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Curzi v. Raub

July 30, 2010

MELODY CURZI, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
RAYMOND L. RAUB, III, AND GAIL A. RAUB, HUSBAND AND WIFE, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS, AND E. BARBARA LORENTZ FARLEY, THE ESTATE OF ROBERT FARLEY, DECEASED, JAMES SWICK, ESQ., WITH POWER OF ATTORNEY FOR E. BARBARA LORENTZ FARLEY, JAMES SWICK, ESQ., AS TRUSTEE FOR THE ESTATE OF ROBERT FARLEY, ALL INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.
DENNIS LOSCO AND PATRICIA LOSCO, H/W, AND NICHOLAS TAURIELLO AND CAROLINE TAURIELLO, H/W, PLAINTIFFS, AND SOPHIE G. HENDERSHOT AND JAMES L. HENDERSHOT, WILLIAM F. WRIGHT AND ROSALIE WRIGHT, H/W, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
RAYMOND L. RAUB, III, AND GAIL A. RAUB, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.
RAYMOND L. RAUB, III, AND GAIL A. RAUB, HUSBAND AND WIFE, THIRD-PARTY PLAINTIFFS,
v.
MELODY CURZI, D. SCOTT CURZI, AND RICHARD G. HARDISON, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket Nos. L-283-04 and L-347-05.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: November 9, 2009

Before Judges Lisa, Baxter and Alvarez.

The primary issue in this appeal deals with jurisdiction under the Right to Farm Act (Act), N.J.S.A. 4:1C-1 to -10.4, in the context of a private nuisance claim. Defendants Raymond L. Raub, III (Raub) and his wife Gail A. Raub own a 34 acre farm straddling Harmony and Lopatcong Townships in Warren County. In addition to that property, Raub also conducts farming operations on about 120 contiguous acres he leases from the State.

Plaintiffs are five sets of homeowners who live adjacent to Raubs' farm, some in Harmony and some in Lopatcong. In two separate actions, which were consolidated in the trial court, plaintiffs asserted various claims against the Raubs, including nuisance claims related to farming activities. Plaintiffs alleged that Raub intentionally created these nuisances with the purpose to harass them. The Raubs moved to either dismiss these claims or transfer them to the Warren County Agriculture Development Board (Board) pursuant to N.J.S.A. 4:1C-10.1a, which provides that "[a]ny person aggrieved by the operation of a commercial farm shall file a complaint with the applicable county agriculture development board . . . prior to filing an action in court." The trial court agreed with plaintiffs that the nature of the Raubs' alleged intentional tortious conduct was clearly beyond the purview of the Act and should be decided by a jury. The court further reasoned that the nuisance claims "cannot be separately heard by the agricultural board in this case because they are intertwined into a larger dispute," referring to plaintiffs' other claims involving trespass, removal of trees on plaintiffs' properties, and the validity of an access easement to a portion of the Raubs' property. The court concluded that "[i]n the context of this larger dispute, it is clear that the basis for a cause of action for nuisance is clearly unrelated to agricultural practice." The court therefore denied the Raubs' motion.

A jury trial resulted in favorable verdicts for some plaintiffs on some claims. Included were compensatory damage awards of $10,000 each to the Hendershots and the Wrights for nuisance caused by Raubs' lining up of box trailers end-to-end along their property lines; the Wrights were also awarded $40,000 in punitive damages. Raub had presented evidence that he used the trailers for the storage of hay harvested from the adjoining field, that this was the only practical place to put the trailers, and that he did not put them there to harass his neighbors. The jury also awarded Curzi nominal damages of $500 for trespass, $20,000 compensatory damages for unauthorized removal of trees from her property, and $20,000 in punitive damages. The jury returned no cause verdicts on various other claims, including some pertaining to other conduct by Raub allegedly constituting intentional nuisance arising out of farming activities. Finally, the jury found that the disputed "Deed of Easement" created a valid right-of-way for Raub to access the portion of his property he was subdividing.*fn1

In the months following the verdict: (1) the court denied the Raubs' motion to vacate the awards to the Hendershots and the Wrights for lack of jurisdiction (which the court treated as a motion for judgment notwithstanding the verdict); (2) the court conducted an abatement hearing regarding the trailers and ordered that Raub place them at least 100 feet from the WrightHendershot property line and screen them with six-foot evergreen trees at ten-foot centers; and (3) the court sua sponte, without prior notice to the parties and without a motion for remittitur having been made, reduced the Wright's punitive damage award from $40,000 to $20,000, and reduced Curzi's punitive damage award from $20,000 to $10,000.

