IN THE MATTER OF HAWTHORNE BOROUGH, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 8, 2019
• Docket: A-4347-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4347-16T4

IN THE MATTER OF HAWTHORNE BOROUGH, PASSAIC COUNTY GOFFLE PARK SYNTHETIC TURF FIELD GOFFLE BROOK PARK (SR: 8/29/2002). _________________________________

BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF PASSAIC,

Intervenor-Respondent. _________________________________

Submitted December 19, 2018 – Decided April 8, 2019

Before Judges Fuentes and Moynihan.

On appeal from the New Jersey Department of Environmental Protection.

Michael J. Pasquale, attorney for appellant Borough of Hawthorne.

William J. Pascrell, III, Passaic County Counsel, attorney for respondent Board of Chosen Freeholders of the County of Passaic (John D. Pogorelec, Jr., Assistant County Counsel, of counsel and on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Department of Environmental Protection (Melissa H. Raksa, Assistant Attorney General, of counsel; John P. Kuehne, Deputy Attorney General, on the brief).

PER CURIAM

The Borough of Hawthorne appeals from the final decision of the

Commissioner of the Department of Environmental Protection (Department),

made by the Assistant Commissioner for Natural and Historic Resources,

authorizing the installation of a synthetic turf field in Goffle Brook Park, which

is owned by intervenor County of Passaic. Hawthorne contends the

Commissioner's decision was arbitrary and capricious. We disagree and affirm.

The park has been listed on both the New Jersey and National Register of

Historic Places since 2002. As such, when the County sought to install a

synthetic turf sports field in the park, it contacted the Historic Preservation

Office (Office), an arm of the Department responsible "for maintaining the New

Jersey Register of Historic Places and administering the State Historic

Preservation Program." N.J.A.C. 7:4-1.3. The Office determined the proposed

project would be an encroachment.1 N.J.A.C. 7:4-1.3; 7:4-7.2(c); 7:4-7.4.

1 "'Encroachment'" means, in the context of this case, "the adverse effect upon any district, site, building, structure or object included in the New Jersey

A-4347-16T4 2 The Office's determination required the County, pursuant to N.J.A.C. 7:4-

7.2(e), to submit an application to the Department for transmittal to the Historic

Sites Council (Council), a statutorily-created body within the Department's

Division of Parks and Forestry,2 "for the purpose of recommending policies to

the Commissioner for . . . actions [including the] development, use,

improvement and extension of historic sites . . .; the . . . protection, preservation,

conservation, restoration, and management of all historic sites within the State;

and the provision of advice on encroachments." N.J.A.C. 7:4-1.3; see also

N.J.S.A. 13:1B-15.110. The Council, with four members present, conducted a

public hearing at which they reviewed the application.

Hawthorne first contends the meeting was conducted without a legal

quorum because having "four out of eleven [members] is most likely not what

the [L]egislature would have considered as the right number." We deem this

argument to be without merit. Although the Council is supposed to consist of

Register resulting from the undertaking of a project by the State, a county, municipality or an agency or instrumentality thereof" as set forth by the applicable criteria and guidelines. N.J.A.C. 7:4-1.3. 2 See N.J.S.A. 13:1B-15.108 (designating the Council within the Division of Parks, Forestry and Recreation of the Department of Conservation and Economic Development); N.J.S.A. 13:1D-1 (reorganizing the Department of Conservation and Economic Development into the Department of Environmental Protection). A-4347-16T4 3 eleven members, N.J.S.A. 13:1B-15.108, minutes from the meeting reflect the

full Board had only six members at that time. We have recognized that under

the common law quorum rule, vacancies are not counted in determining if a legal

quorum exists; a majority of the remaining members constitutes a quorum. New

Jersey Election Law Enf't Comm'n v. DiVincenzo, 451 N.J. Super. 554, 573-574

(App. Div. 2017). The common law rule applies absent a contrary statutory

provision. Id. at 574. Hawthorne concedes in its merits brief the "statute does

not speak to a required number of members to constitute a quorum." Thus, under

the applicable common law rule, four of the six Council members constituted a

quorum, as established by the roll call at the meeting.

