N.J. Admin. Code § 7:36-26.2

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

Section 7:36-26.2 - Minor and major disposals or diversions of funded or unfunded parkland

(a) The Department shall classify a proposed disposal or diversion of funded or unfunded parkland as either a minor or major disposal or diversion. A local government unit or nonprofit shall utilize the procedures set forth at 7:36-26.3 through 26.6 to apply for approval of a minor disposal or diversion of parkland. A local government unit or nonprofit shall utilize the procedures set forth at 7:36-26.7 through 26.11 to apply for approval of a major disposal or diversion.

(b) The Department will classify the following as a minor disposal or diversion of parkland:

1. A diversion through the granting of an easement, whether surface or subsurface, over, under or through up to one acre of parkland, provided the following criteria are met:

i. The easement will be granted to a public entity or the agent of a public entity for a project that serves a public purpose;

ii. The easement will occupy less than 10 percent of the total area of the parkland parcel;

iii. The total cumulative area of parkland affected by the project for which the easement is requested is limited as follows, whether the request for disposal or diversion of parkland is made in a single application or incrementally through multiple applications submitted in phases over time:

(1) If only one parkland parcel is affected by the project, the total area of parkland disposed of or diverted for the project, including the area affected by the easement, will not exceed one acre; and

(2) If more than one parkland parcel is affected by the project, the total area of parkland disposed of or diverted for the project, including the area affected by easement, will not exceed two acres.

iv. The easement will not have a significant adverse impact on the intended use by the applicant or the public of the parkland parcel and of any surrounding parkland and will not result in any permanent net loss of recreation and conservation facilities; and

v. The easement will not have a significant adverse impact on the natural resource values of the parkland parcel and of any surrounding parkland;

2. A disposal of up to 0.50 acre of parkland through the transfer or sale of a fee simple interest, or the diversion of up to 0.50 acre of parkland through the granting of a lease or use agreement for other than recreation and conservation purposes for a term that exceeds the limitations set forth in 7:36-25.14, or the lease of an existing non-historic building on up to 0.50 acre of parkland for other than recreation and conservation purposes, provided the following criteria are met:

i. The disposal or diversion is requested by a public entity or the agent of a public entity for a project that serves a public purpose;

ii. The disposal or diversion will involve less than five percent of the total area of the parkland parcel;

iii. The total area of parkland affected by the project for which the disposal or diversion is requested is limited as follows, whether the request for disposal or diversion of parkland is made in a single application or incrementally through multiple applications submitted in phases over time:

(1) If only one parkland parcel is affected by the project, the total area of parkland disposed of or diverted for the project, including the area affected by the proposed disposal or diversion, will not exceed 0.50 acre; and

(2) If more than one parkland parcel is affected by the project, the total area of parkland disposed of or diverted for the project, including the area affected by the proposed disposal or diversion, will not exceed one acre.

iv. The disposal or diversion will not have a significant adverse impact on the use by the applicant or the public of the parkland parcel(s) and of any surrounding parkland by the public and will not result in any permanent net loss of recreation and conservation facilities; and

v. The disposal or diversion will not have a significant adverse impact on the natural resource values of the parkland parcel and of any surrounding parkland;

3. A conveyance, through the transfer or sale of a fee simple interest or easement, of up to 0.50 acre of parkland to the owner of an adjacent property in order to resolve a boundary dispute, encroachment or access dispute, provided the following criteria are met:

i. The applicant demonstrates to the Department's satisfaction that the boundary dispute, encroachment or access dispute existed prior to the time of receipt of Green Acres funding as it pertains to the parkland proposed for conveyance;

ii. The disposal or diversion will not have a significant adverse impact on the intended use of the remainder of the parkland parcel and of the surrounding parkland by the applicant or the public, and will not result in any permanent net loss of recreation and conservation facilities;

iii. The disposal or diversion will not have a significant adverse impact on the natural resource values of the remainder of the parkland parcel or the surrounding parkland; and

iv. The disposal or diversion will not create access for any use of the adjacent property that did not exist as of the time of receipt of Green Acres funding as it pertains to the parkland proposed for conveyance. For example, the conveyance of access rights to serve a pre-existing residence would be classified as a minor disposal, but the conveyance of access rights that would serve a new residence to be built on the adjacent property or enable subdivision or other development of the adjacent property would be classified as a major disposal;

4. A disposal of parkland as part of an exchange for other land which is of at least equal acreage and located within the same block and lot as the parkland to be disposed of, other contiguous land held by the applicant that is not classified as parkland, or an adjacent parcel owned by another landowner, provided the following criteria are met:

i. The disposal is either requested by a public entity or the agent of a public entity or is initiated by the applicant;

ii. The exchange is for a project that will fulfill a public purpose that facilitates or supports the recreation and conservation use of the parkland. For purposes of this subparagraph, "public purpose" may include the exchange of acreage between the applicant and the owner of an adjacent property in order to resolve a boundary dispute, encroachment or access dispute that existed prior to the time of receipt of Green Acres funding as it pertains to the property proposed for exchange. However, the resolution of encroachments arising after the time of receipt of Green Acres funding as it pertains to the parkland proposed for exchange shall not constitute a public purpose under this paragraph. Examples of projects that may qualify under this subparagraph include, but are not limited to, the relocation of roads or utilities within a park to improve the functioning of the park. A land exchange that facilitates or supports a public purpose other than recreation and conservation purposes will be processed as a major disposal or diversion of parkland under 7:36-26.7 through 26.11;

iii. The applicant demonstrates to the Department's satisfaction that the market value and natural resource value of the properties to be exchanged is reasonably equivalent or that the land to be transferred to the applicant is of greater market value and natural resource value than the land proposed to be disposed of;

iv. The disposal will not have a significant adverse impact on the intended use of the remainder of the parkland parcel and of any surrounding parkland by the applicant or the public, and will not result in any permanent net loss of recreation and conservation facilities;

v. The disposal or diversion will not have a significant adverse impact on the natural resource values of the remainder of the parkland parcel and of any surrounding parkland; and

vi. The exchange will not compromise the integrity of the parkland boundary; and

5. A diversion for the construction of a building for public indoor recreation on funded parkland, provided the following criteria are met:

i. The diversion will involve less than 50,000 square feet of disturbance or occupy no more than five percent of the total area of the parkland parcel not already occupied by structures or impervious coverage, measured cumulatively from January 3, 2006, whichever is less. For the purposes of this subparagraph, the area of the proposed diversion includes all associated facilities, including parking lots, access roads and utilities;

ii. The diversion will not have a significant adverse impact on the use by the applicant or the public of the parkland parcel or any surrounding parkland and will not result in any permanent net loss of recreation and conservation facilities; and

iii. The diversion will not have a significant adverse impact on the natural resource values of the parkland parcel and of any surrounding parkland.

(c) Any disposal or diversion of parkland that does not meet the criteria at (b) 1 through 5 above shall be classified as a major disposal or diversion of parkland. If an applicant applies for approval of a disposal or diversion in accordance with the application procedures for a minor disposal or diversion of parkland and the Department determines that the proposal does not meet one or more of the criteria at (b)1 through 5 above, the Department shall direct the applicant to reapply in accordance with the procedures at 7:36-26.7 through 26.11.

N.J. Admin. Code § 7:36-26.2