IN THE MATTER OF SEASIDE HEIGHTS BOROUGH PUBLIC BEACH IN THE MATTER OF APPLICATION OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ON BEHALF OF THE BOROUGH OF SEASIDE HEIGHTS, ETC. STEVEN MELVIN VS. SEASIDE HEIGHTS BOROUGH (DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE HOUSE COMMISSION, AND L-1752-16, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4585-15T3
A-5372-15T3
A-0557-16T4

IN THE MATTER OF SEASIDE
HEIGHTS BOROUGH PUBLIC BEACH
_______________________________

IN THE MATTER OF APPLICATION OF
THE NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION, ON
BEHALF OF THE BOROUGH OF SEASIDE
HEIGHTS, FOR STATE HOUSE
COMMISSION APPROVAL OF PROPOSED
DISPOSAL OF 1.37 ACRES OF
PUBLIC BEACH
________________________________

STEVEN MELVIN and BOB MOSS,1

Plaintiffs-Appellants,

v.

SEASIDE HEIGHTS BOROUGH and
AFMV, INC.,

Defendants-Respondents.
________________________________

Argued telephonically March 14, 2018 –
Decided July 30, 2018

1
The notice of appeal lists this party as "Bob Moss." The second
amended complaint and the pertinent trial court order identify him
as "Robert Moss."
Before Judges Reisner, Hoffman, and Gilson.

On appeal from the New Jersey Department of
Environmental Protection (A-4585-15), the
State House Commission (A-5372-15), and
Superior Court of New Jersey, Law Division,
Ocean County, Docket No. L-1752-16 (A-0557-
16).

Gordon N. Litwin argued the cause for
appellants American Littoral Society, Inc. and
New Jersey Conservation Foundation (Litwin &
Provence, LLC, and Eastern Environmental Law
Center, attorneys; Andrew J. Provence and
Aaron Kleinbaum, of counsel and on the briefs;
Gordon N. Litwin and Raghu Murthy, on the
briefs).

James J. Curry, Jr., argued the cause for
appellants Steven Melvin and Bob Moss (The Law
Offices of James J. Curry, Jr., attorneys;
James J. Curry, Jr., and Timothy J. Petrin,
on the briefs).

Jill Denyes, Deputy Attorney General, argued
the cause for respondents New Jersey
Department of Environmental Protection and
State House Commission (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Joan
M. Scatton, Deputy Attorney General, on the
brief).

Jean L. Cipriani argued the cause for
respondent Borough of Seaside Heights (Gilmore
& Monahan, PC, and Stone Mandia, attorneys;
Jean L. Cipriani and Robin La Bue, on the
brief).

R.S. Gasiorowski argued the cause for
respondent AFMV, LLC (Gasiorowski and
Holobinko, attorneys; R.S. Gasiorowski, on the
brief).

2 A-4585-15T3
PER CURIAM

We have consolidated these three appeals because they all

relate to the same underlying subject, the transfer of

approximately 1.37 acres of municipally-owned beach property (the

beach parcel) in the Borough of Seaside Heights (Borough). The

transaction enabled a local entrepreneur (AFMV or pier owner) to

rebuild the iconic Casino Pier, which was heavily damaged by

Superstorm Sandy, while allowing the Borough to obtain and preserve

a historically significant wooden carousel worth millions of

dollars. In addition to the carousel, the pier owner gave the

Borough a vacant parcel of land along the boardwalk (the boardwalk-

fronting parcel) on which to build a museum to house the carousel.

To satisfy the Borough's obligation to the Green Acres program,

Ocean County also agreed to dedicate, as replacement parkland,

67.17 acres adjacent to a park in Toms River.

Because no stay was issued, the pier has already been built

on the beach parcel, its amusement rides are in operation, and the

Borough is planning to build the carousel museum on the boardwalk-

fronting parcel.2 Nonetheless, appellants have pursued these

2
At oral argument, the Borough's counsel represented that the
Borough will build the museum on the boardwalk-fronting parcel,
as opposed to elsewhere, and advised that the Borough was in the
process of issuing requests for proposals for the construction of
the museum on that parcel. In the meantime, the property exchange

3 A-4585-15T3
appeals, and no party has moved to dismiss the appeals as moot.

Accordingly, we will decide them.

To summarize, in A-4585-15 and A-5372-15, three parties - the

American Littoral Society, Inc. (ALS), the New Jersey Conservation

Foundation (NJCF) and Steven Melvin - appeal decisions by the New

Jersey Department of Environmental Protection (DEP) and the State

House Commission (SHC). Those decisions approved the Borough's

plan to convey the beach parcel to the pier owner, in exchange for

the historic carousel, the boardwalk-fronting parcel, and the

parkland in Toms River. The DEP and SHC decisions make clear that

this application has unique features, and their approvals are not

precedent for other applications to dispose of Green Acres-

protected beach property.

Appellants argue that neither agency had authority to approve

the project under the Green Acres statute and regulations; the

agencies failed to consider the common law public trust doctrine

when issuing the approvals; and the Borough will not receive

reasonably equivalent property in exchange for the beach parcel.

We find no merit in appellants' legal contentions, and it is not

our role to second-guess the agencies' policy decisions. With one

agreement between the Borough and the pier owner requires the pier
owner to store the carousel "to maintain its structural integrity,"
until the museum is built. The pier owner is also responsible for
moving the carousel into the museum.

4 A-4585-15T3
minor modification to the SHC decision, discussed later in this

opinion, we affirm the decisions of both agencies.

