N.J. Admin. Code § 7:36-26.10

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:36-26.10 - Major disposals or diversions of parkland; compensation for parkland proposed to be disposed of or diverted

(a) An applicant shall provide compensation for a major disposal or diversion of funded or unfunded parkland. All such compensation shall meet the minimum requirements of this section. However, in its discretion, the applicant may propose compensation that exceeds the minimum requirements of this section.

(b) In requiring compensation for major disposals or diversions of parkland, the Department's primary objectives are to prevent a net loss of parkland (including, but not limited to, the quantity, quality and accessibility of parkland), to discourage the use of parkland for other than recreation and conservation purposes, particularly when a feasible and reasonable alternative site is available, and to ensure that the public is adequately compensated for the market value of the parkland to be disposed or diverted.

(c) In order to achieve the objectives of (b) above, an applicant seeking approval of a major disposal or diversion of parkland that will either fulfill a compelling public need or yield a significant public benefit, as defined at 7:36-26.1(d)1, shall, pursuant to 7:36-26.9(d)5, propose to compensate for the disposal or diversion by offering replacement land, monetary compensation or other compensation, as follows:

1. For a disposal or diversion of parkland that consists of the granting of an easement over, under or through parkland, or for a disposal or diversion that involves the fee simple conveyance of parkland, an applicant may propose as compensation:

i. Replacement land, provided that the applicable requirements at (d) below are met;

ii. Monetary compensation, provided that the applicable requirements at (e) below are met; or

iii. A combination of replacement land and monetary compensation, provided that the applicable requirements at both (d) and (e) below are met;

2. For a diversion of parkland that entails a lease or use agreement:

i. Green Acres shall assess whether the compensation that the applicant proposes to receive for the lease or use agreement is fair and appropriate; and, if not, advise the applicant as to the minimum amount of compensation that must be secured if the application is to be approved by the Commissioner and sent to the State House Commission for approval; and

ii. Green Acres 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;

3. If a disposal or diversion of parkland will result in the loss of any recreation and conservation facilities, Green Acres shall require the applicant to compensate for the loss by providing replacement recreation and conservation facilities of reasonably equivalent usefulness, size, quality and location. The replacement facilities shall be in addition to any replacement land or monetary compensation proposed by the applicant;

4. If the project for which the disposal or diversion of parkland is proposed involves the removal of any tree with a DBH greater than six inches, especially the removal of any trees of significant size (with a DBH of 18 inches or greater), or the clear cutting of more than 0.50 acre, the applicant shall provide a plan to either replace or provide compensation for the removal of all such trees, to be submitted as part of a pre-application pursuant to 7:36-26.9(d)5. The plan shall provide for the planting of new replacement trees by the applicant or the applicant's agent or shall offer monetary compensation at least equal to the costs that would be incurred with respect to such planting of the replacement trees, subject to the following:

i. All reasonable efforts shall be made to preserve trees of a significant size (with a DBH of 18 inches or greater), including, but not limited to, if feasible, relocation of infrastructure, roadways and buildings. Removal of such trees from parkland requires the specific approval of the Department and may require additional compensation;

ii. The plan shall indicate the total number of trees over six inches DBH to be removed, the size and species of each such tree to be removed, and the total number of each species to be removed;

iii. The number of replacement trees to be planted shall be calculated on a square inch by square inch basis; however, the number of replacement trees may include trees required to be planted as a mitigation measure by another Department permitting program for the same project for which the disposal or diversion of parkland is proposed or the substitution of comparable wooded replacement land;

iv. The size of the replacement trees shall not be less than two-inch caliper;

v. The plan may take into account the condition of trees which are dead, dying or diseased, and may assert preexisting legal rights pertaining to tree removal (such as tree clearing rights in utility corridors), in proposing replacement trees or monetary compensation for tree replacement;

vi. The replacement trees shall be planted in location(s) determined as follows:

(1) If the parkland to be disposed of or diverted is a portion of a larger parcel of parkland, the replacement trees shall be planted within the larger parcel of parkland; or

(2) If the parkland to be disposed of or diverted constitutes the entire parcel of parkland, the replacement trees shall be planted on funded or unfunded parkland in the same municipality as the parkland that is proposed to be disposed or diverted;

vii. The species of the replacement trees shall be native species as appropriate to the planting site;

viii. The proposal shall include a planting plan describing the methods to be used, setting forth appropriate timing constraints on when planting may be carried out, and proposing planting sites for each replacement tree;

ix. The proposal shall include a maintenance commitment, including a commitment to water and prune the new trees, as needed, and to replace any replacement tree which does not survive for at least two years; and

x. The planting and maintenance of replacement trees shall conform to the standards set forth in the "American National Standard for Tree Care Operations--Tree, Shrub and Other Woody Plant Maintenance--Standard Practices," ANSI A300.1-1995, approved June 1, 1995, which document is incorporated herein by reference (as amended and supplemented). A copy of this document may be obtained at the following address:

