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Athens v. Oliver

2005 WL 3047264 (N.J. Super. Ch. Div. 2005) (Unpublished)

EASEMENTS; RIGHT TO FARM ACT—Where the issue at hand is not whether a farmer has the right to erect a silt fence in connection with its farming operation, but whether the silt fence may be erected in another’s right of way, a court need not defer, in the first instance, to the county agricultural development committee board for a resolution.

A home was serviced by a horseshoe-shaped driveway leading from the garage to a road. The property’s deed granted a right-of-way to be shared between this particular property and a neighboring property. The right-of-way was described in painstaking detail. For many years, a paved driveway existed on part of the right-of-way. Eventually, one of the property owners began to block a part of the right-of-way by use of a silt fence. The property owner claimed that the driveway was an impairment of the right-of-way and that portion of the driveway that encroached on the right-of-way had to be removed. The Chancery Division was asked by the other property owner to issue a temporary or a permanent injunction ordering the other property owner to remove the silt fence. Apparently, in the course of the proceedings, the property owner that had erected the silt fence agreed to remove it while it was determined whether the paved driveway was permitted to exist within the right-of-way. In the course of the legal proceedings, however, the property owner who erected the silt fence argued that the Court did not have jurisdiction because the silt fence was part of a farming operation. It argued that, pursuant to New Jersey’s Right to Farm Act, it was the policy of New Jersey to place farm disputes in front of the applicable county agricultural development board or the State Agricultural Development Committee in counties where no county board exists prior to filing an action in Court. In fact, a New Jersey statute “established primary jurisdiction with the county agricultural board or New Jersey State Agricultural Development Committee, but according to prior decisional law, this would “not deprive the court of subject matter jurisdiction.” Also, according to prior case law, “[p]rimary jurisdiction recognizes that both the administrative agency and the courts have subject matter jurisdiction, but for policy reasons, the agency should exercise its jurisdiction first.” According to the Court, “the Right to Farm Act’s purpose is to protect commercial farm operations from nuisance actions and to regulate agricultural management practices.” According to the Court, however, the issue in this case was not whether the “farmer” had the right to “erect a silt screen fence for farming operations and whether it [fell] within the applicable standards. The issue [was] whether [the “farmer”] may erect the silt fence in an area that interferes with Plaintiff’s right-of-way.” Consequently, the Court held that it had subject matter jurisdiction. It ordered a pre-trial conference for the substantive dispute and cautioned each party to avoid further harassing activity.


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