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Mindel v. Township Council of Township of Franklin

Decided: March 29, 1979.

LEO MINDEL, PLAINTIFF,
v.
THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF FRANKLIN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE BUILDING INSPECTOR OF THE TOWNSHIP OF FRANKLIN, DEFENDANTS



Imbriani, J.s.c.

Imbriani

[167 NJSuper Page 463] It is incredible in this day and age that a court should be called upon by a municipality to deny an owner the right to farm his land. But here is such a case. If the municipality is upheld, the result will be to compel the

owner to either build residential housing units or suffer his land to lie fallow.

The property is located in an area that now is essentially rural in nature. Many farms dot the area. The township seeks to change the character to one that will be suburban. The beginnings are already present. Nearby is a growing municipal office complex, several churches, schools, a restaurant and a postoffice. Several residential subdivisions have already been built and others are planned.

In 1966 plaintiff, a dentist and investor, purchased two parcels of vacant land separated by a road. One contains 13 1/2 acres and lies in a R-20 residential zone, which neither permits nor prohibits farming. The other contains 4.4 acres and lies in a R-40 residential zone, which permits farming.

Both parcels are leased to a crop farmer. He plants only corn and soy beans. He keeps no animals. The township seeks to restrain him from farming the larger tract because it is not a permitted use.

Plaintiff previously sought a variance to farm. The board of adjustment recommended approval, but the township committee denied the application. An appeal to our courts was unsuccessful.

Plaintiff now attacks the township zoning ordinance. He argues that farming by its nature is a temporary use and, since not specifically prohibited, it should be allowed where, as here, it does not impair or conflict with the purposes of the zoning ordinance. Defendants, he says, are attempting through their zoning ordinance to undermine the Farmland Assessment Act of 1964 (N.J.S.A. 54:4-23.1 et seq.) by preventing plaintiff from qualifying thereunder. To qualify under the act a farmer must commit at least five acres to farming for two years or more. N.J.S.A. 54:4-23.2. The smaller parcel of 4.4 acres falls just short of qualifying.

It is charged that the township's true motive for prohibiting farming in certain zones is to avoid the loss of tax revenues on vacant lands. And in fact, in a February 3, 1976 report to the board of adjustment concerning the property in

question, the township planner stated that "the only practical difference between the proposal and the property as it exists now is in its tax status."

The township argues that plaintiff's use of his land for crop farming is inconsistent with its master plan, which anticipates greater population density in this area of the community where it has built costly sewerage, water and road facilities. It calculates that the minimum economic density for such urban services is one residential dwelling unit per half acre. Farming would not be sufficiently intensive to earn the municipality a fair return on its capital investment. It argues that the "proximity of the subject property to the township's center district [i.e., a municipal office complex exists and is being expanded] demand[s] urban compatibility."

The township obviously cannot compel plaintiff to develop his land. So it seeks to eliminate the statutory tax incentive to farm and compel plaintiff to choose between not using his ...


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