IN RE THE PINELANDS COMMISSION'S CONSISTENCY DETERMINATIONS APPROVING TUCKAHOE TURF FARM INC.'S APPLICATION NO. 1984-0389.009 (PINELANDS COMMISSION)(CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5025-14T2
A-3417-15T2
A-3670-16T2
IN RE THE PINELANDS
COMMISSION'S CONSISTENCY
DETERMINATIONS APPROVING
TUCKAHOE TURF FARM INC.'S
APPLICATION NO. 1984-0389.009.
_______________________________
Argued May 2, 2018 — Decided July 12, 2018
Before Judges Fuentes, Koblitz and Suter.
On appeal from the Pinelands Commission,
Docket No. 1984-0389.009.
Renee Steinhagen argued the cause for
appellants Pinelands Preservation Alliance
and NJ Conservation Foundation (New Jersey
Appleseed PILC, attorneys; Renee Steinhagen,
on the brief).
Bruce A. Velzy, Deputy Attorney General,
argued the cause for respondent New Jersey
Pinelands Commission (Gurbir S. Grewal,
Attorney General, attorney; Jason W. Rockwell,
Assistant Attorney General, of counsel; Bruce
A. Velzy, on the brief).
William F. Harrison argued the cause for
respondent Tuckahoe Turf Farm, Inc. (Genova
Burns LLC, attorneys; William F. Harrison and
Jennifer Borek, of counsel and on the brief;
Lawrence Bluestone, on the brief).
PER CURIAM
Objectors Pinelands Preservation Alliance and the New Jersey
Conservation Foundation appeal from three "No Further Review"1
letters issued by the Executive Director of the Pinelands
Commission (Commission). We consolidated the three appeals and
now issue one opinion. The No Further Review letters ended
Commission review of development applications submitted by
Tuckahoe Turf Farm, Inc. (Tuckahoe) to allow soccer activities
across land owned by Tuckahoe in Atlantic and Camden counties.
Objectors argue the Commission failed to follow proper procedure
and ultimately violated the Pinelands Protection Act (PPA),
N.J.S.A. 13:18A-1 to -29, when it failed to hold public hearings
prior to ending Commission review of Tuckahoe's development
applications. The Commission instead entered into a settlement
that objectors argue is not a permitted procedure under the
Pinelands' Comprehensive Management Plan (CMP), N.J.A.C. 7:50-1.1
to -10.35, or the PPA. Objectors also argue that although the
Legislature amended the PPA in 2016 to include soccer and soccer
activities as low intensity recreational uses allowed on the
1
"No Call Up" and "No Further Review" are used interchangeably.
We will refer to these communications as "No Further Review"
letters.
2 A-5025-14T2
Agricultural Production Area (APA), the Commission failed to issue
a conforming rule amending the CMP, thus making the Commission's
final No Further Review letter invalid. We disagree and affirm.
Tuckahoe is a family-owned farm consisting of approximately
710 acres located in the towns of Hammonton (Atlantic County), and
Winslow and Waterford Townships (Camden County). All of the
property is located in the Pinelands Protection Area, N.J.S.A.
13:18A-3(k), within an area designated by the CMP as an APA. For
more than thirty years, Tuckahoe has operated as a sod farm.
All of Tuckahoe's properties in Hammonton and the majority
of those in Waterford are subject to deed restrictions granted to
the New Jersey Department of Environmental Protection (DEP) under
the CMP's Pinelands Development Credit (PDC) program, N.J.A.C.
7:50-5.41 to -5.50. Certain parcels of Tuckahoe's properties in
Waterford and Hammonton are also subject to "State of New Jersey
Agriculture Retention and Development Program Deeds of Easement"
from the State Agriculture Development Committee (SADC).
After the 2008 economic recession, Tuckahoe shifted its sod
market from residential and commercial developers to amateur and
professional sports leagues. To market its turf grass, Tuckahoe
developed "an innovative and unique form of agritourism" by
inviting soccer tournaments to take place on the sod farm.
3 A-5025-14T2
Tuckahoe entered into an agreement with a local soccer club
and the Mid-Atlantic Soccer Showcase League Foundation (MSSL) to
conduct soccer tournaments and other activities on its properties.
