NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-4585-15T3 A-5372-15T3 A-0557-16T4
IN THE MATTER OF SEASIDE HEIGHTS BOROUGH PUBLIC BEACH _______________________________
IN THE MATTER OF APPLICATION OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ON BEHALF OF THE BOROUGH OF SEASIDE HEIGHTS, FOR STATE HOUSE COMMISSION APPROVAL OF PROPOSED DISPOSAL OF 1.37 ACRES OF PUBLIC BEACH ________________________________
STEVEN MELVIN and BOB MOSS,1
Plaintiffs-Appellants,
v.
SEASIDE HEIGHTS BOROUGH and AFMV, INC.,
Defendants-Respondents. ________________________________
Argued telephonically March 14, 2018 – Decided July 30, 2018
1 The notice of appeal lists this party as "Bob Moss." The second amended complaint and the pertinent trial court order identify him as "Robert Moss." Before Judges Reisner, Hoffman, and Gilson.
On appeal from the New Jersey Department of Environmental Protection (A-4585-15), the State House Commission (A-5372-15), and Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1752-16 (A-0557- 16).
Gordon N. Litwin argued the cause for appellants American Littoral Society, Inc. and New Jersey Conservation Foundation (Litwin & Provence, LLC, and Eastern Environmental Law Center, attorneys; Andrew J. Provence and Aaron Kleinbaum, of counsel and on the briefs; Gordon N. Litwin and Raghu Murthy, on the briefs).
James J. Curry, Jr., argued the cause for appellants Steven Melvin and Bob Moss (The Law Offices of James J. Curry, Jr., attorneys; James J. Curry, Jr., and Timothy J. Petrin, on the briefs).
Jill Denyes, Deputy Attorney General, argued the cause for respondents New Jersey Department of Environmental Protection and State House Commission (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Joan M. Scatton, Deputy Attorney General, on the brief).
Jean L. Cipriani argued the cause for respondent Borough of Seaside Heights (Gilmore & Monahan, PC, and Stone Mandia, attorneys; Jean L. Cipriani and Robin La Bue, on the brief).
R.S. Gasiorowski argued the cause for respondent AFMV, LLC (Gasiorowski and Holobinko, attorneys; R.S. Gasiorowski, on the brief).
2 A-4585-15T3 PER CURIAM
We have consolidated these three appeals because they all
relate to the same underlying subject, the transfer of
approximately 1.37 acres of municipally-owned beach property (the
beach parcel) in the Borough of Seaside Heights (Borough). The
transaction enabled a local entrepreneur (AFMV or pier owner) to
rebuild the iconic Casino Pier, which was heavily damaged by
Superstorm Sandy, while allowing the Borough to obtain and preserve
a historically significant wooden carousel worth millions of
dollars. In addition to the carousel, the pier owner gave the
Borough a vacant parcel of land along the boardwalk (the boardwalk-
fronting parcel) on which to build a museum to house the carousel.
To satisfy the Borough's obligation to the Green Acres program,
Ocean County also agreed to dedicate, as replacement parkland,
67.17 acres adjacent to a park in Toms River.
Because no stay was issued, the pier has already been built
on the beach parcel, its amusement rides are in operation, and the
Borough is planning to build the carousel museum on the boardwalk-
fronting parcel.2 Nonetheless, appellants have pursued these
2 At oral argument, the Borough's counsel represented that the Borough will build the museum on the boardwalk-fronting parcel, as opposed to elsewhere, and advised that the Borough was in the process of issuing requests for proposals for the construction of the museum on that parcel. In the meantime, the property exchange
3 A-4585-15T3 appeals, and no party has moved to dismiss the appeals as moot.
Accordingly, we will decide them.
To summarize, in A-4585-15 and A-5372-15, three parties - the
American Littoral Society, Inc. (ALS), the New Jersey Conservation
Foundation (NJCF) and Steven Melvin - appeal decisions by the New
Jersey Department of Environmental Protection (DEP) and the State
House Commission (SHC). Those decisions approved the Borough's
plan to convey the beach parcel to the pier owner, in exchange for
the historic carousel, the boardwalk-fronting parcel, and the
parkland in Toms River. The DEP and SHC decisions make clear that
this application has unique features, and their approvals are not
precedent for other applications to dispose of Green Acres-
protected beach property.
Appellants argue that neither agency had authority to approve
the project under the Green Acres statute and regulations; the
agencies failed to consider the common law public trust doctrine
when issuing the approvals; and the Borough will not receive
reasonably equivalent property in exchange for the beach parcel.
We find no merit in appellants' legal contentions, and it is not
our role to second-guess the agencies' policy decisions. With one
agreement between the Borough and the pier owner requires the pier owner to store the carousel "to maintain its structural integrity," until the museum is built. The pier owner is also responsible for moving the carousel into the museum.
4 A-4585-15T3 minor modification to the SHC decision, discussed later in this
opinion, we affirm the decisions of both agencies.
In A-0557-16, plaintiffs Steven Melvin and Robert Moss appeal
from a September 29, 2016 Law Division order dismissing their
complaint. That complaint, which plaintiffs characterized as
seeking a declaratory judgment, challenged the legality of a
Borough ordinance authorizing the conveyance of the beach parcel
to the pier owner. Plaintiffs contended that, under N.J.S.A.
