the right to farm act and resolving agriculture- related disputes in new jersey state agriculture...

The Right to Farm Act The Right to Farm Act and Resolving Agriculture-and Resolving Agriculture-

Related Disputes Related Disputes in New Jerseyin New Jersey

State Agriculture Development Committee (SADC)State Agriculture Development Committee (SADC)Gloucester County Bar Association CLE SeminarGloucester County Bar Association CLE Seminar

March 10, 2011March 10, 2011

Right to Farm Protections: The 1983 ActRight to Farm Protections: The 1983 Act

Permitted Activities (N.J.S.A. 4:1C-9):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

• 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)


(continued) (continued)


(Major amendments to 1983 Act in (Major amendments to 1983 Act in boldbold))Legislative response to Villari v. Zoning Board of Adjustment, 277 Legislative response to Villari v. Zoning Board of Adjustment, 277 N.J.Super. 130, 138-9 (App.Div.1994)N.J.Super. 130, 138-9 (App.Div.1994)

Permitted activities (NJSA 4:1C-9):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


(Major amendments to 1983 Act in (Major amendments to 1983 Act in boldbold))(continued)(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: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)

Right to Farm Protections: Right to Farm Protections: The 2009 AmendmentsThe 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

Activities Not ProtectedActivities 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 3018047 (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

Criteria To Receive ProtectionsCriteria To Receive Protections Is it a “commercial farm?” Is it a “commercial farm?”

Is area in which farm is located zoned for agriculture as of Is area in which farm is located zoned for agriculture as of December 31, 1997 or thereafter, or was farm in operation as December 31, 1997 or thereafter, or was farm in operation as of July 2, 1998?of July 2, 1998?

Is operation consistent with “generally accepted agricultural Is operation consistent with “generally accepted agricultural management practices”, or a site-specific AMP (SSAMP), or management practices”, or a site-specific AMP (SSAMP), or AMPs adopted through rulemaking by the SADC?AMPs adopted through rulemaking by the SADC?

Is operation in violation of any federal or State laws or Is operation in violation of any federal or State laws or regulations? (Examples of state laws: DEP regulated regulations? (Examples of state laws: DEP regulated wetlands; Stormwater regulations; health codes; UCC)wetlands; Stormwater regulations; health codes; UCC)

Does operation pose a direct threat to public health & safety?Does operation pose a direct threat to public health & safety?

All of the above criteria are determined by the CADB at the All of the above criteria are determined by the CADB at the right-to-farm hearingright-to-farm hearing

Farm management unit – a parcel or parcels of land, Farm management unit – a parcel or parcels of land, contiguous or noncontiguous, comprising a single enterprisecontiguous or noncontiguous, comprising a single enterprise

If greater than 5 acresIf greater than 5 acres::

produce agricultural or horticultural products worth produce agricultural or horticultural products worth $2,500$2,500 or or more annuallymore annually

satisfy eligibility requirements of Farmland Assessment Actsatisfy eligibility requirements of Farmland Assessment Act

If less than 5 acresIf less than 5 acres::

produce agricultural or horticultural products worth produce agricultural or horticultural products worth $50,000$50,000 or more annuallyor more annually

satisfy eligibility requirements of Farmland Assessment Act satisfy eligibility requirements of Farmland Assessment Act (other than size requirement)(other than size requirement)

Definition of Commercial FarmDefinition of Commercial Farm

Right to Farm ProceduresRight to Farm Procedures

Site-Specific AMP RequestSite-Specific AMP Request Application is made by farmer to CADB; if no Application is made by farmer to CADB; if no

CADB exists, application is made to SADCCADB exists, application is made to SADC

Conflict ResolutionConflict Resolution Complaint against a farmer is filed with CADB Complaint against a farmer is filed with CADB

by municipality (zoning or other ordinances) or by municipality (zoning or other ordinances) or neighbor (nuisance)neighbor (nuisance)

Site-specific Agricultural Management Site-specific Agricultural Management PracticePractice (SSAMP) (NJAC 2:76-2.3)(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

Site-specific Agricultural Management Site-specific Agricultural Management PracticePractice (SSAMP) (NJAC 2:76-2.3) (SSAMP) (NJAC 2:76-2.3)

(continued)(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

Conflict ResolutionConflict Resolution Municipal zoning and neighborhood disputesMunicipal zoning and neighborhood disputes

(NJSA 4:1C-10.1; NJAC 2:76-2.10)(NJSA 4:1C-10.1; NJAC 2:76-2.10)

• Formal ‘conflict resolution process’ begins after a complaint is filed by Formal ‘conflict resolution process’ begins after a complaint is filed by municipality or private party with the CADBmunicipality or private party with the CADB

• CADB makes formal determination whether farm meets eligibility CADB makes formal determination whether farm meets eligibility criteriacriteria

• If CADB determines farm is not a “commercial farm”, then it is not If CADB determines farm is not a “commercial farm”, then it is not entitled to right-to-farm protection and municipality or other entitled to right-to-farm protection and municipality or other complainant is free to take appropriate action in other forums complainant is free to take appropriate action in other forums (municipal court; superior court)(municipal court; superior court)

• If CADB determines farm is a “commercial farm”, then CADB must If CADB determines farm is a “commercial farm”, then CADB must conduct a public hearing on the complaint if the complaint deals with conduct a public hearing on the complaint if the complaint deals with an agricultural management practice (AMP) adopted by the SADC or an agricultural management practice (AMP) adopted by the SADC or a generally accepted agricultural operation or practice on the farm a generally accepted agricultural operation or practice on the farm previously determined by the CADBpreviously determined by the CADB

