IN THE MATTER OF THE CERTIFICATE OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION GRANTING PARTIAL RELEASE OFCONSERVATION RESTRICTIONS(DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE STATEHOUSE COMMISSION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2316-10T2
IN THE MATTER OF THE
CERTIFICATE OF THE DEPARTMENT
OF ENVIRONMENTAL PROTECTION
GRANTING PARTIAL RELEASE OF
CONSERVATION RESTRICTIONS.
______________________________
Argued March 22, 2017 – Decided July 31, 2017
Before Judges Simonelli, Carroll and Gooden
Brown.
On appeal from the New Jersey Department of
Environmental Protection and the State House
Commission, Docket No. SHC 1531003 (Amended).
Renée Steinhagen argued the cause for
appellants Pinelands Preservation Alliance,
New Jersey Conservation Foundation and New
Jersey Environmental Lobby (Eastern
Environmental Law Center, and New Jersey
Appleseed PILC, attorneys; Aaron Kleinbaum and
Ms. Steinhagen, of counsel and on the briefs).
Joan M. Scatton, Deputy Attorney General,
argued the cause for respondents New Jersey
Department of Environmental Protection and
State House Commission (Christopher S.
Porrino, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Ms. Scatton, on the brief).
PER CURIAM
In this matter, appellants Pinelands Preservation Alliance,
New Jersey Conservation Foundation, and New Jersey Environmental
Lobby (collectively, appellants) opposed the proposed
redevelopment of a closed and capped former landfill located in
the Township of Stafford (Stafford) into a solar energy facility.
There is a recorded conservation restriction on the property under
the Conservation Restrictions and Historic Preservation
Restriction Act (Preservation Act), N.J.S.A. 13:8B-1 to -9. The
Preservation Act prohibits the release of a recorded conservation
restriction, in whole or in part, without approval and certificates
issued by the Commissioner of the New Jersey Department of
Environmental Protection (DEP). N.J.S.A. 13:8B-6.
There are also restrictions on the property under the New
Jersey Green Acres Land Acquisition and Recreation Opportunities
Act (Green Acres Act), N.J.S.A. 13:8A-35 to -55, and Garden State
Preservation Trust Act (GSPTA), N.J.S.A. 13:8C-1 to -42. Both the
Green Acres Act and the GSPTA prohibit property held by a
municipality for conservation purposes to be disposed of or
diverted to another purpose without approvals by the Commissioner
and State House Commission (SHC). N.J.S.A. 13:8A-47(b)(1);
N.J.S.A. 13:8C-32(b)(1).
The GSPTA also prohibits the property from being conveyed for
a use other than conservation purposes without the Commissioner's
and the SHC's approvals. N.J.S.A. 13:8C-32(b)(1). The GSPTA
further prohibits granting the approvals unless the municipality
2 A-2316-10T2
agrees to replace the property "with lands of equal or greater
fair market value and of reasonably equivalent size, quality,
location, and usefulness for . . . conservation purposes, as
approved by the [C]ommissioner," or "pay an amount equal to or
greater than the fair market value of the lands, as determined by
the [SHC]." Ibid.
This appeal concerns the SHC's October 23, 2014 approval of
Stafford's amended diversion application to lease a portion of the
landfill site to a redeveloper to install renewable energy
facilities, and DEP's December 1, 2015 approval and issuance of
an amended certificate granting partial release of the
conservation restrictions to accommodate the project. For the
reasons that follow, we affirm.
I.
Stafford's Redevelopment Plan
for the Stafford Business Park
In 2005, Stafford adopted a redevelopment plan pursuant to
the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -
49, to construct the Stafford Business Park (Business Park), an
approximately 370-acre mixed-use brownfield redevelopment project
located within the Pinelands Regional Growth Area of the Pinelands
National Reserve in Ocean County. Stafford proposed commercial,
residential, and government component uses on the site.
3 A-2316-10T2
Two abandoned municipal landfills occupied portions of the
site. The Old Stafford Township Landfill (Old Landfill), which
operated from 1958 to 1970, was located on approximately twenty-
five acres on the eastern side of the proposed Business Park.
Relevant here is the Stafford Township Landfill (Landfill), which
operated from 1970 to 1983, and was located on approximately fifty-
five acres on the western side of the proposed Business Park.
In 2005, both landfills were still leaching hazardous
chemicals into the surface waters and groundwater. Pursuant to a
redevelopment plan, Stafford proposed closing both landfills in
accordance with the regulations governing landfill closure and
post-closure care in the Pinelands, N.J.A.C. 7:26-2A.9 and
N.J.A.C. 7:50-6.75. Specifically, Stafford proposed excavating
and remediating all buried waste at the Old Landfill, reusing any
non-hazardous waste to close the Landfill, and constructing an
impermeable cap over the Landfill.
Stafford engaged a redeveloper for the project, Walters Group
(Walters), and submitted a redevelopment plan to the New Jersey
Pinelands Commission (Pinelands Commission) for compliance review
and approval under the Pinelands Comprehensive Management Plan
(Pinelands CMP), N.J.A.C. 7:50-1.1 to -10.35. The Pinelands
Commission determined that Stafford's landfill plan was
inconsistent with the Pinelands CMP's minimum requirements for
4 A-2316-10T2
wetland buffers (which are not at issue here), and threatened and
endangered (T&E) plants and animal species, including the Northern
Pine Snake (which are at issue here).
To bring Stafford's plan into compliance with the Pinelands
CMP, in 2006, the Pinelands Commission, Stafford, and Ocean County
entered into a memorandum of agreement (the 2006 MOA). Section
VI(A)(15) required Stafford to: (1) execute a conservation
restriction against future development so that the Landfill site
of 59.593 acres and other open space areas remain undeveloped open
space in perpetuity; (2) incorporate low impact design measures
and green building design features and techniques throughout the
Business Park; and (3) submit a species management plan designed
and implemented to protect T&E species during the project and
reestablish them afterwards on or near the site or at other
appropriate areas designated by the Pinelands Commission and
NJDEP.
In addition, in order to provide an equivalent level of
protection of the Pinelands resources, Section VI(A)(14) required
Stafford
to purchase and deed restrict against future
development at least 570 acres of land (at
least three times the forested lands to be
disturbed as a result of the implementation
of the [c]losure and [r]edevelopment [p]lans)
in the [f]orest [a]rea [of the Pinelands], a
portion of which will be located within the
5 A-2316-10T2
Mill Creek drainage area to offset for
wetlands impacts, and the remainder of which
will constitute suitable [Northern Pine Snake]
habitat.
The 2006 MOA also required Ocean County to purchase seventy-five
acres of land that constituted suitable habitat for the Northern
Pine Snake as part of its open space acquisition program. The
2006 MOA did not mention solar or any other renewable energy
facilities or services.
The Conservation Restriction
As required by the 2006 MOA, on December 11, 2006, Stafford
recorded a Declaration of Covenants and Restrictions, placing a
conservation restriction on the portion of the Business Park that
included the Landfill (the conservation restriction). The stated
purposes of the conservation restriction were:
a. that the [r]estricted [a]rea . . . be
protected in its natural, scenic, open and
existing state, in perpetuity, subject only
to the specific rights reserved to [Stafford]
herein;
b. that the natural features of the
[r]estricted [a]rea shall be respected and
preserved to the maximum extent consistent
with [Stafford's] exercise of the rights
expressly reserved to [Stafford] . . .
[herein]; and
c. that the [r]estricted [a]rea be forever
protected and preserved in its natural,
scenic, open and existing state free from all
activities that might damage, compromise or
interfere with the ecological diversity,
6 A-2316-10T2
natural beauty or resource quality, or with
the natural processes occurring therein[.]
