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:

I am writing to you in my capacity as Administrator for Winslow Township regarding the proposed new rules governing the State Green Acres Program (N.J.A.C.7:36) which were published in the July 5, 2005 New Jersey Register. Winslow Township takes the position that the proposed rules will have a profound impact on the Recreation, Park and Open Space Programs of New Jersey, and specifically, Winslow Township. I will outline some of the major concerns that Winslow Township has below:

1. Change in purpose or use provisions: Specifically the proposed rules extend a 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. I would note that 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.
   
   I would point out that 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. Winslow Township would note that 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 absolutely 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 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 in 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 in 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 does 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.

The above represents six concerns that I can identify in reviewing the proposed rules on behalf of Winslow Township. I would note that Winslow Township proudly has participated in several Green Acres Programs in the past and plans on utilizing Green Acres funding for various purposes in the future. However, the proposed rule has imposed significant costs and time constraints that will negatively impact Winslow Township's ability to fully utilize Green Acres funding and programs in the future. Therefore, Winslow Township certainly encourages the State Green Acres Program to incorporate some of the suggestions above and take into consideration some of the concerns that are raised in this letter.

I am sure that several other municipalities share the concerns of Winslow Township regarding a proposed rule change. Additionally, Winslow Township would respectfully request that the Green Acres Program provide for an extension to the stated comment to allow for greater review of the impact of the proposed rules specifically on municipal governments.

If you have any questions, or if you need additional information, please do not hesitate to contact me.

Very truly yours,

David P. Fanslau, MGA
Township Administrator

C: Mayor and Township Committee
William G. Dressel, Jr., Executive Director, NJLM
John Adler, State Senator
Louis Greenwald, Assemblyman 6th District
Mary Previte, Assemblywoman 6th District