Opinion
DOCKET NO. A-5166-14T1
02-02-2017
FRANK J. CASELLA, JR. and CAROLYN G. CASELLA, Plaintiffs-Appellants, v. EUGENIO POSTORIVO, HEATHER POSTORIVO and POSTORIVO FARMS, Defendants-Respondents.
Ronald P. Sierzega argued the cause for appellants (Puff & Cockerill, LLC, attorneys; Mr. Sierzega, on the briefs). Joseph M. Garemore argued the cause for respondents (Brown & Connery, LLP, attorneys; Joseph M. Feeney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-0005-15. Ronald P. Sierzega argued the cause for appellants (Puff & Cockerill, LLC, attorneys; Mr. Sierzega, on the briefs). Joseph M. Garemore argued the cause for respondents (Brown & Connery, LLP, attorneys; Joseph M. Feeney, on the brief). PER CURIAM
The question before the court regards whether the Chancery Judge properly dismissed this matter after determining jurisdiction rested solely with the county agricultural development board, as provided by the New Jersey Right to Farm Act (the Act), N.J.S.A. 4:1C-1 to 10.4. Plaintiffs Frank and Carolyn Casella, husband and wife, own realty in Woolwich Township, which is surrounded by the horse farm owned by Kings View Estates, LLC, a New Jersey limited liability company, for which Eugenio, a/k/a Gino Postorivo is the sole member and manager. Defendant sought bulk variances before the Woolwich Township Joint Land Use Board (the Board) to construct buildings on the property. When defendant failed to abide by the conditions imposed on the approval, plaintiffs initiated this action, requesting the Chancery Division enjoin defendant and provide other relief. The judge concluded sole authority over disputes regarding defendant's commercial farm rested with the Gloucester County Agricultural Development Board (Agricultural Development Board) under the Act. The judge dismissed the action and plaintiffs appealed. We affirm.
Plaintiffs' complaint named Eugenio Postorivo, Heather Postorivo, and Postorivo Farms as defendants. However, it is undisputed the property is owned by Kings View Estates, LLC, which we identify as defendant in our opinion.
Plaintiffs' residence is located on more than five acres in a rural area fronting Mill Road, surrounded on the remaining three sides by defendant's property. Defendant's property, commonly known as Postorivo Farms, consists of more than 141 acres, located in Woolwich and East Greenwich Townships. The farm was used to grow hay and engage in equine activities. Both properties are located in the R-2 zone, which permits residential and farming uses.
On December 6, 2012, the Board adopted Resolution #2012-25, conditionally approving the application submitted by Postorivo, on August 23, 2012. The resolution stated the "qualified Farm per tax records," requested seven bulk variances for construction of a single-family home, a boat house, a barn, a garage, two storage buildings, a tennis court, two entrance gates, and to erect a sign. The barn was proposed to be constructed near the property line adjacent to plaintiffs' property, with the front of the barn facing away from their home. Further, the application sought to erect the barn prior to any other structure. Postorivo
testified that no commercial business would take place on the property. The horses housed in the barn would all be personal horses and that no horses would be boarded at the premises for rent. There would not be commercial events at the premises. It would be friends and family who seek to ride their horses on the property and visit with the Postorivo family.
The Board's resolution also reflected plaintiffs appeared before the Board where Frank Casella testified. He raised concerns "centered primarily on requesting that the [Board] take appropriate steps to address serious flooding issues from water that runs off [defendant's] property onto [his] neighboring . . . property. Additionally, [he] raised concerns with lights spilling over the property line onto his property." We note Frank is a member of the Board and abstained from the vote.
By a 6-0 vote, the Board approved several variance requests, including the location of the proposed horse barn, at least fifty feet from plaintiffs' property line. However, it specifically denied the application to "begin construction on the horse barn prior to the issuance of a construction permit for the principal building." In reciting the negative criteria was not overcome by sufficient proofs, the Board noted its "concern that the main house might never be constructed leaving only the accessory horse barn." The Board mandated compliance with Township Ordinance § 203-41B(3)(f), which required defendant must obtain a "construction permit for the main house prior to issuance of a construction permit for the horse barn, or any other accessory building."
Following approvals, according to plaintiff, defendant constructed "an incredibly large barn and accessory structures, specifically . . . a smoke box and . . . a coal gun stove[,] immediately adjacent to [plaintiffs'] property" without seeking a construction permit for the main house. Further, during all four seasons, defendant conducted commercial activities in the barn, as advertised on its website, including riding lessons and horse training, horse boarding, "pony parties, horse shows and other equine activities," so that as many as fifty horses were located at the farm on a weekend.