During the trial court litigation, two proceedings were conducted by the Board regarding the trailers. The first was several months after the June 25, 2004 commencement of the litigation, but before Raubs' motion to dismiss or transfer the nuisance claims to the Board. Raub successfully sought a site-specific determination that his use of the trailers constituted an acceptable agricultural management practice. The second was to consider Lopatcong's summons charging that Raub's placement of the trailers constituted a setback violation. Hearings were held in the months preceding the jury trial of November 27 to December 20, 2006. The Board issued its dispositional resolution after the jury verdict but before the trial court addressed the Raubs' post-trial motion, conducted the abatement hearing, or reduced the punitive damage awards. The Board concluded that the trailers did not violate Lopatcong's setback ordinance and were a generally accepted agricultural practice. It allowed their continued use and placement near the property line. However, the Board limited the number of trailers to seven (from about fifteen that had been there) and required a buffer of three-foot evergreen trees on six-foot centers. In both proceedings, the Board found that the Raubs operated a "commercial farm" as defined in the Act.

The Raubs did not appeal from any aspect of the award to Curzi. They concede, as they did in the trial court, that the trespass, unauthorized tree removal, and easement claims are not implicated by the Act and the trial court had jurisdiction over those claims. Nor do they challenge the propriety of the jury awards of nominal, compensatory, and punitive (as reduced by the court) damages to Curzi. Indeed, they have paid Curzi the full amount of the judgment in her favor.

The Raubs appeal from the monetary awards to the Hendershots and the Wrights and the corresponding abatement order. They contend, as they have all along, that the court erred in refusing to transfer jurisdiction of plaintiffs' nuisance claims to the Board. We agree. An allegation of intentional nuisance is not sufficient to remove a private nuisance claim from the purview of the Act. Whether Raub's use and placement of the trailers constituted an acceptable agricultural practice was reasonably debatable and was a determination the Board has primary jurisdiction to make. We therefore vacate the money judgments in favor of the Wrights and the Hendershots and the abatement order. We remand to the trial court with the direction that an order be entered transferring these claims to the Board.

Curzi and the Wrights cross-appeal from the reduction of their punitive damages award. In light of our disposition of the Raubs' appeal, this issue is moot as to the Wrights. For the reasons we will discuss, we remand this issue to the trial court as to Curzi for reconsideration.

Curzi, the Wrights, and the Hendershots cross-appeal from the portion of the judgment, pursuant to the jury's verdict, finding a valid access easement for Raub to the portion of his property he was subdividing.*fn2 They argue that the jury's verdict is against the weight of the evidence and violates the ownership rights of private property owners. Our review of the record satisfies us that the jury's verdict on this issue is amply supported by the evidence. Cross-appellants' arguments on this point lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(1)(E), and we affirm on this portion of the cross-appeal.

I.

The Raubs bought the farm in 1997. Raub had grown up on a farm in Harmony and he worked on farms for many years before engaging in other business pursuits in 1979. Prior to 1997, the prior owners had farmed the land for many years with rather minimal activity, and apparently there were no problems with the neighbors. Until 1999, the prior owners continued farming the land, under a lease with the Raubs, as the Raubs refurbished the farmhouse and farm buildings, and began to make other modifications to the property in anticipation of their planned farming operations. During this time, Raub brought several trailers containing equipment, tools, materials, and the like onto the property. Over the next few years, Raub began purchasing more trailers because he expected to be "in the active hay business" and needed storage. Trailers were a cheaper alternative to a barn. They also had the benefit of mobility and could be moved to different locations depending on harvesting schedules. And they could be used to transport hay off the premises for sale. Raub began placing them along the Lopatcong property line, near the Hendershot and Wright property lines.

We will return to our discussion about the trailers, which are the subject of the appeal. However, some discussion about other farm-related nuisance claims and disputes is helpful to our analysis of the claim dealing with the trailers. As tensions escalated and neighbors made complaints to various local, county, and state officials, plaintiffs contend Raub began a course of retaliation.

Raub intended to raise beef cattle as part of his operation. He prepared a field adjacent to the Curzi property for that purpose in about 1999, much to Curzi's displeasure. Raub fenced in the area and would later keep as many as eighteen cattle in it. According to Curzi, Raub would throw hay out to feed them near the corner of her property, "so the cattle can eat, eat right there, defecate right there. So we have a nice aroma." The unpleasant smell, the noise, and the presence of the cattle so close to her property made her backyard and pool unusable. Curzi discontinued her prior practice of having picnics in her yard.

Nevertheless, Curzi and her neighbors, the Loscos, who also joined in this suit as plaintiffs, tried to hold a joint picnic on Labor Day Weekend in 2006. Raub chose to engage in open burning that day, which disrupted the picnic. Curzi reported this to local officials and learned that Raub had obtained the required permit. Raub, who engaged in open burning on several other occasions as well, admitted doing so on one day during that Labor Day weekend, but said he knew nothing of the picnic plans.

The Loscos also complained about the proximity of the cattle to their backyard and the fact that they were fed there. They also had a pool. They said the cattle drew flies which, along with the odor, made the use of their yard and pool very unpleasant.

