On appeal from a Final Decision of the State Agriculture Development Committee, Docket No. 0818-04.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2006
Before Judges Skillman, Axelrad and Payne.
This appeal presents a challenge by Anthony Tavalario to the manner in which the State Agricultural Development Committee (SADC) determines whether keeping horses on property constitutes a "commercial" agricultural operation that exempts the property from local zoning and other land use restrictions as the result of the preemptive force of the Right to Farm Act, N.J.S.A. 4:1C-1 to -10.4. The SADC found that Tavalario's use of the land did not qualify for protection under the Act, because he could not demonstrate that, as of July 3, 1998, his operation produced "agricultural or horticultural products worth $2,500 or more annually" as required by the definitional section of the Act, N.J.S.A. 4:1C-3a, and the Act's preemption provision, N.J.S.A. 4:1C-9, which enumerates the permitted activities of qualified commercial farm owners and operators. The SADC construed the Act's definition of a commercial farm to mean that a farmer must actually derive $2,500 in income or demonstrate that he entered into a contract to derive that amount in income in order to satisfy the annual production requirement. Tavalario contends on appeal that the SADC erred because it failed to consider as income in 1998 uncollected stud fees, the imputed value of a horse sold as a broodmare in 2002 for $8,000 and another horse sold in 2003 for $5,400, and race winnings of an undisclosed amount allegedly awarded at an unspecified time after 1998.
The statute itself is silent as to how the production requirement of N.J.S.A. 4:1C-3 and -9 is to be construed, and thus the SADC was required to interpret it, which it did in the manner that we have described. On appeal, we decline to disturb the SADC's conclusion that Tavalario did not meet the production requirement as construed by the agency, recognizing that "[t]o uphold an agency's construction of a statute that is silent or ambiguous with respect to the question at issue, a reviewing court need not conclude that the agency construction was the only one it permissibly could have adopted, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Matturri v. Bd. of Trs. of Judicial Ret. Sys., 173 N.J. 368, 382 (2002) (quoting Kasper v. Bd. of Trs. of Teachers' Pension and Annuity Fund, 164 N.J. 564, 581 (2000)). To uphold the agency's decision, we need only to conclude that it "is based on a permissible construction of the statute." Ibid. We find that standard to have been met in this case.
The record establishes that Tavalario purchased the 7.37-acre property in question, located in Washington Township, Gloucester County, in December 1995. The property (on which had been previously constructed a single-family residence, in-ground pool and garage) had been subdivided in 1990 into three lots and had been rezoned in 1995 from agricultural use to inclusion in an "A" Residence District in which agriculture constituted only a conditional use for which a "c" variance was required. N.J.S.A. 40:55D-70c.
In 1996, Tavalario commenced to keep horses on the property, utilizing land fronting on a local road and "cut out" portions of rear woodlands for that purpose. Tavalario's application for a farmland tax assessment and records of equine births and deaths disclose that in April 1997, a foal was born dead on the property to a broodmare, and that a second broodmare had aborted. In 1998, Tavalario maintained on the property a stallion, Nasty Charger, kept primarily for breeding, two broodmares, Proculator and Morning Chant, and two foals, First Place Lady (foaled by Proculator) and Son Chant (foaled by Morning Chant). Morning Chant died in May 1998 while giving birth to Son Chant. A third horse, Lady Winsum, was foaled by Proculator in 1999.*fn1 First Place Lady was sold as a broodmare in 2002 for $8,000, and one of the other two foals appears to have been sold a year later for $5,400. Additionally, evidence was presented that Tavalario had boarded a neighbor's horse at "various times" from 1996 to 1999 to permit the neighbor to reseed his pasture and go on vacation, and that Tavalario boarded two ponies from October 1, 1998 to January 23, 1999. Both Lady Winsum and Son Chant were entered in races while owned by Tavalario, but the dates of the races and any race earnings have not been specified. Evidence also was presented that Nasty Charger was advertised for stud in 1997. Tavalario claims that $4,000 in stud fees were waived in 1998 so as to qualify for the New Jersey Breeders Fund award program, but no evidence of a waiver requirement has been offered.
The record additionally contains a statement provided in connection with Tavalario's application for a farmland tax assessment during 1998 that he had received gross income from farming activities in the amount of $600 consisting of stud fees in each of the years 1996, 1997 and 1998. Tavalario's IRS statements of profit and loss from farming reflect an income of $675 for 1998; $580 for 1999; $600 for 2000; $600 for 2001; $9,390 for 2002; and $5,400 for 2003.
In April 1999, Washington Township informed Tavalario that breeding and keeping horses in an "A" Residence zone required a conditional use variance, and then filed a notice of zoning violation against him. Tavalario commenced the process of obtaining 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. In March 2000, the Township's claim of zoning violation came before the municipal court, which determined in light of the potentially preemptive effect of the Right to Farm Act to adjourn proceedings pending a determination by the Tax Court whether Tavalario was entitled to farmland tax treatment*fn2 and a determination by the Gloucester County Agriculture Development Board (CADB) regarding the applicability of the Right to Farm Act.
Following a hearing, the CADB concluded that Tavalario's operation constituted a "commercial" farm protected by the Right to Farm Act. Upon appeal to the SADC, the matter was referred to the Office of Administrative Law for a contested case hearing pursuant to N.J.S.A. 4:1C-10.2. The administrative law judge (ALJ), likewise, found in a decision issued on June 14, 2004 that Tavalario qualified for Right to Farm Act zoning preemption, concluding that he could be deemed to have produced agricultural products worth $2,500 or more annually, despite the lack of contemporaneous evidence that he had done so. In reaching this conclusion, the ALJ analogized Tavalario's circumstances to that of a timber producer whose crop required maturation before profits could be realized. The judge relied in this regard upon a decision by the SADC in In the Matter of Joseph P. Arno (Appeal of Resolution Issued by the Monmouth County Agriculture Development Board), SADC ID # 1328-02, OAL Docket No. ADC 4748-03 (February 25, 2004).
In Arno, the SADC had found that the applicant's growth of unharvested timber would qualify the property as a commercial farm if (1) the farmer had a written contract to provide a specified amount of wood from his trees within a specified time frame; (2) he had obtained a woodland management plan prepared by a certified forester; and (3) he had received a signed statement from a certified forester certifying that he had a sufficient number of trees ready to harvest to fulfill the terms of the written contract.*fn3
Because Tavalario could not produce a contract analogous to that required in Arno (an evidentiary requirement omitted from the ALJ's analysis), at its public meeting of July 22, 2004, the SADC rejected the ALJ's conclusion that Tavalario's operation met the definition of a commercial farm found in N.J.S.A. 4:1C-3a. Its final decision was mailed to the Office of Administrative Law in an ...