*Also see the last article on this subject: Voigt October 2023 Comments on SADC Soil Disturbance on Preserved Farmland and Supplemental Soil Disturbance Standards and next article on this subject: Major Revisions to SADC Proposal Regarding Preserved Farmland.

The State Agriculture Development Committee (SADC) has proposed new rules N.J.A.C. 2:76-25 and 25A which propose to regulate Soil Disturbance on Preserved Farmland and Supplemental Soil Disturbance Standards. 55 N.J.R. 8(1), August 7, 2023. The proposed rules are legally problematic and must be withdrawn. The public comment period for this Rulemaking has been extended to February 23, 2024.  

In my second round of comments, I break down 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), to dispel the misconception that the Court opinion necessitates the soil disturbance rules now proposed by the State Agriculture Development Committee.  A complete copy of these comments are available by this link: January 16, 2024 comments.

In its summary of the proposed rules, the S.A.D.C. advised that the New Jersey Supreme Court , in State of New Jersey, State Agriculture Development Committee v. Quaker Valley Farms, LLC, 235 N.J. 37 (2018), “cautioned the State Agriculture Development Committee (“Committee” or “S.A.D.C.”) to adopt regulatory standards balancing the nature and extent of soil disturbance with permissible agricultural development on preserved farms.” (See, Summary of proposed rules, 55 N.J.R. 8(1), August 7, 2023). Respectfully, I believe this reiterates a common misperception that the New Jersey Supreme Court mandated the S.A.D.C. to adopt such standards, which is not accurate.  Instead:

• The S.A.D.C. has no such mandate or authority to develop a retroactive soil disturbance limit pursuant to the Agriculture Retention and Development Act, J.S.A. 4:1C-11 et seq. (“A.R.D.A.”) or the Quaker Valley Farms decision.
• The New Jersey Supreme Court comments regarding the adequacy of regulatory standards to reconcile the deed of easement in Quaker Valley Farms is entirely distinguishable because it evaluated a 1993 preservation deed of easement. The 1993 preservation deed of easement did not require farm conservation planning.  The S.A.D.C. added the farm conservation planning requirement to deeds of easement in 1994, and its rulemaking comments stated: “The [farm conservation] plan contains the soil and water conservation practices which are needed for the specific type of agricultural operation. * * * Ultimately, the measure of compliance is the Grantor’s conformance with the farm conservation plan.”26 J.R., at 3161.  Quaker Valley Farms was not required to have a farm conservation plan because deed of easement amendments are not retroactive.
• Overlooked in Quaker Valley Farms is the New Jersey Supreme Court cautionary guidance to the S.A.D.C. stating that it would not uphold S.A.D.C. enforcement actions against farmers engaging in otherwise permissible development if the alleged soil conservation violations would not have been understood by a reasonable person at the time the parties agreed to the deed of easement (i.e. retroactively imposed new expectations that would not have been reasonably expected at the time of preservation would be unenforceable)
• The Quaker Valley Farms holding is merely that, while a preserved farm owner is permitted to construct new structures for agricultural purposes and those structures may disturb soil, the permanent destruction of soil, whereby the soil is no longer available for a variety of future agricultural production, violates the preservation deed of easement if it exceeds the limit that a reasonable person would have understood at the time of preservation.
• In Quaker Valley Farms, the New Jersey Supreme Court did in fact caution the S.A.D.C. to guide farmers in balancing agricultural development against soil conservation. Legally, these comments were not necessary to decide the case, did not make law, and are therefore merely in dicta statements having no legal bearing on the case before the Court.
• In analyzing Quaker Valley Farms, it is critically important to understand that farm conservation planning and the Natural Resource Conservation Agricultural Management Practice was not utilized by Quaker Valley Farms yet would have allowed a site specific determination of Quaker Valley Farm’s soil disturbance activities. Given these facts, the materials filed by the parties with the New Jersey Supreme Court did not raise issues or brief the Court regarding farm conservation planning and the Natural Resource Conservation Agricultural Management Practice.
• If the adequacy of existing regulations was not an issue before the New Jersey Supreme Court, the Quaker Valley Farms in dicta comments can by no means be construed as a mandate to promulgate additional regulations.
• Since 1994, the S.A.D.C. requires farm conservation planning as an express provision of preservation deeds (J.A.C. 2:76-6.15(a)(7)(i) and (ii)).
• The S.A.D.C.’s Natural Resource Conservation Agricultural Management Practice was promulgated in 2000, and allows site-specific review of soil and water conservation planning based upon industry standards (N.J.A.C. 2:76-2A.7).
• The S.A.D.C. already has a practice of requiring farm conservation planning to bring farms with alleged conservation violations into compliance with the preservation deed of easement.

In response to the Quaker Valley Farms decision, the State has demonstrated its ability to map all New Jersey preserved farms, send notices to all New Jersey preserved farm owners, schedule visits to all preserved farms with greater disturbance, and engage in extensive dedication of time and resources to workshop soil conservation. Yet, it appears preserved farm owners continue to operate without an equally promoted knowledge or facilitated understanding of site-specific guideposts and regulatory compliance across multiple programs to be achieved using the farm conservation planning tool.  And, these plans might have the added benefit of qualifying preserved farm owners for grant programs.  There appears to be a missed opportunity, here.

The Quaker Valley Farms decision does not mandate that the S.A.D.C. retroactively place an arbitrary limit on the extent of otherwise permissible agricultural development or require the development of new and retroactive limitations. The Quaker Valley Farms decision cautions the S.A.D.C. to not enforce the deed of easement in a manner that would not have been understood by a reasonable person at the time of preservation. The proposed rules should be rescinded and a more farm-friendly approach to balancing agricultural development and enabling farm conservation planning should be pursued with careful consideration of the reasonable expectations of the farm owner at the time of preservation.  This is the site-specific conservation planning which the majority of farmers agreed to at the time of preservation.

A complete copy of my second round comments with references, including a copy of the outdated Quaker Valley Farms preservation deed of easement, are available by this link: January 16, 2024 comments.   My first round of comments were submitted in October of 2023.  They are available, here:  October 10, 2023 Voigt Law to SADC re Proposed Soil Disturbance Rules.  

I encourage owners of preserved farms to carefully review this rule proposal and also submit written comments before the deadline.

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.