MONTCLAIR STATE UNIVERSITY VS. COUNTY OF PASSAIC (L-2866-14, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0614-19
MONTCLAIR STATE
UNIVERSITY,
Plaintiff-Appellant,
v.
COUNTY OF PASSAIC,
Defendant,
and
CITY OF CLIFTON,
Defendant-Respondent.
________________________
Argued February 1, 2021 – Decided April 16, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-2866-14.
Antonio J. Casas argued the cause for appellant
(Windels Marx Lane & Mittendorf, LLP, attorneys;
Antonio J. Casas, of counsel and on the briefs; Jeremy
G. Weiss, on the briefs).
Risa M. Chalfin argued the cause for respondent City
of Clifton (Wilentz Goldman & Spitzer, attorneys;
Brian J. Molloy and Risa M. Chalfin, of counsel and
on the brief).
PER CURIAM
This matter returns to us after remand, now on appeal from an order
entered by the Law Division on April 29, 2019, denying plaintiff Montclair
State University's (MSU) motion for voluntary dismissal of its complaint or for
summary disposition, and from an order entered on August 22, 2019, after a
plenary hearing, which denied MSU's application to proceed with a portion of
a construction project at its campus. 1 For the reasons that follow, we affirm
both orders.
I.
This appeal presents the next chapter in the ongoing dispute between
MSU and defendant, the City of Clifton, over MSU's plan to construct a new
egress road from its campus to the off-campus intersection of Passaic County
Road 621/Valley Road and MacLean Road (Valley Road Intersection), which
1
The plan calls for the redesign of an existing ingress road so it could serve as
an egress as well. According to MSU, the proposed egress road was critical to
relieve traffic congestion and to provide an exit for one end of the campus.
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is located in Clifton (the Project). 2 The Project was initially proposed in 2004
and since then the parties have been trying to resolve Passaic County's and
Clifton's safety concerns about the proposed roadway. While their efforts
resolved some issues between them, it left others without resolution.
One remaining issue was whether MSU was required to obtain municipal
approvals from Clifton's land use boards for the installation of traffic control
devices at the Valley Road Intersection. According to MSU, such approvals
were not necessary under the Court's holding in Rutgers v. Piluso, 60 N.J. 142(1972).3 The County and Clifton disagreed, so MSU filed a complaint in the
Law Division for declaratory and injunctive relief that sought an order
permitting it to proceed with the development of the roadway.
In 2016, the Law Division entered an order dismissing MSU's complaint
and directing that the matter go before Clifton's Planning Board. MSU
2
Although the dispute had also involved defendant Passaic County's
objections to the Project, the parties informed us that in 2019 the County's
objections were resolved and a stipulation of dismissal as to its claims was
filed with the trial court. And, on March 18, 2019, the County issued to MSU
a Right of Way Access Permit.
3
In Rutgers, 60 N.J. at 153, the Court held that although state universities
possess a form of qualified immunity from local land use regulations, they
must nonetheless: (1) act "reasonably" with respect to any proposed project;
and (2) "consult with the local authorities and sympathetically listen and give
every consideration to local objections, problems and suggestions in order to
minimize the conflict as much as possible."
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appealed, and in a published opinion, we reversed, holding that under Rutgers,
MSU was not required to seek municipal approvals and that on remand it was
up to the trial court to determine whether MSU properly considered the
County's and Clifton's safety concerns. Montclair State Univ. v. Cnty. of
Passaic, 451 N.J. Super. 523, 527-28 (App. Div. 2017) (MSU I).
The Supreme Court granted Clifton's petition for certification and later
affirmed our determination that local board approval was not required but
modified our instructions to the trial court on remand. Specifically, the Court
held that on remand, MSU must demonstrate not only that (1) the Project is
inherently reasonable, and (2) it reasonably consulted with the County and the
City "and took into consideration [their] legitimate [public safety] concerns,"
as required by Rutgers, but also that (3) "its planning has reasonably addressed
the public safety concern." Montclair State Univ. v. Cnty. of Passaic, 234 N.J.
434, 454-55, 458 (2018) (MSU II). The Court added that, on remand, there
must be "a discrete judicial finding that MSU's proposed action reasonably
satisfies public safety concerns," id. at 458, and "a judicial finding as to the
reasonableness of the public entity's action with respect to public safety." Id.
at 459. It directed the trial court to make a determination on these issues and
to decide, in its discretion, whether to proceed summarily. Id. at 439.
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As already noted, prior to the remand hearing, Passaic County and MSU
resolved their differences based upon safety features MSU added to the
Project. MSU then filed a motion to dismiss its complaint as moot, or
alternatively, for summary disposition of Clifton's claims. The trial court
entered an order denying that motion on April 29, 2019.
Thereafter, the trial court conducted a three-day plenary hearing, and on
August 22, 2019, determined that the Project was not safe and MSU had failed
to reasonably address the City's legitimate public safety concerns about the
Project through its planning. The court consequently barred MSU from
proceeding with the Project as currently designed, placed its reasons on the
record that day, and issued an order denying MSU's application to proceed
with the Project. MSU now appeals from both orders.
On appeal, MSU contends that the trial court erred by: (1) denying its
motion to voluntarily dismiss the matter or for summary disposition without
holding oral argument; (2) disregarding significant evidence, including the
County's approval of the Project; and (3) failing to provide sufficient findings
of fact and conclusions of law in connection with both rulings as required by
Rule 1:7-4. It also contends that we should vacate the trial court's order and
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exercise our original jurisdiction to determine the matter anew. We disagree
with each of MSU's contentions.
II.
The history of the Project and the parties' dispute are set forth at length
in our and the Court's earlier opinions. MSU I, 451 N.J. Super. at 527-31;
MSU II, 234 N.J. at 439-44. For our purposes here, suffice it to say that the
remaining disputes between the parties focused on the horizontal and vertical
alignment of the proposed roadway that determined its design speed. MSU
planned for a design speed of twenty-five m.p.h. with a posted speed of fifteen
m.p.h. Clifton, and initially Passaic County, wanted the design and posted
speeds to be higher, set at thirty-five m.p.h. and twenty-five m.p.h.
respectively, which would alter the roadway's alignment as proposed and
correctly anticipate the actual driving speed of vehicles using the road. As the
Court observed, "MSU declined to make that change, relying on its experts'
conclusion that the road's planned . . . design speed and fifteen mile-per-hour
posted speed would be safe, and that the alternative design was unsafe because
it would encourage higher operating speeds." MSU II, 234 N.J. at 441.
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MSU resolved Passaic County's concerns by adding "traffic calming"
measures to its plans, which included: (1) the addition of a sidewalk on one
side of the egress road; (2) reduced lane widths; (3) two speed limit signs with
radar-controlled driver feedback that display a digital readout of a driver's
speed; (4) dedicated "pull off" points for MSU Police Department patrol cars
to enforce the speed limit; (5) chevron signage for the egress road curve to
warn drivers and emphasize the curve; (6) "signal ahead" roadway markings
approaching the intersection; (7) the use of high-friction pavement; (8)
relocation of the traffic signal head for better visibility traveling down the
egress road and; (9) the addition of a speed table to the egress road, wh ich are
longer and flatter than speed humps and used when the road's grade is greater
than eight percent.