The conservation restriction provided
that [Stafford's] [p]roperty shall be held,
transferred, sold, conveyed, leased and
occupied subject to the following covenants,
conditions, obligations and restrictions
hereafter set forth:
1. Except as specifically set forth
herein, the [r]estricted [a]rea may not be
developed in any manner whatsoever and shall
remain in its natural condition. . . .
. . . .
2. Notwithstanding the above, the
[r]estricted [a]rea may be disturbed solely to
permit the construction, installation,
maintenance and repair of the following: (i)
stormwater basins . . . ; (ii) the landfill cap;
(iii) access roads . . . [;] and (iv) the
proposed [fifteen foot] wide access road to the
compost and chipping areas all in accordance
with the terms of the [2006] MOA, the [c]losure
[p]lans and such other plans as [may be]
approved by []DEP and the [Pinelands] Commission
and subject to compliance with applicable local,
county, state and federal law, rules,
regulations and ordinances. . . . Once
implementation of the [c]losure [p]lans is
completed, the [r]estricted [a]rea . . . shall
be graded and revegetated with native Pinelands
vegetation.
3. [Stafford], for itself, its
successors, transferees, or assignees, agrees
to leave the [r]estricted [a]rea unmolested and
in [its] natural state.
7 A-2316-10T2
Under the conservation restriction, the Pinelands Commission had
the right to determine the consistency of any activity or use for
which the restriction made no express provision.
Sometime after Stafford recorded the conservation
restriction, it accepted Green Acres funding for other projects
in the township. As a result of accepting this funding, the
restricted area already encumbered by the conservation restriction
also became encumbered with Green Acres restrictions and was
characterized as "unfunded parkland" within Stafford's recreation
and open space inventory.1
By 2010, Walters had removed the hazardous contents of the
Old Landfill, filled it, and developed it into a retail shopping
center. Walters had also closed and capped the Landfill. Public
funds were not used for either project.
In addition, as required by the 2006 MOA, Walters had
developed, in conjunction with DEP and the Pinelands Commission,
a seven-year species management plan under which: T&E plants were
relocated from the landfills before they were disturbed; new
habitat for the Northern Pine Snake was constructed; an extensive
1
Whenever a municipality accepts Green Acres funding, all land
it holds for recreation and conservation purposes, even if such
properties had not been acquired or developed with those funds,
become encumbered with Green Acres restrictions. Cedar Cove, Inc.
v. Stanzione, 122 N.J. 202, 205 (1991).
8 A-2316-10T2
snake monitoring program was implemented; and Stafford and Ocean
County purchased and permanently preserved 1070 acres to offset
the impacts to both T&E habitats and wetlands. Further, pursuant
to a settlement agreement in an unrelated action brought by the
Pinelands Preservation Alliance, Walters agreed to pay $1 million
for Stafford to purchase the offset land.
Stafford's Lease with Walters
Early in construction of the Business Park, Walters and
Stafford began to consider using the Landfill and its adjoining
lands for the development of renewable energy facilities,
including installation of solar panels and wind turbines. Walters
had already installed solar arrays on the rooftops of the retail
facilities in the Business Park and affordable housing rental
apartments, and had worked on Rutgers University's two-year wind
resource study conducted on the Landfill and its adjoining lands.
In the summer and fall of 2010, Stafford and Walters
approached DEP and the Pinelands Commission to discuss a renewable
energy proposal. Stafford proposed to lease 46.8 acres of the
Landfill to Walters for thirty years to construct, install, and
operate a 6.5-megawatt, 1026-panel solar array to supply energy
to the facilities in the Business Park. In return, Walters would
pay Stafford annual rent ranging from $65,000 to $150,000, along
with a sixth- and eleventh-year escalator of ten percent. The
9 A-2316-10T2
lease would also provide for two ten-year renewals, subject to
Stafford's approval, and would allow Walters to explore future
installation of four 1.5-megawatt wind turbines and methane gas
production.
During the discussions with the agencies, Walters submitted
an August 2010 ecological assessment report prepared by Robert T.
Zappalorti, Executive Director of Herpetological Associates, Inc.
After reviewing the Landfill site, Zappalorti concluded that the
construction, installation, and on-going operation of 1026 solar
panels would be compatible with the wildlife on site. He also
concluded that the solar panels would not have any direct or
secondary adverse impacts upon the Northern Pine Snake, tree frog,
or two rare plant species known to occur in the vicinity of the
Business Park and Landfill.
Zappalorti explained that the proposed 1026 solar panels
would be erected and positioned to run from east to west for
optimal sunlight exposure. Each panel would be about twenty-seven
feet wide and sixteen feet long, and would sit on two concrete
foundations that were fourteen feet long and two feet wide, with
twenty feet between the rows of solar panels to allow for mowing
grasses and general maintenance. The low end of a panel would be
about four feet above grade, and the high end would be about twelve
feet above grade. All connecting wires would run above ground and
10 A-2316-10T2
overhead, and there would be no excavation into the soil on the
Landfill surface.
DEP approved an amendment to Stafford's landfill closure plan
to allow for the development of renewable energy facilities on the
Landfill. On September 27, 2010, Stafford held a "scoping hearing"
on this proposed use, at which appellants and several members of
the public voiced their objections.2
Three days later, Stafford filed an application with DEP and
the SHC, seeking approvals for a major diversion from the
conservation restriction to lease a portion of the Landfill to
Walters for installation of renewable energy facilities to serve
the Business Park. Stafford also applied to the DEP for a
certificate to partially release the conservation restriction. On
October 14, 2010, Stafford held a public hearing on its diversion
application. Appellants and several members of the public voiced
their objections and submitted written comments.
On November 7, 2010, DEP approved the diversion application
and referred the matter to the SHC. DEP considered various factors
for preserving the site in its natural state, including the
project's public need and public benefit, environmental impact,
2
N.J.A.C. 7:36-26.8 requires a municipality to conduct a "scoping
hearing" to solicit preliminary public comment before submitting
an application to NJDEP for a major diversion of parkland.
11 A-2316-10T2
and possible alternatives. DEP also considered the oral and
written public comments and finding of the Pinelands Commission,
which advised that the solar project would not require a deviation
from the Pinelands CMP. DEP determined that the solar project
would provide a variety of public needs and benefits; the diversion
would have no irreparable impact on habitats for T&E plants and
animals; and there were no feasible alternatives.
As to public need and benefit, DEP noted that Stafford and
Walters had been incorporating green buildings to reduce the
redevelopment's impacts on the Pinelands. DEP stated: "The rooftop
solar arrays already installed by Walters provide approximately
30% of the energy needs for the retail stores they serve and nearly
100% of the common area power needs for the affordable housing
residents." In addition, various agencies, including the Board
of Public Utilities (BPU) and other DEP divisions, had encouraged
Stafford and Walters to explore additional renewable energy uses
on the Landfill. Walters estimated that approximately seventy
percent of the Business Park's energy needs could be provided by
developing solar and wind facilities, and that the benefits of
reducing the carbon footprint of development benefitted the
citizens of Stafford, Ocean County, and the State.
DEP further noted that the level of renewable energy at a
mixed use project of this scale was unprecedented, and Walters had
12 A-2316-10T2
proved that sustainable building practices can be utilized in a
cost effective manner. Thus, DEP concluded that the environmental
features of the redevelopment project were a direct benefit to
Stafford and Ocean County, and the innovative design features were
a model for other development in the region and State.
