IN THE MATTER OF THE CERTIFICATE OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION GRANTING PARTIAL RELEASE OFCONSERVATION RESTRICTIONS(DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE STATEHOUSE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 31, 2017
• Docket: A-2316-10T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2316-10T2 IN THE MATTER OF THE CERTIFICATE OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION GRANTING PARTIAL RELEASE OF CONSERVATION RESTRICTIONS. ______________________________

Argued March 22, 2017 – Decided July 31, 2017

Before Judges Simonelli, Carroll and Gooden Brown.

On appeal from the New Jersey Department of Environmental Protection and the State House Commission, Docket No. SHC 1531003 (Amended).

Renée Steinhagen argued the cause for appellants Pinelands Preservation Alliance, New Jersey Conservation Foundation and New Jersey Environmental Lobby (Eastern Environmental Law Center, and New Jersey Appleseed PILC, attorneys; Aaron Kleinbaum and Ms. Steinhagen, of counsel and on the briefs).

Joan M. Scatton, Deputy Attorney General, argued the cause for respondents New Jersey Department of Environmental Protection and State House Commission (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ms. Scatton, on the brief).

PER CURIAM

In this matter, appellants Pinelands Preservation Alliance,

New Jersey Conservation Foundation, and New Jersey Environmental Lobby (collectively, appellants) opposed the proposed

redevelopment of a closed and capped former landfill located in

the Township of Stafford (Stafford) into a solar energy facility.

There is a recorded conservation restriction on the property under

the Conservation Restrictions and Historic Preservation

Restriction Act (Preservation Act), N.J.S.A. 13:8B-1 to -9. The

Preservation Act prohibits the release of a recorded conservation

restriction, in whole or in part, without approval and certificates

issued by the Commissioner of the New Jersey Department of

Environmental Protection (DEP). N.J.S.A. 13:8B-6.

There are also restrictions on the property under the New

Jersey Green Acres Land Acquisition and Recreation Opportunities

Act (Green Acres Act), N.J.S.A. 13:8A-35 to -55, and Garden State

Preservation Trust Act (GSPTA), N.J.S.A. 13:8C-1 to -42. Both the

Green Acres Act and the GSPTA prohibit property held by a

municipality for conservation purposes to be disposed of or

diverted to another purpose without approvals by the Commissioner

and State House Commission (SHC). N.J.S.A. 13:8A-47(b)(1);

N.J.S.A. 13:8C-32(b)(1).

The GSPTA also prohibits the property from being conveyed for

a use other than conservation purposes without the Commissioner's

and the SHC's approvals. N.J.S.A. 13:8C-32(b)(1). The GSPTA

further prohibits granting the approvals unless the municipality

2 A-2316-10T2 agrees to replace the property "with lands of equal or greater

fair market value and of reasonably equivalent size, quality,

location, and usefulness for . . . conservation purposes, as

approved by the [C]ommissioner," or "pay an amount equal to or

greater than the fair market value of the lands, as determined by

the [SHC]." Ibid.

This appeal concerns the SHC's October 23, 2014 approval of

Stafford's amended diversion application to lease a portion of the

landfill site to a redeveloper to install renewable energy

facilities, and DEP's December 1, 2015 approval and issuance of

an amended certificate granting partial release of the

conservation restrictions to accommodate the project. For the

reasons that follow, we affirm.

I.

Stafford's Redevelopment Plan for the Stafford Business Park

In 2005, Stafford adopted a redevelopment plan pursuant to

the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -

49, to construct the Stafford Business Park (Business Park), an

approximately 370-acre mixed-use brownfield redevelopment project

located within the Pinelands Regional Growth Area of the Pinelands

National Reserve in Ocean County. Stafford proposed commercial,

residential, and government component uses on the site.

3 A-2316-10T2 Two abandoned municipal landfills occupied portions of the

site. The Old Stafford Township Landfill (Old Landfill), which

operated from 1958 to 1970, was located on approximately twenty-

five acres on the eastern side of the proposed Business Park.

Relevant here is the Stafford Township Landfill (Landfill), which

operated from 1970 to 1983, and was located on approximately fifty-

five acres on the western side of the proposed Business Park.

In 2005, both landfills were still leaching hazardous

chemicals into the surface waters and groundwater. Pursuant to a

redevelopment plan, Stafford proposed closing both landfills in

accordance with the regulations governing landfill closure and

post-closure care in the Pinelands, N.J.A.C. 7:26-2A.9 and

N.J.A.C. 7:50-6.75. Specifically, Stafford proposed excavating

and remediating all buried waste at the Old Landfill, reusing any

non-hazardous waste to close the Landfill, and constructing an

impermeable cap over the Landfill.

Stafford engaged a redeveloper for the project, Walters Group

(Walters), and submitted a redevelopment plan to the New Jersey

Pinelands Commission (Pinelands Commission) for compliance review

and approval under the Pinelands Comprehensive Management Plan

(Pinelands CMP), N.J.A.C. 7:50-1.1 to -10.35. The Pinelands

Commission determined that Stafford's landfill plan was

inconsistent with the Pinelands CMP's minimum requirements for

4 A-2316-10T2 wetland buffers (which are not at issue here), and threatened and

endangered (T&E) plants and animal species, including the Northern

Pine Snake (which are at issue here).

To bring Stafford's plan into compliance with the Pinelands

CMP, in 2006, the Pinelands Commission, Stafford, and Ocean County

entered into a memorandum of agreement (the 2006 MOA). Section

VI(A)(15) required Stafford to: (1) execute a conservation

restriction against future development so that the Landfill site

of 59.593 acres and other open space areas remain undeveloped open

space in perpetuity; (2) incorporate low impact design measures

and green building design features and techniques throughout the

Business Park; and (3) submit a species management plan designed

and implemented to protect T&E species during the project and

reestablish them afterwards on or near the site or at other

appropriate areas designated by the Pinelands Commission and

NJDEP.

In addition, in order to provide an equivalent level of

protection of the Pinelands resources, Section VI(A)(14) required

Stafford

to purchase and deed restrict against future development at least 570 acres of land (at least three times the forested lands to be disturbed as a result of the implementation of the [c]losure and [r]edevelopment [p]lans) in the [f]orest [a]rea [of the Pinelands], a portion of which will be located within the

5 A-2316-10T2 Mill Creek drainage area to offset for wetlands impacts, and the remainder of which will constitute suitable [Northern Pine Snake] habitat.

The 2006 MOA also required Ocean County to purchase seventy-five

acres of land that constituted suitable habitat for the Northern

Pine Snake as part of its open space acquisition program. The

2006 MOA did not mention solar or any other renewable energy

facilities or services.

The Conservation Restriction

As required by the 2006 MOA, on December 11, 2006, Stafford

recorded a Declaration of Covenants and Restrictions, placing a

conservation restriction on the portion of the Business Park that

included the Landfill (the conservation restriction). The stated

purposes of the conservation restriction were:

a. that the [r]estricted [a]rea . . . be protected in its natural, scenic, open and existing state, in perpetuity, subject only to the specific rights reserved to [Stafford] herein;

b. that the natural features of the [r]estricted [a]rea shall be respected and preserved to the maximum extent consistent with [Stafford's] exercise of the rights expressly reserved to [Stafford] . . . [herein]; and

c. that the [r]estricted [a]rea be forever protected and preserved in its natural, scenic, open and existing state free from all activities that might damage, compromise or interfere with the ecological diversity,

6 A-2316-10T2 natural beauty or resource quality, or with the natural processes occurring therein[.]

The conservation restriction provided

that [Stafford's] [p]roperty shall be held, transferred, sold, conveyed, leased and occupied subject to the following covenants, conditions, obligations and restrictions hereafter set forth:

1. Except as specifically set forth herein, the [r]estricted [a]rea may not be developed in any manner whatsoever and shall remain in its natural condition. . . .

