I/M/O FINAL DETERMINATION BY THE 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NOT FOR PUBLICATION WITHOUT THE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-5446-10T3

I/M/O FINAL DETERMINATION

BY THE NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION

APPROVING OCEAN COUNTY'S

REQUEST TO AMEND ITS

RECREATION AND OPEN SPACE

INVENTORY.

_______________________________

May 29, 2013

Submitted May 21, 2013 Decided

Before Judges Harris and Hayden.

On appeal from the New Jersey Department of Environmental Protection.

Eastern Environmental Law Center, attorney for appellant Pinelands Preservation Alliance and the New Jersey Conservation Foundation (Aaron Kleinbaum and Alice R. Baker, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent, New Jersey Department of Environmental Protection (Melissa H. Raksa, Assistant Attorney General, of counsel; Joan M. Scatton, Deputy Attorney General, on the brief).

PER CURIAM

Appellants Pinelands Preservation Alliance (the Alliance) and the New Jersey Conservation Foundation (the Foundation) appeal from the May 9, 2011 final determination of the Department of Environmental Protection (the DEP) authorizing the County of Ocean to amend its Recreation and Open Space Inventory (ROSI). Specifically, the DEP approved the County's application to remove the Robert J. Miller Airpark comprised of approximately 934 acres divided into ten parcels in Berkeley Township and Lacey Township and used mainly as an airport from its ROSI on the ground that the lands had been erroneously listed as parkland. We affirm.

I.

Between 1966 and 1973, the County acquired the lion's share of the land that became the Airpark. Although the precise source of funding for these acquisitions remains somewhat obscure, none came from the DEP's Green Acres Program. The Federal Aviation Administration (the FAA), however, provided federal financial assistance to Ocean County on several occasions for both runway improvements and land acquisition. The only competent evidence1 that the Green Acres Program was actually involved in the Airpark's assemblage is found in an undated "Robert J. Miller Airpark Economic Development Study," prepared by the Ocean County Board of Freeholders, which stated:

The southerly portion of the Airpark property located southwest of Dover Forge Road has been designated as a conservation area and will be minimally utilized for low intensity uses. This area which was purchased by the County through the Green Acres Program of the State of New Jersey Department of Environmental Protection, is located entirely within Lacey Township and partially within the Cedar Creek watershed.

Notwithstanding that the Green Acres Program's involvement in the Airpark was unclear, the County included those lands in several of its ROSIs starting in 1979, in compliance with N.J.A.C. 7:36-2.1 ("'Recreation and Open Space Inventory' or 'ROSI' means the listing of all of a local government unit's funded and unfunded parkland[.]").

Starting in 2009, the County opened discussions with staff members of the Green Acres Program regarding an amendment to its ROSI. The County asked for permission to remove portions of the Airpark from the ROSI "as expeditiously as possible" because "[the Airpark] has been an active general aviation airport since [the] 1960's."

In response, a DEP staffer wrote the County,

if the County wishes to remove certain lands that are part of the Miller Air(port) Park from [its] Recreation and Open Space Inventory (ROSI), [it] will have to go through the ROSI amendment process that is outlined in N.J.A.C. 7:36-25.3 (see attached). Since these properties have been listed on numerous ROSI's associated with the County's funding applications over the last 30 years, the burden lies with the County to provide proof that the listing of these parcels was a bona fide error.

In May and July 2009, the County provided "deeds and ROSI information" to the Green Acres Program in furtherance of the effort to correct its ROSI. Four months later, a DEP employee wrote back,

I have reviewed the information submitted by the County related to the proposed removal of a number of properties, associated with the R.J. Miller Airpark, from the County's recreation and open space inventory ("ROSI") and it appears as if the properties were acquired for and have been used as part of the airport since the County took ownership. Based on my review of the submitted information the Program concurs with the County's stance that these properties should not have been listed on the ROSI as [their] use for an airport does not qualify as a recreation or conservation use of the lands.

. . . .

The next step is for the County to notice and hold a public hearing in accordance with N.J.A.C. 7:36-25.3.

Several more months passed while written documentation was submitted to the Green Acres Program by the Alliance, and responded to by the County. Eventually, on July 15, 2010, a hearing was conducted at the Ocean County Library to publicly air the County's request to amend its ROSI. Consuming approximately thirty minutes, the hearing provided those in attendance with an outline of the County's request. Six members of the public were permitted to ask questions, receive answers, and make statements. No written comments were received following the public hearing.

Another ten months elapsed before the DEP acted. On May 9, 2011, Richard Boornazian, Administrator of the Green Acres Program, issued a letter granting the County's application. In his letter, Boornazian indicated that he had reviewed all of the materials submitted to the DEP, including the Alliance's letters that contended, among other things, that the inclusion of the Airpark in the County's ROSI was not a mistake. After canvassing the available evidence, Boornazian's decision concluded,

the properties that are the subject of this ROSI amendment request were already subject to [Federal Aviation Administration] obligations restricting their use to airport purposes at the time they were listed on the ROSI and at all subsequent times during which the County "received" Green Acres funds within the meaning of N.J.A.C. 7:36-2.1. Therefore, the County has demonstrated that its ROSI amendment request meets the "bona fide error" standard of N.J.A.C. 7:36-25.3(d).

