N.J. Admin. Code § 7:36-26.9

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

Section 7:36-26.9 - Major disposals or diversions of parkland; pre-application requirements

(a) Prior to submitting an application for approval of a major disposal or diversion of parkland, a local government unit or nonprofit shall contact Green Acres to request information on the Department's rules pertaining to the proposed disposal or diversion of parkland and the related procedural requirements and to request a pre-application conference with Green Acres.

(b) A pre-application conference shall include a review of the applicable rules, procedures and forms, and a visit to the parkland that the local government unit or nonprofit is proposing to dispose of or divert and to the proposed replacement land that would be required pursuant to N.J.A.C. 7:36-26.10, if applicable. A pre-application conference may include a visit to the lands that the local government unit or nonprofit would identify in a pre-application as part of the alternatives analysis required under (d)2 below.

(c) Official representative(s) of the local government unit or nonprofit shall participate in the pre-application conference. Consultants or contractors of the local government unit or nonprofit may attend the pre-application conference.

(d) Subsequent to the pre-application conference, the local government unit or nonprofit may submit a pre-application that includes the following:

1. A detailed description of the proposed major disposal or diversion, including the following information:

i. Block(s) and lot(s) information for the parkland proposed for disposal or diversion;

ii. The acreage of the parkland proposed to be disposed of or diverted;

iii. The purpose of the project for which the disposal or diversion is proposed, including the intended future use and owner of the parkland;

iv. A description of how the proposed major disposal or diversion would fulfill a compelling public need or yield a significant public benefit, as defined at 7:36-26.1(d)1;

v. A description of how the parkland is proposed to be disposed of or diverted, including:

(1) The name of the prospective buyer, lessee, or grantee of an easement, as applicable;

(2) A description of the type of legal interest to be conveyed, if any; and

(3) A description of any conditions or restrictions on the intended use of the parkland proposed for disposal or diversion;

vi. If the project for which the disposal or diversion is proposed involves a lease or use agreement, a draft of the lease or use agreement and a statement of the total compensation proposed to be received by the applicant for the lease or use agreement;

vii. If the project for which the disposal or diversion is proposed involves tie construction of a building or infrastructure on the parkland proposed to be disposed of or diverted, a set of plans and specifications for the construction, if available;

viii. A general description of the natural features, history and current use of the parkland proposed to be disposed or diverted, including parkland contiguous to or functionally related to the land proposed to be disposed of or diverted; and

ix. A detailed description of the funded and/or unfunded recreation and conservation facilities and/or activities, if any, to be affected by the project for which the disposal or diversion is proposed, and an explanation of how they will be affected;

2. An alternatives analysis. Such analysis shall:

i. Identify each alternative course of action that could be taken to fulfill the compelling public need for or yield the significant public benefit to be derived from the project for which the applicant proposed to dispose of or divert parkland including all alternatives presented at the scoping hearing by the applicant pursuant to 7:36-26.8(d), any other alternative suggested by the public at the scoping hearing or in the written comments submitted during the public comment period for the scoping hearing and the alternative of locating the applicant's project on the proposed replacement land. In accordance with (e) below, the analysis shall include each alternative which is feasible, reasonable and available to the applicant, including the alternatives of "no build" or "no action," and, as applicable, alternatives that use private lands or other public lands;

ii. Describe each alternative in detail and, for each, provide the following:

(1) The environmental impact of the alternative;

(2) A listing of all Department permits required to construct or utilize the alternative; and

(3) An identification of any threatened, endangered, or rare species or the habitat of such species that will be affected;

(4) The overall cost of the alternative;

(5) The timetable or schedule necessary to implement the alternative to the proposed disposal or diversion;

(6) If the alternative involves acquisition or leasing of an alternative site not owned by the applicant, the estimated land value or lease cost of the alternative site; and

(7) If the alternative involves use of an alternative site, an identification of any zoning, land use, environmental or other constraints associated with the alternative site and documentation of all attempts undertaken by the applicant to remove or adapt to such constraints.

iii. A description of the methods used by the applicant to identify alternatives to the proposed disposal or diversion; and

iv. An explanation of the applicant's reasons for rejecting each alternative identified in (d)2i above; and, if applicable, explain why the alternative cannot fulfill the compelling public need for, or yield the significant public benefit to be derived from, the project for which the applicant proposes to dispose of or divert parkland;

3. An environmental assessment report, formatted in accordance with an outline provided by Green Acres, which describes the existing environmental features of both the land proposed for disposal or diversion and of the proposed replacement land, if any, and how those features will be affected by the proposed major disposal or diversion;

4. A statement, on a form obtained from Green Acres, of the adjusted tax assessed value of the funded or unfunded parkland proposed to be disposed of or diverted, as estimated by the tax-assessor of the municipality in which the parkland is located. As provided by 7:36-26.10(f)1, in completing the statement, the value of the parkland proposed to be disposed of or diverted shall be based on its highest and best use or the use intended subsequent to the disposal or diversion, whichever would result in a higher market value for the land;

