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In re Application of the State of New Jersey Dep't of Environmental Protection

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2007

IN THE MATTER OF APPLICATION OF THE STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ON BEHALF OF THE COUNTY OF MIDDLESEX, FOR STATE HOUSE COMMISSION APPROVAL OF PROPOSED DIVERSION OF APPROXIMATELY 35 ACRES OF PARKLAND FOR THE CONSTRUCTION OF THE MONROE TOWNSHIP HIGH SCHOOL

On appeal from Department of Environmental Protection and State House Commission, Docket No. SHC 1200040.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 13, 2007

Before Judges Skillman, Holston, Jr. and Grall.

The New Jersey Green Acres Land Acquisition and Recreation Opportunities Act (Green Acres Act), N.J.S.A. 13:8A-35 to -55, provides that property acquired with Green Acres funds or held for recreation and conservation purposes at the time Green Acres funding is received cannot be disposed of or diverted to another use without the approval of the Commissioner of the Department of Environmental Protection (DEP) and State House Commission.

N.J.S.A. 13:8A-47(a), (b)(1). The Commissioner and State House Commission approved an application by Middlesex County to convey 35 acres of Thompson Park, a county park subject to this restriction, to Monroe Township to use as the site for construction of a new high school, in exchange for the Township conveying approximately 152 acres of vacant land to the County to be added to Thompson Park and also paying the County $1,127,000 to use for improvements to Thompson Park and other County parks. Three non-profit organizations filed this appeal from the approvals of this transaction.

Monroe Township's existing high school is already overcrowded, and the Township projects that the school district will be growing by 300 to 350 students per year in the foreseeable future. Since 2001, the Township has sought to expand or replace the high school, and in December 2003, Township voters approved an $82.9 million bond referendum to build a new school at an unspecified location.

To find a suitable location, the Board of Education created an Ad Hoc Committee, consisting of members of the Board, administration, staff, Township officials, parents, and the community at large. The Committee sought to identify suitable sites, considering factors such as buildable acres, location, environmental constraints, availability of water and sewer service, acquisition costs and availability.

The Committee considered twelve sites. Four sites were privately owned, and the Township subsequently approved them for residential development. The Committee rejected four other sites based on environmental constraints and one site because it was not centrally located and lacked sewer and water service. One site was rejected because of high tension power lines and a high pressure gas main. Another site had an active railroad line crossing it, and a further site was subject to Green Acres farmland preservation restrictions.

The Committee eventually concluded that the best alternative would be to establish a new high school adjacent to the existing one, which could use existing athletic facilities, and thereby reduce the total amount of land required. Under this proposal, the old high school will become a middle school, and the middle school will become an elementary school for 1400 students.

The proposed site consists of approximately 35 acres that are now part of Thompson Park. It presently contains six soccer fields, open space, a small stone parking area, and about twenty trees. The site is free of environmental constraints, such as wetlands or farming operations. It is in a central location in the Township, near the municipal complex containing the police department, fire department, emergency services, library and administration building.

The proposal calls for replacing the approximately 35 acres of County parkland that will be used for the new high school with approximately 152 wooded acres that are contiguous to Thompson Park. The 35 acres represent slightly more than 2% of the existing 1700-acre Thompson Park, while the 152 acres the Township will convey to the County will add approximately 9% to the park. These replacement lands will be used for nature and horse trails and will conserve existing habitat. The Township will construct six new soccer fields and a lighted tournament soccer field elsewhere in Thompson Park to replace the six soccer fields located on the 35 acres proposed to be used for the new high school.