We mention these incidents because they formed the basis of nuisance claims Curzi and the Loscos asserted against the Raubs, and the claims went to the jury. These claims were clearly related to Raub's farming operations. The jury rejected the claims, answering "NO" to the following interrogatory:

Did Plaintiff prove by a preponderance of the evidence that the conduct of Defendants in placing the cattle and burning of brush near the Curzi and Losco property lines was done intentionally to annoy and harass Plaintiffs and was an action taken out of spite with the purpose of creating a nuisance and was not a generally accepted agricultural operation or practice[?] [Emphasis added.]

Another activity that provided the basis for a nuisance claim involved Raub's grading of an area in a manner that three sets of plaintiffs, the Wrights, the Hendershots, and the Tauriellos, claimed increased the run-off of storm water onto their properties. According to Raub, he "panned" that area preparatory to planting small grain there. This farm-related nuisance claim went to the jury, which rejected it, answering "NO" to the following interrogatory:

Did Plaintiff prove by a preponderance of the evidence that the conduct of Defendants in grading his property caused increased water run-off and was an intentional act to annoy and harass Plaintiffs Wright, Tauriello and Hendershot and was an action taken out of spite with the purpose of creating a nuisance and was not a generally accepted agricultural operation or practice[?] [Emphasis added.]

Curzi and the Loscos also claimed that Raub trespassed on their properties and, without authorization, removed trees. Curzi prevailed on these claims. The Loscos did not.

We return now to the trailers. Raub owned about thirty trailers, which he placed at various locations from time to time. There was conflicting testimony about the frequency with which Raub would move the trailers. Plaintiffs contended that about eight trailers were lined up end-to-end along the WrightHendershot property line and remained in a stationary position for extended periods of time. Thus placed, the trailers created an unsightly wall, blocking the view of the residents. The doors were sometimes left open, creating noise as they swung in the breeze. Some trailers were painted with fluorescent or bright paint and some bore commercial logos. This arrangement created an eyesore.

The Wrights' son, William Wright, Jr., described a confrontation in which Raub threatened to place the trailers along the property line in retaliation for complaints the Wrights had made to various officials. William Wright, Jr. said this incident occurred in June 1999. Raub said it occurred in 2002. William Wright, Jr. said that Raub came down in the yard and he was very upset with my father for I guess starting to go call the township and stuff like that and that's when he came down and threatened my dad . . . he came down in the yard and came right up to my dad's face, stuck his finger in his face and said, exact words were, which I remember, Bill Wright, Bill Wright, I'm tired of your shit, you're pissing me off. If you -- I'm tired of your shit. If you piss me off I'll put these trailers endto-end and that's what you will see for the rest of your life. And a few weeks later that's what we saw.

Raub categorically denied placing trailers near the Wright or Hendershot properties "to harass my neighbors." He insisted there was no "other place" to put them that would be practical. He described the sloping terrain, describing that field as "a continuous slope all the way down to the fence row" and therefore less suitable for parking trailers. He said the area near the property line was relatively flat and the most viable spot because the trailers were parallel parked along his farm road, in a low, shady spot where nothing would grow anyway. Raub also considered it sensible to use the perimeter of the fields for this purpose so as not to interfere with the area devoted to growing crops. John Fritts, who was Harmony's zoning official and Lopatcong's building inspector, testified that placement of the trailers end-to-end near the property line was likely done "to shuttle material [sic] hay from one into the other" and to place the trailers so as to maximize the land available for raising crops.

Paul M. Sterbenz, Lopatcong's municipal engineer, wrote to the Board on June 19, 2003 after responding to a complaint from Tauriello. He asked the Board to review Raub's placement of trailers along the neighbors' property lines. The letter recounted that Sterbenz had met with Raub on June 5, 2003, to determine whether he could adjust his operations to deal with the neighbors' concerns about light, air, and aesthetics, but that Raub had refused to move the trailers, claiming they were needed in that location to store hay produced in the adjacent field.

Sterbenz had made two suggestions to Raub: (1) move the trailers 40 feet back from the property line, allowing the setback distance as if the trailers were an "accessory structure" under the area's R-5 zoning; or (2) move the trailers to a location behind a hedgerow that would have hidden them from view. Sterbenz believed this would not involve major changes to what Raub was doing, because the "trailers wouldn't have to travel far" and would be "still adjacent to the field that he was harvesting hay in." Sterbenz considered it a "simple adjustment" that would alleviate the neighbors' concerns. Sterbenz said Raub "refused to do it" and took the position that Lopatcong "had no jurisdiction in this matter, that he was allowed to do this due to the Right to Farm Act. And that we had no business telling him what to do. He was very firm on that particular issue."

Sterbenz did not receive any response from the Board. At a 2005 meeting with Raub about his subdivision application, Sterbenz learned about the favorable ...


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