N.J. Admin. Code § 7:36-26.5

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

Section 7:36-26.5 - Minor disposals or diversions of parkland; compensation

(a) An applicant shall, except as provided at (a)3 below, compensate for a minor disposal or diversion of parkland with eligible replacement land or monetary compensation to be used for the acquisition of land for recreation and conservation purposes or parkland improvements. The minimum compensation required for the minor disposal or diversion of parkland is as follows:

1. For a disposal or diversion of parkland that consists of the granting of an easement over, under or through up to one acre of parkland and that is classified under 7:36-26.2(b)1 as a minor disposal or diversion of parkland:

i. The minimum compensation for the diversion is $ 2,500 for the first 0.10 of an acre of parkland to which the easement would apply and $ 1,000 for every additional tenth of an acre subject to the easement (or partial tenth of an acre, if the area to which the easement applies exceeds a multiple of 0.10 acre); or

ii. If the adjusted tax assessed value or estimated or appraised market value of the impact of the easement on the parkland, as determined pursuant to (d) below, exceeds the minimum compensation due, as calculated pursuant to (a)1i. above, Green Acres shall require payment of the adjusted tax assessed value or estimated or appraised market value instead of the minimum compensation;

2. For a diversion of parkland that entails a lease or use agreement and that is classified under 7:36-26.2(b)2 as a minor disposal or diversion of parkland:

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 reviewed and approved by the Commissioner and the State House Commission;

ii. If a proposed lease or use agreement would involve the removal of trees to facilitate the activities to be conducted under the lease or agreement, Green Acres may require adjustment of the proposed lease terms to compensate for such impacts; and

iii. Any payments, rentals or other consideration received by the applicant from the lease or use agreement shall 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. For a disposal or diversion of parkland that entails the exchange of land for an adjacent property held by a landowner other than the applicant or for other non-parkland owned by the applicant, and that is classified under 7:36-26.2(b)4 as a minor disposal or diversion of parkland, the applicant shall propose, subject to review by Green Acres, the dedication as parkland of replacement land that is:

i. At least equal in area and of at least equal value (from recreational, ecological and monetary perspectives) to the parkland that would be disposed of or diverted;

ii. Located within, adjacent to or contiguous to the parkland proposed to be disposed or diverted; and

iii. Eligible to be used as replacement land under the criteria at 7:36-26.10(d)2;

4. For a disposal or diversion of parkland that entails the disposal or diversion of up to 0.50 acre of parkland and that is classified as a minor disposal or diversion of parkland under 7:36-26.2(b)2 or 3:

i. The minimum compensation is $ 5,000 for disposals or diversions of less than 0.25 acre and $ 10,000 for diversions or disposals of 0.25 to 0.50 acre; or

ii. If the adjusted tax assessed value or estimated or appraised market value of the parkland subject to the disposal(s) or diversion(s), as determined pursuant to (d) below, exceeds the minimum compensation due, as calculated pursuant to (a)4i. above, Green Acres shall require payment of the adjusted tax assessed value or estimated or appraised market value instead of the minimum compensation;

5. For a disposal or diversion of parkland that entails the construction of a building for public indoor recreation on funded parkland and that is classified under 7:36-26.2(b)5 as a minor disposal or diversion of parkland, the applicant shall propose, subject to review by Green Acres, monetary compensation for the disposal or diversion at least equal to the market value of the affected parkland as determined under (d) below. For purposes of this determination, "affected parkland" shall include the footprint of the building and the area of any parking facilities or support structures constructed as part of the public indoor recreation facility; and

6. For a disposal or diversion of parkland that entails the removal of one or more trees 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 of parkland and that is classified under 7:36-26.2(b) as a minor disposal or diversion of parkland, the applicant shall provide compensation for such removal in accordance with a plan submitted by the applicant pursuant to (c)5 below and accepted by Green Acres under 7:36-26.4(i). Such compensation for tree removal shall be in addition to any other compensation required under (a)1, 4 and 5 above.

(b) Monetary compensation for minor disposals or diversions of parkland required pursuant to (a)1, 2, 5 or 6 above shall be remitted to the Department by the applicant for deposit into the GSPT Fund. In the alternative, the Department may approve the use of the monetary compensation by the applicant for a parkland acquisition or parkland development project to be undertaken by the applicant and which is scheduled to be completed within six months of the approval of the minor disposal or diversion.

(c) A compensation proposal submitted under 7:36-26.4(d)5 shall include the following information:

1. If the compensation proposal includes payment of monetary compensation, a statement attesting that the applicant has the ability to make such payment and will:

i. Remit the monies to Green Acres for deposit in the GSPT Fund; or

ii. Retain the monies in a dedicated account to the extent approved by the Department under (b) above for parkland improvements or land acquisition. In such case, the applicant shall indicate whether its intent is to use the monies for parkland improvements or land acquisition, and shall provide the additional information required under (c)2 and 3 below, as applicable;

2. If the compensation proposal includes a proposal to construct parkland improvements, the following information:

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;

3. If the compensation proposal includes the provision of replacement land to be purchased by or received by the applicant in exchange for the parkland, the following information, if known at the time of submission of the pre-application:

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;

4. If the project for which the disposal or diversion of parkland is proposed involves any leases or use agreements for the parkland, a statement that the applicant will utilize any payments, rentals or other consideration received for operating, maintenance or capital expenses related to its funded parkland or to its recreation program as a whole;

5. 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, a plan to either replace or provide compensation for the removal of all such trees. 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 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 trees of significant size (with a DBH of 18 inches or greater) 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," NASI 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)5i 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) For the purposes of this section, the adjusted tax assessed value, market value of the parkland proposed to be disposed of or diverted, or value of the impact of an easement on the parkland shall be based on its highest and best use or the use intended for the land subsequent to its disposal or diversion, whichever would result in a higher value. In determining the adjusted tax assessed value, estimated market value of the parkland, or value of the impact of an easement on the parkland for purposes of this section, including for comparison to the minimum values in (a)1 or 2 above, Green Acres shall rely on:

1. The value statement submitted by the applicant under 7:36-26.4(d)4;

2. Other information reasonably available to Green Acres for the parkland subject to the proposed disposal or diversion or for comparable land in the municipality in which the parkland is located; or

3. In the event Green Acres is not able, to its satisfaction, to establish the adjusted tax assessed value, market value of the affected parkland, or value of the impact of an easement on the parkland based on information provided by the applicant, an appraisal of the parkland proposed for disposal or diversion, obtained by the applicant upon the request of Green Acres and performed in accordance with 7:36-8.2 or 19.2, as applicable.

(e) All replacement lands dedicated as parkland pursuant to (a)3 or (c) above as a result of the disposal or diversion of funded parkland, including lands purchased by the applicant with monetary compensation, shall be subject to the same Green Acres restrictions as funded parkland, and the deed for each replacement parcel shall incorporate the Green Acres restrictions by reference.

(f) All compensation proposed by the applicant under this section and accepted by Green Acres for application review purposes under 7:36-26.4(i) is subject to the approval of the Commissioner and the State House Commission.

N.J. Admin. Code § 7:36-26.5