SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3518-19

DANIEL GREENHOUSE,

Plaintiff-Appellant,

v.

TOWNSHIP OF MONTGOMERY,

Defendant-Respondent.

_____________________________

Argued June 30, 2021 – Decided September 9, 2022

Before Judges Accurso and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Docket No. L-0424-19.

Bruce I. Afran argued the cause for appellant.

Anthony R. Todaro argued the cause for respondent 

(Mason, Griffin & Pierson, PC, attorneys; Anthony R. 

Todaro, on the brief).

The opinion of the court was delivered by 

DeALMEIDA, J.A.D.

NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff Daniel Greenhouse appeals from the March 31, 2020 order of the 

Law Division dismissing his complaint in lieu of prerogative writs challenging 

a resolution by the governing body of defendant Township of Montgomery

approving the renewal of a lease of property the township purchased with State 

Green Acres funds to a private party for operation of his commercial farming 

enterprise. We vacate the March 31, 2020 order and remand for further 

proceedings.

I.

Greenhouse owns a parcel in the township on which he resides. His land 

abuts adjoining parcels designated in the tax records of the municipality as 

Block 29001, Lots 5 and 5.01 (the property). The property is 17.87 undeveloped 

acres with eight tillable acres on Lot 5. While there is a driveway, parking area, 

and access to a public trail network on Lot 5.01, it is undisputed that there are 

no delineated public access points, signs, or trails on Lot 5.

The township purchased the property, along with a number of other 

parcels, with State Green Acres funds in 1997. The purchase is subject to the 

March 17, 1997 Green Trust Project Agreement between the State, by the 

Department of Environmental Protection (DEP), and the township. The 

agreement provides that in exchange for State funding to finance the purchase, 
3

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the township will hold and use the property in accordance with N.J.A.C. 7:36-

1, et seq., and the provisions of the agreement. The regulations noted in the 

agreement were promulgated by DEP to, among other things, "implement the 

purposes and objectives of the Green Acres laws in order to help ensure that 

there is access to and an adequate supply of lands for either public outdoor 

recreation or conservation of natural resources, or both." N.J.A.C. 7:36-1.1 

(a)(1).1

According to the agreement, the property 

shall not be . . . diverted to a use for other than 

recreation and conservation purposes without the 

approval of the [DEP] Commissioner and the State 

House Commission and following a public hearing at 

least one month prior to any such approvals.

The agreement 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, ecological 

and biological study, and similar uses for either public 

outdoor recreation or conservation of natural resources, 

or both.

1

 The agreement is part of the Millstone Stream Corridor 2 cooperative project 

with neighboring Rocky Hill Borough, Delaware & Raritan Greenway, Inc., 

Somerset County, and the State. In addition to the Montgomery Township 

parcels, the project includes several parcels in Rocky Hill purchased by that 

municipality with State funds. The parcels are in close proximity to each other 

and to the D&R Canal State Park, the Millstone River State Park, and 

environmentally sensitive areas.
4

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The provisions of the agreement regarding the permitted uses of the property 

and its diversion to a non-permitted use reflect the limitations set forth in 

N.J.S.A. 13:8A-3(c) and N.J.S.A. 13:8A-13, provisions of the New Jersey Green 

Acres Land Acquisition Act of 1961, N.J.S.A. 13:8A-1 to -18.

Schedule C of the agreement provides that "[a]ctive recreation facilities 

will be sited within the approved areas delineated on the Exhibit 2 map." The 

property is delineated as Active Area D on the Exhibit 2 map. Schedule C 

further provides that the

[p]roposed use of the county and municipal parkland2

is for shared active recreation facilities with Rocky Hill 

Borough, managed grassland bird habitat, protection of 

environmentally sensitive areas, and trails in the 

wooded stream areas. . . . . Existing agricultural fields 

in the active recreation areas will be maintained as open 

fields, including agricultural uses, until such time as 

they are developed for recreation facilities. Existing 

agricultural fields in the preservation areas may be 

maintained in agricultural use for three years in order 

to avoid payment of roll[-]back taxes.

2

 "'Parkland' means land acquired, developed, and/or used for recreation and 

conservation purposes, and includes funded and unfunded parkland." N.J.A.C. 

