N.J. Admin. Code § 7:36-26.1

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

Section 7:36-26.1 - Department policy on disposals and diversions; substantive standards

(a) It is the Department's policy to strongly discourage the disposal or diversion of both funded and unfunded parkland. The use of parkland for other than recreation and conservation purposes should be a last resort, and should only be considered by a local government unit or nonprofit when the proposed disposal or diversion is necessary for a project that would satisfy a compelling public need or yield a significant public benefit as defined at (d)1 below.

(b) A local government unit or nonprofit that seeks to dispose of or divert funded or unfunded parkland shall submit an application in accordance with the procedures in this subchapter for approval from the Commissioner and the State House Commission. Any disposal or diversion of parkland without the prior approval of the Commissioner and the State House Commission is void and of no legal effect.

(c) In evaluating applications for the disposal or diversion of parkland, the Department will carefully weigh the competing public interests presented by the project as opposed to the preservation of the parkland in its current condition; the impact of the proposed project on the parkland and other parkland throughout the State; the possible adverse consequences of the project, including the adverse consequences listed in (e) below; the objectives of the GSPT Act; and the proposed compensation in determining whether to approve the application.

(d) No application for the disposal or diversion of parkland under this subchapter shall be approved by the Commissioner and the State House Commission unless the applicant proposing the disposal or diversion complies with all of the procedural requirements of this subchapter and the proposed disposal or diversion meets the following minimum substantive criteria:

1. The disposal or diversion of funded or unfunded parkland is for a project that will:

i. Fulfill a compelling public need, as demonstrated by the applicant in accordance with 7:36-26.4(d)1 iv (minor disposals or diversions of parkland) or 7:36-26.9(d)1iv (major disposals or diversions of parkland), by mitigating a hazard to the public health, safety or welfare;

ii. Yield a significant public benefit, as demonstrated by the applicant in accordance with 7:36-26.4(d)1 iv (minor disposals or diversions of parkland) or 7:36-26.9(d)1iv (major disposals or diversions of parkland), by improving the delivery by the local government unit or nonprofit, or by an agent thereof, of essential services to the public or to a segment of the public having a special need; or, if the purpose of the proposed disposal or diversion is to enable the construction of an inclusionary development as defined by the Fair Housing Act, N.J.S.A. 52:27D-304f, by ensuring that at least 20 percent of the housing units in the development are set aside for low and moderate income households; or

iii. For major disposals or diversions of parkland, provide an exceptional recreation and/or conservation benefit, as demonstrated by the applicant under 7:36-26.10(o), by substantially improving the quantity and quality of parkland, within the boundaries of the local government unit or watershed where the parkland proposed for disposal or diversion is located if feasible, without resulting substantially in any of the adverse consequences listed at 7:36-26.1(e);

2. For a major disposal or diversion of parkland subject to N.J.A.C. 7:36-26.10, the applicant has demonstrated to the Department's satisfaction, through the alternatives analysis required by 7:36-26.9(d)2, that there is no feasible, reasonable and available alternative to the disposal or diversion of funded or unfunded parkland. It shall be the Department's presumption that there is a feasible, reasonable and available alternative not involving parkland for the project for which an applicant seeks to divert or dispose of parkland. The applicant must rebut this presumption through the alternatives analysis in order to obtain the approval of the Commissioner and the State House Commission under this subchapter. If the applicant is not able to rebut this presumption, the Commissioner and the State House Commission may, in their discretion, approve an application for a major disposal or diversion of parkland based on the exceptional recreation and/or conservation benefit to be provided by the applicant;

3. The applicant shall compensate for the disposal or diversion of funded or unfunded parkland with eligible replacement land, parkland improvements, dedicated funds for the acquisition of land for recreation and conservation purposes or other monetary compensation, in accordance with 7:36-26.5 (minor disposals or diversions or parkland) or 7:36-26.10 (major disposals or diversions of parkland);