. . . .

2. Notwithstanding the above, the [r]estricted [a]rea may be disturbed solely to permit the construction, installation, maintenance and repair of the following: (i) stormwater basins . . . ; (ii) the landfill cap; (iii) access roads . . . [;] and (iv) the proposed [fifteen foot] wide access road to the compost and chipping areas all in accordance with the terms of the [2006] MOA, the [c]losure [p]lans and such other plans as [may be] approved by []DEP and the [Pinelands] Commission and subject to compliance with applicable local, county, state and federal law, rules, regulations and ordinances. . . . Once implementation of the [c]losure [p]lans is completed, the [r]estricted [a]rea . . . shall be graded and revegetated with native Pinelands vegetation.

3. [Stafford], for itself, its successors, transferees, or assignees, agrees to leave the [r]estricted [a]rea unmolested and in [its] natural state.

7 A-2316-10T2 Under the conservation restriction, the Pinelands Commission had

the right to determine the consistency of any activity or use for

which the restriction made no express provision.

Sometime after Stafford recorded the conservation

restriction, it accepted Green Acres funding for other projects

in the township. As a result of accepting this funding, the

restricted area already encumbered by the conservation restriction

also became encumbered with Green Acres restrictions and was

characterized as "unfunded parkland" within Stafford's recreation

and open space inventory.1

By 2010, Walters had removed the hazardous contents of the

Old Landfill, filled it, and developed it into a retail shopping

center. Walters had also closed and capped the Landfill. Public

funds were not used for either project.

In addition, as required by the 2006 MOA, Walters had

developed, in conjunction with DEP and the Pinelands Commission,

a seven-year species management plan under which: T&E plants were

relocated from the landfills before they were disturbed; new

habitat for the Northern Pine Snake was constructed; an extensive

1 Whenever a municipality accepts Green Acres funding, all land it holds for recreation and conservation purposes, even if such properties had not been acquired or developed with those funds, become encumbered with Green Acres restrictions. Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 205 (1991).

8 A-2316-10T2 snake monitoring program was implemented; and Stafford and Ocean

County purchased and permanently preserved 1070 acres to offset

the impacts to both T&E habitats and wetlands. Further, pursuant

to a settlement agreement in an unrelated action brought by the

Pinelands Preservation Alliance, Walters agreed to pay $1 million

for Stafford to purchase the offset land.

Stafford's Lease with Walters

Early in construction of the Business Park, Walters and

Stafford began to consider using the Landfill and its adjoining

lands for the development of renewable energy facilities,

including installation of solar panels and wind turbines. Walters

had already installed solar arrays on the rooftops of the retail

facilities in the Business Park and affordable housing rental

apartments, and had worked on Rutgers University's two-year wind

resource study conducted on the Landfill and its adjoining lands.

In the summer and fall of 2010, Stafford and Walters

approached DEP and the Pinelands Commission to discuss a renewable

energy proposal. Stafford proposed to lease 46.8 acres of the

Landfill to Walters for thirty years to construct, install, and

operate a 6.5-megawatt, 1026-panel solar array to supply energy

to the facilities in the Business Park. In return, Walters would

pay Stafford annual rent ranging from $65,000 to $150,000, along

with a sixth- and eleventh-year escalator of ten percent. The

9 A-2316-10T2 lease would also provide for two ten-year renewals, subject to

Stafford's approval, and would allow Walters to explore future

installation of four 1.5-megawatt wind turbines and methane gas

production.

During the discussions with the agencies, Walters submitted

an August 2010 ecological assessment report prepared by Robert T.

Zappalorti, Executive Director of Herpetological Associates, Inc.

After reviewing the Landfill site, Zappalorti concluded that the

construction, installation, and on-going operation of 1026 solar

panels would be compatible with the wildlife on site. He also

concluded that the solar panels would not have any direct or

secondary adverse impacts upon the Northern Pine Snake, tree frog,

or two rare plant species known to occur in the vicinity of the

Business Park and Landfill.

Zappalorti explained that the proposed 1026 solar panels

would be erected and positioned to run from east to west for

optimal sunlight exposure. Each panel would be about twenty-seven

feet wide and sixteen feet long, and would sit on two concrete

foundations that were fourteen feet long and two feet wide, with

twenty feet between the rows of solar panels to allow for mowing

grasses and general maintenance. The low end of a panel would be

about four feet above grade, and the high end would be about twelve

feet above grade. All connecting wires would run above ground and

10 A-2316-10T2 overhead, and there would be no excavation into the soil on the

Landfill surface.

DEP approved an amendment to Stafford's landfill closure plan

to allow for the development of renewable energy facilities on the

Landfill. On September 27, 2010, Stafford held a "scoping hearing"

on this proposed use, at which appellants and several members of

the public voiced their objections.2

Three days later, Stafford filed an application with DEP and

the SHC, seeking approvals for a major diversion from the

conservation restriction to lease a portion of the Landfill to

Walters for installation of renewable energy facilities to serve

the Business Park. Stafford also applied to the DEP for a

certificate to partially release the conservation restriction. On

October 14, 2010, Stafford held a public hearing on its diversion

application. Appellants and several members of the public voiced

their objections and submitted written comments.

On November 7, 2010, DEP approved the diversion application

and referred the matter to the SHC. DEP considered various factors

for preserving the site in its natural state, including the

project's public need and public benefit, environmental impact,

2 N.J.A.C. 7:36-26.8 requires a municipality to conduct a "scoping hearing" to solicit preliminary public comment before submitting an application to NJDEP for a major diversion of parkland.

11 A-2316-10T2 and possible alternatives. DEP also considered the oral and

written public comments and finding of the Pinelands Commission,

which advised that the solar project would not require a deviation

from the Pinelands CMP. DEP determined that the solar project

would provide a variety of public needs and benefits; the diversion

would have no irreparable impact on habitats for T&E plants and

animals; and there were no feasible alternatives.

As to public need and benefit, DEP noted that Stafford and

Walters had been incorporating green buildings to reduce the

redevelopment's impacts on the Pinelands. DEP stated: "The rooftop

solar arrays already installed by Walters provide approximately

30% of the energy needs for the retail stores they serve and nearly

100% of the common area power needs for the affordable housing

residents." In addition, various agencies, including the Board

of Public Utilities (BPU) and other DEP divisions, had encouraged

Stafford and Walters to explore additional renewable energy uses

on the Landfill. Walters estimated that approximately seventy

percent of the Business Park's energy needs could be provided by

developing solar and wind facilities, and that the benefits of

reducing the carbon footprint of development benefitted the

citizens of Stafford, Ocean County, and the State.

DEP further noted that the level of renewable energy at a

mixed use project of this scale was unprecedented, and Walters had

12 A-2316-10T2 proved that sustainable building practices can be utilized in a

cost effective manner. Thus, DEP concluded that the environmental

features of the redevelopment project were a direct benefit to

Stafford and Ocean County, and the innovative design features were

a model for other development in the region and State.

