The New Jersey Appellate Division affirmed, with modification, the approval of a Green Acres land swap in I/M/O Seaside Heights Borough Public Beach. Litwin & Provence LLC and Eastern Environmental Law Center represented the American Littoral Society and the New Jersey Conservation Foundation, who appealed the June 2016 New Jersey Department of Environmental Protection (NJDEP) and NJ State House Commission (SHC) Green Acres disposal approval. The approval allowed for the unprecedented transfer of 1.37 acres of municipally-owned beach to a private developer in exchange for a wooden carousel built in the 1890s, a smaller “boardwalk facing” land (but not beach front), and a 67-acre wetland parcel in Toms River. Following the swap, the private developer built a private amusement pier on the beachfront parcel. Monday’s decision modified the challenged approval, but ultimately affirmed the disposal of the public beach.
The Littoral Society and NJCF appealed the approval of the swap, which threatened to open the gates to more transfers of public beach to private owners in exchange for historic objects and rather than replacement parkland. Though the Appellate Division decision allows the swap to stand, the Court modified the conditions of the approval to make clear that parkland must be swapped for replacement parkland, not historic objects. The Court agreed with the argument by the Littoral Society and NJCF, ruling that the Green Acres law allows “the exchange of lands together with historic properties, not the exchange of land for historic properties independent of any replacement land”, and that the Green Acres regulations “contemplate that any major disposal must involve replacement land, not solely personal property….” By requiring the carousel to be placed upon the boardwalk-facing parcel, the Court modified the challenged approval to make it comport with the law.
The Court further agreed with the Littoral Society and NJCF that the agencies had failed to set forth findings on the adverse consequences of the conveyance, as required by the Green Acres regulations. The Appellate Division agreed with the Littoral Society and NJCF that the agencies were required to complete this analysis because “…under the plan language of the regulation, DEP and the SHC must consider whether a proposed disposal will ‘substantially’ result in any of the adverse consequences . . .” The Court stated that it would usually require a remand to correct this error. However, citing “unique circumstances”, the Court concluded that a remand was not warranted in this instance.
While 1.37 of public beach parkland has been lost, the Appellate Division opinion serves as important notice that Green Acres parkland cannot be traded into private ownership for historic objects.
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