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Borough of Closter v. Abram Demaree Homestead, Inc.

365 N.J. Super. 338, 839 A.2d 110 (App. Div. 2004)

FARM ACT—The County Agricultural Board has primary jurisdiction to determine if a particular business, such as a non-profit farm, is a commercial farm covered by the Farm Act, whether a farm’s practices are done to produce crops and replenish soil, and whether a farm owner’s actions pose a direct threat to public health.

January 14, 2004: When a residential area was built, its approved drainage plan provided that all storm water runoff would be piped into a wetlands retention area located in the center of the development. From there, the water would drain from the retention basin into various ditches, including one on a non-profit farm over a sewer easement.

Five years after the development was built, the farm flooded. Its owner claimed that the water came from the development and should have gone to a “stagnant ditch.” Allegedly the source of the water was roof and street runoff not suitable for farming purposes. According to the farm owner, because the ditch improperly ended only fifty feet from the property, the water was able to flow over the farm.

When the farm owner had a contractor drop soil in the corner of its property to block the flow of water, the municipal engineer determined that filling the easement in that way caused “a hardship to the Borough and adjoining property owner(s).” It ordered the farm owner to stop placing fill and to remove what had already been dropped. It also alleged that the farm owner’s actions endangered the development’s sewer system and drainage capabilities, and that the soil placed on an adjacent railroad property had disrupted the natural flow of storm water.

The farm owner refused to remove the fill, claiming that the easement was a sewer easement, not a storm water easement, and that he had the right to prevent his property from contamination. Over the course of the next few years, the owner enclosed the farm by embankments.

A trial ensurd, and the lower court ordered the farm owner to remove as much soil as necessary to allow the water from the development to flow into a reservoir. The farm owner moved to vacate the decision and to dismiss the complaint for lack of jurisdiction based on the Farm Act, arguing that because the Farm Act was preeminent, the lower court lacked subject matter jurisdiction. The motion was denied and the farm owner appealed.

The Farm Act of 1998 (Act) preempts municipality’s land use authority over commercial farms. The Legislative intent of the Act was to “promote to the greatest extent practicable and feasible, the continuation of agriculture in the [state] while recognizing the potential conflicts among all lawful activities in the State.” It applies to any commercial farm in the state, being defined by the statute as “a farm management unit of no less than five acres producing agricultural or horticultural products worth $2,500 or more annually, and satisfying the eligibility criteria for differential property taxation pursuant to the Farmland Assessment Act of 1964.” Furthermore, the Act created an “irrebuttable presumption” that any activity of a commercial farm that is determined by the County Agricultural Board (CAB) “to constitute a generally accepted agricultural operation or practice [cannot] . . . be deemed to otherwise invade or interfere with the use and enjoyment of any other land or property . . . that [do] not pose a direct threat to public health and safety.” The Act renders its provisions preeminent to any municipal or county ordinance. Specifically, the Supreme Court, in prior cases, found the Act’s provisions preeminent over a municipality exercising its powers under the Municipal Land Use Law because one of the legislative purposes of the Act was to protect commercial farms from nuisance actions.

The lower court did not decide the question of whether a non-profit farm could constitute a commercial farm. Instead, to reject the applicability of the Act, the court found the farmer’s actions to be “clearly unreasonable in light of the health and safety hazards they posed.” It concluded that the farmer’s action created a “breeding ground for mosquito infestation and [constituted] a danger for children because of deep water.”

The Appellate Division broke the case up into three questions: Whether the non-profit farm was a commercial farm; whether the farm owner’s actions constituted farm practices; and, whether those actions constituted a direct threat to the public health and safety. The Court held because the Act establishes primary jurisdiction with the County Agricultural Board (CAB), the lower court should not have proceeded to judgment when the owner’s actions could not clearly be excluded from the Act.

The Act established primary jurisdiction in the CAB, requiring any aggrieved person to file a complaint with the CAB. It did not deprive courts of subject matter jurisdiction. The doctrine of primary jurisdiction recognizes that both the CAB and the courts have subject matter jurisdiction, but that the agency should exercise its jurisdiction first. Primary jurisdiction should be considered when there is a dispute which can be placed within the competence of the CAB, an administrative body.

The Court had previously held that of the three issues, the CAB must first, under primary jurisdiction, decide whether the farmer’s actions constituted farm practices and whether those actions constituted a direct threat to the public health and safety. Once a farming operation arguably meets the definition of a commercial farm under N.J.S.A 4:1C-3, it is the CAB that must first decide whether it actually does meet the definition. The CAB is deprived of jurisdiction only when the operation clearly cannot meet the definition. Although the Act was silent as to this issue, the Court felt that determining whether a farm is commercial or not directly affects the scope of the Act. By giving the CAB this power, consistent application can be ensured. The Court felt this interpretation best fit the legislative purpose of protecting commercial farms.

The Court held that the non-profit farm was more than five acres, was assessed as a farm for tax purposes, and was the largest provider of fresh organically grown vegetables in the state. The fact that the produce was given away to charities did not mean that the annual value of the farm’s production was not greater than $2,500. Thus, the Court felt the non-profit farm qualified as a commercial farm under the Act.

As to the farm’s depositing soil all along the farm and creating soil embankments, the Court held that a commercial farm may take such measures if they were done to produce crops and replenish soil. Here, however, a court should rely on the CAB to decide if a farm, in depositing soil in such a way, was following recommended agricultural management practices. As to whether the farm owner’s actions posed a direct threat to public health, the Court believed such contentions were speculative and disputed, and should have been resolved by the CAB. Therefore, the lower court was wrong in dealing with this issue because it should have respected the CAB’s primary jurisdiction.

Finally, the Court was troubled by the farm owner’s delay in raising the jurisdiction issue until after the trial had been concluded. Courts cannot hear cases where there is no subject matter jurisdiction, but primary jurisdiction can be waived if objection to it is not raised in a timely manner. In the case at hand, though, the Court did not feel that the farm owner waived the CAB’s primary jurisdiction. Based on prior case law, the Court held that a waiver must result from an intentional relinquishment of a known right, and that it must occur by a “clear and unequivocal and decisive act.” Further, the circumstances must clearly show that while the party knew of the right, it either abandoned it by design or indifference.

As a result, the Court vacated the lower court’s order and remanded the case with instructions to request the CAB to address the issues in question.


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