In the fall of 2005, the Commissioner authorized Middlesex County to conduct public hearings on the proposal. Two days of hearings were held during which substantial evidence was presented regarding the regulatory criteria for approval of a conveyance of land subject to Green Acres restrictions, including whether the diversion of Green Acres restricted land will provide a significant public benefit, whether there are feasible alternatives to the diversion of such land, and whether the local unit will compensate for the land with replacement land or money dedicated for Green Acres purposes. N.J.A.C. 7:36-21.1.*fn1

On December 29, 2005, the Commissioner conditionally approved the County's application. The Commissioner issued a written opinion which concluded that all the criteria set forth in the DEP regulations for approval of a conveyance of Green Acres restricted land had been satisfied or would be satisfied once the conditions of the approval had been fulfilled. On January 5, 2006, the State House Commission also conditionally approved the application.

Appellants argue that (1) the County's application upon which the approvals were based was incomplete and inadequate; (2) it was inappropriate for the Commissioner and State House Commission to grant conditional approvals; (3) it was inappropriate for the Commissioner and Commission to defer a determination of whether the site of the proposed school is the historic location of the Bethel Mission Settlement until completion of the review process required by Executive Order 215; (4) the public hearings on the application were conducted prematurely; (5) the proposed monetary compensation to make-up the difference in value between the 35 acres to be conveyed to Monroe Township for the new school and the 152 acres of replacement land the Township will convey to the County is inadequate; (6) the lands the Township proposes to convey to the County are already protected open space and therefore cannot qualify as replacement lands because they were conveyed to the Township by developers to preserve as open space as part of residential cluster developments; and (7) those lands cannot be used as replacement lands because the Township is already using them for recreational and conservation purposes, and therefore, they are subject to Green Acres restrictions prohibiting use for any other purpose. We reject these arguments and affirm the Commissioner's and State House Commission's approvals.

Before discussing appellants' individual arguments, we note that those arguments are based primarily on procedural and substantive regulations the DEP adopted to implement the Green Acres program. The procedures that govern an application for approval of the disposal or diversion of Green Acres restricted land and the substantive standards are contained in administrative regulations adopted by the Commissioner in accordance with N.J.S.A. 13:8A-53(c),*fn2 which delegates broad authority to the Commissioner to "prescribe rules and regulations to implement any provisions of [the Green Acres Act.]"

Since the Legislature has conferred broad responsibility upon the Commissioner for administration of the Green Acres program, we are required to extend substantial deference to the Commissioner's interpretation and application of the regulations he has adopted to discharge this responsibility. See In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). In addition, we must uphold the agency's factual findings regarding an applicant's satisfaction of the applicable regulatory standards, if those findings are supported by substantial credible evidence in the record. See Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006).

I.

Appellants' first two arguments are based on procedural regulations that prescribe the contents of an application for approval of a disposal or diversion of Green Acres restricted land. Those regulations require an applicant to submit:

A no-feasible alternatives analysis that identifies, describes, and explains why alternative plans, including a no-build alternative and all reasonable alternatives using both public and private lands, will not satisfy the compelling public need for or significant public benefit from the proposed disposal or diversion of funded or unfunded parkland. [N.J.A.C. 7:36-21.2(a)(2).]

The regulations also require an application to provide:

A description of the replacement land, or, in lieu of replacement land, the amount of money to be deposited in a dedicated account for the acquisition of land for recreation and conservation purposes, by which the local unit or nonprofit will compensate for the proposed disposal or diversion. [N.J.A.C. 7:36-21.2(a)(3).]

The regulations also require an applicant to submit various additional materials, including the following documentation pertinent to appellants' arguments:

1. An appraisal of the parkland proposed to be disposed of or diverted and an appraisal of the replacement land proposed as compensation . . .;

2. A title report for the proposed replacement land, if necessary, to determine existing restrictions, encumbrances, easements, liens, or other factors which may affect the value of the land;

3. A copy of an environmental assessment report based on an outline provided by Green Acres which describes the existing environmental features of the land proposed for disposal or diversion and of the replacement land; and identifies and compares alternative replacement lands;

5. Two copies of a land survey plan for the parcel of parkland proposed to be disposed of or diverted and two copies of a land survey plan for the proposed replacement land . . .;

6. Two copies of the metes and bounds description, stating acreage, corresponding to the survey required under (a)5 above, submitted on the surveyor's letterhead, and signed and sealed by the surveyor; [N.J.A.C. 7:36-21.4(a).]

