IN THE MATTER OF THE SADC RESOLUTION FY2015R12(2)Â (NEW JERSEY STATE AGRICULTURE DEVELOPMENT COMMITTEE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4379-14T1
IN THE MATTER OF THE SADC
RESOLUTION FY2015R12(2).
Argued April 5, 2017 – Decided May 16, 2017
Before Judges Alvarez, Manahan, and Lisa.
On appeal from the resolution by the New
Jersey State Agriculture Development
Committee, Resolution No. FY2015R12(2).
Daniel L. Schmutter argued the cause for
appellants Max Henry Riewerts and Diane
Tribble Riewerts (Hartman & Winnicki, P.C.,
attorneys; Mr. Schmutter, on the briefs).
Jason Thomas Stypinski, Deputy Attorney
General, argued the cause for respondent State
Agriculture Development Committee (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Mr. Stypinski, on the brief).
PER CURIAM
Since 2012, appellants Max Henry Riewerts and Diane Tribble
Riewerts have been attempting to obtain the necessary approvals,
municipal and state, in order to relocate a right-of-way (ROW) in
which they have an interest by recorded easement deed. After the
initial denial by the agency director of the State Agriculture
Development Committee (SADC or Committee) on October 26, 2012,
appellants sought formal approval from the Committee. The
Committee denied them permission to reconfigure and move the ROW,1
which decision was memorialized in Resolution FY2015R12(2). Their
request was finally denied on December 11, 2014, and on February
26, 2015, by resolution, FY2015R12(5), SADC denied their request
for reconsideration. This appeal followed.
Appellants contend the record supports outright reversal.
They assert that the decision was based on SADC staff net opinions
that resulted in arbitrary, unreasonable, and capricious action
by the agency. The SADC argues to the contrary, that its decision
was based on a proper assessment of facts and law, and should be
affirmed.
The record consists of transcripts of appellants'
presentation, made during multiple appearances before the
Committee, as well as exhibits such as the easement deeds. After
our consideration of the record and the relevant law, we conclude
that it does not allow for meaningful review. Since no formal
hearing was conducted affording the parties the opportunity to
1
This denial was actually sent to the owner of the servient
property over which the easement crosses and forwarded to
appellants on December 17, 2012.
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fully explore the legal and factual issues, we now vacate the
denial and remand the matter for that purpose.
By way of background, in March 2009, appellants acquired a
fifty-six-acre parcel known as Greenwich Township Block 44, Lot
24. They reside on the property and lease a portion of the
landlocked parcel for farming purposes. Access to the nearest
public road is over a ROW created in 1951 by recorded easement
deed. It does not include a metes and bounds description, rather
it describes the location as follows:
There is conveyed to second party a right of
way over an existing roadway leading from the
Bloomsbury-Warren Glen Road through the
property of first party to the property
hereinabove conveyed consisting of
approximately fifteen feet in width.
On July 23, 2010, after appellants acquired their tract, the
then owner of the adjoining lot, over which the easement extends,
Block 44, Lot 5, conveyed by deed of easement to the State of New
Jersey, and the United States, all non-agricultural development
rights to that tract. The parcel is similar in size to appellants'
property. This conveyance was made under the Agricultural
Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -48.
ARDA authorized the SADC, an agency created under the Right to
Farm Act, N.J.S.A. 4:1C-1 to -10, to enter into agreements with
farmland owners for the acquisition of development rights in order
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to keep land in agricultural production. N.J.S.A. 4:1C-15 to -
21.
The deed further states that the United States, "acting
through the United States Department of Agriculture, Natural
Resources Conservation Service (NRCS)" funded the purchase. The
funds for the acquisition were allocated to the Warren County
Board of Chosen Freeholders by the Board of Trustees of the New
Jersey Conservation Foundation for that purpose.
Attached to the 2010 farm preservation easement deed is a
schedule including a metes and bounds description of the property
and the following language: "Subject to a Right of Way for access
to Block 44 Lot 24 containing 0.423 acres. Said Right of Way
being approximately 15-feet wide as recited in Deed Book 351 page
139, Deed Book 373 page 273 and Deed Book 421 page 490." The deed
further discloses an ROW belonging to Lot 5 over appellants' lot,
"for Certain Water Rights benefitting Block 44 Lot 5." The ROW
over Lot 24 was memorialized years prior in a recorded deed.
Lot 5 is currently owned by Robert Santini. Although he
supports appellants' proposal, he did not make the application
himself nor was he involved in any presentation to the SADC.
Committee members, for reasons not stated on the record, suggested
he should have been involved in the application.
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Despite the existence of the two recorded deeds regarding
ROWs having been described in the farmland deed, it appears no
notice of the conveyance of development rights was provided to
appellants. They were unaware of the change in Lot 5's status
until they approached the municipality to obtain the necessary
approvals or permits to reconfigure their ROW.
