Green Acres Restrictions Impact Utility and Development Projects: Navigating the Morass of Environmental Regulations and Property Restrictions

by Christine Roy, Esq.

It takes deep understanding of New Jersey’s environmental regulations and property restrictions to successfully plan and develop utility and development projects. The potential pitfalls are not always readily apparent and can add time and frustration to the many challenges companies face, especially when crossing New Jersey’s open spaces.

In over 30 years of advising clients – including major interstate pipeline companies – on planning utility and development projects, our attorneys have found that identifying Green Acres-restricted land is one of the major challenges our clients encounter.

The state created the Green Acres Program over 55 years ago, and under New Jersey’s Department of Environmental Protection (NJDEP) it has preserved more than 680,000 acres of open space. Green Acres parcels can be extremely difficult to identify, especially if they are unfunded parcels not listed on a local unit’s Recreation and Open Space Inventory (ROSI), the NJDEP’s master list of Green Acres-encumbered properties in each municipality. For example, we identified a conservation restriction which was labeled as a “Drainage and Conservation Easement” on a filed map only. The Township deemed it Green Acres restricted and a diversion was required.

Despite our decades of experience with environmental and development regulations, we often come up against situations and issues that we’ve never seen before. That’s why it’s critical that companies work with legal professionals who understand and have experience with New Jersey’s property restrictions and know what’s required to navigate the various statutory and regulatory processes.

At Rutter & Roy, we conduct in-depth research using an internal checklist that includes the ROSI, title search and information from the municipality, County or non-profit organization, as well as Green Acres files and other records in Trenton. From the outset, we presume that if it’s municipally-owned land, it’s Green Acres-restricted land. Many publicly owned properties are not, but after handling more than 20 diversions under the 2006 Green Acres Rules, I know the answer often is not black and white.

I tell clients that it’s important to identify property restrictions as early as possible because they can lead to significant project delays. The jurisdictional review process alone can take six months to a year, as the participants wrestle with identification and determining whether they fall under other federal funding programs such as Land & Water Conservation. We also check to see whether properties are subject to a Deed of Easement conveying the non-agricultural development rights to a county, town or the State Agriculture Development Committee making them preserved farms.

The Green Acres diversion process has multiple steps, and we ensure that our clients stay on schedule and guide them through the necessary regulatory requirements. The diversion process is onerous and includes two local hearings to take public comments concerning the project and any compensation package the proponent is offering. Then, the Commissioner of the NJDEP must recommend approval of the final application before it goes to the New Jersey State House Commission for final approval. Where there is a Green Acres conservation easement, we know how to best streamline the diversion process and the restriction release process so that the project can be constructed on time.

The rules are intentionally strict to discourage companies from obtaining a diversion on protected lands. However, we believe that it’s always preferable to go through the diversion process rather than to condemn. Legal professionals who understand New Jersey’s property restrictions are essential to companies navigating the statutory and regulatory process.

Christine A. Roy, Partner, joined the firm in 1999. She focuses primarily on environmental law, and has extensive experience in land use law, railroad law, transportation law, pipeline law and appellate practice. Christine has handled right of way acquisitions involving interstate natural gas pipeline projects, and has been lead counsel on approximately 100 condemnation actions filed in the U.S. District Court of New Jersey (Newark, Trenton, and Camden combined) in connection with six major interstate natural gas pipeline projects.