The opinion of the Court was delivered by
The central issue in this appeal is a property owner’s claim of right to a trial-type hearing on the property owner’s application for a state-highway-access permit. Under prior law the Department of Transportation’s (DOT’s) enabling legislation, N.J.S.A. Title 27, spelled out no procedure for processing an access permit, and the regulations enacted under its authority gave but a sparse outline. N.J.A. C. 16:41-2. That regulation prescribes the form of application and the documentation to be submitted, depending on the nature of the application, i.e., is it a large project, small project, major highway, etc.? Neither statute nor regulation states that an applicant is entitled to a hearing, much less a trial-type hearing, on an application.
Absent such a provision in DOT’s enabling act, High Horizons Development Company (High Horizons) claims entitlement to a trial-type hearing under the provisions of the Administra
The case arises from High Horizons’ development of a condominium project abutting State Highway 36 in Long Branch, Monmouth County, New Jersey. The project consists of fifty-eight units and has frontage on another access street, Clifton Avenue, which leads to Route 36. Route 36, also called Ocean Boulevard, is a divided, four-lane highway that parallels the shore line in this coastal community.
High Horizons applied to DOT in April 1987 for access to Route 36 by way of a circular drive suited to delivery vehicles and other occasional traffic. It proposed principal access for residents’ vehicles from Clifton Avenue, but wanted dual access in part to alleviate the traffic burden on the local street. A planned security gate activated by magnetic card would limit the Clifton Avenue entrance to residents. DOT denied the application in a June 19, 1987, letter, explaining:
The site for the proposed residential development is located several hundred feet north of Joline Avenue which is a signalized intersection with exclusive left turn lanes provided on Route 36. It is recommended that direct access to the site from Route 36 be denied due to the alternate access which is available on Clifton Avenue. This would allow all required traffic movements to be accomplished at the signalized intersection.
High Horizons appealed. In response to concerns of the applicant and local fire authorities about emergency access, in January 1988 DOT proposed limited access by means of a mountable curb. The property owner rejected that solution and renewed the appeal. After further, review, including a February 26 hearing before the Region III Engineer, DOT maintained its denial of full access, offering the following reasons:
There is access to your site from Clifton Avenue. This should handle the traffic generated by your development.
Your traffic report indicates a minimal amount of traffic would have used the Ocean Boulevard access. This being the case, Clifton Avenue will be sufficient to handle the site traffic.
The additional access to Ocean Boulevard could adversely affect the existing traffic patterns on Ocean Boulevard.Providing access to the project from Ocean Boulevard is unnecessary given the proximity of a regulated crossing at Joline Avenue.
High Horizons carried its appeal to the Acting Deputy State Highway Engineer, who presided at an informal hearing at DOT’s Trenton Office on April 25, 1988. Although witnesses were not sworn, High Horizons presented testimony by one of its principals and by a traffic-safety consultant. Both emphasized the careful design for traffic management, which had local approval. DOT produced no testimony and did not cross-examine witnesses. The complex as planned also had a conditional CAFRA permit (Coastal Area Facility Review Act, N.J. S.A. 13:19-1 to -21). The applicant claimed that the CAFRA permit was premised on direct access to Route 36.
DOT issued its final decision on June 30, 1988. In denying the application, DOT explained that any need for emergency access from Route 36 would be met by the mountable curb, and that the Clifton Avenue access was, in its judgment, adequate for all other purposes. DOT disputed High Horizons’ contention that its CAFRA permit required direct Route 36 access, and declined to base its decision on the need created only by applicant’s plan, in the face of its own judgment that direct access “would negatively affect existing traffic patterns.” High Horizons appealed to the Appellate Division.
When DOT filed its statement of items comprising the record, pursuant to
Rule
2:5-4(b), High Horizons responded by moving before DOT, pursuant to
Rule
2:5-5(a), to settle the record, asserting that six of the fifteen listed documents had never been furnished during the appeal process. DOT denied the motion, responding that the omitted documents contained no relevant, undisclosed information, and High Horizons did not move before the Appellate Division to review that denial. Among the documents not made available to the applicant were several internal memoranda and a copy of a letter from the Monmouth County Planning Board to the Division of Coastal Resources in the Department of Environmental Protection, recommending against direct Route 36 access for another,
The Appellate Division agreed with the property owner that an evidentiary hearing was required, reasoning that entitlement to such a hearing turned on whether the application for an access permit was a “contested case” as defined by
N.J.S.A.
52:14B-2(b). 231
N.J.Super.
399,
Since the date of the agency’s action, the Legislature has completely overhauled the procedure for handling highway-access permits. State Highway Access Management Act, L. 1989, c. 32 (Approved February 23, 1989). The new Act directs the agency to adopt implementing regulations. Those regulations were promulgated but have not yet been adopted. State Highway Access Management Code, 22 N.J.R. 1061 (1990) (proposed N.J.A.C. 16:47).