American National Standards Institute

11 West 42nd Street

New York, New York 10036

xi. The proposal shall be certified by a forester in good standing on the Approved Forester List established by the Department pursuant to N.J.A.C. 7:3-2. By such certification the forester shall attest that the proposal conforms with the requirements of (c)4i through x above;

xii. Applicants are encouraged, to the extent feasible, to utilize the best management practices recommended for reforestation in the New Jersey Forestry and Wetlands Best Management Practices Manual.

(d) Replacement land proposed by the applicant as compensation for a major disposal or diversion of parkland shall meet the following requirements:

1. The preliminary compensation proposal submitted by the applicant under 7:36-26.9(d)5 shall include the following:

i. A description of the replacement land;

ii. A description of the intended use for recreation and conservation purposes of the replacement land;

iii. The size and location of the land to be acquired; and

iv. The block and lot number and acreage of the proposed replacement land;

2. The proposed replacement land shall be eligible to be used as replacement, as follows:

i. Land that falls under one or more of the following categories is eligible to be used as replacement land under this subchapter:

(1) Land held by a local government unit for general municipal or county purposes that does not qualify as parkland under one or more of the factors at 7:36-25.3(f);

(2) Land described in a local government unit's current master plan as proposed or future parkland that does not qualify as parkland under one or more of the factors at 7:36-25.3(f);

(3) Vacant land for which there is no evidence of any intended use by the local government unit and that does not qualify as parkland under one or more of the factors at 7:36-25.3(f);

(4) Privately-owned land, including recreation and conservation facilities and private parkland that are not deed restricted or encumbered with an easement or other legal instrument for recreation and/or conservation purposes;

(5) Recreation and conservation facilities and parkland owned by a nonprofit organization that are not encumbered with Green Acres restrictions or deed restricted for recreation and/or conservation purposes;

(6) Board of Education property, except lands leased to or otherwise controlled by a local government unit in connection with a Green Acres development project; and/or

(7) Land owned by a water utility, municipal utilities authority, improvement authority, or other public or quasi-public agency for other than a recreation and conservation purpose, except lands leased to or otherwise controlled by a local government unit in connection with a Green Acres development project;

ii. Land that falls under one or more of the following categories is not eligible to be used as replacement land under this subchapter:

(1) Land already encumbered by Green Acres restrictions as funded or unfunded parkland;

(2) Land that qualifies as parkland under one or more of the factors at 7:36-25.3(f);

(3) Land purchased by or developed by a local government unit for recreation and conservation purposes between its most recent time of receipt of Green Acres funding and the approval by the Commissioner and the State House Commission of an application for proposed disposal or diversion, whether or not such land is legally encumbered with Green Acres restrictions at the time of such approval, except for land specifically identified by the applicant as replacement land at the time of its acquisition; and/or

(4) Land purchased by a local government unit in whole or in part with funds from a dedicated county or municipal open space tax authorized under 40:12-15.1 through 15.9 or with bonds financed with a dedicated open space tax; and

iii. The Department shall determine on a case by case basis the eligibility of land in the following categories for use as replacement land:

(1) Land already encumbered by a conservation restriction or other partial deed restriction;

(2) Land held by or managed by a homeowner's association;

(3) Land held by a local government unit as a result of or as a condition of subdivision approval; and

(4) Land leased to or otherwise controlled by a local government unit in connection with a Green Acres development project;

3. In no case shall the acreage of the replacement land be less than the acreage of the parkland to be disposed of or diverted. For example, if an applicant proposes to provide compensation through a combination of replacement land and monetary compensation, the ratio of the replacement land to the parkland proposed to be disposed of or diverted shall be at least 1:1;

4. The minimum acreage of the replacement land to be provided for a specific type of disposal or diversion of parkland shall be determined in accordance with the provisions of Table 1 at (g) below;

5. For applications proposing replacement land as the only form of compensation, the proposed replacement land shall have a market value that is 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. In evaluating the usefulness of the proposed replacement land, the Department shall pay particular attention to ensuring that parks that provide services to significant populations are replaced with recreation areas that serve the same, if not broader population;