40A:12-16, the Borough lacked authority to convey the parcel, and
that the ordinance violated the public trust doctrine.3 Because
plaintiffs intentionally waited almost a year to file their
complaint, when the applicable limitations period was forty-five
days, we affirm the dismissal of plaintiffs' complaint as untimely.
I
We begin by addressing the DEP and SHC appeals. To place our
decision in context, we set forth the following background. The
Seaside Heights Borough Public Beach, located within the Borough,
is an approximately thirty-five-acre municipal park. A boardwalk
runs along its western edge, and visitors use the beach for
recreational activities such as swimming, surfing, kayaking,
3 The complaint also raised a constitutional equal protection challenge. However, plaintiffs waived the constitutional issue when they failed to brief it on this appeal.
5 A-4585-15T3 camping, volleyball, fishing, movies, and concerts. The beach was
encumbered with Green Acres restrictions when the Borough listed
it on its Recreation and Open Space Inventory (ROSI)4 in 1997, in
connection with its application for Green Acres funding for the
acquisition of another unrelated parcel of land.
The Casino Pier is a privately owned amusement pier extending
off the boardwalk in the Borough. The pier, owned by AFMV, a
private company, offers rides, games, and concession stands, and
is a huge tourist attraction, important to the Borough's economy.
The pier is located at the southern end of the Borough's public
beach, which runs north to south.
In addition to the pier itself, AFMV also owned the Dr. Floyd
L. Moreland, Dentzel/Loof Carousel (hereinafter, the Carousel),
housed in a pavilion on the pier. On August 25, 2014, the State
Historic Preservation Office (SHPO) issued a Certification of
Eligibility for the Carousel, finding it eligible for listing on
the New Jersey and National Registers of Historic Places. In
making that finding, the SHPO noted that the Carousel, which moved
to its present location in the Borough in 1932, features wooden
animals carved between the 1890s and 1910s — during the "golden
4 The ROSI is part of a municipality's application for Green Acres funding, and lists "each parcel of land held by the local government unit for recreation and conservation purposes as of the date of the application." N.J.A.C. 7:36-12.5.
6 A-4585-15T3 age of carousels and the heyday of amusement parks." According
to the SHPO, the Carousel's hand-carved and hand-painted animals
"embody the distinctive features of a type, period, and method of
construction; reflect the work of master craftsmen; and possess
high artistic value." Between 1910 and 1920, thirty traditional
wooden carousels were present in New Jersey. Today, the Carousel
is one of four remaining wooden carousels in the State.
In July 2014, the pier owner listed the Carousel for private
sale at an auction house. The auction house, which had experience
selling another historic wooden carousel, appraised it at between
$2.3 million and $2.5 million. After the listing generated public
concern, Borough officials began negotiating with the owner to
explore purchasing the Carousel in exchange for assistance in
rebuilding Casino Pier, which had been partially destroyed during
Superstorm Sandy.
The negotiations led to a proposal for the Borough to receive
the Carousel in return for the 1.37-acre beach parcel, located
next to the pier. The pier owner proposed to use the beach parcel
to replace the destroyed portions of the pier. The beach parcel
was classified as unfunded parkland subject to Green Acres
restrictions, and was valued at approximately $4.2 million.
On May 6, 2015, the Borough held a scoping hearing to obtain
public comments on a proposal to dispose of the beach parcel by
7 A-4585-15T3 conveying it to the pier owner in exchange for the Carousel and
other parcels of land located within the Borough. On June 17,
2015, the Borough Council passed a resolution finding that the
transaction would, in part, "[p]reserv[e] the historic
[Carousel]." On or about July 1, 2015, the Borough enacted an
ordinance authorizing the transaction and the submission of an
application to DEP for approval.
On or about July 9, 2015, the Borough filed an application
with DEP seeking approval for its proposed exchange with the pier
owner. The Borough proposed that, in exchange for the beach
parcel, it would receive title to the Carousel, valued between
$2.3 million and $2.5 million, as well as title to the boardwalk-
fronting parcel, a 0.75-acre lot along the boardwalk's inland
side, valued at $2.13 million. The Borough proposed to construct
a museum and community facility building to house the Carousel on
the boardwalk-fronting parcel. Additionally, the Borough proposed
listing various small parcels of Borough-owned properties on the
ROSI as additional compensation for the loss of the beach parcel.
On October 30, 2015, the Borough submitted an amended project
description. The amended description focused on the Carousel and
its historical and cultural importance to the Borough, in contrast
to the previous project description, which had emphasized the
importance of the project's anticipated effect on the area's
8 A-4585-15T3 economy, which had been devastated by Superstorm Sandy.
In February 2016, the Borough revised the proposed
compensation package. The revised proposal retained the Carousel
and the boardwalk-fronting parcel, but removed the small parcels
of Borough-owned land after consultation with DEP and members of
the public. In place of those small parcels, the Borough offered,
in cooperation with Ocean County, to place 67.17 acres of open
space located adjacent to Winding River Park in Toms River (the
Toms River tract) on the ROSI. According to the Borough,
encumbering the Toms River tract "through the Green Acres program
for recreational and open space conservational purposes will help
to protect the ecologically sensitive environment of the Toms
River Subwatershed and the Barnegat Bay Watershed." The appraised
value of the Toms River tract was approximately $275,000.
On or about April 5, 2016, Melvin submitted written comments
to DEP regarding the disposal application. On or about April 6,
2016, several environmental groups, including ALS and NJCF,
submitted written comments via email.