As to environmental impacts, DEP stated that the 2006 MOA

required Stafford and Walters to preserve at least 570 additional

acres for Northern Pine Snakes and other T&E species; they had

already acquired and preserved significantly more than that

acreage; and Walters had paid $700,000 of the $1 million settlement

with the Pinelands Preservation Alliance. DEP further noted that

the Pinelands Commission had agreed to accept approximately

$153,000 as recompense for amending the 2006 MOA to allow the

proposed solar use, and had not found the project would have any

irreparable impact on the habitat for T&E species. Thus, DEP

concluded that the diversion would not have any irreparable impact

on habitats for T&E plants or animals, and there was no need for

additional mitigation or compensation to offset the diversion's

anticipated environmental impacts.

As to other alternatives, DEP first noted that the solar

energy generated from the project was not proposed in the abstract;

it would be used by end users within the Business Park. DEP then

concurred with Stafford's findings that: (1) a "no action"

13 A-2316-10T2 alternative was not reasonable or feasible, since it would thwart

Stafford's goal of maximizing the production of renewable energy

to serve the Business Park; and (2) other alternatives were not

reasonable or feasible because Walters had already maximized

rooftop space for solar installation, and because the only other

available land for solar installation was part of the Garden State

Parkway or restricted by the Pinelands Commission.

Thus, based on the project's minimal environmental impact,

the proposed generated lease revenue, the extensive mitigation

compensation already associated with the redevelopment project,

and the State's efforts to promote the use of capped landfills for

solar energy generation, DEP concluded there were no feasible

alternatives to building the project and locating it on the

Landfill. DEP explained that even though the 2006 MOA never

mentioned solar uses, if discussions about these uses had occurred

when the parties discussed entering into the 2006 MOA, both the

2006 MOA and the conservation restriction would most likely have

allowed these uses to occur without any additional compensation

to either Stafford or the Pinelands Commission. Lastly, DEP noted

that the lease renewals, use of wind turbines, and methane gas

production were not part of its approval, and those proposals had

to be resubmitted to DEP and the SHC for future review and

approvals, as appropriate.

14 A-2316-10T2 DEP provided a list of public benefits associated with the

overall redevelopment project, including the closure of both

landfills without using public funds, and the required

environmental mitigation measures and conditions. DEP also

provided its responses to the public comments. First, DEP rejected

comments that the solar project did not meet the thresholds of

N.J.A.C. 7:36-26.1(d)(1), which states an applicant must show that

the proposed diversion is for a project that either will: (1)

"[f]ulfill a compelling public need . . . by mitigating a hazard

to the public health, safety or welfare;" or (2) "[y]ield a

significant public benefit . . . by improving the delivery by the

local government unit or nonprofit, or by an agent thereof, of

essential services to the public or to a segment of the public

having a special need[.]" DEP declared:

As a matter of longstanding agency interpretation, [DEP] has generally considered utility projects such as the proposed diversion to fall into the "public benefit" category. Although most electric and gas projects are not constructed by a local government unit or nonprofit, the provision of energy is an essential service, and both public and private utility companies provide a commodity that local governments would otherwise be required to provide (such as many municipalities still do for water and sewer services.) Therefore, the fact that the project is sponsored by a private, for-profit enterprise has not in the past disqualified consideration of a diversion application.

15 A-2316-10T2 Second, DEP rejected comments that the solar project did not

meet the threshold of N.J.A.C. 7:36-26.1(d)(2), which states that

an applicant must show "that there is no feasible, reasonable and

available alternative" to the diversion. After reviewing

Stafford's alternatives analysis, DEP concurred that it would not

be feasible to locate another site for this project outside the

redevelopment area given the strict regulation of the surrounding

area under the Pinelands CMP.

Finally, DEP rejected comments that Stafford should have

proposed replacement land for the diversion at a four-to-one

replacement ratio. Compensation standards for this project

involving a lease are found in N.J.A.C. 7:36-26.10(c)(2), which

states only that DEP will assess "whether the compensation that

the applicant proposes to receive for the lease or use agreement

is fair and appropriate[,]" and "shall require that any payments,

rentals or other consideration received by the applicant from the

lease or agreement be used by the applicant for its operating,

maintenance or capital expenses related to its funded parkland or

to its recreation program as a whole[.]" No land compensation is

required in that standard. DEP declared:

Under N.J.A.C. 7:36-26.10(d)7, []DEP does have the ability to require additional compensation to address natural resource impacts or mitigate other adverse impacts associated with a proposed diversion or disposal. However,

16 A-2316-10T2 unlike the recent Tennessee Gas Pipeline transaction, in which the State requested replacement land for the subsurface installation of a natural gas pipeline that required blasting and trenching, this project involves the minimally obtrusive installation of solar panels on the surface of a capped landfill. At the end of the lease, it is not unreasonable to assume that the panels can be removed and the site restored to its pre-lease condition. Therefore, the []DEP has not required replacement land for this application.

As required by N.J.A.C. 7:36-26.10(c)2ii, [Stafford] will use the lease proceeds for its operating, maintenance or capital expenses related to its funded parkland or to its recreation program as a whole.

On November 12, 2010, the Pinelands Commission, Ocean County,

and Stafford agreed to amend the 2006 MOA to incorporate renewable

energy facilities and allow Stafford's execution of a Restated and

Amended Declaration of Covenants and Restrictions (the 2010

amended MOA). The 2010 amended MOA altered, among other

provisions, Section VI(A)(15) of the 2006 MOA to include the

parties' agreement that renewable energy facilities on the

Landfill were permitted, except on storm water basins, on wetlands

and buffers, and on approximately twenty acres that the County

already had leased for composting facilities.

The 2010 amended MOA also provided that

[i]n order to ensure that there continues to be adequate measures provided to afford, at a minimum, an equivalent level of protection of

17 A-2316-10T2 the resources of the Pinelands, despite the [p]arties agreeing to permit the development of [r]enewable [e]nergy [f]acilities on the lot comprising the . . . Landfill . . . [Stafford] has obligated [Walters] to make a monetary contribution to the [Pinelands] Commission in the amount of $152,900. This contribution shall be utilized by the [Pinelands] Commission to undertake an assessment of the existing landfills located in the Pinelands [a]rea that have not, as yet, been closed[.]

On November 19, 2010, appellants notified the SHC of their

objection to the proposed diversion. Appellants acknowledged

that solar energy generation is a good thing, but mainly complained

about the lack of replacement parkland to compensate for the

diverted land.

At its November 22, 2010 meeting, the SHC heard public

comments on the proposed renewable energy project. Stafford's

administrator stated that Stafford had no replacement land

available to compensate for the diversion. A representative from

DEP said that no replacement land was required for diversions

involving leases when the surface use can be removed at the end

of the term and the site remains parkland. At the end of the

meeting, the SHC unanimously voted to approve Stafford's diversion

application.

On December 20, 2010, DEP issued a certificate granting

partial release of the conservation restriction. DEP acknowledged

18 A-2316-10T2 its statutory duty to consider the public interest in preserving

land in its natural state along with any comprehensive land use

or development plan affecting the property. DEP noted that the

property was not used for recreation of any kind and was restricted

from general public access due to security concerns associated

with the landfill cap, but was required by the 2006 MOA to be

planted with grasses and allowed to revert to a natural state and

remain undeveloped. DEP further stated that the construction

activities associated with the project consisted primarily of the

installation of concrete footings on the Landfill surface and

attachment of freestanding solar panels to the concrete footings.