As to environmental impacts, DEP stated that the 2006 MOA
required Stafford and Walters to preserve at least 570 additional
acres for Northern Pine Snakes and other T&E species; they had
already acquired and preserved significantly more than that
acreage; and Walters had paid $700,000 of the $1 million settlement
with the Pinelands Preservation Alliance. DEP further noted that
the Pinelands Commission had agreed to accept approximately
$153,000 as recompense for amending the 2006 MOA to allow the
proposed solar use, and had not found the project would have any
irreparable impact on the habitat for T&E species. Thus, DEP
concluded that the diversion would not have any irreparable impact
on habitats for T&E plants or animals, and there was no need for
additional mitigation or compensation to offset the diversion's
anticipated environmental impacts.
As to other alternatives, DEP first noted that the solar
energy generated from the project was not proposed in the abstract;
it would be used by end users within the Business Park. DEP then
concurred with Stafford's findings that: (1) a "no action"
13 A-2316-10T2
alternative was not reasonable or feasible, since it would thwart
Stafford's goal of maximizing the production of renewable energy
to serve the Business Park; and (2) other alternatives were not
reasonable or feasible because Walters had already maximized
rooftop space for solar installation, and because the only other
available land for solar installation was part of the Garden State
Parkway or restricted by the Pinelands Commission.
Thus, based on the project's minimal environmental impact,
the proposed generated lease revenue, the extensive mitigation
compensation already associated with the redevelopment project,
and the State's efforts to promote the use of capped landfills for
solar energy generation, DEP concluded there were no feasible
alternatives to building the project and locating it on the
Landfill. DEP explained that even though the 2006 MOA never
mentioned solar uses, if discussions about these uses had occurred
when the parties discussed entering into the 2006 MOA, both the
2006 MOA and the conservation restriction would most likely have
allowed these uses to occur without any additional compensation
to either Stafford or the Pinelands Commission. Lastly, DEP noted
that the lease renewals, use of wind turbines, and methane gas
production were not part of its approval, and those proposals had
to be resubmitted to DEP and the SHC for future review and
approvals, as appropriate.
14 A-2316-10T2
DEP provided a list of public benefits associated with the
overall redevelopment project, including the closure of both
landfills without using public funds, and the required
environmental mitigation measures and conditions. DEP also
provided its responses to the public comments. First, DEP rejected
comments that the solar project did not meet the thresholds of
N.J.A.C. 7:36-26.1(d)(1), which states an applicant must show that
the proposed diversion is for a project that either will: (1)
"[f]ulfill a compelling public need . . . by mitigating a hazard
to the public health, safety or welfare;" or (2) "[y]ield a
significant public benefit . . . by improving the delivery by the
local government unit or nonprofit, or by an agent thereof, of
essential services to the public or to a segment of the public
having a special need[.]" DEP declared:
As a matter of longstanding agency
interpretation, [DEP] has generally
considered utility projects such as the
proposed diversion to fall into the "public
benefit" category. Although most electric and
gas projects are not constructed by a local
government unit or nonprofit, the provision
of energy is an essential service, and both
public and private utility companies provide
a commodity that local governments would
otherwise be required to provide (such as many
municipalities still do for water and sewer
services.) Therefore, the fact that the
project is sponsored by a private, for-profit
enterprise has not in the past disqualified
consideration of a diversion application.
15 A-2316-10T2
Second, DEP rejected comments that the solar project did not
meet the threshold of N.J.A.C. 7:36-26.1(d)(2), which states that
an applicant must show "that there is no feasible, reasonable and
available alternative" to the diversion. After reviewing
Stafford's alternatives analysis, DEP concurred that it would not
be feasible to locate another site for this project outside the
redevelopment area given the strict regulation of the surrounding
area under the Pinelands CMP.
Finally, DEP rejected comments that Stafford should have
proposed replacement land for the diversion at a four-to-one
replacement ratio. Compensation standards for this project
involving a lease are found in N.J.A.C. 7:36-26.10(c)(2), which
states only that DEP will assess "whether the compensation that
the applicant proposes to receive for the lease or use agreement
is fair and appropriate[,]" and "shall require that any payments,
rentals or other consideration received by the applicant from the
lease or agreement be used by the applicant for its operating,
maintenance or capital expenses related to its funded parkland or
to its recreation program as a whole[.]" No land compensation is
required in that standard. DEP declared:
Under N.J.A.C. 7:36-26.10(d)7, []DEP does have
the ability to require additional compensation
to address natural resource impacts or
mitigate other adverse impacts associated with
a proposed diversion or disposal. However,
16 A-2316-10T2
unlike the recent Tennessee Gas Pipeline
transaction, in which the State requested
replacement land for the subsurface
installation of a natural gas pipeline that
required blasting and trenching, this project
involves the minimally obtrusive installation
of solar panels on the surface of a capped
landfill. At the end of the lease, it is not
unreasonable to assume that the panels can be
removed and the site restored to its pre-lease
condition. Therefore, the []DEP has not
required replacement land for this
application.
As required by N.J.A.C. 7:36-26.10(c)2ii,
[Stafford] will use the lease proceeds for its
operating, maintenance or capital expenses
related to its funded parkland or to its
recreation program as a whole.
On November 12, 2010, the Pinelands Commission, Ocean County,
and Stafford agreed to amend the 2006 MOA to incorporate renewable
energy facilities and allow Stafford's execution of a Restated and
Amended Declaration of Covenants and Restrictions (the 2010
amended MOA). The 2010 amended MOA altered, among other
provisions, Section VI(A)(15) of the 2006 MOA to include the
parties' agreement that renewable energy facilities on the
Landfill were permitted, except on storm water basins, on wetlands
and buffers, and on approximately twenty acres that the County
already had leased for composting facilities.
The 2010 amended MOA also provided that
[i]n order to ensure that there continues to
be adequate measures provided to afford, at a
minimum, an equivalent level of protection of
17 A-2316-10T2
the resources of the Pinelands, despite the
[p]arties agreeing to permit the development
of [r]enewable [e]nergy [f]acilities on the
lot comprising the . . . Landfill . . .
[Stafford] has obligated [Walters] to make a
monetary contribution to the [Pinelands]
Commission in the amount of $152,900. This
contribution shall be utilized by the
[Pinelands] Commission to undertake an
assessment of the existing landfills located
in the Pinelands [a]rea that have not, as yet,
been closed[.]
On November 19, 2010, appellants notified the SHC of their
objection to the proposed diversion. Appellants acknowledged
that solar energy generation is a good thing, but mainly complained
about the lack of replacement parkland to compensate for the
diverted land.
At its November 22, 2010 meeting, the SHC heard public
comments on the proposed renewable energy project. Stafford's
administrator stated that Stafford had no replacement land
available to compensate for the diversion. A representative from
DEP said that no replacement land was required for diversions
involving leases when the surface use can be removed at the end
of the term and the site remains parkland. At the end of the
meeting, the SHC unanimously voted to approve Stafford's diversion
application.
On December 20, 2010, DEP issued a certificate granting
partial release of the conservation restriction. DEP acknowledged
18 A-2316-10T2
its statutory duty to consider the public interest in preserving
land in its natural state along with any comprehensive land use
or development plan affecting the property. DEP noted that the
property was not used for recreation of any kind and was restricted
from general public access due to security concerns associated
with the landfill cap, but was required by the 2006 MOA to be
planted with grasses and allowed to revert to a natural state and
remain undeveloped. DEP further stated that the construction
activities associated with the project consisted primarily of the
installation of concrete footings on the Landfill surface and
attachment of freestanding solar panels to the concrete footings.
DEP also found that although the project required the use of
surface areas, the remainder of the property would remain
undeveloped. DEP then limited the term of the partial release to
thirty years. Thus, for the same reasons DEP approved Stafford's
diversion application, it determined it was in the public interest
to issue a certificate approving a partial release of the
conservation restriction to allow the solar project.
On January 11, 2011, Stafford recorded the DEP's certificate
and a Restated and Amended Declaration of Covenants and
Restrictions. On January 24, 2011, Stafford and Walters signed
the lease agreement. Article VIII, Sections 8.4 to 8.6, covered
compensation offsets. Section 8.4 stated that even though Stafford
19 A-2316-10T2
and Walters contended that no offset (by way of the purchase and
restriction of land, the payment of money or other consideration)
was due, Walters agreed to satisfy any offset that DEP imposed on
Stafford. Section 8.5 stated that Walters agreed to pay a separate
offset of $152,900 required by the Pinelands Commission. Section
8.6 stated that Walters agreed to pay, on Stafford's behalf, any
other offset required by government agency or ordered by court.
In all three sections, Walters reserved the right to challenge the
offset in appropriate legal proceedings or cancel the lease.
Initial Notice of Appeal
Appellants appealed from the November 7, 2010 approval of
Stafford's diversion application, and the December 20, 2010
certificate granting partial release of the conservation
restriction. While the appeal was pending, appellants moved to
supplement the record with the certification of Emile DeVito of
the New Jersey Conservation Foundation, who certified that he had
walked on the Landfill in May 2012, and saw new T&E bird species.
In an email that same month, Dave Jenkins, Chief of DEP's Division
of Fish & Wildlife, Endangered and Nongame Species Program
(Division), said the Division would try to verify sightings of the
Northern Pine Snake on the Landfill. Jenkins admitted that the
Pinelands Commission had not consulted the Division before it
signed the 2010 amended MOA, which allowed the solar project, and
20 A-2316-10T2
DEP had not consulted the Division before approving the diversion
application.
We remanded for DEP and the SHC to reconsider the appropriate
replacement land for the changed use and the project's effect on
T&E species and habitats.
Proceedings on Remand
By November 2012, Walters had constructed twelve percent of
the solar project, occupying approximately 4.4 acres of the
leasehold site. That month, DEP found that a portion of its
decisions, specifically allowing Stafford to retain lease
proceeds, was inconsistent with N.J.S.A. 13:8C-32(b)(1), which
requires a municipality: (1) to replace diverted parkland with
lands of equal or greater market value and of reasonably equivalent
size, quality, location, and usefulness for recreation and
conservation purposes; or (2) to pay an amount equal to or greater
than the fair market value of that diverted land into the Garden
State Preservation Trust for land acquisition. Thus, DEP
determined that Stafford had to amend its diversion application
and seek a new certificate granting the partial release of the
conservation restriction.
On November 22, 2012, DEP executed a remand order that
established a compliance schedule for Stafford to amend its
diversion application. The order also directed Stafford to submit:
21 A-2316-10T2
(1) a revised compensation proposal, reflecting substitution of
proposed replacement land for lease payments; (2) information
about the proposed replacement land; and (3) a report analyzing
the merits of appellants' claim concerning irreversible impacts
to T&E species. On December 16, 2013, the SHC approved DEP's
remand order.
On December 11, 2013, Stafford submitted an amended diversion
application to DEP and the SHC, and asked for approval of a smaller
partial release of the conservation restriction. Stafford
proposed reducing the size of the solar project from 46.8 acres
to 33.86 acres. Stafford also proposed compensating for the
diversion with replacement land on a one-to-one acre ratio that
would be deed restricted for use as parkland. Specifically,
Stafford offered two non-contiguous unencumbered parcels located
near a national wildlife refuge, totaling approximately 40.85
acres of undeveloped wooded land containing wetlands and
accessible only via a local trail system. Stafford claimed that
the replacement land was unlike the Landfill site, where public
access was inaccessible due to security concerns about the cap.
Stafford's expert, Richard E. Hall, appraised the market
value of the diverted land at $27,000, and the market value of the
replacement land at $114,500. Thus, Stafford asserted that its
proposed replacement land was approximately 1.2 times the size of
22 A-2316-10T2
the proposed diversion and 4.7 times the appraised market value.
A DEP Appraisal Section supervisor subsequently determined, after
reviewing Hall's appraisal, that the replacement land Stafford
proposed satisfied the lot size and dollar value requirements
representing an equitable exchange.
Stafford also revised the lease with Walters to make rent
payments a percentage of the cash flow earned from any portion of
the solar project, and provide that Walters make a one-time rental
payment of $114,377 (the appraised value of the replacement land).
As the remand order required, Stafford also submitted a revised
ecological assessment report Zappalorti prepared in November 2013,
which analyzed the merits of appellants' claims concerning impacts
to T&E species. Zappalorti conducted a new habitat inspection and
evaluation of the Landfill site, and concluded that installation
of all of the proposed 1026 solar collection panels would not have
an irreversible adverse impact upon habitats that are critical to
the survival of the local population of any rare plant or wildlife
species on the Business Park. He stated there would be no
excavation into the soil on the Landfill surface for any reason
whatsoever, as digging could possibly rupture the capped lining.
Zappalorti also concluded that the inadvertently-created
grasslands would only be partially disturbed by the installation
of solar panels, and there would be minimal need to access the
23 A-2316-10T2
panels or disturb the grassy habitat. He noted that rare birds
were breeding on the Landfill because Walters had agreed, at
appellants' request, to plant more expensive and diverse grasses
than Ocean County's soil conservation district specialists had
required. Zappalorti stated that if the Landfill was not mowed
within three to five years, it would no longer be suitable for
grassland birds.
As for the Northern Pine Snake, Zappalorti found that the
Landfill site was only suitable for foraging, and noted that two
individual snakes had been confirmed foraging there. The site,
however, was not suitable for winter denning due to the limited
depth of the cap liner, or for nesting due to dense grass and
other vegetation.
On February 10, 2014, Stafford held a public hearing and
accepted written comments on the amended project. Appellants
submitted oral and written objections. They also submitted a
February 18, 2014 report from Joseph Zurovchak, Ph.D., an ecologist
specializing in ornithology, who opined that installation of a
solar array on the Landfill site would negatively impact local
populations of grassland birds and render the existing habitat
unsuitable.
On August 25, 2014, Stafford submitted a revised alternatives
analysis to DEP. Stafford analyzed a "no action" alternative
24 A-2316-10T2
along with placing the project at other locations in and adjacent
to the Business Park and farther. Based on that analysis, Stafford
concluded there were no feasible, reasonable, or available
alternatives for meeting the essential purpose of the proposed
solar project. Stafford determined that the Landfill site was
still the most logical and only appropriate and reasonable location
for the planned renewable energy facilities. Stafford further
noted that, as a State regulatory matter, solar facilities had to
be on-site or adjacent to their end users in order to qualify for
financial incentives making them economically feasible. The cost
to extend off-site renewable energy infrastructure to the Business
Park would be prohibitive. Stafford also submitted a summary of
the submitted public comments and Stafford's responses.
Approval of the Amended Diversion Application
and Issuance of the Amended Certificate Granting
Partial Release of Conservation Restrictions
On October 1, 2014, DEP approved Stafford's amended diversion
application and referred the matter to the SHC. In an accompanying
memorandum, Judeth Piccinini Yeany, Chief of DEP's Bureau of Legal
Services and Stewardship, Green Acres Program, detailed DEP's
reasons for recommending approval of the amended diversion
application.
First, DEP found that the two wooded parcels Stafford offered
as replacement lands were reasonably equivalent as appropriate
25 A-2316-10T2
replacements for a partial diversion of the Landfill's grasslands.
