N.J. Admin. Code § 2:76-2.3

Current through Register Vol. 56, No. 11, June 3, 2024

Section 2:76-2.3 - Determinations of site-specific agricultural management practices where a board exists

(a) In counties where a board exists, a commercial farm owner or operator that meets the eligibility criteria pursuant to 4:1C-3 and 9 may submit an application to the board to determine if his or her operation constitutes a generally accepted agricultural operation or practice included in any of the permitted activities set forth in 4:1C-9.

1. The commercial farm owner and/or operator and board staff may hold a pre-application meeting or meetings to discuss application requirements, board jurisdiction and procedures, and any other related matter.

(b) The board shall advise the Committee and the clerk(s) of the municipality(ies) in which the commercial farm is located, in writing, of the nature of the application within 10 days of the filing of the request.

(c) The board shall, at one or more regular meeting(s), determine commercial farm eligibility and/or determine whether the operation or practice is included in one or more of the permitted activities set forth in 4:1C-9.

(d) In determining whether a commercial farm owner or operator meets the eligibility criteria pursuant to 4:1C-3 and 9, the board shall request the commercial farm owner or operator to provide the following in certification form:

1. Proof that the commercial farm is no less than five acres, produces agricultural/horticultural products worth $ 2,500 or more annually, listing said products, and is eligible for differential property taxation pursuant to the Farmland Assessment Act of 1964 or, if the commercial farm is less than five acres, produces agricultural/ horticultural products worth $ 50,000 or more annually and otherwise satisfying the eligibility criteria for differential property taxation pursuant to the Farmland Assessment Act of 1964; and

2. Proof that the farm is located in an area in which, as of December 31, 1997 or thereafter, agriculture has been a permitted use under the municipal zoning ordinance and is consistent with the municipal master plan, or which commercial farm was in operation as of July 2, 1998.

(e) In the event the commercial farm owner or operator has sought approval of the agricultural operation or practice from the municipality in which the commercial farm is located, the board shall consider, at a minimum, any operation or practice, the approval of which has not been granted by the municipality.

(f) If appropriate, one or more board members or board staff may inspect the farm operation to confirm commercial farm eligibility and/or to verify that the operation or practice is included in one or more of the permitted activities set forth in 4:1C-9. If board members conduct the inspection, the board shall ensure that less than a quorum, as defined in the Senator Byron M. Baer Open Public Meetings Act, 10:4-6 et seq., is present at the inspection.

(g) If the board determines that the farm operation is not a commercial farm pursuant to 4:1C-3 and/or that the operation or practice is not included in any of the activities permitted by 4:1C-9, then the board shall pass a resolution dismissing the request. The resolution shall contain detailed findings of fact and conclusions of law, and references to any supporting documents. The resolution shall be forwarded to the commercial farm owner and/or operator, the Committee, the municipality(ies) in which the commercial farm is located, and any other individuals or organizations deemed appropriate by the board within 30 days of passage of the resolution.

(h) Board checklist. If the board determines that the farm operation is a commercial farm pursuant to 4:1C-3 and that the operation or practice is included in any of the activities permitted by 4:1C-9, then the board and/or board staff may request that the commercial farm owner or operator provide information using a checklist adopted by the board.

1. The checklist shall enumerate the data and materials reasonably necessary for the board to make an informed judgment on an application.

2. The checklist shall include, at a minimum, the following components:

i. Site plan elements to identify site location, extent and orientation, existing and proposed site conditions, location and availability of development infrastructure, detailed parking and traffic improvements and dedications, drainage provision, and the location of signage and lighting;

ii. A list of regulatory approvals or permit requirements;

iii. A list of studies required to assess the suitability of the site and impacts of the operation or practice that is the subject of the application submitted pursuant to this section;

iv. A schedule of municipal planning and zoning requirements and exemptions from the schedule sought by the commercial farm; and

v. Submittal of a farm conservation plan or documents showing active efforts to obtain a farm conservation plan in a timely manner.

