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I/M/O Final Determination by New Jersey Department of Environmental Protection

Superior Court of New Jersey, Appellate Division

May 29, 2013

I/M/O FINAL DETERMINATION BY THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION APPROVING OCEAN COUNTY'S REQUEST TO AMEND ITS RECREATION AND OPEN SPACE INVENTORY.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2013

On appeal from the New Jersey Department of Environmental Protection.

Eastern Environmental Law Center, attorney for appellant Pinelands Preservation Alliance and the New Jersey Conservation Foundation (Aaron Kleinbaum and Alice R. Baker, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent, New Jersey Department of Environmental Protection (Melissa H. Raksa, Assistant Attorney General, of counsel; Joan M. Scatton, Deputy Attorney General, on the brief).

Before Judges Harris and Hayden.

PER CURIAM

Appellants Pinelands Preservation Alliance (the Alliance) and the New Jersey Conservation Foundation (the Foundation) appeal from the May 9, 2011 final determination of the Department of Environmental Protection (the DEP) authorizing the County of Ocean to amend its Recreation and Open Space Inventory (ROSI). Specifically, the DEP approved the County's application to remove the Robert J. Miller Airpark —— comprised of approximately 934 acres divided into ten parcels in Berkeley Township and Lacey Township and used mainly as an airport —— from its ROSI on the ground that the lands had been erroneously listed as parkland. We affirm.

I.

Between 1966 and 1973, the County acquired the lion's share of the land that became the Airpark. Although the precise source of funding for these acquisitions remains somewhat obscure, none came from the DEP's Green Acres Program. The Federal Aviation Administration (the FAA), however, provided federal financial assistance to Ocean County on several occasions for both runway improvements and land acquisition. The only competent evidence[1] that the Green Acres Program was actually involved in the Airpark's assemblage is found in an undated "Robert J. Miller Airpark Economic Development Study, " prepared by the Ocean County Board of Freeholders, which stated:

The southerly portion of the Airpark property located southwest of Dover Forge Road has been designated as a conservation area and will be minimally utilized for low intensity uses. This area which was purchased by the County through the Green Acres Program of the State of New Jersey Department of Environmental Protection, is located entirely within Lacey Township and partially within the Cedar Creek watershed.

Notwithstanding that the Green Acres Program's involvement in the Airpark was unclear, the County included those lands in several of its ROSIs starting in 1979, in compliance with N.J.A.C. 7:36-2.1 ("'Recreation and Open Space Inventory' or 'ROSI' means the listing of all of a local government unit's funded and unfunded parkland[.]").

Starting in 2009, the County opened discussions with staff members of the Green Acres Program regarding an amendment to its ROSI. The County asked for permission to remove portions of the Airpark from the ROSI "as expeditiously as possible" because "[the Airpark] has been an ...


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