Appellants argue that the County's application was incomplete because it contained insufficient information and supporting documentation concerning certain items required under those regulations, such as the required alternative sites analysis and environmental assessments, and did not include certain other items, such as metes and bounds descriptions of the proposed high school site and replacement lands and title reports for the replacement lands. In support of this argument, appellants rely upon a September 19, 2005 memorandum from a Green Acres staff person, which raised questions concerning the adequacy of the Township's consideration of alternative sites for the proposed high school and certain other parts of the County's application.

A.

The County's application included a lengthy summary of the alternative sites the Township considered before determining that the Thompson Park site was the only feasible site for the proposed new high school. This summary was supplemented by testimony presented at the public hearings.

The Commissioner outlined this evidence in his final decision approving the County's application:

Since 2001, Monroe Township has been exploring its options for expansion or replacement of its high school through the Ad Hoc Committee on Growth and Facilities ("Committee"). After its original recommendation to build a new high school on 112 acres on Applegarth Road was defeated by referendum in 2002, the Committee reconvened and recommended the construction of a new high school on the 35-acre parkland site. The 365,000 square foot, three-story building proposed for this site is expected to serve 1800 students when it first opens, but will accommodate up to 2700 students (a fifty percent increase from the current high school's maximum enrollment).

In reevaluating its options after the defeat of the September 2002 referendum, the Committee considered twelve alternative sites (including the disposal parcel). The factors considered by the Committee in evaluating these sites were: buildable acres, location, environmental constraints and impacts, availability of water and sewer, acquisition costs and availability of the property. Four of the twelve sites were privately owned at the time of the Committee's reevaluation and were subsequently granted approvals by the Township for residential development. The Committee rejected four more sites based on environmental constraints.

Of the remaining four sites, one was rejected for lack of a central location and lack of sewer and water service. Another site is one of the offered replacement parcels (77 acres) and contains a heavily wooded stream corridor. Based on environmental factors, including site constraints, the Committee recommended using this site as replacement land rather than as the school site. A third site is currently owned by the State but is not considered to be available because it is scheduled to be transferred to the NJDEP for preservation as open space. Given the central location, lack of environmental constraints, availability of sewer and water service and cost considerations, the Committee recommended the Thompson Park site as the preferred alternative.

The Commissioner obviously found the County's submission regarding the alternative sites analysis to be complete and its consideration of those alternatives to be sufficient. Although a DEP Green Acres staff member criticized this alternative sites analysis, the Green Acres statute confers ultimate decision-making authority upon the Commissioner. We conclude that appellants have failed to demonstrate that the Commissioner's conclusions regarding the sufficiency of the Committee's consideration of alternative sites was arbitrary, capricious or unreasonable.

B.

The County's application also included a detailed analysis of the environmental impact of use of the 35-acre site in Thompson Park for construction of a high school:

I. Introduction

Monroe Township has requested the diversion of a thirty-five acre portion of Lot 1.01 in Block 59. The area is situated in the southwest corner of Thompson Park and is adjacent to Schoolhouse Road and Perrineville Road. West of this site is the Monroe Township Municipal Complex where the Administration Building, Police Department, Emergency Services and Library are located. South of the site is the current Monroe Township High School complex.

II. Existing Conditions

Block 59, Lot 1.01 has frontage on both Perrineville Road and Schoolhouse Road. The site contains a grassy knoll area, free of any permanent structures and contains fewer than twenty shade trees along the Perrineville Road right of way. In terms of use, the thirty-five acres currently accommodates six standard size soccer fields. There are no environmental concerns related to the location and both water and sewer service is available at this site.

