N.J. Admin. Code § 7:36-25.3

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

Section 7:36-25.3 - Amendment of Recreation and Open Space Inventory (ROSI)

(a) If a local government unit believes a ROSI submitted to the Department as a component of a project agreement pursuant to 7:36-9.1 or 14.1 does not accurately or completely describe the lands held for recreation and conservation purposes at the time of receipt of Green Acres funding, or that any information provided for land on the ROSI is inaccurate or incomplete, the local government unit shall submit a request to the Department for an amendment to the ROSI.

(b) A local government unit's request for a ROSI amendment shall be submitted in writing and may propose addition or removal of a parcel of land or an interest in a parcel of land from the ROSI, an increase or decrease in the area of a parcel listed on the ROSI, or correction of the block and lot identification of a parcel listed on the ROSI. The ROSI amendment request shall include adequate documentation for the Department to evaluate the request under (f) below.

(c) The inclusion of a parcel on any ROSI submitted by a local government unit in connection with a land acquisition or park development project funded by Green Acres shall create a rebuttable presumption that the parcel in question, and any portion thereof, is encumbered with Green Acres restrictions, whether or not the parcel or portion of the parcel was removed by the local government unit from a subsequent ROSI.

(d) The local government unit shall bear the burden of proving the merits of any ROSI amendment request filed pursuant to (a) above. The failure of the local government unit to provide adequate documentation to support its request and/or to demonstrate that there is a bona fide inaccuracy in the ROSI shall be sufficient grounds for the Department to deny a request under this section.

(e) The addition of parcel(s) to a ROSI to update the ROSI as part of a Green Acres funding application under 7:36-6.4 or 12.4 or the removal of parcel(s) from the ROSI as a result of a transfer of parkland that complied with the requirements of 7:36-25.5 shall not constitute an amendment under this section; however, any other addition or removal of a parcel(s) from the ROSI or acreage changes to a previously-listed parcel(s) must still comply with the procedural requirements of this section.

(f) The Department shall consider the following in evaluating a ROSI amendment request:

1. The purpose for and the method by which the local government unit acquired the parcel, including whether' the local government unit acquired the parcel for recreation and conservation purposes or used a funding method that was dedicated to recreation and conservation purposes;

2. Any evidence relevant to the local government unit's intentions regarding the use of the parcel or portion of the parcel at the time of acquisition and at the time of receipt of Green Acres funding, including, but not limited to:

i. Whether the local government unit took any formal action to dedicate the parcel for recreation and conservation purposes;

ii. Whether the local government unit took any formal action to dedicate the parcel for any other purpose;

iii. Whether the parcel is identified with a recreation or conservation designation or as existing parkland on the official map of the municipality, on its zoning map, in the local government unit's master plan, or in any other official publication of the local government unit; or

iv. Whether the parcel is identified as parkland by signs placed by or approved by the local government unit or by any other means;

3. Any evidence relating to any use of the property for recreation and conservation purposes by the public at or prior to the time of receipt of Green Acres funding that was acknowledged, acquiesced, encouraged, funded, or supported by the local government unit, including whether recreation equipment was installed upon or other improvements were made to the property to facilitate use of the property for recreation and conservation purposes, by or with the authorization of the local government unit; and

4. Any evidence relating to the exemption of the property from Green Acres restrictions under N.J.S.A. 13:8A-47b(2)(a) or 13:8C-32b(2)(a) due to its inclusion in a redevelopment plan adopted pursuant to 40A:12A-7 prior to July 18, 2002. A local government unit claiming such exemption shall also demonstrate that:

i. The property was not acquired or developed for recreation or conservation purposes with financial assistance in whole or in part provided by the State; the Federal Land and Water Conservation Fund established under 16 U.S.C. §§ 4601-4 et seq.; the Federal "Urban Park and Recreation Recovery Act of 1978," 16 U.S.C. §§ 2501 et seq.; or a county or local open space trust fund created pursuant to 40:12-15.1 et seq.; and

ii. The local government unit has not adopted an ordinance or resolution specifically including the property on the ROSI.

