also important to minimize disruption to the traveling public on State highways due to construction delays. Possible delays that are known, such as approvals from other agencies, may be dealt with in permit conditions and developer agreements. The Department will work with applicants prior to execution of the permit to ensure that sufficient time is allowed to complete construction. Preproposed N.J.A.C. 16:47-1.3(a) is now found at proposed N.J.A.C. 16:47-1.3(d) with no change in text. However, in recognition that additional time may be needed to complete construction, pre-proposed N.J.A.C. 16: (c) and 10.11(a) and (b) have been changed in this notice to reflect that construction must be started within two years of permit execution and must be substantially completed within three years NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018 (CITE 50 N.J.R. 11)

2 PROPOSALS of execution, unless otherwise stated in the permit, thereby adding one additional year for construction to be completed. At the Department s discretion, and for good cause, a one-year extension may be granted. A definition of substantial completion is added to the rule. COMMENT: Relating to the phrase regulate traffic movements on the State highway, is a definition or further explanation needed at preproposed N.J.A.C. 16:47-1.3(c)? RESPONSE: The Department does not believe that further definition is necessary, however, the language found at proposed N.J.A.C. 16:47-1.3(f) has been changed for clarity. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-1.3(e), the language should be clarified to confirm that a nonconforming lot that has a grandfathered permit for a use that exceeds the vehicular use limitations remains entitled to those trips, even if the use on the site changes. It appears that the current language suggests that any change in use on a nonconforming lot would eliminate a property owner s rights to the grandfathered trip characteristics of the property. agrees that revisions are warranted. The language is now found at proposed N.J.A.C. 16:47-1.3(h) and has been changed to include reference to the provisions of proposed N.J.A.C. 16:47-8.3(c), which has been added to explain that nonconforming lots with grandfathered permits and existing size and type of land use that cause the trip generation to exceed the maximum trip limitations for the lot or site, will only be granted a permit if the proposed use will not exceed the trip generation for the grandfathered permit. Additionally, any proposed highway improvements must benefit the State highway. Subchapter 2. The Department received comments related to pre-proposed N.J.A.C. 16:47-2.1, the definitions section of both the pre-proposal and this notice. The following words were suggested for inclusion in the definitions subchapter: capacity, control delay, convenience store with fuel, density, fair share capacity, and violation component. The Department considered these suggestions, but does not believe that these definitions are necessary. Responses to further comments relating to the definitions are as follows. COMMENT: Is the pre-proposed definition of access application too narrow? Is it not considered an access application before it is submitted? RESPONSE: Documents submitted to the Department prior to the formal application submission are not considered to be an application. The Department, therefore, declines the suggestion that the proposed definition of access application be changed. COMMENT: Relating to the pre-proposed definition of administrative permit, is the new permit category intended to eliminate the need to obtain property owner signatures from third-party properties whose driveways are impacted by construction of either a State- or developer-sponsored road improvement project? agrees that revisions are warranted. The commenter is correct in stating that administrative permits do not require execution by the lot or site owner. Administrative permits will be issued to third-party owners whose driveways are impacted according to the provisions of Subchapter 11. The Department changed the proposed definition to clarify that administrative permits may be issued for reasons other than driveway adjustments, modifications, and removals. COMMENT: A commenter stated that the pre-proposed definition of alternative access is very narrow, relating to State highway projects, and should be broadened to take into account that the strategy is used elsewhere, as in nonconforming lots. RESPONSE: The commenter is correct that the definition of alternative access is narrowly defined to mean access that is provided when driveways are modified or removed as a result of actions by the Department in implementing a State highway project advanced by the Department or others. The Department believes that the suggestion that the strategy is used elsewhere in the chapter is incorrect. The commenter may be referring to the concept of non-state highway access, which definition has been clarified in this notice, to indicate that it means access between a lot or site and a public street. While this access may be considered an alternative to State highway access, it has not necessarily been administratively determined to satisfy the criteria set forth in N.J.S.A. 27:7-89 et seq., as required by this chapter. The Department, therefore, declines to change this definition. COMMENT: Should a maximum length be included in the preproposed definition of auxiliary lane? agrees that revisions are warranted. The pre-proposed definition of auxiliary lane was reviewed and removed from this notice, since the term is defined in the New Jersey Department of Transportation Roadway Design Manual, which is incorporated by reference in this chapter. Including it in the list of definitions could cause confusion. COMMENT: Relating to the pre-proposed definition of bifurcated driveway, is it correct to interpret that ingress and egress curb cuts separated by more than feet would be considered two separate driveways and would be required to meet the spacing distance for two driveways? Another commenter asked the basis for the maximum distance of feet. The design should be allowed the flexibility to reflect the property frontage and project design within good traffic engineering standards and judgment and without arbitrary design restrictions. agrees that revisions are