A. Vegetation

As previously mentioned, the vast majority of the area is currently a grass field used for soccer. The lot is free of vegetation with the exception of a row of shade trees in the Perrineville Road ROW and a line of shrubs near the Schoolhouse Road ROW.

B. Soils

The USDA/SCS Soil Survey for Middlesex County depicts WIA (Woodstown loam, 0 to 2 percent slopes) and SIB (Sassafras loam, 2 to 5 percent slopes) for the entire parcel. A majority of the site being SIB, the soils are described, as having few or no limitations for urban uses, a slow runoff period and the erosion hazard is slight. The small section of WIA soils is generally described as being moderately well drained, with occasional seasonal high water table, but like the adjoining soils has a slow runoff period and slight erosion hazard.

C. Topography

As can be anticipated, since the site is currently used as athletic fields, the land surface is predominately flat with only very gentle sloping.

D. Climate

Middlesex County has a moderate Climate with hot summers (June, July and August average daily maximum of 82, 85 and 83 degrees, respectively) and cold during winter months (average daily temperature between December and February is about 40 degrees, USDA Soil Survey, 1987). Average annual precipitation (rainfall equivalent) is 44".

E. Cultural Resources/Manmade Structures

This property does not contain any unique or special cultural resources. It in no way impacts the Bethel Mission Settlement located elsewhere in Thompson Park.

III. Environmental Impacts

In considering that this property has long been parkland and historically been grass fields the property is largely devoid of trees or shrubs, it is anticipated that the impacts to the environment will be only minimal.

A. Air Quality Impacts

Within the proposed project, the construction of the high school and the required parking will create temporary air pollutions, generated by construction equipment. While difficult to quantify, the amount of air pollution generated during the construction phase of this project would have less of an impact than regular commercial or residential development because there is no road infrastructure required for the high school. Additionally, as the site is flat, minimal grading is necessary. Once completed, the source of generated air pollution will be predominantly from automobiles, buses and HVAC units.

B. Noise

The construction phase of the project will create some noise certainly above the levels of the relatively quiet surrounding parkland, but as with the air pollution concerns, the noise relative to the construction phase will be similar to normally accepted construction levels. Once completed, the noise generated by the school will be no greater than the current facility located opposite the site on Perrineville and Schoolhouse Roads.

C. Wildlife

While a large variety of wildlife inhabits Thompson Park, due to the nature of this thirty-five acre portion, few trees and open space, only a limited variety of fauna was observed including some birds, geese, squirrels and rabbits.

D. Water Quality

In the current capacity, drainage on the site is exceptional. Prior to construction, the Freehold Soil Conservation District will require construction plan certification. The plan certification requires all disturbed ground to be stabilized, silt fence installation along clearing or grading limits and that the project be regularly inspected during construction by a representative of the District to insure compliance with the approved plan. While adherence to the plan typically will not reduce 100% of all surface erosion/ sedimentation during construction, it is expected that the final outcome of the completed project will represent no additional detriment than currently exists.

E. Freshwater Wetlands

No wetlands are observed on the site, nor does the site lie in a flood plain.

IV. Conclusion

The primary environmental impacts that will result from the proposed high school on Block 59, Lot 1.01 will be the removal of some habitat for small rodents and birds and small amount of waterborne pollutants resulting from driveway and parking lot runoff.

In addition, the County's application included a separate analysis of the environmental impact of the proposed transaction upon the replacement lands, which concluded that there will be no impact because those lands will be maintained in their present natural state.

Although the Commissioner's decision did not comment specifically upon the analysis of the environmental impacts of the proposed use of the 35-acre section of Thompson Park as the site for the new high school and the transfer to the County of the replacement lands to be added to Thompson Park, he obviously found this part of the County's submission to be complete and sufficient. The DEP is in the best position to determine the adequacy of the analysis of environmental impacts. See In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 259-60 (App. Div. 2002). Appellants have failed to overcome the presumption of reasonableness of the Commissioner's decision regarding those impacts.