7:36-2.1. "'Funded parkland' means parkland that a local government unit . . . 

has acquired . . . with Green Acres funding." Ibid. The property is funded 

parkland.
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A September 25, 1997 deed memorializes the township's purchase of a 

partial interest in the property. The copy of the deed in the record is incomplete. 

The first page is cut off mid-sentence and the second page begins in the middle 

of a different sentence. The deed states that "[t]he said property shall hereafter 

be used only for State or municipal park purposes." The portions of the deed in 

the record do not mention the March 1997 agreement or its terms. 3

On January 9, 2014, the township leased the property to John A. Johnson, 

d/b/a 26 Dead Tree Run Road, LLC. The lease allows Johnson to farm the eight 

tillable acres and any appurtenant areas through the planting and harvesting of 

crops for the 2014 through 2018 growing seasons for an annual rent of $124.08

and gives Johnson the right to sell for his profit any crops harvested on the 

property. Paragraph 5(l) of the lease provides that

[t]he [property] shall be kept accessible to the public at 

all times and [Johnson] shall not establish barriers of 

any type on or about the [property], except that the 

public shall not be permitted access to those areas 

actively farmed. If the [property] has an existing, 

marked pathway for public use, said pathway shall 

remain open and accessible to the public. If the 

[property] does not have an existing marked pathway, 

3

 Plaintiff alleges the township also purchased an interest in the property by 

deed dated September 11, 1996, which predates the State funding agreement. A 

copy of the September 11, 1996 deed is not in the record. Presumably, the 

combined interests transferred in the 1996 and 1997 deeds give the township full 

ownership of the property.
6

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[Johnson] shall leave an eight (8) foot wide strip for 

purposes of public access, as directed in the attached 

Exhibit A describing the [property]. [Johnson] shall 

not allow the public to enter the [property] to harvest or 

"pick your own."

The lease, which was renewable for an additional five-year term, states 

that it was submitted to the DEP Green Acres Program for review and approval 

pursuant to N.J.A.C. 7:36-25.13, was awarded pursuant to the public bidding 

laws, N.J.S.A. 40A:12-14, and authorized by resolution of the township's 

governing body on January 6, 2014. It is undisputed that there was no existing, 

marked pathway on the property when it was leased to Johnson and that he never 

subsequently created or maintained an eight-foot-wide strip for public access.

In August 2018, as the end of the five-year term was approaching, a 

township official sent an email to a DEP employee informing her of the 

township's intent to renew the lease, along with similar leases relating to other 

properties owned by the township. She stated, "the leases include a provision 

that they may be renewed for up to an additional five years. Does your office 

need to review the proposal for renewal?" A copy of the lease was attached.

The DEP employee responded by email, stating in relevant part:

The 2014 farm leases were approved by our office, 

however, since this time we have a Regulatory Officer 

on staff that is trying to make our lease reviews 

consistent. Therefore, I will have him take a look at the 
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language to make sure there are no changes or 

additional info needed for the 5 year renewal. . . . Will 

a new document be generated or will it just be the 

farmer notifying the Township that they want to extend 

for another 5 years?

I will get this reviewed and will be back in touch next 

week.

The township official responded that the lease would be extended by a 

"short agreement that would extend the term. Does [DEP] need to review that 

agreement language?"

On September 14, 2018, the DEP employee replied in relevant part:

As long as the agreement language is based off the 

original 2014 form and just revises the term, we should 

not need to review the extension agreement. I did want 

to point out that the below items should be added to the 

next form lease:

1. Please include a provision that states that all 

rental payments received by the Township shall be used 

for "operating, maintenance or capital expenses related 

to its funded parkland or its recreation program as a 

whole."

2. All leases are required to provide "reasonable 

public access." Paragraph 5(l) addresses public access 

in a manner that is likely sufficient. However, to ensure 

compliance, we suggest adding a requirement that the 

farmer maintain the public access trail, where 

applicable. Signage advising the public of its access 

rights would also be beneficial.
8

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3. Please revise the lease to provide that any 

modifications must be approved by DEP.

There is no further communication in the record from DEP regarding review of 

the lease or the renewal. There is, therefore, nothing in the record indicating 

that the lease or renewal agreement was forwarded to the Regulatory Officer for 

review or approval or, if so, whether the officer approved the documents.