DEP also found that although the project required the use of

surface areas, the remainder of the property would remain

undeveloped. DEP then limited the term of the partial release to

thirty years. Thus, for the same reasons DEP approved Stafford's

diversion application, it determined it was in the public interest

to issue a certificate approving a partial release of the

conservation restriction to allow the solar project.

On January 11, 2011, Stafford recorded the DEP's certificate

and a Restated and Amended Declaration of Covenants and

Restrictions. On January 24, 2011, Stafford and Walters signed

the lease agreement. Article VIII, Sections 8.4 to 8.6, covered

compensation offsets. Section 8.4 stated that even though Stafford

19 A-2316-10T2 and Walters contended that no offset (by way of the purchase and

restriction of land, the payment of money or other consideration)

was due, Walters agreed to satisfy any offset that DEP imposed on

Stafford. Section 8.5 stated that Walters agreed to pay a separate

offset of $152,900 required by the Pinelands Commission. Section

8.6 stated that Walters agreed to pay, on Stafford's behalf, any

other offset required by government agency or ordered by court.

In all three sections, Walters reserved the right to challenge the

offset in appropriate legal proceedings or cancel the lease.

Initial Notice of Appeal

Appellants appealed from the November 7, 2010 approval of

Stafford's diversion application, and the December 20, 2010

certificate granting partial release of the conservation

restriction. While the appeal was pending, appellants moved to

supplement the record with the certification of Emile DeVito of

the New Jersey Conservation Foundation, who certified that he had

walked on the Landfill in May 2012, and saw new T&E bird species.

In an email that same month, Dave Jenkins, Chief of DEP's Division

of Fish & Wildlife, Endangered and Nongame Species Program

(Division), said the Division would try to verify sightings of the

Northern Pine Snake on the Landfill. Jenkins admitted that the

Pinelands Commission had not consulted the Division before it

signed the 2010 amended MOA, which allowed the solar project, and

20 A-2316-10T2 DEP had not consulted the Division before approving the diversion

We remanded for DEP and the SHC to reconsider the appropriate

replacement land for the changed use and the project's effect on

T&E species and habitats.

Proceedings on Remand

By November 2012, Walters had constructed twelve percent of

the solar project, occupying approximately 4.4 acres of the

leasehold site. That month, DEP found that a portion of its

decisions, specifically allowing Stafford to retain lease

proceeds, was inconsistent with N.J.S.A. 13:8C-32(b)(1), which

requires a municipality: (1) to replace diverted parkland with

lands of equal or greater market value and of reasonably equivalent

size, quality, location, and usefulness for recreation and

conservation purposes; or (2) to pay an amount equal to or greater

than the fair market value of that diverted land into the Garden

State Preservation Trust for land acquisition. Thus, DEP

determined that Stafford had to amend its diversion application

and seek a new certificate granting the partial release of the

conservation restriction.

On November 22, 2012, DEP executed a remand order that

established a compliance schedule for Stafford to amend its

diversion application. The order also directed Stafford to submit:

21 A-2316-10T2 (1) a revised compensation proposal, reflecting substitution of

proposed replacement land for lease payments; (2) information

about the proposed replacement land; and (3) a report analyzing

the merits of appellants' claim concerning irreversible impacts

to T&E species. On December 16, 2013, the SHC approved DEP's

remand order.

On December 11, 2013, Stafford submitted an amended diversion

application to DEP and the SHC, and asked for approval of a smaller

partial release of the conservation restriction. Stafford

proposed reducing the size of the solar project from 46.8 acres

to 33.86 acres. Stafford also proposed compensating for the

diversion with replacement land on a one-to-one acre ratio that

would be deed restricted for use as parkland. Specifically,

Stafford offered two non-contiguous unencumbered parcels located

near a national wildlife refuge, totaling approximately 40.85

acres of undeveloped wooded land containing wetlands and

accessible only via a local trail system. Stafford claimed that

the replacement land was unlike the Landfill site, where public

access was inaccessible due to security concerns about the cap.

Stafford's expert, Richard E. Hall, appraised the market

value of the diverted land at $27,000, and the market value of the

replacement land at $114,500. Thus, Stafford asserted that its

proposed replacement land was approximately 1.2 times the size of

22 A-2316-10T2 the proposed diversion and 4.7 times the appraised market value.

A DEP Appraisal Section supervisor subsequently determined, after

reviewing Hall's appraisal, that the replacement land Stafford

proposed satisfied the lot size and dollar value requirements

representing an equitable exchange.

Stafford also revised the lease with Walters to make rent

payments a percentage of the cash flow earned from any portion of

the solar project, and provide that Walters make a one-time rental

payment of $114,377 (the appraised value of the replacement land).

As the remand order required, Stafford also submitted a revised

ecological assessment report Zappalorti prepared in November 2013,

which analyzed the merits of appellants' claims concerning impacts

to T&E species. Zappalorti conducted a new habitat inspection and

evaluation of the Landfill site, and concluded that installation

of all of the proposed 1026 solar collection panels would not have

an irreversible adverse impact upon habitats that are critical to

the survival of the local population of any rare plant or wildlife

species on the Business Park. He stated there would be no

excavation into the soil on the Landfill surface for any reason

whatsoever, as digging could possibly rupture the capped lining.

Zappalorti also concluded that the inadvertently-created

grasslands would only be partially disturbed by the installation

of solar panels, and there would be minimal need to access the

23 A-2316-10T2 panels or disturb the grassy habitat. He noted that rare birds

were breeding on the Landfill because Walters had agreed, at

appellants' request, to plant more expensive and diverse grasses

than Ocean County's soil conservation district specialists had

required. Zappalorti stated that if the Landfill was not mowed

within three to five years, it would no longer be suitable for

grassland birds.

As for the Northern Pine Snake, Zappalorti found that the

Landfill site was only suitable for foraging, and noted that two

individual snakes had been confirmed foraging there. The site,

however, was not suitable for winter denning due to the limited

depth of the cap liner, or for nesting due to dense grass and

other vegetation.

On February 10, 2014, Stafford held a public hearing and

accepted written comments on the amended project. Appellants

submitted oral and written objections. They also submitted a

February 18, 2014 report from Joseph Zurovchak, Ph.D., an ecologist

specializing in ornithology, who opined that installation of a

solar array on the Landfill site would negatively impact local

populations of grassland birds and render the existing habitat

unsuitable.

On August 25, 2014, Stafford submitted a revised alternatives

analysis to DEP. Stafford analyzed a "no action" alternative

24 A-2316-10T2 along with placing the project at other locations in and adjacent

to the Business Park and farther. Based on that analysis, Stafford

concluded there were no feasible, reasonable, or available

alternatives for meeting the essential purpose of the proposed

solar project. Stafford determined that the Landfill site was

still the most logical and only appropriate and reasonable location

for the planned renewable energy facilities. Stafford further

noted that, as a State regulatory matter, solar facilities had to

be on-site or adjacent to their end users in order to qualify for

financial incentives making them economically feasible. The cost

to extend off-site renewable energy infrastructure to the Business

Park would be prohibitive. Stafford also submitted a summary of

the submitted public comments and Stafford's responses.

Approval of the Amended Diversion Application and Issuance of the Amended Certificate Granting Partial Release of Conservation Restrictions

On October 1, 2014, DEP approved Stafford's amended diversion

application and referred the matter to the SHC. In an accompanying

memorandum, Judeth Piccinini Yeany, Chief of DEP's Bureau of Legal

Services and Stewardship, Green Acres Program, detailed DEP's

reasons for recommending approval of the amended diversion

First, DEP found that the two wooded parcels Stafford offered

as replacement lands were reasonably equivalent as appropriate

25 A-2316-10T2 replacements for a partial diversion of the Landfill's grasslands.

DEP determined that those parcels were in a location that would

be accessible to the public, in close proximity to other preserved

lands, and in an area already serving as habitat for T&E species.