The events were held on thirty-five fields: fifteen percent or
less of the total Tuckahoe acreage. Tuckahoe hosted eight weekend
tournaments per season attended by more than 3000 people per day.
Tuckahoe rotated field use to minimize wear and tear on the turf
and to accommodate the harvesting schedule. Temporary parking was
established directly on the ground in harvested areas where no
replanting had yet occurred. No permanent structures were built.
In 2013, objectors reported to the Commission that Tuckahoe
was conducting soccer tournaments on portions of its farm. The
Commission met with Tuckahoe, representatives of MSSL and the
local soccer club, and Waterford Township officials in a pre-
application conference, N.J.A.C. 7:50-4.2(a). After the meeting,
the Commission issued a letter indicating it did not consider
soccer tournaments to be a proper use permitted in the APA, under
either the CMP or Tuckahoe's deed restrictions.
Both Atlantic and Camden County Agriculture Development
Boards adopted resolutions finding Tuckahoe's use consistent with
the Agricultural Management Practices (AMPs) as an on-farm direct
marketing activity, N.J.A.C. 2:76-2A.13(b). Both Boards later
4 A-5025-14T2
issued resolutions urging the Commission to support Tuckahoe's
use of the land for soccer activities.
MSSL, with Tuckahoe's consent, filed an application with the
Commission and Hammonton to allow soccer activities on Tuckahoe's
369-acre Hammonton property. Tuckahoe submitted expert testimony
that the proposed soccer activities would not involve the placement
of any permanent structures, parking would be only in recently
harvested areas, and no clearing of vegetation or placement of
impermeable surfaces would occur.
The Commission rejected the Atlantic and Camden County
Boards' resolutions due to the intensity of the soccer activities
occurring on Tuckahoe's property. The Commission issued an
Inconsistent Certificate of Filing (COF), N.J.A.C. 7:50-4.2(c),
finding MSSL had not demonstrated that the proposed soccer
activities were a permitted use in the APA under the CMP or the
PDC deed restriction. The COF permitted Tuckahoe to seek approval
from the local agencies.
In January 2015, Tuckahoe amended the application for soccer
activities substituting Tuckahoe rather than MSSL as the applicant
and including its Waterford properties so that Tuckahoe could
rotate soccer activities among parcels to better accommodate its
agricultural operations and lessen the impact.
5 A-5025-14T2
In February 2015, the Hammonton Planning Board issued an
approval (Hammonton Approval) allowing limited soccer activities,
which was sent to the Commission for review, N.J.A.C. 7:50-4.40(a).
After the Commission issued a notice indicating "substantial
issues" as to whether the Hammonton Approval was consistent with
the CMP, a settlement was reached in May 2015. The Agreement
required the Hammonton Approval to be amended to require Tuckahoe
to submit in advance its yearly soccer schedule to Hammonton and
obtain a zoning permit that could be reviewed annually by the
Commission for CMP compliance. The May 26, 2015 No Further Review
letter, N.J.A.C. 7:50-4.40(d), is the subject of objectors' first
appeal under Docket No. A-5025-14.
Tuckahoe also submitted an application with the Waterford
Township Planning Board with respect to the portions of Tuckahoe's
property located in Waterford. The Waterford Planning Board issued
an approval (Waterford Approval) to allow Tuckahoe to conduct
soccer activities on its 310-acre property in Waterford. After
the Executive Director exercised her discretion under the CMP and
issued a "call-up" letter, on February 1, 2016, Waterford issued
an amended approval to Tuckahoe incorporating the same conditions
as the amended Hammonton Approval. The ensuing March 10, 2016 No
Further Review letter is the subject of objectors' second appeal
under Docket No. A-3417-15.
6 A-5025-14T2
On January 19, 2016, the New Jersey Legislature enacted a
bill amending the PPA to expressly recognize soccer and soccer
tournaments as low intensity recreational uses. N.J.S.A. 13:18A-
8.1. The amended statute took immediate effect. L. 2015, c. 285,
§ 2, 2015 N.J. Sess. Law Serv. 285 (Assembly No. 3257).
