                            NOT FOR PUBLICATION WITHOUT THE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-2095-18T4

IN RE LEONIA BOROUGH
ORDINANCE NUMBERS
2018-15, 2018-14, AND
2018-17.
__________________________

                Argued December 2, 2019 – Decided March 6, 2020

                Before Judges Moynihan and Mitterhoff.

                On appeal from the New Jersey Department of
                Transportation.

                Brian M. Chewcaskie argued the cause for appellant
                Borough of Leonia (Cleary Giacobbe Alfieri Jacobs
                LLC, attorneys; Brian M. Chewcaskie, of counsel and
                on the briefs; Mary Anne Groh, on the briefs).

                Philip Joseph Espinosa, Deputy Attorney General,
                argued the cause for respondent New Jersey
                Department of Transportation (Gurbir S. Grewal,
                Attorney General, attorney; Melissa H. Raksa,
                Assistant Attorney General, of counsel; Philip Joseph
                Espinosa and Ryne Anthony Spengler, Deputy
                Attorney General, on the brief).

PER CURIAM
      The Borough of Leonia (the Borough) appeals from a final agency

decision issued by the Commissioner of the New Jersey Department of

Transportation (NJDOT). The Commissioner's final decision recognized that

the Borough, which is located in close proximity to the George Washington

Bridge (the Bridge), was "concerned about a high volume of traffic during

commuter rush hours using [the Borough's] streets as an alternative means from

either Route 80 or Route 46 to commute across" the Bridge, which made the

Borough "residents' own commutes and regular travel slower and raise[d] the

attendant public safety concerns as well as concerns about the speed of [the

Borough's] police, fire and ambulance response time[.]"         In response, the

Borough adopted three ordinances, described by the Commissioner in her final

decision:

            Leonia Ordinance No. 2018-14, if approved and
            implemented, would restrict the use of approximately
            [thirty-two] streets listed therein during nine specified
            hours of the day, to Leonia residents, those with a
            demonstrable need to access the streets listed, or those
            who are traveling to or from a Leonia destination.

            Leonia Ordinance No. 2018-15, if approved and
            implemented, would restrict the use of approximately
            [twenty-three] streets listed therein during nine
            specified hours of the day, to Leonia residents, those
            with a demonstrable need to access the streets listed, or
            those who are traveling to or from a Leonia destination.


                                                                         A-2095-18T4
                                       2
             Leonia Ordinance No. 2018-17 amends Ordinances
             Nos. 2018-14 and 2018-15 by moving a traffic
             regulation regarding Fort Lee Road-eastbound/Station
             Parkway (Southbound from Fort Lee Road/No Right
             Turn) from 2018-14 to 2018-15.

       The Commissioner aptly summarized the effect of the ordinances:

"designat[ing] the listed streets as no through streets for other than those

motorists listed in the ordinances, during the nine hours indicated on each day."

The Commissioner determined proposed Leonia Borough ordinances, Nos.

2018-14, 2018-15, and 2018-17, were legally invalid "on their face" because the

Borough did not have inherent authority to adopt ordinances that created "no

through" streets, and, basing her analysis on a 1955 Attorney General opinion, 1

the Commissioner concluded the ordinances could not be approved.

On appeal, the Borough argues:

             [POINT ONE]

             THE DOT COMMISSIONER'S FINAL DECISION
             THAT THE DOT LACKED AUTHORITY TO
             CONSIDER THE BOROUGH ORDINANCES
             RESTRICTING   VEHICULAR    TRAFFIC      ON
             CERTAIN STREETS DURING CERTAIN HOURS
             TO PERSONS TRAVELING THROUGH—BUT NOT
             TO OR FROM—THE BOROUGH OFFENDS THE
             STATE CONSTITUTION AND VIOLATES THE
             EXPRESS LEGISLATIVE POLICY IN N.J.S.A. 39:4-
             8   CONFERRING   AUTHORITY      ON     THE

1
    Attorney General Formal Opinion 1955 – No. 5 (Mar. 4, 1955).
                                                                         A-2095-18T4
                                       3
COMMISSIONER TO REVIEW      ORDINANCES
REGULATING TRAFFIC.

