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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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