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

NOT FOR PUBLICATION WITHOUT THE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.
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A-2095-18T4

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.
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A-2095-18T4

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).
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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.
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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 
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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 
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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 
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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, 
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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.
10 A-2095-18T4

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).
11 A-2095-18T4

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 
12 A-2095-18T4

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 
13 A-2095-18T4

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 
14 A-2095-18T4

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
15 A-2095-18T4

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.