II.

The Commissioner addressed the required items that were not submitted with the County's application, such as metes and bounds descriptions of the proposed high school site and replacement lands and title reports for the replacement lands, by conditioning his approval upon the subsequent submission of those items. The State House Commission's approval is subject to these same conditions. Appellants argue that the County was required under the applicable regulations to submit these items with its application and that the Commissioner and State House Commission lack authority to grant approvals conditioned on subsequent submission of documentation that did not accompany the application.

An administrative agency has broad discretion in determining how to discharge its statutory responsibilities. Crema v. N.J. Dep't of Envtl. Prot., 94 N.J. 286, 299 (1983). In appropriate circumstances, an agency may exercise this discretion by granting a regulatory approval that is conditioned upon an applicant submitting additional materials, or obtaining the approval of another regulatory agency, before taking the action authorized by that approval. See In re Grant of the Charter Sch. Application of Englewood on Palisades Charter Sch., 164 N.J. 316, 336-38 (2000); Pub. Interest Research Group v. State, 152 N.J. Super. 191, 208-15 (App. Div.), certif. denied, 75 N.J. 538 (1977).

In support of their argument that the approval of the County's application to convey 35 acres of Thompson Park to Monroe Township to use as the site of a new high school was invalid because it was conditioned upon the County submitting additional documentation, appellants rely primarily upon Crema, supra, which held that the DEP does not have authority under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 to -21, to grant conceptual approval to a proposed development project. 94 N.J. at 298. However, in reaching this conclusion, the Court specifically distinguished between a conceptual approval and a conditional permit, under which an applicant is authorized to construct a facility "subject to the condition that specific additional criteria be satisfied before the commencement of actual construction[,]" id. at 296-97, which we had held to be valid in Public Interest Research Group, supra, 152 N.J. Super. at 208-15.

In this case, the County's application was supported by all the principal documentation required for approval of a disposal or diversion of Green Acres restricted land, including a description of the significant public benefits that will be achieved by the construction of the new high school, an evaluation of the alternative sites that were considered in selecting the school's location, an analysis of the environmental impacts of both the construction of the new school and conveyance of the replacement lands to the County, and appraisals supporting the agreed compensation for the difference between the value of the school site and replacement lands. The DEP staff's review of the omitted items, such as the metes and bounds descriptions of the affected properties and the title reports for the replacement lands, should be ministerial in nature, and if that review reveals any unexpected problems with the proposed transaction between the Township and County, the Commissioner and State House Commission can revisit their approvals. Therefore, the Commissioner and Commission did not abuse their discretion in approving the County's application, conditioned upon the County's subsequent submission of this documentation.

III.

Appellants also challenge the part of the conditional approvals that require the Township to "complete the [Executive Order] 215 process for the proposed [high school] site prior to obtaining State funding for site preparation or construction work[.]" Appellants argue that it was inappropriate for the Commissioner and State House Commission to defer a determination of whether the site of the proposed high school is the historic location of the Bethel Mission Settlement until the review required under this Executive Order.

Executive Order 215, issued by Governor Kean in 1989, requires an environmental assessment or environmental impact statement in connection with certain major construction projects undertaken by State agencies or receiving substantial State funding. The Executive Order requires such an environmental assessment or impact statement, which may include "how the project could affect historic, archaeological, or cultural resources on or eligible for the State Register of Historic Places," to be completed "prior to awarding any financial assistance for the commencement of site preparation and/or construction activity."