[POINT TWO]

THE ATTORNEY GENERAL'S OPINION ISSUED
TO THE DIVISION OF MOTOR VEHICLES
ELEVEN YEARS BEFORE THE DOT WAS
ESTABLISHED FOR AN INTERPRETATION OF A
DIFFERENT STATUTE IS NEITHER BINDING NOR
PERSUASIVE FOR INTERPRETATION OF A
STATUTORY PROVISION REVISED EIGHT[]
TIMES SINCE THE 1955 ATTORNEY GENERAL'S
OPINION.

[POINT THREE]

N.J.S.A. 39:4-8 PROVIDES THAT TRAFFIC
REGULATIONS ADOPTED BY MUNICIPALITIES
AND COUNTIES ARE EFFECTIVE UPON
ADOPTION WITHOUT APPROVAL BY THE
COMMISSIONER      AS   AUTHORIZED   IN
SUBSECTIONS B., C., D., AND E. AND,
OTHERWISE, NOT UNLESS APPROVED BY THE
COMMISSIONER PURSUANT TO SUBSECTION A.

[POINT FOUR]

THE DOT COMMISSIONER MUST CONSIDER THE
ORDINANCES ALONG WITH THE REPORTS AND
DATA SUBMITTED BY THE BOROUGH AND
MAKE A DECISION AS TO WHETHER THE
ORDINANCES ARE IN THE INTEREST OF
SAFETY AND THE EXPEDITION OF TRAFFIC ON
THE PUBLIC HIGHWAYS.




                                           A-2095-18T4
                   4
The Commissioner did not review the ordinances pursuant to the statutory

scheme created by the Legislature. We, therefore, reverse and remand.

      Our review of an administrative agency's final determination is ordinarily

deferential. In re Carter, 191 N.J. 474, 482 (2007). A final agency decision will

be set aside only if the decision "is arbitrary, capricious or unreasonable, or is

not supported by substantial credible evidence in the record as a whole." J.D.

ex rel. D.D.H. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516,

521 (App. Div. 2000). Thus, on review, this court is limited to determining

whether: (1) the agency violated express or implied legislative policies; (2) the

record contains substantial evidence to support the agency’s findings; and (3) if

the agency reached a conclusion that could not have been reasonably made on a

showing of the relevant factors when applying the legislative policies to the

facts. Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).

      Although we generally accord substantial deference to an agency's

interpretation of a statute which it is charged with enforcing, N.J. Tpk. Auth.

AFSCME, Council 73, 150 N.J. 331, 351 (1997), our review of an agency's legal

determinations, including statutory interpretation, however, is de novo, U.S.

Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012). "Statutory interpretation

involves the examination of legal issues and is, therefore, a question of law


                                                                          A-2095-18T4
                                        5
subject to de novo review." Saccone v. Bd. of Trs., PFRS, 219 N.J. 369, 380

(2014); see also Township of Holmdel v. N.J. Highway Auth., 190 N.J. 74, 86

(2007).

      As we begin our review of the applicable statutes, we are mindful that our

primary purpose when construing statutes is to "discern the meaning and intent

of the Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). "[W]e look first

to the plain language of the statute" to accomplish our goal of determining and

effectuating the Legislature's intent, Bosland v. Warnock Dodge, Inc., 197 N.J.

543, 553 (2009) (quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264

(2008)), and seek "further guidance only to the extent that the Legislature's

intent cannot be derived from the words that it has chosen," Pizzullo, 196 N.J.

at 264. But, if "the plain language leads to a clear and unambiguous result . . .

[the] interpretive process is over," Richardson v. Bd. of Trs., PRFS, 192 N.J.

189, 195 (2007), and "the court's sole function is to enforce the statute in

accordance with those [clear] terms," McCann v. Clerk of Jersey City, 167 N.J.

311, 320 (2001) (quoting SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579,

586 (2001)).

      Statutory words are ascribed their "ordinary meaning and significance"

and are read "in context with related provisions so as to give sense to the


                                                                         A-2095-18T4
                                       6
legislation as a whole[.]" DiProspero v. Penn, 183 N.J. 477, 492 (2005). To the

extent possible, legislative language should not "be found to be inoperative,

superfluous or meaningless." Franklin Tower One, L.L.C. v. N.M., 157 N.J.