Plaintiffs filed an order to show cause and verified complaint seeking to: enjoin all commercial activities on defendant's property; relocate the smoke box; complete construction of the storm water control basin as shown on the plans approved by the Board; remove the barn; and award damages and attorney's fees. The complaint also alleged harassment and nuisance. On December 17, 2014, the Woolwich Township Zoning and Code Enforcement Officer issued a letter instructing defendant to cease commercial business activity on the property. On February 17, 2015, Judge Anne McDonnell granted plaintiffs' request for temporary restraints and scheduled a hearing. Defendant answered and moved to dismiss the complaint.
The complaint's fourth count insufficiently pled defendant's actions constituted a tort.
Defendant, while self-represented, also moved to dissolve the temporary restraints, which was denied.
The motion to dismiss stated defendant had not realized farm activities were governed by the Agricultural Development Board, pursuant to the Act, and he mistakenly submitted an application to the Board. Defendant attested an application to the Agricultural Development Board was approved on March 19, 2015, designating defendant's property as "a commercial farm," engaged in qualified agricultural management practices subject to the Act. The motion to dismiss asserted the Chancery Division lacked jurisdiction, as plaintiffs' claims "seek to abate agricultural management practices . . . approved by the [Agricultural Development Board]," which had primary jurisdiction to address defendant's use of the farm property. Citing provisions of the Act, defendant urged dismissal of plaintiffs' action, as they must first present their grievances before the Agricultural Development Board.
During the June 2, 2015 hearing before Judge McDonnell, the parties initially presented arguments on the motion to dismiss. Defendant also represented the smoke box was replaced with a new system, which created neither smoke nor noise; agreed to address the drainage issue and install a tree-buffer zone along plaintiffs' property line; and actively was proceeding with construction of the main house, anticipated to commence in August or September 2015. The parties consented to continue attempts to narrow concerns and disputes. The matter was scheduled to return on June 11, 2015.
Settlement efforts were not successful. The judge considered final arguments and issued an oral opinion, granting defendant's motion to dismiss. Judge McDonnell concluded the Agricultural Development Board was the proper forum to consider the present disputes and transferred the matter. The June 25, 2015 order required deference be afforded to the local zoning regulations, ordinances, and specifically Resolution #2012-25. A separate order vacated its previously exercised jurisdiction over a related municipal summons and complaints, returning the matters to the municipal court for review.
On appeal, plaintiffs argue the judge erroneously dismissed their complaint. Plaintiffs maintain defendant remains bound by its choice to request variance approval from the Board, rather than initiate administrative review before the Agricultural Development Board as provided by the Act, and must comply with the terms of the resolution and referenced ordinances. Therefore, review of issues arising from the Board's resolution were properly before the Chancery Division. We are not persuaded.
In our review of this legal issue, "we owe no deference to the interpretive conclusions of the trial court," Allstate N.J. Ins. Co. v. Lajara, 222 N.J. 129, 139 (2015), because "[a]n appellate court interprets . . . statutes . . . de novo . . . ." Mortgage Grader, Inc. v. Ward & Olivio, L.L.P., 225 N.J. 423, 435 (2016).
As noted by Judge McDonnell, our Supreme Court recognized the Act implicates "the relationship between commercial farming activities . . . and the right of municipalities to enforce local zoning and land use ordinances enacted pursuant to the Municipal Land Use Law (MLUL)[,]" N.J.S.A. 40:55D-1 to -129. Township of Franklin v. den Hollander, 172 N.J. 147, 149 (2002). In that matter, the Court affirmed the opinion of Judge Philip Carchman of this court, and held the Act "preempts municipal land use authority over commercial farms." Id. at 150.
"Preemption is a judicially created principle based, in part, on the proposition that a municipality, as an agent of the State, cannot take action contrary to the State." den Hollander, supra, 338 N.J. Super. at 388. "A municipality, therefore, may not contradict a policy established by the Legislature." Ibid. --------
"The Act represents a legislative determination '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.'" Township of Franklin v. den Hollander, 338 N.J. Super. 373, 383 (App. Div. 2001) (quoting Senate Natural Resources and Agriculture Committee, Statement to S. 854 (L. 1983, c. 31), aff'd o.b. 172 N.J. 147 (2002). The Legislature clearly articulated its legislative findings, stating:
a. 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;
b. Several factors have combined to create a situation wherein the regulations of various State agencies and the ordinances of individual municipalities may unnecessarily constrain essential farm practices;
c. It is necessary to establish a systematic and continuing effort to examine the effect of governmental regulation on the agricultural industry;
d. All State departments and agencies thereof should encourage the maintenance of agricultural production and a positive agricultural business climate;
e. 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, 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-2.]
