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In Re Amendment to Recreation and Open Space Inventory of the City of Plainfield

353 N.J. Super. 310, 802 A.2d 581 (App. Div. 2002)

GREEN ACRES— Once a property, actually then used for park purposes, receives Green Acres funding, even when its listing on the municipality erroneously listed the property on its application the associated Green Acres restrictions cannot be administratively lifted.

A citizen’s group and a national environmental group appealed a decision of the Commissioner of Department of Environmental Protection (DEP) to permit a municipality to remove, from its 1992 Green Acres Recreation and Open Space Inventory (ROSI), a four acre parcel of land which had been made into a public park about ten years earlier. That action “cleared the title of the parcel of any restriction against the use of the park for purposes of commercial development.” The land in question was within the municipality’s central business district. In 1959, it had been declared “blighted” and was the subject of an urban renewal project. In 1962, a renewal plan was adopted, permitting the land to be used for “retail sales, personal and business service establishments, offices,” etc. Despite various efforts, redevelopment did not take place. In 1970, a study was prepared and it concluded that the land would best be suited for commercial purposes, especially office use. In 1976, the municipality endeavored to market the land for commercial development, but that development also did not take place. In 1978, the housing authority, owner of the land, transferred it to the municipality, but despite all further efforts, the site remained undeveloped. In 1989, the municipality reaffirmed the blight declaration and about the same time, the municipality received Green Acres funds to create a recreation area. In connection with the receipt of those funds, the municipality submitted a ROSI in which it listed all “recreation and open space land.” The particular parcel was not listed in the 1989 submission. In 1990, the municipality planned to upgrade the four acres by applying for Urban Enterprise Zone (UEZ) funds. The application was approved and the municipality continued to promote use of the land as a “modern retail, commercial or residential center.” Nonetheless, the municipality, in its UEZ application, also indicated that “[t]he site has been designed in a manner in which items used to upgrade the site are recyclable for reuse on this site for other such park areas once this site is ultimately developed.” Upon receipt of the UEZ funds, the municipality upgraded the four acres by “constructing a gazebo, installing asphalt walkways for jogging and exercise, adding lighting, planting grass, trees, shrubbery and seasonable flowers, upgrading the play area, and landscaping to allow for outdoor events.” In May 1992, it was officially opened to the public as a park. All of the documents executed contemporaneously with the upgrade indicated that it was a temporary measure to attract redevelopers. In 1992, the municipality applied to the Green Acres program for additional money to renovate and refurbish two city playgrounds not part of the four acres. The Green Acres officials inquired whether the four acres should also be inventoried as park land and, after some correspondence, that land was listed on the inventory form. In connection with the relatively minor monetary grant that followed, the municipality agreed that “[n]o other lands presently owned, dedicated or maintained for recreation or conservation purposes ... shall be diverted to a non-compatible use or disposed of without the approval of [the] Commissioner and State Housing Commission.” Additional applications were made in the five subsequent years, but none of those applications listed this four acre site as part of the project to be funded. Over time, the four acres became the center of the municipality’s recreational and cultural life. Nonetheless, the municipality continued its efforts to redevelop the land and its Master Plan continued to call for mixed use development. Eventually, a development project for an office building, two small retail buildings, and a parking deck was approved. Then, as a result of a title search, the municipality learned that the four acre parcel was encumbered with Green Acres restrictions due to its inclusion in a single application for Green Acres funds. It contacted the Green Acres authorities and requested an amendment to the 1992 plan, explaining that it was never intended or designed as parkland and noting that it had not been listed on any subsequent ROSIs. Green Acres agreed with the municipality, but following objections from a citizens group to removal from the ROSI, Green Acres requested that the municipality hold a public hearing. A public hearing was held and subsequently the Commissioner of the DEP issued a final agency decision affirming the municipality’s position that the four acre parcel was not parkland, and, therefore “had been listed in error in 1992 and should not [have been] encumbered with Green Acres restrictions.”

In summary, what had happened was that under an applicable statute, the municipality received a Green Acres grant that did not permit the land to be used for other than recreation and conservation purposes, without the approval of the DEP and the State Housing Commission and, even then, only following a public hearing by the municipality at least one month prior to any approvals. There was no dispute that the municipality applied to the DEP to delete the land from the 1992 ROSI. It held a public hearing and the matter was presented to the DEP. The DEP Commissioner issued a written ruling deleting the land from the ROSI. That was a final agency decision. The Commissioner quoted the five criteria of the applicable delisting statute. One of those criteria had to do with the use of the funds, but the Commissioner declared that such use was “interim” in nature “to approve the appearance of the site and to make it more attractive to developers.” Further, even though the municipality held an opening ceremony after the site was refurbished in 1992, this action was consistent with designation of the site as a redevelopment parcel. The Commissioner also pointed out that listing the site in the 1992 ROSI application was an error. The Court recognized that its review of a final agency decision is a limited one. An appellate court may only reverse the decision of an administrative agency “if it is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole.” On the other hand, the language of the applicable statute was intended to preserve parkland. Therefore, it did not appear that the DEP was empowered to delete Green Acre lands from ROSIs by declaring that the listing of the lands was inaccurate. In the view of the Court, “[a] public body should not be accorded relief” except “in the clearest case of a bona fide inaccuracy in its filed ROSIs for the relevant years.” Therefore, the Court was satisfied that, “contrary to the Commissioner’s ruling, [the municipality] did not prove that it listed” the land in error. The Court believed that the Commissioner should have given more weight to the eight-year history of the use of the land for recreation and conservation purposes. The Court also pointed out that even though other statutes authorized it to redevelop the land for commercial purposes, such authority could not be used to thwart “any commitment it may have made to Green Acres.” In essence, the Court believed that it was “the actual use to which the site was put, not how the site was officially designated, which governed the outcome of the case.” In sum, once listed as falling under Green Acre restrictions, the land could not be removed from that designation.

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