During the meeting, the Council considered a draft resolution prepared by

the Office staff, N.J.A.C. 7:4-7.2(e)(6)(i), and the testimony of County experts

and employees. During the public comment portion of the meeting, Hawthorne's

borough attorney, the only member of the public to speak, voiced Hawthorne's

opposition to the project. Contrary to Hawthorne's argument on appeal, the

Council properly evaluated the encroachment, considering all appropriate

factors, including: "[t]he public benefit of the proposed undertaking; [w]hether

or not feasible and prudent alternatives to the encroachment exist; and [w]hether

A-4347-16T4 4 or not sufficient measures could be taken to avoid, reduce or mitigate the

encroachment." N.J.A.C. 7:4-2(e)(6)(ii) to (iv).

The meeting minutes and the resolution prepared by the Office reflect that

the County presented evidence relating to all those factors. The Council

considered: (1) the park's history, including the pertinent criteria used to

determine the park's listing on the New Jersey Register; (2) the prior and present

use of the field – formally for football and soccer, informally for other sports

and activities – and (3) the benefits of the proposal to change that grass field,

extant at the time the park was placed on both the State and National Registers,

to a synthetic turf multi-sport field in order to address the dearth of athletic fields

in the County. The Council considered testimony that the installation of

synthetic turf would resolve the difficulty in properly maintaining the grass field

for multiple sports without an adequate water supply, and about the related cost

savings in maintenance and manpower. The Council was fully informed of the

construction, layout, use and maintenance of the field which was to be lined for

football, soccer and lacrosse; and that the County seal would appear prominently

at midfield.

According to the minutes, Council members inquired about the

availability of alternative sites or fields. Evidence was adduced that the County

A-4347-16T4 5 owns "only six parks" and "does not have a lot of [c]ounty-owned park land";

Hawthorne has baseball and soccer complexes and dedicated football and

lacrosse fields; alternative fields mentioned by Hawthorne's attorney "frequently

flood because they are also located in a floodplain"; and the proposed field

would be the only County-owned multi-purpose field that can be used for

different sports played on the same day because the synthetic turf would not

incur the same damage as a grass field. The Council also considered measures

to mitigate the encroachment, one of which required dismantling the synthetic

turf field and returning the field to its natural state if "a more suitable, non-

historic park site for installation of a multi-use synthetic turf field is identified,"

a task the County engineer deemed feasible.

Three other proposals by the Office, as set forth in the proposed

resolution, sought to mitigate the encroachment, see N.J.A.C. 7:4-7.2(9)(ii):

1. The County shall plan, develop, and install no fewer than three (3) interpretive wayfinding signs within Goffle Brook Park, which highlight its history. Signage shall include quality reproductions of historic photography of the park and original Olmsted plans in order to visually interpret how it has changed over time. The County shall submit draft text and mockups for the signs, as well as locations proposed for their installation, to the [Office] for review and approval.

2. The County shall create a display of high quality reproductions of original Olmsted plans in the Rea

A-4347-16T4 6 House, which is a contributing resource within Goffle Brook Park (and for which a $1.5M rehabilitation is planned.) The signage shall incorporate text regarding the history and development of the park and its association with the Rea House, which shall be reviewed and approved by the [Office] prior to installation. The County shall submit photos of the display after installation of the [Office].

3. The County shall prepare as an amendment to the existing Parks, Recreation and Open Space Master Plan, a Historic Preservation Plan Element, which . . . shall also be incorporated into future master plan updates. The Historic Preservation Plan Element shall identify the historic designed landscapes, buildings, structures, objects, and known archaeological sites within the existing Parks, Recreation and Open Spaces owned by Passaic County and address appropriate treatments for these historic properties in accordance with National Park Service Brief 36 . . . and the Olmsted Center for Landscape Preservation's Guide to Developing a Preservation Maintenance Plan for a Historic Landscape.

Further, a meeting between the County and Office staff resulted in

"changes in the [first] proposed design to be more compatible with the original

design intent" of the portion of the park in which the field was located: wood

light poles installed before the park was listed on the Registers would be

removed and not replaced; three non-historic trees in a row planted in the 1980s

would be removed; benches and permanent football goalposts would be

removed; goalposts and bleachers would be stored except when fields were in

A-4347-16T4 7 use; and a proposed black-coated chain-link fence would be removed from the

plans.

The four Council members, at the close of public comment, extensively

discussed the resolution after a motion to review same was made and seconded.

A vote on the resolution with proposed changes was evenly split among the four

members. The resolution was forwarded to the Commissioner.