In order to assure "the State's regulatory action with respect to agricultural activities" was "undertaken with a more complete understanding of the needs and difficulties of agriculture," the Act established the State Agriculture Development Committee within, but independent of, the Department of Agriculture, N.J.S.A. 4:1C-4(a). The Committee is empowered to review and negotiate a recommended resolution "[u]pon a finding of conflict between the regulatory practices of any State instrumentality and the agricultural management practices recommended by the committee . . . ." N.J.S.A. 4:1C-6(d).
To effectuate its express purpose, the Act requires its provisions are paramount to "any municipal or county ordinance, resolution, or regulation to the contrary." N.J.S.A. 4:1C-9. See also Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 347 (App. Div.) ("The Farm Act renders its provisions preeminent to 'any municipal or county ordinance, resolution, or regulation to the contrary,' N.J.S.A. 4:1C-9, and . . . the Supreme Court [has] found the . . . Act's provisions preeminent over a municipality exercising its powers under the [MLUL]."), certif. denied, 179 N.J. 372 (2004).
Further, the Act creates an
irrebuttable presumption that no commercial agricultural operation, activity or structure which conforms to agricultural management practices recommended by the committee and adopted pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c. 410 (C.52:14B-1 et seq.), or whose specific operation or practice has been determined by the appropriate county board, or in a county
where no county board exists, the committee, to constitute a generally accepted agricultural operation or practice, and all relevant federal or State statutes or rules and regulations adopted pursuant thereto and which does not pose a direct threat to public health and safety, shall constitute a public or private nuisance, nor shall any such operation, activity or structure be deemed to otherwise invade or interfere with the use and enjoyment of any other land or property.
[N .J.S.A. 4:1C-10.]
Also established is a centralized and specialized regulatory process to protect one of the largest industries in New Jersey. N.J.S.A. 4:1C-2(a), (c). This includes administrative procedures to be followed by a person "aggrieved by the operation of a commercial farm," who may file a complaint before the county agriculture development board, N.J.S.A. 4:1C-10.1(a), whose determination is appealed to the State Agriculture Development Committee, N.J.S.A. 4:1C-10.1(d), with the right of direct appeal to this court, N.J.S.A. 4:1C-10.1(e). See R. 2:2-3(a)(2).
The Court held primary jurisdiction to review commercial agricultural operations challenges rests, in the first instance, with this administrative process and not with the courts. den Hollander, supra, 172 N.J. at 11. Having reviewed each of plaintiffs' arguments, we disagree this principle is inapplicable to this matter.
"[P]rimary jurisdiction recognizes that both the administrative agency and the courts have subject matter jurisdiction, but for policy reasons, the agency should exercise its jurisdiction first." Borough of Closter, supra, 365 N.J. Super. at 348-49 (citation omitted). Primary jurisdiction "comes into play whenever enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body." United States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S. Ct. 161, 165, 1 L. Ed. 2d 126, 132 (1956).
As applied, the Act requires the county agricultural development board first examine any challenges that bear on commercial farming operations. Although the Act protects farming operations, its scope is not unbridled.
In other words, although the [county agricultural development board] and the [State Agricultural Development Committee] have primary jurisdiction over disputes between municipalities and commercial farms, the boards do not have carte blanche to impose their views. Because the authority of the agricultural boards is not unfettered when settling disputes that directly affect public health and safety, the boards must consider the impact of the agricultural management practices on public health and safety . . . .The Court approved this court's specific consideration of this issue, which stated:
[den Hollander, supra, 172 N.J. at 151.]
While we recognize that the preemption doctrine may appear to give expansive and unlimited jurisdiction over agricultural practices to the [county agricultural development board] or [State Agricultural Development Committee], we conclude that the legislative imperative requiring attention to public health and safety also imposes a limitation on such jurisdiction and requires the respective boards to consider the impact of municipal land use ordinances. When assessing the nature of . . . various farm structures, land coverage, and other related matters, the use of such structures and coverage may properly be considered relevant agricultural management practices, but the impact of those practices on, for example, water run-off, stream encroachment, and the creation of impervious areas may also directly impact on public health and safety so as to compel the [county agricultural development board] or [State Agricultural Development Committee] to temper its determinations with these standards in mind. By including the issue of public health and safety as a limitation on the scope of the Act, the Legislature demonstrated an intent to impose on the [county agricultural development board] and [State Agricultural Development Committee] an obligation to consider these factors in all contexts, including relevant local land use ordinances. . . . We recognize that while the municipal limitations imposed on such practices may be more restrictive than those required to satisfy the standards of legitimate agricultural practices, the municipal limitations may nevertheless provide an appropriate measure for consideration by the [county agricultural development board] or [State Agricultural Development Committee]. To reiterate, an
initial determination must be made by the agency as to whether an agricultural management practice is involved, and having determined that a subject practice is at issue, [county agricultural development board] or [State Agricultural Development Committee] must then consider relevant municipal standards in rendering its ultimate decision.