On March 21, 2019, the township, without requesting bids, executed a 

five-year extension of the lease. The renewal agreement does not contain any 

of the necessary or recommended items listed by the DEP official in the 

September 14, 2018 email. The lease renewal was approved by the township's 

governing body through its adoption of Resolution #19-3-83 (Resolution) on 

March 7, 2019.4

On April 1, 2019, Greenhouse filed a complaint in lieu of prerogative writs

in the Law Division challenging the Resolution. He alleged the Resolution: (1) 

4

 It is undisputed Johnson was a member of the township's Agricultural 

Advisory Committee when the lease was renewed. The committee advises the 

mayor and governing body on agricultural matters. Montgomery, N.J. Code §2-

28.5. Plaintiff produced evidence that the township's Planning Director 

recommended the lease not be renewed and the property be converted to a 

managed meadow or pollinator meadow. The governing body, however, 

adopted the preference of the township's Open Space Committee that the 

property remain a commercial farming operation. The Open Space Committee 

advises the mayor and governing body on open space, stream corridor, and 

farmland preservation programs. Montgomery, N.J. Code §2-17.6.
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violates the deed restriction on the property; (2) violates the agreement; (3) is 

an unlawful diversion of Green Acres property to a private commercial use; (4) 

violates the State Constitution's limitations on expenditures for the purchase of 

land with State funds for specific purposes, see N.J. Const. art. VIII, § 2, ¶ 7; 

(5) was the result of an unauthorized delegation of decision-making authority 

by the township's governing body to the Open Space Committee; (6) is contrary 

to township land use ordinances; (7) is arbitrary and capricious; and (8) violates 

the Donations Clause of the State Constitution, see N.J. Const. art. VIII, § 3, ¶ 

3.

On October 11, 2019, the trial court entered an order denying plaintiff's 

motion for partial summary judgment and granting the township's cross-motion 

for partial summary judgment. In a written opinion, the court found the 

township exercised its authority to renew the lease pursuant to N.J.S.A. 40A:12-

14, which allows it to lease real property "not needed for public use as set forth 

in the resolution . . . authorizing the lease." The court found, however, that 

because the Resolution did not make an explicit finding that the property was 

not needed for public use, it would be "prudent" to remand the matter to the 

township's governing body "to clarify its findings and intentions . . . ." On
10 A-3518-19

remand, the governing body adopted a resolution finding that when it renewed 

the lease, the property was not needed for public use.

On March 31, 2020, the trial court, after having tried the matter on the 

papers, entered judgment in favor of the township on the remaining claims and 

dismissed the complaint with prejudice. In a written opinion, the court found:

(1) DEP approved the lease renewal in the email exchange detailed above; (2) 

the renewal was not a diversion of the property because N.J.A.C. 7:36-

25.13(b)(10) permits land purchased with Green Acre funds to be used for 

agricultural purposes if public access is protected and the use is approved by 

DEP; (3) the renewal does not violate the agreement; (4) a "short term lease of 

the property for agricultural purposes" until the township converts it to a park is 

consistent with the deed restriction; (5) the provision of the agreement 

concerning roll-back taxes does not limit the use of the property for agricultural 

purposes to three years; and (6) the renewal did not violate the Donations Clause

because it furthered a public purpose by conserving the property for future use 

as a park.

5

5

 The trial court mischaracterized the complaint as plaintiff's "effort to 

invalidate [the] Resolution . . . so that he may personally enjoy the [property] as 

an 18.22[-]acre extension of his backyard at the taxpayer's (sic) expense." The 

township parroted this language in its brief. This description of the complaint 
11 A-3518-19

This appeal follows. Plaintiff argues the trial court made factual and legal 

errors with respect to the conclusions described above.6

II.

"[W]hen reviewing the decision of a trial court that has reviewed 

municipal action, we are bound by the same standards as was the trial court." 

Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 

(App. Div. 2004). "Thus, while will we give substantial deference to findings 

of fact, it is essential that the [municipal body's] actions be grounded in evidence 

in the record." Ibid. The trial court's findings of fact after a bench trial will be 

upheld if supported by competent, relevant, and reasonably credible evidence. 