Appellants' ROW includes two ninety-degree turns around a
railroad embankment on the southerly end of the driveway, which
are difficult to negotiate with farm equipment. They contend that
in addition, the ROW is impacted by runoff from the County road
and from Lot 5, as well as flooding and erosion.
Appellants submitted an engineer's report and sketch in
support of their proposed alternative ROW, basically a straight
line drawn from the County road across Lot 5 to their lot on the
southerly end. The local fire chief wrote a letter that appellants
presented to the SADC, confirming that a fire truck would have
difficulty negotiating the two ninety-degree turns to reach Lot
24 from the County road. Appellants represented that entry onto
the County road from Lot 24 is dangerous in the summer, when corn
grown on Lot 5 attains its full height, as visibility becomes
virtually non-existent.
Appellants' proposed reconfiguration, identified by all
parties as Alternative 1, placed the entry point on the County
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road further to the east at an angle with the road. Throughout
the meetings, the Committee acknowledged that appellants' safety
concerns were legitimate. No formal expert report or testimony
was presented other than appellants' engineering report and plan
depicting Alternative 1.
The SADC staff rejected Alternative 1 and came up with their
own proposal, known as Alternative 2. The Committee followed the
"staff recommendations" included in their meeting packets. They
are not included in the appendices on appeal, and we cannot discern
if appellants had access to them during their several appearances
before the Committee. Alternative 2 essentially tracked the
present driveway, except it somewhat eased the turns at the end
of the ROW.
Based on SADC staff recommendations, the NRCS in writing also
rejected Alternative 1 but consented to Alternative 2. When
appellants realized they had not been given a copy of that letter,
one was provided, and they were invited to present any new
information at the next meeting. Because in the opinion of the
SADC, appellants did not provide any new information in response
to the NRCS letter, the application was again rejected.
A consequential and disputed point was the issue of whether
the reconfiguration of the ROW would result in the loss of
farmland. Appellants contended that removal of the blacktop
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extending over the present ROW, and remediation of the soil
beneath, would lead to its eventual reclamation for farmland
purposes. Appellants pointed out that, based on materials posted
on a government internet website, such reclamation of impacted
soil could occur within one to two years of the removal of the
asphalt after deep plowing.
The SADC took the position that Alternative 1 would result
in the loss of farmland both because of the additional ground
consumed by a new ROW, and the nonarable area that would be left
by the removal of the blacktop extending over the old ROW.
Appellants unsuccessfully argued that the change would lead to
more, not less, available farmland since they contended that
Alternative 1 actually covered slightly less square footage than
the present ROW, and the land beneath the ROW blacktop could be
remediated for agricultural purposes.
The resolution contained the following findings:
1. The proposal does not constitute an
agricultural use or serve an agricultural
purpose but [] instead constitutes development
of the [p]remises for the nonagricultural
purpose of improved access to an adjacent
residential property; []
2. The purpose would be detrimental to
drainage, flood control, erosion control, and
soil conservation as a result of steeper
slopes and the potential for more runoff and
erosion; []
3. The proposal, as described in the
[e]ngineering [r]port and [addendum], would be
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detrimental to the continued agricultural use
of the [p]remises by taking more prime
farmland out of production than the existing
[ROW,] . . . additional land will be removed
from crop production[,] . . . [the proposal]
will reduce the size of the fields, increase
field edge and attendant crop loss to
wildlife; []
4. [The addendum's] design . . . would require
easements of 45 feet in width where the
current roadway total 15 feet in width . . .;
[]
5. Conveyance of an additional easement
greater than the existing 15 foot wide
easement . . . would be a violation of the
Deed of Easement; and
6. As described in the November 17, 2014,
letter from the NRCS, . . . [alternative] 1
is in conflict with [the] Deed of Easement
. . . and therefore the request is denied by
that agency.
Additionally, Alternative 2 was approved for the following
reasons:
1. The proposal constitutes an agricultural
use and serves agricultural and conservation
purposes by addressing existing drainage,
erosion control, and soil conservation . . . .
Specifically, drainage and erosion control
concerns . . . could be addressed in the
triangle of land between the old alignment and
the new alignment through the installation of
various NRCS conservation practices . . . ;
[]
2. The proposal reduces impervious cover
. . . and does not impact any prime farmland;
and
3. The proposal is not in conflict [with any]
Deed of Easement restrictions inherent to
farms preserved with funding from NRCS through
[Farms and Ranch Lands Protection Program] as
confirmed by the NRCS on November 17, 2014
. . . .
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On appeal, appellants raise the following points of error:
ALL OF THE EVIDENCE IN THE RECORD SUPPORTS
APPELLANTS' APPLICATION, AND THUS THE DECISION
BELOW SHOULD BE REVERSED WITH DIRECTIONS TO
ENTER A DECISION GRANTING THE APPLICATION.
A. SADC's Determination was Arbitrary and
Capricious and not Supported by
Substantial Credible Evidence.
B. This Court Has Authority to Provide
Relief as to the Driveway Easement.