In A-0557-16, plaintiffs Steven Melvin and Robert Moss appeal

from a September 29, 2016 Law Division order dismissing their

complaint. That complaint, which plaintiffs characterized as

seeking a declaratory judgment, challenged the legality of a

Borough ordinance authorizing the conveyance of the beach parcel

to the pier owner. Plaintiffs contended that, under N.J.S.A.

40A:12-16, the Borough lacked authority to convey the parcel, and

that the ordinance violated the public trust doctrine.3 Because

plaintiffs intentionally waited almost a year to file their

complaint, when the applicable limitations period was forty-five

days, we affirm the dismissal of plaintiffs' complaint as untimely.

I

We begin by addressing the DEP and SHC appeals. To place our

decision in context, we set forth the following background. The

Seaside Heights Borough Public Beach, located within the Borough,

is an approximately thirty-five-acre municipal park. A boardwalk

runs along its western edge, and visitors use the beach for

recreational activities such as swimming, surfing, kayaking,

3
The complaint also raised a constitutional equal protection
challenge. However, plaintiffs waived the constitutional issue
when they failed to brief it on this appeal.

5 A-4585-15T3
camping, volleyball, fishing, movies, and concerts. The beach was

encumbered with Green Acres restrictions when the Borough listed

it on its Recreation and Open Space Inventory (ROSI)4 in 1997, in

connection with its application for Green Acres funding for the

acquisition of another unrelated parcel of land.

The Casino Pier is a privately owned amusement pier extending

off the boardwalk in the Borough. The pier, owned by AFMV, a

private company, offers rides, games, and concession stands, and

is a huge tourist attraction, important to the Borough's economy.

The pier is located at the southern end of the Borough's public

beach, which runs north to south.

In addition to the pier itself, AFMV also owned the Dr. Floyd

L. Moreland, Dentzel/Loof Carousel (hereinafter, the Carousel),

housed in a pavilion on the pier. On August 25, 2014, the State

Historic Preservation Office (SHPO) issued a Certification of

Eligibility for the Carousel, finding it eligible for listing on

the New Jersey and National Registers of Historic Places. In

making that finding, the SHPO noted that the Carousel, which moved

to its present location in the Borough in 1932, features wooden

animals carved between the 1890s and 1910s — during the "golden

4
The ROSI is part of a municipality's application for Green Acres
funding, and lists "each parcel of land held by the local
government unit for recreation and conservation purposes as of the
date of the application." N.J.A.C. 7:36-12.5.

6 A-4585-15T3
age of carousels and the heyday of amusement parks." According

to the SHPO, the Carousel's hand-carved and hand-painted animals

"embody the distinctive features of a type, period, and method of

construction; reflect the work of master craftsmen; and possess

high artistic value." Between 1910 and 1920, thirty traditional

wooden carousels were present in New Jersey. Today, the Carousel

is one of four remaining wooden carousels in the State.

In July 2014, the pier owner listed the Carousel for private

sale at an auction house. The auction house, which had experience

selling another historic wooden carousel, appraised it at between

$2.3 million and $2.5 million. After the listing generated public

concern, Borough officials began negotiating with the owner to

explore purchasing the Carousel in exchange for assistance in

rebuilding Casino Pier, which had been partially destroyed during

Superstorm Sandy.

The negotiations led to a proposal for the Borough to receive

the Carousel in return for the 1.37-acre beach parcel, located

next to the pier. The pier owner proposed to use the beach parcel

to replace the destroyed portions of the pier. The beach parcel

was classified as unfunded parkland subject to Green Acres

restrictions, and was valued at approximately $4.2 million.

On May 6, 2015, the Borough held a scoping hearing to obtain

public comments on a proposal to dispose of the beach parcel by

7 A-4585-15T3
conveying it to the pier owner in exchange for the Carousel and

other parcels of land located within the Borough. On June 17,

2015, the Borough Council passed a resolution finding that the

transaction would, in part, "[p]reserv[e] the historic

[Carousel]." On or about July 1, 2015, the Borough enacted an

ordinance authorizing the transaction and the submission of an

application to DEP for approval.

On or about July 9, 2015, the Borough filed an application

with DEP seeking approval for its proposed exchange with the pier

owner. The Borough proposed that, in exchange for the beach

parcel, it would receive title to the Carousel, valued between

$2.3 million and $2.5 million, as well as title to the boardwalk-

fronting parcel, a 0.75-acre lot along the boardwalk's inland

side, valued at $2.13 million. The Borough proposed to construct

a museum and community facility building to house the Carousel on

the boardwalk-fronting parcel. Additionally, the Borough proposed

listing various small parcels of Borough-owned properties on the

ROSI as additional compensation for the loss of the beach parcel.

On October 30, 2015, the Borough submitted an amended project

description. The amended description focused on the Carousel and

its historical and cultural importance to the Borough, in contrast

to the previous project description, which had emphasized the

importance of the project's anticipated effect on the area's

8 A-4585-15T3
economy, which had been devastated by Superstorm Sandy.

In February 2016, the Borough revised the proposed

compensation package. The revised proposal retained the Carousel

and the boardwalk-fronting parcel, but removed the small parcels

of Borough-owned land after consultation with DEP and members of

the public. In place of those small parcels, the Borough offered,

in cooperation with Ocean County, to place 67.17 acres of open

space located adjacent to Winding River Park in Toms River (the

Toms River tract) on the ROSI. According to the Borough,

encumbering the Toms River tract "through the Green Acres program

for recreational and open space conservational purposes will help

to protect the ecologically sensitive environment of the Toms

River Subwatershed and the Barnegat Bay Watershed." The appraised

value of the Toms River tract was approximately $275,000.

