CITY OF MILLVILLE v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CITY OF MILLVILLE, a Municipal

Corporation of the State of

New Jersey and COUNTY OF

CUMBERLAND,

Appellants,

v.

STATE OF NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION

and DURAND GLASS MANUFACTURING

CO., INC.,

Respondents.

____________________________________________

August 3, 2015

Before Judges Lihotz, St. John and Rothstadt.

On appeal from the New Jersey Department of Environmental Protection.

Brock D. Russell argued the cause for appellant City of Millville (Mr. Russell, attorney; Theodore E. Baker, Frederick A. Jacob and Joseph M. Chiarello, on the joint brief).

Theodore E. Baker, Cumberland County Counsel, argued the cause for appellant County of Cumberland (Mr. Baker, attorney; Mr. Baker, Frederick A. Jacob and Joseph M. Chiarello, on the joint brief).

Joan M. Scatton, Deputy Attorney General, argued the cause for respondent State of New Jersey, Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Scatton, on the brief).

PER CURIAM

Plaintiffs, the City of Millville and the County of Cumberland, challenge the July 2013 acquisition by defendant New Jersey Department of Environmental Protection (DEP) of an approximately eighty-acre parcel of undeveloped land (the property) located in Millville. Plaintiffs contend the DEP failed to promulgate the required rules and regulations, make any factual-findings, or provide public notice it was considering acquiring the property, thereby depriving them and the public of the opportunity to participate in the process. Plaintiffs contend the acquisition should be set aside as a violation of "the doctrine of turning square corners," the DEP should be estopped from holding the property because it improperly acquired the property for conservation after previously approving it for industrial use, and the purchase was ultra vires, without force and effect. After careful consideration of the record and applicable principles of law, we affirm.

I.

The record discloses the following facts and procedural history. The property, Block 578, Lot 19 on Millville's tax map, is an approximately eighty-acre parcel of undeveloped forested land located within the Delaware Bay Watershed Greenway. The property is adjacent to Route 55 and a railroad right-of-way. For years the property was zoned for industrial and residential use, but was rezoned in July 2000 for industrial use exclusively. Plaintiffs aver the property was zoned on the State Land Use Map as Planning Area 1 (urban) or Planning Area 2 (suburban).

The property was acquired by Durand Glass Manufacturing Co., Inc. (Durand), in 2002, and remained undeveloped. A February 6, 2006 appraisal by LeGore & Jones noted the property was in an industrial park area, and was a "quite desirable location . . . for new industrial construction." It determined the "highest and best use of the subject property would be for one of the uses permitted in this industrially zoned area."

Plaintiffs contend Millville "went to great lengths to assure [the] property would receive approval to be included for development in the sewer service area," which required a Habitat Sustainability Determination (HSD) Report. The September 2011 HSD Report concluded the property was not a "suitable habitat" for three of five identified threatened/endangered species, and lacked habitat components required to sustain the two other threatened/endangered species identified in the report. Plaintiffs contend this study made "clear that no ecologically sensitive habitat or threatened species existed on the property." However, the study did note there was a "favorable habitat presence" and "two occurrence records" for one of the five threatened/endangered species examined, and recommended "a survey be conducted to determine a presence/absence of the species on-site." Nonetheless, on February 8, 2012, the DEP approved the property as suitable for inclusion in the sewer service area.

Even though Millville did not own the property, it began marketing it to an industrial developer who had an existing location in Millville, where it employed roughly fifty employees.1 Millville hoped the sale would help revitalize the county's economy, which at the time, it contended, had the lowest per-capita income and highest unemployment in the state.

On July 11, 2012, Durand offered to sell the property to the DEP through the DEP's Office of Green Acres (Green Acres), by submitting a Green Acres Application of Sale of Real Estate. Once Green Acres received the application, it began its review process, which involved evaluating the offer using an eleven-factor State Open Space Acquisition Priority System. The evaluation revealed the property was situated between two existing parcels of preserved open space, leading the DEP to conclude "[p]reservation of the offered property would create a large, contiguous tract of forested open space which could be beneficial for wildlife habitat."

Green Acres does not manage or maintain the lands it acquires; rather, such lands are assigned to and managed by one of three DEP divisions: Parks and Forestry, Fish and Wildlife, or the Natural Lands Trust. In August 2012, Green Acres circulated an "offering report" to the three divisions. In September 2012, after Fish and Wildlife informed Green Acres acquisition of the property was a "high priority," Green Acres informed Durand it was "interested in pursuing acquisition of th[e] property."