5. A preliminary compensation proposal based on the requirements of 7:36-26.10 and the value statement required under (d)4 above;

6. A description of how the proposed project for which the diversion or disposal of parkland is proposed, and the proposed compensation, will support the State Development and Redevelopment Plan Goals (including, but not limited to, conserving the State's natural resources and systems, and preserving and enhancing areas with scenic, open space and recreational value), and will be consistent with the State Development and Redevelopment Plan's Policy Map and the Statewide Policies (including, but not limited to, those directed to scenic resources, open lands and natural systems, planning regions established by statute, coastal resources, special resource areas and design, threatened and endangered species, habitat for threatened and endangered species, water quality protection and stormwater control);

7. A listing of any other Federal, interstate, State, county and local approvals or permits required for the project for which the proposed minor disposal or diversion is requested, including the following information for each approval or permit:

i. The date of application for the approval or permit;

ii. The issuance date, anticipated issuance date and/or status of the approval or permit;

iii. The name and phone number of a contact person at the Federal, interstate, State or local agency responsible for permit issuance;

8. A copy of the deed for the parkland proposed to be disposed or diverted;

9. The following maps, provided in accordance with the instructions regarding format and number of copies that are set forth in the Green Acres pre-application checklist available from Green Acres at PO Box 412, Trenton, New Jersey 08625 or posted on the Green Acres web site at www.nj.gov/dep/greenacres/.

i. A reference map or maps, if necessary, on 8 1/2 inch by 11 inch paper, showing the general location of the parkland in its entirety that would be affected by the proposed disposal or diversion, the specific portion of the parkland proposed to be disposed of or diverted, the location of any easement(s) proposed as part of the disposal or diversion and the proximity of the parkland proposed for disposal or diversion to any other Federally-, State-, county-, municipally-or nonprofit-owned parkland;

ii. If the applicant proposes to offer replacement land to be dedicated as parkland to compensate in full or in part for the proposed disposal or diversion of parkland, a municipal or county map and a site map, drawn to scale, showing the parkland proposed to be disposed of or diverted, and showing the proposed replacement land. The site map shall include, for the proposed replacement land, the tax map block and lot number(s) (current as of the date of request), the owner(s) of record, the approximate dimensions and area (in acres), existing improvements and easements, road rights-of-way, wetlands (as shown on maps prepared by the Department under the Wetlands Act of 1970, 13:9A-1 et seq., and the Freshwater Wetlands Protection Act, 13:9B-1 et seq. and available from the Department at www.nj.gov/dep/gis), floodplains (as shown on the New Jersey State Flood Hazard Area maps prepared under the Flood Hazard Area Control Act, 58:16A-50 et seq. and available from the Department at www.nj.gov/dep/gis or as determined from other State or Federal mapping or from a site delineation), and tidelands (as determined from New Jersey Tidelands claim maps, conveyance overlays, and atlas sheets and available from the Department at www.nj.gov/dep/gis;

iii. If the proposed disposal or diversion will result in the relocation or modification of any recreation and conservation facilities, a municipal or county map and a site map, drawn to scale, showing the parkland proposed to be disposed of or diverted, and a site location map showing the proposed relocated or modified recreation and conservation facilities;

iv. Copies of the current municipal tax maps for the parkland proposed for diversion or disposal, the replacement land (if applicable), and any land that will contain recreation and conservation facilities to be relocated, modified or constructed as a result of the proposed diversion or disposal; and

v. Aerial or GIS-based maps of the parkland proposed for diversion or disposal, the replacement land (if applicable) and any properties containing recreation and conservation facilities to be removed, or to be constructed or newly utilized, as a result of the proposed diversion or disposal;

10. Proof of proper notice of the scoping hearing, including the following:

i. Proof of publication of the notice(s) required pursuant to 7:36-26.8(c)1 i and (c)2; proof of publication of the display ad required under 7:36-26.8(c)2; a dated copy of the posting required pursuant to 7:36-26.8(c)1 ii (if applicable); copies of and proof of mailing of the written notices required pursuant to 7:36-26.8(c)1 iii and iv; and proof of the posting and maintenance of a sign as required under 7:36-26.8(c)1 v;

ii. A copy of the transcript of the scoping hearing required under 7:36-26.8(a)4;

iii. A summary of the public comments received at the scoping hearing and/or provided in writing during the public comment period and the applicant's response to the public comments; and

iv. Copies of any written comments submitted as part of the record of the public hearing in accordance with N.J.A.C. 7:36-26.8;

11. A resolution of the governing body of the applicant endorsing the proposal to dispose of or divert the parkland; and

12. Any other information requested by the Department to clarify the pre-application requirements.

(e) As provided at 7:36-26.1(a), if the alternatives analysis submitted by the applicant under d(2) above identifies a feasible, reasonable and available alternative to the use of parkland for the project for which the disposal or diversion of parkland is proposed, then such alternative must be selected by the applicant, even if it is not preferred by the applicant and does not possess all qualities sought by the applicant. For purposes of this analysis, an alternative may be considered:

1. "Not feasible" if it:

i. Cannot be carried out using sound engineering principles and practices and current construction methods, technologies and practices; or

ii. Would bring about unresolvable logistical problems;

2. "Not reasonable" if it:

i. Would result in the essential project purpose, as set forth pursuant to (d)1iii above, not being met;

ii. Would result in the incurring of additional construction costs of an extraordinary magnitude. However, the incurring of increased costs alone shall not disqualify an alternative from consideration unless the cost increase is determined by the Department to be disproportionate to the overall project cost and/or the benefit to be obtained by the proposed project;

(1) In assessing costs associated with a particular alternative under (e)2ii above, the applicant shall take into consideration the comparative cost of constructing the project on parkland, including the estimated cost of providing compensation under 7:36-26.10 for the value of the parkland to be diverted or disposed of as determined under 7:36-26.10(f) and the replacement of trees under 7:36-26.10(c)4;

iii. Would cause extraordinary operational or safety problems;

iv. Would result in adverse social, economic or environmental impacts of extraordinary magnitude, including, but not limited to, serious community disruption;

(1) In assessing costs associated with a particular alternative under (e)2iv above, the applicant shall take into consideration the comparative cost of constructing the project on parkland, including the estimated cost of providing compensation under 7:36-26.10 for the value of the parkland to be diverted or disposed of as determined under 7:36-26.10(f) and the replacement of trees under 7:36-26.10(c)4; or

v. Would create unique problems, including, but not limited to, unusual negative outcomes, unfair distribution of burdens, extraordinary costs or the loss of irreplaceable community resources; and

3. "Not available" to the applicant if the alternative relies on use of land that is not owned by the applicant; and

i. The owner is unwilling to sell or transfer the land to the applicant or to allow the applicant to lease or otherwise obtain, utilize, expand or manage the land for the purposes of the project; and

ii. Condemnation of the land is not available to the applicant or is not reasonable under one or more of the factors at (e)2 above.

(f) Upon receipt of a pre-application submission from the applicant, Green Acres shall:

1. Determine if the submission is complete. A submission shall not be deemed to be complete if it does not contain all information required for a pre-application under (d) above, including the alternatives analysis required under (d)2 above; and

2. Notify the applicant that:

i. Its pre-application is complete and will be reviewed by Green Acres;

ii. Its pre-application is incomplete but that Green Acres shall nonetheless consider the pre-application submission, provided the applicant submits the missing information by the date specified in the notification; or

iii. It is necessary for the Department to engage one or more experts to evaluate the alternatives analysis submitted by the applicant under (d)2 above. If such evaluation is necessary, the Department shall:

(1) Include an estimate of the cost to the Department to engage the expert(s); and

(2) Direct the applicant to submit payment of this amount in full within 90 days of the notice in order to obtain further review of the pre-application. A pre-application for which the Department finds it necessary to engage an expert for alternatives analysis review shall not be considered complete until the Department has received and reviewed the recommendations of the expert.

(g) Once Green Acres is in receipt of a complete pre-application submission, it shall review the submission in order to:

1. Determine whether the proposed disposal or diversion appears to meet the substantive standards for approval of disposals or diversions or parkland set forth at 7:36-26.1; and

2. Determine whether the proposed disposal or diversion appears to merit denial because it will result in one or more of the adverse consequences set forth at 7:36-26.1(e).

(h) Upon the conclusion of its review of a complete pre-application, Green Acres shall notify the applicant that:

1. Additional information is necessary in order for Green Acres to make a determination on the pre-application, with a deadline by which the information must be submitted to Green Acres;

2. The proposed disposal or diversion is denied. Grounds for denial may include, but are not limited to, failure to meet the substantive standards for approval of disposals or diversions of parkland set forth at 7:36-26.1; insufficient compensation to meet the requirements of 7:36-26.10; or a determination by the Department that the proposed diversion or disposal will result in one or more of the adverse consequences set forth at 7:36-26.1(e); or

3. The applicant is authorized to submit to Green Acres a final application for Commissioner and State House Commission approval in accordance with 7:36-26.11.

(i) If Green Acres authorizes the applicant to submit a final application for a major disposal or diversion of parkland pursuant to (h)3 above, the authorization shall accept the preliminary compensation proposal for application review purposes, with conditions as appropriate, and shall require the submittal under 7:36-26.11(b)5 of a final compensation proposal that meets the criteria set forth at 7:36-26.10.

(j) If Green Acres authorizes an applicant to submit a final application for a major disposal or diversion of parkland pursuant to (h)3 above, such authorization does not constitute conceptual approval of the application, but is an informal determination by Green Acres that, based on the information provided by the applicant, the proposal appears to meet both the procedural and substantive standards for approval of the disposal or diversion and that the filing of the final application is merited.

N.J. Admin. Code § 7:36-26.9