4. For a major disposal or diversion of parkland subject to N.J.A.C. 7:36-26.10, the applicant shall compensate for the loss of any recreation and conservation facilities resulting from the disposal or diversion of parkland with replacement recreation and conservation facilities in accordance with 7:36-26.10(c)3; and

5. The applicant's governing body shall:

i. Endorse the proposed disposal or diversion of funded or unfunded parkland by resolution, in accordance with the provisions pertaining to minor disposals or diversions of parkland at 7:36-26.4(d)10 and 26.6(f)4 or the provisions pertaining to major disposals or diversions of parkland at 7:36-26.9(d)11 and 26.11(i)4; and

ii. For major disposals or diversions of parkland, hold a scoping hearing on the proposed disposal or diversion, and for both minor and major disposals or diversions of parkland hold a public hearing regarding the complete application at least 90 days before the date of the State House Commission meeting at which the application is considered. Such hearing(s) shall be held, for minor disposals or diversions of parkland, in accordance with 7:36-26.6(c) through (e), or, for major disposals or diversions of parkland, in accordance with 7:36-26.8 and 26.11(e) through (h) (major disposals or diversions of parkland).

(e) An application that otherwise meets the requirements of this subchapter may be denied if the Department determines that allowing the diversion or disposal of the funded or unfunded parkland would have one or more of the following adverse consequences and that such adverse consequence(s) would not be sufficiently mitigated by the compensation proposed by the applicant. The Department may deny a proposed diversion or disposal that would:

1. Have significant adverse impact(s) on the public's use and enjoyment of the parkland or the remainder of the parkland or of parkland connected to the parkland proposed for disposal or diversion;

2. Have significant adverse impact(s), including cumulative and secondary impact(s), on the public's use and enjoyment of other Federal, State, local government unit or nonprofit parkland, including, but not limited to, greenways and trail systems, whether or not such parkland is contiguous to the parkland proposed for diversion or disposal;

3. Fragment an existing or planned park or trail system;

4. Result in the loss of a central, unique or significant parkland site or feature;

5. Substantially interfere with the provision of adequate and accessible parkland by the Federal government, State government or a local government unit;

6. Have a significant adverse impact, including fragmentation, on a documented occurrence of a threatened, endangered, or rare species, or on the habitat of such species, including, but not limited to, rare, threatened or endangered wildlife habitat ranked 3, 4 or 5 according to the Landscape Maps or be inconsistent with any Habitat Conservation Plan required pursuant to the Endangered and Nongame Species Conservation Act, 23:2A-1 et seq. or any Habitat Conservation Agreement executed under that Act;

7. Substantially interfere with Federal, State or local water quality protection efforts, including programs to protect water quality, prevent flooding and protect the shoreline, or be inconsistent with a Department approved Water Resource Management Plan. For the purposes of this paragraph, "programs to protect water quality" include, but are not limited to, regulation of aquifer recharge areas, Category One (C-1) waterbodies, freshwater and coastal wetlands and implementation of the Highlands Regional Master Plan or the Pinelands Comprehensive Management Plan;

8. Remove a physical or visual buffer that protects or screens a significant natural resource or feature or create a physical or visual barrier that obstructs access to or blocks a desired view of a significant natural resource or feature;

9. Not support the goals of the State Plan, including, but not limited to, the goal of conserving the State's natural resources and systems, and the goal of preserving and enhancing areas with historic, cultural, scenic, open space and recreational value; or

10. Not be consistent with the Statewide Policies set forth in the State Plan, as applied in accordance with the guidance provided by the State Plan's Policy Map, including, but not limited to, the policies pertaining to historic, cultural and scenic resources; open lands and natural systems; planning regions established by statute; coastal resources; special resource areas; and design.

(f) Examples of uses of parkland that may constitute the diversion of funded or unfunded parkland from recreation and conservation purposes are set forth at 7:36-25.2(c). A list of activities that do not constitute a diversion or disposal of funded or unfunded parkland is set forth at 7:36-25.2(d).

N.J. Admin. Code § 7:36-26.1