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Friends of Liberty State Park, Inc. v. Jackson

November 23, 2009

FRIENDS OF LIBERTY STATE PARK, INC., APPELLANT,
v.
LISA JACKSON, COMMISSIONER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND JON S. CORZINE, GOVERNOR, STATE OF NEW JERSEY, RESPONDENTS.



On appeal from the New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 30, 2009

Before Judges Fuentes, Gilroy and Simonelli.

Appellant, Friends of Liberty State Park, Inc., is a nonprofit organization dedicated to preserving, protecting, conserving and promoting Liberty State Park, Jersey City (the Park). On May 6, 2005, the Land Use Regulation Program (LURP) in the New Jersey Department of Environmental Protection (DEP) issued a waterfront development Coastal General Permit (CGP) authorizing the construction of the "New Jersey September 11, 2001 Memorial" (Memorial) at the northeastern end of the Park. Appellant appeals from the issuance of the May 6, 2005 CGP. Appellant also appeals from DEP Commissioner Lisa Jackson's letter of July 27, 2006, declining to reconsider the Memorial's design; the State Historic Preservation Office's letter of August 17, 2006, affirming its prior determination supporting the construction permit for the Memorial; and Governor Jon S. Corzine's letter of October 1, 2006, declining to revisit the Memorial's design. For reasons that follow, we dismiss the appeal.

I.

In October 2001, then Acting Governor Donald T. DiFrancesco signed Executive Order #134 (2001), establishing the New Jersey World Trade Center Victims Memorial Commission (the Commission) to develop and recommend a concept for a permanent memorial in honor of the New Jersey victims of the September 11, 2001 attacks. 33 N.J.R. 3710(b) (Nov. 5, 2001). In August 2002, then Governor James E. McGreevey signed Executive Order #29 (2002), establishing a Family and Survivor Memorial Committee (Committee) to review and develop suggestions, plans and designs for the Memorial and submit those recommendations to the Commission. 34 N.J.R. 3409(b) (Oct. 2, 2002).

In December 2003, the New Jersey Department of the Treasury, on behalf of the Memorial's sponsor, the DEP's Division of Parks and Forestry (DPF), issued a request for proposals soliciting conceptual design submissions for the "New Jersey September 11, 2001 Memorial Design Competition."

The Park is comprised of 1212 acres situated along the Hudson River in Jersey City. It opened in 1976 and presently offers hiking and biking trails; a two-mile "Liberty Walk" along the river; a science center; an interpretive center; a marina with 200 berths, a boat launch and a restaurant; a thirty-six acre nature area; picnic areas; fishing areas; playgrounds; and the only ferry service in New Jersey to Ellis Island and the Statue of Liberty.*fn1 Also found in the Park is the Central Railroad of New Jersey Terminal (Terminal), which is on the National and New Jersey Registers of Historic Places along with the Morris Canal Basin that forms the Park's northern boundary.

The Memorial site is 1.6 acres, measuring approximately 345 feet by 210 feet, situated at the northeast end of the Park. To the north of the Memorial site is the Morris Canal Basin; to the east is the Hudson River; to the south is the Terminal; and to the west is a parking lot and a maintained lawn. Except to its south, it is surrounded on all sides by Liberty Walk.

In June 2004, the Memorial Jury, consisting of design professionals, a Liberty State Park representative and members of the Committee, selected the design entitled "Empty Sky," by Frederic Schwartz Architects. The winning design consists of two continuous, parallel, thirty-foot high, 200-foot long brushed stainless steel walls flanking a sixteen-foot wide paved bluestone pathway. The walls, each proportioned to represent one side of the World Trade Center's Twin Towers, channel through a gently-sloped grassy knoll that rises ten feet and gradually returns to the level of the pathway. The names of New Jersey victims will be within reach of visitors in four-inch high engraved lettering on the inner walls.

The bluestone pathway will lead visitors from the parking lot to Liberty Walk and to a view of where the Twin Towers once stood across the river in Manhattan. The walls will be illuminated with high intensity lights along their base and with metal halide lights atop to generate beams of light extending into the sky.

Underground concrete filled steel pipe piles will support two concrete retaining walls that will then support the stainless steel walls, which will be formed by grids of marine-grade stainless steel panels. Beams recovered from the Twin Towers will be placed amid a nearby grove of dogwood trees, and violets (the State flower) would cover the knoll.