We disagree with Hawthorne's contention that the Council did not fulfill

its duty because the resolution was not passed. Nothing in the regulations

requires that the Council's recommendations be unanimous or that they be in the

form of a passed resolution. The Council is required only to submit written

recommendations to the Commissioner. N.J.A.C. 7:4-7.2(e)(7). Submission of

the resolution well-accomplished that duty. The resolution synopsized the

evidence presented, including the testimony of the Office staffer, County

engineer and parks director, director of the Department of Cultural and Historic

Affairs, and Hawthorne's attorney. We further note the Commissioner's

designee reviewed the resolution, "comments made by the Council during the

meeting[,] and the testimony of the applicant and public," which fully reflected

the Council members' disparate recommendations.

A-4347-16T4 8 The Commissioner's designee considered the Council's split advice and

the evidence presented to it and "evaluated the [project's] public benefit; prudent

and feasible alternatives; and measures taken to avoid, reduce, or mitigate the

encroachment." He authorized the project.

In our limited role in reviewing an administrative agency's actions, we

will overturn a decision only if it is arbitrary, capricious or unreasonable. In re

Stallworth, 208 N.J. 182, 194 (2011). Administrative decisions are arbitrary,

capricious, or unreasonable when: (1) "the agency's action violates express or

implied legislative policies"; (2) "the record contains substantial evidence to

support the findings on which the agency based its action"; and (3) if, when the

law is applied to the facts, the agency clearly erred in reaching its con clusion

and its decision is unreasonable. Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).

"[A] court 'may not substitute its own judgment for the agency's even though the

court might have reached a different result.'" In re Carter, 191 N.J. 474, 483

(2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513

(1992)). We will uphold an agency decision even if we disagree with it if it was

reached honestly and upon due consideration. Flanagan v. Dep't of Civil Serv.,

29 N.J. 1, 12 (1950). Our deference is especially strong when the agency was

delegated discretion to determine the "specialized and technical procedures for

A-4347-16T4 9 its tasks." Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 540

(1980). Administrative agencies' interpretations of legal issues, however, do not

bind us. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Under

that lens, we determine the assistant commissioner's decision was not arbitrary,

capricious or unreasonable.

Hawthorne argues that the Commissioner's designee did not transmit "a

written decision with specific reasons therefor" to the applicant. N.J.A.C. 7:4 -

7.2(e)(9). While the assistant commissioner's letter-decision did not explicitly

set forth his reasons, he did attach the resolution from which those reasons can

be culled. Furthermore, the record reviewed by the assistant commissioner fully

supports his decision. The record presented to and reviewed by the assistant

commissioner, as we more fully set forth in our review of the proceedings before

the Council, allowed him to weigh the conflicting positions of the parties – and

the Council members – and to determine that the encroachment created by the

installation of the synthetic turf field warranted authorization subject to the three

conditions set forth in the resolution. See In re Applications of N. Jersey Dist.

Water Supply Comm'n, 175 N.J. Super. 167, 205 (App. Div. 1980).

The evidence supports that a synthetic turf field filled both the needs of

the public by providing a needed multi-sport playing field and by offering a

A-4347-16T4 10 more cost-effective and viable alternative to a pitch that could not be maintained

due to the lack of irrigation. The record also shows there were no viable

alternatives, but if one presented, the synthetic turf field could be removed. And

the initial steps taken by the County in tandem with the Office, and the three

imposed conditions, are evidence of mitigating measures. Hawthorne alleges

the mitigating conditions were dubious because they did not relate to the

encroachment. Recognizing the Department's "specialized expertise . . . 'to

evaluate the factual and technical issues,'" New Jersey League of Municipalities

v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cty.

Hosp. v. New Jersey Dep’t of Human Servs., 96 N.J. 456, 474 (1984)), we defer

to the Commissioner's judgment that the conditions were sufficient to avoid,

reduce or mitigate the encroachment.

We determine any of Hawthorne's remaining arguments, not here

discussed, to be without sufficient merit to warrant discussion in this written

opinion. R. 2:11-3(e)(1)(E). We note only that the assistant commissioner, in

sending an email to a Hawthorne resident indicating that, when briefed on the

project before it was heard by the Council, he was in favor of the staff's

recommendation to approve it, expressed only his initial bent. The assistant

commissioner said he would review the entire package and would "consider all

A-4347-16T4 11 sides, testimony, positions, etc." He did not decide the case before it was

presented to the Council.

Affirmed.

A-4347-16T4 12