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In the Matter of Tavalario

386 N.J. Super. 435, 901 A.2d 963 (App. Div. 2006)

ZONING; FARMS; RIGHT TO FARM ACT — The definition of a commercial farm requires clear evidence of actual or future receipt of income from agricultural production.

A property owner kept horses on its property. The municipality insisted that breeding and keeping horses in the zone required a conditional use variance. The property owner filed for a variance, but later withdrew his application, choosing instead to rely on his claim that he was engaged in a permitted use under the Right to Farm Act, and thus local zoning was preempted.

Upon appeal to the State Agricultural Development Committee (SADC), the matter was referred to the Office of Administrative Law (OAL) for a contested case hearing. The administrative law judge (ALJ) found that the property owner qualified for Right to Farm Act zoning preemption, concluding that it could be deemed to have produced agricultural products worth $2,500 or more annually. The SADC rejected the administrative law judge’s ruling and it found that the property owner’s operation did not qualify as a commercial farm because its farmland assessment and federal tax forms showed gross profits lower than the statutory minimum required, and the record did not include contracts for sales of horses that would qualify as anticipated income. In its final decision, the SADC assumed that the property owner needed to demonstrate a certain amount of yearly income. The SADC also assumed that the unrealized value of a horse could be used to satisfy the Act’s production requirements.

The owner’s appeal challenged the manner in which the SADC determined whether keeping horses on property constituted a “commercial” agricultural operation that exempts the property from local zoning restrictions as the result of the preemptive force of the Right to Farm Act. The Appellate Division found no grounds for reversal of the SADC’s interpretation of the production requirements of the definition of “commercial farm.” It found that, in light of the common goals of the Right to Farm and the Farmland Assessment Acts, it was reasonable to read the two acts in pari materia so as to derive support from the related tax act for the SADC’s interpretation of the definition of “commercial farm” as requiring clear evidence of actual or future receipt of income from agricultural production. Further, it found the SADC’s interpretation of the definition of “commercial farm” constituted a permissible construction of the statute that accorded with the Court’s interpretation of similar provisions of the Farmland Assessment Act. Accordingly, the Court affirmed the SADC’s final decision finding that the property owner did not meet the requirements of the Right to Farm Act and was thus not entitled to its protections.

The property owner also argued that the SADC’s decision was null and void because it was not transmitted to the Governor’s office until seventy-one days after the ALJ’s decision was rendered. Statutory law requires that an agency head adopt, reject or modify the recommended report and decision no later than 45 days after receipt of such recommendations. If an agency head fails to do so, the decision of the ALJ is to be deemed adopted as the agency’s decision. Specifically, the property owner argued that the SADC’s decision was void because it was not sent as part of the SADC’s minutes to the Governor. The Court explained that rather than specifying the time for delivery by the SADC of minutes to the governor, the statute provides only that a SADC action set forth in the minutes cannot be enforced until a fifteen-day review period has passed without the Governor’s veto. Therefore, although the SADC’s delay in submitting its minutes thus postponed the effective date of its decision, it did not affect its ultimate validity in the absence of a veto. Furthermore, the Court reasoned that even if it inferred a time period for submission, the property owner presented no evidence of bad faith, inexcusable negligence or gross indifference on the part of the SADC in transmitting its decision as part of its minutes (when it did), so as to render its decision unenforceable. Accordingly, the final decision of the SADC was affirmed.

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