[den Hollander, supra, 338 N.J. Super. at 392-93.]
Judge Carchman elaborated on the mandate attached to the exercise of review, stating the county agriculture development board
must act in a manner which gives appropriate consideration not only to the agricultural practice at issue, but to local ordinances and regulations as well, including land use regulations which may impact on the agricultural practice. It is not difficult to envision a scenario, as suggested by plaintiff here, where a commercial farm operator may seek to extend what appears to be an accepted agricultural management practice to such an extent that it is so violative of local land use ordinances as to be beyond the ken of reasonable conduct despite falling within the scope of the Act.
[den Hollander, supra, 338 N.J. Super. at 390-91.]
"There will be those cases where the local zoning ordinance simply does not affect farming." den Hollander, supra, 172 N.J. at 152. "There will be other disputes where, although the ordinance has a peripheral effect on farming, it implicates a policy that does not directly conflict with farming practices. In such cases greater deference should be afforded to local zoning regulations and ordinances." Ibid.
Guided by this authority, we conclude plaintiffs' attack on the order transferring the matter to the Agricultural Development Board for administrative review of whether the complaint challenges legitimate agricultural management practices protected by the Act falls short. See Curzi v. Raub, 415 N.J. Super. 1, 8-9 (App. Div. 2010) (vacating money judgment against a farmer and, on remand, directing the case be transferred to the county agricultural development board).
First, we do not agree defendant waived the Agricultural Development Board's jurisdictional review. "Waiver, under New Jersey law, involves the intentional relinquishment of a known right, and thus it must be shown that the party charged with the waiver knew of his or her legal rights and deliberately intended to relinquish them." Shebar v. Sanya Bus. Sys. Corp., 111 N.J. 276, 291 (1988). The party waiving a known right must do so clearly, unequivocally, and decisively. Country Chevrolet, Inc. v. Twp. of N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983). Often times, "[q]uestions of waiver, therefore, are usually questions of intent, which are factual determinations . . . ." Estate of Cohen v. Booth Computers, 421 N.J. Super. 134, 149 (App. Div. 2011).
Defendant satisfactorily proved to the Chancery Division it was unaware of its right to proceed under the Act, when appearing self-represented before the Land Use Board. After learning of the administrative process, sought and obtained a determination its overall farming activities fell within the scope of the Agricultural Development Board's review. We defer to the judge's finding defendant lacked intent to waive the Act's provisions, which was supported by the evidential record. See Borough of Closter, supra, 365 N.J. Super. at 354 (holding based on "the strong legislative purpose of the Farm Act . . . we elect not to presume that defendant's counsel must have known the law").
Second, we disagree the Act does not apply to the controversy between the parties. As we have outlined, the agricultural board in the first instance must determine whether plaintiffs' grievances implicate a subject commercial agricultural practice or fall outside the scope of its authority. If the Agricultural Development Board assumes jurisdiction, it determines whether the practices at issue present a "direct threat to public health and safety" with an eye toward harmonizing "the policy considerations which mandate protection for the State's agricultural industry with the important and well-recognized local control of land use development." den Hollander, supra, 338 N.J. Super. at 394.
Finally, we reject as unfounded plaintiffs' general assertion they are left without relief or a remedy. We also find unavailing the application of other equitable remedies. R. 2:11-3(e)(1)(E).
The Act allows full presentation of their complaints, which have yet to be considered on the merits, before the administrative body charged with undertaking review, which will weigh local ordinances and Resolution #2012-25, including possible inconsistent representations by defendant. This procedure allows a full evaluation of these issues informed by the agency's expertise to protect commercial farming from private causes of action claiming the activities create a nuisance. As the Court advised:
Agricultural activity is not always pastoral. The potential for conflict between farming interests and public health and safety exists. Nevertheless, we repose trust and discretion in the agricultural boards to decide carefully future disputes on a case-by-case basis and to balance competing interests. We are confident that the boards will conduct those proceedings and reach their determinations in good faith, cognizant that the benchmark for those decisions is the understanding that government has an obligation to deal forthrightly and fairly with property owners and their neighbors.
[den Hollander, supra, 172 N.J. at 153 (citing Citizens for Equity v. Dep't. of Envtl. Prot., 126 N.J. 391, 397, (1991)).]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION