IN THE MATTER OF HAWTHORNE BOROUGH, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4347-16T4
IN THE MATTER OF
HAWTHORNE BOROUGH,
PASSAIC COUNTY GOFFLE
PARK SYNTHETIC TURF
FIELD GOFFLE BROOK PARK
(SR: 8/29/2002).
_________________________________
BOARD OF CHOSEN FREEHOLDERS
OF THE COUNTY OF PASSAIC,
Intervenor-Respondent.
_________________________________
Submitted December 19, 2018 – Decided April 8, 2019
Before Judges Fuentes and Moynihan.
On appeal from the New Jersey Department of
Environmental Protection.
Michael J. Pasquale, attorney for appellant Borough of
Hawthorne.
William J. Pascrell, III, Passaic County Counsel,
attorney for respondent Board of Chosen Freeholders
of the County of Passaic (John D. Pogorelec, Jr.,
Assistant County Counsel, of counsel and on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Department of Environmental
Protection (Melissa H. Raksa, Assistant Attorney
General, of counsel; John P. Kuehne, Deputy Attorney
General, on the brief).
PER CURIAM
The Borough of Hawthorne appeals from the final decision of the
Commissioner of the Department of Environmental Protection (Department),
made by the Assistant Commissioner for Natural and Historic Resources,
authorizing the installation of a synthetic turf field in Goffle Brook Park, which
is owned by intervenor County of Passaic. Hawthorne contends the
Commissioner's decision was arbitrary and capricious. We disagree and affirm.
The park has been listed on both the New Jersey and National Register of
Historic Places since 2002. As such, when the County sought to install a
synthetic turf sports field in the park, it contacted the Historic Preservation
Office (Office), an arm of the Department responsible "for maintaining the New
Jersey Register of Historic Places and administering the State Historic
Preservation Program." N.J.A.C. 7:4-1.3. The Office determined the proposed
project would be an encroachment.1 N.J.A.C. 7:4-1.3; 7:4-7.2(c); 7:4-7.4.
1
"'Encroachment'" means, in the context of this case, "the adverse effect upon
any district, site, building, structure or object included in the New Jersey
A-4347-16T4
2
The Office's determination required the County, pursuant to N.J.A.C. 7:4-
7.2(e), to submit an application to the Department for transmittal to the Historic
Sites Council (Council), a statutorily-created body within the Department's
Division of Parks and Forestry,2 "for the purpose of recommending policies to
the Commissioner for . . . actions [including the] development, use,
improvement and extension of historic sites . . .; the . . . protection, preservation,
conservation, restoration, and management of all historic sites within the State;
and the provision of advice on encroachments." N.J.A.C. 7:4-1.3; see also
N.J.S.A. 13:1B-15.110. The Council, with four members present, conducted a
public hearing at which they reviewed the application.
Hawthorne first contends the meeting was conducted without a legal
quorum because having "four out of eleven [members] is most likely not what
the [L]egislature would have considered as the right number." We deem this
argument to be without merit. Although the Council is supposed to consist of
Register resulting from the undertaking of a project by the State, a county,
municipality or an agency or instrumentality thereof" as set forth by the
applicable criteria and guidelines. N.J.A.C. 7:4-1.3.
2
See N.J.S.A. 13:1B-15.108 (designating the Council within the Division of
Parks, Forestry and Recreation of the Department of Conservation and
Economic Development); N.J.S.A. 13:1D-1 (reorganizing the Department of
Conservation and Economic Development into the Department of
Environmental Protection).
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eleven members, N.J.S.A. 13:1B-15.108, minutes from the meeting reflect the
full Board had only six members at that time. We have recognized that under
the common law quorum rule, vacancies are not counted in determining if a legal
quorum exists; a majority of the remaining members constitutes a quorum. New
Jersey Election Law Enf't Comm'n v. DiVincenzo, 451 N.J. Super. 554, 573-574
(App. Div. 2017). The common law rule applies absent a contrary statutory
provision. Id. at 574. Hawthorne concedes in its merits brief the "statute does
not speak to a required number of members to constitute a quorum." Thus, under
the applicable common law rule, four of the six Council members constituted a
quorum, as established by the roll call at the meeting.
