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Hertz v. Borough of Lincoln Park

February 16, 2010

BARBARA J. HERTZ, PLAINTIFF-APPELLANT,
v.
BOROUGH OF LINCOLN PARK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1812-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 27, 2010

Before Judges Graves and J. N. Harris.

Plaintiff Barbara Hertz claims to be an environmentally-conscious farmer, whose agricultural management practices lie outside of the mainstream.*fn1 She brought an action in lieu of prerogative writs that challenged--in nine counts--the soundness of Ordinance No. 08-06 promulgated by defendant Borough of Lincoln Park.*fn2 This ordinance, according to its title, amended the municipality's zoning legislation to permit the operation of commercial farms and farming activity in conformance with the Right to Farm Act, N.J.S.A. 4:1C-1 to -10.4 (RTFA). Plaintiff's amended complaint sought additional remedies for interference with past and prospective property rights pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42 and the Federal Civil Rights Act (§ 1983), 42 U.S.C.A. § 1983. Moreover, plaintiff asserted that she is entitled to relief for inverse condemnation based upon putative violations of the Constitutions of the United States and New Jersey. Finally, plaintiff demands injunctive relief, plus "exemplary and punitive damages," against "Defendant Municipal Administrator/Engineer of the Borough of Lincoln Park"*fn3 for alleged discriminatory harassment of plaintiff.*fn4

The action in lieu of prerogative writs was initially concluded on April 3, 2009, when Judge B. Theodore Bozonelis granted summary judgment in favor of defendant Lincoln Park, dismissing the complaint in its entirety. Attached to the order granting summary judgment was the motion judge's comprehensive eleven-page "Statement of Reasons." Plaintiff subsequently filed a motion for reconsideration, which was denied on May 4, 2009. This appeal followed.

Plaintiff has raised the following points for our consideration:

ARGUMENT POINT ONE:

THE TRIAL COURT'S ANALYSIS WAS ERRONEOUS RESPECTING DISTINCTIONS BETWEEN "QUALIFIED FARMLAND" AND "COMMERCIAL FARM" AND APPROPRIATE RIGHTS TO RAISE AND KEEP LIVESTOCK, AS THIS DEFINES AGRICULTURE

A. FARMLAND ASSESSMENT ACT

1. General Considerations

2. Dimensions and Circumstances of Land Permitted to be Farmed

3. Earnings Required for Farm Tax Qualified Land

B. STATUTORY DISTINCTIONS: FARM TAX ASSESSED LAND VERSUS ...


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