However, MSU maintained that the design speed for the roadway would
remain at twenty-five m.p.h. and the posted speed limit would be fifteen m.p.h.
(the same as the existing ingress road) and reiterated that it would continue to
use a "[h]igh friction pavement surface" in the plans. In doing so, MSU relied
upon the National Association of City Transportation Officials Urban Street
Design Guide (NACTO Guide) regarding design speed. 4
4
The NACTO Guide addressed design speed, in part, as follows:
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According to the County's Board of Commissioners' resolution, 5 "both
the Passaic County Engineer and the Passaic County Traffic Engineer have
carefully reviewed the new submitted plans and agree that the updated plans
now meet all of the safety concerns raised by the County both at the outset and
in the litigation brought against the County by the University." The County
issued a required permit. However, the revisions did not satisfy Clifton's
concerns that were later the topic of the plenary hearing held by the trial court
on remand.
Speed plays a critical role in crashes and the severity
of their outcomes. Traditional street design was
grounded in highway design principles that forgive
driver error and accommodate higher speeds. This
approach based the design speed and posted speed
limit on 85th-percentile speeds—how fast drivers are
actually driving rather than how fast drivers ought to
drive. By designing for a faster set of drivers, crashes
increase and drivers actually traveling the speed limit
are put at risk. This passive use of design speed
accommodates, and indirectly encourages, speeding by
designing streets that account for the worst set of
drivers and highest potential risks.
5
The Board was previously known as the Passaic County Board of Chosen
Freeholders.
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III.
A.
We begin our review by first addressing MSU's appeal from the trial
court's April 29, 2019 order. Following the County's approval of the revisions
to the Project, on March 29, 2019, MSU moved to voluntarily dismiss its
complaint as moot under Rule 4:37-1(b), or for summary disposition under
Rule 4:67-1(b). MSU included in its moving papers a request for oral
argument if opposition was filed. Clifton filed opposition and asse rted that
despite the County's position, the roadway remained unsafe.
On April 29, 2019, without holding oral argument, the trial court denied
MSU's motion. The order stated that "[t]he issues [MSU] seeks to resolve . . .
ha[ve] been remanded back to the trial court by the Supreme Court. The trial
court has determined a full hearing is necessary and . . . these issues are not to
be decided in a summary fashion."
B.
On appeal, MSU argues that its motion should have been granted
because the matter was moot once the County approved the roadway design
and the stipulation of dismissal was filed. According to MSU,
"[n]otwithstanding its continuing objection to the Project, [Clifton] never
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sought any relief in its pleadings other than a dismissal of the Complaint,
so . . . the . . . settlement with the County rendered the matter as pleaded
moot."
Alternatively, MSU contends that the court erred when it denied MSU's
motion for summary disposition because (1) the County's decision to issue the
permit was entitled to a presumption of validity; and (2) the County's approval
of the Project was per se evidence that MSU satisfied the "reasonableness"
standard. Finally, MSU asserts that the trial court's decision was procedurally
flawed in that it failed to hold oral argument and failed to issue an adequate
statement of reasons for its ruling. We disagree.
Rule 4:37-1(b), which governs voluntary dismissal by order of the court,
states that "[a]n action shall be dismissed at the plaintiff's instance only by
leave of court and upon such terms and conditions as the court deems
appropriate." Adjudication of a Rule 4:37-1(b) motion "rests within the sound
discretion of the trial judge." Shulas v. Estabrook, 385 N.J. Super. 91, 99
(App. Div. 2006). "When examining a trial court's exercise of discretionary
authority," we will "reverse only when the exercise of discretion was
'manifestly unjust' under the circumstances." Newark Morning Ledger Co. v.
N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 174 (App. Div. 2011)
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(quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141,
149 (App. Div. 2007)).
"An issue is 'moot when [a] decision sought in a matter, when rendered,
can have no practical effect on the existing controversy.'" Redd v. Bowman,
223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422
N.J. Super. 214, 221-22 (App. Div. 2011)). For instance, "[w]hen a party's
rights lack concreteness from the outset or lose it by reason of developments
subsequent to the filing of suit, the perceived need to test the validity of the
underlying claim of right in anticipation of future situations is, by itself, no
reason to continue the process." JUA Funding Corp. v. CNA Ins./Cont'l Cas.
Co., 322 N.J. Super. 282, 288 (App. Div. 1999). Accord Wisniewski v.
Murphy, 454 N.J. Super. 508, 518 (App. Div. 2018).
However, a resolution of the dispute between the original parties to an
action does not necessarily render moot a related dispute between one of those
parties and an intervenor. An "intervenor has standing in its own right to
assert a claim or defense that presents a 'common' 'question of law or fact' with
the pending action." N.J. Dep't of Env't Prot. v. Exxon Mobil Corp., 453 N.J.
Super. 272, 290 (App. Div. 2018); see also Meehan v. K.D. Partners, L.P., 317
N.J. Super. 563, 568-72 (App. Div. 1998) (holding that the movant was
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entitled to intervene as of right even after the original parties in the action had
reached a settlement and the complaint had been dismissed). It is of no
moment that the intervenor who filed an answer disputing a plaintiff's
entitlement to relief did not, as here, file a counterclaim. See N.J. Dep't of
Env't Prot., 453 N.J. Super. at 287 ("Rule 4:33-3 requires the movant to set
forth a 'claim or defense' in its pleading to intervene." (quoting R. 4:33-3)).
Here, Clifton's rights as an intervenor were not extinguished simply
because MSU settled with the County. Clifton not only maintained its right to
an adjudication of its safety concerns independent of the County's issues, but
that adjudication was mandated by this court and the Supreme Court. The
Court made its ruling in response to Clifton's petition for certification and
specifically directed the trial court to address Clifton's concerns on remand,
which the Court deemed "necessary to properly protect the general public."
MSU II, 234 N.J. at 458-59. "It [was] the peremptory duty of the trial court,
on remand, to obey th[is] mandate of the [Supreme Court] precisely as it [was]
written." Jersey City Redevelopment Agency v. Mack Props. Co. No. 3, 280
N.J. Super. 553, 562 (App. Div. 1995). Accord Tomaino v. Burman, 364 N.J.
Super. 224, 232-33 (App. Div. 2003).
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Also, under these circumstances, where the trial court was abundantly
familiar with the parties' dispute, which by its nature required expert opinion
evidence, we conclude the trial court did not abuse its discretion by not
scheduling oral argument or determining the matter on summary disposition.
Newark Morning Ledger Co., 423 N.J. Super. at 174 (stating that since a trial
court's denial of summary disposition is a discretionary ruling, an appellate
court will "reverse only when the exercise of discretion was 'manifestly unjust'
under the circumstances" (quoting Artaki, 392 N.J. Super. at 149)).
Contrary to MSU's contention on appeal, without agreement of the
parties and the trial court, summary disposition was not available under Rule
4:67-1(b). Under the Rule, "[s]ummary disposition is permitted by agreement
of the court and the parties, evinced by 'a clear and unambiguous statement
from the judge and the unequivocal consent of the parties to a final
resolution.'" Grabowsky v. Twp. of Montclair, 221 N.J. 536, 550 (2015)
(quoting Waste Mgmt. of N.J., Inc. v. Union Cnty. Utils. Auth., 399 N.J.
