Gary Brower, Esq.
Attn: DEP Docket Number 18-05-06/161
Office of Legal Affairs
Department of Environmental Protection
P.O. Box 402
Trenton, NJ 08625-0402

RE: Proposed Repeal and New Rules: N.J.A.C. 7:36

Dear Mr. Brower:

The Monmouth County Park System has reviewed the above-referenced proposed new rules published in the New Jersey Register on July 5, 2005.

The Park System, an agency of the County of Monmouth, operates 39 park and open space areas and has a dual mission of preserving and interpreting natural and cultural resources and providing public recreation. Our agency enjoys the distinction of being the nation's first accredited park and recreation agency, a reflection of the high standards of fiscal policy, program delivery, and facility and land management observed by the Monmouth County Board of Recreation Commissioners and its staff. Our agency has also been an avid supporter and beneficiary of the Green Acres Program since its inception, having received one of the first grants administered by the Program in 1962. We have received more than $49 million over the life of the Program. For this reason, we are very familiar with the Program and have a keen interest in the impact of the proposed new rules on our future grant applications, our capital improvement program, and our day-to-and operations, all of which directly affect our ability to deliver valuable services to residents and taxpayers. Our comments on the rule proposal are outlined below. A computer disk containing a copy of this letter is enclosed. Also enclosed are two resolutions related to the proposed rules adopted by the Monmouth County Board of Recreation Commissioners.

REQUEST FOR DELAY
The proposed repeal of all existing rules and adoption of new rules will have a profound impact on the recreation, park and open space programs of Monmouth County, its municipalities, and all other counties and municipalities in the State. Because the proposal exceeds 325 pages in length and was released during the busiest season for the park and recreation community, few agencies have had an adequate or reasonable opportunity to review the rules and prepare comments. We urge the State to extend the review period by 60 days, or until November 3, 2005 to provide for appropriate public review and comment.

MAJOR ISSUES OF CONCERN

1. Change in purpose or use provisions. It appears that the true effect of these provisions will far exceed the spirit and intent of the Garden State Preservation Trust Act. The Act (section 33) mandates that certain hearing and notification requirements be satisfied prior to a change of "recreation and conservation purpose for which the lands are being used to another recreation and conservation purpose, including but not limited to developing the lands for public outdoor recreation" on lands "that were neither acquired or developed for any purposes with any financial assistance from the state."
   
   The proposed rules extend this requirement to funded lands and define "change of recreation and conservation purpose or use of parkland" so broadly (N.J.A.C. 7:36-25.6(c)) that virtually any new development on any land is subject to the notification and hearing requirements attached to a change of use. The rule summary describes the objective of the "more stringent measures" as "to protect all Green Acres-encumbered parkland from being disposed or diverted to non-recreation or non-conservation purposes." It is understood that the protection of critical resources from inappropriate development is also an objective. While these are reasonable objectives, the likely unintended consequence of rule changes that make all park improvements more difficult is to discourage both local participation in the Green Acres Program and much needed local park enhancement projects.
   
   The Act includes as one of its purposes providing "greater opportunities for recreation," describes the provision of funding for the development of parks as "desirable," and defines "recreation and conservation purposes" as including "playgrounds and active sports." The program rules should encourage, not impede local government from providing additional developed park and recreation facilities to satisfy the recreation needs of their residents.
   
   
2. Hearing and notice requirements. The hearing and notice requirements attached to the change in purpose or use process (N.J.A.C. 7:36-25.6(a)) as proposed by the Department of Environmental Protection include 30 days advance notice by certified mail to all owners of property or holders of easements within 200 feet as well as multiple public agencies, posting of a sign on the site, and publication of both a display advertisement and a legal notice.
   
   The construction of something as simple as a paved trail or playground would require more stringent, and more expensive, notification than that imposed by the State Municipal Land Use Law on the private developer of a mega-mall, factory, or large housing development. Elected officials responsible for appropriating funds for public projects are eminently accountable to the taxpayers and residents of their communities; State imposition of additional public hearing and notice requirements for this purpose is unnecessary.
   
   
3. Retroactive application of new rules. The imposition of new more stringent rules on all properties listed on the Recreation and Open Space Inventory regardless of the date of their acquisition or the source of funding is unfair, if not illegal. Local governments that accepted Green Acres Program funding did so in good faith, with an understanding of the conditions of the program at that time. They and others who did not accept State assistance, responsibly listed properties on the Recreation and Open Space Inventory to ensure their permanent protection as open space, but with certain expectations regarding their ability to improve and enhance the property. Applying these new rules retroactively to all properties is unreasonable.
   