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). In addition, 

although "public bodies . . . must be allowed wide latitude in their delegated 

is both pejorative and inaccurate. Plaintiff does not allege he has a possessory 

right to the property. To the contrary, he argues the public has a right of access 

to the property which has been blocked by the township. He also alleges the 

township has, contrary to law, allowed a private party with connections to 

municipal government to enjoy a personal economic gain from his commercial 

exploitation of Green Acres property at taxpayers' expense.

6

 The trial court opinion addressed several other arguments, which plaintiff does 

not raise in this court. We deem arguments with respect to those claims waived. 

"[A]n issue not briefed is deemed waived." Pressler & Verniero, Current N.J. 

Court Rules, cmt. 5 on R. 2:6-2 (2022); Telebright Corp. v. Dir., N.J. Div. of 

Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a claim waived when 

the party failed to include arguments supporting the claim in its brief).
12 A-3518-19

discretion," Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005), we 

review questions of law de novo. Dunbar Homes, Inc. v. Zoning Bd. of 

Adjustment, 233 N.J. 546, 559 (2018).

We begin with the legal question of whether leasing the property for 

commercial farming is a diversion of funded parkland. N.J.S.A. 13:8A-13, 

N.J.A.C. 7:36-25.2(a), and the agreement prohibit the diversion of the property 

to a use other than for recreation and conservation purposes without the approval 

of the DEP Commissioner and the State House Commission.

N.J.A.C. 7:36-25.2(c) sets forth a detailed list of uses DEP considers to 

be a diversion of funded parkland. That list does not include agricultural uses. 

N.J.A.C. 7:36-25.2(d) sets forth a detailed list of uses DEP considered not to be 

a diversion of funded parkland. That list does also does not expressly include 

agricultural uses. However, according to N.J.A.C. 7:36-25.2(d)(8),

[t]he following activities do not constitute a diversion 

. . . of funded . . . parkland:

. . . .

Any lease . . . or renewal thereof, which supports or 

promotes the use of parkland for recreation and 

conservation purposes, has a term of less than 25 years 

and is approved by [DEP] under N.J.A.C. 7:36-25.13 

. . . . 
13 A-3518-19

Section (b)(10) of N.J.A.C. 7:36-25.13 states that "[i]f the parkland is to 

be leased . . . for agriculture" certain factors must be considered by DEP when 

considering approval of the lease. It is evident from this regulation that DEP 

does not consider agricultural use pursuant to a lease to be a diversion of funded 

parkland, provided the use supports or promotes recreation and conservation 

purposes and meets regulatory requirements. The purchase agreement reflects 

this interpretation of the statute, as it provides that "[e]xisting agricultural fields 

in the active recreation areas will be maintained as open fields, including 

agricultural uses until such time as they are developed for recreation facilities." 

The property, in Active Area D, is subject to this provision of the agreement.

Plaintiff argues that N.J.A.C. 7:36-25.13(b)(10), by permitting the leasing 

of funded parkland for commercial agricultural activities, contradicts the 

constitutional and statutory prohibitions on the diversion of funded parkland 

because such activities exclude public access and do not support or promote 

recreation and conservation purposes. The trial court rejected plaintiff's 

position, concluding that

[b]y allowing and promoting agriculture on [funded 

parkland], governmental entities are thereby 

encouraged to purchase open lands for preservation 

even though they may not presently have the funds to 

develop or maintain them for recreational use. The 

governmental entity can maintain and monitor the land 
14 A-3518-19

by leasing acreages to farmers who can (1) beneficially 

use the property; (2) . . . use the property in a manner 

that prevents it from being overgrown or used for illegal 

or deleterious uses such as dumping; (3) conserve and 

steward the property for future recreational use; and (4) 

permit the property to be held as public lands that are 

protected from development and as opposed to allowing 

the property to remain in private hands and be subject 

to residential, commercial or industrial development in 

a manner that would thwart or undermine the local 

Open Space Master Plan.

Plaintiff argues that the trial court erred because the constitutional and 

statutory limitations on the use of funded parkland require public access and no 

published precedent has recognized that commercial agriculture use supports or 

promotes recreation and conservation purposes. Plaintiff argues that the trial 

court's finding that DEP's interpretation of the law is reasonable because it 

allows a municipality to purchase and "bank" property for future use as a park 

is inapposite here. He notes that at the time the lease was renewed, commercial 

farming activity on the property had excluded the public for more than twenty 

years, during which the township had not created a plan for future use of the 

property for recreation and conservation purposes. According to plaintiff, the 

Legislature did not intend for Green Acres funds to be used to buy land to 

subsidize decades of commercial farming at taxpayers' expense.
15 A-3518-19

The township argues that DEP considers commercial agricultural use of 

the property to support or promote recreation and conservation purposes, but 

does not explain why this interpretation is consistent with the constitution and 

Green Acres statutes.