On April 20, 2016, the Borough's governing body passed a
resolution endorsing the filing of a final application for the
disposal, finding that, after reviewing the oral and written public
comments, the project was in the public's best interest. On or
about April 22, 2016, the Borough submitted the final part of its
9 A-4585-15T3 application, which contained, among other documents, proof that
the Borough notified the public regarding the final hearing, the
transcript from the hearing, and a summary of written comments
received from the public.
DEP approved the application on May 18, 2016. In doing so,
it acknowledged the possible economic benefits of the Casino Pier
redevelopment project, but explained that economic benefits are
an insufficient basis for approval under the governing
regulations, which require the project to provide a "public
benefit" or "exceptional recreation and/or conservation benefit."
DEP premised its approval upon "the acquisition of an (arguably)
irreplaceable historic property, along with a nearby vacant parcel
of land that can, in the future, house the Carousel," finding that
they provided an exceptional recreation benefit sufficient to
support the application. DEP approved the proposal with the
following conditions:
[1)] Within two years of this approval, the Borough shall prepare and submit the National Register Nomination Form for the listing of the Carousel on the New Jersey and National Registers of Historic Places.
[2)] While the construction of a building to house the Carousel is not part of the compensation for the proposed disposal, the Borough will make its best efforts to make the Carousel available, as a public recreational amenity, within two years of this approval (with up to two six month extensions for good
10 A-4585-15T3 cause shown[)].
[3)] The Borough shall not convey any property interest to the Casino Pier owners until it has resolved any outstanding issues with the preliminary assessment reports for the proposed replacement land(s) to the Department's satisfaction.
On June 30, 2016, the SHC conducted a hearing on the
application. A witness from DEP testified that, although the
disposal of public beach property is rare, the "determining factor"
supporting DEP's approval "was the aspect involving the historical
carousel." Saving the "irreplaceable historic asset," preserving
the boardwalk-fronting parcel to house it in the future, and the
additional replacement land in the Toms River tract "was sufficient
to satisfy [DEP's] requirements." Counsel for the Borough also
testified in favor of the application, explaining that, "the whole
genesis of this proposal was the historic carousel" and advising
that, "it is every intention of the town to house this carousel
and make it available for view and operation for the benefit of
the public."
Representatives from ALS and NJCF testified before the SHC,
in opposition to the proposal. They argued that the proposed
compensation package was not a reasonably equivalent replacement
because "beachfront property is fundamentally irreplaceable," and
contended that the project was intended to "serve private interests
11 A-4585-15T3 and not the public interest."
At the conclusion of the hearing, the SHC voted to approve
the application. The SHC imposed the following two conditions:
1) there must be a "facility housing the [C]arousel within three
years on the Boardwalk someplace in Seaside Heights" and 2) the
Borough must "complete the [federal] historic designation" process
with respect to the Carousel.
II
Our review of the DEP and SHC decisions is limited. Pub.
Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95,
103 (1985). An agency's decision will only be reversed if: 1) it
is arbitrary, capricious, or unreasonable; 2) it violates express
or implied legislative policies; 3) it offends the State or Federal
Constitution; or 4) if the findings upon which it is based were
not supported by substantial, credible evidence in the record.
Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl.
Prot., 191 N.J. 38, 48-49 (2007).
In reviewing administrative decisions, we grant "considerable
deference to the agency's expertise, where such expertise is a
relevant factor." In re Petition of S. Jersey Gas Co., 447 N.J.
Super. 459, 480 (App. Div. 2016). "Ordinarily, DEP is given great
deference when it applies its considerable expertise and
experience to the difficult balance between development and
12 A-4585-15T3 conservation." In re Stream Encroachment Permit No. 0200-04-
0002.1 FHA, 402 N.J. Super. 587, 597 (App. Div. 2008). We also
owe deference to DEP's interpretation of the statutes it is charged
with enforcing and to the agency's construction of its own
regulations. SCJ Builders, LLC v. N.J. Dep't of Envtl. Prot., 378
N.J. Super. 50, 54 (App. Div. 2005). We are limited to deciding
whether the agency's decisions are lawful; it is not our role to
second-guess the wisdom of its policy choices. In re Adoption of
Amendments to Ne., Upper Rariten, Sussex Cty., 435 N.J. Super.
571, 538-84 (App. Div. 2014).
Appellants' arguments revolve around the Green Acres statutes
and regulations, and it is therefore helpful to review those
enactments. In the 1960s and 1970s, the State enacted several
"Green Acres" laws. See L. 1961, c. 45, codified at N.J.S.A.
13:8A-1 to -18 (the New Jersey Green Acres Land Acquisition Act
of 1961); L. 1971, c. 419, codified at N.J.S.A. 13:8A-19 to -34
(the New Jersey Green Acres Land Acquisition Act of 1971); L.
1975, c. 155, codified at N.J.S.A. 13:8A-35 to -55 (the New Jersey
Green Acres Land Acquisition and Recreation Opportunities Act
(hereinafter, the 1975 Green Acres Act, or 1975 Act)). The laws
promote public ownership and preservation of lands for recreation
and conservation purposes, by providing funding for the State and
municipalities to acquire such lands, restricting the transfer of
13 A-4585-15T3 such lands, and restricting the ability of municipalities to divert
the use of such lands to non-recreation or non-conservation
purposes. See N.J.S.A. 13:8A-2; N.J.S.A. 13:8A-20; N.J.S.A.
13:8A-36; N.J.S.A. 13:8A-47.
