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The Right to Farm Act and Resolving Agriculture- Related Disputes in New Jersey State Agriculture Development Committee (SADC) Gloucester County Bar Association.

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Presentation on theme: "The Right to Farm Act and Resolving Agriculture- Related Disputes in New Jersey State Agriculture Development Committee (SADC) Gloucester County Bar Association."— Presentation transcript:

1 The Right to Farm Act and Resolving Agriculture- Related Disputes in New Jersey State Agriculture Development Committee (SADC) Gloucester County Bar Association CLE Seminar March 10, 2011

2 Right to Farm Protections: The 1983 Act Permitted Activities (N.J.S.A. 4:1C-9):   Produce agricultural and horticultural crops, trees and forest products, livestock, and poultry and other commodities with SIC classifications for agriculture, forestry, fishing and trapping   Process and package agricultural output of farm   Provide for the wholesale and retail marketing of the agricultural output of the commercial farm, and related products that contribute to farm income, including the construction of building and parking areas in conformance with municipal standards   Replenish soil nutrients   Control pests, predators and diseases of plants and animals   Clear woodlands using open burning and other techniques, install and maintain vegetative and terrain alterations and other physical facilities for water and soil conservation and surface water control in wetland areas   Conduct on-site disposal of organic agricultural wastes

3 Rebuttable presumption that commercial farm operation does not constitute a public or private nuisance, provided the farming activities conform to agricultural management practices (AMPs) recommended by the SADC, comply with state and federal laws, and do not pose a direct threat to public health and safety (NJSA 4:1C-10) Right to Farm Protections: The 1983 Act (continued)

4 Right to Farm Protections: The 1998 Act (Major amendments to 1983 Act in bold) Legislative response to Villari v. Zoning Board of Adjustment, 277 N.J.Super. 130, (App.Div.1994) Permitted activities (NJSA 4:1C-9):   Produce agricultural and horticultural crops, trees and forest products, livestock, and poultry and other commodities with SIC classifications for agriculture, forestry, fishing and trapping   Process and package agricultural output of farm   Provide for the operation of a farm market, including the construction of building and parking areas in conformance with municipal standards   Replenish soil nutrients and improve soil tilth   Control pests, predators and diseases of plants and animals   Clear woodlands using open burning and other techniques, install and maintain vegetative and terrain alterations and other physical facilities for water and soil conservation and surface water control in wetland areas

5 Right to Farm Protections: The 1998 Act (Major amendments to 1983 Act in bold) (continued)   Conduct on-site disposal of organic agricultural wastes   Conduct agriculture-related educational and farm based recreational activities provided that the activities are related to marketing the agricultural or horticultural output of the commercial farm   Engage is any other agricultural activity as determined by the SADC and adopted through rulemaking Preemption and presumptions: Municipal and county ordinances, resolutions or regulations are preempted (NJSA 4:1C-9) Irrebuttable presumption that commercial farm operation does not constitute a public or private nuisance, provided the farming activities conform to agricultural management practices recommended by the SADC, or whose specific operation or practice has been determined by the CADB to constitute a generally accepted agricultural operation or practice, comply with state and federal laws, and do not pose a direct threat to public health and safety (NJSA 4:1C-10)

6 Right to Farm Protections: The 2009 Amendments   Recognizes energy generated from solar, wind and biomass facilities as a permitted agricultural activity if conducted in accordance with an AMP   SADC has not yet promulgated an AMP for such facilities

7 Activities Not Protected  Landscaping business and activities  Processing agricultural products not grown on the farm  Example: processing firewood from trees grown on someone else’s property  Agricultural labor housing  In re Wilkin, 2006 WL (App.Div. 2006)  Notes  Few RTF matters are ever clear-cut  If an activity is not eligible for RTF protection, it doesn’t mean that a farmer can’t do the activity – it just means RTF can’t preempt local regulations or provide protection for the activity from nuisance suits