In light of the 2016 legislation, in December 2016,
Hammonton's Planning Board modified its 2015 amended Approval of
soccer activity on Tuckahoe's Hammonton property, and Waterford's
Planning Board modified its March 2016 amended Approval of soccer
activity on Tuckahoe's Waterford property. The Executive Director
issued a January 2017 "No Further Review" letter concluding that
the December 2016 modified approvals issued by Hammonton's and
Waterford's Planning Boards were consistent with the CMP and that
soccer activities on Tuckahoe's Hammonton and Waterford properties
were a permissible land use in an APA. This No Further Review
letter is the subject of objectors' third appeal under Docket No.
A-3670-16. We consolidated all three appeals.
I.
Review of an administrative agency's final decision is
limited. Kadonsky v. Lee, 452 N.J. Super. 198, 201-02 (App. Div.
2017). "We will not reverse an agency's judgment unless we find
the decision to be 'arbitrary, capricious, or unreasonable, or not
supported by substantial credible evidence in the record as a
7 A-5025-14T2
whole.'" Id. at 202 (quoting In re. Stallworth, 208 N.J. 182, 194
(2011)). We "defer to the specialized or technical expertise of
the agency charged with administration of a regulatory system."
K.K. v. Div. of Med. Assistance & Health Servs., 453 N.J. Super.
157, 160 (App. Div. 2018) (quoting In re. Virtua-West Jersey Hosp.,
194 N.J. 413, 422 (2008)). An agency is owed "some deference to
its 'interpretation of statutes and regulations within its
implementing and enforcing responsibility.'" McClain v. Bd. of
Review, Dep't of Labor, 451 N.J. Super. 461, 467 (App. Div. 2017)
(quoting Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551
(2008)). The Commission is charged with implementing and enforcing
the PPA and the CMP. 16 U.S.C. § 471i(d); N.J.S.A. 13:18A-4 to -
9, -27, -29; N.J.A.C. 7:50-8.1. The Commission's legal
determinations regarding compliance with the CMP are therefore to
be given some deference. McClain, 451 N.J. Super. at 467. "[I]f
an agency's statutory interpretation is contrary to the statutory
language, or if the agency's interpretation undermines the
Legislature's intent, no deference is required." Ibid.
(alteration in original) (quoting Reilly v. AAA Mid-Atl. Ins. Co.
of N.J., 194 N.J. 474, 485 (2008)).
II.
Objectors argue the Executive Director's initial
determination that Tuckahoe's proposed soccer activities were
8 A-5025-14T2
inconsistent with the CMP and deed restrictions was correct and
the subsequent approval through an unexplained settlement violated
the Commission's duty under the PPA to ensure compliance with the
CMP. Objectors contend the modified Hammonton Approval did not
cure any of the issues raised by the Commission's initial letter.
The Hammonton property at issue is located within an APA
under the CMP. The CMP allows for low intensity recreational uses
on an APA, provided that:
i. The parcel proposed for low intensity
recreational use has an area of at least 50
acres;
ii. The recreational use does not involve the
use of motorized vehicles except for necessary
transportation;
iii. Access to bodies of water is limited to
no more than 15 linear feet of frontage per
1,000 feet of water body frontage;
iv. Clearing of vegetation, including ground
cover and soil disturbance, does not exceed
five percent of the parcel; and
v. No more than one percent of the parcel
will be covered with impervious surfaces.
[N.J.A.C. 7:50-5.24(a)(6).]
The CMP defines a low intensive recreational facility as:
a facility or area which complies with the
standards in [N.J.A.C. 7:50-5.24(a)(6)],
utilizes and depends on the natural
environment of the Pinelands and requires no
significant modifications of that environment
other than to provide access, and which has
an insignificant impact on surrounding uses
9 A-5025-14T2
or on the environmental integrity of the area.
It permits such low intensity uses as hiking,
hunting, trapping, fishing, canoeing, nature
study, orienteering, horseback riding, and
bicycling.
[N.J.A.C. 7:50-2.11.]
