In this Q&A, Rutter & Roy Managing Partner Christine Roy offers insights into getting the necessary property rights when building across Green Acres-encumbered land.
Q: What is the most-significant challenge facing your clients when they encounter Green Acres-encumbered land?
A: The most-significant challenge that clients face is getting the cooperation of the local unit (i.e., township, county, or nonprofit) so they can go through the Green Acre diversion process. The diversion process is a very onerous process that, if approved, would allow a local unit to grant permanent rights to a third party such as an interstate pipeline or electric transmission company. Our firm has 30 years of experience in dealing with NJDEP Green Acres diversions and has been able to come up with solutions to the problem of non-cooperative local units.
Q: What are some of the other challenges?
A: Another major challenge is completing the diversion process in time to meet your construction schedule. We typically prepare a detailed milestone schedule with all the necessary steps in the diversion process, including due dates, which helps our clients stay on schedule. Among other things, the diversion process involves two public hearings, two resolutions from the local unit, a pre-application, and the final application. It also requires approval from the NJDEP commissioner and the State House Commission.
Q: From your experience, what timeline should companies be prepared for when looking to obtain property rights across Green Acres-encumbered properties?
A: We typically advise clients that the diversion process can take at least a year to complete, but that they should build 18 months into the schedule to allow for delays in the process that are beyond their control. Some Green Acres restrictions must also be released pursuant to N.J.S.A. 13:8B-5, so we typically combine the public hearing required for the release process with the second public hearing required by the diversion process.
Q: What factors cause delays in the process?
A: The most-common reason for a delay in the process is working through the compensation for the diverted area. We recommend getting a Green Acres-approved appraiser involved as soon as possible and asking the local unit for a list of parcels they wish to add to their open space inventory. Depending upon what rights are required for the project, compensation can be in the form of cash (at a 10:1 ratio or greater), land replacement (the minimum ratio is 1:1, but typically 4:1 would get it done), or a combination of cash and replacement land. Our office has navigated our clients through diversions for 30 years, so we know what compensation packages will be acceptable to a local unit, the NJDEP Commissioner, and ultimately, the State House Commission.
Q: Over time, you’ve seen changes in regulatory requirements. Can you provide an example or two?
A: The regulations have stayed the same since 2006. However, the way the NJDEP implements the regulations is fact-dependent. For example, if your client only needs a temporary workspace on a Green Acres parcel, then a diversion is not required. Instead, your client has to obtain administrative approval. Your client would first need the cooperation of the local unit. However, if use of the temporary workspace would require the felling of trees, the NJDEP Green Acres may require that you go through the diversion process, since the impact to the parcel is long term and rises to the level of a permanent impact on parkland.
Q: You’ve often said that getting the project done comes down to choosing the right consultants. How so?
A: You must have consultants who have the judgment and experience to navigate you through the jurisdictional determination process to figure out what is and what isn’t Green Acres-restricted. Once that has been determined, then you need to confirm whether a diversion is required before contacting the NJDEP Green Acres staff and the local unit. An experienced Green Acres consultant (i.e., someone who has completed at least five to 10 diversions) should be able to save you time and money, and most importantly, get the approvals needed to build your project on time. Our firm has handled well over 10 diversions, many of them involving local units that would not cooperate with the diversion process. In fact, almost every project we work on has a Green Acres component. Arguably, our firm has the most experience with Green Acres restrictions in the state of New Jersey!