Super. 508, 518-19 (App. Div. 2008)).
As to oral argument, although we agree that the trial court should have
entertained oral argument under Rule 1:6-2(d), the court's failure to do so in
this case was not clearly capable of producing an unjust result and did no t
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prejudice MSU in any way. See Finderne Heights Condo. Ass'n v.
Rabinowitz, 390 N.J. Super. 154, 165-66 (App. Div. 2007); Spina Asphalt
Paving Excavating Contractors, Inc. v. Borough of Fairview, 304 N.J. Super.
425, 426 n.1 (App. Div. 1997). In fact, we conclude that resolution of the
motion did not require oral argument—for the reasons already discussed, the
motion could not be granted. Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super.
517, 524 (App. Div. 2004) ("[T]he motion judge nevertheless arrived at the
proper result under the factual circumstances presented. . . . [The judge's]
refusal to entertain oral argument is insufficient to require our intervention.").
"[G]iven the record in this matter, we find no prejudice under the
circumstances." Finderne Heights Condo. Ass'n, 390 N.J. Super. at 166.
Finally, we are satisfied that the trial court's written explanation for its
order satisfied Rule 1:7-4. The order, although succinct, clearly stated that the
trial court determined, in accordance with the Supreme Court's remand, that
the parties' dispute and the execution of the court's obligations under the
Supreme Court's remand were not amenable to summary disposition. Those
reasons were sufficient to permit our meaningful review in this case, especially
in light of our familiarity with the dispute as described in our and the Supreme
Court's earlier opinions. See Finderne Heights Condo. Ass'n, 390 N.J. Super.
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at 165 (holding that a trial court's findings and conclusions must be "sufficient
to afford a meaningful review" on appeal).
IV.
We turn our attention to MSU's appeal from the trial court's August 22,
2019 order. According to MSU, the trial court erred by concluding that MSU
had not reasonably addressed Clifton's public safety concerns. Moreover,
MSU contends that in reaching its conclusion, the court mischaracterized or
ignored "critical" witness testimony, misapplied the Supreme Court's
instructions, and again failed to provide sufficient findings of fact. We
disagree with each contention.
A.
At the plenary hearing, the parties agreed that there was no issue as to
MSU's efforts over the years to consult with Clifton about its concerns. The
hearing therefore addressed the other two elements identified in the Court's
remand—whether the plan was reasonable and whether MSU addressed
Clifton's legitimate safety concerns through planning. The primary dispute
between the parties remained the design of the roadway, particularly its
proposed design and posted speeds.
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MSU's presented testimony from its engineering expert, Gordon Meth;
Passaic County's traffic engineer, Charles Silverstein; and Lieutenant Paul
Giardino of the MSU Police Department. Clifton presented testimony
witnesses from its engineering expert, S. Maurice Rached; Michael Glovin,
Passaic County Counsel; and Edward Pasino, a Clifton resident whose home is
adjacent to Yogi Berra Drive, the existing ingress road that is to be modified to
add an egress from the campus.
MSU's Expert
The trial court qualified Meth as an expert in the field of road safety and
design based on his experience as a licensed professional engineer in New
Jersey since 2000 who held various professional certifications and worked on
various aspects of the Project since 2004. Meth's experience included roadw ay
design, traffic studies, safety evaluations, feasibility assessments, and forensic
analysis of roadways.
Meth testified that there are three components to roadway safety:
enforcement, education, and engineering. Overall, he opined, to a reasonable
degree of engineering certainty, that MSU's proposed design was "safe" and
met "all applicable standards and codes for a roadway design at [twenty-five]
miles per hour."
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Meth described the physical layout of the existing ingress road and the
proposed egress road as shown in MSU's December 2018 plans. He explained
that the approximately 240-foot-long egress road will have two lanes
approaching the intersection, one for traffic to turn left and one for traffic to
turn right. A triangular island would prevent motorists from proceeding
straight through the Valley Road Intersection, and a pedestrian crosswalk
would assist persons crossing Valley Road on foot. Right turns onto Valley
Road during red lights would be prohibited. Meth estimated that 3,459
vehicles daily, or 250-275 per hour, would use the proposed egress road to exit
the campus.
Meth also discussed proposed changes to Valley Road. For instance,
"existing striping" on Valley Road would be modified to provide a left-turn
lane for turns onto MacLean Road and traffic into that lane would be
"transitioned via taper." Valley Road would be widened, and its shoulder
would be eliminated in certain spots to accommodate the left-turn lane. The
traffic signal would have image detection and sensing, a "proven technique,"
that would detect cars coming down the egress road and ensure traffic flow.
The signal would remain green for Valley Road unless there were vehicles
waiting to enter the intersection.
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Concerning the design speed of twenty-five m.p.h., Meth testified that it
"is based on the controlling elements of the roadway," which are one
horizontal curve and one vertical curve. He noted that the design speed of t he
horizontal curve, which is approximately a ninety-degree turn heading toward
Valley Road, is twenty-five m.p.h. The design speed of the vertical curve,
which transitions from a ten-percent downgrade slope to a two-percent
downgrade slope approaching Valley Road, is also twenty-five m.p.h.
Meth testified that the roadway curves were designed in accordance with
the American Association of State Highway and Transportation Officials
(AASHTO) Manual's instruction that the design speed "takes into account
sight distance and the [driver's] ability to see and stop" as they are proceeding
through the curves of the roadway (even if traffic backed up) and that a design
speed of twenty-five m.p.h. meant that "the road is safe for that speed." He
explained that the sight line distance, measured along the vehicle's travel path,
would be at least 200 feet.
When asked why a higher design speed was not chosen for the Project,
Meth reiterated that "the upper range of what is appropriate for this instance
is . . . [twenty-five] mile per hour operation" and he explained:
In this context, we have a roadway that intersects a
county road at a [ninety]-degree angle, and it is
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specifically designed so everyone has to turn right or
left when they proceed there. Because the traffic
signal is actuated for demand and will rest in Valley
Road for the most part, the condition under which
people will be . . . approaching Valley Road will . . .
either force them to stop or make a turn. Normally,
right turns are taken at about [ten] miles an hour, left
turns at about [fifteen] miles an hour. So . . . the key
is, people have to either stop or slow down when they
get to this location.
So the best practices of street management tell
one that they should design the roadway . . . to feed
that at appropriate speeds. Because this is . . .
effectively, a T-intersection, because through
movements are not permissible, it is . . . expected that
people will have to slow or stop completely.
Therefore, you do not want to bring people into that
context too fast. So the upper range of what is
appropriate for this instance is . . . [twenty-five] mile
per hour operation.
Despite the fact that the Project proposed a ten m.p.h. differential
between the design speed of twenty-five m.p.h. and the posted speed limit of
fifteen m.p.h., Meth stated that "under current thinking the design speed for a
roadway . . . should match . . . the target speed, which would also be the posted
speed" per the AASHTO Manual and the NACTO Guide. Nonetheless, he
explained that a fifteen m.p.h. speed limit was chosen for the Project because
it: (1) helps "signal to drivers what a road can handle and what is
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appropriate"; and (2) gives the MSU Police Department "more flexibility" with
enforcement "to help curb [driver] behavior as part of speed management."