warranted. The proposed definition of bifurcated driveway is changed to establish that curb cuts separated by more than 130 feet would be considered two separate driveways. The distance of 130 feet was established by using half of the maximum width of both driveways plus the island measurement of 50 feet, which equals 130 feet. COMMENT: The pre-proposed definition of certificate of construction acceptance should be expanded to allow further discretion by the regional engineer or major access permit manager to allow the opening of a driveway. In some cases, the design plan traffic staging may require the opening to maintain safe traffic conditions. There is a concern that paperwork is sometimes difficult to have processed in a timely manner. The regional engineer should have the discretion to allow the opening as the work progresses or is substantially completed, in order to maintain safe conditions. RESPONSE: The Department has determined that the proposed definition does not require amendments, however proposed N.J.A.C. 16: (e), which states that a lot or site owner shall not use the State highway access until the Department has issued a certificate of construction acceptance, has had language added that the State highway access may also be used if the lot or site owner has been given approval by the Department to use the State highway access prior to the completion of construction. COMMENT: Performance criteria should be included in the preproposed definition of convenient. This is an opinion definition and what may be considered convenient to a case manager may be unacceptable to a business operator, particularly for businesses that rely heavily on capture traffic from the State highway. RESPONSE: The Department believes it would be impossible to establish performance criteria for the term convenient that would cover all situations where the term would apply, therefore, the Department declines to change the definition. COMMENT: Language should be added to the pre-proposed definition of curbline opening to account for auxiliary lanes, which do not conform to the outlined criteria. RESPONSE: The comment is unclear how auxiliary lanes affect curbline openings, thereby warranting changes to this definition; therefore, the Department declines to change the proposed definition. COMMENT: Relating to the pre-proposed definition of direct, performance criteria as to what is considered a limited number of turns should be included. This is an opinion definition. RESPONSE: The Department believes it would be impossible to establish performance criteria for the term direct that would cover all situations where the term would apply, therefore, the Department declines to change the definition. COMMENT: The pre-proposed definition of frontage should be expanded to clarify the case for the intersection of two State highways. (CITE 50 N.J.R. 12) NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018

3 PROPOSALS agrees that revisions are warranted. The proposed definition has been amended to delete the discussion related to conformance. Proposed Subchapter 5 has been revised to clarify how conformance is determined when a lot or site has frontage on two different State highways. COMMENT: Related to the pre-proposed definition of grandfathered permit, a commenter requested that an administrative permit be issued for a grandfathered driveway when requested by the lot owner. RESPONSE: The Department does not believe that a lot or site owner needs an administrative permit for a grandfathered permit until some action is being taken on the lot or site, either by the lot or site owner or by the Department. The Department, therefore, declines to change this definition. COMMENT: Flexibility is requested in the provisions related to the pre-proposed definition of in-kind replacement. A driveway constructed 20 years ago does not meet current design standards, and in maintaining a property, an owner should be permitted to reconstruct the existing driveway system to current design standards for safety reasons. As written, property owners are discouraged from addressing minor substandard driveway designs during property maintenance or upgrades. RESPONSE: The Department does not want to discourage owners from updating existing driveway systems but, anything that involves actions other than in-kind replacement would require review and, possibly, a Highway Occupancy Permit, pursuant to N.J.A.C. 16:41, particularly if the driveway upgrade requires work within the State highway right-of-way. The Department, therefore, declines to change the definition. COMMENT: The pre-proposed definition of intersection is open to misinterpretation because of the words two or more State highways or streets. agrees that revisions are warranted. The proposed definition has been changed for clarity. COMMENT: Should the words or more be added to the preproposed definition of major access with planning review access application when referring to new trips in any peak hour? agrees that revisions are warranted. The proposed definition has been changed for clarification. Amendments are also made to N.J.A.C. 16:47-8.5(d) and (e) to reflect this change. COMMENT: Related to the pre-proposed definition of modification of driveway, do the standards apply only to Department-initiated projects? Do lot or site owners need permits to modify their driveways within the five-foot and 10-foot thresholds? agrees that revisions are warranted. The commenter is correct, the provision refers only to Department-initiated projects. The proposed definition is changed to clarify that, in this case, a modification of a driveway does not refer to changes made by a lot or site owner to their own driveway. As for alterations of driveways by lot or site owners within the five-foot and 10-foot thresholds, because the Department needs to ensure that safety of the general public is maintained, alteration of a driveway requires a permit pursuant to proposed N.J.A.C. 16:47-8.1(a)2. COMMENT: Is the pre-proposed definition of reasonable access to the general system of streets and highways adequate? RESPONSE: The Department believes that the definition is adequate, however, changes are warranted. This definition has been changed to remove the word improved as all streets must be improved pursuant to the changed definition of the word street. COMMENT: Is