On or about April 5, 2016, Melvin submitted written comments

to DEP regarding the disposal application. On or about April 6,

2016, several environmental groups, including ALS and NJCF,

submitted written comments via email.

On April 20, 2016, the Borough's governing body passed a

resolution endorsing the filing of a final application for the

disposal, finding that, after reviewing the oral and written public

comments, the project was in the public's best interest. On or

about April 22, 2016, the Borough submitted the final part of its

9 A-4585-15T3
application, which contained, among other documents, proof that

the Borough notified the public regarding the final hearing, the

transcript from the hearing, and a summary of written comments

received from the public.

DEP approved the application on May 18, 2016. In doing so,

it acknowledged the possible economic benefits of the Casino Pier

redevelopment project, but explained that economic benefits are

an insufficient basis for approval under the governing

regulations, which require the project to provide a "public

benefit" or "exceptional recreation and/or conservation benefit."

DEP premised its approval upon "the acquisition of an (arguably)

irreplaceable historic property, along with a nearby vacant parcel

of land that can, in the future, house the Carousel," finding that

they provided an exceptional recreation benefit sufficient to

support the application. DEP approved the proposal with the

following conditions:

[1)] Within two years of this approval, the
Borough shall prepare and submit the National
Register Nomination Form for the listing of
the Carousel on the New Jersey and National
Registers of Historic Places.

[2)] While the construction of a building to
house the Carousel is not part of the
compensation for the proposed disposal, the
Borough will make its best efforts to make the
Carousel available, as a public recreational
amenity, within two years of this approval
(with up to two six month extensions for good

10 A-4585-15T3
 cause shown[)].

[3)] The Borough shall not convey any property
interest to the Casino Pier owners until it
has resolved any outstanding issues with the
preliminary assessment reports for the
proposed replacement land(s) to the
Department's satisfaction.

On June 30, 2016, the SHC conducted a hearing on the

application. A witness from DEP testified that, although the

disposal of public beach property is rare, the "determining factor"

supporting DEP's approval "was the aspect involving the historical

carousel." Saving the "irreplaceable historic asset," preserving

the boardwalk-fronting parcel to house it in the future, and the

additional replacement land in the Toms River tract "was sufficient

to satisfy [DEP's] requirements." Counsel for the Borough also

testified in favor of the application, explaining that, "the whole

genesis of this proposal was the historic carousel" and advising

that, "it is every intention of the town to house this carousel

and make it available for view and operation for the benefit of

the public."

Representatives from ALS and NJCF testified before the SHC,

in opposition to the proposal. They argued that the proposed

compensation package was not a reasonably equivalent replacement

because "beachfront property is fundamentally irreplaceable," and

contended that the project was intended to "serve private interests

11 A-4585-15T3
and not the public interest."

At the conclusion of the hearing, the SHC voted to approve

the application. The SHC imposed the following two conditions:

1) there must be a "facility housing the [C]arousel within three

years on the Boardwalk someplace in Seaside Heights" and 2) the

Borough must "complete the [federal] historic designation" process

with respect to the Carousel.

II

Our review of the DEP and SHC decisions is limited. Pub.

Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95,

103 (1985). An agency's decision will only be reversed if: 1) it

is arbitrary, capricious, or unreasonable; 2) it violates express

or implied legislative policies; 3) it offends the State or Federal

Constitution; or 4) if the findings upon which it is based were

not supported by substantial, credible evidence in the record.

Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl.

Prot., 191 N.J. 38, 48-49 (2007).

In reviewing administrative decisions, we grant "considerable

deference to the agency's expertise, where such expertise is a

relevant factor." In re Petition of S. Jersey Gas Co., 447 N.J.

Super. 459, 480 (App. Div. 2016). "Ordinarily, DEP is given great

deference when it applies its considerable expertise and

experience to the difficult balance between development and

12 A-4585-15T3
conservation." In re Stream Encroachment Permit No. 0200-04-

0002.1 FHA, 402 N.J. Super. 587, 597 (App. Div. 2008). We also

owe deference to DEP's interpretation of the statutes it is charged

with enforcing and to the agency's construction of its own

regulations. SCJ Builders, LLC v. N.J. Dep't of Envtl. Prot., 378

N.J. Super. 50, 54 (App. Div. 2005). We are limited to deciding

whether the agency's decisions are lawful; it is not our role to

second-guess the wisdom of its policy choices. In re Adoption of

Amendments to Ne., Upper Rariten, Sussex Cty., 435 N.J. Super.

571, 538-84 (App. Div. 2014).

Appellants' arguments revolve around the Green Acres statutes

and regulations, and it is therefore helpful to review those

enactments. In the 1960s and 1970s, the State enacted several

"Green Acres" laws. See L. 1961, c. 45, codified at N.J.S.A.

13:8A-1 to -18 (the New Jersey Green Acres Land Acquisition Act

of 1961); L. 1971, c. 419, codified at N.J.S.A. 13:8A-19 to -34

(the New Jersey Green Acres Land Acquisition Act of 1971); L.

1975, c. 155, codified at N.J.S.A. 13:8A-35 to -55 (the New Jersey

Green Acres Land Acquisition and Recreation Opportunities Act

(hereinafter, the 1975 Green Acres Act, or 1975 Act)). The laws

promote public ownership and preservation of lands for recreation

and conservation purposes, by providing funding for the State and

municipalities to acquire such lands, restricting the transfer of

13 A-4585-15T3
such lands, and restricting the ability of municipalities to divert

the use of such lands to non-recreation or non-conservation

purposes. See N.J.S.A. 13:8A-2; N.J.S.A. 13:8A-20; N.J.S.A.