Meth explained that Clifton's objections to the lower design speed and
posted limit were mistaken as there was no requirement that the posted speed
limit had to be at least twenty-five m.p.h. and the AASHTO Manual "states
that for low speed roadways . . . in built up areas or urban areas . . . you should
design your roadways for the intended posted speed limit or operating speed
instead of with a buffer." While not critical to the roadway's design, Meth
believed the fifteen m.p.h. posted speed limit "actually helps indicate to traffic
that the speeds should be contained and managed."
Meth also testified about the changes that MSU made to the Project
design in order to satisfy the County's safety concerns. More specifically,
concerning the reduced lane widths, Meth testified that an "ideal lane" width
per the AASHTO Manual is twelve feet, usually for highways, but that they
can be as narrow as ten or eleven feet. He admitted that the Project has ten -
and-one-half feet lanes in the "area where Yogi Berra Drive is proposed to be
two way" but that, further down the egress road toward the intersection, the
lanes widen to eleven-and-one-half feet and twelve feet for the right turn lane.
He testified that the MSU Police Department will be responsible for speed
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enforcement and closure of the roadway in the event of inclement weather, that
the two "pull-off" points for the patrol cars were located at the top of the
roadway and not toward the intersection, and that the beginning of the right
turn lane at the intersection provided "a third area for staging." He
emphasized that the Project also included "self-enforcing" design aspects that
encourage drivers to slow down, such as the speed table and the driver
feedback signs.
As to Clifton's position, Meth testified that Clifton's proposed thirty-five
m.p.h. design speed was "based on two flawed pieces of information": (1)
Table 2-1 from the New Jersey Department of Transportation (NJDOT)
Manual, that states there should be a ten m.p.h. differential between a new
state highway's posted speed and its design speed, which is not applicable to
the Project; and (2) a statutory minimum speed limit of twenty-five m.p.h.,
which does not apply to private roadways. Meth cited examples of other low-
speed private roadways in New Jersey, including an egress road at another
local university that had a posted speed limit of twenty m.p.h., a road at a
county health facility with a posted speed limit of fifteen m.p.h., the existing
Yogi Berra Drive ingress road with a posted speed limit of fifteen m.p.h. on
part of the roadway, and other existing MSU campus roads.
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Meth opined that a thirty-five m.p.h. design speed for the egress road, as
urged by Clifton, was "inappropriate because of the fact that traffic has to
either stop or make a turn at low speed" at the intersection and that his "main
concern . . . from a speed management perspective [was] not wanting to
encourage faster speeds." He explained that per the latest AASHTO Manual,
"higher design speeds can lead to speeding" and that "[r]esearch has shown
that a portion of drivers will migrate towards the design speed of a road."
Consequently, if the design speed of the egress road was increased to thirty -
five m.p.h., "traffic would end up being encouraged to come into the signal at
relatively high speed" and it "would make the roadway less safe."
During cross-examination, Meth testified that he relied on the AASHTO
Manual as well as the NACTO Guide. He denied relying primarily on the
NACTO Guide but admitted that he wrote a letter to the County engineer
which stated that the NACTO Guide was "the appropriate source of guidance."
He reasoned that the AASHTO Manual quotes the NACTO Guide when
discussing design speed, that the NJDOT Manual "specifically references" the
AASHTO Manual, and that, therefore, "NACTO has been adopted by the State
of New Jersey."
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Meth acknowledged that in the NACTO Guide, NACTO describes itself
as a "nonprofit association that represents large cities on transportat ion issues
of local, regional, and national significance," that "views the transportation
departments of major cities as effective and necessary partners in regional and
national transportation efforts and promotes their interest in federal decision -
making." When asked to admit that Clifton was "not a major city like New
York or Chicago or even Hoboken," he responded that "the Valley Road
portion of Clifton has streets and roads signed and marked for urban conditions
just like New York City or any other major city" and that the NACTO Guide
was applicable to the Project.
The City's Expert
The trial court also qualified Rached as Clifton's expert "in the field of
transportation services" based upon his experience as a licensed engineer in
New Jersey who held various professional certifications and had worked as a
traffic engineer for thirty-two years. His experience included managing
engineers who design roadways, traffic signals and intersections, conducting
safety studies, and working for the NJDOT for approximately fifteen years.
Rached explained that in 2014, he issued a report in which he opined
generally that "the horizontal and vertical alignment of [MSU's] roadway was
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not safe, in that it did not provide the proper sight distance for vehicles usin g
the roadway" at the anticipated speed of twenty-five m.p.h. as compared to the
unrealistic posted speed of fifteen m.p.h. proposed by MSU. He testified that,
despite all of the changes that MSU made to the Project since 2014, he still
believed that the proposed roadway design was not safe because "none of the[]
changes improve[d] the vertical or horizontal geometry of the roadway."
Rached initially testified that MSU did not use the correct calculations
for the design of the vertical curve, as recognized "nationally" and in the
NJDOT Manual. However, on cross-examination, he confirmed that MSU's
design was "adequate for a [twenty-five] mile per hour design" but inadequate
for what he believed should be the design speed of thirty-five m.p.h.
Rached selected the thirty-five-m.p.h. design speed because it was more
likely that drivers would operate their vehicles at twenty-five m.p.h. on the
roadway and therefore would allow for the additional ten m.p.h. difference
between design and posted speeds that the NJDOT recommended for
highways. He relied upon the fact that vehicles entering the egress road from
campus will be expected to slow down from the posted speed of twenty-five
m.p.h. on the existing portions of the roadway to fifteen m.p.h. on th e new
egress, which was "not realistic," "unreasonably low, inconsistent with . . .
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statutory speed limits, . . . violates drivers' expectancy," and did not make the
egress road safe. He could not recall ever approving a speed limit of fifteen
m.p.h. during his time at NJDOT and testified that it was "very difficult to
maintain a [fifteen] miles an hour speed limit on a downhill [grade] of 10
percent." He opined that the posted speed limit should be twenty-five m.p.h.
instead, to correspond with a thirty-five m.p.h. design speed as per a table in
the NJDOT Manual.
Rached also testified that, based on published data coupled with his own
experience conducting hundreds of traffic studies, "it is very common that
drivers," particularly younger drivers, "exceed the speed limit" and opined that
"most drivers will drive between [twenty-five] and [thirty] miles per hour"
with "a good portion" likely to drive over thirty m.p.h. on the egress road. On
one occasion, he personally observed people driving "significantly above
[fifteen] miles an hour going uphill" on the existing ingress road but
acknowledged that the ingress road did not have any traffic calming measures.
Rached conceded that the NJDOT Manual indicates, like the AASHTO
Design Manual, that "use of above-minimum design criteria may encourage
travel at speeds higher than the design speed." Moreover, the design speed,
according to Rached, did not make a "significant difference" in drivers'
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operating speeds but he agreed that a higher design speed may "encourage" at
least "some" drivers "to drive faster."
In addition, because vehicles would be traveling at twenty-five m.p.h.