While the trial court's reasoning on this point has surface appeal, provided 

meaningful public access is maintained on funded parkland used for commercial 

agricultural purposes and there is a meaningful plan ultimately to use the 

property for recreation and conservation purposes, we are hesitant to decide the 

important question of statutory interpretation before us without the benefit of 

DEP's views. The "meaning ascribed to" the Green Acres statutes by DEP, 

"including the agency's contemporaneous construction, long usage, and practical 

interpretation, is persuasive evidence of the Legislature's understanding of its 

enactment." Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 212 (1991). Unlike 

in Cedar Cove, where DEP intervened in a matter concerning the meaning of the 

1975 Green Acres Act, id. at 206, DEP did not appear in the trial court and has 

not submitted a brief in this appeal. The trial court's decision is based on policy 

considerations on which DEP has not expressed its view. In particular, the 

record does not contain evidence of the agency's longstanding practices and 

whether DEP interprets the constitution and statutes to permit the indefinite –
16 A-3518-19

here decades long – commercial agricultural use of funded parkland to which 

the public has no access and for which no realistic plan for future use for 

recreation and conservation purposes appears to exist.

As explained in detail below, we conclude that a remand is warranted to 

create a sufficient record to determine whether, if leasing the property for 

commercial agricultural use is not a diversion, DEP reviewed the lease renewal 

and, if so, whether its review comported with the agency's regulations. To 

accomplish this objective, we direct the trial court to join DEP as a necessary 

party. See R. 4:28-1(a). DEP's involvement in the trial court on remand on 

these issues will give the agency the opportunity to state its views with respect 

to whether, and under what circumstances, leasing funded parkland for 

commercial agricultural use supports or promotes recreation and conservation 

purposes and is, therefore, not a diversion of Green Acres property. The trial 

court shall determine whether, in light of DEP's views, it is necessary to 

reconsider its legal conclusions with respect to whether the lease renewal was a 

diversion of the property.7

7

 For the same reasons, we do not decide whether renewal of the lease violated 

the deed restriction. The parties appear to agree that the restriction was placed 

in the deed to effectuate the March 1997 agreement, to which DEP was a party. 

Given the agency's contractual interest and statutory responsibilities to ensure 
17 A-3518-19

Assuming that renewal of the lease was not a diversion of the property, 

we turn to whether the trial court erred when it concluded that DEP approved 

the renewal in accordance with controlling regulations. Pursuant to N.J.A.C. 

7:36-25.13(a), if a municipality

seeks to . . . renew a lease . . . which would support or 

promote the use of funded parkland . . . for recreation 

and conservation purposes, [it] shall submit the 

proposed lease . . . to [DEP] for approval at least 45 

days before it intends to execute the lease . . . . Any 

such lease . . . that is executed without [DEP's] approval 

is void and of no legal effect.

In addition to several other requirements, "[t]he lease . . . shall . . . [r]equire that 

the public shall have reasonable access during the term of the lease . . . to the 

parkland . . . which is the subject of the lease . . . ." N.J.A.C. 7:36-25.13(b)(3). 

In addition, the lease "shall . . . [r]equire that the lessee . . . comply with . . . any 

deed restrictions pertaining to the parkland." N.J.A.C. 7:36-25.13(b)(7).

DEP "shall evaluate a request for renewal of a lease . . . under the 

substantive standards for lease approval at (d) below." N.J.A.C. 7:36-

25.13(b)(5). Subsection (d) provides, in relevant part, that the following factors 

"will" be considered by DEP when reviewing a lease renewal:

that properties purchased with Green Acres funds are appropriately used, its 

views on the meaning of the deed restriction and whether the lease renewal 

violates its terms should be considered by the trial court.
18 A-3518-19

2. Whether the lease . . . will sufficiently promote 

or support recreation or conservation purposes;

3. Whether the lease . . . will provide reasonable 

public access to the funded parkland;

. . . .

