37 Acres of Pub. Beach Steven Melvin & Bob Moss v. Seaside Heights Borough & Afmv, Inc. (In re N.J. Dep't of Envtl. Prot. ex rel. Borough of Seaside Heights)

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, Plaintiffs-Appellants, v. SEASIDE HEIGHTS BOROUGH and AFMV, INC., Defendants-Respondents.

DOCKET NO. A-4585-15T3

DOCKET NO. A-5372-15T3

DOCKET NO. A-0557-16T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically March 14, 2018

July 30, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

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).

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 theseappeals, 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 oneminor 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,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 "goldenage 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 byconveying 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'seconomy, 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...