Objectors argue the proposed soccer activity does not utilize
or depend on the natural environment of the property, requires
significant modification of the property, and significantly
impacts the environmental integrity of the property, in violation
of N.J.A.C. 7:50-2.11. The Commission argues the proposed soccer
activities fall under the low intensive recreational facility
definition under N.J.A.C. 7:50-2.11 because athletic fields are
not expressly prohibited by the CMP, the soccer fields would depend
on the existing natural environment of the property, and no
significant modification of the land was allowed. The Commission
also contends the proposed soccer activity met the criteria of
N.J.A.C. 7:50-5.24(a)(6) because the activity used over 700 acres
of land, prohibited motor vehicle use except for emergencies, and
did not involve bodies of water, or the clearing of vegetation,
or the use of impervious materials.
This issue is moot because the Legislature amended the PPA
in January 2016 to include soccer and soccer tournaments as low
intensity recreational uses, as long as no permanent structure is
constructed. N.J.S.A. 13:18A-8.1 ("Field sports, including . . .
10 A-5025-14T2
soccer and soccer tournaments, conducted or occurring in an [APA]
within the pinelands area, shall constitute a low intensity
recreational use under the [CMP] adopted pursuant to the '[PPA],'
provided that no permanent structure is established to accommodate
the use.").
Objectors argue that public hearings are always required
when, as here, the Commission chooses to review an application.
Objectors rely on In re. Application of John Madin/Lordland Dev.
Int'l for Pinelands Dev. Approval, 201 N.J. Super. 105 (App. Div.
1985), and Noble Oil Co., Inc. v. Dep't of Envtl. Prot., 123 N.J.
474 (1991), for their arguments.
In Madin, we concluded "the PPA itself clearly evinces a
legislative intent that hearings be conducted when the Commission
reviews a development application." 201 N.J. Super. at 134. We
stated, "the quasi-judicial functions of the Commission with
respect to land use regulation in the Pinelands area . . . mandates
that hearings be conducted." Id. at 134-35. Additionally,
N.J.A.C. 7:50-4.41 states:
If the Executive Director determines that the
approval should be reviewed by the Commission,
he or she shall, within [forty-five] days
following receipt of a completed notice of
final determination given pursuant to N.J.A.C.
7:50-4.35(c), conduct a public hearing to be
held pursuant to the procedures set out in
N.J.A.C. 7:50-4.3.
11 A-5025-14T2
In Noble Oil, the DEP failed to render findings of fact when
it entered a six-month suspension of the license of a company in
the business of waste-oil collection and treatment. 123 N.J. at
475-77. Our Supreme Court remanded the matter, explaining that
the DEP's discretion "was not unbounded" and needed to be exercised
"in a manner that [would] facilitate judicial review." Id. at
476. The Court stated: "Administrative agencies must 'articulate
the standards and principles that govern their discretionary
decisions in as much detail as possible.'" Ibid. (quoting Van
Holten Grp. v. Elizabethtown Water Co., 121 N.J. 48, 67 (1990)).
Both N.J.A.C. 7:50-4.37 and -4.40, however, allow the
Executive Director to terminate the review of an application in
certain circumstances. If "the applicant submits additional
information to demonstrate that the local approval does not raise
a substantial issue with respect to" the CMP, or if the local
planning board whose "approval has been called up for review
modifies its approval so that the approval no longer raises any
substantial issues," review may be ended. N.J.A.C. 7:50-4.37(e);
N.J.A.C. 7:50-4.40(d). Because the Legislature in January 2016
amended the definition of "low intensity recreational use" to
include soccer and soccer tournaments, N.J.S.A. 13:18A-8.1, the
Commission issued a new No Further Review letter consistent with
the amendment approving Tuckahoe's soccer activities.
12 A-5025-14T2
Objectors argue the Commission's No Further Review letter
violates the language and intent of the PDC deed restrictions. A
provision of Tuckahoe's PDC restriction states that Tuckahoe's
land located within the APA may only be used for, among other
things, "low intensity recreational uses," followed by language
that reflects the criteria for allowable low intensity
recreational uses pursuant to N.J.A.C. 7:50-2.11 and N.J.A.C.
7:50-5.24(a)(6). The amended statute moots this issue as well.
