On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, L-239-98.
Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following our decision in Villari v. Zoning Board of Adjustment, 277 N.J. Super. 130 (App. Div. 1994), where we held that the Right to Farm Act, N.J.S.A. 4:1C-1 to -10 (amended 1998) (the Act), did not preempt municipal land use authority over commercial farms, the Legislature amended the Act. L. 1998 c. 48 §§ 1-8 (N.J.S.A. 4:1C-1 to -10.4). This appeal requires us to determine whether the amendments to the Act preempt municipal land use jurisdiction over such farms and, more specifically, whether a municipality may require a commercial farmer to comply with local land use ordinances including site plan approval. We conclude there is preemption, and that primary jurisdiction to regulate agricultural management practices rests with the County Agricultural Board (CAB) or the State Agricultural Development Committee (SADC). We further hold that in fulfilling their responsibility to regulate agricultural management practices under the Act, both the CAB and the SADC must consider the impact of such practices on municipalities and, in so doing, consider the limitations imposed by local land use and zoning ordinances adopted pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112. We conclude that on remand to the CAB, the CAB, exercising primary jurisdiction, must first determine whether defendant's activities fall within the purview of "agricultural management practices." If so, upon assuming jurisdiction, the CAB, or SADC, where appropriate, must consider not only the impact of such practices on the municipality, but the standards established by local ordinances, all within the scope of the agency's statutory obligation to consider public health and safety. If the CAB or SADC determines that the proposed activity falls outside of the scope of agricultural management practices, jurisdiction then resides with the municipality and its appropriate agencies to enforce its local land use and other relevant ordinances.*fn1
We address this issue in the following factual and procedural context. Defendants David den Hollander, Garden State Growers and Quaker Valley Farms collectively own 143 acres in Franklin Township, Hunterdon County. The property is zoned AR-7, Agricultural-Residential, which permits agricultural uses. One-hundred and nineteen acres of the property are subject to a Deed of Easement benefitting the Hunterdon County Agricultural Development Board and/or the New Jersey State Agricultural Development Committee.
Defendants operate a large-scale ornamental plant production operation that employs 150 workers, and have installed concrete sidewalks, gravel and paved areas, plastic impervious ground cover, storm water control structures, and greenhouses called "hoop houses." The hoop houses are constructed of steel pipe frames, wood, and plastic, and are approximately 14 feet wide, 200 feet long, and 6 feet 6 inches high at the center of the arch. They average 2800 square feet in size. Defendants' characterization of these structures as temporary is disputed by plaintiff Township of Franklin, which notes that the structures have remained in place since their construction in the mid- 1980's.
On April 16, 1998, plaintiff filed a multi-count complaint in the Law Division, Hunterdon County, against defendants seeking declaratory relief and related permanent injunctive relief. We will summarize plaintiff's allegations. Specifically, plaintiff alleged that defendants were in violation of provisions of their Deed of Easement and unspecified township regulations, and that "[d]efendants' failure to comply with the Deed of Easement and/or [regulations constituted] a nuisance adversely affecting the health, safety and welfare of the residents of the Township." Defendants failed to conform their agricultural practices to those recommended by the SADC, and to "relevant federal or State statutes or rules and regulations which as a consequence pose[d] a direct threat to the public health, safety and welfare."
Defendants built structures on the property without receiving approval from the appropriate township agencies, and "continued to threaten to use said structures in derogation of lawful rules and regulations of the Township."
Defendants "created a trucking terminal in a residential district of the Township . . . [and] parking areas on site for non-passenger vehicles without site plan approval," and permitted trucks to park on land adjacent to the property, creating an inappropriate impact on adjoining residential properties. The noise created by the trucks disrupted the "peace and tranquility of the adjoining residential neighborhood."
Defendants had "not complied with Federal regulations regarding ascertaining the qualification" of the workers employed on the property, noting that defendants allowed the workers to "avoid using designated approved sanitary facilities" and that the workers "perform[ed] individual waste disposal function in public view." Such activity, plaintiff claimed, violated sanitary codes of various agencies and criminal statutes of the State of New Jersey, and created a health hazard "both to other workers and the public in general." Furthermore, defendants failed to obtain the necessary prior approval before employing more than twenty-five employees.
Next, defendants expanded their use of the property in derogation of the limits set forth on the site plan and without proper approval, and that defendants were bound as successors in interest to a compliance agreement with the Hunterdon County Soil Conservation District which contained a Farm Conservation Plan. Defendants installed impervious surfaces without approval and in violation of township ordinances.
Attached to plaintiff's complaint was the certification of Linda Peterson, a civil engineer employed by the United States Department of Agriculture Natural Resources Conservation Service (USDA-NRCS), which had been submitted by the plaintiff in Hunterdon County Soil Conservation District v. den Hollander, C- 14007-97, aff'd, Nos. A-6650-96, A-4028-97 (App. Div. Feb 23, 1999). Peterson stated that most of defendants' property is devoted to permanent greenhouse production and processing, that "the cultural methods employed by [defendants] results in an extremely high percentage of impervious area," and that the "impervious areas drastically increase runoff which may cause excessive soil erosion, off-site damage, and the degradation of water quality." Peterson further noted that defendants failed to maintain a detention basin system to control runoff from the hoop houses. She observed that the basin area was used for parking and storage, that concrete lanes were constructed around the large production blocks in the mum fields, and that "uncontrolled runoff from the field deposits sediment at the lower edge of the field before concentrating into unstable channels." The gullies, she explained, "outlet the runoff through the woods and eventually into Lockatong Creek." She further stated that defendants never completed or stabilized soil erosion and sediment control measures that were recommended by USDA-NRCS to divert runoff around the mum field, resulting in severe erosion delivering a significant amount of sediment into the creek. Finally, Peterson opined that "[a] USDA-NRCS Farm Conservation Plan, if properly installed and maintained, would address both water quantity and . . . quality issues" at the farm.