Green Acres next conducted its technical review of the property, which included obtaining an appraisal, a title search, a survey, and a hazard review. Green Acres records show it contacted Millville and Durand in November 2012, to inquire about possible hazards on the property, and Millville officials responded in December 2012 and January 2013. Plaintiffs characterize this communication as a "form letter" inquiring about contamination on the property. However, the letter clearly states the DEP was "evaluating the [property] for possible acquisition." Green Acres obtained two appraisals as part of the review process, both dated January 17, 2013.

On May 14, 2013, the DEP and Durand entered into an Agreement for Purchase of Unimproved Real Property. Millville admits it learned in November 2012 that Green Acres was evaluating the property, but avers it was not made aware the transfer was actually taking place until late June 2013, when Green Acres, through an engineering company, informed Millville it was purchasing the property and provided the survey plan for the clerk's signature. The DEP acquired the property on July 29, 2013, for $335,300. As of approximately October 2013, the DEP was in the process of assigning the property to Fish and Wildlife for administration and management.

Correspondence from the Cumberland County Board of Chosen Freeholders to the Lieutenant Governor, and from the Southern New Jersey Development Counsel to the DEP, urging reversal of the purchase was fruitless. The opposition parties to the DEP's acquisition argued the proposed industrial development was vital to the economic recovery of Cumberland County, which, at the time, they contended had the lowest per-capita income and highest unemployment in the State. They argued the County had sufficient open space, citing the County Open Space Plan, Preserved Lands Map, and a September 2013 Bayshore Study, which showed approximately forty percent of the landmass in Cumberland County and twenty-five percent of Millville was already preserved land. The property's close proximity to the Millville city center, they contended, as well as the property's infrastructure, militate against open space use.

Plaintiffs requested the DEP transfer the property back to Durand or to Millville for the original purchase price, but the DEP refused, reasoning lands acquired by the DEP for recreation or conservation may not be conveyed, disposed of, or diverted without approval of the DEP Commissioner and the State House Commission. See N.J.S.A. 13:8C-31; N.J.S.A. 13:1D-51.

On September 25, 2013, plaintiffs filed a verified complaint in the Law Division in an effort to rescind the DEP's contract with Durand. The DEP moved to transfer the matter to the Appellate Division pursuant to Rule 1:13-4 since plaintiffs challenged a final agency action, which plaintiffs opposed. On November 8, 2013, the motion to transfer was granted, and the matter was docketed in the Appellate Division in January 2014.2

Thereafter, the DEP filed a motion seeking to dismiss a cross-claim filed by Durand. On January 8, 2014, the parties entered into a consent order staying Duran's cross-claim pending resolution of the matter before this court.

II.

Appellate review of an administrative agency's final determination is limited and deferential. In re Herrmann, 192 N.J. 19, 27 (2007). We accord "a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation omitted). A reviewing court may "not substitute its judgment . . . for that of [the] administrative agency." In re Young, 202 N.J. 50, 70 (2010) (citation and internal quotation marks omitted).

Unless an agency's decision is "'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole,'" it will be affirmed. Barrick v. State, 218 N.J. 247, 259 (2014) (alteration in original) (quoting In re Stallworth, 208 N.J. 182, 194 (2011)). In making this determination, a reviewing court must examine

(1) whether the agency's action violated the legislative policies expressed or implied in the act governing the agency; (2) whether the evidence in the record substantially supports the findings on which the agency's actions were premised; and (3) "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Id. at 260 (quoting In re Carter, 191 N.J. 474, 482 (2007)).]

The burden of proving arbitrary, capricious or unreasonable action is upon the challenger. See Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011).

An agency's "interpretation of statutes and regulations within its implementing and enforcing responsibility" is entitled to deference. Ibid. (citation and internal quotation marks omitted); see also Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 70 (1985) ("[T]he grant of authority to an administrative agency is to be liberally construed to enable the agency to accomplish the Legislature's goals." (citation and internal quotation marks omitted)). Still, an agency's interpretation of the operative law must not be "plainly unreasonable." Waksal v. Dir., Div. of Taxation, 215 N.J. 224, 231 (2013) (citation and internal quotation marks omitted); see also In re Agric., Aquacultural, & Horticultural Water Usage Certification Rules, 410 N.J. Super. 209, 223 (App. Div. 2009) ("[A]dministrative agencies derive their authority from legislation, the terms of which they cannot alter, nor are they permitted to frustrate the legislative purpose."). Although "deference is generally given to an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Bueno, supra, 422 N.J. Super. at 234 (citation and internal quotation marks omitted); see also A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.), certif. denied, 200 N.J. 210 (2009).

