Before Judges Skillman, Wallace, Jr. and Wells.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Children and Friends for Equitable Stewardship (CAFES), a City of Plainfield citizens group, and the Sierra Club - New Jersey Chapter represented by the Rutgers Environmental Law Clinic, appeal from a final decision of the Commissioner of the Department of Environmental Protection (DEP) which permitted the City of Plainfield to remove from its 1992 Green Acres Recreation and Open Space Inventory (ROSI) a four acre parcel of land which had been developed into a public park in 1991-1992. This action cleared the title of the parcel of any restriction against the use of the park for purposes of commercial development. We granted a stay of the decision pending appeal and ordered an accelerated scheduling. On May 17, 2002, Plainfield filed a motion to supplement the record, or in the alternative, strike portions of CAFES' appendix. We reserved decision and now deny the motion.
In Part I of this opinion, we describe the underlying facts and procedural history which brings the case to us; in Part II, we outline the applicable law which frames the issues to be decided; in part III, we analyze the Commissioner's ruling and state the issues on appeal; finally, in Part IV we decide the appeal.
The parcel of land which is the subject of the appeal is known throughout most of the record before us as the Park- Madison site for the names of the two avenues which bound it, Park Avenue and Madison Avenue. It is four acres in size, described as Block 246, Lot 1, on Plainfield's tax map, and lies within its central business district.
Park-Madison has a forty-year history in Plainfield. On September 21, 1959, pursuant to former N.J.S.A. 40:55-21.1 to -21.14 *fn1 , Plainfield's Common Council declared Park-Madison "blighted" and, by resolution, authorized Plainfield's Housing Authority to seek federal funding for an urban renewal project on it. The 1959 Resolution stated that the Common Council "determines that the redevelopment of the project area, [Park-Madison]. . ., for predominately non-residential uses is necessary for the proper development of the community."
In June 1962, the Madison Park Renewal Plan was adopted. The Plan described the permitted uses for Park-Madison as retail sales, personal and business service establishments, offices, restaurants or other places serving food or drink, off- street parking and loading facilities, and appurtenant landscaping.
Between 1962 and 1969, despite potential tenants, redevelopment of Park-Madison did not occur. In 1970, a "Disposition Study" was prepared in order to assist the Housing Authority in selecting from various redevelopers. The study concluded that:
Commercial use would be most compatible with the surroundings of the Madison-Park Urban Renewal Area's location in the Central Business District. Imaginative development of these uses will help rather than harm Plainfield's existing retail and service facilities. . . . Office space is the key to Commercial development in the Madison-Park project area. There is not enough demand for office space generated in Plainfield to sustain any sizeable development. The feasibility of this use depends on the developers['] ability to attract first rate tenants.
In 1976, a marketing package for Park-Madison was drafted. The package revealed that the vision for it was extensive commercial redevelopment, including two office buildings, a retail mall, a 650 car parking garage, and a mid-rise motor hotel. Despite clearing Park-Madison, redevelopment did not occur at that time.
In 1978, Plainfield assumed control over redevelopment of Park-Madison from the Housing Authority, and title to the property was transferred to Plainfield. On September 4, 1979, it adopted a resolution designating a redeveloper. However, as before, this did not result in the redevelopment of Park- Madison.
Due to the failed attempts at commercial redevelopment, in 1987 Plainfield's Redevelopment Agency issued a Request for Proposal ("RFP") for the "redevelopment and construction" of Park-Madison. At least two developers submitted responses to that RFP. However, the site still remained undeveloped.
In June 1989, upon the recommendation by the City's Planning Board, the City Council reaffirmed Park-Madison's 1962 declaration of blight. Thereafter, in August 1989, the Planning Board adopted a resolution approving a new redevelopment plan for Park-Madison. Around the same time, pursuant to N.J.S.A. 13:8A-35 to -55, Plainfield received $425,000 in Green Acres funds to create the Milton Campbell Recreation Area. In connection with receipt of those funds, Plainfield submitted a ROSI, in which it listed all "recreation and open space land." Park-Madison was not listed on the 1989 ROSI.
In July 1990, pursuant to N.J.S.A. 52:27H-60 to -88 *fn2 , Plainfield planned to upgrade Park-Madison by applying for Urban Enterprise Zone (UEZ) funds. It also sought UEZ funds to conduct an environmental study for Park-Madison. Plainfield's request for UEZ funds stated:
The development of the Park-Madison site is and will remain a priority in the economic revitalization efforts of the City. The Plainfield Redevelopment Agency and the Office of Economic Development are designing strategies to meet and bring potential developers to the site and encourage their participation in development. However, the approval process, as identified, would require a minimum of two years. The site would remain in this condition for this amount of time, instilling the feeling of doubt in the City of Plainfield's business community. . . .
In order to ensure the continued viability of the business community and to instill pride in the overall community, it is proposed that a plan be developed to upgrade the Park-Madison site.
On July 12, 1990, the UEZ Authority approved Plainfield's applications, and provided it with $5,000 to obtain a conceptual design to upgrade Park-Madison and $15,000 to conduct an environmental study.