It would, of course, be premature and unwise to pass on the validity of the new administrative program in an unlitigated setting. Hence, the only remaining issue is whether in the circumstances of this case, not likely to reoccur, the Appellate Division was correct in requiring a trial-type hearing before an Administrative Law Judge (AU).
Few subjects have generated more inconclusive principles of law than attend the question of when a trial-type hearing is required as a condition of administrative action. See generally 2 K. Davis, Administrative Law Treatise § 10.1 (2d ed. 1979) (summarizing evolution of law of protected interests); Rabin, “Some Thoughts on the Relationship Between Fundamental Values and Procedural Safeguards in Constitutional Right to Hearing Cases,” 16 San Diego L.Rev. 301 (1979) (discussing extent of safeguards needed to protect basic due-process values). Of course it would all be a lot simpler for everyone if plain legislative language were to resolve the problem, but the APA, which is the touchstone for decision in formulating fair administrative procedures, falls short of such clarity.
To place this issue in perspective, it is useful to recall the stages of growth of administrative law. See L. Jaffe, Judicial Control of Administrative Action 3-10 (1965). At first courts struggled with the contours of substantive policy-making that could be delegated to agencies. See Schechter Poultry Corp. v. United States, 295 US. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). Once courts recognized that the choice of policy was for the agency, the next distinctive trend in the development of administrative law was to require procedural fairness before an agency could act as a lawmaker by formulating interstitial mandates that affected public conduct or by adjudicating private rights. Hence, the 1946 enactment of the federal Administrative Procedure Act, 5 U.S.C. §§ 551 to 559. New Jersey enacted its APA in 1968. L. 1968, c. 410. A 1978 amendment directed that the OAL would provide impartial hearing examiners in “contested cases.” L. 1978, c. 67 § 8 (codified at N.J.S.A. 52:14B-10(c)). The language of the New Jersey APA is similar to the federal Administrative Procedure Act and to the Uniform Law rendition adopted by many states.
Rather than itself specifying when a trial-type hearing is required, the APA piggybacks on other sources for the determi
Regrettably, however, the APA’s definition of “contested case” says no more than that a “contested case” is
a proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by
[a.] constitutional right, or
by
[b.] statute,
to be determined by an agency * * * after opportunity for an agency hearing
[N.J.S.A. 52:14B-2(b) (emphasis added and format clarified).]
It is apparent from the foregoing [language] that the guarantee of a full adversary trial is reserved for those cases in which the legal rights and duties of “specific parties” are at issue and required to be determined by a decision disposing of their interests because of “constitutional right” or “statute.”
[Public Interest Research Group v. State, 152 N.J.Super. 191, 205,377 A.2d 915 , certif. denied, 75 N.J. 538,384 A.2d 517 (1977).]
We have already explained that the DOT “statute” does not by its terms require a hearing for an access permit. The issue then is almost identical in form to one that has arisen under wetlands permit provisions of the Army Corps of Engineers. Property owners claimed entitlement to a trial-type hearing by virtue of the provisions of the federal APA. Federal courts explained that the comparable provision, 5
U.S. C.
§ 554, “does not affect all adjudications, but rather this section comes into play only in cases of adjudication which are
required by statute to be determined on the record after an opportunity for an agency hearing.” Taylor v. Dist. Eng’r, U.S. Army Corps of Eng’rs,
Because here no “statute” requires the hearing, we must consider whether “constitutional right” requires a trial-type hearing.
II
A.
Before considering the question of “what kind of hearing” is required, we may note that the property owner does not have either an absolute or constitutional right to a particular form of access to a public highway. It seems to be agreed in New Jersey, as elsewhere, that in the absence or denial of all highway access, “[t]he general rule is that the property owner is not entitled to access to his land at every point between it and the highway but only to ‘free and convenient access to his property and the improvements on it.’ ”
Mueller v. New Jersey Highway Auth.,
59
N.J.Super.
583, 595,
e. Every owner of property which abuts a public road has a right of reasonable access to the general system of streets and highways in the State, but not to a particular means of access. The right of access is subject to regulation for the purpose of protecting the public health, safety and welfare.
f. Governmental entities through regulation may not eliminate all access to the general system of streets and highways without providing just compensation.
g. The 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.
[State Highway Access Management Act, L. 1989, c. 32, § 2e-g.]
B.
Although a property owner is not entitled to any particular highway access, the owner is certainly entitled to procedural fairness in pursuing discretionary access. “[W]hen an important determination of individual rights is being made by the government, a citizen in a democratic society has a critical interest in having his status taken seriously.” Rabin, supra, at 303. Courts have used varied procedural rubrics for determining when a trial-type hearing may be required. We need not resolve whether an abutting property owner has a particularized property interest in a specific form of highway access. In any case that alone does not determine the hearing requirements. “The right to a full trial-type hearing in administrative proceedings is generally limited to the situation where adjudicatory facts—that is, facts pertaining to a particular party—are in issue.” Friedman, “Judicial Review Under the Superfund Amendments,” 14 Colum.J.Envtl.L. 187, 201 (1989) (quoting Project, “Federal Administrative Law Developments-1971,” 1972 Duke L.J. 115, 171 n. 24).