Here, the DEP's acquisition of the property was based on its legislatively-prescribed authority to acquire and preserve open space. As we have acknowledged

In the 1960s and 70s, the Legislature expressly recognized the public interest in acquisition of land for open space by enactment of the New Jersey Green Acres Land Acquisition Act of 1961, L. 1961, c. 45; N.J.S.A. 13:8A-1 to -18, the New Jersey Green Acres Land Acquisition Act of 1971, L. 1971, c. 419; N.J.S.A. 13:8A-19 to -34, and the New Jersey Green Acres Land Acquisition and Recreation Opportunities Act, L. 1975, c. 155; N.J.S.A. 13:8A-35 to -55. These statutes declare that it is in the public interest for the State and local governments to acquire additional land for "public recreation and the conservation of natural resources," N.J.S.A. 13:8A-2; N.J.S.A. 13:8A-20; N.J.S.A. 13:8A-36 . . . .

[Mount Laurel Twp. v. Mipro Homes, L.L.C., 379 N.J. Super. 358, 371 (App. Div. 2005), aff'd, 188 N.J. 531 (2006), cert. denied, 552 U.S. 940, 128 S. Ct. 46, 169 L. Ed. 2d 242 (2007).]

Further, in 1999, the Legislature enacted the Garden State Preservation Trust Act (GSPTA), N.J.S.A. 13:8C-1 to -42, which authorizes New Jersey to preserve one million more acres of open space and provides "a stable and dedicated source of funding for those purposes." N.J.S.A. 13:8C-2 (identifying goals of program).3

GSPTA continued the DEP's Green Acres program. N.J.S.A. 13:8C-24(a). Green Acres furthers the GSPTA's goal of "preserv[ing] as much open space . . . as possible," N.J.S.A. 13:8C-2, by providing assistance, in the form of grants or loans, to local governments and nonprofits seeking to acquire land for recreation and conservation, and also by purchasing land itself for the State.4

Green Acres' duties and responsibilities under GSPTA include, in part

(1) Administer[ing] all provisions of th[e] act pertaining to funding the acquisition and development of lands for recreation and conservation purposes . . . ;

. . . .

(3) Adopt[ing], with the approval of the commissioner and pursuant to the 'Administrative Procedure Act [(APA)],' P.L. 1968, c.410 (C.52:14B-1 et seq.), rules and regulations

a. establishing application procedures for grants and loans for the acquisition and development of lands . . . [and] criteria and policies for the evaluation and priority ranking of projects for eligibility to receive funding for recreation and conservation purposes . . . ;

. . . .

(4) Establishing criteria and policies for the evaluation and priority ranking of State projects to acquire and develop lands for recreation and conservation purposes . . . .

[N.J.S.A. 13:8C-24(b).]

The "criteria and policies" for evaluation of projects of grant or loan recipients or State projects,

may be based upon, but need not be limited to, such factors as: protection of the environment, natural resources, water resources, watersheds, aquifers, wetlands, floodplains and flood-prone areas, stream corridors, beaches and coastal resources, forests and grasslands, scenic views, biodiversity, habitat for wildlife, rare, threatened, or endangered species, and plants; degree of likelihood of development; promotion of greenways; provision for recreational access and use; protection of geologic, historic, archaeological, and cultural resources; relative cost; parcel size; and degree of public support.

[Ibid.]

GSPTA also established the Garden State Preservation Trust (Trust), N.J.S.A. 13:8C-4, which provides DEP funding for State projects, N.J.S.A. 13:8C-5, and the Garden State Green Acres Preservation Trust Fund (Fund), N.J.S.A. 13:8C-19. GSPTA provides the DEP shall submit to the Trust, at least biannually, projects it recommends receive funding from the Fund, "based upon a priority system, ranking criteria, and funding policies established by the department," N.J.S.A. 13:8C-23, referencing the "criteria and policies for [] evaluation and priority ranking" referred to in N.J.S.A. 13:8C-24(b).