"the required stopping si[ght] distance is 175 feet" and MSU's plans only
provided for a stopping sight distance is 165 feet. He explained that "stopping
sight distance" is the distance the driver must be able to see in order to stop
safely. According to Rached's 2019 report that was admitted into evidence,
"using the [appropriate] AASHTO equation," "the design speed of [twenty-five
m.p.h.,] and a downgrade of [ten percent], the [minimum] stopping sight
distance is 176 feet." Also, the report noted that MSU's current design plans
"reflect a roadway design based on a sight distance of 200 feet" and stated that
if the design speed was thirty-five m.p.h., then "a si[ght] distance of 295 feet
[would be] needed"; only then would the 200 feet stopping sight distance be
"insufficient."
However, Rached testified that the Project's stopping sight distance was
inadequate even for a design speed of twenty-five m.p.h. because Meth's
measurement of the sight distance did not take into account "the sight distance
to cars waiting for the signal" which means that vehicles headed toward the
intersection "will potentially crash" with the vehicles already waiting in line.
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He opined that drivers need "close to 300 feet of si[ght] distance to navigate
this roadway safely."
Rached then addressed the effectiveness of the traffic calming measures
that were incorporated into the Project design. He opined that none of them
alleviated his safety concerns because they did not improve the stopping sight
distance, but he admitted that they would "make some difference" in terms of
driver speed. Concerning the lane narrowing, Rached opined that roadway
widths of [ten] or [eleven] feet do not slow traffic "to a significant degree."
He added that the lanes on the egress road widen to twelve and eleven-and-
one-half feet toward the intersection, which are not considered narrow lanes,
and which "should not cause a vehicle to slow down." He also testified that
road signage is not "effective in significantly mitigating traffic speed" and that
"[p]osting a speed limit sign that is unreasonable will not automatically cause
people to obey it and drive the speed limit."
As to the speed table, Rached testified that while it will cause drivers to
slow down, they will accelerate after they traverse it and the downhill grade of
the road will encourage acceleration. Moreover, he opined that use of a speed
table on the egress road was "not appropriate" because statutory requirements
for speed tables mandate that they should not be installed on roadways that
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service more than 3,000 vehicles per day but admitted that it "would do no
harm."
Addressing the left-turn-lane taper on Valley Road, Rached explained
that a taper "is a change in the direction of the roadway, so it guides vehicles
from a straight path into a different path" and is demarcated on roadways by "a
set of transverse lines bounded by longitudinal lines" as shown on the plans.
He stated that there are "national rules" concerning the length of a taper
"adopted by NJDOT, by Passaic County and by AASHTO and by all agencies"
and that taper length must equal the lane width multiplied by speed. For
example, if the lane width is ten feet and the speed is fifty m.p.h., then the
taper length must be 500 feet.
Rached testified that the proposed length of the taper on Valley Road in
the most recent plans is 310 feet, though previous plans referenced a 410 -foot
taper. He opined that this was inadequate given the lane width of twelve feet,
the Valley Road speed limit of forty m.p.h., and an assumed Valley Road
design speed of either forty-five or fifty m.p.h. Although his 2019 report did
not address this issue in any detail, the conclusions listed on the last page
include that "[t]he taper on Valley Road is approximately 410 feet. The
required taper is 495 feet."
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When asked during cross-examination whether he thought that MSU's
use of a fifteen m.p.h. speed limit, as opposed to a twenty-five m.p.h. speed
limit, would encourage drivers to drive faster, Rached replied that he did not.
He admitted that using a design speed of thirty-five m.p.h. would encourage
"some" drivers to drive faster. He also admitted that the egress road was a
local road, that the NJDOT Manual refers to the AASHTO Manual for
geometric design of roadways that are not part of the state highway system,
and that he referenced both manuals in his 2019 report.
In addition, Rached acknowledged that the NJDOT Manual states that
"[e]xcept for local streets where speed controls are frequently included
intentionally, every effort should be made to use as high [a design] speed as
practical." He stated that the AASHTO Manual provides: (1) "[o]n lower
speed facilities, use of above minimum design criteria may encourage travel
speeds higher than design speed"; (2) "[a] low design speed, however, should
not be selected where the topography is such that drivers are likely to travel at
high speeds"; and (3) "selected design speed should be consistent with the
speeds that drivers are likely to travel on a given roadway."
Though Rached had previously testified about his reliance on the
NJDOT Manual in connection with this case, he explained during redirect
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examination that there was "nothing inconsistent" between his opinions and
anything in the AASHTO Manual, and that the NJDOT Manual was "based on
AASHTO." He added that MSU's reliance on the NACTO Guide was
inappropriate because that manual "was designed for urban cities" such as New
York City and Philadelphia.
Passaic County's Engineer and Counsel
Silverstein and Glovin testified about Passaic County's positions during
its negotiations with MSU and the eventual settlement of the dispute.
Silverstein, the County's traffic engineer since 1997, explained that he was
familiar with the County's settlement agreement with MSU. He confirmed that
the County's Commissioners' 2019 resolution accurately stated that he
"agree[d] that the road is much safer than originally designed, and more
importantly acceptable as revised," and "both the Passaic County engineer and
[Silverstein] have carefully reviewed and resubmitted plans and agree that the
updated plans now meet all of the safety concerns raised by the [C]ounty both
at the outset and in the litigation brought against the County by the
University."
Silverstein acknowledged that, initially, he had a number of safety
concerns about the original plan for the Project because "the traffic might be
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going down" the egress road "a little too quickly to safely stop at the bottom"
near the Valley Road Intersection. The County had "assumed" that the speed
limit was going to be twenty-five m.p.h., "the standard lowest posted speed
limit" in New Jersey, which "would correspond to a design speed of [thirty-
five]" m.p.h. per the NJDOT Manual, and he "didn't feel [the egress road] was
designed" appropriately for the speed limit. However, Silverstein testified that
MSU subsequently addressed the County's concern about the design speed
because "they've made it clear on the revised plans that the posted speed limit
will be [fifteen] . . . which corresponds to a design speed of [twenty-five]."
Silverstein also believed that the traffic calming measures taken by MSU
would "act as designed . . . so that the majority of the drivers will drive at the
speed limit." He stated that "[t]hey add[ed] to . . . safety and most of the
features . . . will definitely have a traffic calming effect." Overall, he was
"satisfied that the design of the roadway is safe" and testified that he had "no
remaining concerns."
He denied that he was "still dissatisfied with the design speed of the
road" as Glovin, the County Counsel, had claimed in an email sent to Clifton's
attorney. He noted that his concern about the vertical curve was resolved
because the design speed of that curve, and for the entire egress road, is now
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twenty-five m.p.h. He acknowledged that the design of the ten percent grade
and the horizontal curve had not changed since 2014. He also testified that the
widening of the lanes approaching the intersection "is a good design practice
on a curve."
Glovin testified about the email that he sent to Clifton's attorney which
stated that Silverstein believed that the Project "now meets the conditions
(except for the design speed) that we originally gave MSU . . . in 2008 and it
will be difficult for the County to argue that the new design doesn't [meet] our
safety concerns." According to Glovin, his representation about Silverstein's
position was "a truthful statement."