• If CADB determines farm is a “commercial farm”, but the complaint 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 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 an operation or practice on the farm previously determined by the CADB, then the case is transferred to the SADC for a public hearingCADB, then the case is transferred to the SADC for a public hearing


(NJSA 4:1C-10.1; NJAC 2:76-2.10) (continued)(NJSA 4:1C-10.1; NJAC 2:76-2.10) (continued)

Procedure AProcedure A – If complaint relates to activities addressed by a “rule AMP” or by – 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-an SSAMP for the farm previously determined by the CADB) [NJSA 4:1C-10.1(b)]10.1(b)]

• Public hearing: written statements from farmer and aggrieved persons; lay Public hearing: written statements from farmer and aggrieved persons; lay and expert witness testimonyand expert witness testimony

• Findings and recommendations issued, within 60 days of the complaint, to Findings and recommendations issued, within 60 days of the complaint, to the SADC, complainant, commercial farmer, and municipality in which farm the SADC, complainant, commercial farmer, and municipality in which farm is locatedis located

• Findings and recommendations format as described in NJAC 2:76-2.10(b)2i.Findings and recommendations format as described in NJAC 2:76-2.10(b)2i.AppealAppeal• To the SADC within 10 days of receipt of CADB decision; if no appeal, To the SADC within 10 days of receipt of CADB decision; if no appeal,

CADB decision is binding (NJSA 4:1C-10.1d.)CADB decision is binding (NJSA 4:1C-10.1d.)• If appeal is timely made to the SADC, agency forwards the appeal to the 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)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 SADC Final Decision is final administrative action appealable to the

Appellate Division in accordance with NJ Court RulesAppellate Division in accordance with NJ Court Rules



Procedure BProcedure B – If complaint relates to activities NOT addressed by a – If complaint relates to activities NOT addressed by a “rule AMP” or by an SSAMP for the farm previously determined “rule AMP” or by an SSAMP for the farm previously determined by the CADB) [NJSA 4:1C-10.1(c)]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 A written report is generated by SADC staff for approval by the

SADCSADC• SADC-approved written report is forwarded to CADBSADC-approved written report is forwarded to CADB• CADB holds another public hearing, and issues written findings CADB holds another public hearing, and issues written findings

and recommendations, within 60 days of receipt of the SADC and recommendations, within 60 days of receipt of the SADC report report

• Appeal as in “Procedure A”Appeal as in “Procedure A”



• 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 – QuorumCADB Conflicts of Interest – Quorum

Primary Jurisdiction

• Municipality MUST FIRST file a complaint with the County Municipality MUST FIRST file a complaint with the County Agriculture Development Board BEFORE filing ANY action in Agriculture Development Board BEFORE filing ANY action in ANY court; CADB HAS PRIMARY JURISDICTIONANY court; CADB HAS PRIMARY JURISDICTION

• Required to file complaint with CADB rather than issue Required to file complaint with CADB rather than issue summons against farmer EVEN IF THERE IS AN ALLEGED summons against farmer EVEN IF THERE IS AN ALLEGED VIOLATION OF STATE LAW OR HEALTH AND SAFETY VIOLATION OF STATE LAW OR HEALTH AND SAFETY ISSUESISSUES

• CADB has no authority to refuse jurisdiction due to state law CADB has no authority to refuse jurisdiction due to state law claim or due to pendency of a municipal court/superior court claim or due to pendency of a municipal court/superior court complaintcomplaint

CADB Primary Jurisdiction (municipal CADB Primary Jurisdiction (municipal ordinance violations) And Preemptionordinance violations) And Preemption

Township of Franklin v. Den Hollander, 338 N.J.Super. Township of Franklin v. Den Hollander, 338 N.J.Super. 373 (App.Div. 2001), aff’d 172 N.J. 147 (2002)373 (App.Div. 2001), aff’d 172 N.J. 147 (2002)

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 CADB Primary Jurisdiction (municipal ordinance violations) And Preemptionordinance violations) And Preemption

Township of Franklin v. Den Hollander, 338 N.J.Super. Township of Franklin v. Den Hollander, 338 N.J.Super. 373 (App.Div. 2001), aff’d 172 N.J. 147 (2002)373 (App.Div. 2001), aff’d 172 N.J. 147 (2002)

(continued)(continued)

• 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)CADB Primary Jurisdiction (public nuisances)Borough of Closter v. Abram Demaree Homestead, 365 N.J. Borough of Closter v. Abram Demaree Homestead, 365 N.J.

Super. 338 (App.Div. 2004)Super. 338 (App.Div. 2004)

• 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 JurisdictionCADB Primary Jurisdiction ((Den Hollander and Demaree extended to private nuisances)Den Hollander and Demaree extended to private nuisances)

Curzi v. Raub, 415 N.J.Super. 1 (App.Div. 2010)Curzi v. Raub, 415 N.J.Super. 1 (App.Div. 2010)

Ongoing IssuesOngoing Issues

• Local government officials still ignore Local government officials still ignore the RTF Act and file complaints in courtthe RTF Act and file complaints in court

• Local government officials ignore CADB Local government officials ignore CADB decisionsdecisions

• CADBs need expert advice, such as CADBs need expert advice, such as planners and engineers, to assist in the planners and engineers, to assist in the review of right-to-farm disputesreview of right-to-farm disputes

The more informal way to resolve conflicts - MediationThe 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.

For more information: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) 984-2504– Brian D. Smith, Esq., Chief of Legal Affairs– David Kimmel, Agricultural Resource

Specialist

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