This appeal followed.

II.

On appeal, the Alliance and the Foundation argue that (1) the DEP's determination is contrary to our decision in In re Amendment to Recreation & Open Space Inventory, 353 N.J. Super. 310, 327 (App. Div. 2002), which built upon the Supreme Court's ruling in Cedar Cove, Inc. v. Stanzione, 122 N.J. 202 (1991); (2) the DEP did not hew to the strict compliance requirements of N.J.A.C. 7:36-25.3; and (3) the DEP's reliance upon the Airpark being an FAA-approved-and-funded airport was improper. We are unpersuaded by these arguments.

We start with well-established principles that guide appellate review of administrative agency determinations. Our scope of review is limited, and appellants' contentions must be analyzed under that prism. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." Seigel v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 613 (App. Div.), certif. denied, 193 N.J. 277 (2007).

We do "not substitute [our] own [fact-finding] for that of the agency," and we will "defer to the agency . . . if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). Moreover,

[w]hen we review an "agency's interpretation of statutes within its scope of authority and its adoption of rules implementing its enabling statutes, we afford the agency great deference." N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (citing In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004)). As the Court noted, "[s]uch deference is appropriate because it recognizes that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are particularly well equipped to read . . . and to evaluate the factual and technical issues that . . . rulemaking would invite." In re Freshwater Wetlands Prot. Act Rules, supra, 180 N.J. at 489 (internal quotation marks and citations omitted).

[Animal Prot. League of N.J. v. N.J. Dep't of Envtl. Prot., 423 N.J. Super. 549, 559 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012).]

In this case, the County sought to amend its ROSI pursuant to N.J.A.C. 7:36-25.3. It did not seek to divert any properties under N.J.S.A. 13:8A-47(b); see also Cedar Cove, supra, 122 N.J. at 205 (noting that State-level approval is required for the sale not only of properties acquired with State funds but of all conservation or recreational properties that were owned by the municipality at the time it received any Green Acres grant, even if such properties had not been acquired or developed with Green Acres funds).

Once the County included the Airpark in its ROSI, a "rebuttable presumption [arose] that the parcel in question, and any portion thereof, is encumbered with Green Acres restrictions, whether or not the parcel or portion of the parcel was removed by the local government unit from a subsequent ROSI." N.J.A.C. 7:36-25.3(c). The regulation, however, recognizes that because mistakes can occur,

[i]f a local government unit believes a ROSI submitted to the Department as a component of a project agreement pursuant to N.J.A.C. 7:36-9.1 or 14.1 does not accurately or completely describe the lands held for recreation and conservation purposes at the time of receipt of Green Acres funding, or that any information provided for land on the ROSI is inaccurate or incomplete, the local government unit shall submit a request to the Department for an amendment to the ROSI.

[N.J.A.C. 7:36-25.3(a).]

However,

[t]he local government unit shall bear the burden of proving the merits of any ROSI amendment request filed pursuant to (a) above. The failure of the local government unit to provide adequate documentation to support its request and/or to demonstrate that there is a bona fide inaccuracy in the ROSI shall be sufficient grounds for the
 
 
Department to deny a request under this section.

[N.J.A.C. 7:36-25.3(d).]

Following a particularized procedural route, the DEP ultimately concluded that a "bona fide error" occurred in the County's ROSI because the Airpark's lands, duly subject to the superseding oversight of the FAA, were being used for an airport, not for recreation or open space purposes under Green Acres guidelines. This determination was consonant with the elements prescribed by N.J.A.C. 7:36-25.3(f), which counsels the DEP to review the purpose and method of acquisition of the properties in question; the intentions of the County regarding the parcels' use; and the actual use of the lands. The May 9, 2011 DEP determination addressed each of these issues, and we detect nothing arbitrary, capricious, or unreasonable in the agency's approach to, and conclusion about, the County's application. There was sufficient credible evidence in the record to support the agency's findings.

In its review, the DEP did not contravene the strict scrutiny that must be given to an application for the removal of property from a ROSI. In re Amend. to Recreation, supra, 353 N.J. Super. at 328-29. The touchstone for such review is consideration of the actual use of the land. See Cedar Cove, supra, 122 N.J. at 217; In re Amend. to Recreation, supra, 353 N.J. Super. at 331. Because all of the parcels at issue in this case are within the orbit of the FAA's control, see e.g., 49 U.S.C.A. 47107(a), they are of limited utility beyond airport uses. The circumstance that the airport's open space appears attractive for recreational and environmental purposes does not alter the parcels' fundamental use as an airport, which does not require inclusion in a ROSI.

The record created in this case convincingly demonstrates that the DEP fulfilled its Green Acres mission of ensuring that appropriate public lands remain devoted to recreational and conservation purposes, but where an improvident designation of such use occurs, to correct the error.

Affirmed.

1 The Alliance provided several hearsay newspaper articles from the 1970s, which indicated that portions of the Airpark were funded by Green Acres dollars.