Upon receiving recommendations from the DEP, the Trust reviews the proposed projects and may submit to the Governor, the President of the Senate, and the Speaker of the General Assembly proposed legislation appropriating funds for projects. N.J.S.A. 13:8C-23(a). As clarified on the DEP's website,

[t]he appropriation bills which authorize the [DEP] to utilize [Trust] monies for land acquisition typically direct the funding to specific "project areas" and designate the funding level for each project area. These project areas may be geographically based such as "Pinelands" or based on a specific need like "Urban Parks."

[N.J. Dep't of Envtl. Prot., 2008-2012 New Jersey Statewide Comprehensive Outdoor Recreation Plan 98 (2007), available at http://www.nj.gov/dep/greenacres/pdf/scorp_

2008.pdf (hereinafter 2008-2012 Recreation Plan).]

After the DEP receives project approval and funding, it reviews applications and targets land in approved project areas. It begins evaluating offers using an eleven-factor State Open Space Acquisition Priority System, which mirror the factors listed in N.J.S.A. 13:8C-24(b)(4); circulates an offering to DEP Divisions to determine where the land should be assigned and managed; and determines whether to purchase the land. 2008-2012 Recreation Plan, supra, at 99-115 (outlining the eleven-factor "State Land Acquisition Priority System"); N.J. Dep't of Envtl. Prot., 2005-2007 Land Preservation Plan41-50 (2004), available at http://dspace.njstatelib.org:8080/xmlui/handle/10929/24976 (outlining eleven-factor "State Open Space Acquisition Priority System").

In 2009, the DEP proposed the Trust finance the Delaware Bay Watershed Greenway. The DEP claims this area is "an area of significance both because it supports shorebird and raptor migration and because it supports a fragile web of marine and terrestrial species." After review and submission by the Trust, the Legislature appropriated $4,000,000 to the Delaware Bay Watershed Greenway, which specifically included "Cumberland County" and "Millville City." L. 2013, c. 10, 1(5). The property was acquired under this appropriation.

On appeal, plaintiffs first contend the DEP failed to promulgate required rules and regulations, make any factual-findings, or provide public notice of its intent to acquire the property, thereby violating GSPTA and depriving plaintiffs and the public the opportunity to participate in the process. For support, plaintiffs cite only N.J.S.A. 13:8C-24 (establishing Green Acres' duties) and N.J.S.A. 13:8C-42 ("The [DEP] . . . shall [] adopt, pursuant to the [APA], . . . such rules and regulations as may be necessary to implement and carry out the goals and objectives of Article VIII, Section II, paragraph 7 of the State Constitution and this act." (emphasis added)). Plaintiffs point to nothing in GSPTA mandating public review, public comment, or promulgation of rules and regulations when the DEP acquires land for the State. As articulated by the DEP, it "is not required to promulgate regulations for state acquisitions, and nothing compels it to engage in a public process before it decides whether to acquire a certain property." We agree with the position of the DEP.

The GSPTA only requires the DEP establish criteria, policies, and guidelines when considering State acquisitions, and does not require promulgation of rules and regulations or compliance with the requirements of the APA. The Legislature imposed different duties and responsibilities on the DEP depending on its role in acquiring land. The DEP is authorized to use money appropriated from the Fund to assist local government units and qualifying nonprofits acquire and develop land for recreation and conservation purposes, N.J.S.A. 13:8C-26(a)(2)-(3), and to acquire land for the State for recreation and conservation. N.J.S.A. 13:8C-26(a)(1).

When assisting local government units and qualifying nonprofits in acquiring lands, the DEP acts as a regulatory body and must adopt rules and regulations, pursuant to the APA, establishing application procedures and criteria for evaluation of those applications. N.J.S.A. 13:8C-24(b)(3)(a); see also Mount Laurel, supra, 379 N.J. Super. at 369-70 (summarizing criteria and policies Green Acres developed for evaluation of local government and nonprofit projects).

However, when acquiring land for the State, the DEP must only establish the evaluation and ranking criteria and policies. N.J.S.A. 13:8C-24(b)(4); see also N.J.A.C. 7:36-1.1 (noting rules promulgated apply only when Green Acres is assisting local government units and nonprofits); N.J.A.C. 7:36-1.2 ("This chapter constitutes the [DEP]'s rules . . . governing the award of loans or matching grants . . . to local government units . . . [and] to nonprofits . . . ."). The portion of GSPTA entitled "Money Appropriated from Green Acres Preservation Fund; use by department," provides further guidance on the DEP's responsibility when acquiring land for the State

The [DEP] shall adopt guidelines for the evaluation and priority ranking process which shall be used in making decisions concerning the acquisition of lands by the State for recreation and conservation purposes using moneys from the [Fund] and from any other source. The guidelines shall be designed to provide, to the maximum extent practicable and feasible, that such moneys are spent equitably among the geographic areas of the State. The guidelines, and any subsequent revisions thereto, shall be published in the New Jersey Register. The adoption of the guidelines or of the revisions thereto, shall not be subject to the requirements of the [APA].