On December 12, 1990, Plainfield submitted a third UEZ application requesting $328,000 to implement upgrades to Park- Madison pending redevelopment. The application stated:
The physical development of the Park-Madison site as [a] modern retail, commercial or residential center is top priority in the economic revitalization efforts of the City. The Office of Economic Development and the Plainfield Redevelopment Agency are designing strategies to meet and bring potential developers to this downtown redevelopment area and encourage their participation in our city's revitalization. However, given the current slump in today's real estate investment market we can not realistically predict when actual development will take place in this area. Our primary focus will be to effect downtown development around the site. However, development of the site will remain an option. Given the significance of this vital downtown site, the City can ill afford to leave it in its current state any longer. To do so, will continue to perpetuate the perception that Plainfield will not tackle major tasks designed to improve our City's image, which is crucial to promoting our existing businesses as well as attracting new businesses and outside investors and developers to our Urban Enterprise Zone. The application also indicated that "[t]he site has been designed in a manner in which items used to upgrade the site are recyclable for reuse on this site or other such park areas once this site is ultimately developed."
On January 10, 1991, the UEZ Authority approved Plainfield's application. Upon receipt of the UEZ funds, Plainfield upgraded Park-Madison including constructing a gazebo, installing asphalt walkways for jogging and exercise, adding lighting, planting grass, trees, shrubbery and seasonal flowers, upgrading the play area, and landscaping to allow for outdoor events. It was officially opened to the public in May 1992 as a park.
Other documents executed contemporaneously with Park- Madison's upgrade indicate that the upgrade was a temporary measure designed to attract redevelopers. A 1991 Capital Improvement Plan Request for Park-Madison provided:
The Park-Madison area was blighted in 1962 and in the following years the City cleared the site through the now defunct Federal Urban Renewal Program. Subsequent attempts to develop Park-Madison have been unsuccessful. The 4.5 acre tract of land is presently vacant and used primarily as a graveled public parking lot. The condition of the lot does not project a positive view of downtown Plainfield. The downtown "image" has deterred potential developers and patrons.
The Office of Economic Development and the Plainfield Redevelopment Agency is actively seeking developers for the site.
In the meantime, the downtown image must be changed in order to attract people and developers to the center of Plainfield. A step in this direction is upgrading the tract and developing a temporary park on the site for recreation, civic activities and events, such as concerts, art exhibits, and an outside theater.
In addition, the minutes of the City's Planning Board meeting, dated February 6, 1992, reflect that the City's Economic Development Director "stated briefly the history of the Park/Madison parcel and the events that led to its present development as a temporary park."
In September 1992, Plainfield applied to the Green Acres Program for $19,000 to renovate and refurbish two city playgrounds not part of Park-Madison. As it had done in 1989, Plainfield submitted a ROSI to Green Acres that did not originally list Park-Madison. By letter dated November 2, 1992, Green Acres advised them that "this office has been informed of their past plans to develop the 'downtown' Park-Madison site and questions whether this area should not also be inventoried as parkland."
By letter dated November 12, 1992, an Assistant Planner from Plainfield responded to the Green Acres letter with a revised ROSI that listed Park-Madison. Her letter stated, "Your inquiry on three of Green Acres assisted acquisition projects, namely, Second Street/Jefferson Avenue, Myrtle Avenue and Berkeley Terrace Parks, and the City's Downtown Park (Park-Madison) are also listed on this inventory form." Thereafter, on December 7, 1992, Green Acres entered into a grant contract with Plainfield, whereby it received a grant of $19,000. In return Plainfield agreed that "[n]o other lands presently owned, dedicated or maintained for recreation or conservation purposes . . . shall be diverted to a non-compatible use or disposed of without the approval of [the] Commissioner and State House Commission." In connection with receipt of additional Green Acres funds, Plainfield also submitted ROSIs in 1995, 1996, 1997, 1999, and 2000. None of these ROSIs listed Park-Madison. We note, however, that the record is devoid of any notice to or permission from DEP approving the removal of Park-Madison from the ROSIs for those years.
In the years that followed, Park-Madison became a center of Plainfield's recreational and cultural life with substantial assistance and encouragement from Plainfield. It erected several large signs at the entrance. The largest read "Welcome to Historic Plainfield The Queen City." Another read "Roberto Clemente Memorial Park;" and another, bearing the City of Plainfield logo, read, "Alcoholic beverages, ball playing, bicycles, unleashed pets, skating and unlicensed vendors are prohibited; litter must be placed in receptacles. This facility shall close as sunset. Contact Plainfield City Clerk's office for reservations."
Consistent with this last instruction, Plainfield citizens frequently applied to Plainfield for and were granted permits for large-scale public events. Plainfield's records indicate that between 1992 and 2000, it granted authorizations for, among other things, a Black Family Day Picnic, A Hispanic Arts Festival, an Ethnic Food Festival, the annual Festival for Kids, a "Kiddle Carnival" sponsored by high school students, and pre-parade ceremonies in celebration of Dr. Martin Luther King, Jr.'s birthday. At one point, it paid more than $17,000 to professional event planners to assist with a jazz concert and other events held at Park-Madison. Plainfield also accepted $1,000 per day pursuant to a lease agreement with the Great American Circus for use of Park-Madison.
Meanwhile, Plainfield continued its efforts to redevelop Park-Madison. In July 1997, it issued another RFP for Park- Madison. Though one developer responded, its proposal did not result in a contract for redevelopment. In 1998, Plainfield adopted a new Master Plan. ...