A public dedication of the Memorial site and groundbreaking occurred in September 2004. Thereafter, DPF selected Langan Engineering and Environmental Services, Inc. (Langan), as its agent to provide construction administration and consultation.

In September 2004, Langan prepared and submitted an initial Environmental Impact Statement and Assessment (EA) to the DEP, stating that the project would cause only "minor environmental impacts mitigated by appropriate construction and methods." This EA identified the required permits and approvals for the project as including, among other items: 1) an approval from the State Historic Preservation Office (HPO) because of the site's proximity to the Terminal and Morris Canal Basin; and 2) a Waterfront Development Permit from DEP's Land Use and Compliance Division "if existing bulkhead is being impacted in any way."

In early December 2004, the DEP's Office of Permit Coordination and Environmental Review held a pre-application meeting with representatives from Langan and Schwartz Architects. By letter dated December 21, 2004, it determined "that a Coastal General Permit will be required for the project from NJDEP's Land Use Regulation Program instead of an Individual Waterfront Development Permit." The agency also found that the DPF needed to coordinate its activities with: 1) the DEP's Site Remediation Program regarding excavation; and 2) the HPO "as the project advances through the design and construction phases." Finally, it "concur[red] with the finding of the EA that no significant adverse environmental impacts have been identified," and it granted "conditional approval of the project." The DEP published notice of its conditional approval and submission of the EA in its DEP Bulletin on December 29, 2004.

Langan filed a revised EA incorporating the DEP's findings during the pre-application process. This revision identified the permits and approvals required for the project as including a Waterfront Development CGP:

Waterfront Development Permit - A Waterfront Development Permit required if any work proposed below Mean High Water or for construction activities in the upland waterfront development zone which extend a maximum of 500 feet from the Mean High Water line. The WFD Permit is issued by NJDEP's [LURP]. Based on a pre-application meeting with the NJDEP and follow-up discussions, the project will qualify for a coastal general permit (NJAC 7:7-7.17) which allows the construction of recreational facilities at public parks. [(emphasis added).]

It also stated that a review by the DEP's HPO was needed, but formal approval was not required:

Historic Preservation Office Review -- A review and approval by DEP's Historic Preservation Office (HPO) is required for work is [sic] within 1/4 mile of a historic structure. Based on a pre-application meeting with the NJDEP, the HPO review will be done as part of the Waterfront Development Permit review. A formal HPO approval will not be required. [(emphasis added).]

In early February 2005, on the DPF's behalf, Langan submitted an application to LURP for a CGP for "Construction of Recreational Facilities at a Public Park" pursuant to N.J.A.C. 7:7-7.17, that is, a CGP No. 17.*fn2 The application stated that "[t]he proposed project will not have an adverse effect on any of the Special Areas defined [in N.J.A.C.] 7:7E-3 that occur on the project site."

Concurrently with its application, Langan mailed notices of its submission of the application to LURP to all neighboring landowners within 200 feet, as well as to various municipal and county offices. No individual notice was sent to appellant, as none was required. On March 23, 2005, the DEP published a notice of the application in its DEP Bulletin. However, it gave the application a "CAF" number and placed it in the section announcing the submission of CAFRA*fn3 applications, instead of giving it a "WFD" number in the section for Waterfront Development applications.

On May 6, 2005, LURP issued the DPF a CGP No. 17 and Water Qualify Certification for the project. At that time, N.J.A.C. 7:7-7.17 stated in relevant part:

7:7-7.17 Coastal general permit for the construction of recreational facilities at public parks

(a) This coastal general permit [CGP No. 17] authorizes the construction of the following recreational facilities at parks which are publicly owned or controlled for the purposes of public access. Construction of the facilities listed below is acceptable provided that the construction has no adverse impact on any Special Areas defined at N.J.A.C. 7:7E-3 and provided that the facility complies with the specific conditions listed below for each facility.

1. Construction of the following facilities provided they are not located on a dune or in a wetland, except as noted at (a)3 below:

i. Playground equipment including, but not limited to, swings, slides, and jungle gyms;

ii. Picnic tables, benches and grills which are not seasonal;

iii. Gazebos, rain shelters and sheds provided they do not exceed a footprint ...


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