Pursuant to the 1975 Green Acres Act, municipalities cannot
dispose or divert from "recreation and conservation" uses any
lands acquired with Green Acres funds, unless they obtain approvals
from both DEP and the SHC.5 N.J.S.A. 13:8A-47(a). The 1975 Act
defines "recreation and conservation purposes" as "use of lands
for parks, natural areas, historic areas, forests, camping,
fishing, water reserves, wildlife, reservoirs, hunting, boating,
winter sports and similar uses for either public outdoor recreation
or conservation of natural resources, or both." N.J.S.A. 13:8A-
37(f). It also requires DEP and the SHC to approve a
municipality's conveyance of any "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." Cedar Cove,
5 Created in 1953, the SHC consists of the Governor, the State Treasurer, and the Director of the Division of Budget and Accounting in the Department of the Treasury, or their designees, two members of the Senate appointed by the Senate President, and two members of the General Assembly appointed by the Speaker. N.J.S.A. 52:20-1. In addition to its role in the Green Acres program, it controls the sale and leasing of state-owned properties in general. See N.J.S.A. 52:20-7.
14 A-4585-15T3 Inc. v. Stanzione, 122 N.J. 202, 205 (1991); N.J.S.A. 13:8A-47(b).
The municipality must also conduct a public hearing at least one
month prior to approval of any proposed sale of Green Acres-
encumbered land. N.J.S.A. 13:8A-47(a), (b)(1).
In 1998, a constitutional amendment created a dedicated
funding source for the "acquisition and development of lands for
recreation and conservation purposes, for the preservation of
farmland for agricultural or horticultural use and production, and
for historic preservation[.]" N.J. Const. art. VIII, § 2, ¶ 7;
N.J.S.A. 13:8C-2. To implement that amendment, in 1999 the
Legislature passed the Garden State Preservation Trust Act
(GSPTA), N.J.S.A. 13:8C-1 to -42. The GSPTA establishes the Garden
State Preservation Trust within the Department of the Treasury,
as well as several other funds, including the Garden State Green
Acres Preservation Trust Fund and the Garden State Historic
Preservation Trust Fund. N.J.S.A. 13:8C-4, -19, -21. The GSPTA
also established the Office of Green Acres within DEP to administer
both the GSPTA and all other preexisting Green Acres laws.
N.J.S.A. 13:8C-24(a) to (b).
Similar to the preexisting Green Acres legislation, the GSPTA
requires municipalities to obtain DEP and SHC approval before
disposing of any lands identified for recreation or conservation
use at the time the municipality received a grant under the GSPTA.
15 A-4585-15T3 N.J.S.A. 13:8C-32(b). However, unlike its predecessors, the GSPTA
requires applicants to provide replacement lands to offset the
diversion or disposal of such land. N.J.S.A. 13:8C-32(b)(1).
Under the GSPTA, DEP and the SHC shall only approve a diversion
or disposal if the municipality agrees to either "replace the
lands with lands of equal or greater fair market value and of
reasonably equivalent size, quality, location, and usefulness for
recreation and conservation purposes, as approved by the
commissioner," or "pay an amount equal to or greater than the fair
market value of the lands, as determined by the commission, into
the Garden State Green Acres Preservation Trust Fund." N.J.S.A.
13:8C-32(b)(1).
Significant to this case, the GSPTA also expansively
redefined "recreation and conservation purposes" to include the
protection of historic buildings and objects. N.J.S.A. 13:8C-3.
Under GSPTA, the definition of "recreation and conservation
purposes" includes "the use of lands for . . . protecting historic
properties." N.J.S.A. 13:8C-3. Moreover, "historic preservation"
includes "any work relating to the conservation, . . .
preservation, [or] protection . . . of any historic property . .
. ." N.J.S.A. 13:8C-3. In turn, the definition of "historic
property" includes an "object" with historical significance:
16 A-4585-15T3 “Historic property” means any area, building, facility, object, property, site, or structure approved for inclusion, or which meets the criteria for inclusion, in the New Jersey Register of Historic Places . . . .
[N.J.S.A. 13:8C-3 (emphasis added).]
The inclusion of "historic properties" within the definition of
"recreation and conservation purposes" is consistent with the
GSPTA's express aim to address the "urgent need" to "enable present
and future generations to experience, understand, and enjoy the
landmarks of New Jersey’s role in the birth and development of
this nation[.]" N.J.S.A. 13:8C-2.6
DEP's regulations provide additional details regarding the
process for approving an application to dispose protected
parklands. N.J.A.C. 7:36-25.2 to -26.11. The regulations define
"funded parkland" as land acquired or developed by a municipality
with Green Acres funding, and "unfunded parkland" as parkland,
other than funded parkland, that is held by a local government
unit for recreation and conservation purposes at the time of
receipt of Green Acres funding. N.J.A.C. 7:36-2.1. Consistent
6 The most recent legislation governing Green Acres issues is the Preserve New Jersey Act (PNJA), N.J.S.A. 13:8C-43 to -57, passed in 2016 following another constitutional amendment. The PNJA incorporates by reference the definition of recreation and conservation purposes set forth in the GSPTA, as well as the GSPTA's restrictions on the use of land encumbered by Green Acres restrictions. N.J.S.A. 13:8C-45; N.J.S.A. 13:8C-53. It took effect following the DEP and SHC approvals appealed here.
