On appeal from the Department of Environmental Protection.
King, Gruccio and D'Annunzio. The opinion of the court was delivered by King, P.J.A.D.
[227 NJSuper Page 9] This case concerns a dispute over the method of developing a unique public resource, Liberty State Park in New York-New Jersey Harbor. We are here called upon to decide whether the actions of the Executive Branch, performed by the Governor and the responsible agency, the Department of Environmental Protection (DEP), were within the ambit of the authority given them by the Legislature. We conclude that the Executive Branch did not exceed its authority in this circumstance involving
the challenged development of a 599-slip marina at Liberty State Park and we affirm.
The plaintiffs appeal from the denial of injunctive relief which they sought when the Department of Environmental Protection (DEP) subleased about 50 acres of Liberty State Park to a private corporation for development into the 599-slip public marina. The plaintiffs contend that the lease violated the Green Acres Land Acquisition Act of 1961, the State Park Forestry and Resources Act of 1983, the Master Plan of Liberty State Park, and the "public trust" doctrine. This case presents the issue of the power of the executive branch to lease public lands to a private corporation as part of the development of a public park.
The concept of public-private cooperative venture has gained favor in recent years because public funds for park development are scarce and private funding often represents the only way to develop a park for public use. The narrow question we face is whether the executive branch of government has exceeded its authority in this instance by leasing park lands to the Liberty State Park Development Corporation to develop a public marina.
For the purposes of this action, we conclude that the corporate and citizen plaintiffs, the City of Jersey City, Marjorie Westling, and John N. Tichenor, have standing to bring this action. The City of Jersey City, as a municipality, is a creature of the State and as such usually cannot challenge the action of the executive branch. Bergen County v. N.Y. Port Authority, 32 N.J. 303, 311 (1960). However, we believe that in the public interest, Jersey City, which initially donated 165 acres for Liberty State Park and which is located adjacent to the park, and its citizens do have a special, regional interest exceeding the general public interest. We have jurisdiction to review this matter under R. 2:2-3(a)(2), as a final decision or action of a state administrative agency.
This is the factual background. In 1965, the City of Jersey City deeded 165 acres to the State which were used to create Liberty State Park. Between 1975 and 1977 more land was acquired for the Park, financed by the Green Acres Land Acquisition Act, N.J.S.A. 13:8A-1-34 ($65 million), and the United States Department of Interior ($20 million). The entire Park is now 1150 acres. In 1977 a Master Plan was developed which provided for picnic areas, open spaces, nature trails, and other amenities.
The Master Plan itself described a large marina project for the South Embankment of the Park and boat slips at the northern end of the Park. The Master Plan stated: "The Waterfront around the Tidewater Basin will be a continuous band of landscaping with areas for sightseeing, trailer camping and picnicking." The Southern Embankment was projected as the site of a "large marina, waterfront restaurant, and picnic areas."
In 1977 Governor Byrne by Executive Order # 53 set up the Liberty State Park Planning Commission to consider community proposals about the Master Plan. In the conclusion to that study, the Commission recommended that the Park be kept as "a green park devoted to unstructured open space needs." Nine hearings were held before the Planning Commission and 95 persons representing 54 organizations appeared to voice opinions about the Master Plan. In 1979, by Executive Order # 74, Governor Byrne set up the Liberty State Park Advisory Commission (Commission) to act as a reviewing body for any public or private proposals for the park. The Advisory Commission had broad advisory powers.
In 1983 the DEP formed an ad hoc committee, the Liberty State Park Action Program, chaired by the Director of Parks and Forestry, to evaluate possible uses for the park. Governor Kean urged that the Park be developed by utilizing a partnership between public institutions and private organizations. The Action Program also recommended that a non-profit corporation
be set up to implement Park development. Soon afterwards, Governor Kean announced the formation of the Liberty State Park Development Corporation, a non-profit organization. The Corporation was to undertake the development of the Park and enter into contracts with others to foster that development. Its initial funding of $500,000 was from the State. This has been spent for the initial design phase.
In June 1986, the DEP entered into a contract with the Development Corporation to undertake development of the Park. The Development Corporation itself was not authorized to enter into contracts for development of the Park without written approval of the DEP. On June 18, 1986 the Corporation, after consulting with DEP, issued a request for proposals (RFP) for development of a marina at the northern end of the Park. Four proposals were received by the Liberty State Park Development Corporation. Respondent Waterfront Developers, a private corporation, was selected to develop the marina. Once Waterfront Developers was selected, it began working with the Development Corporation to develop and operate the complex.
On June 12, 1987 the DEP entered into a 25-year lease with the Development Corporation to construct a marina complex on 50.65 acres of the Park. There are provisions for automatic five-year extensions if any sub-lessee exercises its option to extend. The Development Corporation subleased the marina area to Waterfront Developers on the same date. On June 13, 1987 the DEP and the Development Corporation amended their agreement to clarify the fact that DEP would have oversight of any revenues and would be able to audit the Development Corporation.
Waterfront Developers now is proceeding with plans to develop the full-scale marina at the northern end of Liberty State Park. It will have 599 slips which will be rented to the public; almost half of them are large enough to accommodate craft 31 feet or longer. The marina facility will include boat storage
and repair, a parking area, and a coffee shop. Of the 50.65 acres, ten will be open to the general public.
On July 9, 1987 two citizens of Jersey City filed this suit against the DEP, the Development Corporation, Waterfront Developers and the Liberty State Park Public Advisory Committee. Jersey City filed a separate action against Waterfront Developers. The plaintiffs requested temporary injunctive relief against implementation of the marina development plan. The plaintiffs claimed generally that (1) recreational and open space deficiencies in Hudson County will be increased by the proposed marina, (2) the project does not conform to Green Acres requirements, (3) the marina is being built in an area not intended for marina development by the Master Plan, (4) the DEP, at the urging of the Governor, has delegated improperly its authority to the Development Corporation in order to expedite development of the Park, and (5) the Public Advisory Commission, which is supposed to act as a community sounding board for any development of the Park, has been circumvented, as have the needs of disadvantaged urban citizens of Hudson County. On August 14, 1987 Judge Humphreys, Assignment Judge of Hudson County, denied the plaintiffs' request for an injunction stopping work on the marina and transferred the actions to the Appellate Division because the plaintiffs were challenging the final decision of a state agency.
Plaintiffs make eight legal contentions on this appeal. They say that: (1) the case should be returned to the Law Division for plenary trial, (2) the DEP's lease of Green Acres property violates the State Park Forestry and Resources Act and the Green Acres Land Acquisition Act and its regulations, (3) the DEP's delegation of governmental power to Development Corporation and Waterfront Developers is unlawful, (4) the DEP's leasing of the land and contiguous waters violates the "public trust" doctrine, (5) the contract and leases violate Art. VIII, § III, par. 3 of the New Jersey ...