N.J.

Professional Planners (PP)

Exam Review

Steven Bruder PP, AICP

NJ State Agriculture Development Committee
NJ State Transfer of Development Rights Bank

October 2017
 Why Preserve Farmland and Promote
Agriculture?
 Agricultural Industry Impacts
 Preservation helps farmers stay in business and keep farmland affordable
 Permanent agricultural land base
 Land Use Impacts
 Retention of large contiguous blocks of productive farmland
 Combat sprawl
 Environmental / Open Space benefits
 Fiscal Impacts
 Private land
 Reduced cost of community services
 Quality of Life
 Rural character
 Access to local fresh food and products
 Agricultural based recreation opportunities
 Agriculture in “The Garden State”
 U.S. Census of Agriculture (2012)
 9,071 farms

 715,057 acres

 Average farm size = 79 acres

 Median farm size = 20 acres

 Market value of agricultural products sold

= $1,006,936,000
 16% of NJ Land Area in Farms
 Average rate of loss (2002-2012): 9,000 ac/yr
 Highest average agricultural land value in US:
$12,700/acre
 Among highest nationally in property taxes paid on
agricultural lands – even with Farmland Assessment
 Top 5 producer nationally of cranberries, blueberries,
peaches, spinach, bell peppers, and cucumbers
 The State’s food and agriculture complex is one of
New Jersey’s largest industries, ranking after
pharmaceuticals and tourism in the economic benefits
it brings to the state.
 New Jersey Farmland Assessment Act
of 1964 (P.L. 1964, c.48)
 Permits farmland and woodland actively devoted
Year 1954 1959 1964 1969 1974 1978 1982 1987 1992 1997 2002 2007 2012
Acres 1,665,241 1,379,002 1,155,597 1,035,678 961,395 987,309 916,331 894,426 847,595 832,600 805,682 733,450 715,057
New Jersey Land in Farms 1954 - 2012
to agricultural or horticultural uses to be assessed
Permanently Preserved Farmland 1,397 17,125 42,993 98,468 160,192 209,734

Permanently Preserved Farmland as of 6/30/14

1,800,000

at its productivity value 1,600,000

1,400,000

 State Farmland Evaluation Committee

1,200,000

1,000,000

Acres
 Requirements: 800,000

600,000

 Applicant ownership of land 400,000

200,000

 Annual application by Aug. 1st preceding tax year 0

1954 1959 1964 1969 1974 1978 1982 1987 1992 1997 2002 2007 2012
Acres 1,665,241 1,379,002 1,155,597 1,035,678 961,395 987,309 916,331 894,426 847,595 832,600 805,682 733,450 715,057
Permanently Preserved Farmland 1,397 17,125 42,993 98,468 160,192 209,734

 In production at least 2 years prior to eligibility

 At least 5 contiguous acres
 Gross sales of $1000/year for first 5 acres plus average of $5/acre over 5
acres ($0.50/acre for woodland or wetland)
 Wooded properties with an approved and implemented forest

stewardship plan are exempt from income requirement

 Does not apply to buildings or home sites
 Roll-back tax
 Agriculture Retention and Development Act
(N.J.S.A. 4:1C-11 et seq.)

 Established County Agriculture Development Boards (CADBs)

 Established Agricultural Development Areas
 Established basis for farmland preservation programs
 Easement Purchase
 Fee Simple
 8-Year
 Provision for soil and water conservation grants
 Eminent domain protection for preserved farms

“The strengthening of the agricultural industry and the preservation of farmland are important to the present and
future economy of the State and the welfare of the citizens of the State …”

“It is necessary to authorize the establishment of State and county organizations to coordinate the development
of farmland preservation programs within identified areas where agriculture will be presumed the first
priority use of the land …”
 County Agriculture Development Boards
(CADBs)
CADB responsibilities include:

 Development of agriculture retention and development programs at the county level and
establishment of the policies and standards thereunder.
 Approval of all applications for farmland preservation, or requests for financial assistance
from the SADC.
 Annual monitoring of county held development easements.
 Promotion of soil and water stewardship on preserved farms through implementation of soil
conservation plans.
 Review of Right-to-Farm disputes at the county level.
 Educational programs for farmers, government officials, and the public about farmland
preservation, the Right-to-Farm Act, and other pertinent agricultural matters.
 Monitoring of ordinances, policies, and development approvals with regard to impact on the
viability of agricultural activities and farmland preservation programs.
 Designation of county Agricultural Development Areas (ADAs).

CADBs consist of: 7 Voting Members (4 Farmer Members & 3 Public Members) & Non-Voting
Representatives of the County Planning Board, Soil Conservation District & County Agent (NJ
Cooperative Extension Service)
 State Agriculture Development Committee
(SADC)

SADC responsibilities include:

 Easement purchase grants to counties, municipalities and nonprofit groups directly purchasing farms
and development easements from landowners
 Offering of matching grants to landowners in the program for soil and water conservation projects
 Administration of the Right to Farm Program
 Development of recommended agricultural management practices
 Operation of the Farm Link Program which helps connect farm owners with farmers seeking access to
farmland and farming opportunities.
 Review of State, or other public or private, programs and plans that would adversely affect agriculture
within ADA
 Oversight of the Transfer of Development Rights Bank

The SADC consists of 11 members – six citizens appointed by the Governor with the advice and consent
of the Senate, and five ex-officio members (Secretary of Agriculture (Chairman); State Treasurer; DEP
Commissioner; DCA Commissioner & Dean of Cook College). Four of the citizen members must be
actively engaged in farming, and the other two represent the general public.