5. Whether the lease . . . will provide sufficient 

compensation (payment, rental or other consideration) 

for allowing the proposed use of the parkland . . . .;

. . . .

8. With respect to renewals . . . 

i. Whether the lessee . . . failed to meet one 

or more terms of the prior lease . . . or to demonstrate 

sound . . . management practices;

. . . .

iii. Whether the local government unit . . . used 

compensation (payments, rentals or other 

consideration) it received under the prior lease . . . for 

purposes other than those allowed under (e) below.

(e) A local government unit . . . that enters into a 

lease . . . under this section shall use any payments, 

rentals, or other consideration it receives under the 

lease . . . for operating, maintenance, or capital 

expenses related to its funded parkland or to its 

recreation program as a whole.

[N.J.A.C. 7:36-25.13(d) and (e).]
19 A-3518-19

We have carefully reviewed the record and conclude it contains 

insufficient evidence to support the trial court's finding that DEP approved the 

renewal of the lease of the property in accordance with the controlling 

regulations.

As a threshold matter it is not clear DEP even reviewed the renewal

agreement. According to N.J.A.C. 7:36-1.5, "[u]nless otherwise specified, . . . 

all submissions required under this chapter should be directed to the Green Acres 

Program, [DEP], PO Box 412, 501 East State Street, Trenton, New Jersey 

08625-0412." There is no evidence in the record that the township submitted 

the lease renewal to DEP at this address. The only evidence in the record of the 

township contacting DEP about the renewal are email exchanges between a 

township official and a DEP employee which are ambiguous with respect to 

whether the lease and the renewal agreement were reviewed and approved by 

the agency.

In the September 4, 2018 email, the DEP employee states that "[a]s long 

as the [renewal] agreement language is based off the original 2014 form and just 

revises the term, we should not need to review the extension agreement." 

Presumably "the original 2014 form" refers to the original lease. There is, 

however, no subsequent communication from DEP stating that someone at the 
20 A-3518-19

agency determined whether or not the provisions of the renewal agreement were 

"based off" the original lease. Thus, there is no evidence in the record of 

whether, in the employee's view, the extension agreement needed to be, and, if 

so, was, reviewed by the agency.

In addition, the substance of the September 4, 2018 email is incorrect. 

N.J.A.C. 7:36-25.13(b)(5) directs that DEP "shall evaluate a request for renewal 

of a lease . . . under the substantive standards for lease approval under (d) below 

. . . ." (emphasis added). This regulation imposes an affirmative duty on DEP 

to review lease renewal requests, even those with terms identical to a previously 

approved lease, under the standards set forth in N.J.A.C. 7:36-25.13(d). Such a 

review is necessary, in part, because the agency must determine if the lessee 

"failed to meet one or more terms of the prior lease . . . or to demonstrate sound 

administrative or management practices . . . ." N.J.A.C. 7:36-25.13(d)(8)(i). 

This determination cannot be made merely by comparing the terms of the 

original lease to the renewal agreement. Thus, the lease renewal would be 

invalid if the record establishes that DEP did not review the renewal agreement 

because it contained the same terms as the original lease.

Even if we were to assume that a review of the lease renewal took place, 

there is insufficient evidence in the record to determine whether the review 
21 A-3518-19

comported with DEP's regulations. As noted above, DEP was obligated to 

review whether Johnson failed to meet any of the terms of the 2014 lease. This 

inquiry was important here, given that it is undisputed that Johnson did not 

create or maintain an eight-foot corridor for public access on the property.

In addition, N.J.A.C. 7:36-25.13(b)(3) requires that a lease of funded 

parkland provide the public reasonable access during the term of the lease. 

N.J.A.C. 7:36-25.13(d)(3) requires DEP to determine whether a lease renewal 

complies with the reasonable public access regulation. In the September 14, 

2018 email, the DEP employee stated that the public access provision of the 

2014 lease was "likely sufficient," but that "to ensure compliance," the agency 

suggested "adding a requirement that the farmer maintain the public access trail, 

where applicable." In addition, the employee stated that "[s]ignage advising the 

public of its access rights would also be beneficial."

