Current through Register Vol. 56, No. 6, March 18, 2024
(a) If a local government or nonprofit unit seeks to enter into or to renew a lease or use agreement which would allow the use of funded or unfunded parkland or a recreation or conservation facility on the parkland for a beneficial public purpose other than a recreation and conservation purpose, 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. A lease or use agreement which would allow the use of funded parkland or unfunded parkland or a facility on the parkland for a public purpose other than recreation and conservation purposes but that is not approved by the Department is void and of no legal effect.
(b) The lease or agreement shall:
1. Describe the specific use to which the parkland or facility on the parkland will be put during the term of the lease or agreement and explain how this use will be beneficial to the public;
2. Establish the term of the lease or agreement pursuant to the following:
i. Except as allowed under ii below, the lease or agreement shall provide for a term of no more than two years, but may provide that the lessee or parkland user, upon a showing of good cause and with Department approval, may be granted one extension not to exceed six months;
ii. For leases of historic structures under (c) below, the lease or agreement shall generally provide for an initial term of no more than five years, but for good cause shown (such as the proposed construction of substantial capital improvements by the lessee or parkland user), the lease or agreement may provide for a longer initial term not of less than 25 years; or
iii. A lease or agreement that provides for a longer term than provided at (b)2i or ii above shall be deemed to constitute a diversion of parkland and requires the approval of the Commissioner and the State House Commission under N.J.A.C. 7:36-26;
3. Establish the renewal term for the lease or agreement as follows:
i. Except as allowed under (c) below for leases or agreements for the use of historic structures, the lease or agreement may not be renewed for any term after its initial term (including an extension authorized by the Department under (b)2i above), unless such renewal is approved by the Commissioner and the State House Commission as a diversion of parkland in accordance with N.J.A.C. 7:36-26; or
ii. For leases or agreement for the use of historic structures under (c) below, the lease or agreement shall 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 as a diversion of parkland 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 (f) below;
4. 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 or the facility on the parkland;
5. Require the lessee or parkland user to comply with the lease or agreement, the applicable requirements of this subchapter and any deed restrictions pertaining to the parkland;
6. Specify that any activities conducted on parkland under the lease or agreement are governed by the lease or agreement, the requirements of this chapter and any deed restrictions pertaining to the parkland;
7. 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
8. If applicable, require the restoration of the parkland to its pre-lease or pre-agreement condition or to an improved condition in accordance with a restoration plan approved by the Department.
(c) In addition to the requirements at (b) above, a lease or use agreement for the use of an historic building for a public purpose other than a recreation and conservation purpose shall require that:
1. The public shall have reasonable public access to the building;
2. The lessee or parkland user shall maintain and/or restore the building in accordance with plan and methods acceptable to the Department's Historic Preservation Office (available at PO Box 404, Trenton, New Jersey 08625-0404) or its successor; and
3. The use of the building under the lease or agreement shall not interfere with the use of the surrounding parkland for recreation and conservation purposes.
(d) If the use of the parkland under the proposed lease or agreement will interfere with the use of a developed recreation and conservation facility on the parkland, the local government unit or nonprofit shall, to the extent feasible, make the same recreation and conservation use available to the public at other facility(ies) for the duration of the lease or agreement and shall notify the Department of the extent of the anticipated interference and of its plan to accommodate the same recreation and conservation use at other facility(ies) for the duration of the lease or agreement as part of the submission under (a) above.
(e) 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 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.
(f) 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 or agreement will provide a sufficient public benefit;
2. The impact of the lease or agreement on the current or future use of the parkland by the public for recreation and conservation purposes;
3. Whether the lease or agreement will provide sufficient compensation (payment, rental or other consideration) for the use of the parkland or a facility on parkland for other than recreation and conservation purposes;
4. Whether the lease or agreement will comply with the requirements of (b) above and, if applicable, with the requirements for leases of historic structures in (c) above;
5. If the lease or agreement would have a term longer than provided in (b)2 or 3 above or would otherwise constitute a diversion or disposal of parkland, whether the person seeking the lease or agreement has secured the prior approval of the Commissioner and the State House Commission in accordance with N.J.A.C. 7:36-26;
6. 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;
7. If the lease or agreement is for use of an historic building in accordance with (c) above, whether the lease or agreement provides reasonable public access to the building or unduly interferes with the use of the surrounding parkland; and
8. With respect to renewals of leases for historic buildings pursuant to (c) 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; or
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, 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 (g) below.
(g) 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 parklands or to its recreation program as a whole.
(h) A lease or use agreement regarding the use of funded or unfunded parkland for a purpose other than recreation and conservation which does not have a beneficial public purpose or which does not otherwise qualify for approval under this section shall be deemed a diversion of parkland and shall require approval by the Commissioner and the State House Commission under N.J.A.C. 7:36-26.