17 A-4585-15T3 with the GSPTA, a municipality that wishes to dispose of either
funded or unfunded parkland must file an application for approval
with DEP and the SHC. N.J.A.C. 7:36-26.1(b). Any proposal to
dispose of more than 0.5 acres of funded or unfunded parkland
qualifies as a "major disposal" for the purposes of the
regulations. N.J.A.C. 7:36-26.2(c).
Here, the beach parcel constitutes unfunded parkland subject
to the alienation restrictions contained in the Green Acres
statutes, the GSPTA, and the implementing regulations. As the
beach parcel exceeds 0.5 acres in size, it qualifies as a "major
disposal" under the applicable regulations. N.J.A.C. 7:36-
26.2(c).
A. Whether the Agency Decisions were Ultra Vires
Against that statutory and regulatory backdrop, we first
consider appellants' three arguments, supporting their contention
that the agency approvals were ultra vires. Appellants contend
that the decisions were impermissibly "motivated" by economic
considerations; the Green Acres program does not authorize
acquisition of historic objects such as the Carousel; and the
agencies failed to make required factual findings.
1. Economic Considerations
Appellants first argue that the agencies improperly approved
the application in order to provide an economic benefit to the
18 A-4585-15T3 Borough and the pier owner. They argue that preserving the
Carousel was "an afterthought."
Under the regulations, DEP and the SHC may only approve an
application for a major disposal if it meets the "minimum
substantive criteria." N.J.A.C. 7:36-26.1(d). Appellants rely
upon the provision requiring projects to either "satisfy a
compelling public need" or provide one of the following "public
benefits": 1) mitigating a hazard to the public health, safety,
or welfare; 2) improving the delivery of essential public services
or providing affordable housing; or 3) providing an "exceptional
recreation and/or conservation benefit" by "substantially
improving the quantity and quality of parkland" within either the
municipality or the watershed in which the parkland proposed for
disposal is located, "without resulting substantially in any of
the adverse consequences listed at N.J.A.C. 7:36-26.1(e)[.]"
N.J.A.C. 7:36-26.1(a), (d)(1).
Appellants contend that, because the regulations do not
enumerate "economic development" as one of the required "public
benefits," N.J.A.C. 7:36-26.1(d), DEP and the SHC should have
denied the application. We cannot agree with appellants that it
is "beyond the authority" of DEP and the SHC to consider the
economic impact of a disposal application.
The regulations set forth the minimum criteria that any
19 A-4585-15T3 disposal application must satisfy. N.J.A.C. 7:36-26.1. The
regulations do not forbid DEP and the SHC from approving an
application that may result in economic benefits, nor do they
require the agencies to ignore the possible economic impacts of
their decisions. Indeed, the same regulation appellants cite also
requires DEP to "carefully weigh the competing public interests
presented by the project," which may reasonably include economic
interests. See N.J.A.C. 7:36-26.1(c). So long as the application
satisfies the minimum criteria set forth in the statutes and
regulations, the agencies' acknowledgement of a project's economic
impact does not undermine the legality of their decisions.
To the extent appellants claim that the agencies made their
decisions solely for economic reasons, the record demonstrates
otherwise. DEP addressed this very issue in its decision. In
approving the Borough's application, DEP acknowledged "the
Borough's economic concerns," but did not "endorse them as being
the primary justification for approval of this application." DEP
explained that, under its regulations, "[e]conomic development,
in and of itself (without other unique contributing factors) is
not sufficient justification for the exchange of beachfront
property for non-beachfront property."
The agency considered the acquisition of an "irreplaceable
historic property, along with a nearby vacant parcel of land that
20 A-4585-15T3 can, in the future, house the Carousel, to be the public benefit
and/or the 'exceptional recreation and/or conservation benefit'
supporting approval of this application." It also recognized that
"it is the Borough's long-term intention to build a pavilion on
the [boardwalk-fronting parcel] to house the Carousel (as a
functioning recreational amenity for the public) and to showcase
the history of the Borough." DEP also required the Borough to
make "its best efforts to make the Carousel available, as a public
recreational amenity, within two years of this approval (with up
to two six month extensions for good cause shown[.)]"
At the SHC hearing, the DEP representative reiterated that
the "determining factor" behind DEP's approval "was the aspect
involving the historical carousel." The SHC relied upon DEP's
report when voting to approve the project. The SHC also went
farther than DEP, in requiring the Borough to place the Carousel
in a facility on the boardwalk in the Borough within three years.
Both agencies recognized the importance of the Carousel and the
boardwalk-fronting parcel as an integral aspect of the exchange
and as the basis for their approvals. That the agencies also
recognized the economic impact of their decisions is not a ground
to reverse those determinations.
Although the Borough's subjective motivations are not
relevant, we note that the Borough's resolution endorsing the
21 A-4585-15T3 initial application, passed before the Borough filed it with DEP,
expressly identified preserving the Carousel as one of the primary
benefits to be gained from conveying the beach parcel to the pier
owner. In its initial application, the Borough also included a
letter from the National Carousel Association, addressing the
value of the Carousel.
2. Agency Authority to Approve a Transaction Involving the Carousel
Appellants next argue that DEP and the SHC acted beyond their
authority because "the acquisition of personal property to be
housed indoors as a museum piece is beyond the mandate of the
Commission and DEP's Green Acres program." We disagree with that
analysis, because the GSPTA authorizes the use of land to preserve
historic properties, which in turn includes historic "objects."
