On appeal from the State Agriculture Development Committee.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012 -
Before Judges Reisner, Harris and Hoffman.
This appeal presents esoteric issues that arise under the farmland preservation planning incentive grant program*fn1 implemented by the Right to Farm Act (RTF Act), N.J.S.A. 4:1C-1 to -10.4, and the Agriculture Retention and Development Act (ARD Act), N.J.S.A. 4:1C-11 to -48. Appellant Deborah Post appeals a $30,000 per acre certification of value determined by the State Agriculture Development Committee (the Committee) in connection with her offer to sell a development easement to the County of Morris (the County) for purposes of preserving Post's sixty-one acre pick-your-own apple farm known as Riamede Farm.*fn2 We affirm.
In January 2008, Post applied to the Morris County Agriculture Development Board (the Board) to convey a development easement for Riamede Farm. The Board referred the matter to the Committee, which undertook a review pursuant to N.J.A.C. 2:76-17.9. After the Committee approved the application, two appraisals were authorized and commenced pursuant to N.J.A.C. 2:76-17.10(a) ("Upon Committee approval of an application for the sale of a development easement . . ., the [Board] shall select two appraisers from the list of appraisers approved by the Committee . . . to conduct independent appraisals of each farm to determine the market value of the development easement for which funding is requested."). Victor D. DiSanto, MAI, and Robert G. Cooper, Jr., CTA, SCGREA, were chosen from a list of approved appraisers. A "desk review" of DiSanto's and Cooper's appraisals was conducted by Pamela J. Brodowski, MAI, ASA, CTA, pursuant to N.J.A.C. 2:76-17.11(e) ("The Committee shall appoint a review appraiser to evaluate the appraisals submitted by the [Board] and to recommend a market value of the development easement for each farm.").
On March 25, 2010, the Committee issued a Certification Report certifying the development easement value of Riamede Farm -- as of January 1, 2004*fn3 -- at $30,000 per acre. On April 2, 2010, the County, "in cooperation with the [Board]," formally offered to pay Post $30,000 per acre for the development easement.
Post did not accept the offer but instead, through counsel, wrote two letters. First, on April 14, 2010, counsel wrote to the County disapproving its offer, but indicating that "Ms. Post will agree to sell a development easement for [Riamede Farm] for $39,000 per acre.*fn4 Five days later, counsel wrote the Committee's Executive Director, Susan E. Craft, requesting reconsideration of the Committee's "certified value," and offering constructive criticism of DiSanto's and Cooper's conclusions. The letter also reminded Craft that in November 2009, before Brodowski reviewed the appraisals, Post had submitted "a detailed report of her review of the two appraisals, as well as review reports . . . of the two appraisals prepared by Thelma K. Achenbach, a [Committee] Approved Appraiser, and an independent appraisal of the Property prepared by Michael E. Holenstein, also a [Committee] Approved Appraiser."
Craft responded to Post's attorney on May 11, 2010. She impliedly rejected formal reconsideration by the Committee of its certification of value. Additionally, she outlined the Committee's position indicating that it does "not evaluate appraisals that have not been contracted for by [a Board] for purposes of determining certification of value for the cost share grant, nor does the [Committee] consider the conclusions of the landowner and/or other parties interested in the transaction." Nevertheless, Craft supplied six single-spaced pages of "general observations" responding to Post's (not her attorney's) submission. Dissatisfied with this response, Post filed her first notice of appeal on June 16, 2010.
On June 30, 2010, Post voluntarily withdrew this notice of appeal because the Committee agreed to allow her to present a request for reconsideration at a public hearing. On December 9, 2010, Post made a presentation where she argued for an upward adjustment to the development easement's valuation. The Committee adjourned without deciding the issue and stated that its staff would review Post's information and arguments.
On February 24, 2011, the Committee discussed Post's case in a closed session and unanimously found "no basis for amending that certification or recertification of value from [its] original value." Post's second notice of appeal followed on April 11, 2011.*fn5
On appeal, Post presents the following arguments for our consideration:*fn6
POINT I: THE [COMMITTEE'S] DECISION DENYING APPELLANT'S REQUEST FOR RECONSIDERATION WAS NOT BASED UPON ADEQUATE FINDINGS AND CONCLUSIONS.
POINT II: THE APPRAISAL REPORTS FAILED TO DETERMINE THE VALUE OF THE PROPERTY FOR "AGRICULTURAL PURPOSES" IN VIOLATION OF N.J.S.A. 4:1C-31.
A. THE RIGHT TO FARM ACT REQUIRES APPRAISALS THAT DETERMINE AGRICULTURAL VALUE.
B. IT WAS CLEAR ERROR FOR THE APPRAISERS TO USE HIGH END LOTS AS COMPARABLES.
C. THE APPRAISALS FAILED TO MAKE APPROPRIATE ADJUSTMENTS TO THE ESTATE LOT COMPARABLES.
1. FAILURE TO CORRECTLY CONSIDER FOR RESIDENTIAL OPPORTUNITIES.
2. FAILURE TO DETERMINE "RESTRICTED VALUE" CONSISTENT WITH HISTORICAL "RESTRICTED VALUES" IN CHESTER TOWNSHIP.
3. REFUSAL TO CONSIDER DATA OF PRESERVED FARM SALES ...