[N.J.S.A. 13:8C-26(k).]

Accordingly, we reject these contentions by plaintiffs as a basis to challenge the acquisition of the property by the DEP.

Plaintiffs advance several additional arguments challenging the DEP's compliance with GSPTA, alleging it failed to consider proper criteria in making its decision to acquire the property. They also contend the DEP failed to provide record evidence that the criteria were considered. These arguments are unpersuasive.

Fawn Z. McGee, Chief of State Land Acquisition at Green Acres, certified she "reviewed the Green Acres file on this matter" and attested "the State's acquisition of the [property] satisfied the State Open Space Acquisition process and was properly evaluated under the State Open Space Acquisition Priority System." She recounted Green Acres' review process, which included evaluation using the eleven-factor State Open Space Acquisition Priority System. This Priority System presumably includes the "criteria and policies" required by N.J.S.A. 13:8C-24(b)(4) and "guidelines" required by N.J.S.A. 13:8C-26(k). McGee explained the eleven factors include groundwater resources; surface water resources; flood prone areas; other natural resources; fauna; flora; historic and cultural resources; greenways, trails, existing preserved open space; recreational opportunities; development threat, property size, acquisition cost; and planning and public support. See 2005-2007 Land Preservation Plan, supra, at 41-50. The review process also included an offering to DEP divisions, which received a "high priority" response from Fish and Wildlife, and a technical review, which included obtaining appraisals, a title search, a survey, and a hazard review. Results of the technical review are all included in the record.

The eleven Priority System factors mirror several of the criteria listed in N.J.S.A. 13:8C-24(b)(4), and McGee's certification supports these factors were considered and weighed. Further, N.J.S.A. 13:8C-24(b)(4) provides the DEP's evaluation "may be based upon" the criteria therein, and does not require consideration of specific criteria. Similarly, N.J.S.A. 13:8C-26(k), governing the DEP's use of monies appropriated from the Fund, only requires the DEP establish "guidelines" to govern its decision-making, and does not provide any single criterion as determinative. Therefore, substantial credible evidence exists to support the DEP's decision to acquire the land. Barrick, supra, 218 N.J. at 259.

Plaintiffs also contend "to the extent that there is a claim that the property [] was acquired . . . for environmental reasons, that assertion is belied" by the HSD Report. However, the HSD Report itself noted a "favorable habitat presence" and "two occurrence records" for an threatened/endangered species, and recommended further investigation into the species' presence on site. Additionally, during its review of the property, the DEP determined "[p]reservation of the [] property would create a large, contiguous tract of forested open space which could be beneficial for wildlife habitat." The DEP had also received appropriations from the Legislature for conservation projects in the Delaware Bay Watershed Greenway, which specifically included "Cumberland County" and "Millville City." L. 2013, c. 10, 1(5). Therefore, plaintiffs fail to show the DEP's acquisition of the property was arbitrary, capricious, unreasonable, or unsupported by the evidence. Barrick, supra, 218 N.J. at 259.

Finally, and perhaps most significantly, plaintiffs argue the DEP did not consider the Priority System factor of "planning and public support," as averred in McGee's certification. Rather, they assert "[t]hese criteria were completely ignored," noting that the property was zoned exclusively for industrial use, and allegations the DEP considered only the opinions of environmentalists. For support, plaintiffs cite email communications obtained pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, which they contend evince the DEP "gave audience to environmentalists to the exclusion of local governmental interests and the public to secretly arrange for this acquisition as quietly as possible without a public component being pursued."

As explained by the DEP, "the fact that a property is developable does not preclude the DEP from acquiring it." GSPTA provides the DEP may consider the "degree of likelihood of development" when determining whether to acquire a property for the State. Again, however, plaintiffs point to nothing to suggest any single criterion listed in N.J.S.A. 13:8C-24(b)(4) is determinative or that acquisition of land currently zoned for industrial use is prohibited. Moreover, McGee certified the DEP's records showed "the property had been on the market for some time and that previous offers had fallen through," suggesting the DEP did consider potential development. Finally, even if the proposed industrial development was highly likely and the DEP was aware of this, acquisition of the property was consistent with GSPTA's purpose to "preserve as much open space . . . as possible." N.J.S.A. 13:8C-2. Plaintiffs fail to show the DEP's decision to acquire the property despite the potential for industrial development was arbitrary, capricious, or unreasonable. Barrick, supra, 218 N.J. at 259.