DEP acknowledged that the replacement lands did not provide the

exact grassland characteristics that the proposed diversion area

was alleged to possess, but concluded the proposed replacement

lands were ecologically significant in their own right. DEP

believed the replacement lands provided breeding and foraging

habitat for various birds and the Northern Pine Snake.

DEP further explained that its use of a one-to-one land

replacement ratio based on value and size was

consistent with the statutory standard at N.J.S.A. 13:8C-32(b)(1) (which does not specify a replacement ratio greater than 1:1), the policy objectives of N.J.A.C. 7:36- 26.10(c)(2)(ii) (which were intended to take into account the fact that leases of parkland do not involve permanent conveyances of property interests), and the fact that the parkland interest at issue in this application is a partial interest (conservation restriction) and not a full fee interest.

Second, based on its review of Zappalorti's November 2013

report on T&E species, the information appellants provided, and

its own site visit, DEP concluded that impact to T&E species was

not a reason to deny Stafford's amended diversion application.

DEP noted that the following factors weighed against any denial:

26 A-2316-10T2 (1) Walters had based the original project siting and investment

decisions on the requirements in the 2006 MOA and 2010 amended MOA

to protect the four known T&E species at the site; (2) Walters and

Stafford had reduced the proposed diversion area; (3) Walters

originally had agreed, at appellants' request, to plant more

expensive and diverse grasses on the Landfill than were present

and would otherwise have been required; (4) Stafford and Walters

had a continuing obligation under the 2010 amended MOA to contact

the Pinelands Commission and DEP if they encountered any new T&E

species; and (5) the solar project would benefit the public.

Although appellants allegedly had sighted T&E birds, DEP found no

evidence that these bird species were observed during Walters'

initial construction phase of the solar project.

Further, DEP noted that, as part of the redevelopment project,

Stafford, Walters, and Ocean County already had offset impacts to

T&E species and their habitats by: (1) deed restricting

approximately 1017 acres of land, despite only 645 being required

by the Redevelopment Project agreement; (2) Walters paying

approximately $836,000 to the New Jersey Natural Lands Trust for

land preservation; and (3) Walters paying $153,000 to the Pinelands

Commission, on behalf of Stafford, to fund a study of existing

unclosed landfills within the Pinelands Area in order to determine

the continuing environmental impacts associated with them and the

27 A-2316-10T2 appropriate means of closure to ameliorate those impacts. Thus,

balancing the equities of the amended diversion application and

exercising its discretion, DEP decided not to deny Stafford's

application on the basis of T&E impacts.

Prior to the SHC's meeting on October 23, 2014, Stafford and

Walters signed a first addendum to the lease incorporating their

revised changes. At the meeting, Yeany explained why DEP had

rejected the public's demand for a four-to-one compensation ratio

of diverted land to replacement land required for a private

diversion. She declared that the solar project involved a lease,

not a permanent fee taking, and was part of a hybrid public-private

partnership involving a larger redevelopment project. She stated:

"This category of projects really then fell through the cracks and

really wasn't covered by our rules [on replacement land

compensation for a major diversion]." She concluded that the

solar project only required a one-to-one ratio for replacement

land, pursuant to the requirements in N.J.S.A. 13:8C-32(b)(1).

Yeany also explained that the Green Acres Program would not

supersede the Pinelands Commission's approval of the solar

project. The Pinelands Commission had its own endangered species

office, and had provided for mitigation of impacts on T&E species

in the 2006 MOA and 2010 amended MOA. On October 23, 2014, SHC

approved Stafford's amended diversion application.

28 A-2316-10T2 On December 1, 2015, DEP issued an amended certificate

granting a partial release of the conservation restrictions. DEP

incorporated the analysis and findings set forth in the original

November 7, 2010 diversion approval, and again acknowledged its

statutory duty to consider the public interest in preserving land

in its natural state along with any comprehensive land use or

development plan affecting the property. DEP also noted that

Stafford had amended the project by reducing the diversion area

to approximately thirty-four acres, offered approximately forty

acres of replacement land for the diverted area, and accepted

revised financial terms for the underlying lease. DEP also noted

that the Pinelands Commission had approved the 2010 amended MOA,

in exchange for additional mitigation measures, and that the SHC

had approved Stafford's amended diversion application.

DEP again noted that the Landfill site was not used for

recreation of any kind, and was restricted from general public

access due to security concerns associated with the cap, but was

required by the 2006 MOA to be planted with grasses, allowed to

revert to a natural state and remain undeveloped. DEP stated that

the construction activities associated with the solar project

consisted primarily of the installation of concrete footings on

the former landfill surface and the attachment of freestanding

solar panels to the concrete footings. DEP also found that

29 A-2316-10T2 although the project required the use of surface areas, the

remainder of the property would remain undeveloped. Thus, for the

same reasons DEP had approved Stafford's original and then amended

diversion applications, DEP determined it was in the public

interest to issue an amended certificate approving a partial

release of the conservation restrictions to allow the solar

project.

II.

Appellants contend that DEP's decision to partially release

the conservation restriction was not in accordance with the law

because DEP failed to consider the public's interest and the

decision conflicts with the requirements of the Pinelands CMP.

Our role in reviewing an administrative agency's decision is

limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot.,

101 N.J. 95, 103 (1985). We will not reverse the agency's decision

unless: (1) it was arbitrary, capricious, or unreasonable; (2) it

violated express or implied legislative policies; (3) it offended

the State or Federal Constitution; or (4) the findings on which

it was 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 an administrative agency's decision, we will

grant considerable deference to the agency's expertise, where such

30 A-2316-10T2 expertise is a relevant factor." In re Petition of S. Jersey Gas

Co., 447 N.J. Super. 459, 480 (App. Div. 2016). We "may not

second-guess those judgments of an administrative agency which

fall squarely within the agency's expertise." In re Stream

Encroachment Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587,

597 (App. Div. 2008).

"Ordinarily, DEP is given great deference when it applies its

considerable expertise and experience to the difficult balance

between development and conservation." Ibid. (citations omitted).

"However, '[w]hile we must defer to the agency's expertise, we

need not surrender to it.'" Pinelands Pres. All. v. State, Dep't

of Envtl. Prot., 436 N.J. Super. 510, 524 (App. Div.) (citation

omitted), certif. denied, 220 N.J. 40 (2014). "The party who

challenges DEP's decision to permit development of a certain

location has the burden of demonstrating, not that the agencies'

action was merely erroneous, but that it was arbitrary." Stream

Encroachment Permit, supra, 402 N.J. Super. at 597 (citations

omitted).

Furthermore, although we "must give deference to the agency's

findings of facts, and some deference to its 'interpretation of

statutes and regulations within its implementing and enforcing

responsibility,' we are 'in no way bound by the agency's

interpretation of a statute or its determination of a strictly

31 A-2316-10T2 legal issue.'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J.

534, 551 (2008) (citations omitted). Applying the above standards,

we discern no reason to disturb DEP's and the SHC's decisions.

The Public Interest

Appellants argue that DEP violated N.J.S.A. 13:8B-5 and -6

by failing to adequately consider the public's interest in

preserving the Landfill in its natural state in perpetuity, which

was one of the conditions imposed in the conservation restriction.

