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In Re New Jersey Department of Environmental Protection on Behalf of the County of Middlesex

2007 WL 1574403 (N.J. Super. App. Div. 2007) (Unpublished)

GREEN ACRES —Where a municipality follows all procedural rules, including by publishing notices and by holding of public hearings, and the Commissioner of the Department of Environmental Protection, as well as the State House Commission, give their approval, a municipality may exchange municipal land for land within a Green Acres project if the land being taken from the Green Acres project is to be used for a proper public purpose, such as for construction or expansion of a school.

The New Jersey Green Acres Land Acquisition and Recreation Opportunities Act (Green Acres Act) 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 approval from the Commissioner of the Department of Environmental Protection (DEP) and from the State House Commission. Both approved a county application to convey county park land subject to Green Acres to a municipality for use as a high school in exchange for the municipality’s conveyance of vacant land to be added to that park and the municipality’s payment for improvements to the park and other county park. Three non-profit organizations appealed the approvals of this transaction.

The municipality, after considering various sites for the construction of a new high school given the overcrowded current one, concluded the best alternative would be to build a new school adjacent to the existing one in order to reduce the total land required. The approved site was free of environmental constraints and was in a central location within the municipality. The land conveyed back to the county was to add 9% to the park, while the park land ceded would remove 2% of the park. The new lands would be used for nature and horse trails and would conserve an existing habitat. The municipality intended to construct new soccer fields in the park to replace those lost in the land ceded. Public hearings were held on the proposal and both the Commissioner and the State House Commission conditionally approved the county’s application, concluding in a written opinion that all criteria set forth in the Green Acres regulations regarding approval of a conveyance of Green Acres restricted land had been satisfied or would be satisfied.

The Appellate Division noted that the Green Acres legislation conferred broad responsibility upon the Commissioner for administration of the Green Acres program, and so the Court was required to extend substantial deference to the Commissioner’s interpretation and application of the regulations he adopted to discharge this responsibility. The Court also held it was obligated to uphold the agency’s factual findings if those findings were supported by substantial credible evidence in the record.

The Court first noted that the County’s application before the Commissioner included a lengthy summary of alternate sites the municipality had considered before determining that the park was the only feasible site for the proposed school, and that this summary was supplemented by testimony presented at the public hearings. To this point, the Court concluded the not-for-profits failed to demonstrate that the Commissioner’s conclusions regarding the sufficiency of the county’s consideration of alternative sites was arbitrary, capricious or unreasonable. The Court similarly noted that the county’s application included a detailed analysis of the environmental impact to the land from construction of the proposed school, and a separate analysis of the environmental impact of the replacement lands which would have no impact as it would be maintained in their natural state. The Court found this analysis sufficient for the Commissioner to have reasonably relied upon it in his approval.

Generally, the Court concluded that the county’s application was supported by all principal documentation required for approval of a disposal or diversion of Green Acres restricted land such that the State did not abuse its discretion in its approval without consideration of items such as metes and bounds descriptions of the affected properties and title reports for the replacement lands, which the Court found ministerial in nature. The Court stated should any unexpected problems occur with the proposed land transfers, approvals could be revisited. Additionally, the Court found that no abuse of discretion occurred in deferring a determination whether the proposed site was the location of a historical mission settlement pursuant to a specific executive order. The Court also found that the public hearings were timely held after adequate information concerning the proposed transaction was acquired and made public. It also concluded that the municipality’s ordinance to allow land dedicated to the municipality in a residential cluster development to be used for public purposes, such as a school, was consistent with state law, and thus such lands could be conveyed to the county as replacement lands for the site of a new school.


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