Appellate courts have a "limited role" in reviewing
administrative agency decisions. In re Stallworth, 208 N.J. 182,
194 (2011). An agency's judgment may only be reversed if it was
"arbitrary, capricious, [] unreasonable, or [] not supported by
substantial credible evidence in the record as a whole." Ibid.
(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Moreover, "courts typically defer to the expertise of agencies in
technical matters which lie within their special competence" and
"give deference to agencies' construction of the statutory schemes
they are entrusted to administer." Pasquince v. Brighton Arms
Apartments, 378 N.J. Super. 588, 597 (App. Div. 2005) (citations
omitted).
In order to review such decisions, however, in light of the
deference ordinarily accorded to an agency, we must be presented
with an adequate record. See Stevens v. Bd. of Trs., 294 N.J.
Super. 643, 655 (App. Div. 1996) (citation omitted) ("When an
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administrative agency's decision is not accompanied by the
requisite findings of fact and conclusions of law, the usual remedy
is to remand the matter to the agency to correct this
deficiency.").
The record does not support appellants' position that a
reversal of the agency decision is warranted. We lack important
information necessary to fairly accomplish our deferential review.
Appellants had no opportunity to present evidence except very
informally, nor were they able to cross-examine SADC staff. We
do not have the reports the Committee relied upon, nor the
credentials and areas of expertise of the SADC personnel whose
recommendations and opinions appear to have been adopted. Thus
we cannot determine whether SADC's exercise of discretion in
rejecting appellants' engineer's report was reasonable.
It is undisputed that "[d]ue process does not always require
an administrative agency to hold an evidentiary hearing before it
goes about the business it was created to conduct." In re Request
for Solid Waste Util. Customer Lists, 106 N.J. 508, 520 (1987).
This is because "[t]he power to supervise and investigate a
regulated industry could be undermined if a regulator were required
to provide the industry with the right to produce witnesses and
cross-examine staff members before the agency could act." Id. at
520-21. "Sometimes nothing more is required than notice and the
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opportunity to present reasons, either orally or in writing, why
the proposed action should not be taken." Id. at 521.
In High Horizon Development Co. v. Department of
Transportation, 120 N.J. 40, 42 (1990), the Court addressed the
question of when administrative agencies were required to conduct
trial-type hearings. The key issue is "whether the agency is
acting in a judicial or quasi-judicial capacity or in a legislative
capacity." Id. at 50.
If the [agency] is exercising "policy or
discretion" with respect to [the issues], a
clear requirement for a trial-type hearing is
not present. On the other hand, if the
questions turn on expert opinion relied on by
the agency, one must be able in some way to
contest the bases of the opinion.
[Id. at 51.]
Additionally, trial-type hearings may be required when the agency
must resolve factual issues. Ibid. Because in this case the SADC
was acting upon an application brought by a third party
significantly affecting that party's rights, it was acting in a
"judicial or quasi-judicial capacity[.]" See id. at 50.
In this case, the agency made some assumptions regarding the
law in rendering their decision, such as that the failure to notify
appellants of the farm preservation deed was legally
inconsequential. Similarly, the Committee assumed Lot 5's change
in use, which precludes appellants from modifying their pre-
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existing ROW, was not compensable. The Committee also assumed
appellants can be bound by the conditions limiting the use of Lot
5 when they never agreed to those restrictions. These assumptions
may all be correct, and we express no opinion regarding them, but
they warrant some consideration by the Committee.
Additionally, Alternative 2 did not significantly modify the
ROW. From the record available to us, safety and other concerns
were unaffected. A more complete exploration of potential
consequences such as runoff, soil erosion, and the restoration of
land for agricultural purposes is necessary. The questions
"turn[ed] on expert opinion relied on by the agency," and without
a hearing, appellants, third parties previously unconnected to the
SADC, could not have successfully "contest[ed] the bases of the
opinion." See id. at 51.
Paragraphs 2, 4, and 5 purport to make factual findings
regarding conditions such as flood control, the width of the
proposed roadway as opposed to the current roadway, and changes
to the width of the easement, which were in stark contrast to the
information appellants presented, or were not in the record
provided on appeal. Paragraph 3 of the Resolution indicates that
Alternative 1 would decrease the amount of prime farmland available
for production, while appellants argued that the agricultural use
of both properties would be enhanced by the reclamation of the
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present ROW and improvement of drainage, flood control, erosion
conditions, and soil conservation resulting from Alternative 1.
We do not have a basis for passing on the reasonableness of those
conclusions. Finally, although the NRCS denied the application,
a factor the SADC took into consideration, that refusal appears
to be solely in response to communications from the SADC.
Thus, a remand is necessary because the record does not allow
for fair review, appellants were not afforded the process due
them, and significant legal and factual questions were not
addressed by the proceedings before the resolution was adopted.
The denial of appellants' application is therefore vacated, and
the matter remanded for hearing. We do not retain jurisdiction.
Remanded for a hearing.
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