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In re Cape May County/Ernest

Superior Court of New Jersey, Appellate Division

July 23, 2013

IN THE MATTER OF CAPE MAY COUNTY/ERNEST AND JANICE UTSCH AND ANNA MAY LETTS FARM.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2013

On appeal from the New Jersey State Agriculture Development Committee, No. 05-0006-PG.

Barbara L. Bakley-Marino, County Counsel, attorney for appellant Cape May County (James B. Arsenault, Jr., Assistant County Counsel, on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey State Agriculture Development Committee (Melissa H. Raksa, Assistant Attorney General, of counsel; Alison M. Reynolds, Deputy Attorney General, on the brief).

Before Judges Lihotz and Ostrer.

PER CURIAM

Petitioner, Cape May County (the County), appeals from the decision of respondent, the State Agriculture Development Committee (SADC), denying the County's grant application for monies to acquire development rights for the purpose of farmland preservation. The County argues the SADC's rejection of its application was arbitrary, capricious, unreasonable, and contrary to the statutory and regulatory framework. Alternatively, the County contends the use of SADC internal policy exceeded the agency's informal rule-making authority. Following our review of these arguments, in light of the record and the applicable law, we affirm.

I.

In 2005, Ernest and Janice Utsch and Anna May Letts (applicants) owned undeveloped realty located on New England Road, identified as Block 746, Lots 13.01 and 16.02 on the tax map of Lower Township, Cape May County (the property). Applicants filed for preliminary and final site plan approval to subdivide the property into seven residential lots, identified as Lots 13.03 through 13.09. The proposal showed Lot 13.09 abutted the Cape May Canal, Lot 13.08 abutted Bayshore Road, and five lots -- Lots 13.04, 13.05, 13.06, 13.07, and 13.09 -- had no street frontage, but the application proposed access via an easement through Lot 13.08 on "Martin's Way."

On February 9, 2006, the Lower Township Planning Board conditionally granted what it characterized as a "minor" subdivision approval, stating:

4. The application sought no variances.
5. The parcel consists of 10.92 acres.
6. Applicant testified that there is an existing single story dwelling on the property.
. . . .
8. All would have access through Martin's Way[, ] an existing right-of-way in the Township.
9. The property is to be serviced by well water and an onsite septic system for each proposed lot.. . . .
11. Applicant agrees to provide a Homeowners Association in a form satisfactory to the Board Engineer and Board Attorney for the maintenance and upkeep of the drainage easements for the proposed stone drainage trench.
12. Applicant agrees to show on the plan the placement of the disposal field for proposed Lot 13.08.

As approved, the subdivision was never recorded, as applicants never filed either a plat or deed.

On March 24, 2006, applicants filed with the Cape May County Agricultural Development Board (CADB) offering to convey a development easement, designed to restrict future non-agricultural development on the newly created Lots 13.03 through 13.07, which spanned approximately five acres. Their submission explained the "[p]roperty is located in [a] very desirable residential dev[elopement] area[, ]" and "[w]e would like to preserve it for the future [and] prevent development." The application identified the five acres to be included, and stated no portion of Lots 13.03 through 13.07 was "excepted" from the development easement. The CADB considered the offer on May 22, 2006, and recommended the County acquire the development easement.[1]

Using an SADC-approved list, the CADB selected two State certified appraisers to independently ascertain the value of the development easement. To do so, the appraisers were required to determine the property's fee simple value free of restrictions and its comparative value as a result of restrictions imposed by a development easement.

Barbara Marley Wenner, SCGREA, provided a written appraisal report on August 1, 2006, opining the unrestricted market value of the five-acre parcel was $903, 000, or $177, 000 per acre, and its development easement value was $750, 000, or $147, 000 per acre.[2] J. Paul Bainbridge, MAI, SCGREA, appraised the property on August 31, 2006, and opined, "subject to the attached assumptions and limiting conditions, " the property's unrestricted market value was $1, 625, 000, or $318, 128 per acre, and its development easement value was $1, 617, 500, or $316, 660 per acre.

Upon its receipt of the County's pre-acquisition request for a State grant sharing the development easement acquisition cost, the SADC's review appraiser considered the County's appraisal submissions and certified the development easement had an estimated value of $1, 351, 000, or $270, 200 per acre. See N.J.A.C. 2:76-17.11(e) ("The [SADC] shall appoint a review appraiser to evaluate the appraisals ...


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