DEP determined that those parcels were in a location that would
be accessible to the public, in close proximity to other preserved
lands, and in an area already serving as habitat for T&E species.
DEP acknowledged that the replacement lands did not provide the
exact grassland characteristics that the proposed diversion area
was alleged to possess, but concluded the proposed replacement
lands were ecologically significant in their own right. DEP
believed the replacement lands provided breeding and foraging
habitat for various birds and the Northern Pine Snake.
DEP further explained that its use of a one-to-one land
replacement ratio based on value and size was
consistent with the statutory standard at
N.J.S.A. 13:8C-32(b)(1) (which does not
specify a replacement ratio greater than 1:1),
the policy objectives of N.J.A.C. 7:36-
26.10(c)(2)(ii) (which were intended to take
into account the fact that leases of parkland
do not involve permanent conveyances of
property interests), and the fact that the
parkland interest at issue in this application
is a partial interest (conservation
restriction) and not a full fee interest.
Second, based on its review of Zappalorti's November 2013
report on T&E species, the information appellants provided, and
its own site visit, DEP concluded that impact to T&E species was
not a reason to deny Stafford's amended diversion application.
DEP noted that the following factors weighed against any denial:
26 A-2316-10T2
(1) Walters had based the original project siting and investment
decisions on the requirements in the 2006 MOA and 2010 amended MOA
to protect the four known T&E species at the site; (2) Walters and
Stafford had reduced the proposed diversion area; (3) Walters
originally had agreed, at appellants' request, to plant more
expensive and diverse grasses on the Landfill than were present
and would otherwise have been required; (4) Stafford and Walters
had a continuing obligation under the 2010 amended MOA to contact
the Pinelands Commission and DEP if they encountered any new T&E
species; and (5) the solar project would benefit the public.
Although appellants allegedly had sighted T&E birds, DEP found no
evidence that these bird species were observed during Walters'
initial construction phase of the solar project.
Further, DEP noted that, as part of the redevelopment project,
Stafford, Walters, and Ocean County already had offset impacts to
T&E species and their habitats by: (1) deed restricting
approximately 1017 acres of land, despite only 645 being required
by the Redevelopment Project agreement; (2) Walters paying
approximately $836,000 to the New Jersey Natural Lands Trust for
land preservation; and (3) Walters paying $153,000 to the Pinelands
Commission, on behalf of Stafford, to fund a study of existing
unclosed landfills within the Pinelands Area in order to determine
the continuing environmental impacts associated with them and the
27 A-2316-10T2
appropriate means of closure to ameliorate those impacts. Thus,
balancing the equities of the amended diversion application and
exercising its discretion, DEP decided not to deny Stafford's
application on the basis of T&E impacts.
Prior to the SHC's meeting on October 23, 2014, Stafford and
Walters signed a first addendum to the lease incorporating their
revised changes. At the meeting, Yeany explained why DEP had
rejected the public's demand for a four-to-one compensation ratio
of diverted land to replacement land required for a private
diversion. She declared that the solar project involved a lease,
not a permanent fee taking, and was part of a hybrid public-private
partnership involving a larger redevelopment project. She stated:
"This category of projects really then fell through the cracks and
really wasn't covered by our rules [on replacement land
compensation for a major diversion]." She concluded that the
solar project only required a one-to-one ratio for replacement
land, pursuant to the requirements in N.J.S.A. 13:8C-32(b)(1).
Yeany also explained that the Green Acres Program would not
supersede the Pinelands Commission's approval of the solar
project. The Pinelands Commission had its own endangered species
office, and had provided for mitigation of impacts on T&E species
in the 2006 MOA and 2010 amended MOA. On October 23, 2014, SHC
approved Stafford's amended diversion application.
28 A-2316-10T2
On December 1, 2015, DEP issued an amended certificate
granting a partial release of the conservation restrictions. DEP
incorporated the analysis and findings set forth in the original
November 7, 2010 diversion approval, and again acknowledged its
statutory duty to consider the public interest in preserving land
in its natural state along with any comprehensive land use or
development plan affecting the property. DEP also noted that
Stafford had amended the project by reducing the diversion area
to approximately thirty-four acres, offered approximately forty
acres of replacement land for the diverted area, and accepted
revised financial terms for the underlying lease. DEP also noted
that the Pinelands Commission had approved the 2010 amended MOA,
in exchange for additional mitigation measures, and that the SHC
had approved Stafford's amended diversion application.
DEP again noted that the Landfill site was not used for
recreation of any kind, and was restricted from general public
access due to security concerns associated with the cap, but was
required by the 2006 MOA to be planted with grasses, allowed to
revert to a natural state and remain undeveloped. DEP stated that
the construction activities associated with the solar project
consisted primarily of the installation of concrete footings on
the former landfill surface and the attachment of freestanding
solar panels to the concrete footings. DEP also found that
29 A-2316-10T2
although the project required the use of surface areas, the
remainder of the property would remain undeveloped. Thus, for the
same reasons DEP had approved Stafford's original and then amended
diversion applications, DEP determined it was in the public
interest to issue an amended certificate approving a partial
release of the conservation restrictions to allow the solar
project.
II.
Appellants contend that DEP's decision to partially release
the conservation restriction was not in accordance with the law
because DEP failed to consider the public's interest and the
decision conflicts with the requirements of the Pinelands CMP.
Our role in reviewing an administrative agency's decision is
limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot.,
101 N.J. 95, 103 (1985). We will not reverse the agency's decision
unless: (1) it was arbitrary, capricious, or unreasonable; (2) it
violated express or implied legislative policies; (3) it offended
the State or Federal Constitution; or (4) the findings on which
it was based were not supported by substantial, credible evidence
in the record. Univ. Cottage Club of Princeton N.J. Corp. v. N.J.
Dep't of Envtl. Prot., 191 N.J. 38, 48-49 (2007).
"In reviewing an administrative agency's decision, we will
grant considerable deference to the agency's expertise, where such
30 A-2316-10T2
expertise is a relevant factor." In re Petition of S. Jersey Gas
Co., 447 N.J. Super. 459, 480 (App. Div. 2016). We "may not
second-guess those judgments of an administrative agency which
fall squarely within the agency's expertise." In re Stream
Encroachment Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587,
597 (App. Div. 2008).
"Ordinarily, DEP is given great deference when it applies its
considerable expertise and experience to the difficult balance
between development and conservation." Ibid. (citations omitted).
"However, '[w]hile we must defer to the agency's expertise, we
need not surrender to it.'" Pinelands Pres. All. v. State, Dep't
of Envtl. Prot., 436 N.J. Super. 510, 524 (App. Div.) (citation
omitted), certif. denied, 220 N.J. 40 (2014). "The party who
challenges DEP's decision to permit development of a certain
location has the burden of demonstrating, not that the agencies'
action was merely erroneous, but that it was arbitrary." Stream
Encroachment Permit, supra, 402 N.J. Super. at 597 (citations
omitted).
Furthermore, although we "must give deference to the agency's
findings of facts, and some deference to its 'interpretation of
statutes and regulations within its implementing and enforcing
responsibility,' we are 'in no way bound by the agency's
interpretation of a statute or its determination of a strictly
31 A-2316-10T2
legal issue.'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J.
534, 551 (2008) (citations omitted). Applying the above standards,
we discern no reason to disturb DEP's and the SHC's decisions.
The Public Interest
Appellants argue that DEP violated N.J.S.A. 13:8B-5 and -6
by failing to adequately consider the public's interest in
preserving the Landfill in its natural state in perpetuity, which
was one of the conditions imposed in the conservation restriction.