   
4. Public hearings prior to acquisition applications. The proposed rules mandate that a public hearing be held prior to the submission of an application for acquisition funding, including applications submitted under the Planning Incentive Program (N.J.A.C. 7:36-6.2). Previously the required hearing could be held after the application was deemed "technically eligible." In instances where a contract of sale is not in place, an earlier hearing could incite interest in the property by others and compromise negotiations.
   
   
5. Advance Notification and Audit System. While close State scrutiny of diversions is appropriate to protect the public interest and investment in dedicated parkland, State oversight of nearly all other actions on public parkland (leases, building construction, site development) is an inefficient allocation of State resources. The number and type of past program rule violations do not warrant the level of increased regulatory oversight proposed. A simple requirement of advance notification would give the State the opportunity to insure that these actions are for recreation and conservation purposes. An enhanced audit and inspection system would identify problem areas and permit staff to focus its limited resources on addressing those problems.
   
   
6. Diversions of Parkland. The diminishing supply of land in New Jersey and its increasing cost create growing pressure to use public parkland for non-recreation and conservation purposes. The more stringent rules related to diversions of parkland (N.J.A.C. 7:36-26) offer critical protection from this pressure while still enabling reasonable proposals that meet the "compelling public need" and "significant public benefit" thresholds to proceed. Creation of a simpler minor diversion category is responsive to the reality that some activities that constitute a diversion do have a clear public purpose and minimal parkland impact.

TECHNICAL COMMENTS
Acquisition of Structures 7:36-4.4(c)
The Department should be required to notify the local government unit of its approval or disapproval of the proposed demolition within 60 days of Green Acres' receipt of the request. Submissions involving multiple structures should be permitted.

Acquisition of Agricultural Lands 7:36-4.6
The language appears to give precedence to farmland plans over open space plans. If the property is included in an adopted open space plan and is integral to an acquisition project, it should not be necessary to demonstrate that the owner has not tried to sell a farmland easement to the State or County or that the owner has applied and the application not approved.

At-risk Authorization to Proceed with Acquisition 7:36-6.3(b)
In the past, Green Acres has frequently been unable to respond to requests for waivers in a timely fashion. What will be the consequence if Green Acres is unable to respond within 14 days to a request from a local government unit for an "at-risk authorization"?

Extension of project period 7:36-9.1(h)
The rules should provide for an automatic cancellation of a project agreement unless an extension is granted in advance of its expiration. Too often funds are unavailable for ripe projects, because they were committed long ago to projects that appear to have little or no prospect of advancing.

Disbursement of loan or grant 7:36-9.4
Monmouth County's Finance Department has balked at maintaining a separate, and infrequently used bank account, purely for the purpose of receiving Green Acres disbursements because of the cost attached to establishing such an account. It is recommended that the rules be revised to waive this requirement when a single reimbursement is requested after the satisfactory completion of the project. The issue of accruing interest on the payment should be moot under these circumstances.

Disbursement of Loan or Matching Grant 7:36-9.4 (c), i,v(3)
Clarification is needed as to whether a single certification by local government unit's chief executive officer, chief financial officer or municipal clerk that the information is accurate and that no bonus has been given in connection with any bill can be submitted for a project as a whole or if a separate certification is required for each bill/contractor.

Disposal or Diversion of Funded Parkland and Unfunded Parkland; Exceptions 7:36-25.2(d),7
The exception for replacement or enlargement of a highway or pedestrian bridge should be revised to permit the establishment of a new right-of-way of sixty (60) feet from the centerline of the road. Many of the bridges in the State are undersized and poor condition. Their reconstruction is clearly a compelling public need and should not be delayed by the expense and effort required for a diversion application. If not an exception, this work should be classified as a minor diversion (7:36-2.2(b).

ROSI Amendments 7:36-25.3
The language does not specifically address amendments to add properties to the ROSI beyond those included in a Green Acres application. Is it the Department's intent that the provisions of 7:36-25.3(g)3 (all other ROSI amendments) including a mandatory public hearing shall apply to this category of amendment? It is recommended that the language be revised to provide for such amendments to be handled administratively without a public hearing.

Development of parkland acquired as part of a grant incentive project 7:36-25.4
New development within previously developed areas of a funded parcel should be classified as de minimis development (7:36-25.4(b)1).
If the proposed development is in an area where it has previously been determined that development will not adversely impact natural resource values (7:36-25.4(b)2.iii.), the local government unit should not be required to satisfy the procedural requirements for a change in purpose or use. In effect, such development was "identified" in the original funding application by virtue of the delineation and should not be considered a change in recreation and conservation purpose or use as per 7:36-25.4(d)6.
Where original project maps did not contain a delineation of the areas in which development for recreation and conservation purposes either would or would not adversely impact natural resource values (7:36-25.4(b)2(iv.), the rules should provide an opportunity to prepare such a delineation for Department review as would have occurred at the time of the initial application; it should not be assumed that the lack of such a delineation suggests that the entire parcel should be subject to the more stringent approval requirements.

