Current through Register Vol. 56, No. 24, December 18, 2024
(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
N.J.A.C.
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
N.J.A.C.
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
N.J.A.C.
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
N.J.A.C.
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
N.J.A.C.
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
N.J.A.C.
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
N.J.A.C.
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
N.J.A.C.
7:36-26.4(d)10 and 26.6(f)4
or the provisions pertaining to major disposals or diversions of parkland at
N.J.A.C.
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
N.J.A.C.
7:36-26.6(c) through (e),
or, for major disposals or diversions of parkland, in accordance with
N.J.A.C.
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,
N.J.S.A. 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
N.J.A.C.
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
N.J.A.C.
7:36-25.2(d).