Plaintiffs additionally challenge "the apparent involvement of other private interests in this sale" as "raising the specter of public funds being misused or directed for use by private interests while excluding public entities from a process that negatively impacts local planning and local interests." However, they do not provide any support for the suggestion funds were misused or the DEP somehow improperly favored private over public interests. Again, New Jersey's public interest, as articulated by the Legislature in passing GSPTA, was to "preserve as much open space . . . as possible." N.J.S.A. 13:8C-2.

Plaintiffs next contend the DEP's acquisition should be set aside as a violation of "the doctrine of turning square corners." The square corners doctrine requires the government to deal fairly with its citizens, eschewing inequitable practices. See CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 585-86 (App. Div. 2010); Sellers v. Bd. of Trs. of Police & Firemen's Ret. Sys., 399 N.J. Super. 51, 59-60 (App. Div. 2008). As the Court has stated

We have in a variety of contexts insisted that governmental officials act solely in the public interest. In dealing with the public, government must "turn square corners." This applies, for example, in government contracts. Also, in the condemnation field, government has an overriding obligation to deal forthrightly and fairly with property owners. It may not conduct itself so as to achieve or preserve any kind of bargaining or litigational advantage over the property owner. Its primary obligation is to comport itself with compunction and integrity, and in doing so government may have to forego the freedom of action that private citizens may employ in dealing with one another.

[F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426-27 (1985) (citations omitted).]

Any contention the DEP acted "deliberately or intentionally" to place plaintiffs at a disadvantage or acted against the public interest by acquiring the property is without support. The acquisition of the property is not unfair or contrary to the public interest where the Legislature determined "it is in the public interest to preserve as much open space and farmland, and as many historic properties, as possible." N.J.S.A. 13:8C-2. In light of the "strong presumption of reasonableness" accorded to agencies exercising their statutorily delegated responsibilities, City of Newark v. Natural Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), plaintiffs fail to show the DEP violated the doctrine of turning square corners.

Plaintiffs next argue the DEP should be estopped from holding the property because the DEP improperly acquired the property for conservation after approving it for industrial use. Given our holding that the acquisition was proper, we find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add only this brief comment. To estop the DEP from acquiring lands for which it previously approved a contrary use would inhibit the State's acquisition and preservation of open space, which the Legislature declared to be in the public interest, constraining the State's ability to carry out the goals of GSPTA. See Cnty. of Morris v. Fauver, 153 N.J. 80, 104 (1998).

Finally, given our determination, we need not address the argument by plaintiffs that the DEP should simply return the property to Durand or sell it to Millville or to the County without regard to the statutory requirements restricting the DEP's conveyance of Green Acres land.

Affirmed.

1 Plaintiffs do not provide any evidence of these efforts or the proposed development aside from a Millville city engineer's certification and correspondence referring to the undertaking. We further note neither plaintiff owned the property, and the record does not disclose if either plaintiff had a right of first refusal or option on the property.

2 Rule 4:69-5 imposes a duty to exhaust administrative remedies before initiating actions at law "[e]xcept where it is manifest that the interest of justice requires otherwise." As the Court explained, "the exhaustion of remedies requirement is a rule of practice designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts." Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975). Therefore, there is "a strong presumption favoring the requirement of exhaustion of remedies." Ibid. Nonetheless, the requirement of exhaustion is not absolute and "[e]xceptions are made when the administrative remedies would be futile, when irreparable harm would result, when jurisdiction of the agency is doubtful, or when an overriding public interest calls for a prompt judicial decision." N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 613, (1982) (citing Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 561 (1979)). Here, the public interest calls for our review.

3 "The Legislature [] determines that it is in the public interest to preserve as much open space and farmland, and as many historic properties, as possible . . . ." N.J.S.A. 13:8C-2.

4 N.J. Dep't of Envtl. Prot., State Land Acquisition Program, http://www.nj.gov/dep/greenacres/state.html (last updated May 20, 2015); N.J. Dep't of Envtl. Prot., Local Gov't & Nonprofit Assistance, http://www.nj.gov/dep/greenacres/local.html (last updated May 20, 2015).