Objectors argue the Commission is obligated to enforce the
SADC easement restrictions on Tuckahoe's properties. Objectors
point to the easement as prohibiting the establishment of
commercial soccer events within the restricted parcels. The
easement states, "the Pinelands Commission has certain rights and
obligations in this Deed of Easement pursuant to N.J.S.A. 13:8A-1
et seq. and N.J.A.C. 7:50." Paragraph 1 states: "Any development
of the [p]remises for nonagricultural purposes is expressly
prohibited." Paragraph 9 states that Tuckahoe "may use the
[p]remises to derive income from certain recreational activities,"
but prohibits the use of "athletic fields."
This issue is not ripe for review because objectors have
prematurely appealed the SADC issue. A party may appeal "to the
Appellate Division as of right to review final decisions . . . of
any state administrative agency or officer . . . except that review
13 A-5025-14T2
. . . shall not be maintainable so long as there is available a
right of review before any administrative agency or officer, unless
the interest of justice requires otherwise." R. 2:2-3(a)(2). The
SADC has primary jurisdiction over Right to Farm Act disputes.
"Requiring exhaustion of administrative remedies before
seeking judicial relief is a tenet of administrative law and
established by court rule." Borough of Seaside Park v. Comm'r of
N.J. Dep't of Educ., 432 N.J. Super. 167, 202 (App. Div. 2013).
Exhaustion of administrative remedies serves three primary goals:
"(1) it ensures that claims are initially heard by the body with
expertise in the area; (2) it produces a full factual record
facilitating meaningful appellate review; and (3) it conserves
judicial resources because the agency decision may satisfy the
parties." Id. at 203.
The Atlantic and Camden County Agriculture Development Boards
adopted resolutions finding Tuckahoe's use consistent with the
AMPs as an on-farm direct marketing activity under N.J.A.C. 2:76-
2A.13(b). Objectors failed to administratively appeal the Boards'
determinations under the Right to Farm Act. The Right to Farm Act
requires a party "aggrieved by the operation of a commercial farm"
to "file a complaint with the applicable [county agriculture
development board] or the SADC in counties where no county board
exists prior to filing any action in court." Borough of Closter
14 A-5025-14T2
v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 348 (App.
Div. 2004) (emphasis in original) (quoting N.J.S.A. 4:1C-10.1(a)).
Objectors did not file such a complaint and, as acknowledged by
objectors, the resolutions by the Boards do not constitute final
agency action. This issue is thus not ripe for appellate review.
Although not ripe for review, we note the SADC regulations
define on-farm direct marketing activity as:
an agriculture-related happening made
available by a commercial farm that is
accessory to, and serves to increase, the
direct-market sales of the agricultural output
of the commercial farm. Such activities are
designed to attract customers to a commercial
farm by enhancing the experience of purchasing
agricultural products and include, but are not
limited to: agriculture-related educational
activities; farm-based recreational
activities; and ancillary entertainment-based
activities.
[N.J.A.C. 2:76-2A.13(b).]
Tuckahoe argues its proposed soccer activity fits squarely within
the regulation because the activity is directly related to
Tuckahoe's farming operation, which is the production of sod to
be sold for use on athletic fields.
The Commission entered into a settlement with Tuckahoe and
MSSL to resolve the issues pertaining to the Hammonton Planning
Board's approval without a public hearing. Objectors claim the
Agreement did not resolve the substantive issues initially raised
by the Commission's Inconsistent COF. Objectors rely on Dragon
15 A-5025-14T2
v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478 (App. Div.
2009), to argue the Commission could not use the agreement to
avoid substantive requirements under the CMP.
"[U]nder the Administrative Procedure Act (APA), N.J.S.A.
52:14B-1 to -15, 'unless precluded by law, informal disposition
may be made of any contested case by stipulation, agreed
settlement, or consent order.'" Dragon, 405 N.J. Super. at 491
(quoting N.J.S.A. 52:14B-9(d)). The Dragon court clarified that
the decision did not concern DEP's "power to enter into settlement
negotiations" but that a settlement cannot be used as a means of
circumventing substantive permitting requirements. Id. at 492.
Once again, objectors' argument is moot because the Legislature's
amendment to the PPA expressly included soccer and soccer
activities as low intensity recreational uses permitted on an APA,
N.J.S.A. 13:18A—8.1, and because the Commission subsequently
issued a new No Further Review letter consistent with the
amendment.