Thus, the question of whether an adjudicatory hearing is required in any particular administrative context will often hinge on whether courts consider the facts in question to be adjudicatory in nature. Adjudicative facts have been defined by Professor Davis as "facts pertaining to the parties and their businesses and activities. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicativefacts are roughly the kind of facts that go to a jury in a jury case.” In contrast, legislative facts, the determination of which will not normally require a trial-type hearing, “do not usually concern the immediate parties, but are the general facts which help the tribunal decide questions of law and policy and discretion. As Professor Davis has explained,
[a]n agency should engage in formal factfinding when, regardless of the role it is playing, the need for factual accuracy outweighs other considerations and trial-type procedures will effectively decrease uncertainty.
[Id. at 201 (quoting 2 K. Davis, supra, § 12:3 at 413, and McGarity, “Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions,” 67 Geo.L.J. 729, 775 (1979)).]
In New Jersey, we have tended to ask whether the agency is acting in a judicial or quasi-judicial capacity or in a legislative capacity.
See State Board of Milk Control v. Newark Milk Co.,
118
N.J.Eg.
504, 179
A.
116 (E. & A.1935). “Need for a hearing [is] to be ascertained by determining whether the administrative agency was acting in a legislative or a quasi-judicial capacity.”
Cunningham v. Department of Civil Serv., supra,
69
N.J.
at 20, 350
A.2d
58. We have also said that the problem may be approached “by asking whether the agency is obligated to consider the evidence and apply the law to the facts as found.”
Id.
at 21,
It will be seen at once that these guidelines do not provide an unerring solution to the question of when a hearing is required,
see Bally Mfg. Corp. v. New Jersey Casino Control Comm’n,
85
N.J.
325, 334,
[A] good deal of law that bears on the proposition [when a trial-type hearing is required] is confused. Some courts tend to assume that one who has vital interests at stake in a controversy is for that reason entitled to the protection of trial procedure, whether or not the facts are in dispute.
The law clearly is, at a most elementary level, that because a trial is a process for taking evidence, subject to cross-examination, and because taking evidence is not appropriate except on disputed facts, trial procedure is not required on issues of law, policy or discretion.
[2 K. Davis, supra, § 12:2, at 409-10],
If, as Davis says, “a trial is a process for taking evidence subject to cross-examination,” and the only evidence bearing on
C.
Because the rules for decision are not self-explaining, it is perhaps wise to adhere to the fundamental analysis that we have applied for determining what process is due in a given situation. The high tide of administrative due process was undoubtedly
Goldberg v. Kelly,
397
US.
254, 90
S.Ct.
1011, 25
L.
Ed.2d 287 (1970), in which the United States Supreme Court relied on a judicial trial model when identifying procedural safeguards for a welfare recipient threatened with loss of benefits. “Soon, however, the Court began a gradual process of isolating
Goldberg
and treating a trial-type proceeding as an extraordinary requirement.” Rabin,
supra,
at 306. It seemed to take a harder look at whether the goals of procedural due process might be implemented in other, less formal ways. Thus in
Mathews v. Eldridge,
424
U.S.
319, 96
S.Ct.
893,
The question one must ask is whether the contested issues here are ones that ordinarily should be determined without providing the parties an opportunity for a trial. In Shoreline Associates v. Marsh, 555 F.Supp. 169 (D.Md.1983), the court analyzed the principles of procedural due process in the context of a wetlands permit. It noted that due process does not always require the opportunity to cross-examine expert witnesses, so long as the opportunity to meet and rebut the expert analysis is afforded, because “the credibility and veracity of the witnesses [is] not usually at issue.” Id. at 175 (citing Mathews v. Eldridge, supra, 424 U.S. at 343-45, 96 S.Ct. at 906-08, 47 L.Ed.2d at 38-39).
There is no question that the property owner should have full opportunity to be heard by the agency, that is, to submit comment with respect to the agency’s decision, and to meet any conclusions that may be unfavorable to the property owner. Ordinarily, in a permitting process (as for example, under CAFRA,
N.J.S.A.
13:19-9a) “the hearing is not adjudicatory and is not required to be conducted as a ‘contested hearing’ under the Administrative Procedure Act.”
Public Interest Research Group v. State, supra,
152
N.J.Super.
at 207-08,
We evaluated such concerns for administrative due process in connection with educational issues in
Board of Education v. Cooperman,
105
N.J.
587,
D.
Because the procedural requirements of due process necessarily vary from case to case,
Lopez v. New Jersey Bell Tel. Co.,
51
N.J.
362, 373,
One of the core values of judicial review of administrative action is the furtherance of accountability. Thus, an agency is never free to act on undisclosed evidence that parties have had no opportunity to rebut.
Brotherhood of R.R.
As modified, the judgment of the Appellate Division is affirmed.
Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI, and STEIN join in this opinion.
For modification and affirmance—Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7.
For reversal—None.