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;

8. The replacement lands shall be located in the same municipality in which the parkland proposed for disposal or diversion is located. However, if no such lands are available, the applicant may propose replacement lands in the same subwatershed or watershed as the parkland proposed for disposal or diversion;

9. The replacement land shall not consist of land on which streets are shown on a subdivision plan as either offered for dedication or dedicated but not constructed (also known as "paper streets"), unless the paper streets are an integral part of a larger parcel of proposed replacement land or are suitable to serve an independent recreation or conservation purpose and are vacated by ordinance; and

10. The proposed replacement land shall either be free of contamination by hazardous substances or shall be remediated to the Department's satisfaction prior to its dedication as parkland. If the proposed replacement land has a current or past industrial use, appears to have been disturbed based on a review of aerial photography or a site inspection, or Green Acres receives information about the replacement land that indicates that it has a history of contamination, the applicant shall submit a preliminary assessment report for the replacement land as part of the preliminary compensation proposal required by 7:36-26.9(d)5. Such report shall contain the information required under the Technical Requirements for Site Remediation, N.J.A.C. 7:26E. Green Acres shall review the preliminary assessment report to determine if the report contains the required information and shall notify the applicant as follows:

i. If the preliminary assessment report does not contain the required information, Green Acres shall send the applicant a deficiency letter identifying the information that must be submitted and asking the applicant to resubmit the preliminary assessment report with this information;

ii. If the preliminary assessment report contains the required information and does not identify any areas of concern, as defined under the Technical Requirements for Site Remediation, Green Acres shall send the applicant a letter acknowledging the sufficiency of the preliminary assessment report. The chief executive officer of the applicant shall certify, on a form obtained from Green Acres with the sufficiency letter, that the applicant has reviewed the preliminary assessment report and determined to proceed with the application for approval of the disposal or diversion. The applicant shall return the certification to Green Acres as part of a final compensation proposal submitted as part of the final application for a major disposal or diversion of parkland under N.J.A.C. 7:36-20.11(b)5; or

iii. If the preliminary assessment report contains the required information and identifies one or more areas of concern, as defined under the Technical Requirements for Site Remediation, Green Acres shall send a letter notifying the applicant that a plan for addressing the areas of concern to the Department's satisfaction must be submitted as part of a final compensation proposal submitted as part of the final application for a major disposal or diversion of parkland under 7:36-26.11(b)5 before the application will be submitted for Commissioner and State House Commission approval.

(e) Monetary compensation proposed by the applicant as compensation for a major disposal or diversion of parkland shall meet the following requirements:

1. The minimum amount of monetary compensation to be provided for a specific type of disposal or diversion of parkland shall be determined in accordance with Table 1 at (g) below and-subject to the limitations of (i) through (k) below;

2. No county or municipal open space tax funds levied under 40:12-15.1 through 15.9 or other dedicated recreation and conservation funding sources may be used as monetary compensation under this subchapter;

3. If the applicant proposes to use the monies for construction of parkland improvements, the preliminary compensation proposal submitted under 7:36-26.9(d)5 shall include the following:

i. A detailed description of the type, cost, location and intended use of the parkland improvements to be constructed;

ii. Drawings or plans for the parkland improvements, if available; and

iii. The timetable or schedule for construction of the parkland improvements;

4. If the applicant proposes to use the monies for land acquisition, the preliminary compensation proposal submitted under 7:36-26.9(d)5 shall include the information at (d)1 above, to the extent known at the time of the submittal; and

5. The applicant must demonstrate the ability to, immediately upon approval of the application by the Commissioner and the State House Commission under 7:36-26.11(j) and (k):

i. Remit the monies in full to Green Acres for deposit into the GSPT Fund in accordance with 7:36-26.11 (l); or

ii. Deposit the monies into a dedicated account to be used only for purposes consistent with the approval, if the application as approved by the Commissioner and the State House Commission under 7:36-26.11(j) and (k) allows the applicant to retain the monies for its use for parkland improvements or land acquisition.

