Bulletin Board Magazine 2017 Volume 3

Legal/Legislative Continued

Two closed landfills in Stafford Township were made part of the Township’s redevelopment area under a plan approved pursuant to the Local Redevelopment and Housing Law. Pursuant to a 2006 MOA between The Pinelands Commission, Stafford and Ocean County, a conservation restriction was recorded for the Landfill site in December 2006 to maintain the capped landfill as undeveloped open space. Stafford also to acquired and preserved approximately 570 acres pursuant to the approved closure and redevelopment plans. Thereafter, the Township accepted Green Acres funding for other projects, effectively encumbering all open space areas within the Township identified on the Township’s Recreation and Open Space Inventory (“ROSI”) with Green Acres restrictions, including the former landfill. The redeveloper, Walters Development, remediated, closed/capped, and redeveloped the former landfill as a commercial retail shopping center, and satisfied all MOA conditions. It then sought to lease a portion of the former landfill for a renewable energy solar facility. Approvals were obtained from DEP to release a portion of the conservation restriction and from the State House Commission for a Green Acres diversion after Walters established through various assessments that the project would not negatively impact protected species including northern pine snake. Public hearings were held in connection with the approvals and in November 2010, the Pinelands Commission, County and Stafford amended the 2006 MOA to incorporate solar facilities and to allow for the recording of a revised Conservation Restriction allowing solar facilities. A Lease for the project was executed in January 2011.

NGO’s argued that the diversion and conservation restriction release approvals should not have been granted without replacement lands being provided as mitigation and on grounds that negative impacts to threatened and endangered species would occur. The court remanded to the DEP and State House Commission to consider these two issues. In response, the Township amended its diversion application reducing the project size by 13 acres and making concessions regarding the provision of replacement lands. Further species habitat assessments again confirming that negative impacts would not occur. The diversion and partial conservation restriction release were reapproved based on the amended application, resulting in a renewed challenge. The Court rejected the argument that the landfill was required to remain in its natural state under the conservation restriction without revision and held that a partial release the restriction was valid. The Historic Preservation Act, N.J.S.A. 13: 8B-1 allows for the release of preserved lands if certain procedures and conditions are met. The partial release did not violate the Act as DEP appropriately followed statutory requirements. It conducted a public hearing, considered the public’s interest in maintaining preserved lands as open space, and balanced those interests with the proposed release and project. The land would effectively remain as open space through the solar project. Moreover, the project would have a considerable public benefit, serving 70% of the energy needs of the entire redevelopment project.

The Court rejected the argument that the project and actions of DEP and the Pinelands Commission violated the Pinelands CMP. The Commission entered into two MOA’s for the project, neither of which was appealed. Further, diversion authority exists notwithstanding the potential for impacts to threatened or endangered species habitat and, here, potential impacts were appropriately assessed. The Court rejected the argument that Walters should have been required to provide enhanced compensation for the removal of restrictions as if the 33-year lease was a fee conveyance. The Act establishes a 1 to 1 ratio for replacement lands. Because the solar project was in the form of a lease under the diversion regulations, the amount of replacement land was not subject to any minimum acreage requirements and only the 1 to 1 ratio of the Act applied. The decision is important in its recognition that neither the Historic Preservation Act nor the Green Acres program places an absolute ban on converting restricted lands to some use other than other recreation or conservation purposes. Moreover, the restrictions did not preclude conversion of encumbered parkland for solar energy purposes. The decision may aid other redevelopers facing similar opposition.

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