Objectors argue that because the amendment to the PPA allowing
soccer activity took effect prospectively, it has no retroactive
impact on the validity of the Commission's May 2015 No Further
Review letter ending review of Hammonton's amended approval of
Tuckahoe's application. A court "should apply the law in effect
at the time of its decision." Richardson v. Dir., Div. of
16 A-5025-14T2
Taxation, 14 N.J. Tax 356, 362 (Tax 1994) (citing Phillips v.
Curiale, 128 N.J. 608, 615 (1992)). The "time-of-decision rule"
applies "where the statutory law changed between the date of an
administrative or judicial decision and the date of an appellate
court's decision on direct review." Ibid. (citing Riggs v. Long
Beach, 101 N.J. 515, 521 (1986)). When prospective or injunctive
relief "is sought against future violations of a statute, the time
of decision rule is necessary to avoid rendering an advisory
opinion on a moot question." Riggs, 101 N.J. at 521 (quoting
Kruvant v. Mayor & Council Twp. of Cedar Grove, 82 N.J. 435, 440
(1980)). When the Legislature resolves the exact issue in a
dispute through legislation, a court should dismiss the appeal as
moot. See City of Camden v. Whitman, 325 N.J. Super. 236, 239,
244 (App. Div. 1999) (explaining that the enactment of the Special
Municipal Aid Act rendered the issues presented as moot).
The amendment to the PPA, N.J.S.A. 13:18A-8.1, resolved the
primary issue on appeal, namely, whether Tuckahoe's proposed
soccer activities complied with the CMP. Because objectors seek
prospective relief rather than money damages, the time-of-decision
rule dictates that this court should apply the current law.
Application of N.J.S.A. 13:18A-8.1 renders objectors' first two
appeals moot.
17 A-5025-14T2
IV.
Objectors argue the Legislature contemplated that the
Commission would revise the CMP to be consistent with the January
2016 amendment, N.J.S.A. 13:18A-8.1. Additionally, objectors
argue that the broad scope of the amendment and its lack of
intensity standards necessitates a revision of the CMP by the
Commission to ensure consistency with the purposes of the PPA and
the Federal Act, pursuant to 16 U.S.C. § 471i(b).
"Administrative agencies are creatures of statute that must
comply with the substantive and procedural requirements of any
applicable legislation." Christ Hosp. v. Dep't of Health and Sr.
Servs., 330 N.J. Super. 55, 64 (App. Div. 2000). Our Supreme
Court has stated:
[I]f an agency determination is one that is
expressly authorized by or obviously inferable
from the specific language of the enabling
statute, in effect calling for only the
application of a clear standard to particular
facts, it can be expressed through an
adjudication and need not take the form of a
formal rule or regulation.
[State, Dep't of Envtl. Prot. v. Stavola, 103
N.J. 425, 442 (1986).]
Here, the specific language of the amendment including
"soccer and soccer tournaments" as low intensity recreational uses
under the CMP expressly allowed the Commission to determine that
18 A-5025-14T2
the application complied with the CMP without the necessity of a
formal rule. Ibid.
Objectors also argue that the amendment constitutes a change
in the CMP, which, according to objectors, would require approval
of the U.S. Secretary of the Interior under 16 U.S.C. § 471i(g)
before it could be effective. The Federal Act does not limit the
State Legislature's authority to amend the CMP. Failure to submit
a change to the Secretary of the Interior could perhaps expose the
State to a risk that the federal government may seek reimbursement
of federal funds that the State received for implementing the CMP.
16 U.S.C. § 471i(g)(6). But the federal government cannot require
the State "to govern according to [the federal government's]
instructions." New Jersey v. United States, 91 F.3d 463, 466 (3d
Cir. 1996).
Objectors put forth similar arguments regarding the PDC and
SADC deed restrictions on Tuckahoe's Waterford property as they
did regarding Tuckahoe's Hammonton property. We conclude the
amendment to the statute clarified the issues such that the first
two appeals are moot. Exercising appropriate deference to
administrative action, we affirm the third appeal.
Appeals Nos. A-5025-14 and A-3417-15 are dismissed as moot.
A-3670-16 is affirmed.
19 A-5025-14T2