Appellants aver that DEP never discussed the public's interest in

preserving the Landfill as open space for the local plants and

wildlife, and it was not enough to find that the Landfill would

be a convenient location for the solar project.

The Preservation Act generally "authorizes the assignment of

conservation restrictions . . . to insure that the land governed

by the restrictions will be maintained in its natural integrity."

Vill. of Ridgewood v. Bolger Found., 104 N.J. 337, 343 (1986).

The Preservation Act provides the only statutory mechanism for a

conservation restriction to be released, removed, or altered:

A conservation restriction . . . may be released in whole or in part, by the holder thereof, for such consideration, if any, as the holder may determine, in the same manner as the holder may dispose of other interests in land, subject to such conditions as may have been imposed at the time of creation of the restriction . . . .

32 A-2316-10T2 [N.J.S.A. 13:8B-5.]

The statute does not bar the holder of a conservation restriction

from ever releasing it.

In addition, N.J.S.A. 13:8B-6 provides as follows:

The provisions of [N.J.S.A. 13:8B-5] notwithstanding, no conservation restriction acquired pursuant to this act shall be released without the approval of the Commissioner of [DEP]. Approval of releases shall be evidenced by certificates of the Commissioner of [DEP] and shall be recorded in the same manner as the restriction itself. In determining whether the release should be approved, the Commissioner of [DEP] shall take into consideration the public interest in preserving these lands in their natural state, and any State, regional or local program in furtherance thereof, as well as any State, regional or local comprehensive land use or development plan affecting such property.

It is clear from the plain language in the statute that the

Legislature intended to establish a process for allowing recorded

conservation restrictions, even those to be held in perpetuity,

to be released or modified after their creation. Thus, DEP did

not violate the Preservation Act by partially releasing the

conservation restriction, even though the restriction was created

with the intention of preserving the Landfill in its natural state

in perpetuity.

In evaluating and determining whether to approve a diversion

application, as part of its analysis, DEP must weigh the competing

33 A-2316-10T2 public interests presented by the proposed diversion against

preservation of the parkland in its natural state. See N.J.S.A.

13:8B-6; N.J.A.C. 7:36-26.1(d)(1).

Here, DEP considered the public's interests in preserving the

Landfill as open space when it balanced the public benefits and

needs for a solar project to power the Business Park's facilities

against the fact that most of the leased area would remain in its

natural state. DEP explained how the solar project would yield

significant public benefit in the form of renewable energy for a

public redevelopment project. The solar project will generate

approximately 6.5 megawatts of new solar energy on the now-capped

surface of the Landfill, increasing renewable energy to a mixed

use brownfield redevelopment site that includes residential and

retail development, as well as public administration buildings.

As DEP explained in its approval of Stafford's original diversion

application, approximately 70% of the energy needs for the entire

redevelopment project can be provided through renewable energy if

the proposed diversion and the future wind phase were approved.

We are satisfied that DEP amply considered the public's interest

in granting the partial release of the conservation restriction.

The DEP acted well within its authority and appropriately applied

its expertise in determining that the solar project yields a

34 A-2316-10T2 significant public benefit through provision of essential

services.

The Pinelands CMP

Appellants argue that DEP violated N.J.S.A. 13:8B-6 by

failing to properly consider the expected effect on the

comprehensive land use protections of the Pinelands CMP and the

T&E plant and animal species disrupted by development of the

Business Park. Appellants also argue that DEP's approval and

amended certificate partially releasing the conservation

restrictions were based on the Pinelands Commission's illegal

decision to accept $153,000 from Walters, as required by the 2010

amended MOA, without requiring mitigation involving replacement

property in return, as mandated by N.J.A.C. 7:50-4.52(c)(2).

Appellants posit that Walters' monetary payments to the Pinelands

Commission did not satisfy the Pinelands CMP's minimum standards,

as it did nothing to address the habitat loss from the

redevelopment plan, which had justified the conservation

restriction in the first place. Appellants also aver that on

remand, DEP erred by not revisiting its choice to rely on the 2010

amended MOA and the Pinelands Commission's finding that the solar

project would not irreparably harm the Pinelands and T&E species.

N.J.A.C. 7:50-4.52(c)(2) authorizes the Pinelands Commission

to enter into an intergovernmental memoranda of agreement provided

35 A-2316-10T2 that any variation from the minimum Pinelands CMP standards "is

accompanied by measures that will, at a minimum, afford an

equivalent level of protection of the resources of the Pinelands

than would be provided through strict application of the [Pinelands

CMP] standards[.]" There are no measures specified in the

regulation.

Here, DEP's choice to rely on the Pinelands Commission's

decisions and the resulting 2006 MOA and 2010 amended MOA allowing

renewable energy development projects on the Landfill was not

arbitrary, capricious, or unreasonable. No one challenged the

validity of the Pinelands Commission's decisions or the two MOAs,

and the time to appeal them has long passed.

In any event, neither the GSPTA nor DEP's regulations preclude

DEP from approving a diversion due to the presence of, or potential

impact on, T&E habitat. DEP's regulations authorize, but do not

require, the denial of a diversion application due to T&E species

concerns. See N.J.A.C. 7:36-26.1(e). In the initial application,

DEP appropriately relied on the Pineland Commission's findings

about the solar project and ultimate agreement to amend the 2006

MOA. DEP's reliance was appropriate because the Pinelands

Commission is charged with ensuring that the minimum standards,

goals, and objectives of the Pinelands CMP are implemented and

enforced, and because DEP and the Pinelands Commission have

36 A-2316-10T2 concurrent authority with respect to T&E species protection within

the Pinelands. See N.J.S.A. 13:18A-4; In re N.J. Pinelands Comm'n

Resolution PC 4-00-89, 356 N.J. Super. 363, 377 (App. Div.),

certif. denied, 176 N.J. 281 (2003).

The record shows that before DEP's initial decision to approve

Stafford's diversion application, the Pinelands Commission

reviewed the proposed solar project with regard to its conformance

with the requirements of the Pinelands CMP. The Pinelands

Commission concluded that the solar project was consistent with

the Pinelands CMP and agreed to amend the 2006 MOA to allow the

project to proceed. DEP appropriately considered the Pinelands

Commission's analysis and similarly concluded that the solar

project would not have any irreparable impact on T&E species. The

DEP's decision to partially release the conservation restriction

complied with the law, is supported by ample credible evidence in

the record, and is not arbitrary, capricious, or unreasonable.

III.

Appellants argue that DEP's diversion decision subverts the

requirements of the Green Acres Act and the GSPTA because DEP

failed to prevent the net loss of parkland, as required by N.J.S.A.

13:8C-32(b) (GSPTA), and N.J.A.C. 7:36-26.10(b) (Green Acres).

Appellants also argue that DEP subverted the requirements of

N.J.A.C. 7:36-26.1 and N.J.A.C. 7:36-26.10 and the GSPTA by failing

37 A-2316-10T2 to require replacement lands on a four-to-one ratio, and require

reasonably equivalent replacement property. Appellants further

argue that DEP's finding of "ecologically significant" as it

related to the two parcels Stafford proposed as replacement land

does not satisfy N.J.A.C. 7:36-26.10(d).3

Replacement Land Ratio

Appellants argue that N.J.S.A. 13:8C-32(b)(1) applies to

property that will be "convey[ed]" to a use for other than

conservation purposes, and the term "convey" is defined in N.J.A.C.