13:8A-36; N.J.S.A. 13:8A-47.

Pursuant to the 1975 Green Acres Act, municipalities cannot

dispose or divert from "recreation and conservation" uses any

lands acquired with Green Acres funds, unless they obtain approvals

from both DEP and the SHC.5 N.J.S.A. 13:8A-47(a). The 1975 Act

defines "recreation and conservation purposes" as "use of lands

for parks, natural areas, historic areas, forests, camping,

fishing, water reserves, wildlife, reservoirs, hunting, boating,

winter sports and similar uses for either public outdoor recreation

or conservation of natural resources, or both." N.J.S.A. 13:8A-

37(f). It also requires DEP and the SHC to approve a

municipality's conveyance of any "conservation or recreational

properties that were owned by the municipality at the time it

received any Green Acres grant, even if such properties had not

been acquired or developed with Green Acres funds." Cedar Cove,

5
Created in 1953, the SHC consists of the Governor, the State
Treasurer, and the Director of the Division of Budget and
Accounting in the Department of the Treasury, or their designees,
two members of the Senate appointed by the Senate President, and
two members of the General Assembly appointed by the Speaker.
N.J.S.A. 52:20-1. In addition to its role in the Green Acres
program, it controls the sale and leasing of state-owned properties
in general. See N.J.S.A. 52:20-7.

14 A-4585-15T3
Inc. v. Stanzione, 122 N.J. 202, 205 (1991); N.J.S.A. 13:8A-47(b).

The municipality must also conduct a public hearing at least one

month prior to approval of any proposed sale of Green Acres-

encumbered land. N.J.S.A. 13:8A-47(a), (b)(1).

In 1998, a constitutional amendment created a dedicated

funding source for the "acquisition and development of lands for

recreation and conservation purposes, for the preservation of

farmland for agricultural or horticultural use and production, and

for historic preservation[.]" N.J. Const. art. VIII, § 2, ¶ 7;

N.J.S.A. 13:8C-2. To implement that amendment, in 1999 the

Legislature passed the Garden State Preservation Trust Act

(GSPTA), N.J.S.A. 13:8C-1 to -42. The GSPTA establishes the Garden

State Preservation Trust within the Department of the Treasury,

as well as several other funds, including the Garden State Green

Acres Preservation Trust Fund and the Garden State Historic

Preservation Trust Fund. N.J.S.A. 13:8C-4, -19, -21. The GSPTA

also established the Office of Green Acres within DEP to administer

both the GSPTA and all other preexisting Green Acres laws.

N.J.S.A. 13:8C-24(a) to (b).

Similar to the preexisting Green Acres legislation, the GSPTA

requires municipalities to obtain DEP and SHC approval before

disposing of any lands identified for recreation or conservation

use at the time the municipality received a grant under the GSPTA.

15 A-4585-15T3
N.J.S.A. 13:8C-32(b). However, unlike its predecessors, the GSPTA

requires applicants to provide replacement lands to offset the

diversion or disposal of such land. N.J.S.A. 13:8C-32(b)(1).

Under the GSPTA, DEP and the SHC shall only approve a diversion

or disposal if the municipality agrees to either "replace the

lands with lands of equal or greater fair market value and of

reasonably equivalent size, quality, location, and usefulness for

recreation and conservation purposes, as approved by the

commissioner," or "pay an amount equal to or greater than the fair

market value of the lands, as determined by the commission, into

the Garden State Green Acres Preservation Trust Fund." N.J.S.A.

13:8C-32(b)(1).

Significant to this case, the GSPTA also expansively

redefined "recreation and conservation purposes" to include the

protection of historic buildings and objects. N.J.S.A. 13:8C-3.

Under GSPTA, the definition of "recreation and conservation

purposes" includes "the use of lands for . . . protecting historic

properties." N.J.S.A. 13:8C-3. Moreover, "historic preservation"

includes "any work relating to the conservation, . . .

preservation, [or] protection . . . of any historic property . .

. ." N.J.S.A. 13:8C-3. In turn, the definition of "historic

property" includes an "object" with historical significance:

16 A-4585-15T3
 “Historic property” means any area, building,
facility, object, property, site, or structure
approved for inclusion, or which meets the
criteria for inclusion, in the New Jersey
Register of Historic Places . . . .

[N.J.S.A. 13:8C-3 (emphasis added).]

The inclusion of "historic properties" within the definition of

"recreation and conservation purposes" is consistent with the

GSPTA's express aim to address the "urgent need" to "enable present

and future generations to experience, understand, and enjoy the

landmarks of New Jersey’s role in the birth and development of

this nation[.]" N.J.S.A. 13:8C-2.6

DEP's regulations provide additional details regarding the

process for approving an application to dispose protected

parklands. N.J.A.C. 7:36-25.2 to -26.11. The regulations define

"funded parkland" as land acquired or developed by a municipality

with Green Acres funding, and "unfunded parkland" as parkland,

other than funded parkland, that is held by a local government

unit for recreation and conservation purposes at the time of

receipt of Green Acres funding. N.J.A.C. 7:36-2.1. Consistent

6
The most recent legislation governing Green Acres issues is the
Preserve New Jersey Act (PNJA), N.J.S.A. 13:8C-43 to -57, passed
in 2016 following another constitutional amendment. The PNJA
incorporates by reference the definition of recreation and
conservation purposes set forth in the GSPTA, as well as the
GSPTA's restrictions on the use of land encumbered by Green Acres
restrictions. N.J.S.A. 13:8C-45; N.J.S.A. 13:8C-53. It took
effect following the DEP and SHC approvals appealed here.