See N.J.S.A. 13:8C-3.
Appellants next contend that the statute's use of the term
"land" appears to exclude a historic object as an authorized
acquisition, "independent from the acquisition of real property."
Pursuant to the GSPTA, DEP and the SHC may approve a municipality's
application to dispose parkland if the municipality "agrees to .
. . replace the lands with lands of equal or greater fair market
value and of reasonably equivalent size, quality, location, and
usefulness for recreation and conservation purposes, as approved
22 A-4585-15T3 by the commissioner . . . ." N.J.S.A. 13:8C-32(b)(1) (emphasis
added). As previously noted, the GSPTA's definition of "recreation
and conservation purposes" includes "the use of lands for . . .
protecting history properties." N.J.S.A. 13:8C-3 (emphasis
added); N.J.A.C. 7:36-2.1. Read together, these statutory
provisions appear to require the exchange of lands together with
historic properties, not the exchange of land for historic
properties independent of any replacement land.
Similarly, for major disposals, the regulations require
applicants to "compensate for the disposal" 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-
26.10. N.J.A.C. 7:36-26.1(d)(3). Pursuant to N.J.A.C. 7:36-
26.10(c)(1) and (e), compensation may include either replacement
land or monetary compensation payable to the Garden State
Preservation Trust or a dedicated account for parkland purposes,
or both. The regulations contemplate that any major disposal must
involve replacement land, not solely personal property, and in
this case there is no proposal to pay monetary compensation to the
Trust or to a dedicated account.
In this case, DEP found that the Borough intended to use the
boardwalk-fronting parcel to house and showcase the Carousel in
23 A-4585-15T3 the future. During the SHC hearing, DEP's representative stated
that "it is every intention of the town to house this carousel and
make it available for view and operation for the benefit of the
public." Therefore, the Borough's proposal involved replacement
"land" (the boardwalk-fronting parcel) that will be used for
"protecting historic properties" (the Carousel), which satisfies
the statutory definition of lands used for recreation and
conservation purposes. N.J.S.A. 13:8C-3; N.J.S.A. 13:8C-32(b)(1).
The SHC did not include that requirement in its decision,
instead requiring the Borough to build the carousel museum
somewhere on the boardwalk. However, it appears clear that the
Borough is planning to build the museum on the boardwalk-fronting
parcel, as its counsel represented to us at oral argument. To
ensure that the agency decisions are consistent with the GSPTA,
we hereby modify the SHC decision to require that the Borough use
the boardwalk-fronting parcel as the site of the museum.
3. Agency Fact Finding
Pursuant to N.J.A.C. 7:36-26.1(d)(1)(iii), DEP and the SHC
may approve a major disposal application that provides a "public
benefit" in the form of an "exceptional recreation and/or
conservation benefit" by: 1) "substantially improving the quantity
and quality of parkland" within the municipality or the parkland's
watershed; 2) "without resulting substantially in any of the
24 A-4585-15T3 adverse consequences listed at N.J.A.C. 7:36-26.1(e)." According
to appellants, DEP and the SHC failed to find that the proposed
disposal would "substantially improve the quality" of parkland,
and failed to find that none of the enumerated adverse consequences
apply.
With respect to the "substantially improve the quality"
requirement, DEP's decision includes factual findings relating to
the value of the compensation package proposed by the Borough.
The decision discussed the history of the Carousel, which traces
back to the 1890s, the Carousel's rarity as one of only four
remaining wooden carousels in New Jersey, its "high artistic
value," and described the Carousel as "one of the largest and
finest carousels ever made." DEP also discussed the Borough's
continued efforts to address "a lot of public concern" caused by
the Carousel's possible destruction and its strong interest in
obtaining and preserving the Carousel. The decision also relied
upon the more recent history of the Carousel, which underwent
extensive restorations spearheaded by a local resident, Dr. Floyd
L. Moreland — after whom the Carousel is now named — in the 1980s
when the Carousel was under a similar threat to be dismantled and
sold. DEP explained that the boardwalk-fronting parcel would
house the Carousel in the future in a showcase of the Borough's
history.
25 A-4585-15T3 The above facts clearly relate to the "quality" of the
replacement land and Carousel. In comparison, the Seaside Heights
Borough Public Beach is approximately thirty-five acres in size,
and the Borough proposes to dispose of just 1.37 acres by selling
it to a private company that will continue to use the parcel for
recreational purposes available to the public.
The record thus contains sufficient factual support for the
agencies' conclusions that the replacement land and Carousel will
substantially improve the quality of parkland in the Borough. See
Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16
(2006) (stating that a court may not substitute its judgment for
the agency's so long as substantial credible evidence supports the
agency's conclusion) (citing Greenwood v. State Police Training
Ctr., 127 N.J. 500, 513 (1992)).
Next, appellants argue that DEP and the SHC erred by failing
to find that the project will not substantially result in any
adverse consequences, as set forth in N.J.A.C. 7:36-26.1(e). As
previously noted, DEP approved the Borough's project pursuant to
N.J.A.C. 7:36-26.1(d)(1)(iii). Under that regulation, a project
which disposes of parkland will be approved if it provides an
"exceptional recreation and/or conservation benefit" that will
"substantially improv[e] the quantity and quality of parkland . .