The Commissioner specifically addressed appellants' argument that the proposed high school site was the location of the Bethel Mission Settlement in his decision approving the County's application:

Among other issues, opponents of the proposed disposal contend that the Thompson Park site should not be used for the new high school because it is also the site of the historic Bethel Mission Settlement. The County and the Township believe, based on the opinion of the Monroe Township historian, that the proposed disposal site is not the site of the historic settlement. Because the high school project will be receiving substantial State funding through the New Jersey Department of Education, a full analysis of this issue will be required as part of the environmental assessment or environmental impact statement to be undertaken for this project under Executive Order #215 (1989) ("E.O. 215"). Since the NJDEP is responsible for reviewing the E.O. 215 assessments and statements, it did not require further investigation of the issue as part of this application. Under E.O. 215, the Department's review of the assessment or statement must be completed before the Department of Education can award financial assistance to the Township for the commencement of site preparation and/or construction activity on the proposed disposal parcel. Because the cost of the high school project is expected to increase over the original estimate of $82.9 million it is not clear whether the anticipated State contribution (originally estimated at $15 million) will trigger the 20 percent State funding threshold in E.O. 215.

However, the County and Township advise that they intend to complete the E.O. 215 process regardless of whether it is determined to be required for this project.

We conclude that the Commissioner did not abuse his discretion in deferring a determination whether the proposed site of the high school was the location of the Bethel Mission Settlement until the review required by Executive Order 215 is completed.

IV.

Appellants also argue that the public hearings on the County's application were conducted prematurely because the application did not contain adequate information concerning the proposed transaction with the Township.

The requirement of a public hearing regarding an application to convey Green Acres restricted land is imposed by N.J.A.C. 7:36-21.4(b), which provides that a "local unit" that proposes to dispose of or divert such land "shall hold a public hearing in the local unit in which the parkland proposed to be disposed of or diverted is located to obtain public comment on the application."

Appellants' arguments in support of their claim that the public hearings were conducted prematurely substantially mirror the arguments presented in support of their claim that the County's application was incomplete, which we discussed at length in section I of this opinion. Therefore, we reject these arguments substantially for the reasons previously set forth. We are satisfied that the County's application provided sufficient information regarding the part of Thompson Park to be conveyed to the Township, the replacement lands the Township will convey to the County in exchange for that part of the park, the Township's consideration of alternative sites for the high school, and the environmental impacts of the proposed transaction, to enable the public to submit informed comments regarding this proposal at the public hearings. We are also satisfied that the hearings were conducted in conformity with the applicable provisions of the Local Lands and Building Law, N.J.S.A. 40A:12-13.5 to -13.8.

V.

Appellants argue that the valuations the DEP placed on the high school site and replacement lands were incorrect and as a result the $1,127,000 that the DEP required the Township to pay the County does not adequately compensate for the difference in value.

The pertinent part of the administrative regulations applicable to this argument provides:

(a) A local unit . . . shall propose to compensate for the disposal or diversion of funded or unfunded parkland by replacing the parkland with lands of equal or greater market value and of reasonably equivalent size, quality, location, and usefulness for recreation and conservation purposes. However, if no such lands are available, the local unit . . .

1. [S]hall deposit into a dedicated account an amount of money at least equal to the market value of the parkland to be disposed of or diverted[.] [N.J.A.C. 7:36-21.3(a)(1).]

This regulation implements the requirements of N.J.S.A. 13:8C-32(b)(1).

In support of its application, the County submitted two appraisals of the proposed school site and replacement lands. The DEP then conducted its own evaluation of those appraisals. The Supervisor of the DEP Appraisal and Review Section essentially agreed with the County's appraisal of the school site. However, she placed a significantly lower value on the replacement lands. As a result, the Township was required to pay $1,127,000 as compensation for the difference in value between the school site and replacement lands.

Appellants did not submit separate appraisals. However, they argue that the appraisals the County submitted were deficient in various respects, such as failing to take into account an easement across one of the replacement lands and assuming without documentary proof that the Township has good title to those lands.