there a procedure for submitting a revised access permit as defined in the pre-proposal, and are there threshold criteria? agrees that revisions are warranted. There is no separate procedure for submitting an application for a revised access permit. The term is used to explain the concept of the Department s revision of an existing permit. Existing permits and grandfathered permits may be revised to reflect changes to a lot or site s driveway by the lot or site owner, or by the Department or others with Department approval. For Department recordkeeping purposes, the permit is identified as revised. The proposed definition is changed to clarify this process. COMMENT: Relating to the pre-proposed definition of service station with gas and minimart, what is required to show that 75 percent of the ADT is for the purchase of gasoline, petroleum, and other motor vehicle services? agrees that revisions are warranted. The Department agrees that the preproposed definition of service station with gas and minimart with a requirement that 75 percent of the ADT be for the purchase of gasoline, petroleum, and other motor vehicles services, was unclear as to how that requirement was to be demonstrated. The proposed definition is changed to remove reference to any specific ADT percentage, as what is important is that the facility s primary function is the sale of the aforementioned products. COMMENT: Relating to the pre-proposed definition of significant increase in traffic, do pre-existing permits have to conform to the new standard that eliminates the 10 percent daily trip threshold? Are existing permits grandfathered into the old standard as it is written on the existing permit? RESPONSE: All permits will be governed by the new standard upon the effective date of this rulemaking. The reference to a 10-percent trip threshold found in existing N.J.A.C. 16:47 is removed because the Department believes that it penalized small businesses and developers. For example, take two shopping centers, one with daily traffic of 100,000 trips and the other with 50,000 daily trips. They both propose expansions that result in an increase in daily traffic by 5,500 trips and weekend peak hour increases of 150 trips. Using the 10 percent trip threshold, only the smaller shopping center has a significant increase in traffic, however, both expansions have the same impact to the highway in the weekend peak hour of 150 trips. Since the design of highway improvements is based on peak hour trips, not on daily trips, the factor that should determine whether or not there has been a significant increase in traffic should be the increase of 100 peak hour trips, not whether or not the expansion crosses the 10 percent increase in daily traffic threshold. COMMENT: There is a discrepancy relating to the pre-proposed definition of specialty retail center and its use in pre-proposed Appendix F-1.2, related to trip generation rates. In the definition, ITE trip generation rates are to be used. In Appendix F, only certain ITE trip generation rates are used (morning and weekend peak hour). agrees that revisions are warranted. To clarify intent, both the definition and Appendix F-1.2 are changed in the notice of proposal. COMMENT: Relating to the pre-proposed definition of street, is it possible that a private street can exist or be proposed that serves only one lot, such as in the case of multi-family development? RESPONSE: No, for access purposes, the Department considers this type of private street to be a driveway. COMMENT: A comment related to the pre-proposed definition of street application or street permit questions whether the provision applies to a private driveway or roadway, which forms a 4th leg (lane) to the existing intersection. RESPONSE: No, a street application and street permit do not apply to a private driveway. For a roadway that forms the 4th leg of an existing intersection to be considered a street it must be an improved thoroughfare other than a State highway, must serve more than one lot or site, and exist within its own right-of-way, separate from the lot or site it serves. COMMENT: The pre-proposed definition of temporary driveway permit needs to include a time limit. RESPONSE: The provision regarding time limits for temporary driveway permits is found at proposed N.J.A.C. 16: (e). The Department has determined that the definition does not need to be changed. COMMENT: A commenter suggested rewording the pre-proposed definition of trip by defining it as a single vehicle, one-way movement from an origin to a destination. NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018 (CITE 50 N.J.R. 13)

4 PROPOSALS agrees that revisions are warranted. The definition is changed in this notice. Subchapter 4. COMMENT: Pre-proposed N.J.A.C. 16:47-4.1(b) only discusses left turns from the State highway and not to the State highway. agrees that revisions are warranted. The Department agrees that the preproposed language deals only with left turns from the State highway. Proposed N.J.A.C. 16:47-4.1(b) through (d) provide for left and right turn ingress from the State highway. Proposed N.J.A.C. 16:47-4.1(e) is added to provide clarification that left and right turn egress from a lot or site is generally allowed unless otherwise prohibited by regulation or highway configuration. COMMENT: The AL 2 description in pre-proposed N.J.A.C. 16:47-4.1(b) appears to allow right-turn movements for corner lots along a State highway. Should this be changed to indicate left-turn and right-turn movements? agrees that revisions are warranted. Pre-proposed N.J.A.C. 16:47-4.1(b) incorrectly stated that right-turn movements from a State highway are generally allowed on all AL 2 through AL 6 State highways, unless otherwise precluded due to design or safety considerations. This language was not the intent of the Department. The notice of proposal has been amended at proposed N.J.A.C. 16:47-4.1(c) to indicate that right-turn movements from a State highway to a lot or site are not allowed on AL 2 State highways where the Commissioner determines that non-state highway access is available. If non-state highway access is not available, right-turn movements to and from the lot are generally allowed. COMMENT: The language in N.J.A.C. 16:47-4.1(b)5 and 6 should be reversed. agrees that revisions are warranted. The language in the notice of proposal is changed as suggested by the commenter. Subchapter 5. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-5.1(e)5, how are paper streets treated, particularly if future street access is unlikely? RESPONSE: The definition of street explains that paper streets are not considered streets until they are constructed; therefore, a paper street would not be used in any calculation for conformance done pursuant to the provisions of proposed Subchapter 5. COMMENT: A situation that often arises on medians of State highways and with U-shaped lots is multiple frontages on the same State highway. It was suggested that language be added to address these conformance determinations. agrees that revisions are warranted. The Department agrees that language needs to be included to address this situation. Proposed N.J.A.C. 16:47-5.1(f), Conformance Flow Chart, Question #5 is added, along with Figures 5-4, 5-5, and 5-6 to provide direction for calculating conformance for a lot or site located in a median of a State highway or that has non-continuous frontage on one or more State highways. Subchapter 6. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-6.2(d), can an existing driveway, adjacent to a new street intersection, continue to be used providing that the trips do not exceed the nonconforming trip threshold? agrees that revisions are warranted. N.J.A.C. 16:47-6.2(d) refers to the subdivision of nonconforming lots to create new street intersections on AL 2 State highways. The Department agrees that it is not clear in the pre-proposal that the resulting lots must be prohibited from access to the State highway and this must be documented through deed restriction. Proposed N.J.A.C. 16:47-6.2(d) has been changed to make clear that in such situations access would have to be through the new street intersection. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-6.4(a), which provides for new street intersections on State highways classified as AL 3, 4, and 5, what if a new street utilizes a paper street and does not require a subdivision? RESPONSE: All new streets, including paper streets, must meet the requirements of N.J.A.C. 16: Although by definition, a paper street is not a street until it is physically created, if it already exists within its own right-of-way, subdivision would not be required. Subchapter 7. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-7.2(a), language should be added that allows some level of work within the newly constructed or resurfaced area, as long as the area is returned to an acceptable condition. Does the restriction apply to an auxiliary lane needed to mitigate the impact caused by constructing a new driveway? What about utility openings or roadway improvements associated with a new driveway? agrees that revisions are warranted. Pursuant to N.J.S.A. 27:7-26, proposed N.J.A.C. 16:47-7.2(a) is changed to allow openings at the discretion of the Commissioner. If allowed, the area will have to be returned to a condition acceptable to the Department. The restriction does not apply to auxiliary lanes. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-7.2(c)2, tree trimming and removal should be added as a companion permit to access permits. Approval of an access permit should be deemed as permitting such activities within the limits of disturbance shown on the design plans. There should be no need for separate permits. RESPONSE: There is no need for the addition of a companion permit to these rules. Tree trimming and removal are governed by the provisions of N.J.A.C. 16:41, Highway Occupancy Permits, and if specified in the access permit there is no need for a separate highway occupancy permit. Pursuant to the provisions of N.J.A.C. 16:47-9.1(f), these activities and others are covered in one permit, consistent with the provisions of N.J.A.C. 16:41. COMMENT: Relating to N.J.A.C. 16:47-7.2(e), are separate permits required for utility relocations? agrees that revisions are warranted. Permits for utility relocation are governed by N.J.A.C. 16:41 and separate permits must be obtained. The language is clarified and added to proposed N.J.A.C. 16:47-8.6(c), which describes the applicability of additional permits and those that may be combined with an access application. Subchapter 8. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.1(a), the sentence indicating that the Department will determine whether a permit is required is vague. agrees that revisions are warranted. The language is changed and moved to proposed N.J.A.C. 16:47-1.3(a). It now states that the Department will determine if an access permit is necessary and what type of permit is required, based on the provisions of this chapter. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.1(a)8, which provides for trip expansion limits between private streets and a State highway, should public streets be included? RESPONSE: No, private streets are treated as driveways for the purpose of establishing trip expansion limits. Public streets do not have trip expansion limits as provided by proposed N.J.A.C. 16: (f). COMMENT: It is requested that clarification and expansion of the provisions regarding letters of no interest be added to pre-proposed N.J.A.C. 16:47-8.2(a), to permit a professional engineer to prepare a Letter of No Interest, as has been permitted in the past. Questions were also asked if a Letter of No Interest can still be submitted to a township for approval, what is the policy on a Letter of No Interest submission and approval, and can clarification be added as to where and when a Letter of No Interest should be submitted. RESPONSE: The Department will respond to requests received for a Letter of No Interest, but the letters do not represent or indicate Department approval, they represent a final agency decision on the need (CITE 50 N.J.R. 14) NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018