3. The board and/or board staff shall have the discretion to waive, reduce, and/or determine the nonapplicability of checklist items in its review of an application filed by a commercial farm owner and/or operator pursuant to this section. The board may delegate this function to board staff, with final review and decision making authority vested in the board. In making such decisions, the board and board staff shall consider relevant site-specific elements, such as, but not limited to, the following:

i. The farm's setting and surroundings;

ii. The scale and intensity of the proposed operation(s) or practice(s);

iii. The type and use of the public road on which the operation or practice is located; and

iv. When applicable, the minimum level of improvements necessary to protect public health and safety.

4. Subject to the provisions of (k) below, the board may retain jurisdiction over any or all municipal ordinances and/or county resolutions as they apply to the commercial farm owner or operator's application for a site-specific agricultural management practice determination.

5. The commercial farm owner or operator may employ appropriate professional(s), at the commercial farm owner or operator's sole expense, as it determines necessary to prepare the application and checklist items and to testify before the board in support of the application.

(i) If the board determines that the application and checklist items are complete, then the board shall hold a public hearing in accordance with the hearing procedures set forth in 2:76-2.8.

(j) In determining whether or not to approve site-specific agricultural management practices, the board may consult with the following agencies, organizations, or persons:

1. The New Jersey Department of Agriculture;

2. The State Agriculture Development Committee;

3. The New Jersey Agricultural Experiment Station, including appropriate county agents;

4. Other County Agriculture Development Boards;

5. The State Soil Conservation Committee;

6. Any other states' Departments of Agriculture, land grant institutions or Agricultural Experiment Stations;

7. The United States Department of Agriculture or any other Federal governmental entity;

8. County engineering staff and/or any other licensed professional employed by the county; or

9. Any other organization or person which may provide expertise concerning the particular practice.

(k) The board shall have no authority to determine the commercial farm owner or operator's compliance with State laws, rules, and regulations delegated to the municipality or county for administration and enforcement including stormwater management and construction code requirements, unless the municipal ordinance or county resolution, or any portion(s) thereof, effectuating the delegation exceed(s) State regulatory standards. If a municipal ordinance or county resolution, or any portion(s) thereof, exceed(s) State regulatory standards, then the board shall have the authority to determine whether the ordinance or resolution, or portion thereof, that exceeds such State regulatory standards is preempted by the board's approval of the commercial farm owner or operator's site-specific agricultural management practice.

(l) The board shall pass a resolution granting, with or without conditions, or denying the request for a site-specific agricultural management practice determination. The resolution shall contain detailed findings of fact and conclusions of law, including commercial farm eligibility, the relationship(s), if any, between the operation or practice that is the subject of the application submitted pursuant to this section and any activity permitted pursuant to 4:1C-9, and include references to any supporting documents. The resolution shall be forwarded to the commercial farm owner and operator, the Committee, the municipality(ies) in which the commercial farm is located, and any other individuals or organizations deemed appropriate by the board within 30 days of passage of the resolution.

(m) Any person aggrieved by any decision of a board regarding site-specific agricultural management practices may appeal the decision to the Committee in accordance with the provisions of the Administrative Procedure Act, 52:14B-1 et seq., and 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1, within 45 days from receipt of the board's decision.

1. The decision of the Committee shall be considered a final administrative agency decision.

2. If the board's decision is not appealed within 45 days, the board's decision is binding.

N.J. Admin. Code § 2:76-2.3

Repeal and New Rule, R.1993 d.223, effective 5/17/1993.
See: 25 N.J.R. 622(a), 25 N.J.R. 1963(a).
Section was "Dispute procedures".
New Rule, R.1999 d.198, effective 6/21/1999.
See: 31 N.J.R. 816(a), 31 N.J.R. 1603(a).
Former N.J.A.C. 2:76-2.3, Utilization of agricultural management practices, recodified to N.J.A.C. 2:76-2.5.
Amended by R.2014 d.057, effective 4/7/2014.
See: 45 N.J.R. 1449(a), 46 N.J.R. 599(a).
Section was "Recommendations of site specific agricultural management practices where a board exists". Rewrote the section.