During the meeting, the Council considered a draft resolution prepared by
the Office staff, N.J.A.C. 7:4-7.2(e)(6)(i), and the testimony of County experts
and employees. During the public comment portion of the meeting, Hawthorne's
borough attorney, the only member of the public to speak, voiced Hawthorne's
opposition to the project. Contrary to Hawthorne's argument on appeal, the
Council properly evaluated the encroachment, considering all appropriate
factors, including: "[t]he public benefit of the proposed undertaking; [w]hether
or not feasible and prudent alternatives to the encroachment exist; and [w]hether
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or not sufficient measures could be taken to avoid, reduce or mitigate the
encroachment." N.J.A.C. 7:4-2(e)(6)(ii) to (iv).
The meeting minutes and the resolution prepared by the Office reflect that
the County presented evidence relating to all those factors. The Council
considered: (1) the park's history, including the pertinent criteria used to
determine the park's listing on the New Jersey Register; (2) the prior and present
use of the field – formally for football and soccer, informally for other sports
and activities – and (3) the benefits of the proposal to change that grass field,
extant at the time the park was placed on both the State and National Registers,
to a synthetic turf multi-sport field in order to address the dearth of athletic fields
in the County. The Council considered testimony that the installation of
synthetic turf would resolve the difficulty in properly maintaining the grass field
for multiple sports without an adequate water supply, and about the related cost
savings in maintenance and manpower. The Council was fully informed of the
construction, layout, use and maintenance of the field which was to be lined for
football, soccer and lacrosse; and that the County seal would appear prominently
at midfield.
According to the minutes, Council members inquired about the
availability of alternative sites or fields. Evidence was adduced that the County
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owns "only six parks" and "does not have a lot of [c]ounty-owned park land";
Hawthorne has baseball and soccer complexes and dedicated football and
lacrosse fields; alternative fields mentioned by Hawthorne's attorney "frequently
flood because they are also located in a floodplain"; and the proposed field
would be the only County-owned multi-purpose field that can be used for
different sports played on the same day because the synthetic turf would not
incur the same damage as a grass field. The Council also considered measures
to mitigate the encroachment, one of which required dismantling the synthetic
turf field and returning the field to its natural state if "a more suitable, non-
historic park site for installation of a multi-use synthetic turf field is identified,"
a task the County engineer deemed feasible.
Three other proposals by the Office, as set forth in the proposed
resolution, sought to mitigate the encroachment, see N.J.A.C. 7:4-7.2(9)(ii):
1. The County shall plan, develop, and install no fewer
than three (3) interpretive wayfinding signs within
Goffle Brook Park, which highlight its history. Signage
shall include quality reproductions of historic
photography of the park and original Olmsted plans in
order to visually interpret how it has changed over time.
The County shall submit draft text and mockups for the
signs, as well as locations proposed for their
installation, to the [Office] for review and approval.
2. The County shall create a display of high quality
reproductions of original Olmsted plans in the Rea
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House, which is a contributing resource within Goffle
Brook Park (and for which a $1.5M rehabilitation is
planned.) The signage shall incorporate text regarding
the history and development of the park and its
association with the Rea House, which shall be
reviewed and approved by the [Office] prior to
installation. The County shall submit photos of the
display after installation of the [Office].
3. The County shall prepare as an amendment to the
existing Parks, Recreation and Open Space Master
Plan, a Historic Preservation Plan Element, which . . .
shall also be incorporated into future master plan
updates. The Historic Preservation Plan Element shall
identify the historic designed landscapes, buildings,
structures, objects, and known archaeological sites
within the existing Parks, Recreation and Open Spaces
owned by Passaic County and address appropriate
treatments for these historic properties in accordance
with National Park Service Brief 36 . . . and the Olmsted
Center for Landscape Preservation's Guide to
Developing a Preservation Maintenance Plan for a
Historic Landscape.
Further, a meeting between the County and Office staff resulted in
"changes in the [first] proposed design to be more compatible with the original
design intent" of the portion of the park in which the field was located: wood
light poles installed before the park was listed on the Registers would be
removed and not replaced; three non-historic trees in a row planted in the 1980s
would be removed; benches and permanent football goalposts would be
removed; goalposts and bleachers would be stored except when fields were in
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use; and a proposed black-coated chain-link fence would be removed from the
plans.
The four Council members, at the close of public comment, extensively
discussed the resolution after a motion to review same was made and seconded.