8 Criteria To Receive Protections  Is it a “commercial farm?”  Is area in which farm is located zoned for agriculture as of December 31, 1997 or thereafter, or was farm in operation as of July 2, 1998?  Is operation consistent with “generally accepted agricultural management practices”, or a site-specific AMP (SSAMP), or AMPs adopted through rulemaking by the SADC?  Is operation in violation of any federal or State laws or regulations? (Examples of state laws: DEP regulated wetlands; Stormwater regulations; health codes; UCC)  Does operation pose a direct threat to public health & safety?  All of the above criteria are determined by the CADB at the right-to-farm hearing

9  Farm management unit – a parcel or parcels of land, contiguous or noncontiguous, comprising a single enterprise If greater than 5 acres:  produce agricultural or horticultural products worth $2,500 or more annually  satisfy eligibility requirements of Farmland Assessment Act If less than 5 acres:  produce agricultural or horticultural products worth $50,000 or more annually  satisfy eligibility requirements of Farmland Assessment Act (other than size requirement) Definition of Commercial Farm

10 Right to Farm Procedures  Site-Specific AMP Request  Application is made by farmer to CADB; if no CADB exists, application is made to SADC  Conflict Resolution  Complaint against a farmer is filed with CADB by municipality (zoning or other ordinances) or neighbor (nuisance)

11 Site-specific Agricultural Management Practice (SSAMP) (NJAC 2:76-2.3) Preliminary Farmer-initiated CADB proceeding (if no CADB exists, then farmer applies to the SADC for the SSAMP) Existing or proposed agricultural activities particular to farm’s operation Existing or proposed agricultural activities must be one or more those permitted in NJSA 4:1C-9 CADBs have appropriate application forms Procedural CADB determines whether farm is a “commercial farm”; if not a “commercial farm”, SSAMP application must be dismissed CADB advises SADC, municipality in which farm is located, and surrounding property owners of the SSAMP application CADB can consult federal, state and county agricultural entities CADB should conduct site visit, solicit municipal feedback and hold a public hearing CADB issues, if granted, a written SSAMP to farmer, SADC, and other appropriate individuals CADB can, if necessary, condition SSAMP approval on compliance with federal or state law and no threat to public health and safety

12 Site-specific Agricultural Management Practice (SSAMP) (NJAC 2:76-2.3) (continued) Appeal To the SADC within 45 days of receipt of SSAMP approval; if no appeal, CADB decision is binding If appeal is timely made to the SADC, agency forwards the appeal to the Office of Administrative Law (OAL) as a contested case (NJSA 4:1C-10.2) OAL issues Initial Decision Final Decision by SADC affirms, modifies or rejects Initial Decision SADC Final Decision is final administrative action appealable to the Appellate Division in accordance with NJ Court Rules If no CADB? SSAMP application is filed directly with SADC SADC follows same procedures as above, except SADC’s SSAMP decision is final administrative action appealable to the Appellate Division

13 Conflict Resolution Municipal zoning and neighborhood disputes (NJSA 4:1C-10.1; NJAC 2: ) Formal ‘conflict resolution process’ begins after a complaint is filed by municipality or private party with the CADBFormal ‘conflict resolution process’ begins after a complaint is filed by municipality or private party with the CADB CADB makes formal determination whether farm meets eligibility criteriaCADB makes formal determination whether farm meets eligibility criteria If CADB determines farm is not a “commercial farm”, then it is not entitled to right-to-farm protection and municipality or other complainant is free to take appropriate action in other forums (municipal court; superior court)If CADB determines farm is not a “commercial farm”, then it is not entitled to right-to-farm protection and municipality or other complainant is free to take appropriate action in other forums (municipal court; superior court) If CADB determines farm is a “commercial farm”, then CADB must conduct a public hearing on the complaint if the complaint deals with an agricultural management practice (AMP) adopted by the SADC or a generally accepted agricultural operation or practice on the farm previously determined by the CADBIf CADB determines farm is a “commercial farm”, then CADB must conduct a public hearing on the complaint if the complaint deals with an agricultural management practice (AMP) adopted by the SADC or a generally accepted agricultural operation or practice on the farm previously determined by the CADB If CADB determines farm is a “commercial farm”, but the complaint does not deal with an AMP adopted by the SADC or does not involve an operation or practice on the farm previously determined by the CADB, then the case is transferred to the SADC for a public hearingIf CADB determines farm is a “commercial farm”, but the complaint does not deal with an AMP adopted by the SADC or does not involve an operation or practice on the farm previously determined by the CADB, then the case is transferred to the SADC for a public hearing