Appellants aver that DEP never discussed the public's interest in
preserving the Landfill as open space for the local plants and
wildlife, and it was not enough to find that the Landfill would
be a convenient location for the solar project.
The Preservation Act generally "authorizes the assignment of
conservation restrictions . . . to insure that the land governed
by the restrictions will be maintained in its natural integrity."
Vill. of Ridgewood v. Bolger Found., 104 N.J. 337, 343 (1986).
The Preservation Act provides the only statutory mechanism for a
conservation restriction to be released, removed, or altered:
A conservation restriction . . . may be
released in whole or in part, by the holder
thereof, for such consideration, if any, as
the holder may determine, in the same manner
as the holder may dispose of other interests
in land, subject to such conditions as may
have been imposed at the time of creation of
the restriction . . . .
32 A-2316-10T2
[N.J.S.A. 13:8B-5.]
The statute does not bar the holder of a conservation restriction
from ever releasing it.
In addition, N.J.S.A. 13:8B-6 provides as follows:
The provisions of [N.J.S.A. 13:8B-5]
notwithstanding, no conservation restriction
acquired pursuant to this act shall be
released without the approval of the
Commissioner of [DEP]. Approval of releases
shall be evidenced by certificates of the
Commissioner of [DEP] and shall be recorded
in the same manner as the restriction itself.
In determining whether the release should be
approved, the Commissioner of [DEP] shall take
into consideration the public interest in
preserving these lands in their natural state,
and any State, regional or local program in
furtherance thereof, as well as any State,
regional or local comprehensive land use or
development plan affecting such property.
It is clear from the plain language in the statute that the
Legislature intended to establish a process for allowing recorded
conservation restrictions, even those to be held in perpetuity,
to be released or modified after their creation. Thus, DEP did
not violate the Preservation Act by partially releasing the
conservation restriction, even though the restriction was created
with the intention of preserving the Landfill in its natural state
in perpetuity.
In evaluating and determining whether to approve a diversion
application, as part of its analysis, DEP must weigh the competing
33 A-2316-10T2
public interests presented by the proposed diversion against
preservation of the parkland in its natural state. See N.J.S.A.
13:8B-6; N.J.A.C. 7:36-26.1(d)(1).
Here, DEP considered the public's interests in preserving the
Landfill as open space when it balanced the public benefits and
needs for a solar project to power the Business Park's facilities
against the fact that most of the leased area would remain in its
natural state. DEP explained how the solar project would yield
significant public benefit in the form of renewable energy for a
public redevelopment project. The solar project will generate
approximately 6.5 megawatts of new solar energy on the now-capped
surface of the Landfill, increasing renewable energy to a mixed
use brownfield redevelopment site that includes residential and
retail development, as well as public administration buildings.
As DEP explained in its approval of Stafford's original diversion
application, approximately 70% of the energy needs for the entire
redevelopment project can be provided through renewable energy if
the proposed diversion and the future wind phase were approved.
We are satisfied that DEP amply considered the public's interest
in granting the partial release of the conservation restriction.
The DEP acted well within its authority and appropriately applied
its expertise in determining that the solar project yields a
34 A-2316-10T2
significant public benefit through provision of essential
services.
The Pinelands CMP
Appellants argue that DEP violated N.J.S.A. 13:8B-6 by
failing to properly consider the expected effect on the
comprehensive land use protections of the Pinelands CMP and the
T&E plant and animal species disrupted by development of the
Business Park. Appellants also argue that DEP's approval and
amended certificate partially releasing the conservation
restrictions were based on the Pinelands Commission's illegal
decision to accept $153,000 from Walters, as required by the 2010
amended MOA, without requiring mitigation involving replacement
property in return, as mandated by N.J.A.C. 7:50-4.52(c)(2).
Appellants posit that Walters' monetary payments to the Pinelands
Commission did not satisfy the Pinelands CMP's minimum standards,
as it did nothing to address the habitat loss from the
redevelopment plan, which had justified the conservation
restriction in the first place. Appellants also aver that on
remand, DEP erred by not revisiting its choice to rely on the 2010
amended MOA and the Pinelands Commission's finding that the solar
project would not irreparably harm the Pinelands and T&E species.
N.J.A.C. 7:50-4.52(c)(2) authorizes the Pinelands Commission
to enter into an intergovernmental memoranda of agreement provided
35 A-2316-10T2
that any variation from the minimum Pinelands CMP standards "is
accompanied by measures that will, at a minimum, afford an
equivalent level of protection of the resources of the Pinelands
than would be provided through strict application of the [Pinelands
CMP] standards[.]" There are no measures specified in the
regulation.
Here, DEP's choice to rely on the Pinelands Commission's
decisions and the resulting 2006 MOA and 2010 amended MOA allowing
renewable energy development projects on the Landfill was not
arbitrary, capricious, or unreasonable. No one challenged the
validity of the Pinelands Commission's decisions or the two MOAs,
and the time to appeal them has long passed.
In any event, neither the GSPTA nor DEP's regulations preclude
DEP from approving a diversion due to the presence of, or potential
impact on, T&E habitat. DEP's regulations authorize, but do not
require, the denial of a diversion application due to T&E species
concerns. See N.J.A.C. 7:36-26.1(e). In the initial application,
DEP appropriately relied on the Pineland Commission's findings
about the solar project and ultimate agreement to amend the 2006
MOA. DEP's reliance was appropriate because the Pinelands
Commission is charged with ensuring that the minimum standards,
goals, and objectives of the Pinelands CMP are implemented and
enforced, and because DEP and the Pinelands Commission have
36 A-2316-10T2
concurrent authority with respect to T&E species protection within
the Pinelands. See N.J.S.A. 13:18A-4; In re N.J. Pinelands Comm'n
Resolution PC 4-00-89, 356 N.J. Super. 363, 377 (App. Div.),
certif. denied, 176 N.J. 281 (2003).
The record shows that before DEP's initial decision to approve
Stafford's diversion application, the Pinelands Commission
reviewed the proposed solar project with regard to its conformance
with the requirements of the Pinelands CMP. The Pinelands
Commission concluded that the solar project was consistent with
the Pinelands CMP and agreed to amend the 2006 MOA to allow the
project to proceed. DEP appropriately considered the Pinelands
Commission's analysis and similarly concluded that the solar
project would not have any irreparable impact on T&E species. The
DEP's decision to partially release the conservation restriction
complied with the law, is supported by ample credible evidence in
the record, and is not arbitrary, capricious, or unreasonable.
III.
Appellants argue that DEP's diversion decision subverts the
requirements of the Green Acres Act and the GSPTA because DEP
failed to prevent the net loss of parkland, as required by N.J.S.A.
13:8C-32(b) (GSPTA), and N.J.A.C. 7:36-26.10(b) (Green Acres).
Appellants also argue that DEP subverted the requirements of
N.J.A.C. 7:36-26.1 and N.J.A.C. 7:36-26.10 and the GSPTA by failing
37 A-2316-10T2
to require replacement lands on a four-to-one ratio, and require
reasonably equivalent replacement property. Appellants further
argue that DEP's finding of "ecologically significant" as it
related to the two parcels Stafford proposed as replacement land
does not satisfy N.J.A.C. 7:36-26.10(d).3
Replacement Land Ratio
Appellants argue that N.J.S.A. 13:8C-32(b)(1) applies to
property that will be "convey[ed]" to a use for other than
conservation purposes, and the term "convey" is defined in N.J.A.C.