There is nothing in the record establishing that DEP determined that the 

public access provision of the lease renewal actually was sufficient. Nor does 

it appear that the agency followed up on the other items mentioned in the email, 

as the renewal agreement does not require Johnson to put up signage and it is 

undisputed he has never created or maintained a trail for public access on the 

property.
22 A-3518-19

In addition, there is no evidence in the record that DEP analyzed whether 

"the lease . . . will provide sufficient compensation (payment, rental or other 

consideration) for allowing the proposed use of the parkland . . . ." N.J.A.C. 

7:36-25.13(d)(5). This too is a critical inquiry, given plaintiff's allegation that 

the lease renewal amounts to a donation of public property to Johnson in 

violation of the Donations Clause. It is undisputed that the township leased the 

property to Johnson for approximately thirty cents a day for his commercial 

activity while it charges a minimum of $50 a day to members of the public who 

wish to use a municipal park for some forms of recreation. Montgomery, N.J. 

Code §9-7.

Similarly, N.J.A.C. 7:36-25.13(d)(8)(iii) requires DEP, before approving 

a lease renewal, to determine whether the municipality "used compensation 

(payments, rentals or other consideration) it received under the prior lease . . . 

for purposes other than those allowed under" N.J.A.C. 7:36-25.13(e). That 

regulation requires all such income from a lease of funded parkland be used by 

the municipality "for operating, maintenance, or capital expenses related to its 

funded parkland or to its recreation program as a whole." N.J.A.C. 7:36-

25.13(e). Although the DEP employee noted that the 2014 lease did not contain 

a provision memorializing the municipality's obligations under N.J.A.C. 7:36-
23 A-3518-19

25.13(e), and requesting that such a provision be included in "the next form 

lease," it is clear that the lease renewal does not contain a provision to that effect. 

Nor does the record contain any evidence suggesting DEP determined that the 

municipality complied with this financial restriction during the term of the 

original lease.

We are reluctant to invalidate DEP's approval of the lease renewal without 

having given the agency an opportunity to create a record with respect to 

whether the lease renewal was reviewed and, if so, what that review entailed. 

We consider DEP to be a necessary and indispensable party within the meaning 

of R. 4:28-1(a), given that a decision in its absence with respect to the existence 

and validity of its approval of the lease renewal may impede its ability to protect 

its interest and leave the agency at substantial risk of inconsistent obligations. 

We, therefore, vacate the March 31, 2020 order and remand with the direction 

that DEP be joined as party for the purpose of creating an evidentiary record 

regarding the agency's review of the lease renewal agreement for the property.

In light of the remand and the unresolved nature of the validity of the lease 

renewal, to avoid an unnecessary constitutional adjudication, we refrain from 

deciding whether the trial court correctly concluded that the renewal, if properly 

approved by DEP, did not violate the Donations Clause. See In re Wheeler, 433 
24 A-3518-19

N.J. Super. 560, 596 (App. Div. 2013) ("the principle of 'constitutional 

avoidance' favors leaving constitutional issues that need not be decided for 

another day.").8

The March 31, 2020 order is vacated and the matter is remanded to the 

trial court for further proceedings consistent with this opinion. We do not retain 

jurisdiction.

8

 We agree, albeit for different reasons, with the trial court's conclusion that the 

provision of the agreement regarding roll-back taxes is not an impediment to 

renewing the lease. Roll-back taxes are assessed "[w]hen land which is in 

agricultural or horticultural use and is being valued, assessed and taxed [as 

farmland], is applied to a use other than agricultural or horticultural . . . ." 

N.J.S.A. 54:4-23.8. The tax applies to the two tax years immediately preceding 

the tax year in which the use of the property changed. Ibid. Pursuant to a 1999 

amendment to the statute, "land which is valued, assessed and taxed [as 

farmland] and is acquired by . . . a local government unit . . . for recreation and 

conservation purposes shall not be subject to roll-back taxes." Ibid.; see also L.

1999, c. 152, §57. A "local government unit" under the statute means the same 

as that term is defined in N.J.S.A. 13:8C-3. Ibid. N.J.S.A. 13:8C-3 defines 

"local government unit" to include a municipality. The assessment of roll-back 

taxes on the property, therefore, would not be authorized based on change in the 

agricultural use of the property. The relevant provision of the contract, which 

is intended to avoid the imposition of roll-back taxes based on a change in use 

from agricultural, is, therefore, superfluous.