(g) The Department shall review the ROSI amendment request submitted by the local government unit pursuant to (a) above, taking into account the considerations at (f) above, and shall take one of the following actions:

1. If the Department determines on the basis of the information provided by the local government unit that a request to correct the block and lot identification or a typographical error in the listing of the size of a parcel has unequivocal merit, that the local government unit has established the true size of the Green Acre-encumbered parcel on the basis of a survey reviewed and approved by the Department, or that the local government unit never owned, leased or otherwise controlled the property in question, it shall approve the local government unit's request in writing. The local government unit shall amend the ROSI, record a new declaration which includes the amended ROSI with the County clerk or registrar, and return a copy of the recorded declaration to the Department;

2. If the Department determines on the basis of the information provided by the local government unit that the parcel or area in question was used for or held for recreation and conservation purposes at the time of receipt of Green Acres funding with the acknowledgment, encouragement or support (including financial) of the local government unit, the Department shall deny the request to amend the ROSI under (h)1 below; or

3. For all other ROSI amendment requests, including requests for which the Department is not able to determine on the basis of the information provided by the local government unit whether the parcel or portion of the parcel was used for or held for recreation and conservation purposes at the time of receipt of Green Acres funding, the Department shall direct the local government unit to hold a public hearing regarding the requested amendment in accordance with (h) below.

(h) A public hearing held by a local government unit on a ROSI amendment request pursuant to (g)3 above shall be advertised and conducted in accordance with the following procedures:

1. The public hearing shall be held on a weekday in the evening in the municipality in which the property that is the subject of the ROSI amendment request is located. If the property that is the subject of the ROSI amendment request is located in more than one municipality, the public hearing shall be held at a central hearing location that is approved in advance by the Department. The local government unit shall produce a transcript of the public hearing for submission to the Department;

2. At least 30 days prior to the hearing, the local government unit shall:

i. Publish a legal notice of the hearing in the official newspaper(s) of the municipality(ies) in which the property that is the subject of the ROSI amendment request is located and, if the local government unit is a County, also in a local newspaper of general interest and circulation;

ii. Post notice of the hearing on its official web site (if any) in the same manner as other public hearing notices are posted;

iii. Provide written notice of the hearing to Green Acres, the governing body, local planning board(s), environmental commission(s) and open space advisory committee(s) of the municipality(ies) in which the parkland is located, if any, and, if the local government unit is a County, also to the County governing body, County planning board, County environmental commission and County open space advisory committee, if any;

iv. Provide written notice of the hearing via certified mail (return receipt requested) to all persons who own land located within 200 feet of property that is the subject of the ROSI amendment request, and to any easement holders for that land who are listed in the tax records for the municipality(ies) in which the land is located; and

v. Post and maintain in a legible condition until the public comment period is concluded under (h)4v below, a sign on the property that is the subject of the ROSI amendment request or in other prominent location(s) approved by the Department. Such sign shall advise the public of the ROSI amendment request, the public hearing on the proposed ROSI amendment and the opportunity for public comment on the proposed ROSI amendment. Such sign shall be of sufficient size and visibility and contain sufficient detail as to inform the general public of the filing of the ROSI amendment request and the method by which the public may obtain information about such filing, and shall be subject to the Department's approval;

3. At least 15 days prior to the hearing, the local government unit shall publish a display ad in the official newspaper(s) of the municipality(ies) in which the property that is the subject of the ROSI amendment request is located, and, if the local government unit is a County, also in a local newspaper of general interest and circulation; and

4. The notices and advertisements required under (h)2 and 3 above shall include the following information:

i. The name of the applicant and the date, time and location of the public hearing;

ii. A general description of the ROSI amendment request;

iii. The street address (if available), municipality, county, tax map block and lot, and size of the property that is the subject of the ROSI amendment request;

iv. A statement that all information submitted by the local government unit to the Department in support of the ROSI amendment request is available to the public for inspection at the local government unit's business office and the public library that serves the municipality in which the property that is the subject of the ROSI amendment request is located; and

v. A statement inviting participation in the public hearing on the ROSI amendment request and notifying the public that, in the alternative, written comments may be submitted to the local government unit during a public comment period that will close two weeks after the hearing date. The statement shall provide an address for submittal of written comments to the local government unit and shall require that copies of any written comments also be sent to:

New Jersey Department of Environmental Protection

Green Acres Program

Bureau of Legal Services and Stewardship

PO Box 412

Trenton, New Jersey 08625-0412

(i) After the public hearing and the public comment period are concluded and the public comments received have been considered, the local government unit shall determine whether or not to seek the Department's approval of the proposed ROSI amendment request. If it makes a determination to proceed, the local government unit shall provide the Department with the following information within 60 days of the close of the public comment period:

1. Proof of publication of the notice of public hearing required under (h)2i above; proof of publication of the display ad required under (h)3 above; a dated copy of the posting required under (h)2ii above (if applicable); copies of and proof of mailing of the notice required under (h)2iii and iv above; and a proof of the posting and maintenance of a sign as required under (h)2v above;

2. A copy of the transcript of the public hearing as required by (h)1 above;

3. A summary of the public comments made at the public hearing and/or provided in writing during the public comment period and the local government unit's response to the public comments; and

4. Copies of any written information submitted by commenters during the public comment period, including at the public hearing.