17 A-4585-15T3
with the GSPTA, a municipality that wishes to dispose of either

funded or unfunded parkland must file an application for approval

with DEP and the SHC. N.J.A.C. 7:36-26.1(b). Any proposal to

dispose of more than 0.5 acres of funded or unfunded parkland

qualifies as a "major disposal" for the purposes of the

regulations. N.J.A.C. 7:36-26.2(c).

Here, the beach parcel constitutes unfunded parkland subject

to the alienation restrictions contained in the Green Acres

statutes, the GSPTA, and the implementing regulations. As the

beach parcel exceeds 0.5 acres in size, it qualifies as a "major

disposal" under the applicable regulations. N.J.A.C. 7:36-

26.2(c).

A. Whether the Agency Decisions were Ultra Vires

Against that statutory and regulatory backdrop, we first

consider appellants' three arguments, supporting their contention

that the agency approvals were ultra vires. Appellants contend

that the decisions were impermissibly "motivated" by economic

considerations; the Green Acres program does not authorize

acquisition of historic objects such as the Carousel; and the

agencies failed to make required factual findings.

1. Economic Considerations

Appellants first argue that the agencies improperly approved

the application in order to provide an economic benefit to the

18 A-4585-15T3
Borough and the pier owner. They argue that preserving the

Carousel was "an afterthought."

Under the regulations, DEP and the SHC may only approve an

application for a major disposal if it meets the "minimum

substantive criteria." N.J.A.C. 7:36-26.1(d). Appellants rely

upon the provision requiring projects to either "satisfy a

compelling public need" or provide one of the following "public

benefits": 1) mitigating a hazard to the public health, safety,

or welfare; 2) improving the delivery of essential public services

or providing affordable housing; or 3) providing an "exceptional

recreation and/or conservation benefit" by "substantially

improving the quantity and quality of parkland" within either the

municipality or the watershed in which the parkland proposed for

disposal is located, "without resulting substantially in any of

the adverse consequences listed at N.J.A.C. 7:36-26.1(e)[.]"

N.J.A.C. 7:36-26.1(a), (d)(1).

Appellants contend that, because the regulations do not

enumerate "economic development" as one of the required "public

benefits," N.J.A.C. 7:36-26.1(d), DEP and the SHC should have

denied the application. We cannot agree with appellants that it

is "beyond the authority" of DEP and the SHC to consider the

economic impact of a disposal application.

The regulations set forth the minimum criteria that any

19 A-4585-15T3
disposal application must satisfy. N.J.A.C. 7:36-26.1. The

regulations do not forbid DEP and the SHC from approving an

application that may result in economic benefits, nor do they

require the agencies to ignore the possible economic impacts of

their decisions. Indeed, the same regulation appellants cite also

requires DEP to "carefully weigh the competing public interests

presented by the project," which may reasonably include economic

interests. See N.J.A.C. 7:36-26.1(c). So long as the application

satisfies the minimum criteria set forth in the statutes and

regulations, the agencies' acknowledgement of a project's economic

impact does not undermine the legality of their decisions.

To the extent appellants claim that the agencies made their

decisions solely for economic reasons, the record demonstrates

otherwise. DEP addressed this very issue in its decision. In

approving the Borough's application, DEP acknowledged "the

Borough's economic concerns," but did not "endorse them as being

the primary justification for approval of this application." DEP

explained that, under its regulations, "[e]conomic development,

in and of itself (without other unique contributing factors) is

not sufficient justification for the exchange of beachfront

property for non-beachfront property."

The agency considered the acquisition of an "irreplaceable

historic property, along with a nearby vacant parcel of land that

20 A-4585-15T3
can, in the future, house the Carousel, to be the public benefit

and/or the 'exceptional recreation and/or conservation benefit'

supporting approval of this application." It also recognized that

"it is the Borough's long-term intention to build a pavilion on

the [boardwalk-fronting parcel] to house the Carousel (as a

functioning recreational amenity for the public) and to showcase

the history of the Borough." DEP also required the Borough to

make "its best efforts to make the Carousel available, as a public

recreational amenity, within two years of this approval (with up

to two six month extensions for good cause shown[.)]"

At the SHC hearing, the DEP representative reiterated that

the "determining factor" behind DEP's approval "was the aspect

involving the historical carousel." The SHC relied upon DEP's

report when voting to approve the project. The SHC also went

farther than DEP, in requiring the Borough to place the Carousel

in a facility on the boardwalk in the Borough within three years.

Both agencies recognized the importance of the Carousel and the

boardwalk-fronting parcel as an integral aspect of the exchange

and as the basis for their approvals. That the agencies also

recognized the economic impact of their decisions is not a ground

to reverse those determinations.

Although the Borough's subjective motivations are not

relevant, we note that the Borough's resolution endorsing the

21 A-4585-15T3
initial application, passed before the Borough filed it with DEP,

expressly identified preserving the Carousel as one of the primary

benefits to be gained from conveying the beach parcel to the pier

owner. In its initial application, the Borough also included a

letter from the National Carousel Association, addressing the

value of the Carousel.

2. Agency Authority to Approve a Transaction Involving
the Carousel

Appellants next argue that DEP and the SHC acted beyond their

authority because "the acquisition of personal property to be

housed indoors as a museum piece is beyond the mandate of the

Commission and DEP's Green Acres program." We disagree with that

analysis, because the GSPTA authorizes the use of land to preserve

historic properties, which in turn includes historic "objects."