(f) Valuation of the parkland proposed for disposal or diversion and/or the proposed replacement land shall be determined in accordance with the following:

1. For the purposes of this section, the market value of the parkland proposed to be disposed of or diverted shall be based on the highest and best use or the use intended for the land subsequent to its disposal or diversion, whichever would result in a higher market value;

2. In submitting a preliminary compensation proposal as part of a pre-application under 7:36-26.9(d)5, the applicant may determine the market value of the parkland proposed for disposal or diversion and/or the market value of the proposed replacement land by using either the tax assessor's certification required by 7:36-26.9(d)4 or an appraisal obtained by the applicant and performed in accordance with 7:36-8.3 or 19.3, as applicable; and

3. If authorized by the Department to submit a final application in accordance with 7:36-26.9(h)3, the applicant shall either obtain an appraisal of both the parkland proposed for disposal or diversion and the proposed replacement land or request an appraisal waiver under (1) below. Any appraisal obtained by the applicant to fulfill the requirements of 7:36-26.11(c)1 shall be performed in accordance with 7:36-8.3 or 19.3, as applicable.

(g) The minimum amount of compensation that shall be provided for a major disposal or diversion of parkland that consists of an easement under, over or through parkland or that consists of the disposal or diversion of parkland shall be determined in accordance with Table 1 below and the provisions of (h) through (k) below:

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(h) For the purposes of this section, including Table 1 in (g) above, 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 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.

(i) Criteria for the selection of replacement land or monetary compensation under Table 1 in (g) above for a major disposal or diversion of parkland which consists of an easement under, over or through parkland are as follows:

1. If the applicant chooses to offer replacement land as compensation, the applicant may offer either a surface easement to be used for recreation and conservation purposes (such as a permanent trail easement) or a fee simple interest in land as the replacement land; and

2. If the applicant chooses to offer monetary compensation, the minimum amount that the applicant may offer is $ 2,500, even if a lesser amount would otherwise be determined utilizing the ratios in Table 1 to determine the minimum monetary compensation needed.

(j) Criteria for the selection of replacement land or monetary compensation under Table 1 in (g) above for a major disposal or diversion of parkland which consists of the disposal or diversion of parkland are as follows:

1. If the applicant chooses to offer replacement land as any part of the proposed compensation, the applicant shall either:

i. Obtain and submit for the Department's review as part of the final application submitted under 7:36-26.11(b)1, an appraisal for the parkland for which the disposal or diversion is proposed and apply the ratio in Table 1 at (g) above applicable to land for which no appraisal waiver is obtained to determine the minimum acreage needed for compensation; or

ii. Obtain an appraisal waiver pursuant to (l) below and apply the ratio in Table 1 at (g) above applicable to land for which an appraisal waiver is obtained to determine the minimum acreage needed for compensation;

2. If the applicant chooses to offer only monetary compensation, the following restrictions shall apply:

i. The size of the parkland proposed for disposal or diversion must be less than five acres and must comprise less than five percent of the total parkland parcel;

ii. Except as provided in (j)2iii below, the minimum compensation amount is $ 5,000, even if a lesser amount would otherwise be determined utilizing the ratios in Table 1 in (g) above to determine the minimum monetary compensation needed;

iii. The Department may require additional monetary compensation as necessary to adequately compensate for the impact of the proposed disposal or diversion on the surrounding parkland; and

iv. If the disposal or diversion is proposed for a project that is classified as "private" under (h) above, the monies may only be used by the applicant for land acquisition, and not for parkland improvements;

3. If the applicant has, contrary to the Green Acres laws, allowed the diversion or disposal or parkland without the approval of the Commissioner and the State House Commission, and is seeking approval of the diversion or disposal in order to legalize this past and/or continuing action and/or inaction, the following shall apply:

i. The applicant shall utilize the ratios in Table 1 in (g) above pertaining to legalizing past diversions or disposals;

ii. If mitigating circumstances apply, the applicant may request that the Department allow the applicant to use ratios that are less than the applicable ratios in Table 1 in (g) above for legalizing past diversions or disposals, in consideration of those mitigating circumstances. However, in no case shall the Department consider compensation at a ratio of less than 1:1 (for diversions or disposals involving easements) or 2:1 (for other diversions or disposals), as applicable;

iii. If the proposed disposal or diversion is for a project that is classified as "public" under (h) above, the applicant may not choose to offer monetary compensation to be used for parkland improvements, rather, the applicant shall offer either replacement land or monetary compensation to be used for land acquisition;

iv. If the proposed disposal or diversion is for a project that is classified as "private" under (h) above, the applicant may not choose to offer monetary compensation for parkland improvements and may not obtain an appraisal waiver; rather, the applicant shall offer either replacement land or monetary compensation to be used for land acquisition under the applicable ratios in Table 1 in (g) above or an alternate ratio approved by the Department pursuant to (j)3ii above; and

v. If the applicant offers monetary compensation to be used for land acquisition under (j)3iii or iv above, the minimum compensation amount is $ 10,000, even if a lesser amount would otherwise be determined utilizing the ratios in Table 1 in (g) above to determine the minimum monetary compensation needed.