5 PROPOSALS for an access permit. While past Department informal policy allowed a professional engineer to prepare a Letter of No Interest to advise a municipality that an access permit should not be needed, the Department no longer supports that policy and chooses not to include such language in this proposal. If the lot or site owner believes there is a question as to whether or not an access permit is needed for an action they propose, they are encouraged to request a Letter of No Interest from the Department to resolve that question. The Department will respond to a request within 60 days by issuing a final agency decision on the need for an access permit. Whether or not a municipality accepts the Department s Letter of No Interest, is beyond the Department s control. The Department declines to change the language in the proposal. COMMENT: Language should be added to pre-proposed N.J.A.C. 16:47-8.3(b) to clarify that a nonconforming lot that has a grandfathered driveway permit for a use that exceeds the allowable trip limits remains entitled to those trip limits if the use changes. Grandfathered trips that exceed the trip limit on a nonconforming lot would be lost if any of the changes described in N.J.A.C. 17:47-8.1(a) are made to the site, including a change of use. The right to the grandfathered trips in excess of conformance standards remains, if the use that existed prior to 1992, is kept. Is it correct that the maximum trips for a Letter of No Interest are the greater of the existing trips or the trip threshold? agrees that revisions are warranted. The Department agrees that it was unclear whether a nonconforming lot that has a grandfathered driveway permit for a use that exceeds the allowable trip limits remains entitled to those trip limits if the use changes. The language is now found at proposed N.J.A.C. 16:47-1.3(h) and has been changed to include reference to the provisions of proposed N.J.A.C. 16:47-8.3(c), which has been added to explain that nonconforming lots with grandfathered permits and existing size and land uses that cause the trip generation to exceed the maximum trip limitations for the lot or site, will only be granted a permit if the proposed use will not exceed the trip generation for the grandfathered permit. Additionally, any proposed highway improvements must benefit the State highway. The commenter is correct that the maximum trip limitations for the lot or site that would be established in a Letter of No Interest would be the greater of the existing trips or the trip threshold for the nonconforming lot. COMMENT: Pre-proposed N.J.A.C. 16:47-8.5(a) does not allow a deduction for pass-by trips when determining the permit category, which seems to indicate that pass-by trips become part of the 200 trips in the peak hour requirement. In N.J.A.C. 16:47-8.5(d)3, major with planning review, one of the requirements is for 200 new trips in any peak hour. This seems to be contradictory. Further, is there a contradiction relative to the definition of significant increase in traffic? The definition references 100 or more trips in any peak hour, but the word new is not included. Without the word new, the significant increase in traffic test could be interpreted to include both new and pass-by traffic. This is at odds with the major with planning review test. RESPONSE: In determining permit categories in N.J.A.C. 16:47-8.5(a), pass-by trips will be considered new trips. As to the definition of significant increase in traffic, significant increase refers to all new trips, including pass-bys, which utilize the State highway system. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.5(b), the information cited in pre-proposed N.J.A.C. 16:47 Appendix F could not be located. agrees that revisions are warranted. The Department reviewed the appendix and agrees it was incorrectly codified. It is recodified in proposed N.J.A.C. 16:47 Appendix F. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.5(c), wording related to the current zoning in place should be added. If an application is based on use variance, use the highest potential trip generator within the particular land use category for which the use variance is being sought. RESPONSE: It is up to the applicant to identify any proposed uses on the lot. The Department declines to change the language found at proposed N.J.A.C. 16:47-8.5(c). COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.5(d), the deleted concept review process gave the applicant an opportunity to discuss project and traffic issues early on in the development process at minimal costs. Because of the deletion of the process, costs to the applicant may now be significant when providing detailed plans and supporting information upfront that may change during the course of the Department s review. A scaled down checklist must be available for major with planning applications to focus on the traffic study prior to the preparation of detailed construction plans. agrees that revisions are warranted. The Department has eliminated the concept review process in both the pre-proposal and the proposal. In its place, is the addition of a two-step application review process at proposed N.J.A.C. 16:47-9.5(a) that affords the applicant the opportunity to initially submit plans of a lesser detail, to ensure that the concept being proposed by the applicant is acceptable to the Department before the applicant invests in the detailed engineering needed for approval of a permit. In the proposal, the Department is providing this option to the applicant, unless otherwise directed by the Department, for major with planning review permits. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.5(d) and (e), why are lot consolidations and subdivisions not combined with driveway and street permits? RESPONSE: Consolidation and subdivision are created as permit types to allow more cost effective review of these actions. When this is the only action occurring, the review is simpler. In addition, consolidation and subdivisions often do not result in driveway changes. If they did, a driveway permit would be needed pursuant to proposed N.J.A.C. 16:47-9.1(e), which explains that applicants undertaking more than one activity that requires an access permit, such as driveway access, lot subdivision, or streets, shall submit a separate application for each activity; however, only one application fee will be required, which will be the highest applicable fee, pursuant to proposed N.J.A.C. 16: COMMENT: Relating to pre-proposed Table A, Permit Types and Categories, why is there reference to 500 trips in some categories, but not others? agrees that revisions are warranted. The Department agrees that this information is not needed and references to a specific number of trips are removed from all permit tables in the proposal. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.5(h), would lot consolidations and subdivisions which lead to at least 200 new trips during any peak hour, qualify the application as a major with planning review? The lot consolidation may not result in a new development or in any development being proposed at the time of consolidation. agrees that revisions are warranted. In the stated example, there are no new trips for the consolidation or subdivision of lots. If no new trips are being proposed the only action being permitted is the lot line changes. As such, no other permit is applicable. For clarity, all permit tables are changed in the proposal to reflect that these activities are only for minor or major permits. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-8.5(i), should this subsection should be part of N.J.A.C. 16:47-8.5(d)1? RESPONSE: No, this provision relates to temporary driveways, which is a separate type of permit, as found in proposed N.J.A.C. 16: Table 2. Subchapter 9. COMMENT: The notice requirement found at pre-proposed N.J.A.C. 16:47-9.1(c) needs to be clarified. There is a timing concern with adding an extra step of notice prior to submission to the Department. RESPONSE: This notice requirement is found in existing N.J.A.C. 17:47-4.3(o) and is, therefore, not a new concept. The only change in the pre-proposal and at proposed N.J.A.C. 16:47-9.1(c) is the inclusion of the New Jersey Highlands Council and the New Jersey Meadowlands Commission as entities requiring necessary notice. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.1(d), often times, there may be slight changes to a site plan as the overall review process proceeds. It is not unusual for minor design adjustments to be needed based on input from the Department and the municipality. There should be flexibility for the owner to make the changes, as long as they NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018 (CITE 50 N.J.R. 15)

6 PROPOSALS are not significant. Strict application of this provision adds extra time and cost to prepare a new application and fee. agrees that revisions are warranted. The Department agrees that the language in the proposal was unclear and proposed N.J.A.C. 16:479.1(d) is changed to clarify that the changes being described are those done by an applicant, unilaterally, and are substantial enough to require re-review by the Department. In those situations, the application will be considered withdrawn. Additional language is added to explain that changes in response to Department, municipal, or county comments will not result in the need for a new application and fee. COMMENT: Does the provision found at pre-proposed N.J.A.C. 16:47-9.4(a) apply to private streets? Is a pre-application meeting mandatory when only a single new traffic signal is proposed? agrees that revisions are warranted. Pre-proposed N.J.A.C. 16:47-9.4(a) refers to the intent of the pre-application process. As stated in proposed N.J.A.C. 16:47-9.4(b) a pre-application meeting is mandatory when applying for a major with planning review permit, a permit for a new street, and when a new traffic signal is proposed. As such, this applies to both public and private streets. Language is added at proposed N.J.A.C. 16:47-9.4(b) to clarify that this provision applies when a new traffic signal is proposed so the answer to the commenter s question is yes, a pre-application meeting is mandatory when only a single new traffic signal is proposed. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.4(d) and also relating to pre-proposed Appendix H-1, the Department should hold informational meetings prior to pre-application meetings at which owners do not have to provide all of the traffic analysis work described in the appendix. The requirements cause a lot of extra time and cost to owners who are seeking preliminary feedback on an intersection improvement or a potential development application. RESPONSE: The Department will continue to hold informational meetings when requested. No change is needed to this proposal. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.4(e), the need to notify the municipal engineers regarding the date of a preapplication meeting or invite them to the meeting will cause complications. Some municipalities have several engineers for different purposes and some do not have in-house engineers, but rely on consultants. There were also concerns regarding the payment for the engineers appearance, possible delays if the engineer is not available or the wrong engineer is invited and whether the provision only applies to major with planning applications. Further, the county engineer should also be notified and invited. The language should also include adequate notice of the date and time of the meeting. Also, clarify that a traffic engineer is not required to attend a pre-application meeting for a major permit application, unless it is deemed necessary by the applicant or the Department. agrees that revisions are warranted. The Department believes that, as a courtesy, the municipal and county engineers should be informed of the meeting date and given an opportunity to be made aware of what is being proposed by the developer. Because their attendance is not required, the meeting will not be delayed if the engineer is unavailable or chooses not to attend. The engineers costs are the responsibility of the municipality or county. The language regarding pre-application meetings found at proposed N.J.A.C. 16:47-9.4(c)3 has been changed to indicate that the lot or site owner shall notify the municipal and county engineers of the scheduled pre-application meeting at least seven days in advance of the meeting and include copies of all materials submitted to the Department prior to the meeting with the notification. The language has also been changed to delete the requirement that a traffic engineer must attend the pre-application meeting. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.4(f), clarification should be given as to whether the $1, fee applies to the pre-application meeting (which is mandatory in some cases) or to the Department review of the proposed traffic study and locations (which may be requested by lot or site owners.) agrees that revisions are warranted. This provision is found at proposed N.J.A.C. 16:47-9.4(e) and is changed to clarify that the $1, fee is for the Department review of proposed study areas and locations. The $1, fee will be credited towards the application fee. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.5(a)3 and 4, the application requirements found in Appendices H-2 and H-3 are onerous and will create additional time delays and costs to owners. An abbreviated checklist for major with planning applications similar to the prior concept review checklist, without significant costs for detailed plans and supporting information is suggested. agrees that revisions are warranted. The Department reviewed these appendices and found that the provisions are necessary to the application process. However, because the application review process now includes the option of a two-step process in lieu of a concept review, as found in existing N.J.A.C. 16:47, the proposal includes N.J.A.C. 16:47 Appendices H-1 through H-5, which provide checklists from preapplication to step two of the two-step review process. Step one of the two-step application review process has an abbreviated checklist as suggested by the commenter. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.5, Table B, a change is suggested for Form MT-160 to include a check box for street permits related to developments. RESPONSE: The Department considered the suggestion; however, no change in the proposal is necessary. Applicants generally state whether the request is development driven when supplying required information in other sections of the application. COMMENT: There is an error in the contact information regarding regional coverage areas found at pre-proposed N.J.A.C. 16:47-9.5(d). agrees that revisions are warranted. The contact information is revised because the Regional Maintenance Offices no longer exist and their permitting functions are now consolidated into the Department s Operations Permit Office and found at proposed N.J.A.C. 16:47-9.5(g). COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.5(e), the county engineer s office should be notified and provided a copy of an application and all attachments. Why is a submission that is typically simultaneous to NJDOT, municipality and county now to be submitted to the municipality and county prior to submission of the application to the Department? Are original proofs of service required for submission to the recipients outside of the Department or can copies be sent? RESPONSE: This provision is not a new requirement, but clarification is needed as to when the documents must be submitted. Existing N.J.A.C. 16:47-4.3(n) requires that at the time of submission of the application to the Department, for any major access application, duplicate copies of the application be sent concurrently by certified mail, return receipt requested, or by hand delivery, with signed receipt, to the municipal clerk of the municipality in which the lot is located and to the county planning board advising them that the municipality and county have 30 days to submit any comments to the Bureau of Major Access Permits. Also, for major access applications with planning review, the same process must be used for any other municipality or county within the study area. However, at existing N.J.A.C. 16: (b), 4.14(b), and 4.41(b), the checklists require the notifications be submitted as part of the application package, which creates a conflict, meaning that the notification had to be done prior to submission of the application. The Department has resolved this conflict by requiring, at proposed N.J.A.C. 16:47-9.5(h), that prior to submitting a major or major with planning review access application and applications for lot subdivision or consolidation, a copy of the application form and all required application and plan checklist items must be sent to the municipal and county engineer, municipal clerk, and the county planning board of the municipality and county where the lot or site that is the subject of the application is located. For any major with planning review access application, copies must also be sent to any other municipal and county engineer, and municipal clerk and county planning board located within the study area established pursuant to proposed N.J.A.C. 16:46 Appendix F. By sending a copy of the application form and checklist items to local officials prior to submitting the application to the Department, the applicant will have copies of proofs of service, which is (CITE 50 N.J.R. 16) NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018

7 PROPOSALS a required checklist item, to submit with their application and ensures that the appropriate county and municipal officials are informed of the application being submitted to the Department and have ample opportunity to provide the Department with any comments relevant to that application. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.5(f), the county engineer s office should be included as a recipient of substantive correspondence. However, another commenter believes that the requirement of submission of duplicate application packages is sufficient. If the municipality is copied on all design related submissions and comments by DOT, it invites additional costs to be incurred by the development community with municipal staff and consultants invited to review and weigh in on design details that remain solely in the department s jurisdiction. The Municipality and County already have to be notified on the application and have the rights to provide comment on the overall application to DOT. agrees that revisions are warranted. The language at proposed N.J.A.C. 16:47-9.5(i) is changed to require that the applicant must provide copies of all substantive correspondence, including attachments or revised plans, between the applicant and the Department to the municipal and county engineer for major and major with planning review applications. Similarly, the Department will provide the municipal and county engineer with copies of all substantive correspondence between the Department and the applicant. The Department disagrees with the second commenter s issues with these submittals and believes that counties and municipalities should be made aware of all significant changes made to a proposed development subsequent to the application submission. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.5(g)2, currently developers can sign permit applications for improvements to public streets and the permit is then signed by the municipality or county. In the pre-proposed language, the municipality or county is required to sign the application. Because of time issues, in most instances, the applications in municipalities and counties run concurrently with the applications to the Department. It is unlikely that a local official will sign an application until its jurisdiction has decided on it. Months or years could be lost in getting the application to the Department if a municipal or county official s signature is required. The municipality and county are already protected because they sign the permit itself. RESPONSE: The Department does not believe that changes are warranted. Upon the effective date of this rulemaking, municipalities and counties should be involved in the pre-application review process and, if any signatory issues arise, they may be handled on a case-by-case basis. In some situations, other arrangements may be made. The language is now found at proposed N.J.A.C. 16:47-9.5(j). COMMENT: Pre-proposed N.J.A.C. 16:47-9.5(g)5 requires that documentation demonstrating proof of permanent easements to driveways for multiple lots be provided. Traffic from multiple lots may share a driveway, in some cases documentation may not be available to show proof of permanent easements. It is suggested that language be changed to indicate that documentation be included if available. agrees that revisions are warranted. Language at proposed N.J.A.C. 16:47-9.5(j)5 has been changed and allows that the Department will consider other documentation if proof of permanent easement is not available. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.6(a) through (c), it is suggested that the lot or site owner s professional engineer be included in the notifications for application reviews. agrees that revisions are warranted. Language has been changed at proposed N.J.A.C. 16:47-9.6, One-step application review process, and 9.7, Two-step application review process, to indicate that communication during the application review process will be between the Department and the applicant and their designated contact person who has been identified on the application submitted to the Department, pursuant to proposed N.J.A.C. 16:47-9.5(b)6 and (c)6. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.6(d), it is suggested that the word may be changed to will, in regards to possible application withdrawal. RESPONSE: Because the Department wants to retain flexibility in this decision it declines to make the suggested language change. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.6(f), there have to be limits that are binding on additional time requested, so that applicants have definitive timeframes to work with. RESPONSE: The Department notes that there are several circumstances that can affect the length of review time, one of which is the Federal Highway Administration (FHWA) review. The Department has no control over Federal reviews. For other instances, review time is variable and site specific, depending on the complexity of the application. Based on these reasons, no changes in the language are proposed. COMMENT: Relating to pre-proposed N.J.A.C. 16:47-9.8(a), a typographical error was noted. RESPONSE: The Department has reviewed the language and agrees that revisions are warranted. The provision is now found at proposed N.J.A.C. 16:47-9.9(a) and the language has been changed for clarity. COMMENT: Relating to N.J.A.C. 16:47-9.8(d), does this provision allow a waiver to not have the maximum vehicular limitations applied to the lot or site? RESPONSE: This is not a new provision and is found at existing N.J.A.C. 16:47-3.5(b)5 and 4.35(f). To answer the commenter s question, no, this provision now found at proposed N.J.A.C. 16:47-9.9(d), establishes that, if a five mile per hour waiver is given to a nonconforming lot, no expansion or change in use that increases trip generation will be allowed. Subchapter 10. COMMENT: Relating to pre-proposed N.J.A.C. 16: (c), there is a request to revise the language to read substantially under construction in relation to construction timeframes from the date of permit execution. declines to change the language at proposed N.J.A.C. 16: (c). However, as suggested by the commenter, the proposed language is changed at proposed N.J.A.C. 16: (c) to extend the timeframe for construction from two years to three years, which should address the concerns raised by the commenter. COMMENT: Relating to pre-proposed N.J.A.C. 16: (e), is the language regarding grandfathered permits and allowable traffic generation limits based on the nonconforming trip threshold? Will a grandfathered nonconforming lot be permitted to exceed traffic generation limits if a change of use occurs that does not increase the trips above the prior use of the site? agrees that revisions are warranted. The answer to the commenter s question is yes, the grandfathered nonconforming lot will be allowed to continue exceeding the traffic generation limits, if the change in use does not increase the trips above those previously generated on the lot. Language has been added at proposed N.J.A.C. 16: (e) that states for grandfathered nonconforming lots, no expansion in the trip generation beyond the greater of the calculated maximum trip limits or the existing trip generation will be permitted. COMMENT: Relating to pre-proposed 16: (g), which concerns private street trip limits, the provision should be eliminated because private streets can be impacted in the future by other development not initiated by the private street owner. Also, there are increasing instances where municipalities are allowing or requiring that new streets within the community remain private where they would otherwise have been public, to reduce municipal maintenance costs. RESPONSE: In the Department s view private streets are, in essence, driveways and will continue to have trip limits. As these streets are private, they should not be impacted in the future by other developments unless the owner of the private street allows those other developments to tie into their street. In those situations, they would have to come to the Department for an access permit. As for maintenance issues, these can NEW JERSEY REGISTER, TUESDAY, JANUARY 2, 2018 (CITE 50 N.J.R. 17)