New Jersey’s Right to Farm Act Part Two – Eligibility Requirements Under The Act

Part two of the three-part series will cover the eligibility requirements under the Right to Farm Act. (N.J.S.A. 4:1C-1 et seq.) which was originally adopted in 1983. In Part One, we provided an overview of the Right to Farm Act.

The New Jersey Appellate Division described the policies behind the Right to Farm Act (“RTFA”) and the balancing act sought to be achieved by the New Jersey legislature as follows:

The Right to Farm Act, initially passed in 1983, was enacted to “promote, to the greatest extent practicable and feasible, the continuation of agriculture in the State of New Jersey while recognizing the potential conflicts among all lawful activities in the State.” Senate Natural Resources and Agriculture Committed Statement, Senate, No. 854- L. 1983, c. 31. Among the Legislature’s findings set forth in N.J.S.A. 4:1C-2 was its recognition that the “retention of agricultural activities would serve the best interest of all citizens of this State by insuring the numerous social, economic and environmental benefits which accrue from one of the largest industries in the Garden State.” N.J.S.A. 4:1C-2a. However, the Legislature also recognized the tension existing between agriculture and other uses of the land, stating, for instance: “It is the express intention of this act to establish as the policy of this State the protection of commercial farm operations from nuisance action[s], where recognized methods and techniques of agricultural production are applied, while, at the same time, acknowledging the need to provide a proper balance among the varied and sometimes conflicting interests of all lawful activities in New Jersey.” N.J.S.A. 4:1C-2e; see also Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 346, 839 A.2d 110 (App.Div.), certif. denied,179 N.J. 372, 845 A.2d 1254 (2004). The limitation of the Act’s provisions to “commercial” farms constitutes a mechanism by which that balance was struck.

In re Tavalario, 386 N.J.Super. 435 (App.Div, 2006).

Therefore, the starting point for any RTFA case is evaluating whether the farm in question is a “commercial farm”, a term defined in the RTFA. If the farm in question does not meet the definition of a commercial farm, the County Agricultural Development Board (CADB) cannot hear the dispute. Under the RTFA,

“Commercial farm” means (1) a farm management unit of no less than five acres producing agricultural or horticultural products worth $2,500 or more annually, and satisfying the eligibility criteria for differential property taxation pursuant to the “Farmland Assessment Act of 1964,” P.L.1964, c.48 (C.54:4-23.1 et seq.), (2) a farm management unit less than five acres, producing agricultural or horticultural products worth $50,000 or more annually and otherwise satisfying the eligibility criteria for differential property taxation pursuant to the “Farmland Assessment Act of 1964,” P.L.1964, c.48 (C.54:4-23.1 et seq.), or (3) a farm management unit that is a beekeeping operation producing honey or other agricultural or horticultural apiary-related products, or providing crop pollination services, worth $10,000 or more annually.

In addition, a zoning and use analysis must be performed to determine if the use is permitted under the existing zoning and, if not, whether there is a “grandfather” type argument for a pre-existing use. If the agricultural use was permitted under local zoning as of December 31, 1997, and the farm is a commercial farm, the farm is entitled to the protections under the RTFA. However, if the local zoning did not permit an agricultural use as of this date, a farm can still get the protections of the RTFA if the farm was commercial farm in operation as of July 3, 1998 and the farm complies to specified agricultural management practices, conforms with all relevant federal or State statutes or rules and regulations, and does not pose a direct threat to public health and safety. N.J.S.A. 4:1C-9.

The RTFA also requires evidence that the farm meets a monetary threshold which is tied into the requirement that the farm satisfy the eligibility requirements under the Farmland Assessment Act of 1964. It is important to note that the farm is not required to apply for and obtain farmland assessment, only that it meets the eligibility criteria for farmland assessment. This type of analysis can be a bit tricky when the farming operation is not conventional.

The decision on whether to invoke the Right to Farm protections can be tricky and it is prudent to run your ideas and strategy by an experienced Agricultural and Farming lawyer. Also, under the zoning analysis, the parties will have to go back in time and assemble proof of the farming operations over a prolonged period of time. If you have any questions, please feel free to reach out to Timothy P. Duggan, Esquire, of Stark & Stark at tduggan@stark-stark.com, or 609-895-7353. Also, please be on the lookout for Part Three of this series.