Plaintiff also submitted the certification of Tony M. Ganguzza, Municipal and Planning Board Engineer for the Township of Franklin, detailing extensive alleged violations of various land use and zoning ordinances. We briefly identify those sections of plaintiff's township land use ordinances identified as relevant to the issues before us, and then summarize Ganguzza's allegations. Section 118-40A(1)(b) of the township code provides that site plan approval is required for the construction of farm structures in excess of 7% of the land area, or of any farm structure greater than 20,000 square feet. Franklin, N.J., Code § 118-40A(1)(b). Section 85-4 defines farm structures as "[a]ny and all farm structures, for example, barns, silos, food storage structures, greenhouses, processing structures, machinery or utility storage structures, watering and livestock buildings and roadside stands." Id. at § 85-4. Section 85-21 requires that no building or structure be constructed until a building permit has been procured by filing an application in accordance with the construction code of the township, id. at § 85-21A, which also limits impervious coverage of a lot in the AR-7.0 Agricultural Residential Zone to 10%.
Ganguzza stated that defendants failed to build two retention ponds essential to surface water management and that the absence of the ponds suggested violations of local ordinances and a June 10, 1996 order of the Law Division which permitted defendants to improve the property in accordance with the Site Plan and Site Grading Plan (Site Plan). Based on aerial photographs, Ganguzza concluded that the area where Pond 1 was to be located was instead an open area, and that the area designated for Pond 2 was instead used for truck and trailer parking. There was no planning board review or approval for those deviations from the Site Plan, nor was there approval of the installation of a parking area as required by municipal ordinances. The Site Plan provided for 76 parking spaces in three designated areas only. In addition to the unapproved parking in the area of Pond 2, truck parking also occurred along the southerly side of a "proposed greenhouse" for which no approval was obtained as required by local ordinance. Defendants also had not obtained approval for three greenhouses and a truck parking area located in Block 37, Lot 42, which together comprised approximately 28 acres of farm structures on that 119 acre section. These improvements were constructed contrary to the 7% limitation provided by Section 118-40.A(1)(b), which would only permit up to 8.4 acres of farm structures without prior approval. These structures included hoop houses, barns, and associated structures. Assuming that the hoop houses are impervious surfaces as well as structures, the lot coverage substantially exceeded the 10% maximum impervious surface ratio. Sixty-five percent of the mum field was covered by impervious material, including concrete walkways and gravel-filled areas, also in violation of the 10% coverage maximum. The concrete walkways were approximately 10 to 12 feet wide and large vehicles were parked at the corners. Walkways of that width were not intended for pedestrian traffic, but rather for an internal transportation system using those vehicles. Ganguzza calculated that these walkways and gravel-filled areas exceeded 53,000 square feet of impervious coverage, or more than ten times the minimum soil disturbance threshold permitted without approval under Sections 112-1 and 118-40.
Ganguzza also stated that the soil erosion and sediment control plan (RT plan) submitted by defendants was not credible and was contradicted by aerial photographs. For example, the RT plan identified the area designated as Pond 2 on the Site Plan as "Basin #2." This designated use was inconsistent with the photographs indicating that the Pond 2 area was actually being used for truck parking. Furthermore, there was a notation on the RT plan for a "Berm to be Extended" which was contradicted by a photograph demonstrating that the existing berm lies between "Hoop Greenhouse 2" and the Pond 2 parking area, making extension of the berm impossible. Based on another aerial photograph, Ganguzza concluded that the RT plan also failed to account for the demolition of buildings which had been situated south of Field 2, and that defendants had not obtained a permit for that demolition or for attendant regrading and restoration of the area. The RT plan also identified an "Irrigation Pond" to the west of Field 4 and an "Extended Detention Basin 3" in the northwest corner of Field 6 which would have required approval. Ganguzza observed that the area designated as "Basin 3" was actually being used for truck parking.
Ganguzza further observed that the RT plan revealed a need for proper soil detention on defendants' property, as Fields 4 and 6 were located along either side of Lockatong Creek, which also flows along the southern boundary of defendants' mum field and across the southeast corner of Field 2, and a new gravel road connecting Fields 2 and 6 had been constructed by traversing the creek.
Ganguzza concluded based on "usual and customarily accepted engineering standards," that defendants' violations of the township's ordinances and their deviations from the Site Plan posed an immediate threat to the health, safety, and welfare of township residents due to defendants' unregulated and unapproved structures and uses. He attributed the surface water flow problems to defendants' building and construction, and opined that the "Lockatong Creek and its associated corridor have been and remain in jeopardy of ongoing degradation." He also opined that the absence of previously approved water quality structures indicated that improperly treated or untreated water was flowing both on- and off-site, and that the truck parking area compounded the problem. ...