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Township of South Brunswick v. State Agriculture Development Committee

June 27, 2002

TOWNSHIP OF SOUTH BRUNSWICK, PLAINTIFF-APPELLANT,
v.
STATE AGRICULTURE DEVELOPMENT COMMITTEE, STATE OF NEW JERSEY AND MIDDLESEX COUNTY AGRICULTURE DEVELOPMENT BOARD, DEFENDANTS-RESPONDENTS.



On appeal from the State Agriculture Committee.

Before Judges Stern, Eichen and Collester.

The opinion of the court was delivered by: Collester, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2002

The Township of South Brunswick (Township) appeals from a final determination of the State Agriculture Development Committee (SADC) certifying a 2700 acre tract of land as an agricultural development area (ADA). The case focus is the conflict between the Township, the Middlesex County Agriculture Development Board (MCADB) and the New Jersey Turnpike Authority (Turnpike) over the exclusion of eighty acres from the 2700 acre tract by the MCADB because that portion was designated by the Turnpike as proposed Route 92, a 6.7 mile high-speed, limited access superhighway from Interchange 8A of the Turnpike through Middlesex County to Route 1.

On April 4, 2000, the Township adopted its resolution approving approximately 2700 acres in South Brunswick as an ADA. Every parcel was farmland assessed; the area was zoned rural- residential and permitted agricultural use. The MCADB conducted public hearings, during which the Turnpike objected to the inclusion of the eighty acres designated as proposed Route 92. On July 19, 2000, the MCADB voted to approve the tract as an ADA but deleted the eighty acres. On August 16, 2000, the MCADB adopted a resolution reflecting the approval with the deletion and requested the SADC to certify the ADA as amended. After hearing oral argument on September 28, 2000, the SADC certified the amended ADA and declined to consider the excluded portion, stating that it lacked the authority to include areas in a ADA which had not been approved by a county agriculture development board.

Petitioner appeals from the final administrative action of the SADC certifying the ADA, contending that the SADC erred in refusing to consider the excluded eighty acres and in affirming the exclusion by the MCADB since the land met the eligibility criteria for an ADA and its designation as such would not interfere with the Turnpike's proposed highway. The MCADB responds that the Township has no right to appeal the decision of the Board to the SADC and joins with the other defendants *fn1 in asserting that the certification of its resolution by the SADC was pursuant to the governing statute and neither arbitrary nor unreasonable.

The alignment of proposed Route 92 was adopted in 1995 by the Turnpike commissioners after public hearings. Thereafter, the Turnpike applied for freshwater wetlands and stream encroachment permits in 1996, which resulted in further public hearings before the New Jersey Department of Environmental Protection (DEP), the United States Environmental Agency (EPA) and the United States Army Corps of Engineers. As of the time of the hearing before the MCADB in this matter, the Turnpike was preparing the environmental impact statement required by the Corps of Engineers.

In 1997 the MCADB passed a resolution urging the EPA and DEP to support and issue necessary permits for the proposed alignment of Route 92 because any alternative alignment would "adversely impact the viability of farming in some of the most productive farmland in the State of New Jersey and cause massive disruption of the agricultur[al] economy of Middlesex County." The MCADB had previously urged the Department of Transportation to adopt the alignment of Route 92 because it "does not adversely impact permanently preserved farmland."

The MCADB and the Turnpike argue that the Township has no direct right of appeal to the SADC for the exclusion of the eighty acres and that therefore this appeal is improper and should be dismissed. They assert that the only proper forum was the Superior Court through an action in lieu of prerogative writs under R. 4:69 to challenge the MCADB's recommendation to the SADC. We disagree and hold that the Township can seek review by the SADC of a county board's decision despite the absence of a specific provision in the Agricultural Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -48.

In enacting the ARDA the legislature found it necessary to establish "county organizations to coordinate the development of farmland preservation programs within identified areas where agriculture will be presumed the first priority use of the land." N.J.S.A. 4:1C-12(c). To this end the legislature created county agricultural development boards, N.J.S.A. 4:1C- 14, which may identify and recommend an area as an ADA if it meets specific criteria. N.J.S.A. 4:1C-18. An ADA was defined as that area identified by a county board pursuant to N.J.S.A. 4:1C-18 and certified by the SADC after its review of board submissions. N.J.S.A. 4:1C-13(a); N.J.A.C. 2:76-1.6(a). The board must submit its resolution minutes and a comprehensive report to the SADC, N.J.A.C. 2:76-1.5, and the SADC must find that the board's analysis and criteria are "reasonable and consistent with the provisions of this subchapter." N.J.A.C. 2:76-1.6(b). The SADC then presents its findings and recommendations for certification, certification with conditions or denial of certification to the Secretary of Agriculture. N.J.A.C. 2:76-1.7. While the MCADB and the Turnpike correctly note the absence of any specific statutory provision permitting a petitioner to appeal a county board ADA recommendation to the SADC, the statutory and regulatory scheme provide for automatic review by the SADC and by definition an area is not an ADA until the SADC certifies it as such. N.J.S.A. 4:1C-13(a). A board recommendation without SADC certification is not valid; it is merely a suggestion or proposal to be reviewed by the SADC. The SADC was established by the Right to Farm Act, N.J.S.A. 4:1C-1 to -10, which was enacted at the same time as the ARDA, L. 1983, c. 31 and c. 32, and share the same purpose to protect and encourage agriculture. N.J.S.A. 4:1C-2 and -12. Statutes which deal with the same subject matter and address the same legislative purpose are to be read in pari materia. Brown v. Township of Old Bridge, 319 N.J. Super. 476, 498 (App. Div.), certif. denied, 162 N.J. 131 (1999). The Right to Farm Act sets forth criteria and procedures for the establishment of ADAs under the ARDA and for farmland preservation programs to be certified by the SADC. N.J.S.A. 4:1C-7, -13(a), -18 and -20. Additionally, the Right to Farm Act sets up the following review procedure:

Any person aggrieved by any decision of a county board regarding specific agricultural management practices or conflict resolution may appeal the decision to the [SADC]... The decision of the [SADC] shall be considered a final administrative agency decision. [N.J.S.A. 4:1C-10.2.]

The term "conflict resolution" in the statute is unambiguous and sufficiently broad to cover the case at bar. Certainly there was a conflict between the Township, who wanted the entire 2700 acres designated as an ADA, and the Turnpike, who objected to inclusion of eighty acres which had been designated for a state highway. The MCADB resolved the conflict by deleting the conflicting eighty acres. This was "conflict resolution" within the meaning of N.J.S.A. 4:1C-10.2 which provided for review by the SADC.

An action in lieu of prerogative writs is not maintainable "as long as there is available a right of review before an administrative agency," unless "it is manifest that the interest of justice require otherwise." R. 4:69-5. In this instance a right of review of the Board's decision was available before the SADC under N.J.S.A. 4:1C-10.2 and the certification requirements of N.J.S.A. 4:1C-18 and N.J.A.C. 2:76-1.6. It would fragment litigation to require a party aggrieved by the decision of a county board to pursue a prerogative writs action in Superior Court when the SADC, an administrative ...


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