602, 613 (1999) (quoting In re Sussex Cty. Mun. Utils. Auth., 198 N.J. Super.

214, 217 (App. Div. 1985)).

      Inasmuch as we are considering multiple portions of Title 39, as well as

other transportation-related statutes, we heed the Court's prescription that

            "[s]tatutes must be read in their entirety; each part or
            section should be construed in connection with every
            other part or section to provide a harmonious whole."
            Burnett [v. County of Bergen, 198 N.J. 408, 421
            (2009)]. "When reviewing two separate enactments,
            the Court has an affirmative duty to reconcile them, so
            as to give effect to both expressions of the lawmakers'
            will." Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14
            (2005). "Statutes that deal with the same matter or
            subject should be read in pari materia and construed
            together as a unitary and harmonious whole." Id. at 14-
            15.

            [In re Petition for Referendum on Trenton Ordinance
            09-02, 201 N.J. 349, 359 (2010).]

      We first note the Legislature's purpose and intent in enacting the

Transportation Act of 1966 was

            to establish the means whereby the full resources of the
            State can be used and applied in a coordinated and
            integrated matter to solve or assist in the solution of the
            problems of all modes of transportation; to promote an

                                                                          A-2095-18T4
                                        7
            efficient, fully integrated and balanced transportation
            system for the State; to prepare and implement
            comprehensive plans and programs for all modes of
            transportation development in the State; and to
            coordinate the transportation activities of State
            agencies, State-created public authorities, and other
            public agencies with transportation responsibilities
            within the State.

            [N.J.S.A. 27:1A-1.]

To that end, the Legislature vested in the Commissioner broad functions, powers

and duties, including those previously vested in the State Highway

Commissioner, N.J.S.A. 27:1A-5, and enumerated powers and duties previously

exercised by the Director of the Division of Motor Vehicles, inclusive of chapter

4 of Title 39, N.J.S.A. 27:1A-44.

      N.J.S.A. 39:4-6 imposes a duty on the Commissioner to "investigate

traffic conditions, means for their improvement and the enforcement of laws and

regulations relating to traffic[.]" "[The Commissioner] shall also enforce the

provisions of this chapter and promulgate rules and regulations for the

enforcement of [her] duties hereunder." N.J.S.A. 39:4-6.

      The Legislature also limited the power of municipalities to "pass an

ordinance or resolution on a matter covered by or which alters or in any way

nullifies the provisions of this chapter [4 of Title 39] or any supplement to this

chapter[,] except" for the enumerated measures "that a municipality may pass,

                                                                          A-2095-18T4
                                        8
without the approval of the commissioner[.]"         N.J.S.A. 39:4-197.     As we

recognized in State v. Panther Valley Property Owners Ass'n, 307 N.J. Super.

319, 331 (App. Div. 1998), "[t]he obvious intendment of giving broad oversight

to the Commissioner was 'to advance the interests of safety and uniformity in

traffic regulation' throughout the State," Ibid. (quoting Visidor Corp. v. Cliffside

Park, 48 N.J. 214, 223 (1966)).

      In 2008, the Legislature amended the first sentence of N.J.S.A. 39:4-197

to include a carve-out provision to allow municipalities to adopt ordinances

"otherwise provided in" N.J.S.A. 39:4-8. N.J.S.A. 39:4-8(a) provides in part:

            Except as otherwise provided in this section, no
            ordinance, resolution, or regulation concerning,
            regulating, or governing traffic or traffic conditions,
            adopted or enacted by any board or body having
            jurisdiction over highways, shall be of any force or
            effect unless the same is approved by the
            commissioner, according to law. The commissioner
            shall not be required to approve any such ordinance,
            resolution, or regulation, unless, after investigation by
            the commissioner, the same shall appear to be in the
            interest of safety and the expedition of traffic on the
            public highways. The commissioner’s investigation
            need not include more than a review of the ordinance,
            resolution, or regulation, and the supporting
            documentation submitted by a board or body having
            jurisdiction over highways, unless the commissioner
            determines that additional investigation is warranted.