The MSU Police Officer
Giardino, a member of the MSU Police Department for over twenty-
three years, testified for MSU about speed-limit enforcement by members of
his department on campus as well as, by agreement, "in all of the
municipalities [in] which the University sits," including Clifton. Giardino
explained that officers enforce the existing fifteen m.p.h. speed limits on
campus "when we can" but that those roadways are "in challenging locations
and so it's not as easy" to situate the patrol car for radar detection. He
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acknowledged that there are "definitely people out there speeding" on the
existing Yogi Berra Drive ingress road.
According to the officer, "pull-off" points in the Project design will
make it easier for officers to enforce the speed limit on the egress road as they
are situated at "pretty good locations to get a good view up and down the
road." He admitted, however, that if a vehicle starts to exceed the speed limit
traveling closer to Valley Road beyond the speed table "to beat the light," any
patrol cars in the designated "pull-off" points will not be able to see the
speeding vehicle and "enforcement is not going to be effective" under those
circumstances. He also testified that the speed table and other traffic calming
measures incorporated into the Project's design will "help slow down traffic"
and "help [the officers] get a better handle on enforcing" the speed limit.
Concerning inclement weather, he said that the MSU facilities and
grounds staff handles snow removal and treatment of the roadways and that
officers remain in communication with them. In cases of severe winter
weather, the MSU Police can close campus roads using gates, cones, or
barricades "for a period of time until they can get properly treated and are . . .
safe to be used."
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Giardino also described the police department's procedure for
enforcement of speed limits. He explained it was left to the patrol vehicles to
enforce speed limits as part of their routine patrol of the campus. But, as
noted, under the Project's design, space would be made available for patrolling
officers to surveil drivers from a fixed post on the roadway, which they
presently cannot do as there is no location for them to park.
The Neighbor
Pasino, who has lived adjacent to the MSU campus for nineteen years,
testified about his observations of traffic on the existing ingress roadway that
he can see from his home, and about his view of the vehicles from the Valley
Road Intersection. Video recordings that he took were played for the court.
They depicted cars having difficulty navigating the existing ingress roadway
during bad weather and other vehicles speeding during fair weather.
When asked how he knew the vehicles' speed, he replied that: (1) he
asked his wife to drive on the ingress road at fifteen m.p.h. so that he could
observe it from his window and have a point of comparison; and (2) he had
personally driven on the ingress road at fifteen m.p.h. and "routinely had cars
stacked" behind him or passing him. He claimed that he had never observed a
car on the ingress road "doing the speed limit except when they can't make it
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up the road because of the climate conditions." He also stated that he had
observed MSU patrol cars on the ingress road "a few times" and that he had
seen at least three accidents there as well.
B.
After considering the evidence, on August 22, 2019, the court denied
MSU's application, concluding that MSU failed to demonstrate that the Project
was safe and that it had reasonably addressed Clifton's legitimate public safety
concerns about the Project through its planning. In its oral decision, the court
acknowledged that MSU had "continually improved" the Project plans, but
found that "its latest iteration of plans dated December of 2018" was still not
"safe at this point."
In reaching its conclusion the trial court primarily relied upon testimony
about (1) the design speed and target speed/speed limit; (2) the effectiveness of
MSU's proposed traffic calming measures; (3) the adequacy of the sight
distance from the egress road to the intersection; (4) the adequacy of the left -
turn-lane taper on Valley Road; and (5) the adequacy of the MSU Police
Department's plans to enforce the fifteen m.p.h. speed limit on the egress road.
Concerning the design speed, the court rejected Meth's testimony about
the safety and reasonableness of the Project's twenty-five m.p.h. design speed,
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the fifteen m.p.h. target posted speed, his opinion that the proposed design
satisfied AASHTO criteria, and his disagreement with Clifton's reliance on
NJDOT standards. The court found that "[i]t should be noted . . . that there's a
resolution from 2015 where the County does adopt [NJDOT] as its standards
for its roads." It further found that "[w]hile AASHTO did state that the target
[speed matching the design speed] was a more realistic standard . . . rather than
build it in a speed differential," MSU and Meth "kind of eschewed that theory"
and yet nonetheless used a ten m.p.h. differential between the design speed and
the posted speed.
Instead, the trial court accepted Rached's opinion that the twenty-five
m.p.h. design speed was unsafe and that MSU should have used a thirty-five
m.p.h. design speed with a twenty-five m.p.h. target or posted speed because
the egress road "was going to be used by at least 3,000 people a day." It also
cited Rached's testimony that the design speed should take into account the
fact that "a large majority of the drivers" using the road would be between the
ages of eighteen and twenty-two, that young people drive faster than "the
general driving public," and that the fifteen m.p.h. target speed was "clearly
unenforceable."
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Addressing Meth's testimony about the inclusion of a speed table, the
narrowing of lanes as a speed retardant, and radar digital readout signs that
would inform drivers of their speed when "coming down the hill leaving the
campus," the court accepted Rached's opinion that a speed table was
"improperly suggested" due to the "heavy volume" of traffic that would be
using the proposed roadway.
The court also cited Rached's testimony that although the lanes narrowed
at the very top of the roadway, they widened from ten-and-one-half feet to
eleven-and-one-half feet after the speed table and to twelve feet at the
intersection, thus the lane narrowing would only "have a temporary effect of
slowing the speed down." The court added that, according to Rached's
testimony, "cars would then pick up speed" as the road widened and "come
down [the hill] at a faster rate, faster than the [fifteen] miles an hour" due to
the roadway's "ten-degree incline," which "created a safety concern."
As to the issue of sight distance on the egress road, the trial court again
rejected Meth's testimony that "if you measured from the curve [in the
roadway] to the intersection, it complied with [NJ]DOT standards." Instead, it
accepted Rached's opinion that Meth's "calculation was incorrect because
rather than measuring from the curve to the . . . new intersection, you had to
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account for cars that would back up and . . . measure from . . . the curve, which
everyone agreed was the first vantage point that you could see the intersection
and the last stack[ed] car."
As to the lane taper on Valley Road for the left turn lane onto MacLean
Road, the court found, based upon Rached's testimony, that "it was supposed
to be between 550 to 600 feet long to adequately, safely do its job" and that
MSU's design reflected a taper of only 410 feet.
Addressing speed enforcement, the court found that Giardino's testimony
did not "establish any kind of confidence with this [c]ourt that [MSU] could
adequately enforce the speed limit." It explained that Giardino was "very non -
committal" about speed enforcement on the egress road and that he "didn't
provide any type of proposed schedule [as to] when a car would sit there and
actually . . . speed check by radar." It expressed that it "was somewhat
puzzled with the fact that there are four vehicles on patrol at any given shift"
but "no designated route for which the vehicles have to cover."
The court also found that Pasino's testimony about his personal
observations, for over eighteen years, established that while MSU "did an
adequate job in clearing the road and plowing the road" in inclement weather,
according to Pasino, "no vehicle traveled less than the speed limit . . . going up
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that hill" on the ingress road. While recognizing that some of Pasino's
testimony was anecdotal and objected to, the court emphasized that Pasino had
"first-hand knowledge . . . that there was an excessive amount of cars traveling
in excess of the [fifteen] miles an hour posted speed on the existing Yogi Berra
Drive." It found that Pasino's testimony further "undercut any confidence th[e]
[c]ourt had in the fact that the [MSU] Police, the patrol division, would and
could adequately enforce the speed limit for the proposed Yogi Berra Drive"
egress road.