(j) Upon receiving the submittal outlined in (i) above, the Department shall conduct a final review of the ROSI amendment request taking into consideration the information provided by the local government unit, the information presented at the public hearing and during the public comment period and any other information reasonably available to the Department. The Department shall not approve the request unless:

1. The information submitted by the local government unit, considered with the information available from other sources, demonstrates to the Department's satisfaction that the amendment will correct a bona fide inaccuracy in the ROSI; and

2. If the requested amendment would remove a parcel or a portion of a parcel from a ROSI, the parcel or portion of parcel in question should not be classified as parkland under the criteria at (f) above.

(k) If the Department approves a request to amend a ROSI, it shall so notify the local government unit in writing. The local government unit shall then amend the ROSI and send it to the Department. The Department shall then either:

1. Direct the local government unit to execute a new declaration containing the amended ROSI. The local government unit shall have the declaration recorded with the County clerk or registrar and shall return a copy of the recorded declaration to the Department within 30 days of the recording date;

2. Approve the incorporation of the amendment as a revision to a ROSI submitted in connection with an application for funding under 7:36-6.4 or 12.4 or a pending project agreement under 7:36-9.1 or 14.1; or

3. Send to the local government unit a legal release of the Green Acres restrictions from the parcel previously listed in the ROSI. The local government unit shall have the release recorded with the County clerk or registrar and return the original of the release to the Department within 30 days of the recording date.

(l) If the Department denies a request to amend a ROSI, it shall so notify the local government unit in writing. The denial of a request to amend a ROSI under this section shall not preclude the local government unit from requesting to divert or dispose of the parcel in question by submitting an application for State House Commission approval of such diversion or disposal under N.J.A.C. 7:36-26.

(m) If the Department, subsequent to its execution of a project agreement, has reason to believe that the ROSI incorporated into the project agreement does not include a parcel or portion of a parcel that was held by a local government unit for recreation and conservation purposes at the time of receipt of Green Acres funding and so should have been listed on the ROSI as unfunded parkland, or that the ROSI includes a parcel or portion of a parcel that was inappropriately listed and should be removed, the Department shall use the following process for determining whether to amend the local government unit's ROSI:

1. The Department shall send the local government unit a letter identifying the parcel or portion of the parcel that should be listed on or removed from the ROSI and stating the basis for its belief that the parcel was either held by or not held by the local government unit for recreation and conservation purposes at the time of receipt of Green Acres funding.

2. If the local government unit agrees that the parcel should be listed on or removed from its ROSI, the local government unit shall promptly amend the ROSI by using one of the methods listed in (k) above.

3. If the local government unit disagrees that the parcel should be listed on or removed from its ROSI, the following procedures shall be utilized:

i. Within 30 days of receiving the Department's letter pursuant to (m)1 above, the local government unit shall submit to the Department documentation supporting its assertion that the land was either held for or not held for recreation and conservation purposes at the time of receipt of Green Acres funding;

ii. The Department shall evaluate the documentation submitted by the local government unit taking into account the considerations listed at (f) above, and then shall notify the local government unit in writing of its final determination that the parcel was or was not held for recreation and conservation purposes at the time of receipt of Green Acres funding; and

iii. If the Department determines that the parcel should be listed on or removed from the ROSI, within 90 days of such determination the local government unit shall amend the ROSI using one of the methods listed in (k) above.

(n) If the Department determines under (m)3ii above that a parcel was held for recreation and conservation purposes at the time of receipt of Green Acres funding, the failure of the local government unit to amend the ROSI and/or record the amended ROSI as directed by the Department under (m) above shall not affect the statutorily-imposed validity of the Green Acres restrictions on the parcel.

(o) The local government unit, or any other person with a constitutional right to request a hearing, may request an adjudicatory hearing under 7:36-25.16 to contest a denial under (m)1 above of a request to amend a ROSI or to contest the Department's determination under (m)3ii above that a parcel was held for recreation and conservation purposes at the time of receipt of Green Acres funding.

N.J. Admin. Code § 7:36-25.3