Appellants' claim that the appraisers did not consider the easement across one of the replacement lands is not supported by any evidence in the record. Although the valuations do assume that the Township has good title to the replacement lands, one of the conditions of the Commissioner's and State House Commission's approvals of the transaction between the Township and County is "completion of title and survey work, including preparation of metes and bounds descriptions, for the disposal parcel and replacement parcels, and approval of these submissions by the Department." Consequently, if the title work reveals a defect in the Township's title to the replacement lands or the survey work indicates that those lands are significantly smaller than the appraisers assumed, there would have to be an adjustment in the compensation the Township will pay the County. However, based on the existing record, appellants have not shown that the DEP's appraisals were unreasonable.

VI.

Appellants argue that the land the Township proposes to convey to the County in exchange for the high school site is already protected open space because developers conveyed it to the Township to preserve as open space as part of a residential cluster development.

The Township's zoning ordinance under which those conveyances were made defines a "cluster development" as:

[A] development of single-family detached dwellings which will preserve desirable open spaces, conserve floodplains, wetlands, and farmlands, provide open space recreational parks and lands for other public or quasi- public purposes compatible with residential uses by permitting a reduction of lot size and the application of certain other regulations hereinafter stated without increasing the number of lots, i.e., the gross density, in the total areas to be developed. [Monroe Twp., N.J., Code § 108-6.8(I)(1) (a)(2002)(emphasis added).]

The ordinance further provides that land acquired in this manner may be used for "school sites" and "rights-of-way required for the health and safety of the public. . . ." Monroe Twp., N.J., Code § 108-6.8(I)(1)(d)(5)(2002).

Appellants concede that land that can be used for such purposes could be conveyed as replacement land. However, they argue that the Township ordinances authorizing those uses violate the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99. Appellants rely upon the MLUL's definition of "open space" as:

[A]ny parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space; provided that such areas may be improved with only those buildings, structures, streets and offstreet parking and other improvements that are designed to be incidental to the natural openness of the land. [N.J.S.A. 40:55D-5.]

Appellants contend that, under this definition, land dedicated as "open space" under a residential cluster plan may not be used as a site for construction of a school because such a use would not be "incidental to the natural openness of the preserved land."

However, the section of the MLUL upon which appellants rely is purely a definitional section; it does not impose any substantive limitation upon the uses a municipality may make of land dedicated to the municipality as part of a residential cluster development.

The only substantive section of the MLUL appellants cite in support of this argument is N.J.S.A. 40:55D-43(a), which provides in pertinent part:

An ordinance pursuant to this article permitting planned unit development, planned unit residential development or residential cluster may provide that the municipality . . . may, at any time and from time to time, accept the dedication of land . . . for public use and maintenance, but the ordinance shall not require, as a condition of the approval of a planned development, that land proposed to be set aside for common open space be dedicated or made available to public use. [Emphasis added.]

This section does not limit the use of land dedicated to a municipality in a residential cluster to the maintenance of public open space. Instead, by its plain terms, N.J.S.A. 40:55D-43(a) authorizes a municipality to accept a "dedication of land . . . for public use and maintenance." Although the MLUL does not contain any definition of "public use," it contains a definition of "public areas," which includes "sites for schools and other public buildings and structures."

N.J.S.A. 40:55D-6. We conclude that the term "public use" in N.J.S.A. 40:55D-43(a) should be similarly construed to include schools and other public buildings.

Appellants focus upon the final clause of the first sentence of N.J.S.A. 40:55D-43(a), which states:

[B]ut the ordinance shall not require, as a condition of the approval of a planned development, that land proposed to be set aside for common open space be dedicated or made available to public use.

This limitation only applies to a "planned development," and it is unclear whether the replacement lands were dedicated to the municipality as a condition of approval of a planned unit residential development or as a component of a residential cluster development that was not approved as a planned development.

However, even if the dedications of those lands were a condition of approval of a "planned unit residential development," the MLUL defines such a development as:

[A]n area with a specified minimum contiguous or noncontiguous acreage of five acres or more to be developed as a single entity according to a plan containing one or more residential clusters, which may include appropriate commercial, or public or quasi-public uses all primarily for the benefit of the residential development. [N.J.S.A. 40:55D-6 (emphasis added).]