7:36-2.1 to mean "sell, donate, exchange, transfer, or lease for

a term of [twenty-five] years or more." Because the

Stafford/Walters lease term was thirty years, appellants posit

that the four-to-one ratio applicable to a major diversion

involving a fee simple conveyance of parkland in Table 1 of

N.J.A.C. 7:36-26.10(g) also applies to Stafford's lease. In other

words, they argue that a thirty-year lease is not a temporary

conveyance, but a major diversion. Appellants further claim that

3 We decline to address appellants' additional argument relating to Stafford's use of Walters' lease payments based on a purported October 14, 2014 memorandum of understanding between Stafford and Walters. The document is not listed in the statement of items comprising the record on appeal, and there is no indication that DEP or the SHC considered it. R. 2:5-4; see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (holding that we will not consider documents included in the appendix that were not presented below).

38 A-2316-10T2 Stafford's solar project is a private commercial endeavor that is

paid for, constructed by, and therefore sponsored by, Walters.

Accordingly, they conclude that even if the lease was considered

only as a surface easement over parkland, a four-to-one ratio of

replacement land would be required.

Both the Green Acres Act, N.J.S.A. 13:8A-47(b)(1), and the

GSPTA, N.J.S.A. 13:8C-32(b)(1), provide that property held for

recreation and conservation purposes cannot be diverted to another

use without DEP's and the SHC's approval. The Green Acres Act,

N.J.S.A. 13:8A-47, does not require any replacement lands to offset

diverted parkland. However, the GSPTA provides as follows:

Approval of the commissioner and the [SHC] shall not be given unless the local government unit agrees to (a) 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 (b) 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) (emphasis added).]

Thus, N.J.S.A. 13:8C-32(b)(1) establishes a minimum one-to-one

ratio for replacement lands.

The Green Acres regulations set forth the standards and

procedures for DEP's and the SHC's approval of the disposal or

39 A-2316-10T2 diversion of funded or unfunded parkland. N.J.A.C. 7:36-

26.1(d)(3) states that an "applicant shall compensate for the

disposal or diversion of funded or unfunded parkland with eligible

replacement land . . . in accordance with . . . N.J.A.C. 7:36-

26.10[.]"

N.J.A.C. 7:36-26.10(g) contains a table showing the minimum

ratio of replacement land for diversions (Table 1). Table 1

establishes different replacement ratios for different types of

major diversions, i.e., easements versus full fee interests, and

for different types of project sponsors, i.e., public project

sponsors versus private project sponsors. For example, diversions

involving public project sponsors require a two-to-one ratio of

replacement land, whereas diversions involving private project

sponsors require a four-to-one ratio. When the diversion involves

only a surface easement over parkland, public project sponsors

require a one-to-one ratio, whereas private project sponsors

require a four-to-one ratio. The term "sponsor" is not defined.

However,

the term "public" used in reference to a diversion or disposal denotes that the project for which the diversion or disposal is proposed is constructed by or sponsored by a public entity; and the term "private" used in reference to a diversion or disposal denotes that the project for which the diversion or disposal is proposed is not constructed by or sponsored by a public entity. The

40 A-2316-10T2 classification of a diversion or disposal as public or private shall be determined by Green Acres based on the pre-application information provided by the applicant.

[N.J.A.C. 7:36-26.10(h).]

Because the solar project was in the form of a lease, the

amount of replacement land was not subject to any minimum acreage

requirements in Table 1. Thus, only the GSPTA's statutory

requirement in N.J.S.A. 13:8C-32(b)(1), that replacement lands

should be of equal value and of reasonably equivalent size to the

diverted land, applied to the solar project. Further, N.J.A.C.

7:36-26.10(c)(2)(ii), which covers leases of encumbered parkland,

does not require any amount of replacement land as compensation

for these temporary conveyances.

Accordingly, the DEP's decision to require a one-to-one ratio

was consistent with N.J.S.A. 13:8C-32(b)(1); the policy objectives

of N.J.A.C. 7:36-26.10(c)(2)(ii); and the fact that the parkland

interest at issue in the Stafford/Walters lease would be a

temporary, partial leasehold, and not a full fee interest. The

lease arose from the larger redevelopment project, making the

parties' relationship "a hybrid" of public and private sponsors.

Further, Table 1 does not set any ratio for temporary

easements over parkland diverted to a solar project from a

conservation restriction, and N.J.A.C. 7:36-26.10 is silent on

41 A-2316-10T2 using replacement land for "a diversion of parkland that entails

a lease or use agreement[.]" Thus, we rely on N.J.S.A. 13:8C-

32(b)(1), which allows replacement lands "of reasonably equivalent

size" to offset a diversion. The statute does not require a

replacement ratio greater that one-to-one.

Reasonably Equivalent Replacement Property

Appellants argue that DEP's finding of "ecologically

significant" as it related to the two parcels Stafford proposed

as replacement land does not satisfy N.J.A.C. 7:36-26.10(d).

Appellants posit that the replacement and diverted lands have

fundamentally different habitat types and cannot compensate for

the loss of habitat and species from the proposed major diversion.

N.J.S.A. 13:8C-32(b)(1) provides that replacement lands shall

be "lands of equal or greater fair market value and of reasonably

equivalent size, quality, location, and usefulness for . . .

conservation purposes[.]" N.J.A.C. 7:36-26.10(d) provides as

follows, in pertinent part:

Replacement land proposed by the applicant as compensation for a major disposal or diversion of parkland shall meet the following requirements:

5. For applications proposing replacement land as the only form of compensation, the proposed replacement land shall have a market value that is

42 A-2316-10T2 equal to or greater than the parkland proposed for disposal or diversion;

6. The proposed replacement land shall be of reasonably equivalent or superior quality to the parkland proposed for disposal or diversion, including, but not limited to, location, accessibility, usefulness for recreation purposes, and value for ecological, natural resource and conservation purposes. . . ;

7. If the proposed replacement land is inadequate to meet the criteria in (d)5 and 6 above, the Department shall require the applicant to supplement its proposal with additional compensation in excess of that which would otherwise be required under Table 1 at (g) below. Such additional compensation may consist of either additional replacement land or monetary compensation, or both, and the amount of such compensation must be sufficient to compensate in full for any shortfalls in the market value or quality of the proposed replacement land[.]

Even if Stafford's proposed replacement lands do not

precisely meet the standards in N.J.A.C. 7:36-26.10(d)(6) because

they are wooded and not grasslands, DEP found that the replacement

lands would provide breeding and foraging habitat for various T&E

birds and the Northern Pine Snake. Accordingly, DEP concluded,

correctly, that the proposed replacement lands were reasonably

equivalent to the lands proposed for diversion in terms of value

for ecological, natural resource, and conservation purposes. DEP

also found that those parcels were already serving as habitat for

43 A-2316-10T2 T&E species, and there was no evidence to support the claim that

those parcels would not support the additional T&E species

appellants found on the Landfill during the remand. Furthermore,

market value of the replacement lands was appraised approximately

4.7 times higher than the market value of the diverted land. Thus,

there is sufficient evidence that Stafford's replacement lands met

the requirements in N.J.A.C. 7:36-26.10(d)(7). Deferring to DEP's

expertise, we do not find its assessment arbitrary, capricious,

or unreasonable.

IV.

Appellants contend the DEP's failure to comply with its own

diversion rules renders its decision arbitrary, capricious, and

unreasonable because there was no evidence supporting its

conclusions on: (1) public benefits and needs for a solar energy

facility; (2) the lack of irreparable harm to T&E species on the

Landfill; and (3) no available feasible alternatives.

