Township of Franklin v. Hollander

Argued January 31, 2001

Following our decision in Villari v. Zoning Board of Adjustment, 277 N.J. Super. 130 (App. Div. 1994), where we held that the Right to Farm Act, N.J.S.A. 4:1C-1 to -10 (amended 1998) (the Act), did not preempt municipal land use authority over commercial farms, the Legislature amended the Act. L. 1998 c. 48 �� 1-8 (N.J.S.A. 4:1C-1 to -10.4). This appeal requires us to determine whether the amendments to the Act preempt municipal land use jurisdiction over such farms and, more specifically, whether a municipality may require a commercial farmer to comply with local land use ordinances including site plan approval. We conclude there is preemption, and that primary jurisdiction to regulate agricultural management practices rests with the County Agricultural Board (CAB) or the State Agricultural Development Committee (SADC). We further hold that in fulfilling their responsibility to regulate agricultural management practices under the Act, both the CAB and the SADC must consider the impact of such practices on municipalities and, in so doing, consider the limitations imposed by local land use and zoning ordinances adopted pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112. We conclude that on remand to the CAB, the CAB, exercising primary jurisdiction, must first determine whether defendant’s activities fall within the purview of “agricultural management practices.” If so, upon assuming jurisdiction, the CAB, or SADC, where appropriate, must consider not only the impact of such practices on the municipality, but the standards established by local ordinances, all within the scope of the agency’s statutory obligation to consider public health and safety. If the CAB or SADC determines that the proposed activity falls outside of the scope of agricultural management practices, jurisdiction then resides with the municipality and its appropriate agencies to enforce its local land use and other relevant ordinances.*fn1