V.
Against this backdrop, we begin by addressing MSU's contentions that
the trial court failed to follow the Court's instructions on remand by
"ignor[ing] the Supreme Court's instructions" pertaining to the
"reasonableness" standard, failing to apply it or analyze applicable law, and
"treating the hearing in large part as a battle between the . . . experts,
effectively rendering [MSU's] qualified immunity a nullity." We find no merit
to this argument.
We conclude that the trial court met its obligation to "obey the mandate
of the appellate tribunal precisely as it is written." Jersey City
Redevelopment, 280 N.J. Super. at 562. Accord Tomaino, 364 N.J. Super. at
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232-34 ("Adherence to this bedrock doctrine is vital to the proper
administration and enforcement of the laws, promotes certainty and stability,
and contributes to the actual and perceived integrity of the judicial sys tem.").
As already noted, in its remand, the Court specifically directed that the
trial court had to determine that the Project was inherently reasonable, MSU
consulted with Clifton about its legitimate public safety concerns, as required
by Rutgers, and MSU reasonably addressed Clifton's legitimate public safety
concerns through its planning due to the Project's direct impact on non -state-
owned property. Although the trial court did not make any specific findings as
to the reasonableness of the Project, it concluded it was unsafe as designed.
There was no dispute about there being sufficient consultation between MSU
and Clifton. The trial court also determined that because of the safety issues
described in Rached's expert opinion and what the trial court found was a
confusing problem with the MSU Police Department's ability to enforce speed
limits, MSU did not prove that it reasonably addressed Clifton's legitimate
safety concerns. That reason alone was sufficient cause to deny the
application in accordance with the Court's remand.
It makes no difference, as MSU contends, that Passaic County found the
Project to be safe. While it cannot be questioned that the County's
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determination was the result of its engineer's legitimate valid assessment that
resulted in the County's acceptance of the Project's design speed, that
determination did not bind Clifton as an intervenor. R. 4:33-1; R. 4:33-2.
VI.
Next, we assess whether, as MSU argues, the trial court's oral statement
of reasons "failed to provide sufficient findings of fact and conclusions of law
under [Rule] 1:7-4." We conclude that the trial court's decision satisfied the
requirements of the Rule.
In order for litigants and attorneys to understand the outcome of their
disputes, and for appellate courts to be able to perform their function, it is
imperative that a trial court sitting without a jury provide clear reasons for its
decision. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). That requirement is
incorporated into Rule 1:7-4, which states in pertinent part, "[t]he court shall,
by an opinion or memorandum decision, either written or oral, find the facts
and state its conclusions of law thereon in all actions tried without a jury." R.
1:7-4(a). "Naked conclusions do not satisfy the purpose of [Rule] 1:7-4.
Rather, the trial court must state clearly its factual findings and correlate them
with the relevant legal conclusions." Curtis, 83 N.J. at 570.
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As we noted earlier, the trial court must provide reasons "sufficient to
afford a meaningful review" on appeal. Finderne Heights Condo. Ass'n, 390
N.J. Super. at 165. "The trial court does not discharge [its] function simply by
recounting the parties' conflicting assertions and then stating a legal
conclusion." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 595 (App.
Div. 2016).
Although the trial court's reasoning here could have been expressed with
greater specificity and clarity, especially with regard to the conflicting expert
testimony, its oral decision, spread over thirteen-transcript pages, sufficiently
informed the parties and this court "of the rationale underlying" its findings
and conclusions. Id. at 594-95. The court did more than recount the parties'
assertions and state naked conclusions. It weighed and assessed the evidence
before it, summarized the critical witness testimony, and, based upon that
testimony, made specific factual findings regarding various safety concerns
with the Project. Those factual findings, in turn, support the court's legal
conclusion that MSU did not reasonably address Clifton's public safety
concerns in its most recent design plans for the Project. When read as a whole,
the court's decision adequately comports with Rule 1:7-4.
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VII.
Last, we address MSU's contentions that the trial court
"mischaracterized and/or ignored critical testimony" from Meth, Silverstein,
and Giardino regarding enforcement of the speed limit, gave "too much weight
to the non-expert, anecdotal testimony" from Pasino, did not even consider
Silverstein's testimony, and "improperly focused on a purported problem with
the length of taper on Valley Road," as testified to by Rached. We find no
merit to these arguments.
At the outset, we note that in an appeal from a bench trial, "[t]he scope
of appellate review of a trial court's fact-finding function is limited." Seidman
v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v.
Cesare, 154 N.J. 394, 411 (1998)). Final determinations made by the trial
court "premised on the testimony of witnesses and written evidence at a bench
trial" are reviewed in accordance with a deferential standard. D'Agostino v.
Maldonado, 216 N.J. 168, 182 (2013). "[W]e do not disturb the factual
findings and legal conclusions of the trial judge unless we are convinced that
they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
Seidman, 205 N.J. at 169 (quoting In re Tr. Created By Agreement Dated Dec.
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43
20, 1961, 194 N.J. 276, 284 (2008)). However, a trial court's legal
determinations are not entitled to any special deference and are reviewed de
novo. D'Agostino, 216 N.J. at 182.
We conclude from our limited review that, except in one instance, the
trial court reached its "reasoned conclusions" about the Project after properly
evaluating the witness testimony and "sift[ing through] the competing
evidence." Allstate Ins. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619
(2017) (quoting Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)); see
also H.S.P. v. J.K., 223 N.J. 196, 215 (2015); State v. Hannah, 448 N.J. Super.
78, 90 (App. Div. 2016) (describing "the judge's dual role with regard to . . .
admission and weigh[ing]" of evidence at a bench trial); Pansini Custom
Design Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 143 (App.
Div. 2009) (explaining that a trial court "must weigh and evaluate the experts'
opinions, including their credibility . . . in reaching a reasoned, just and
factually supported conclusion"). For that reason, the trial court's
determinations are entitled to our deference.
Contrary to MSU's contention, the trial court properly exercised its
discretion in weighing the competing experts' testimonies and determining
what portions to accept, and it expressed its reasons for doing so. This was in
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accord with the trial court's right "to accept or reject the testimony of either
side's expert, and [to] not adopt the opinion of either expert in its entirety."
Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002). Accord Pansini,
407 N.J. Super. at 144. Moreover, the trial court exercised its discretion to
weigh the expert testimony against the other evidence and properly determined
what weight to give to it when reaching its decision. See Torres v. Schripps,
Inc., 342 N.J. Super. 419, 430 (App. Div. 2001) ("[E]xpert testimony need not
be given greater weight than other evidence nor more weight than it would
otherwise deserve in light of common sense and experience.").
Although the trial court's opinion is not the model of clarity, we are
satisfied that in evaluating and weighing all the conflicting critical testimony,
the court did not mischaracterize or ignore any of it and that its oral decision
reflected that it "carefully scrutinized the testimony and the record before
making factual determinations." State v. Locurto, 157 N.J. 463, 471 (1999).
