The comments I have submitted to the SADC are twenty pages of concerns with the substantive and procedural implications of the proposed soil disturbance regulations. In sum, the proposed rules retroactively curtail agricultural development rights and in some cases residential development rights, take property rights without just compensation, discriminate against all form of agricultural production except for the most traditional methods of plant production, require navigation of overly complicated and burdensome procedures and standards that will be costly and time consuming to implement, reverse the SADC’s decades long position on the farm conservation plan as the compliance mechanism for soil conservation, limit the use of tents necessary for production related activities in an arbitrary manner that disproportionately harms equine and on-farm retail farmers, contain inherent policy inconsistencies and discriminatory provisions, put nearly fifty farms in immediate noncompliance status causing them to lose eligibility for Right to Farm protections, and create complicated waiver procedures that require a farmer directly involve the SADC in the planned conservation of soil, water, and forestry resources on the entire preserved farm after notice to abutters and municipalities. This is not an exhaustive list.  And this harm to preserved farm owners is improperly founded as the proposed rules ignore the plain and settled rules of easement construction. The New Jersey Supreme Court has made it clear that an easement holder may not expand the scope of its right in a manner than unreasonably interferes with the rights of the landowner.

Before I was a land use lawyer, I was an ecologist. Make no mistake, I appreciate conservation values and am very familiar with the depth of existing regulations that protect natural resources. Preserved farm owners remain subject to NJDEP regulations including natural resource protection laws. The soil disturbance standards are not necessary to achieve natural resource protection goals, and objecting to the standards is not an objection to resource protection. Instead, the within objections are about protecting established property rights and limiting agency overreach through retroactive restrictions. When it comes to balancing agricultural development against soil and water conservation, farm-specific soil and water conservation planning and projects are the intended compliance mechanism. This is the official position taken by the SADC since 1994, which position was not before the New Jersey Supreme Court and now seems swept under the rug. Now, the SADC reads more than is legally defensible into the New Jersey Supreme Court’s decision in State of New Jersey, State Agriculture Development Committee v. Quaker Valley Farms, LLC, 235 N.J. 37 (2018). The SADC overreaches in a manner that arbitrarily caps agricultural development even if it is done in accordance with Natural Resource Conservation Service (NRCS) guided soil and water conservation planning. This is inherently unfair and directly in conflict with the enabling statute, SADC’s own regulations, SADC’s past interpretations, and the Quaker Valley Farms decision. While the majority of farms are far under the disturbance limits, this does not justify wrong action, and agency overreach left unchecked will not stop with these regulations, nor with those farms that are currently over the 12 per cent limit.

The proposed rules are a giant leap from the concept of permissible agricultural development balanced against reasonable soil and water conservation practices to the much more stringent concept of arbitrary limits on agricultural development and soil disturbance regardless of soil and water conservation practices. A cap on soil disturbance, and exemptions that only support a limited variety of agricultural production, are arbitrary and capricious, exceed the SADC’s delegated authorities, take property rights without just compensation, discriminate economically without a rational basis, and interfere with ARDA’s Legislative findings and declarations, which require that the SADC encourage the maintenance of agricultural production and a positive agricultural business climate and make available to preserved farm owners financial, administrative and regulatory benefits in exchange for participation in the farmland preservation program. N.J.S.A. 4:1C-12. The proposed rules will have a chilling effect on not only agricultural development, but also farmland preservation, and they should be withdrawn. Compliance with the deed of easement and the directives of Quaker Valley Farm are already provided for through farm conservation planning. 

To read the entirety of my comments on the proposed rules, see: October 10, 2023 Voigt Law to SADC re Proposed Soil Disturbance Rules.

THE INFORMATION CONTAINED HEREIN IS GENERAL INFORMATION, IS NOT LEGAL ADVICE, AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. YOUR SPECIFIC FACTS AND CIRCUMSTANCES MUST BE CAREFULLY REVIEWED WITH A RETAINED ATTORNEY PRIOR TO REACHING LEGAL CONCLUSIONS.

You may contact Nicole at (908)801-5434 or info@nlvlegal.com. For more information, visit www.voigtlawoffice.com.