Public Notice Requirements 7:36-25.3(h), 7:36-25.6(a)
It is excessive to require both a legal notice and display advertisement for notices of public hearings. When considered in the context of the other notification requirements (posting of a sign, certified mail to neighbors, letters to designated agencies) this seems redundant and an unnecessary taxpayer expense.

Unlike records of property owners maintained by municipal tax assessors, there is no official local record for holders of easements. The requirement that notice be sent via certified mail to holders of easements on land located within 200 feet of the subject property will require title searches for all such properties. This is prohibitively time consuming and expensive and should be deleted from the rules.

Public Notice Requirements 7:36-25.6(a)1 and 2
Section 1 specifies certain notice to be given at least 30 days in advance of a required public hearing. Section 2 states that proof of this same notice must be provided to the Department at least 30 days in advance of the required public hearing. The requirement of Section 2 effectively makes it impossible to give notice less than 45 days in advance. It should be satisfactory to provide the Department with this proof after the hearing. If the notice were found to be in error, the hearing process would have to be repeated.

Combined hearings 7:36-25.6(e)
Permitting hearing relative to approval of municipal and county master plans and budgets to satisfy the change of use hearing provisions is welcome, but presents some procedural challenges. Specifically, it is not reasonable to expect notice by certified mail to "persons who own land within 200 feet of the area of the parkland" (7:36-25.6(a)4) when the master plan or budget relates to the political jurisdiction as a whole. An exception to the notice requirements should be made in these circumstances.

Public hearing requirements 7:36-6.2, 7:36-25.3(h)1, 7:36-25.6(a)1
It is recommended that the Department not specify that hearings be held only on weekday evenings. A public interest survey conducted for the Monmouth County Park System in 2003 concluded that adults are most available for park and recreation activities on weekends from 12 to 3pm and 3 to 7pm; it can be assumed that the same would hold true for park and recreation related hearings. We generally try to schedule public meetings at a variety of times and places to accommodate the anticipated audience and people's different schedules. The Department scheduled the single hearing on this rule proposal for a weekday afternoon and the State House Commission, whose business is clearly of great public interest, also meets during regular business hours. The Department should allow local units flexibility in the scheduling of hearings.

Public access to parkland during non-business hours 7:36-25.10(f)
The intent of the language requiring that local governments provide reasonable public access "during non-business hours" to those facilities for which fees are charged or a permit for access is unclear. In some instances, fees are charged or permits required whenever a facility is open for business; in the example of a public golf course, are the rules suggesting that people should be able to enter the course and play golf after normal hours? Is a government agency required to leave a pool open after its lifeguards have concluded their regular business hours? Assuming that this is not the intent of the rule, revision of its wording is needed.

Posting of Signs on Funded Parkland 7:36-25.12(c)4.
The language should be revised to specifically include signs identifying the park and any facilities; as drafted, it is not clear that park entrance or facility signs are permitted.

Leases 7:36-25.13 and 14
As the Department is not a named party to any leases or agreements entered into by a local government unit or nonprofit, why would it insist on being named as an additional insured under any insurance policy required by the lease or agreement (7:36-25.13(b)9 and 14(b)7)?

Department Policy on Disposed and Diversions, Substantive Standards 7:36-26.1(d),1,5,ii,
The rules should acknowledge that counties are subject to the requirements of N.J.S.A. 40A-12-13.5, in addition to the Green Acres requirement.

Please be advised that the Park System has also requested County Counsel review of the proposed rules; we anticipate that our agency will have additional comments upon completion of that review. Please contact Faith S. Hahn, PP/AICP, Supervising Planner by telephone at 732-842-4000, ext. 4263 or by e-mail at fhahn@monmouthcountyparks.com if you have any questions regarding these comments or require additional information.

Sincerely,

James J. Truncer
Secretary-Director

enc.
Pc: Clerk of the Monmouth County Board of Chosen Freeholders
Monmouth County Administrator
Commissioner of the New Jersey Department of Environmental Protection
Acting Governor Richard Codey
Senators and Assemblymen from Districts 10, 11, 12, 13, and 30
New Jersey League of Municipalities
New Jersey Association of Counties
New Jersey Recreation and Park Association
Municipal Clerks within Monmouth County