See N.J.S.A. 13:8C-3.

Appellants next contend that the statute's use of the term

"land" appears to exclude a historic object as an authorized

acquisition, "independent from the acquisition of real property."

Pursuant to the GSPTA, DEP and the SHC may approve a municipality's

application to dispose parkland if the municipality "agrees to .

. . replace the lands with lands of equal or greater fair market

value and of reasonably equivalent size, quality, location, and

usefulness for recreation and conservation purposes, as approved

22 A-4585-15T3
by the commissioner . . . ." N.J.S.A. 13:8C-32(b)(1) (emphasis

added). As previously noted, the GSPTA's definition of "recreation

and conservation purposes" includes "the use of lands for . . .

protecting history properties." N.J.S.A. 13:8C-3 (emphasis

added); N.J.A.C. 7:36-2.1. Read together, these statutory

provisions appear to require the exchange of lands together with

historic properties, not the exchange of land for historic

properties independent of any replacement land.

Similarly, for major disposals, the regulations require

applicants to "compensate for the disposal" with "eligible

replacement land, parkland improvements, dedicated funds for the

acquisition of land for recreation and conservation purposes or

other monetary compensation," in accordance with N.J.A.C. 7:36-

26.10. N.J.A.C. 7:36-26.1(d)(3). Pursuant to N.J.A.C. 7:36-

26.10(c)(1) and (e), compensation may include either replacement

land or monetary compensation payable to the Garden State

Preservation Trust or a dedicated account for parkland purposes,

or both. The regulations contemplate that any major disposal must

involve replacement land, not solely personal property, and in

this case there is no proposal to pay monetary compensation to the

Trust or to a dedicated account.

In this case, DEP found that the Borough intended to use the

boardwalk-fronting parcel to house and showcase the Carousel in

23 A-4585-15T3
the future. During the SHC hearing, DEP's representative stated

that "it is every intention of the town to house this carousel and

make it available for view and operation for the benefit of the

public." Therefore, the Borough's proposal involved replacement

"land" (the boardwalk-fronting parcel) that will be used for

"protecting historic properties" (the Carousel), which satisfies

the statutory definition of lands used for recreation and

conservation purposes. N.J.S.A. 13:8C-3; N.J.S.A. 13:8C-32(b)(1).

The SHC did not include that requirement in its decision,

instead requiring the Borough to build the carousel museum

somewhere on the boardwalk. However, it appears clear that the

Borough is planning to build the museum on the boardwalk-fronting

parcel, as its counsel represented to us at oral argument. To

ensure that the agency decisions are consistent with the GSPTA,

we hereby modify the SHC decision to require that the Borough use

the boardwalk-fronting parcel as the site of the museum.

3. Agency Fact Finding

Pursuant to N.J.A.C. 7:36-26.1(d)(1)(iii), DEP and the SHC

may approve a major disposal application that provides a "public

benefit" in the form of an "exceptional recreation and/or

conservation benefit" by: 1) "substantially improving the quantity

and quality of parkland" within the municipality or the parkland's

watershed; 2) "without resulting substantially in any of the

24 A-4585-15T3
adverse consequences listed at N.J.A.C. 7:36-26.1(e)." According

to appellants, DEP and the SHC failed to find that the proposed

disposal would "substantially improve the quality" of parkland,

and failed to find that none of the enumerated adverse consequences

apply.

With respect to the "substantially improve the quality"

requirement, DEP's decision includes factual findings relating to

the value of the compensation package proposed by the Borough.

The decision discussed the history of the Carousel, which traces

back to the 1890s, the Carousel's rarity as one of only four

remaining wooden carousels in New Jersey, its "high artistic

value," and described the Carousel as "one of the largest and

finest carousels ever made." DEP also discussed the Borough's

continued efforts to address "a lot of public concern" caused by

the Carousel's possible destruction and its strong interest in

obtaining and preserving the Carousel. The decision also relied

upon the more recent history of the Carousel, which underwent

extensive restorations spearheaded by a local resident, Dr. Floyd

L. Moreland — after whom the Carousel is now named — in the 1980s

when the Carousel was under a similar threat to be dismantled and

sold. DEP explained that the boardwalk-fronting parcel would

house the Carousel in the future in a showcase of the Borough's

history.

25 A-4585-15T3
 The above facts clearly relate to the "quality" of the

replacement land and Carousel. In comparison, the Seaside Heights

Borough Public Beach is approximately thirty-five acres in size,

and the Borough proposes to dispose of just 1.37 acres by selling

it to a private company that will continue to use the parcel for

recreational purposes available to the public.

The record thus contains sufficient factual support for the

agencies' conclusions that the replacement land and Carousel will

substantially improve the quality of parkland in the Borough. See

Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16

(2006) (stating that a court may not substitute its judgment for

the agency's so long as substantial credible evidence supports the

agency's conclusion) (citing Greenwood v. State Police Training

Ctr., 127 N.J. 500, 513 (1992)).

Next, appellants argue that DEP and the SHC erred by failing

to find that the project will not substantially result in any

adverse consequences, as set forth in N.J.A.C. 7:36-26.1(e). As

previously noted, DEP approved the Borough's project pursuant to

N.J.A.C. 7:36-26.1(d)(1)(iii). Under that regulation, a project

which disposes of parkland will be approved if it provides an

"exceptional recreation and/or conservation benefit" that will

"substantially improv[e] the quantity and quality of parkland . .

