Before Judges Dreier, Keefe and P.g. Levy.
The opinion of the court was delivered by: P.g. Levy, J.A.D.
On appeal from the Department of Environmental Protection.
Green Eagle Property Resources Limited Partnership (Green Eagle) obtained local approvals to build a large shopping center at the northeast corner of the intersection of State Route 57 and Airport Road in Mansfield Township, Warren County. As part of the project, certain improvements were to be made to these two intersecting roads. The improvements required application to and approval of the Department of Environmental Protection (DEP) because they were located within the Beattystown Historic District. After public hearings before the Historic Sites Council (HSC), the Assistant Commissioner of DEP in charge of such applications approved the roadway improvements. A local citizens' group, Beattystown Community Council (BCC), opposed Green Eagle's application. In this appeal, BCC contends the DEP approval was erroneous. *fn1 We disagree and affirm.
Green Eagle pursued DEP approval of the encroachment on the Beattystown Historic District by submitting an appropriate application. A public hearing was scheduled before the HSC, an advisory body empowered to make recommendations to the DEP. After the first HSC hearing, Assistant Commissioner Hall ruled that "[a] more complete examination of the traffic patterns associated with improvements within the historic district" was appropriate, as was exploration of the possibility of "less urban traffic standards." He also required Green Eagle to "[p]rovide more detail with plans and elevations of the proposed landscape treatment strictly within the [road right-of-way] limits within the historic district" and that the matter should be remanded to the HSC for further study in these areas. Finally, he ruled that the HSC should not consider the State Development and Redevelopment Plan (State Plan) in making its recommendations related to this application.
Further testimony was taken by the HSC, and the record was returned to the Assistant Commissioner for his final decision. By letter dated April 9, 1997, Hall approved the construction of the road improvements in question, provided that (1) a proposed concrete traffic island in the intersection was eliminated; and (2) certain aesthetic and color changes to the traffic light and paving were implemented. On appeal, BCC contends that the Commissioner (1) failed to require exploration of "prudent and feasible alternatives" to avoid the encroachment; (2) failed to consider the State Plan in making this decision; and (3) otherwise acted arbitrarily and capriciously in granting this approval.
The Beattystown Historic District achieved its status as a state and national historic site in 1990. Its historical significance comes from its "settlement pattern, industry, architecture, and commerce. ... The Village is an example of the settlements that developed in the West Jersey proprietorship in the 18th Century. Beattystown is the oldest settlement in Mansfield Township, having been established by 1762." The "industrial focus" of the early settlement can still be seen there from two buildings dating back to the 18th century. It still "retain[s] its essentially 19th century character and form." Aside from the buildings, Route 57 itself also has historical significance.
The District, approximately 60 acres in size, is located primarily in an area to the west of the Route 57/Airport Road intersection which is the focus of this appeal. But to the east of the intersection, the District extends for 1,360 feet along Route 57, one of its boundary lines being 100 feet north of the centerline of Route 57. Green Eagle's project will occupy 3.9 percent of the district, all of it being on the north side of Route 57 east of the intersection. Green Eagle's site plan application included a traffic report showing that even without the proposed development, the intersection was too busy and frequently operated in a "failure" condition. Accordingly, it was agreed that certain improvements were required, including installation of a traffic light and widening of the lanes on Route 57 from 24 feet to 42-47 feet and Airport Road from its current 30 to 36-48 feet. The proposed roadway improvements would occupy an additional 0.6 percent of the space within the historic district. This application is governed by N.J.S.A. 13:1B-15.131, which provides:
The State, a county, municipality or an agency or instrumentality of any thereof shall not undertake any project which will encroach upon, damage or destroy any area, site, structure or object included in the Register of Historic Places without application to, and the prior written authorization or consent of, the Commissioner of Environmental Protection. The commissioner shall solicit the advice and recommendations of the Historic Sites Council in connection with any such application and may direct the conduct of a public hearing or hearings thereon prior to granting or denying authorization or consent. The failure of the commissioner to authorize, consent or deny any such application within 120 days of application therefor shall constitute his consent thereto.
Implementing regulations govern any action by a governmental entity "which has the potential to result in direct or indirect effects on any [registered historic] district," such as Beattystown. N.J.A.C. 7:4-1.3. *fn2 An application to proceed with such an "undertaking" must be submitted to the DEP, which must render a decision within 120 days from receipt of the final form of the application. N.J.A.C. 7:4-7.2(a), (b).
In analyzing the application, the DEP's first step is to determine whether the undertaking constitutes an encroachment. N.J.A.C. 7:4-7.2(e). The DEP found that this particular roadway improvement did encroach the district "in the public right of way," as distinguished from other local site plan considerations, not relevant to the DEP inquiry. As explained in his final decision, the Assistant Commissioner found that the road widening and improvement would "have an adverse impact on the district, [but] they are not avoidable in [his] opinion." He concluded that "the record is clear that there are no meaningful alternatives to making some road and traffic improvements." The regulations next provide that the HSC must consider the "Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) and 'Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings,'" issued by the National Park Service. The regulations then require the HSC to consider the following:
i. The public benefit of the proposed undertaking;
ii. Whether or not feasible and prudent alternatives to the ...