Public Benefits and Needs

Appellants argue there was no evidence supporting DEP's

conclusion that the solar project would fulfill a compelling public

need or yield a significant public benefit by improving Stafford's

delivery of essential services to the public or to any segment of

the public having a special need, as required by N.J.A.C. 7:36-

26.1. Appellants claim that Stafford provides no electricity to

44 A-2316-10T2 its residents and that its receipt of Walters' lease payments is

no indication that any of the essential services it already

provides will be improved. Appellants also aver there is no

evidence to support DEP's assertion that a solar panel facility

will reduce the carbon footprint of the Business Park.

N.J.A.C. 7:36-26.1 provides as follows:

(a) It is the Department's policy to strongly discourage the disposal or diversion of both funded and unfunded parkland. The use of parkland for other than recreation and conservation purposes should be a last resort, and should only be considered by a local government unit or nonprofit when the proposed disposal or diversion is necessary for a project that would satisfy a compelling public need or yield a significant public benefit as defined at (d)1 below.

(d) No application for the disposal or diversion of parkland under this subchapter shall be approved by the Commissioner and the State House Commission unless the applicant . . . meets the following minimum substantive criteria:

1. The . . . diversion of funded or unfunded parkland is for a project that will:

i. Fulfill a compelling public need, as demonstrated by the applicant . . . by mitigating a hazard to the public health, safety or welfare; [or]

ii. Yield a significant public benefit, as demonstrated by the applicant . . . by improving the delivery by the local government unit . . . or by an agent

45 A-2316-10T2 thereof, of essential services to the public or to a segment of the public having a special need[.]

[(Emphasis added).]

Even though "[i]t is [DEP's] policy to strongly discourage

the disposal or diversion of both funded and unfunded parkland[,]"

N.J.A.C. 7:36-26.1(a), neither the GSPTA nor the Green Acres Act

place an absolute ban on diverting land encumbered by a

conservation or Green Acres restriction to a use other than

recreation or conservation. Furthermore, nothing in those

statutory or regulatory schemes prohibits DEP or the SHC from

approving a diversion of encumbered parkland for solar energy

purposes. In fact, N.J.A.C. 7:50-5.36(a) of the Pinelands CMP

states that "[a] municipality may include in its master plan and

land use ordinance provisions . . . solar energy facilities as a

principal use in any Pinelands management area[.]"

The Legislature has defined "essential services" to mean the

adequate supply of "heat, water, hot water, electricity, gas, and

telephone service." See, e.g., N.J.S.A. 52:27D-224.2 (defining

essential services in the context of multiple dwellings and

requiring notification when essential services are disrupted).

Here, DEP concluded that the solar project would yield a

significant public benefit in the form of renewable energy for the

commercial, residential, and public buildings in its public

46 A-2316-10T2 redevelopment project, and solar energy was already being produced

at the Business Park. DEP's findings are entitled to considerable

deference given its expertise in environmental matters.

T&E Species

Appellants argue that DEP erred by only relying on

Zappalorti's reports and not consulting with DEP's Endangered and

Nongame Species Program before approving the diversion, and by not

obtaining a redetermination by the Pinelands Commission after

Stafford revised its diversion application. Appellants further

object to Yeany's weighing of the impact to T&E species, instead

of having the Green Acres Program directly apply the Pinelands

CMP's T&E regulatory standards to the changed circumstances on the

Landfill site, and the new T&E species living there.

Because we afford DEP's considerable expertise and experience

great deference when balancing development and conservation

determinations, we reject appellants' arguments. Furthermore, as

we have previously stated, the Pinelands Commission bears the

ultimate responsibility for enforcing the provisions of the

Pinelands Act and the CMP requirements. Petition of S. Jersey Gas

Co., supra, 447 N.J. Super. at 476. Because the Pinelands

Commission had approved the 2006 MOA to allow a larger project

proposing renewable energy facilities on the capped Landfill, it

47 A-2316-10T2 is doubtful the Pinelands Commission would not have approved a

project proposing the use of less acreage of the capped Landfill.

Lastly, the evidence amply supports a finding that new T&E

bird species had already arrived on the Landfill due to the

enhanced grasses Walters planted. Since Walters also had

constructed twelve percent of the solar project, occupying

approximately 4.4 acres of the Landfill, the evidence supports

DEP's conclusion that there would be no irreparable harm from the

solar project to the T&E species on the Landfill. Furthermore,

the evidence supports a finding that those species would leave

within three to five years if the grasslands were not maintained

and mowed, as would happen if the diversion for the solar project

was not approved.

Feasible Alternatives

Appellants argue that Stafford never reviewed making the

project even smaller, and never provided a description of the

methods it used to identify alternatives to the proposed diversion.

Appellants also reject Stafford's finding that no feasible areas

adjacent to or in proximity to the Landfill site were available

because they were either occupied by the Garden State Parkway or

were preserved areas of the Pinelands.

No application for a major diversion of parkland shall be

approved by DEP and the SHC unless

48 A-2316-10T2 the applicant has demonstrated to the Department's satisfaction, through the alternatives analysis required by N.J.A.C. 7:36-26.9(d)2, that there is no feasible, reasonable and available alternative to the disposal or diversion of funded or unfunded parkland. It shall be the Department's presumption that there is a feasible, reasonable and available alternative not involving parkland for the project for which an applicant seeks to divert or dispose of parkland. The applicant must rebut this presumption through the alternatives analysis in order to obtain the approval of the Commissioner and the [SHC] under this subchapter. If the applicant is not able to rebut this presumption, the Commissioner and the [SHC] may, in their discretion, approve an application for a major disposal or diversion of parkland based on the exceptional recreation and/or conservation benefit to be provided by the applicant[.]

[N.J.A.C. 7:36-26.1(d)(2).]

The alternatives analysis must identify each alternative course

of action that could be taken to yield the significant public

benefit to be derived from the project, including all alternatives

presented at the scoping hearing and submitted by the public, and

the alternative of locating the applicant's project on the proposed

replacement land. N.J.A.C. 7:36-26.9(d)(2).

Here, the purpose of the solar project was to provide

renewable energy to a public redevelopment project. For its

original and amended diversion applications, Stafford explained

49 A-2316-10T2 in detail how the alternatives to the proposed solar project were

not feasible, reasonable, or available.

For purposes of an alternatives analysis, "an alternative may

be considered not feasible" if it "would bring about unresolvable

logistical problems[.]" N.J.A.C. 7:36-26.9(e)(1). In addition,

an alternative may be considered "not reasonable" if it "[w]ould

result in the essential project purpose . . . not being met[.]"

N.J.A.C. 7:36-26.9(e)(2). The evidence supported DEP's finding

that taking no action would not yield the significant public

benefit of providing renewable energy to the Business Park, and

would not help to maximize the green building objectives of the

redevelopment plan. Further, constructing the solar project in

another area of the redevelopment area would be too limiting.

Rooftop spaces were already being used and areas farther away from

the site presented logistical problems including increased costs

and safety concerns. Finally, building a solar project beyond the

redevelopment area itself would be constrained by public utilities

laws and would result in inadequate production.

We conclude there was ample credible evidence in the record

as a whole supporting DEP's and the SHC's decisions, and the

decisions were not arbitrary, capricious, unreasonable, or

contrary to law.

Affirmed.

50 A-2316-10T2