. without resulting substantially in any of the adverse

26 A-4585-15T3
consequences listed at N.J.A.C. 7:36-26.1(e)." N.J.A.C. 7:36-

26.1(d)(1)(iii) (emphasis added). This language is not

discretionary. It appears as part of a list that subsection (d)

defines as "minimum substantive criteria" to justify the disposal

of funded or unfunded parkland. N.J.A.C. 7:36-26.1(d). Therefore,

under the plain language of the regulation, DEP and the SHC must

consider whether a proposed disposal will "substantially" result

in any of the adverse consequences listed at subsection (e). Those

adverse consequences include a "significant" adverse impact on the

public's use and enjoyment of "the remainder of the parkland,"

loss of "a central, unique or significant parkland site or

feature[,]" substantial interference with water quality protection

efforts or shoreline protection, or a significant adverse effect

on an endangered species or the habitat of an endangered species.

N.J.A.C. 7:36-26.1(e).

Under other circumstances, we might remand this matter to DEP

for further consideration and findings as to subsection (e).

However, the current record persuades us otherwise. DEP previously

issued a CAFRA permit for the construction, a decision no party

has appealed. Further, on this appeal as before DEP, appellants

have not cited to evidence of any possible adverse consequences

of the type listed in subsection (e). Because the project has

already been built, and there is no evidence in the record that

27 A-4585-15T3
any of the adverse consequences listed in (e) may result, we

conclude that a remand is not warranted.

B. The Public Trust Doctrine

Appellants next contend that DEP and the SHC "had a duty to

review the proposal" under the public trust doctrine. They argue

that the agencies "were required to ascertain whether the public

had the right" under the doctrine to "continue to access and

recreate" on the beach parcel. We conclude that the argument is

without sufficient merit to warrant more than brief discussion.

R. 2:11-3(e)(1)(E).

None of the cases appellants cite are on point here. The

public trust doctrine protects the public's right of access to the

beach for traditional water-related purposes including "bathing,

swimming and other shore activities." See Matthews v. Bay Head

Improvement Ass'n, 95 N.J. 306, 321 (1984). The doctrine therefore

precludes a municipality from discriminating against non-residents

by charging them higher fees to use its beaches. See Borough of

Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308-09

(1972). Likewise, the doctrine precludes a municipality from

transforming its beachfront into a private club for a similar

exclusionary purpose, or allowing a private owner to exclude beach-

goers from the dry upland portion of the beach. See Matthews, 95

28 A-4585-15T3
N.J. at 331-32; Raleigh Ave. Beach Ass'n v. Atlantis Beach Club,

Inc., 185 N.J. 40, 59-60 (2005). None of that is occurring here.

Unlike the private beach clubs found to violate the public

trust doctrine, the newly-built amusement pier is open to the

public. In fact, the CAFRA permit that allowed construction of

the pier requires that it be open to the public. Further, it is

clear from the record that the public will have access to the

strip of dry-sand beach between the pier and the ocean. That

satisfies the requirement that beaches and other land affected

with the public trust be "open to the public at large." See

Matthews, 95 N.J. at 332 (1984); see also Jersey City v. State

Dep't of Envtl. Prot., 227 N.J. Super. 5, 21 (App. Div. 1988).

Unlike Raleigh Avenue Beach, where the town had no publicly-

owned beaches, here the public will continue to have ample beach

access on the Borough's approximately thirty-three remaining acres

of publicly-owned beach. See 185 N.J. at 56. In fact, both the

Borough's DEP application and the testimony at the SHC hearing

indicate that, as a result of a beach replenishment project

conducted by the Army Corp of Engineers, the Borough will have

considerably more than thirty-three acres of public beach.

C. Adequacy of Compensation

Appellants' final argument is that the compensation proposed

by the Borough — the Carousel, the boardwalk-fronting parcel, and

29 A-4585-15T3
the Toms River tract — is inadequate under the applicable statutes

and regulations.

Pursuant to the GSPTA, any disposal of covered parkland must

involve an agreement by the disposing municipality to either pay

a sum to the Garden State Preservation Trust or replace the

disposed lands with "lands of equal or greater fair market value

and of reasonably equivalent size, quality, location, and

usefulness for recreation and conservation purpose[s]." N.J.S.A.

13:8C-32(b)(1).

The DEP regulations set forth several additional requirements

that, according to appellants, the Borough's proposal did not

satisfy. See N.J.A.C. 7:36-26.10(d). First, the replacement land

must satisfy N.J.A.C. 7:36-26.10(d)(7) and Table 1 to N.J.A.C.

7:36-26.10(g), which the parties agree requires a 1:4 ratio of

disposed land to replacement land. It is clear that the

compensation proposed by the Borough satisfies this requirement.

N.J.A.C. 7:36-26.10(d)(7). According to DEP's findings, the

disposal property constitutes 1.37 acres, whereas the total

replacement land constitutes 67.921 acres. That far exceeds the

requisite 1:4 ratio.

Second, the replacement land must have a market value equal

to or greater than the disposed parkland. N.J.A.C. 7:36-

26.10(d)(5). On this record, the fair market value of the

30 A-4585-15T3
replacement lands and Carousel exceeds the fair market value of

the beach parcel. DEP found that the appraised value of the beach

parcel is $4.2 million, and that the appraised value of the

replacement lands and Carousel is between $4.705 million and $4.905

million.

Third, the replacement land must be of "reasonably equivalent

or superior quality" to the disposed parkland, with respect to

"location, accessibility, usefulness for recreation purposes, and

value for ecological, natural resource and conservation purposes."