Thus, the definition of "planned unit residential development" recognizes that a municipality may require the dedication of land for "public or quasi-public uses." The only limitation the part of N.J.S.A. 40:55D-43(a) relied upon by appellants places upon a municipality is that it may not require "land proposed to be set aside for common open space" to be dedicated to the municipality. This limitation preserves the right of a developer, as spelled out in detail in the remainder of N.J.S.A. 40:55D-43(a), (b) and (c), to establish "[a private] organization for the ownership and maintenance of any open space for the benefit of owners or residents of the development[s][.]" However, this limitation does not apply to a dedication of land in a residential cluster for "public use and maintenance[,]" which the first part of the first sentence of N.J.S.A. 40:55D-43(a) expressly authorizes.

Therefore, we conclude that the Township ordinance that allows land dedicated to the municipality in a residential cluster development to be used for public purposes, such as a school, is consistent with the MLUL, and thus such lands may be conveyed to the County as replacement lands for the site of the new school.

VII.

Finally, appellants argue that the land dedicated to the Township by the developers of the residential cluster for open space and public uses cannot be used as replacement land for the 35-acre site in Thompson Park on which the Township proposes to construct the new high school because that land is already subject to Green Acres restrictions. Appellants base this argument on N.J.S.A. 13:8A-47(b)(1), which requires the Commissioner's and State House Commission's approval to "dispose of or divert to a use for other than recreation and conservation purposes any lands held by such local unit for such purposes . . . ." Appellants also base this argument on N.J.A.C. 7:36-21.3(d), which provides in pertinent part:

[A] local unit . . . shall not propose to compensate for the disposal or diversion of funded or unfunded parkland by replacing the parkland with land already subject to Green Acres restrictions.

Appellants contend that the Township has accepted Green Acres funding after acquiring the replacement lands and because those lands have been used as open space since their acquisition, they are already subject to Green Acres restrictions.

However, those restrictions do not apply to all vacant land owned by a municipality. By the plain terms of N.J.S.A. 13:8A-47(b), those restrictions apply only to land held by a local unit of government for "recreation and conservation purposes[.]" Under this statutory standard, land is not subject to Green Acres restrictions "if it is merely casually 'used' by the public [for recreation or conservation purposes] without any assistance, permission, or even perhaps, without awareness of such use, by officials of the municipality." Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 217 (1991). For the restrictions to apply, land must "[have] been actually used for such purposes with the condonation or authorization of the municipality." Ibid. The determination whether there has been "such actual, approved use" of land for recreation and conservation purposes requires an "examination of all relevant facts concerning whether a municipality was aware of such use, whether it supported and encouraged the use, and whether the municipality had taken any official action to allow the property to be used for such purposes." Ibid. Moreover, because the Legislature has entrusted the DEP with responsibility for administration of the Green Acres Program, our review of the DEP's decision that land is not subject to Green Acres restrictions is limited to determining whether that decision "is arbitrary, capricious or unreasonable or . . . is not supported by credible evidence in the record as a whole." In re Amendment to Recreation & Open Space Inventory of Plainfield, 353 N.J. Super. 310, 327 (App. Div. 2002).

Appellants failed to present any evidence that the replacement lands the Township proposes to convey to the County have been "actually used for [recreation and conservation] purposes with the condonation or authorization of the municipality." Cedar Cove, supra, 122 N.J. at 217. Instead, the replacement lands appear to be simply vacant, undeveloped lands which the municipality has not put to any active use. Moreover, the DEP appraisals of those lands, which the Commissioner adopted, appear to have been based on the assumption that they were not subject to Green Acres restrictions. Therefore, we sustain the Commissioner's decision that those lands can be conveyed to the County as replacement lands for the school site.

Affirmed.


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