iOn May 29, 2013, the Appellate Division determined that the DEP appropriately allowed the removal of the Robert J. Miller Air Park from Ocean County’s Recreation and Open Space Inventory (“ROSI”). The Pinelands Preservation Alliance and New Jersey Conservation Foundation, represented by the Eastern Environmental Law Center, appealed from the NJDEP action authorizing amendment of the ROSI to remove the Robert J. Miller Air Park. The parcel is used mainly as an airport and comprises approximately 934 acres.
Any property acquired with Green Acres funds is automatically part of the ROSI. There are strict limitations on use of properties on the ROSI and on divestiture of those properties.
Ocean County argued that there was no conclusive evidence that Green Acres funds were used for purchase of any of the 934 acres and that the use of the property was not for recreation or open space. Ocean County made an application in 2009 to remove the Air Park from ROSI pursuant to DEP Regulatory Procedures and the court noted that the burden lies with the county to provide proof that placing the property on the ROSI was in error. DEP concluded that all of the parcels acquired were to be used as part of the Air Park and that these the properties should not have been listed on the ROSI since the Air Park use does not qualify as a recreation or conservation use. A public hearing took place in 2010 and a decision was made by DEP on May 9, 2011 granting the County’s application and an appeal was filed. The County had to overcome a rebuttable presumption that since the property was included in the ROSI, it was acquired with Green Acres funds and encumbered with restrictions on its use.
The Appellate Division upheld DEP’s determination that there was a bona fide error in the County’s ROSI, since the property was being used as an airport, not recreation or open space use. The court noted the strict scrutiny that DEP must give to such applications for removal from the ROSI, however, commented that the determining factor was the actual use of the land. Of note is that the County commenced this removal process in 2009 culminating in this court’s decision four (4) years later.
