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C.P. Lakewood Land, L.P. v. Lakewood Township

2491-98 (Tax Ct. 1999)

ZONING; FARMLAND—Occasional forestry management and the sale of the resulting firewood does not constitute agricultural use if those activities have negligible land use impact.

Two contiguous lots in a manufacturing-industrial zone were managed as woodlands pursuant to an approved forest management plan. Therefore, they had been assessed as farmland until the local tax assessor sent a Disallowance of Claim on the basis that the “use was not permitted in the zone” and/or “insufficient documentation of income.” The Court found credible testimony that the income attributed to the sale of wood from the property was a fair price for the firewood and satisfied the minimum income requirements of the Farmland Assessment Act. With respect to the second issue, the municipality contended that neither forestry nor agriculture were enumerated as specific permitted uses in the zone. Although not specifically identified either as permitted or as prohibited uses, the local ordinance stated that “[A]ll uses in the industrial zone are prohibited other than those specified as permitted uses or as may be granted by special permit… .” The taxpayer contended that the minimal level of agricultural activity taking place at its properties did not violate the municipal zoning ordinance. Its expert, a licensed planner, testified that the selected tree harvesting activity did not rise to a level that would be governed by the zoning ordinance. The expert further testified to the effect that the activity being conducted at the site was “tantamount to a maintenance type operation of selected cutting, which is not typically controlled by zoning, as opposed to traditional farming, with regular activity, cultivation, fertilization, and harvesting of groups, which physically changes the look of the land,” and that the tree harvesting activity was largely invisible and tree cutting took place only one day each year. Therefore, the “woodland management activity at the site does not generate any traffic, noise, pollution, demand on water or sewer services or any of the other traditional land use impacts normally associated with the regulation of zoning.” Additional testimony was to the effect that “it is an accepted zoning principle that there are certain activities permitted by right because of their low impact on land use, such as leasing of rural tracts of land to hunting or fishing clubs, or accessory uses such as a barbecue for a single family house, despite the fact that they are not specifically listed as permitted uses in the zoning ordinance.” Finally, the expert classified the subject tree harvesting as an “incidental, and minimally impacting, use of the vacant, undeveloped land.” In opposition, the municipality contended that because there were permitted agricultural uses in some specific zones, it was a conscious decision not to permit agricultural uses in the industrial-manufacturing zone.

The law is now settled that the legality of the use is not an element which a taxpayer must prove in order to qualify for farmland assessment under the Act and that once the taxpayer has met the requirements of farmland assessment under the Act, the burden shifts to the municipality to prove illegality of use and its impact on the tax status of the property. The New Jersey Supreme Court recognized that qualification for farmland assessment under the Act does not constitute “farming or agricultural use” per se, in violation of a local zoning ordinance which may not permit that use in the zone in which the property is situate. Further, the Supreme Court had also stated that “[i]t is thus possible for a relatively low level of ‘agricultural’ activity encompassing things not typically regarded as conventional farming, i.e. managing woodlands, to satisfy the statutory definition.” The Court agreed with the taxpayer’s expert and found that the minimal level of agricultural activity taking place on the subject woodlands did not violate the municipality’s zoning ordinance. “This taxpayer performed selective tree harvesting, a maintenance type of operation pursuant to an approved Forestry Management Plan, in the interior of the site, invisible to the residential neighborhood across a four lane highway, during only one day a year, with virtually no land use impact. The integrity of the woodlands was preserved in furtherance of the goals of the Farmland Assessment Act with substantially less impact on the municipality in terms of noise, traffic, and the need for municipal services than a conventional farming use or any one of the enumerated industrial uses in the M-1 zone.”


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