However, as MSU correctly argues, the court did not address or weigh
Silverstein's testimony about his and the County's approval and his ultimate
finding that he agreed with the Project's design speed and configuration.
However, it is evident that Silverstein's agreement with MSU's design did not
sway the trial court, so its omission from the court's findings does not warrant
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a remand for the purpose of reconsidering in light of Silverstein's opinion and
the County's approval.
Beginning with the expert testimony, the decision summarized the key
portions of Meth's testimony pertaining to design speed, posted speed limit,
traffic calming measures, sight distance, and his opinion regarding the
Project's overall safety. The court questioned the reason for the ten m.p.h.
differential between the Project's design speed and the posted speed limit,
citing the AASHTO Manual guideline (which Meth conceded applied to the
Project) that the design speed should match the posted speed limit. It then
found that Rached rebutted much of Meth's critical testimony, noting Rached's
opinion that: (1) the fifteen m.p.h. speed limit "was just clearly
unenforceable" especially when "drivers between the ages of [eighteen] and
[twenty-two]" drive faster than "the general public"; (2) the traffic calming
measures, particularly the lane narrowing, would not effectively slow down
drivers approaching the intersection; and (3) Meth miscalculated the sight
distance.
In addition, the court made findings pertaining to Rached's testimony
about the length of the left-turn-lane taper on Valley Road, and whether it was
safe—a topic that Meth did not address in any detail during his testimony. The
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court's attention to this issue was not improper, as the taper length affects the
safety of motorists on Valley Road, a public roadway located within Clifton.
MSU contends that the court overlooked Silverstein's testimony that there was
no "problem with the length of th[e] tapers" from the County's perspective.
While it is true that the court did not make specific findings about any of
Silverstein's testimony, his only testimony about the taper length was that the
County had approved it.
In contrast, Rached testified in detail that: (1) there are "national rules"
concerning the length of a taper "adopted by NJDOT, by Passaic County and
by AASHTO and by all agencies" and that taper length must equal the lane
width multiplied by speed; (2) the length of the taper on Valley Road in the
most recent plans is 310 feet, though previous plans referenced a 410-foot
taper; and (3) the taper length was inadequate and unsafe given the lane width
of twelve feet, the Valley Road speed limit of forty m.p.h., and an assumed
Valley Road design speed of either forty-five or fifty m.p.h.
No one, including Meth or Silverstein, rebutted Rached's specific
testimony regarding the exact measurements of the taper or the appropriate
calculation for taper length. Thus, it was reasonable for the court to give more
weight to Rached's testimony on that subject. The fact that the County
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approved the taper, as emphasized by MSU in its brief, does not negate the
City's own safety concerns about the taper length failing to comply with the
relevant guidelines.
We do note that the trial court did not make explicit credibility findings
about either expert. That said, credibility findings need not be articulated in
detail so long as "the reasons supporting its determinations of the witnesses'
relative credibility may be inferred from, and are well-supported by, the
account of the facts and witnesses' testimony presented in its decision."
Locurto, 157 N.J. at 472-74. When adequately supported, those
determinations are entitled to deference since they "are often influenced by
matters such as observations of the character and demeanor of witnesses and
common human experience that are not transmitted by the record." Id. at 474.
Here, we infer from the court's decision and its ultimate conclusion that
it found Rached's testimony to be more credible than Meth's–at least as to: (1)
whether the fifteen m.p.h. speed limit was appropriate, realistic and
enforceable; (2) the effectiveness of the traffic calming measures on the
proposed egress road; (3) the adequacy of the sight distance; and (4) the
adequacy of the left-turn-lane taper on Valley Road.
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However, Rached's expert testimony was not the only evidence that the
court credited. It also credited the lay opinion testimony from Pasino about his
personal observations of vehicles frequently exceeding the fifteen m.p.h. speed
limit on the existing ingress road. Although MSU criticizes Pasino's testimony
as non-expert and anecdotal, it is well-established that lay witnesses may offer
opinion testimony so long as the witness has "actual knowledge, acquired
through the use of his senses, of the matter testified to." Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 701 (2020).
"It is clear that based on adequate visual observation an ordinary witness
can state his conclusion of whether a car was moving fast or slow or give an
estimate of its speed." Pierson v. Frederickson, 102 N.J. Super. 156, 162
(App. Div. 1968). Accord State v. McLean, 205 N.J. 438, 457 (2011)
("Traditional examples of permissible lay opinions include the speed at which
a vehicle was traveling."). Here, Pasino had actual knowledge, acquired
through his observations from his home and from standing on Valle y Road
near the beginning of the ingress road, of the vehicles traveling on the existing
ingress road and stated his opinion based upon his observations. He presented
video footage to the court depicting what he saw. The trial court, as factfinder,
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was entitled to give that testimony due weight even though Pasino was not an
expert. Pierson, 102 N.J. Super. at 162-63.
Furthermore, Pasino's testimony about vehicles frequently exceeding the
fifteen m.p.h. speed limit on the ingress road, coupled with Giardino's
testimony concerning the non-specific manner in which the MSU Police
Department handles speed-limit enforcement, supports the court's
determination that many drivers will exceed the fifteen m.p.h. speed limit on
the proposed egress road and that it would not be enforced adequately—
thereby affecting the safety of the Valley Road Intersection. The court found
that Giardino "did not testify or establish any kind of confidence . . . that
[MSU] could adequately enforce the speed limit." It expressed that it "was
somewhat puzzled with the fact that there are four vehicles on patrol at any
given shift" but "no designated route for which the vehicles have to cover" and
found that Giardino was "very non-committal about" when the patrol officers
enforce speed limits and "didn't provide any type of proposed schedule" as to
when officers "would sit there and . . . speed check by radar."
The trial court's findings and determinations were not "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Rova Farms Resort,
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Inc. v. Invs. Ins. of Am., 65 N.J. 474, 484 (1974). Instead, they were
supported by expert testimony that was "grounded in 'facts or data derived
from (1) the expert's personal observations, or (2) evidence admitted at the
trial, or (3) data relied upon by the expert which is not necessarily admissible
in evidence but which is the type of data normally relied upon by experts,'"
Townsend v. Pierre, 221 N.J. 36, 53 (2015), and not "speculative opinions or
personal views that are [either] unfounded in the record" or that contradict the
record. Id. at 55. And, Rached's expert testimony was bolstered by the
testimony of Giardino and Pasino, which altogether provided an adequate basis
for the court's decision.
Although our judgment about the evidence might differ from that of the
trial court, we cannot say, against the record developed here, that the court's
findings were not "supported by adequate, substantial and credible evidence,"
carefully sifted from the testimony presented and properly weighed without
any mischaracterization or ignoring any of the critical witness testimony.
Casino Reinvestment Dev. Auth. v. Birnbaum, 458 N.J. Super. 173, 187 (2019)
(quoting Rova Farms, 65 N.J. at 484).
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VIII.
Because we have concluded there is no reason to disturb the trial court's
determination, we need not address MSU's remaining argument that we
exercise original jurisdiction and decide the matter anew.
Affirmed.
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