7:36-2.1 to mean "sell, donate, exchange, transfer, or lease for
a term of [twenty-five] years or more." Because the
Stafford/Walters lease term was thirty years, appellants posit
that the four-to-one ratio applicable to a major diversion
involving a fee simple conveyance of parkland in Table 1 of
N.J.A.C. 7:36-26.10(g) also applies to Stafford's lease. In other
words, they argue that a thirty-year lease is not a temporary
conveyance, but a major diversion. Appellants further claim that
3
We decline to address appellants' additional argument relating
to Stafford's use of Walters' lease payments based on a purported
October 14, 2014 memorandum of understanding between Stafford and
Walters. The document is not listed in the statement of items
comprising the record on appeal, and there is no indication that
DEP or the SHC considered it. R. 2:5-4; see also N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (holding
that we will not consider documents included in the appendix that
were not presented below).
38 A-2316-10T2
Stafford's solar project is a private commercial endeavor that is
paid for, constructed by, and therefore sponsored by, Walters.
Accordingly, they conclude that even if the lease was considered
only as a surface easement over parkland, a four-to-one ratio of
replacement land would be required.
Both the Green Acres Act, N.J.S.A. 13:8A-47(b)(1), and the
GSPTA, N.J.S.A. 13:8C-32(b)(1), provide that property held for
recreation and conservation purposes cannot be diverted to another
use without DEP's and the SHC's approval. The Green Acres Act,
N.J.S.A. 13:8A-47, does not require any replacement lands to offset
diverted parkland. However, the GSPTA provides as follows:
Approval of the commissioner and the [SHC]
shall not be given unless the local government
unit agrees to (a) replace the lands with
lands of equal or greater fair market value
and of reasonably equivalent size, quality,
location, and usefulness for recreation and
conservation purposes, as approved by the
commissioner, or (b) pay an amount equal to
or greater than the fair market value of the
lands, as determined by the commission, into
the Garden State Green Acres Preservation
Trust Fund.
[N.J.S.A. 13:8C-32(b)(1) (emphasis added).]
Thus, N.J.S.A. 13:8C-32(b)(1) establishes a minimum one-to-one
ratio for replacement lands.
The Green Acres regulations set forth the standards and
procedures for DEP's and the SHC's approval of the disposal or
39 A-2316-10T2
diversion of funded or unfunded parkland. N.J.A.C. 7:36-
26.1(d)(3) states that an "applicant shall compensate for the
disposal or diversion of funded or unfunded parkland with eligible
replacement land . . . in accordance with . . . N.J.A.C. 7:36-
26.10[.]"
N.J.A.C. 7:36-26.10(g) contains a table showing the minimum
ratio of replacement land for diversions (Table 1). Table 1
establishes different replacement ratios for different types of
major diversions, i.e., easements versus full fee interests, and
for different types of project sponsors, i.e., public project
sponsors versus private project sponsors. For example, diversions
involving public project sponsors require a two-to-one ratio of
replacement land, whereas diversions involving private project
sponsors require a four-to-one ratio. When the diversion involves
only a surface easement over parkland, public project sponsors
require a one-to-one ratio, whereas private project sponsors
require a four-to-one ratio. The term "sponsor" is not defined.
However,
the term "public" used in reference to a
diversion or disposal denotes that the project
for which the diversion or disposal is
proposed is constructed by or sponsored by a
public entity; and the term "private" used in
reference to a diversion or disposal denotes
that the project for which the diversion or
disposal is proposed is not constructed by or
sponsored by a public entity. The
40 A-2316-10T2
classification of a diversion or disposal as
public or private shall be determined by Green
Acres based on the pre-application information
provided by the applicant.
[N.J.A.C. 7:36-26.10(h).]
Because the solar project was in the form of a lease, the
amount of replacement land was not subject to any minimum acreage
requirements in Table 1. Thus, only the GSPTA's statutory
requirement in N.J.S.A. 13:8C-32(b)(1), that replacement lands
should be of equal value and of reasonably equivalent size to the
diverted land, applied to the solar project. Further, N.J.A.C.
7:36-26.10(c)(2)(ii), which covers leases of encumbered parkland,
does not require any amount of replacement land as compensation
for these temporary conveyances.
Accordingly, the DEP's decision to require a one-to-one ratio
was consistent with N.J.S.A. 13:8C-32(b)(1); the policy objectives
of N.J.A.C. 7:36-26.10(c)(2)(ii); and the fact that the parkland
interest at issue in the Stafford/Walters lease would be a
temporary, partial leasehold, and not a full fee interest. The
lease arose from the larger redevelopment project, making the
parties' relationship "a hybrid" of public and private sponsors.
Further, Table 1 does not set any ratio for temporary
easements over parkland diverted to a solar project from a
conservation restriction, and N.J.A.C. 7:36-26.10 is silent on
41 A-2316-10T2
using replacement land for "a diversion of parkland that entails
a lease or use agreement[.]" Thus, we rely on N.J.S.A. 13:8C-
32(b)(1), which allows replacement lands "of reasonably equivalent
size" to offset a diversion. The statute does not require a
replacement ratio greater that one-to-one.
Reasonably Equivalent Replacement Property
Appellants argue that DEP's finding of "ecologically
significant" as it related to the two parcels Stafford proposed
as replacement land does not satisfy N.J.A.C. 7:36-26.10(d).
Appellants posit that the replacement and diverted lands have
fundamentally different habitat types and cannot compensate for
the loss of habitat and species from the proposed major diversion.
N.J.S.A. 13:8C-32(b)(1) provides that replacement lands shall
be "lands of equal or greater fair market value and of reasonably
equivalent size, quality, location, and usefulness for . . .
conservation purposes[.]" N.J.A.C. 7:36-26.10(d) provides as
follows, in pertinent part:
Replacement land proposed by the
applicant as compensation for a major disposal
or diversion of parkland shall meet the
following requirements:
. . . .
5. For applications proposing
replacement land as the only form of
compensation, the proposed replacement
land shall have a market value that is
42 A-2316-10T2
equal to or greater than the parkland
proposed for disposal or diversion;
6. The proposed replacement land
shall be of reasonably equivalent or
superior quality to the parkland proposed
for disposal or diversion, including, but
not limited to, location, accessibility,
usefulness for recreation purposes, and
value for ecological, natural resource
and conservation purposes. . . ;
7. If the proposed replacement
land is inadequate to meet the criteria
in (d)5 and 6 above, the Department shall
require the applicant to supplement its
proposal with additional compensation in
excess of that which would otherwise be
required under Table 1 at (g) below.
Such additional compensation may consist
of either additional replacement land or
monetary compensation, or both, and the
amount of such compensation must be
sufficient to compensate in full for any
shortfalls in the market value or quality
of the proposed replacement land[.]
Even if Stafford's proposed replacement lands do not
precisely meet the standards in N.J.A.C. 7:36-26.10(d)(6) because
they are wooded and not grasslands, DEP found that the replacement
lands would provide breeding and foraging habitat for various T&E
birds and the Northern Pine Snake. Accordingly, DEP concluded,
correctly, that the proposed replacement lands were reasonably
equivalent to the lands proposed for diversion in terms of value
for ecological, natural resource, and conservation purposes. DEP
also found that those parcels were already serving as habitat for
43 A-2316-10T2
T&E species, and there was no evidence to support the claim that
those parcels would not support the additional T&E species
appellants found on the Landfill during the remand. Furthermore,
market value of the replacement lands was appraised approximately
4.7 times higher than the market value of the diverted land. Thus,
there is sufficient evidence that Stafford's replacement lands met
the requirements in N.J.A.C. 7:36-26.10(d)(7). Deferring to DEP's
expertise, we do not find its assessment arbitrary, capricious,
or unreasonable.
IV.