14 Conflict Resolution Municipal zoning and neighborhood disputes (NJSA 4:1C-10.1; NJAC 2: ) (continued) Procedure A – If complaint relates to activities addressed by a “rule AMP” or by an SSAMP for the farm previously determined by the CADB) [NJSA 4:1C-10.1(b)] Public hearing: written statements from farmer and aggrieved persons; lay and expert witness testimonyPublic hearing: written statements from farmer and aggrieved persons; lay and expert witness testimony Findings and recommendations issued, within 60 days of the complaint, to the SADC, complainant, commercial farmer, and municipality in which farm is locatedFindings and recommendations issued, within 60 days of the complaint, to the SADC, complainant, commercial farmer, and municipality in which farm is located Findings and recommendations format as described in NJAC 2: (b)2i.Findings and recommendations format as described in NJAC 2: (b)2i.Appeal To the SADC within 10 days of receipt of CADB decision; if no appeal, CADB decision is binding (NJSA 4:1C-10.1d.)To the SADC within 10 days of receipt of CADB decision; if no appeal, CADB decision is binding (NJSA 4:1C-10.1d.) If appeal is timely made to the SADC, agency forwards the appeal to the Office of Administrative Law (OAL) as a contested case (NJSA 4:1C-10.2)If appeal is timely made to the SADC, agency forwards the appeal to the Office of Administrative Law (OAL) as a contested case (NJSA 4:1C-10.2) OAL issues Initial DecisionOAL issues Initial Decision Final Decision by SADC affirms, modifies or rejects Initial DecisionFinal Decision by SADC affirms, modifies or rejects Initial Decision SADC Final Decision is final administrative action appealable to the Appellate Division in accordance with NJ Court RulesSADC Final Decision is final administrative action appealable to the Appellate Division in accordance with NJ Court Rules

15 Conflict Resolution Municipal zoning and neighborhood disputes (NJSA 4:1C-10.1; NJAC 2: ) (continued) Procedure B – If complaint relates to activities NOT addressed by a “rule AMP” or by an SSAMP for the farm previously determined by the CADB) [NJSA 4:1C-10.1(c)] CADB forwards municipal or neighbor complaint to the SADCCADB forwards municipal or neighbor complaint to the SADC SADC Chief of Legal Affairs holds a public hearingSADC Chief of Legal Affairs holds a public hearing A written report is generated by SADC staff for approval by the SADCA written report is generated by SADC staff for approval by the SADC SADC-approved written report is forwarded to CADBSADC-approved written report is forwarded to CADB CADB holds another public hearing, and issues written findings and recommendations, within 60 days of receipt of the SADC reportCADB holds another public hearing, and issues written findings and recommendations, within 60 days of receipt of the SADC report Appeal as in “Procedure A”Appeal as in “Procedure A” Conflict Resolution Municipal zoning and neighborhood disputes (NJSA 4:1C-10.1; NJAC 2: ) (continued)

16 SADC has no expertise to review and dispose of conflict of interest claims made by CADB members, including claims which could defeat a CADB quorum If a conflict or ethics issue arises that cannot be resolved by CADB counsel and which could result in the lack of a quorum, the SADC will require the individual CADB member(s) to forward the specific conflict and/or ethics questions to the Local Finance Board for disposition SADC will take appropriate action in response to the LFB determination, if necessary CADB Conflicts of Interest – Quorum

