On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6334-98.
Before Judges A.A. Rodríguez, Lefelt
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In an action brought by the plaintiff Borough of Closter, the trial judge found that defendant Abram Demaree Homestead, Inc. had created a nuisance by interfering with the flow of surface water and directed defendant to remove soil that it had, several years before, added to its farm allegedly to prevent flooding from storm water runoff. Defendant appeals, claiming that the court lacked jurisdiction to direct the farm to remove the soil and, in the alternative, that the court made various trial errors. We conclude that the County Agricultural Board (CAB) under the Right to Farm Act, N.J.S.A. 4:1C-1 to 4:1C-10.4 (Farm Act), has primary jurisdiction to address the alleged agricultural management practices in this case and that defendant, by defending its actions in court, has not waived its right to a primary determination by the CAB. Consequently, we vacate the court's orders and remand to the Law Division with a direction to transfer several issues to the CAB.
Defendant operates a fourteen-acre farm on land, located within the borough boundaries of plaintiff Closter, that defendant had purchased from the Hackensack Water Company in 1992. The land has been continuously farmed for over 200 years by various entities. The farm is a non-profit charitable operation, which is assessed for tax purposes as farmland, and is"the largest provider of fresh organically grown vegetable[s] in the State of New Jersey. All farm production is totally donated and feed[s] the area's poor and sustain[s] the farm operations."
The property is shaped roughly as a rectangle and has lower elevation than all of the surrounding properties. When defendant purchased the property, its deed contained two sewer easements. The first was a seventeen-foot wide Bergen County Utilities Authority easement. The second was a fifteen-foot wide Borough of Closter easement. Both sewer easements run parallel and adjacent to each other along the westerly border of the farm. The Borough easement contains raised manholes sitting atop concrete encasements jutting out of the ground about four to five feet above the ground. Hackensack Water had granted this easement to the Borough with the understanding that it intended"to use the subject property including the surface of the easement area, for landfill purposes." Both the Borough and County sewer easements are underground systems that do not carry storm water.
The easterly and northerly borders of the farm abut roads. The westerly border, containing the two sewer easements, abuts property owned by CFX (formerly Conrail) railroad, containing railroad tracks. United Water Company, the successor to the Hackensack Water Company, owns the land to the west of the railroad tracks. The water company's reservoir is located several hundred feet west of the railroad tracks. The southerly border of the farm abuts Lot 2, which contains a commercial building.
Lot 2 abuts Durie Estates. In 1989, Durie Estates obtained subdivision approval to develop its 14.8 acres of land into 23 lots for the construction of single-family homes. By the time of this dispute, Durie Estates had been fully developed.
There are two culverts located under the railroad embankment. A southerly culvert abuts Durie Estates and allows some of Durie's water drainage to pass under the railroad tracks and eventually into the water company reservoir. A northerly culvert is located north of Durie Estates and Lot 2 on the farm's westerly border about two-thirds of the way up that border.
The northerly culvert was constructed in the 1860s, is made of old original block construction, is in poor condition, and filled with silt and debris. It has not been rebuilt or maintained.
The approved drainage plan for Durie Estates provided that all storm water runoff would be piped into a five or six acre wetlands retention area located in the center of the development. Two pipes would then drain the water from the retention basin into ditches leading to the southerly and northerly culverts. The southerly ditch is on railroad property, but the northerly ditch is on farm property, running over the County and Borough sewer easements, and was depicted on the Durie plans as an existing"stagnant ditch."
The planning board had conditioned its approval of Durie Estates upon the requirement that Durie clear and grade the"stagnant ditch" to the northerly culvert, with the approval of the railroad. The Borough Engineer, at the time of the approval, did not realize that the ditch north of Lot 2, leading to the northerly culvert meandered between the railroad property and the farm. There is nothing in the record proving that the condition has been fulfilled and no one who testified could say the clearing and grading was done or that approval was obtained from the railroad, the farm, or the Hackensack Water Company.
In the spring of 1994, a stream of cascading water flowing from the southwestly corner flooded the farm. The farm maintains that the water was piped drainage water from Durie Estates, which should have gone into the"stagnant ditch." But after fifty feet onto farm property, according to defendant, the ditch ends and the water from Durie Estates can flow over the farm. According to the Borough, however, the ditch runs alongside the railroad tracks to the northerly culvert.
When the farm flooded in 1994, a contractor was on site donating soil. Defendant directed the contractor to drop the soil in the southwest corner of its property to block the flow of water allegedly containing roof and street runoff not suitable for organic farming purposes.
Shortly thereafter, the Borough Engineer wrote the farm explaining that the placement of fill on its easement caused"a hardship to the Borough and adjoining property owner(s) located to the south of [farm] property." The letter ordered defendant to"cease and desist in the placement of any more fill... [and] remove the fill placed in this area that is blocking the natural drainage course located in this area." The letter further ordered defendant to"restore the ground to the natural grade over the... easements... [and] properly stabilize to the configuration that permitted runoff to flow in the existing ditch located at the base of the railroad embankment."
There then ensued a period of charge and counter charge between the Borough and defendant. The Borough insisted that defendant improperly added fill over the Borough's easement, endangering its sewer system and the Durie Estates drainage. Moreover, the Borough claimed that defendant had added soil to railroad property and disrupted"the natural flow of storm water along the railroad tracks that had been in place since the railroad tracks were built many years ago." Defendant insisted that it had prevented its farm from being ruined by the contaminated water and that Druie Estates had precipitated the flood. The Farm further argued that the Borough's easement was a sewer easement, not a storm water easement. Defendant did not remove the soil and the Borough took no further action.
Two years thereafter, in 1996, defendant placed a soil berm along the railroad embankment on its westerly border. Defendant also placed mulch, planted trees, and constructed a deer fence along the berm. Defendant explained that it built this berm to suppress weeds and to deter woodchucks, deer and other animals from eating its crops. In addition, defendant placed topsoil along its borders to store and conserve for future farm use. Defendant insisted that this berm had nothing to do with its actions two years previous in the southwest corner of its property. When the trial judge made his site visit, he observed that the farm"ha[d] been completely enclosed by ...