Appellants contend the DEP's failure to comply with its own
diversion rules renders its decision arbitrary, capricious, and
unreasonable because there was no evidence supporting its
conclusions on: (1) public benefits and needs for a solar energy
facility; (2) the lack of irreparable harm to T&E species on the
Landfill; and (3) no available feasible alternatives.
Public Benefits and Needs
Appellants argue there was no evidence supporting DEP's
conclusion that the solar project would fulfill a compelling public
need or yield a significant public benefit by improving Stafford's
delivery of essential services to the public or to any segment of
the public having a special need, as required by N.J.A.C. 7:36-
26.1. Appellants claim that Stafford provides no electricity to
44 A-2316-10T2
its residents and that its receipt of Walters' lease payments is
no indication that any of the essential services it already
provides will be improved. Appellants also aver there is no
evidence to support DEP's assertion that a solar panel facility
will reduce the carbon footprint of the Business Park.
N.J.A.C. 7:36-26.1 provides as follows:
(a) It is the Department's policy to strongly
discourage the disposal or diversion of both
funded and unfunded parkland. The use of
parkland for other than recreation and
conservation purposes should be a last resort,
and should only be considered by a local
government unit or nonprofit when the proposed
disposal or diversion is necessary for a
project that would satisfy a compelling public
need or yield a significant public benefit as
defined at (d)1 below.
. . . .
(d) No application for the disposal or
diversion of parkland under this subchapter
shall be approved by the Commissioner and the
State House Commission unless the applicant
. . . meets the following minimum substantive
criteria:
1. The . . . diversion of funded or
unfunded parkland is for a project that will:
i. Fulfill a compelling public
need, as demonstrated by the applicant
. . . by mitigating a hazard to the public
health, safety or welfare; [or]
ii. Yield a significant public
benefit, as demonstrated by the applicant
. . . by improving the delivery by the
local government unit . . . or by an agent
45 A-2316-10T2
thereof, of essential services to the
public or to a segment of the public
having a special need[.]
[(Emphasis added).]
Even though "[i]t is [DEP's] policy to strongly discourage
the disposal or diversion of both funded and unfunded parkland[,]"
N.J.A.C. 7:36-26.1(a), neither the GSPTA nor the Green Acres Act
place an absolute ban on diverting land encumbered by a
conservation or Green Acres restriction to a use other than
recreation or conservation. Furthermore, nothing in those
statutory or regulatory schemes prohibits DEP or the SHC from
approving a diversion of encumbered parkland for solar energy
purposes. In fact, N.J.A.C. 7:50-5.36(a) of the Pinelands CMP
states that "[a] municipality may include in its master plan and
land use ordinance provisions . . . solar energy facilities as a
principal use in any Pinelands management area[.]"
The Legislature has defined "essential services" to mean the
adequate supply of "heat, water, hot water, electricity, gas, and
telephone service." See, e.g., N.J.S.A. 52:27D-224.2 (defining
essential services in the context of multiple dwellings and
requiring notification when essential services are disrupted).
Here, DEP concluded that the solar project would yield a
significant public benefit in the form of renewable energy for the
commercial, residential, and public buildings in its public
46 A-2316-10T2
redevelopment project, and solar energy was already being produced
at the Business Park. DEP's findings are entitled to considerable
deference given its expertise in environmental matters.
T&E Species
Appellants argue that DEP erred by only relying on
Zappalorti's reports and not consulting with DEP's Endangered and
Nongame Species Program before approving the diversion, and by not
obtaining a redetermination by the Pinelands Commission after
Stafford revised its diversion application. Appellants further
object to Yeany's weighing of the impact to T&E species, instead
of having the Green Acres Program directly apply the Pinelands
CMP's T&E regulatory standards to the changed circumstances on the
Landfill site, and the new T&E species living there.
Because we afford DEP's considerable expertise and experience
great deference when balancing development and conservation
determinations, we reject appellants' arguments. Furthermore, as
we have previously stated, the Pinelands Commission bears the
ultimate responsibility for enforcing the provisions of the
Pinelands Act and the CMP requirements. Petition of S. Jersey Gas
Co., supra, 447 N.J. Super. at 476. Because the Pinelands
Commission had approved the 2006 MOA to allow a larger project
proposing renewable energy facilities on the capped Landfill, it
47 A-2316-10T2
is doubtful the Pinelands Commission would not have approved a
project proposing the use of less acreage of the capped Landfill.
Lastly, the evidence amply supports a finding that new T&E
bird species had already arrived on the Landfill due to the
enhanced grasses Walters planted. Since Walters also had
constructed twelve percent of the solar project, occupying
approximately 4.4 acres of the Landfill, the evidence supports
DEP's conclusion that there would be no irreparable harm from the
solar project to the T&E species on the Landfill. Furthermore,
the evidence supports a finding that those species would leave
within three to five years if the grasslands were not maintained
and mowed, as would happen if the diversion for the solar project
was not approved.
Feasible Alternatives
Appellants argue that Stafford never reviewed making the
project even smaller, and never provided a description of the
methods it used to identify alternatives to the proposed diversion.
Appellants also reject Stafford's finding that no feasible areas
adjacent to or in proximity to the Landfill site were available
because they were either occupied by the Garden State Parkway or
were preserved areas of the Pinelands.
No application for a major diversion of parkland shall be
approved by DEP and the SHC unless
48 A-2316-10T2
the applicant has demonstrated to the
Department's satisfaction, through the
alternatives analysis required by N.J.A.C.
7:36-26.9(d)2, that there is no feasible,
reasonable and available alternative to the
disposal or diversion of funded or unfunded
parkland. It shall be the Department's
presumption that there is a feasible,
reasonable and available alternative not
involving parkland for the project for which
an applicant seeks to divert or dispose of
parkland. The applicant must rebut this
presumption through the alternatives analysis
in order to obtain the approval of the
Commissioner and the [SHC] under this
subchapter. If the applicant is not able to
rebut this presumption, the Commissioner and
the [SHC] may, in their discretion, approve
an application for a major disposal or
diversion of parkland based on the exceptional
recreation and/or conservation benefit to be
provided by the applicant[.]
[N.J.A.C. 7:36-26.1(d)(2).]
The alternatives analysis must identify each alternative course
of action that could be taken to yield the significant public
benefit to be derived from the project, including all alternatives
presented at the scoping hearing and submitted by the public, and
the alternative of locating the applicant's project on the proposed
replacement land. N.J.A.C. 7:36-26.9(d)(2).
Here, the purpose of the solar project was to provide
renewable energy to a public redevelopment project. For its
original and amended diversion applications, Stafford explained
49 A-2316-10T2
in detail how the alternatives to the proposed solar project were
not feasible, reasonable, or available.
For purposes of an alternatives analysis, "an alternative may
be considered not feasible" if it "would bring about unresolvable
logistical problems[.]" N.J.A.C. 7:36-26.9(e)(1). In addition,
an alternative may be considered "not reasonable" if it "[w]ould
result in the essential project purpose . . . not being met[.]"
N.J.A.C. 7:36-26.9(e)(2). The evidence supported DEP's finding
that taking no action would not yield the significant public
benefit of providing renewable energy to the Business Park, and
would not help to maximize the green building objectives of the
redevelopment plan. Further, constructing the solar project in
another area of the redevelopment area would be too limiting.
Rooftop spaces were already being used and areas farther away from
the site presented logistical problems including increased costs
and safety concerns. Finally, building a solar project beyond the
redevelopment area itself would be constrained by public utilities
laws and would result in inadequate production.
We conclude there was ample credible evidence in the record
as a whole supporting DEP's and the SHC's decisions, and the
decisions were not arbitrary, capricious, unreasonable, or
contrary to law.
Affirmed.
50 A-2316-10T2