. without resulting substantially in any of the adverse
26 A-4585-15T3 consequences listed at N.J.A.C. 7:36-26.1(e)." N.J.A.C. 7:36-
26.1(d)(1)(iii) (emphasis added). This language is not
discretionary. It appears as part of a list that subsection (d)
defines as "minimum substantive criteria" to justify the disposal
of funded or unfunded parkland. N.J.A.C. 7:36-26.1(d). Therefore,
under the plain language of the regulation, DEP and the SHC must
consider whether a proposed disposal will "substantially" result
in any of the adverse consequences listed at subsection (e). Those
adverse consequences include a "significant" adverse impact on the
public's use and enjoyment of "the remainder of the parkland,"
loss of "a central, unique or significant parkland site or
feature[,]" substantial interference with water quality protection
efforts or shoreline protection, or a significant adverse effect
on an endangered species or the habitat of an endangered species.
N.J.A.C. 7:36-26.1(e).
Under other circumstances, we might remand this matter to DEP
for further consideration and findings as to subsection (e).
However, the current record persuades us otherwise. DEP previously
issued a CAFRA permit for the construction, a decision no party
has appealed. Further, on this appeal as before DEP, appellants
have not cited to evidence of any possible adverse consequences
of the type listed in subsection (e). Because the project has
already been built, and there is no evidence in the record that
27 A-4585-15T3 any of the adverse consequences listed in (e) may result, we
conclude that a remand is not warranted.
B. The Public Trust Doctrine
Appellants next contend that DEP and the SHC "had a duty to
review the proposal" under the public trust doctrine. They argue
that the agencies "were required to ascertain whether the public
had the right" under the doctrine to "continue to access and
recreate" on the beach parcel. We conclude that the argument is
without sufficient merit to warrant more than brief discussion.
R. 2:11-3(e)(1)(E).
None of the cases appellants cite are on point here. The
public trust doctrine protects the public's right of access to the
beach for traditional water-related purposes including "bathing,
swimming and other shore activities." See Matthews v. Bay Head
Improvement Ass'n, 95 N.J. 306, 321 (1984). The doctrine therefore
precludes a municipality from discriminating against non-residents
by charging them higher fees to use its beaches. See Borough of
Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308-09
(1972). Likewise, the doctrine precludes a municipality from
transforming its beachfront into a private club for a similar
exclusionary purpose, or allowing a private owner to exclude beach-
goers from the dry upland portion of the beach. See Matthews, 95
28 A-4585-15T3 N.J. at 331-32; Raleigh Ave. Beach Ass'n v. Atlantis Beach Club,
Inc., 185 N.J. 40, 59-60 (2005). None of that is occurring here.
Unlike the private beach clubs found to violate the public
trust doctrine, the newly-built amusement pier is open to the
public. In fact, the CAFRA permit that allowed construction of
the pier requires that it be open to the public. Further, it is
clear from the record that the public will have access to the
strip of dry-sand beach between the pier and the ocean. That
satisfies the requirement that beaches and other land affected
with the public trust be "open to the public at large." See
Matthews, 95 N.J. at 332 (1984); see also Jersey City v. State
Dep't of Envtl. Prot., 227 N.J. Super. 5, 21 (App. Div. 1988).
Unlike Raleigh Avenue Beach, where the town had no publicly-
owned beaches, here the public will continue to have ample beach
access on the Borough's approximately thirty-three remaining acres
of publicly-owned beach. See 185 N.J. at 56. In fact, both the
Borough's DEP application and the testimony at the SHC hearing
indicate that, as a result of a beach replenishment project
conducted by the Army Corp of Engineers, the Borough will have
considerably more than thirty-three acres of public beach.
C. Adequacy of Compensation
Appellants' final argument is that the compensation proposed
by the Borough — the Carousel, the boardwalk-fronting parcel, and
29 A-4585-15T3 the Toms River tract — is inadequate under the applicable statutes
and regulations.
Pursuant to the GSPTA, any disposal of covered parkland must
involve an agreement by the disposing municipality to either pay
a sum to the Garden State Preservation Trust or replace the
disposed lands with "lands of equal or greater fair market value
and of reasonably equivalent size, quality, location, and
usefulness for recreation and conservation purpose[s]." N.J.S.A.
The DEP regulations set forth several additional requirements
that, according to appellants, the Borough's proposal did not
satisfy. See N.J.A.C. 7:36-26.10(d). First, the replacement land
must satisfy N.J.A.C. 7:36-26.10(d)(7) and Table 1 to N.J.A.C.
7:36-26.10(g), which the parties agree requires a 1:4 ratio of
disposed land to replacement land. It is clear that the
compensation proposed by the Borough satisfies this requirement.
N.J.A.C. 7:36-26.10(d)(7). According to DEP's findings, the
disposal property constitutes 1.37 acres, whereas the total
replacement land constitutes 67.921 acres. That far exceeds the
requisite 1:4 ratio.
Second, the replacement land must have a market value equal
to or greater than the disposed parkland. N.J.A.C. 7:36-
26.10(d)(5). On this record, the fair market value of the
30 A-4585-15T3 replacement lands and Carousel exceeds the fair market value of
the beach parcel. DEP found that the appraised value of the beach
parcel is $4.2 million, and that the appraised value of the
replacement lands and Carousel is between $4.705 million and $4.905
million.
Third, the replacement land must be of "reasonably equivalent
or superior quality" to the disposed parkland, with respect to
"location, accessibility, usefulness for recreation purposes, and
value for ecological, natural resource and conservation purposes."
