Farming Alternatives to Traditional Land Use and Zoning Approvals

By Nicole L. Voigt, Esq., Attorney at Law

New Jersey Right to Farm Act

Pursuant to New Jersey’s Right to Farm Act, certain farms may engage in protected farming activities even if those farming activities are not permitted by the municipality in which the farm is located. The County Agricultural Development Board (CABD) can review farming activities and confirm that they are, in fact, protected by the Right to Farm Act. To do this, a farmer applies to the CABD for approval of its “Site Specific Agricultural Management Practices.” The County Agricultural Development Board can allow certain zoning requirements to be circumvented so long as the building, improvement, or activity furthers a legitimate farming interest and does not pose a direct threat to public health or safety.

Commercial Farm Eligibility

Commercial farms are defined as those farms of five or more acres which annually engage in agricultural or horticultural production worth at least $2,500.00 and which are eligible for farmland assessment. To be considered commercial, farms of less than five acres must produce a minimum of $50,000.00 annually. Beekeeping operations need only produce $10,000.00 annually in apiary-related products or crop pollination services. In order to have the protections of the Right to Farm Act, the farm must additionally be located in a zone where agriculture is a permitted use under local zoning or must have been in operation since July 2, 1998. Additionally, the farm’s agricultural development and productivity must conform to recommended agricultural management practices.

Agricultural Management Practices

Under Right to Farm, certain agricultural practices may be conducted in keeping with the agricultural management practices of the State Agricultural Development Committee (SADC). These protected activities include:

• Produce agricultural and horticultural crops, trees and forest products, livestock, poultry, or other commodities as described in the Standard Industrial Classification or North American Industry Classification System for agriculture, forestry, fishing, and trapping;
• Process and package the agricultural output of the commercial farm;
• Provide for the operation of a farm market, including the construction of building and parking areas in conformance with municipal standards;
• Replenish soil nutrients and improve soil tilth;
• Control pests, predators, and diseases of plants and animals;
• Clear woodlands using open burning or other techniques and install or maintain vegetative alterations, terrain alterations, and other physical facilities for water and soil conservation and surface water control in wetland areas;
• Conduct on-site disposal of organic agricultural wastes;
• Conduct agriculture-related educational and farm-based recreational activities provided that the activities are related to marketing the agricultural or horticultural output of the commercial farm;
• Engage in the generation of power or heat from biomass, solar, or wind energy within certain limits;
• Engage in any other agricultural activity as determined by the State Agriculture Development Committee and adopted by rule or regulation pursuant to the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C52:14B-1 et seq.); and
• House any full-time, year-round, equine-related farm employee in the same building or facility as horses in accordance with the provisions of section 3 of P.L.2020, c. 154 (C.4:1C-9.3).

Additional agricultural management practices may be approved by the SADC. For example, the SADC has passed regulations conditionally allowing certain on-farm direct marketing facilities, activities, and events. Site specific applications may be made to confirm such marketing activities are Right to Farm protected. These rules are the basis for protecting farm-based wineries, holiday festivals, and similar public events enjoyed throughout New Jersey. These activities are additionally important in supporting the economically viability of the Garden State’s long tradition of farming and agricultural production, and preservation of historic and agricultural resources.

Site Specific Agricultural Management Practices

To obtain site specific approval of such activities, application materials are submitted to the County Agriculture Development Board with requests for approval of Site Specific Agricultural Management Practices (SSAMPs). Right to Farm protected agricultural development, activities, and events must be compliant with other state and local laws, such as building code requirements and NJDEP wetlands and stormwater requirements. Farmers wishing to expand farm-related activities need to understand the distinctions between when traditional land use and zoning approvals are required or preferred, or when an activity may be approved instead under the Right to Farm Act. In all circumstances, the health and safety concerns of the local municipality will be considered. Working with an attorney on such approvals is recommended.

Special Occasion Events are Not Right to Farm Protected

A “special occasion event” means a wedding, lifetime milestone event, or other cultural or social event. In 2023, New Jersey amended the Agriculture Retention and Development Act to allow special occasion events on preserved farms. Such special occasion events are different than private and public marketing events which are protected under the Right to Farm Act provided certain standards are met. Generally, these standards confirm that the events are marketing and selling the products of the farm and any additional income is minimal. By comparison, eligible preserved commercial farms with a special occasion event approval may charge market rate venue fees, sell non-farming services, and do not need to market or sell farm products at the event. Understanding the difference between Right to Farm protected events and special occasion events is important at the planning stage, before applications are made.

Attorney Nicole Voigt is experienced in working with legal issues pertaining to New Jersey farms, including making site specific application and representing farmers in compliance under the Right to Farm Act. Ms. Voigt recommends using an experienced New Jersey farm attorney to carefully navigate the various requirements and standards involved in protected farming activities and general compliance with New Jersey’s agricultural, environmental, and land development laws. Various concerns, such as insurance and liability protections, should also be reviewed with legal counsel.  Attorney Nicole Voigt provides representation to farmers throughout the State of New Jersey and can help navigate the planning, application, and compliance processes for New Jersey farmers.

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.