                                                                            A-2095-18T4
                                         9
      The plain language of N.J.S.A. 39:4-8(a) contemplates that municipalities

may pass measures—including ordinances—governing traffic conditions on its

highways. Indeed, we have long recognized that governing bodies

            "must act when assembled at stated or special meetings,
            and organized with a president to conduct, and a clerk
            to record, its proceedings. Such body can hardly act in
            any other manner than by ordinance or resolution.
            Every act must be by a vote of the members present;
            and, whether it is called an order, direction[,] or
            determination, it is still a resolution, because it must be
            resolved on, upon a motion made by some member."
            Dey v. Jersey City, 19 N.J. Eq. 412[, 416 (Ch. Div.
            1869)]. All through our numerous cases dealing with
            municipal action, it will be seen that a board or body
            can act only by ordinance or resolution; these are the
            alternative methods. Any action of the body which
            does not rise to the dignity of an ordinance, is a
            resolution.

            [Woodhull v. Manahan, 85 N.J. Super. 157, 166 (App.
            Div. 1964) (emphasis added) (quoting Town of
            Irvington v. Ollemar, 128 N.J. Eq. 402, 406 (Ch. Div.
            1940), aff'd o.b. sub nom. Irvington Nat'l Bank v.
            Geiger, 131 N.J. Eq. 189 (E. & A. 1942)), aff'd o.b., 43
            N.J. 445 (1964).]

See also N.J.S.A. 40:48-2. Thus, contrary to the Commissioner's argument on

appeal that the Borough "must address traffic concerns within the law," the

passage of the ordinances was the Borough's only legal mode of action. Indeed,

the Legislature contemplated that traffic ordinances would be passed and

submitted to the Commissioner. N.J.S.A. 39:4-8(a).

                                                                          A-2095-18T4
                                       10
      Of course, per N.J.S.A. 39:4-8(a), the ordinances were not "of any force

or effect unless the same is approved by the commissioner, according to law. "

See also N.J.S.A. 39:4-202. The Legislature expressed a specific process for

approval that required the Commissioner to conduct an investigation which

"need not include more than a review of the ordinance, resolution, or regulation,

and the supporting documentation submitted by a board or body having

jurisdiction over highways, unless the commissioner determines that additional

investigation is warranted." N.J.S.A. 39:4-8(a). The Legislature also provided:

"The commissioner shall not be required to approve any such ordinance,

resolution, or regulation, unless, after investigation by the commissioner, the

same shall appear to be in the interest of safety and the expedition of traffic on

the public highways." Ibid.

      We deduce from the statute's plain language that the Commissioner's

determination to approve or disapprove of a submitted ordinance must be made

"after" the prescribed investigation, and must include an analysis of whether the

ordinance proposed for approval appears "to be in the interest of safety and the

expedition of traffic on the public highways." Ibid. (emphasis added).

      Other parts of N.J.S.A. 39:4-8(a) also provide support for our

determination that the Commissioner is required to conduct a full review of the


                                                                          A-2095-18T4
                                       11
ordinances, instead of summarily dismissing them after a review of their

language. See Fiore v. Consol. Freightways, 140 N.J. 452, 466 (1995) (holding

"[a] statute should be read as a whole and not in separate sections") . Again, we

turn to the plain language of N.J.S.A. 39:4-8(a):

            Where the commissioner’s approval is required, a
            certified copy of the adopted ordinance, resolution, or
            regulation shall be transmitted by the clerk of the
            municipality or county, as applicable, to the
            commissioner within [thirty] days of adoption, together
            with: a copy of the municipal or county engineer’s
            certification, a statement of the reasons for the
            municipal or county engineer’s decision, detailed
            information as to the location of streets, intersections,
            and signs affected by the ordinance, resolution, or
            regulation, and traffic count, crash, and speed sampling
            data, when appropriate. The commissioner may
            invalidate the provisions of the ordinance, resolution,
            or regulation if the commissioner finds that the
            provisions of the ordinance, resolution, or regulation
            are inconsistent with the Manual on Uniform Traffic
            Control Devices for Streets and Highways, inconsistent
            with accepted engineering standards, are not based on
            the results of an accurate traffic and engineering
            survey, or place an undue traffic burden or impact on
            the State highway system, or affect the flow of traffic
            on the State highway system.

The statutory wording is clear. The documentation supporting the ordinances

must be submitted by the municipality. As part of the required "investigation,"

the Commissioner must review it.       And, if the Commissioner chooses to

invalidate the ordinance, she must find that the ordinance's provisions

                                                                          A-2095-18T4
                                      12
            are inconsistent with the Manual on Uniform Traffic
            Control Devices for Streets and Highways, inconsistent
            with accepted engineering standards, are not based on
            the results of an accurate traffic and engineering
            survey, or place an undue traffic burden or impact on
            the State highway system, or affect the flow of traffic
            on the State highway system.

            [N.J.S.A. 39:4-8(a).]

Those supporting materials are not, as contended by the Commissioner, extrinsic

material to be used to interpret statutes and, thus, need not have been reviewed.

They were submissions required by N.J.S.A. 39:4-8(a) for substantive review by

the Commissioner before she made her decision.

      While generally, courts accord "substantial deference to the interpretation

an agency gives to a statute that the agency is charged with enforcing," Plata v.

Div. of Alcoholic Beverage Control, 360 N.J. Super. 92, 99 (App. Div. 2003),

"an administrative agency may not, under the guise of interpretation, extend a

statute to give it a greater effect than its language permits," ibid. (quoting GE

Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 306 (1993)). We are

convinced the Legislature clearly set forth a comprehensive plan for a

municipality to present traffic problems to the Commissioner for a thorough

review of its proposed solution, as set forth in a proposed ordinance, and for the

submitted support for its proposal. The Commissioner is statutorily obligated


                                                                          A-2095-18T4
                                       13
to review, not only the ordinance, but also the statutorily-mandated submissions,

and to analyze same under the statute's criteria, before approving or invalidating

the ordinance. That statutory scheme—set forth in the statutes that we have

perpended—recognizes that local governments may perceive problems that

impact on more than its local streets, as well as the authority of the

Commissioner to evaluate the problem and proposed solution. The review

procedure set forth in N.J.S.A. 39:4-8(a) allows the Commissioner to exercise

that authority while allowing municipalities to present its traffic concerns. That

procedure, as mandated by the Legislature, requires more than a cursory review

of the ordnances' language, although, to the extent suggested by the Borough's

merits brief, a hearing is not part of the statutory review scheme.

      We are not persuaded by the Commissioner's legal determination that the

1955 Attorney General opinion sanctioned her action. First, the opinion is not

binding on this court. Opderbeck v. Midland Park Bd. of Educ., 442 N.J. Super.

40, 56 (App. Div. 2015).       Moreover, the opinion addressed the statutory

authority of a municipality to pass a "no through" street ordinance under

N.J.S.A. 39:4-197, as it then existed. It did not analyze the process set forth in

N.J.S.A. 39:4-8(a), although it did allow that a "through" street ordinance was




                                                                          A-2095-18T4
                                       14
not effective unless approved by the Director of the Division of Motor Vehicles 2

"because N.J.S.A. 39:4-202 provides: 'No . . . ordinance . . . passed, enacted or

established under authority of this article, shall be effective until submitted to

and approved by the director as provided in section 39:4-8 of this Title.'"

Attorney General Formal Opinion 1955 – No. 5 (Mar. 4, 1955) (quoting N.J.S.A.

39:4-202). As we have concluded, that provision sets forth the procedure the

Commissioner should have utilized.

      In light of our decision, we need not reach the constitutional arguments

raised by the Borough. O'Keefe v. Passaic Valley Water Comm'n, 132 N.J. 234,

240 (1993).

      We reverse the Commissioner's final decision and remand this matter to

the Commissioner for proceedings consistent with this opinion. We do not

suggest any particular outcome and leave to the Commissioner the question of

the ordinances' approval. We do not retain jurisdiction.




2
   As previously noted, the powers and duties previously exercised by the
Director of the Division of Motor Vehicles were transferred to the
Commissioner on July 1, 1969. N.J.S.A. 27:1A-44.


                                                                          A-2095-18T4
                                       15