17 Primary Jurisdiction Municipality MUST FIRST file a complaint with the County Agriculture Development Board BEFORE filing ANY action in ANY court; CADB HAS PRIMARY JURISDICTIONMunicipality MUST FIRST file a complaint with the County Agriculture Development Board BEFORE filing ANY action in ANY court; CADB HAS PRIMARY JURISDICTION Required to file complaint with CADB rather than issue summons against farmer EVEN IF THERE IS AN ALLEGED VIOLATION OF STATE LAW OR HEALTH AND SAFETY ISSUESRequired to file complaint with CADB rather than issue summons against farmer EVEN IF THERE IS AN ALLEGED VIOLATION OF STATE LAW OR HEALTH AND SAFETY ISSUES CADB has no authority to refuse jurisdiction due to state law claim or due to pendency of a municipal court/superior court complaintCADB has no authority to refuse jurisdiction due to state law claim or due to pendency of a municipal court/superior court complaint CADB Primary Jurisdiction (municipal ordinance violations) And Preemption Township of Franklin v. Den Hollander, 338 N.J.Super. 373 (App.Div. 2001), aff’d 172 N.J. 147 (2002)

18 Preemption Agricultural activities may preempt municipal regulations – but on a case-by-case basis – it’s not automatic During CADB/SADC review (public hearing process):  Appropriate consideration and deference given to municipal standards  Balance agricultural needs against municipal public health and safety concerns  Farmer has to show “legitimate agriculturally-based reason” for not complying with municipal regulations Supreme Court decision at page 153: “[W]e repose trust and discretion in the agricultural boards to decide carefully future disputes on a case- by-case basis and to balance completing interests. We are confident that the boards will conduct those proceedings and reach their determinations in good faith, cognizant that the benchmark for those decisions is the understanding that government has an obligation to deal forthrightly and fairly with property owners and their neighbors.” CADB Primary Jurisdiction (municipal ordinance violations) And Preemption Township of Franklin v. Den Hollander, 338 N.J.Super. 373 (App.Div. 2001), aff’d 172 N.J. 147 (2002) (continued)

19 Placement of soil and construction of berms on an organic farm to block water flowing onto it from an adjoining residential subdivision; the blockage and redirection resulted in off-site stormwater runoff problems Trial court: Farm undertook clearly unreasonable actions threatening public health and safety. Appellate decision: CADB determines whether farm practices at issue present a direct threat to public health and safety Appellate decision: CADB primary jurisdiction was not waived even after Law Division case was tried to a conclusion CADB Primary Jurisdiction (public nuisances) Borough of Closter v. Abram Demaree Homestead, 365 N.J. Super. 338 (App.Div. 2004)

20 Placement of box trailers, for storage of agricultural products and equipment, along a residential property line Trial court: Claims against the farmer of an intentional nuisance were “clearly unrelated to agricultural practices” and would be heard by the Law Division despite objection by the farmer that the case should be transferred to the CADB Appellate decision: A private nuisance complaint against a farmer – even a claim of intentional nuisance – must be filed first with the CADB Appellate decision: “Whether the placement of trailers along the property line divested the activity of protected status was properly a subject involving agricultural expertise.” Appellate decision, echoing Supreme Court opinion in Den Hollander reposing trust in CADBs, “The administrative framework has the capacity to provide reasonable solutions and eliminate, or significantly mitigate, the problem”. CADB Primary Jurisdiction ( Den Hollander and Demaree extended to private nuisances) Curzi v. Raub, 415 N.J.Super. 1 (App.Div. 2010)

21 Ongoing Issues Local government officials still ignore the RTF Act and file complaints in courtLocal government officials still ignore the RTF Act and file complaints in court Local government officials ignore CADB decisionsLocal government officials ignore CADB decisions CADBs need expert advice, such as planners and engineers, to assist in the review of right-to-farm disputesCADBs need expert advice, such as planners and engineers, to assist in the review of right-to-farm disputes

22 The more informal way to resolve conflicts - Mediation   New Jersey Agricultural Mediation Program – a free service offered by the SADC   Mediation is a voluntary process in which a trained, impartial mediator facilitates a discussion between the parties with a dispute   The mediator has no decision-making authority, so successful mediation is based on the cooperation and participation of all parties.

23 For more information: Visit the Right to Farm Program website: nj.gov/agriculture/sadc/rtfprogram/ See the presentation materials/handouts Contact your local CADB or the SADC SADC contact information: –(609) –Brian D. Smith, Esq., Chief of Legal Affairs –David Kimmel, Agricultural Resource Specialist


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