On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2033-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Cuff and Baxter.
Defendant, Southampton Township Planning Board (Board), appeals from a December 26, 2007 Law Division order that reversed the Board's denial of plaintiffs' application for an agricultural subdivision. On appeal, the Board argues that the trial court improperly concluded that the Board's decision was arbitrary, capricious and unreasonable. We disagree and affirm substantially for the reasons expressed by Judge Sweeney in his comprehensive and well-reasoned oral opinion of December 17, 2007.
Plaintiffs, Mark and Teresa Henderson,*fn1 are the owners of thirty-three acres of land located on Eayrestown Road in Southampton Township (the property), which they purchased in 2002. They have been using the land ever since as a working farm dedicated to raising horses and growing hay.*fn2 The property is in a rural residential zone, known as the RR district, which authorizes farm operations and single-family dwellings on the property. The property has been assessed as farmland for property tax purposes since 1995.
In an effort to combat rising costs, plaintiffs submitted an application for minor subdivision approval to the Board in the spring of 2004. Plaintiffs sought to create two additional farming lots with one dwelling unit on each lot. Plaintiffs currently reside in the one residential structure located on the thirty-three acre tract. Although the record is not entirely clear, we gather that the 2004 application was the subject of a number of hearings; however, before any decision was reached on the 2004 application, plaintiffs withdrew it. On December 19, 2006, the same day plaintiffs withdrew the 2004 application, they submitted the agricultural subdivision application that is the subject of this appeal.
Plaintiffs' application for an agricultural subdivision was heard by the Board on May 8, 2007. Plaintiff testified that the purpose of his agricultural subdivision request was "to add two more farms to [the existing property] and bring more horse people into the community." He explained that he might "eventually . . . get to a point where [he did not] want to farm them anymore," and at that point he would sell the lots.
In response to a question from the Board solicitor, plaintiff explained that there was no difference between the 2004 application and the instant application because "we originally filed the application to create three farms in the normal course. So we have not changed the use or the intent from the very beginning." When asked whether he contemplated adding a residence to the two new lots, plaintiff answered, "When I do that, if I do that, it might be twenty years from now when I retire, it . . . might be giving it to my children. That determination . . . [is] long range . . . ." He explained that if a residence were ultimately to be added to the two new lots, such residential use would be "subordinate or incidental to the agricultural activity." Through his attorney, plaintiff offered to deed-restrict the three parcels to agricultural use provided that the option of erecting one house on each lot was preserved. He explained if the agricultural subdivision were approved, each lot would be a minimum of five acres and no new roads would be built.
Addressing plaintiff, the Board solicitor commented "there's no secret, the Board is going to be concerned, Mr. Henderson, that you're trying to get through the back door what you can't get through the front door. I mean, it's as simple as that." He continued, "the obstacles that you were confronted with in the subdivision ordinance have caused you to process this as an agricultural subdivision, when your real intention is to create buildable lots. Which I think you essentially indicated is your intention, although when that development will occur is undetermined." In response to a Board member's question, the solicitor advised the members that in deciding whether to approve the requested agricultural subdivision, "you should be on guard for a sham, something being submitted to you as a way to circumvent a subdivision ordinance."
The only witness before the Board was plaintiff himself. There was no opposition from any member of the public.*fn3 During the discussion period, one member commented that "the intent here is not for agricultural." Another member opined that approval of the application would "essentially pave the path for non-conforming lots at a later date."*fn4 A third member observed that "now we're finding out that it may not just be barns and it might not just be for horses but also a residence. And I'm just very, very uncomfortable with that."
At the end of the hearing, a member moved to deny plaintiffs' agricultural subdivision request. None of the members added any comments to the reasons we have already described, other than one member who urged the Board not to "disregard [plaintiffs'] earlier plans as if they never existed." The motion to deny plaintiffs' request passed by a vote of seven to zero. The June 7, 2007 resolution memorializing that decision provided in relevant part:
Based upon the foregoing, the [Board] finds that the application does not meet all of the requirements necessary to approve an "agricultural subdivision" and, therefore, [the Board] denies approval of the application as an agricultural subdivision. Specifically, the Board finds that the overall intent and purpose of the ...