N.J.A.C. 7:36-26.10(d)(6). There is ample support in the record

for DEP's conclusion that the replacement lands, taken as a whole,

will substantially improve the quality of parkland in the area.7

Appellants argue that, since the Toms River tract is only

useful for conservation purposes, it is not "reasonably

equivalent" to the beach parcel's recreational uses. However, the

regulations do not require the agencies to analyze each individual

component of the replacement package to determine whether each

parcel is independently "reasonably equivalent." Rather, the

regulations refer to the "replacement land" as a whole. See

N.J.A.C. 7:36-26.1; N.J.A.C. 7:36-26.10.

7
The Borough's brief represents – and appellants do not dispute
– that Toms River and the Borough are located in the same
watershed. See N.J.A.C. 7:36-26.10(d)(8); N.J.A.C. 7:36-
26.1(d)(1)(iii).

31 A-4585-15T3
 The record supports the agencies' finding that all three

components of the compensation package — the Carousel, boardwalk-

fronting parcel, and the Toms River tract — are reasonably

equivalent to the beach parcel, when viewed collectively. DEP set

forth sufficient findings that support the recreational and

cultural quality of the Carousel and boardwalk-fronting parcel.

Those two items exceed the fair market value of the beach parcel,

serve the same beach-going population, and provide a recreational

use. See N.J.A.C. 7:36-26.10(d)(6) ("In evaluating the usefulness

of the proposed replacement land, the Department shall pay

particular attention to ensuring that parks that provide services

to significant populations are replaced with recreation areas that

serve the same, if not broader population[.]"). Preserving the

Carousel will provide a valuable recreational and cultural public

benefit to the Borough's residents, the expanded amusement pier

will be available to the public and provide shore access, and the

Borough will lose just 1.37 acres out of a thirty-five acre public

beach. Additionally, there is evidence that the Toms River parcel

can be used for recreation, such as hiking.

Appellants' policy argument - that the value added by the

Carousel pales in comparison to the beach parcel – does not carry

the day here. Those policy judgments are properly within DEP's

and the SHC's discretionary authority. We will not overturn an

32 A-4585-15T3
agency determination because of "doubts as to its wisdom or because

the record may support more than one result." In re N.J. Pinelands

Comm'n Resolution, 356 N.J. Super. 363, 372 (App. Div. 2003).

Likewise, appellants' claim, that the Toms River tract is a less

valuable recreational resource than the beach parcel, is a policy

argument, and we will not second-guess DEP's judgment on that

issue.

Accordingly, we affirm the DEP decision, and we affirm the

SHC decision as modified in this opinion.

III

We next turn to the appeal of the Law Division order. In

A-0557-16, plaintiffs argue that the trial court incorrectly

dismissed their complaint as untimely, by improperly relying on

the rules governing actions in lieu of prerogative writs, and that

the challenged ordinance is illegal and void. We affirm

substantially for the reasons stated by the Law Division judge in

his comprehensive opinion. We add only brief comments.

We agree with the Law Division judge that plaintiffs should

have filed their challenge as an action in lieu of prerogative

writs. See R. 4:69-1. Complaints in lieu of prerogative writs

must be filed within forty-five days of the challenged municipal

action. See R. 4:69-6(a). The forty-five day time limit serves

"the important policy of repose." Reilly v. Brice, 109 N.J. 555,

33 A-4585-15T3
559 (1988). In this case, plaintiffs tried to circumvent the

forty-five day time limit by instead filing a declaratory judgment

complaint. The Law Division correctly rejected that effort.

We affirm the dismissal of the complaint as untimely.

Plaintiffs were well aware of the proposed ordinance, and submitted

public comments opposing it before its adoption. However, they

intentionally waited nearly a year before filing their complaint.

See Southport Dev. Grp., Inc. v. Twp. of Wall, 310 N.J. Super.

548, 556 (App. Div. 1998) (If a party "sat idly by in the past,

its entitlement to enlargement of the time limit is weakened.").

We agree with the trial court that the forty-five day time limit,

set forth in Rule 4:69-6(a), began to run when the ordinance was

published, not when DEP and the SHC issued their decisions. See

Adams v. Delmonte, 309 N.J. Super. 572, 578-79 (App. Div. 1998).

Plaintiffs' argument to the contrary is without merit. R. 2:11-

3(e)(1)(E).

In the circumstances of this case, the public interest does

not warrant extending the deadline, where the parties had an

opportunity to challenge the underlying transaction before DEP and

the SHC. See R. 4:69-6(c) (permitting enlargement of the time in

the interest of justice). In fact, as noted earlier in this

opinion, Melvin is also a party to the DEP and SHC appeals.

Plaintiffs' further arguments concerning the timeliness of their

34 A-4585-15T3
complaint are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

However, we also agree with the trial judge that the statutory

issue, which plaintiffs sought to raise in this action, is without

merit. The statute on which plaintiffs rely, N.J.S.A. 40A:12-16,

permits a municipality to exchange one parcel of parkland for

another. Both the boardwalk-fronting parcel in the Borough and

the sixty-seven acres outside Toms River will be used as

"parkland," as defined in DEP's Green Acres regulations, and will

remain subject to Green Acres restrictions. See N.J.A.C. 7:36-

2.1; N.J.A.C. 7:36-26.10(m). Likewise, plaintiffs' arguments

premised on the public trust doctrine are without merit, for the

reasons stated earlier in this opinion.

Affirmed.

35 A-4585-15T3