N.J.A.C. 7:36-26.10(d)(6). There is ample support in the record
for DEP's conclusion that the replacement lands, taken as a whole,
will substantially improve the quality of parkland in the area.7
Appellants argue that, since the Toms River tract is only
useful for conservation purposes, it is not "reasonably
equivalent" to the beach parcel's recreational uses. However, the
regulations do not require the agencies to analyze each individual
component of the replacement package to determine whether each
parcel is independently "reasonably equivalent." Rather, the
regulations refer to the "replacement land" as a whole. See
N.J.A.C. 7:36-26.1; N.J.A.C. 7:36-26.10.
7 The Borough's brief represents – and appellants do not dispute – that Toms River and the Borough are located in the same watershed. See N.J.A.C. 7:36-26.10(d)(8); N.J.A.C. 7:36- 26.1(d)(1)(iii).
31 A-4585-15T3 The record supports the agencies' finding that all three
components of the compensation package — the Carousel, boardwalk-
fronting parcel, and the Toms River tract — are reasonably
equivalent to the beach parcel, when viewed collectively. DEP set
forth sufficient findings that support the recreational and
cultural quality of the Carousel and boardwalk-fronting parcel.
Those two items exceed the fair market value of the beach parcel,
serve the same beach-going population, and provide a recreational
use. See N.J.A.C. 7:36-26.10(d)(6) ("In evaluating the usefulness
of the proposed replacement land, the Department shall pay
particular attention to ensuring that parks that provide services
to significant populations are replaced with recreation areas that
serve the same, if not broader population[.]"). Preserving the
Carousel will provide a valuable recreational and cultural public
benefit to the Borough's residents, the expanded amusement pier
will be available to the public and provide shore access, and the
Borough will lose just 1.37 acres out of a thirty-five acre public
beach. Additionally, there is evidence that the Toms River parcel
can be used for recreation, such as hiking.
Appellants' policy argument - that the value added by the
Carousel pales in comparison to the beach parcel – does not carry
the day here. Those policy judgments are properly within DEP's
and the SHC's discretionary authority. We will not overturn an
32 A-4585-15T3 agency determination because of "doubts as to its wisdom or because
the record may support more than one result." In re N.J. Pinelands
Comm'n Resolution, 356 N.J. Super. 363, 372 (App. Div. 2003).
Likewise, appellants' claim, that the Toms River tract is a less
valuable recreational resource than the beach parcel, is a policy
argument, and we will not second-guess DEP's judgment on that
issue.
Accordingly, we affirm the DEP decision, and we affirm the
SHC decision as modified in this opinion.
III
We next turn to the appeal of the Law Division order. In
A-0557-16, plaintiffs argue that the trial court incorrectly
dismissed their complaint as untimely, by improperly relying on
the rules governing actions in lieu of prerogative writs, and that
the challenged ordinance is illegal and void. We affirm
substantially for the reasons stated by the Law Division judge in
his comprehensive opinion. We add only brief comments.
We agree with the Law Division judge that plaintiffs should
have filed their challenge as an action in lieu of prerogative
writs. See R. 4:69-1. Complaints in lieu of prerogative writs
must be filed within forty-five days of the challenged municipal
action. See R. 4:69-6(a). The forty-five day time limit serves
"the important policy of repose." Reilly v. Brice, 109 N.J. 555,
33 A-4585-15T3 559 (1988). In this case, plaintiffs tried to circumvent the
forty-five day time limit by instead filing a declaratory judgment
complaint. The Law Division correctly rejected that effort.
We affirm the dismissal of the complaint as untimely.
Plaintiffs were well aware of the proposed ordinance, and submitted
public comments opposing it before its adoption. However, they
intentionally waited nearly a year before filing their complaint.
See Southport Dev. Grp., Inc. v. Twp. of Wall, 310 N.J. Super.
548, 556 (App. Div. 1998) (If a party "sat idly by in the past,
its entitlement to enlargement of the time limit is weakened.").
We agree with the trial court that the forty-five day time limit,
set forth in Rule 4:69-6(a), began to run when the ordinance was
published, not when DEP and the SHC issued their decisions. See
Adams v. Delmonte, 309 N.J. Super. 572, 578-79 (App. Div. 1998).
Plaintiffs' argument to the contrary is without merit. R. 2:11-
3(e)(1)(E).
In the circumstances of this case, the public interest does
not warrant extending the deadline, where the parties had an
opportunity to challenge the underlying transaction before DEP and
the SHC. See R. 4:69-6(c) (permitting enlargement of the time in
the interest of justice). In fact, as noted earlier in this
opinion, Melvin is also a party to the DEP and SHC appeals.
Plaintiffs' further arguments concerning the timeliness of their
34 A-4585-15T3 complaint are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
However, we also agree with the trial judge that the statutory
issue, which plaintiffs sought to raise in this action, is without
merit. The statute on which plaintiffs rely, N.J.S.A. 40A:12-16,
permits a municipality to exchange one parcel of parkland for
another. Both the boardwalk-fronting parcel in the Borough and
the sixty-seven acres outside Toms River will be used as
"parkland," as defined in DEP's Green Acres regulations, and will
remain subject to Green Acres restrictions. See N.J.A.C. 7:36-
2.1; N.J.A.C. 7:36-26.10(m). Likewise, plaintiffs' arguments
premised on the public trust doctrine are without merit, for the
reasons stated earlier in this opinion.
Affirmed.
35 A-4585-15T3