On appeal from a final decision of the New Jersey Department of Environmental Protection.
Before Judges Petrella, Lintner and Yannotti.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2004
Citizens and Friends for Equitable Stewardship, a Plainfield citizens' group, and the Sierra Club-New Jersey Chapter (CAFES-SCNJ) appeal from a June 17, 2003, decision of the Commissioner of the Department of Environmental Protection (DEP) declining to hear CAFES-SCNJ's petition for a declaratory judgment and request for a stay of proposed development of a four-acre tract in Plainfield known as the Park-Madison site. This is the second time this case comes before us. We affirm the Commissioner's decision, albeit for different reasons. See Isko v. Planning Bd. of Livingston Township, 51 N.J. 162, 175 (1968).
We combine the procedural history and relevant facts. The underlying facts are set forth at length in our opinion in In Re Amendment to Recreation & Open Space Inventory of the City of Plainfield, 353 N.J. Super. 310, 314-321 (App. Div. 2002), decided July 18, 2002, which we incorporate by reference in this opinion. Holding essentially that there was not a bona fide inaccuracy in Plainfield's ROSI, we reversed the Commissioner's decision removing Green Acres protection from the Park-Madison site.
Petitions for Certification were filed on August 7, 2002, by the DEP, the Union County Improvement Authority (UCIA or developer), and the City of Plainfield (Plainfield). While these Petitions were pending, the Legislature amended N.J.S.A. 13:8A-47 effective December 12, 2002 (the Amendment). The Amendment provided that the proscription against disposing or diverting lands used for recreation and conservation purposes without Commissioner and State House Commission approval does not apply to lands included in a redevelopment plan adopted pursuant to section 7 of P.L.1992, c. 79 (C.40A:12A-7) that are being, or which have been, used for recreation and conservation purposes pending implementation of the redevelopment plan and the eventual use of those lands for other purposes in accordance with the redevelopment plan.
Such lands, because of their use for recreation and conservation purposes, shall not be deemed to be part of any inventory of lands prepared for the purposes of administering or enforcing this section. The exception provided by this subparagraph shall apply only to lands not acquired or developed for recreation or conservation purposes with financial assistance in whole or in part provided by the State, the federal Land and Water Conservation Fund, 16 U.S.C. s.460l-4 et al., the federal"Urban Park and Recreation Recovery Act of 1978," 16 U.S.C. s.2501 et seq., or a county or local open space trust fund created pursuant to P.L.1997, c. 24 (C.40:12-15.1 et seq.).
The exception only applies to redevelopment plans adopted prior to July 18, 2002. N.J.S.A. 13:8A-47b(2)(c).
While the bill was pending the Governor's signature, the DEP was afforded an extension of time in which to file its Reply Brief in support of its Petition for Certification. Four days after the Amendment became effective, the DEP moved to dismiss its Petition for Certification, asserting that its enactment rendered review moot. UCIA and Plainfield followed suit with their motions to withdraw their Petitions for Certification. The motions were granted by orders of the Supreme Court on January 15, 2003. Those orders did not reflect any finding by the Court that the matter before it was rendered moot by the enactment of the Amendment.
On April 3, 2003, the UCIA formally acquired the Park Madison site and issued $28,000,000 of Lease Revenue Bonds to be publicly marketed. On May 8, 2003, groundbreaking ceremonies were held at the site, after which the developer's activities commenced.
On June 6, 2003, CAFES-SCNJ filed its Petition for a Declaratory Ruling, N.J.S.A. 52:14B-8, with the State House Commission and the Commissioner seeking a ruling that the Amendment did not exempt the Park-Madison site and requesting a ...