FREEHOLD, NJ—Successful utility and development projects require deep understanding of New Jersey’s environmental regulations and property restrictions, according to Christine Roy, partner in the law firm of Rutter & Roy. The firm has been advising energy clients since 1950, and is familiar with the many challenges pipeline companies face, especially when crossing New Jersey’s open spaces.
Among the major property restrictions encountered in New Jersey is Green Acres restricted land. The Green Acres Program was created 55 years ago to protect open space and natural resources. As part of New Jersey’s Department of Environmental Protection, the program has preserved over 680,000 acres since it was founded.
Roy represents major interstate natural gas pipeline companies, advising them on various aspects of construction projects including Green Acres diversions and streamlining the regulatory process to prevent delays. She offers her perspective on the program and the impact it has on the successful planning of pipeline projects.
Q: How do you identify the properties that are Green Acres restricted in New Jersey?
Roy: The Recreation and Open Space Inventory is the master list of Green Acres-encumbered properties in each municipality, for both funded and unfunded parkland. However, Green Acres restricted properties are not always easy to identify because many times they are not listed in the public records. There are any number of reasons why – the municipality may not have reported it or it is property owned by a non-profit organization that is not required to submit a ROSI.
We’ve found that determining a property’s designation requires in-depth research and knowing what to look for. We use an internal checklist that includes the ROSI, title search and information from the municipality, as well as Green Acres files and records in Trenton. From the outset, we presume that if it’s municipally owned land, it’s Green Acres restricted land. While there is a great deal of municipally owned property that is not designated as Green Acres, we always begin with the presumption that the property is Green Acres-restricted.
We’ve been doing this work for more than 30 years and we know that, at the end of the day, the answer may not be black and white. Ultimately, the designation is determined by having a conversation with the local unit (i.e. County, Township, etc.). But we’ve seen grey areas where information was not readily available and the towns involved could not accurately determine a property’s designation. If we cannot reach an agreement with the local unit, we turn to the Green Acres staff to make the final determination in conjunction with the local unit.
Q: Why is it important for pipeline companies to identify Green Acres restrictions early on in the project planning process?
Roy: It’s important to identify property restrictions as early as possible because, depending on the outcome, they can lead to significant project delays. In addition, the jurisdictional review process can take six months to a year to accomplish. It includes identifying Green Acres properties as well as determining whether parcels were preserved with other federal funding programs such as Land & Water Conservation. We also determine whether properties are subject to a Deed of Easement conveying the non-agricultural development rights to the property to a County or Township, or to the State Agriculture Development Committee.
We’ve created a checklist and roadmap that helps streamline this in-depth jurisdictional review process for clients. However, it’s essential to build enough time into the project’s milestone schedule to allow this process to be completed and applicable regulatory processes be identified and completed.
Q: What does the diversion process entail?
Roy: There are multiple steps in the Green Acres diversion process. It is a state regulatory process involving a pre-application and final application portion, as well as several public hearings to ensure that all local units have a voice. The diversion process is lengthy on purpose to discourage companies from affecting properties for non-preservation purposes.
Rutter & Roy has been involved in the greatest number of diversions since the adoption of the new regulations governing the Green Acres Program in 2006, and we handled numerous diversions prior to that. We take responsibility for staying on schedule and guiding clients through the various regulatory requirements necessary for the diversion. This typically involves two local hearings to take public comments concerning the project and any compensation package offered by the pipeline company. Once this part of the process is completed, the Commissioner of the NJDEP must accept the final application; it then goes to the State House Commission for approval.
The rules are intentionally strict to discourage companies from obtaining a diversion. However, we believe that it’s always preferable to go through the diversion process rather than to condemn.
Q: What is a commonly misunderstood fact about Green Acres restricted property?
Roy: Most people don’t realize that a great number of Green Acres tracts have utilities or pipelines on them. Many of these were built during the 1950s, when the properties were not preserved. This is yet another example of why it can be extremely difficult to identify Green Acres restricted land. Despite our decades of experience, we often come up against situations and issues that we’ve never encountered before. It’s critical that companies work with legal professionals who understand New Jersey’s property restrictions and know what’s required to properly navigate the various statutory and regulatory processes.