(k) If an applicant is authorized pursuant to (e)5 above and 7:36-26.11 (l) and (m) to retain its compensation monies to be used for parkland improvements or land acquisition, the applicant shall utilize the monies in accordance with the following:

1. An applicant that is approved to utilize its monies for parkland improvements shall:

i. Utilize the monies for new parkland improvements and not for improvements that were already budgeted and/or approved by the applicant; and

ii. Complete the parkland improvements within one year of the date of approval of the application for the disposal or diversion of parkland by the State House Commission. For good cause shown, the Department may grant one six-month extension of this deadline;

2. An applicant that is approved to utilize its monies for land acquisition shall:

i. Utilize the monies for acquisition of land that meets the criteria for replacement land at (d) above;

ii. At least 30 days prior to each acquisition of replacement land using money from a dedicated account established under (e)5 above, the applicant shall submit to Green Acres for review all remaining pre-application requirements and final application requirements pertaining to the replacement land as provided at 7:36-26.9(d) and 26.11(b); and

iii. Complete the land acquisition within two years of the date of the approval of the application for the disposal or diversion of parkland by the State House Commission. For good cause shown, the Department may grant one six-month extension of this deadline; and

3. If the applicant does not complete the parkland improvements or land acquisition within the time frames specified in (k)1ii and 2iii above, the Department may, upon 30 days' written notice, require that the applicant remit to Green Acres the full amount of the approved monetary compensation for deposit in the GSPT Fund.

(l) An applicant may obtain an appraisal waiver in accordance with the following procedures:

1. The applicant shall submit to Green Acres a certification by the tax assessor of the local government unit where the land is located that the proposed replacement land is of at least equal market value and has substantially similar development potential to the parkland to be disposed of or diverted. The certification shall be on a form obtained from Green Acres;

2. Green Acres shall review the submittal to determine if it is complete. The failure of the applicant to provide complete information on the tax assessor's certification, including valuation information, shall be sufficient grounds for denial of an appraisal waiver request; and

3. If Green Acres determines that the submittal is complete, and if it concurs based on the tax assessor's certification and any other available information, that the proposed replacement land is of at least equal market value and of substantially similar development potential, Green Acres may, in its discretion, waive the appraisal requirement for the application.

(m) All replacement lands dedicated as parkland as a condition of the approval of a disposal or diversion of funded parkland, including lands purchased by the applicant with monetary compensation, shall be subject to Green Acres restrictions as funded parkland, and the deed for each replacement parcel shall incorporate the Green Acres restrictions by reference.

(n) If the parkland proposed to be disposed of or diverted comprises no more than three acres and no more than five percent of the area of the park in which it is located, the local unit or nonprofit may propose to compensate for the disposal or diversion by "banking" a parcel of land that is significantly larger than the replacement land that would otherwise be required under this section. The local unit shall specify the portion of the banked parcel that replaces the parkland initially proposed to be disposed of or diverted, and shall reserve the remainder of the banked parcel. The following conditions apply to the reserved remainder:

1. The reserved remainder shall be subject to Green Acres restrictions as of the date that the local unit or nonprofit executes a written agreement with Green Acres establishing the land compensation "bank" subsequent to Commissioner and State House Commission approval under this subchapter of the initial disposal or diversion;

2. The local unit or nonprofit shall use the reserved remainder only as replacement land for subsequent proposed disposals or diversions of funded or unfunded parkland that comprise no more than three acres and no more than five percent of the area of the park in which it is located;

3. Any subsequent proposed disposal or diversion of parkland for which the banked remainder of the parcel is used as replacement land shall meet all the requirements of this subchapter; and

4. Acceptance and/or approval of a proposal to bank replacement land under this section is within the sole discretion of the Department.

(o) For a project that will neither fulfill a compelling public need nor yield a significant public benefit as defined at 7:36-26.1(d)1, the applicant shall propose compensation in excess of that which would otherwise be required under this section, sufficient to establish that, due to the amount of the proposed compensation alone, the proposed major diversion or disposal will result in an exceptional recreation and/or conservation benefit.

(p) All compensation proposed by the applicant under this section is subject to review by Green Acres and requires the approval of the Commissioner and the State House Commission under 7:36-26.11(j) and (k).

N.J. Admin. Code § 7:36-26.10