A vote on the resolution with proposed changes was evenly split among the four
members. The resolution was forwarded to the Commissioner.
We disagree with Hawthorne's contention that the Council did not fulfill
its duty because the resolution was not passed. Nothing in the regulations
requires that the Council's recommendations be unanimous or that they be in the
form of a passed resolution. The Council is required only to submit written
recommendations to the Commissioner. N.J.A.C. 7:4-7.2(e)(7). Submission of
the resolution well-accomplished that duty. The resolution synopsized the
evidence presented, including the testimony of the Office staffer, County
engineer and parks director, director of the Department of Cultural and Historic
Affairs, and Hawthorne's attorney. We further note the Commissioner's
designee reviewed the resolution, "comments made by the Council during the
meeting[,] and the testimony of the applicant and public," which fully reflected
the Council members' disparate recommendations.
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The Commissioner's designee considered the Council's split advice and
the evidence presented to it and "evaluated the [project's] public benefit; prudent
and feasible alternatives; and measures taken to avoid, reduce, or mitigate the
encroachment." He authorized the project.
In our limited role in reviewing an administrative agency's actions, we
will overturn a decision only if it is arbitrary, capricious or unreasonable. In re
Stallworth, 208 N.J. 182, 194 (2011). Administrative decisions are arbitrary,
capricious, or unreasonable when: (1) "the agency's action violates express or
implied legislative policies"; (2) "the record contains substantial evidence to
support the findings on which the agency based its action"; and (3) if, when the
law is applied to the facts, the agency clearly erred in reaching its con clusion
and its decision is unreasonable. Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).
"[A] court 'may not substitute its own judgment for the agency's even though the
court might have reached a different result.'" In re Carter, 191 N.J. 474, 483
(2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513
(1992)). We will uphold an agency decision even if we disagree with it if it was
reached honestly and upon due consideration. Flanagan v. Dep't of Civil Serv.,
29 N.J. 1, 12 (1950). Our deference is especially strong when the agency was
delegated discretion to determine the "specialized and technical procedures for
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its tasks." Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 540
(1980). Administrative agencies' interpretations of legal issues, however, do not
bind us. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Under
that lens, we determine the assistant commissioner's decision was not arbitrary,
capricious or unreasonable.
Hawthorne argues that the Commissioner's designee did not transmit "a
written decision with specific reasons therefor" to the applicant. N.J.A.C. 7:4 -
7.2(e)(9). While the assistant commissioner's letter-decision did not explicitly
set forth his reasons, he did attach the resolution from which those reasons can
be culled. Furthermore, the record reviewed by the assistant commissioner fully
supports his decision. The record presented to and reviewed by the assistant
commissioner, as we more fully set forth in our review of the proceedings before
the Council, allowed him to weigh the conflicting positions of the parties – and
the Council members – and to determine that the encroachment created by the
installation of the synthetic turf field warranted authorization subject to the three
conditions set forth in the resolution. See In re Applications of N. Jersey Dist.
Water Supply Comm'n, 175 N.J. Super. 167, 205 (App. Div. 1980).
The evidence supports that a synthetic turf field filled both the needs of
the public by providing a needed multi-sport playing field and by offering a
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more cost-effective and viable alternative to a pitch that could not be maintained
due to the lack of irrigation. The record also shows there were no viable
alternatives, but if one presented, the synthetic turf field could be removed. And
the initial steps taken by the County in tandem with the Office, and the three
imposed conditions, are evidence of mitigating measures. Hawthorne alleges
the mitigating conditions were dubious because they did not relate to the
encroachment. Recognizing the Department's "specialized expertise . . . 'to
evaluate the factual and technical issues,'" New Jersey League of Municipalities
v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cty.
Hosp. v. New Jersey Dep’t of Human Servs., 96 N.J. 456, 474 (1984)), we defer
to the Commissioner's judgment that the conditions were sufficient to avoid,
reduce or mitigate the encroachment.
We determine any of Hawthorne's remaining arguments, not here
discussed, to be without sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(1)(E). We note only that the assistant commissioner, in
sending an email to a Hawthorne resident indicating that, when briefed on the
project before it was heard by the Council, he was in favor of the staff's
recommendation to approve it, expressed only his initial bent. The assistant
commissioner said he would review the entire package and would "consider all
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sides, testimony, positions, etc." He did not decide the case before it was
presented to the Council.
Affirmed.
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