Andrew, J.t.c. (temporarily assigned).
This action is an appeal by plaintiff Township of West Milford (West Milford) from the grant by defendant Commissioner of the Department of Environmental Protection (DEP) of a certification of qualification for tax exemption. This certification was made pursuant to N.J.S.A. 54:4-3.63 et seq. (commonly known as the Green Acres exemption law), for property owned by defendant Garfield Recreation Committee (Garfield). The property is primarily natural woodland and is located in West Milford. The certification in issue was granted September 15, 1981 to be effective for the tax year 1982.
Defendant DEP has moved for summary judgment pursuant to R. 4:46 (in which motion defendant Garfield joins) and as such has squarely presented an issue which concerns the scope of and manner in which this court should review a determination by DEP under the Green Acres exemption law.
The posture of this case is somewhat unique and as it is relevant to a resolution of DEP's present motion the procedural history will be related here.
In July 1975 defendant Garfield made an initial application to DEP pursuant to N.J.S.A. 54:4-3.65 for the purpose of claiming the Green Acres tax exemption provided by N.J.S.A. 54:4-3.64:
All lands and the improvements thereon actually and exclusively used for conservation or recreation purposes, owned and maintained or operated for the benefit of the public by a nonprofit corporation or organization organized under the laws of this or any State of the United States authorized to carry out the purposes on account of which the exemption is claimed and which is qualified
for exemption from Federal Income Tax under Section 501(c)(3) of the Internal Revenue Code shall be exempt from taxation; provided, however, that the Commissioner of the Department of Environmental Protection certifies that the real property and the property owner are qualified under the terms of this act. [Footnote omitted].
The Commissioner of DEP is authorized by N.J.S.A. 54:4-3.66 to certify that the property is maintained or operated for the benefit of the public, if, after a public hearing has been held, he finds that the property is open to all on an equal basis, and that a tax exemption would be in the public interest.
Garfield's application stated that it intended to preserve the land in a natural woodland state, and that the property would be used as a location for group recreation activities for the residents of the City of Garfield. Garfield also filed an initial statement with the West Milford assessor, pursuant to N.J.S.A. 54:4-4.4, stating its right to the claimed exemption. West Milford filed with DEP a formal written objection to the grant of certification on the basis that the land would not be open to all on an equal basis, as required by N.J.S.A. 54:4-3.66. On September 15, 1975, after publication of notice of public hearing*fn1 and invitation to submit written statements, DEP certified the eligibility of the land for exemption, effective January 1, 1976.*fn2
In accordance with N.J.A.C. 7:35-1.5(f),*fn3 Garfield filed an application for recertification with DEP in May 1978. Given
the opportunity to comment, West Milford again filed a written objection to the recertification, charging that Garfield had failed to document public use of the property over the last three years. In response, Garfield submitted copies of correspondence to and from various members of the Garfield community suggesting that certain groups had either used or had been granted permission to use the property during the initial certification period. Additionally, a communication from West Milford's assessor stated that the gate to the property had been locked, and "keep out" signs had been posted for two years. A site inspection conducted by DEP failed to confirm these allegations.*fn4 Recertification for three years was granted by DEP by letter dated September 15, 1978.
In April 1981 Garfield applied for another recertification, stating that the property was open and used as a day camp for all citizens, including Boy and Girl Scouts. West Milford again opposed the recertification by letter dated July 14, 1981, which stated that there had been no maintenance of the property for the past three years, and that the property in its unmaintained condition could not support the types of activities alleged to take place there. West Milford also sent photographs of the property to illustrate its objections.
DEP records show two site inspection reports dated July 1, 1981. The first indicates that the inspectors could not find the property, perhaps due to the absence of the "Green Acres" sign which DEP requires to be posted on exempted property. The second July 1 site inspection report, naming a different inspector, stated that the property was poorly maintained and that the land was overgrown with high grass and underbrush.
In response, Garfield sent a letter to DEP dated August 28, 1981, stating that the property had been cleaned up and that more work was expected to be done on the property in the fall. The letter also included a list of organizations who were said to have used the land in the summer of 1981. Another site inspection followed on September 9, 1981. The report stated that the inspector foresaw problems with keeping the area cleaned up, and noted that there was evidence of campfires and drinking on the property, and that scrapwood, roofing shingles and beer cans were present.
DEP issued the certification of eligibility for one year, rather than the standard three-year period, on September 15, 1981.*fn5 The reasons for the grant of the certification were stated in the summary report, which listed the following findings:
1. An application for recertification of eligibility was filed with the Department. The application was submitted on April 20, 1981, by the property owner, Garfield Recreation Committee, Inc.
2. The property included in this application is located in West Milford Township, Passaic County.
3. The site included three tax lots consisting of 53.6 acres of land.
4. The property was certified as eligible for a standard three year tax exemption on September 15, 1978 by ...