N.J. Admin. Code § 7:36-25.13

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

Section 7:36-25.13 - Leases, use agreements, or concession agreements for recreation and conservation purposes on funded or unfunded parkland

(a) If a local government unit or nonprofit seeks to enter into or to renew a lease or use agreement which would support or promote the use of funded parkland or a recreation and conservation facility on the funded parkland for recreation and conservation purposes, the local government unit or nonprofit shall submit the proposed lease or agreement to the Department for approval at least 45 days before it intends to execute the lease or agreement. Any such lease or use agreement that is executed without the Department's approval is void and of no legal effect.

(b) The lease or agreement shall:

1. Be awarded in compliance with the Local Public Contracts Law, 40A:11-1 -et seq., the Local Land and Buildings Law, 13:12-1 et seq. and 7:36-25.6, as applicable;

2. Describe the specific use to which the parkland or facility will be put during the term of the lease or agreement and explain how this use will promote the use of funded parkland for recreation and conservation purposes;

3. Require that the public shall have reasonable access during the term of the lease or agreement to the parkland or facility which is the subject of the lease or agreement;

4. Establish the initial term of the lease or agreement pursuant to the following:

i. The lease or agreement shall provide for an initial term of no more than five years, or for good cause shown (such as the proposed construction of substantial capital improvements by the lessee or parkland user), provide for a longer initial term of less than 25 years; or

ii. The lease or agreement may provide for an initial term of 25 years or more; however, a term of 25 years or more shall be deemed to constitute a conveyance of parkland and requires the approval of the Commissioner and the State House Commission under N.J.A.C. 7:36-26.

5. Establish that the local government unit or nonprofit may, subject the approval of the Department at the end of the initial term and each additional term, renew the lease or agreement at the end of the initial term and thereafter for additional terms. Any renewal term shall be for no more than five years, or for good cause shown less than 25 years, unless a longer renewal term is approved by the Commissioner and the State House Commission in accordance with N.J.A.C. 7:36-26. The Department shall evaluate a request for renewal of a lease or agreement under the substantive standards for lease approval at (d) below;

6. Specify the payment, rental, or other consideration to be paid by the lessee or parkland user to the local government unit or nonprofit for the lease or use of the parkland;

7. Require that the lessee or parkland user comply with the lease, the applicable requirements of this subchapter, and any deed restrictions pertaining to the parkland;

8. Specify that any activities conducted on parkland under the lease or agreement are governed by the requirements of this chapter, the lease and any deed restrictions pertaining to the parkland;

9. Require the lessee or parkland user to name the Department as an additional insured under any insurance policy required by the lease or agreement, such that the Department shall have in all respects at least the same protections as the policy provides to the lessee, parkland user, local government unit or nonprofit; and

10. If the parkland is to be leased or used for agriculture, require that:

i. The parkland shall be farmed using management practices that conserve soil and water, such as those agricultural management practices approved by the State Agriculture Development Committee under the Right to Farm Act, 4:1C-1 et seq., and that minimize the use of herbicides, pesticides, and fertilizers in accordance with the Pesticide Control Code at N.J.A.C. 7:30;

ii. Any forests on the parkland to be leased or used shall be managed in accordance with the New Jersey Forestry and Wetlands Best Practices Manual; and

iii. The agricultural use of the parkland shall not adversely impact any documented occurrence of a threatened, endangered, or rare species or the habitat of such species.

(c) If the use of the parkland under the proposed lease or agreement will have an adverse impact on the natural resource values of the parkland, the local government unit or nonprofit shall require that the person seeking the lease or agreement propose a compensatory mitigation plan. If the plan is accepted by the local government unit or nonprofit and approved by the Department, implementation of the plan shall be included as a mandatory condition of the lease or agreement. The Department will not approve any lease or agreement, or a renewal thereof, under this subsection unless:

1. It is satisfied with the character, quality and extent of the mitigation and restoration proposed by the local government unit or nonprofit and the commitment of the lessee or parkland user to implement the plan; or

2. The proposed lease or agreement is approved as a diversion or disposal of parkland by the Commissioner and the State House Commission in accordance in accordance with N.J.A.C. 7:36-26.

(d) The Department will consider the following factors in determining whether to approve or deny a lease or use agreement, or a renewal thereof, under this section:

1. Whether the lease was awarded in compliance with the Local Public Contracts Law, 40A:11-1 et seq., the Local Land and Buildings Law, 13:12-1 et seq. and 7:36-25.6, as applicable;

2. Whether the lease or agreement will sufficiently promote or support recreation or conservation purposes;

3. Whether the lease or agreement will provide reasonable public access to the funded parkland;

4. Whether the lease or agreement complies with the requirements of (b) and (c) above;

5. Whether the lease or agreement will provide sufficient compensation (payment, rental or other consideration) for allowing the proposed use of the parkland or a facility on parkland;

6. If the lease or agreement would have a term of 25 years or more or would otherwise constitute a diversion or disposal of parkland, whether the lease or agreement has received prior approval of the Commissioner and the State House Commission in accordance with N.J.A.C. 7:36-26;

7. If the lease or agreement would have an adverse impact on the natural resource values of the parkland, whether the lease or agreement includes a compensatory mitigation plan which would adequately compensate for the adverse impact and/or adequately restore the parkland; and

8. With respect to renewals, in addition to (d)1 through 7 above:

i. Whether the lessee or parkland user failed to meet one or more terms of the prior lease or agreement or to demonstrate sound administrative or management practices;

ii. If the lessee or parkland user is seeking a renewal term of more than five years, whether the local government unit or nonprofit has shown good cause for the lessee's or parkland user's holding or continuing to hold a long term lease; or

iii. Whether the local government unit or nonprofit used compensation (payments, rentals or other consideration) it received under the prior lease or agreement for purposes other than those allowed under (e) below.

(e) A local government unit or nonprofit that enters into a lease or use agreement under this section shall use any payments, rentals, or other consideration it receives under the lease or agreement for operating, maintenance, or capital expenses related to its funded parkland or to its recreation program as a whole.

(f) A local government unit or nonprofit may operate a recreational facility on funded parkland through a concession agreement awarded by competitive bidding in accordance with applicable law. The concessionaire shall pay any payments or rentals collected directly to the local government unit or nonprofit, who shall use such payments or rentals for operating, maintenance or capital expenses related to its funded parkland or its recreation program as a whole.

(g) A local government unit may enter into or renew a lease or use agreement which would promote or support the use of unfunded parkland for recreation and conservation purposes without the prior approval of the Department, provided the lease or use agreement complies with the requirements of (b) through (e) above. At its option, the local government unit may submit the lease or use agreement to the Department for review and approval. A copy of any lease or use agreement executed by a local government unit under this subsection shall be made available to the Department upon its request. Any lease or agreement executed by a local government unit under this subsection that does not comply with (b) through (e) above is void and of no effect.

N.J. Admin. Code § 7:36-25.13