Among the duties of the Committee, “…generally act as an advocate for and promote the interest of
productive agriculture and farmland retention within the administrative processes of State Government…”
Agricultural Development Areas (ADAs)
 Regions of productive agricultural lands
that have a strong potential for future
production and where agriculture is the
preferred but not necessarily the
exclusive use.

 Statutory and local criteria

 Required review of eminent domain or

other non-agricultural project by a public
body or utility for agricultural impact
 30 day mandatory notice of intent
 If a finding of unreasonably adverse
effects Board/Committee may direct that
no action be taken for 60 days during
which time a public hearing will be held
and report of findings filed.
 Noncompliance may result in Secretary
of Ag. requesting the Attorney General
enjoin the action.

 18 of NJ’s 21 counties have designated

ADAs (23% of NJ within ADAs)
 Planning Incentive Grant Statute
(NJSA 4:1C-43.1)

 Grants to eligible counties and municipalities

 SADC funding decisions based designated project areas ability to:
 Provide opportunity to preserve a significant area of contiguous farmland
 Promote long term agricultural viability
 Amended MLUL to include Farmland Preservation Plan MP Element
 Established municipal agricultural advisory committees
 Appointed by mayor with consent of governing body
 Report to planning board

AACs consist of: 3 to 5 residents members, the majority of which are actively involved in farming and
owning a portion of the land they farm.
 Municipal and County Comprehensive
Farmland Preservation Plan Guidelines
I. Agricultural Land Base
II. Agricultural Industry Overview
III. Land Use Planning Context
IV. Current Farmland Preservation
Program
V. Future Farmland Preservation
Program
VI. Agricultural Economic Development
VII. Natural Resource Conservation
VIII. Ag Industry Sustainability, Retention and
Promotion

 Based on SADC Strategic Targeting Project (2003)

& Agricultural Smart Growth Plan for New Jersey
(2006)
 Preservation Status
 Total preserved to date:
 2,507 farms
 227,299 acres

 29% of agricultural land base

protected
 Highest % in the nation

 Goal: ~550,000 preserved acres

 Geographic diversity
 177 municipalities
 18 counties

 $1.7 billion in public funds

expended
 Right to Farm Act
(NJSA 4:1C-1 et. seq.)

 Provides protections for commercial farm owners/operators

 May preempt municipal/county ordinances
 Irrebuttable presumption that no commercial agricultural operation
constitutes a public or private nuisance
 Established procedure for dispute resolution

“…The retention of agricultural activities would serve the best interest of all citizens of this State by insuring the
numerous social, economic and environmental benefits which accrue from one of the largest industries in
the Garden State…”

“…It is the express intention of this act to establish as the policy of this State the protection of commercial farm
operations from nuisance action, where recognized methods and techniques of agricultural production are
applied, while, at the same time, acknowledging the need to provide a proper balance among the varied and
sometimes conflicting interests of all lawful activities in New Jersey…”
 Right To Farm
Criteria To Receive Protections

• Is it a “commercial farm?”
• Is area zoned for agriculture or was farm in operation as of
July 2,1998?
• Is operation consistent with “generally accepted agricultural
management practices”, AMPs adopted by SADC, or a site-
specific AMP?
• Is operation in violation of any federal or State laws or
regulations?
• Does operation pose a direct threat to public health & safety?
 Right To Farm
Definition of Commercial Farm

If greater than 5 acres:

➢ Produce agricultural or horticultural products worth $2,500 or

more annually
➢ Satisfy eligibility requirements of Farmland Assessment Act

If less than 5 acres:

➢ Produce agricultural or horticultural products worth $50,000 or

more annually
➢ Satisfy eligibility requirements of Farmland Assessment Act (other
than size requirement)
 Right to Farm
The CADB process – I
(Municipal zoning and “neighbor” disputes)

 Formal ‘conflict resolution process’ begins after a complaint is filed by

municipality or private party with the CADB
 CADB makes formal determination whether farm meets eligibility criteria
 e.g., if CADB determines farm is not a “commercial farm”, then it is not eligible
for protection
 If CADB determines farm is not a “commercial farm”, then municipality or
other complainant is free to take appropriate action in other forums (municipal
court, superior court)
 If CADB determines farm is a “commercial farm”, then CADB must conduct a
public hearing on the complaint if the complaint deals with an agricultural
management practice (AMP) adopted by the SADC or a generally accepted
agricultural operation or practice on the farm previously determined by the
CADB
 If CADB determines farm is a “commercial farm”, but the complaint does not
deal with an AMP adopted by the SADC or does not involve an operation or
practice on the farm previously determined by the CADB, then the case is
transferred to the SADC for a public hearing
 Right To Farm
The CADB process – II
(Site-specific AMP requests)
 Site-specific AMP (SSAMP) process begins after farmer files a request
for a site specific agricultural management practice determination from
the CADB
 CADB notifies municipality and SADC of the SSAMP request
 CADB determines whether farm meets the RTF eligibility criteria
 If CADB determines farm is not a “commercial farm”, then farm is not
entitled to an SSAMP determination and application is dismissed
 If CADB determines farm is a “commercial farm”, then CADB proceeds
with the SSAMP review process (may include the following: site visit,
public hearing, consulting agricultural experts, soliciting municipal
feedback)
 CADB makes formal SSAMP determination
 Preemption of Municipal Regulations?

 Agricultural activities may preempt municipal regulations – but on a case-

by-case basis – it’s not automatic

During CADB/SADC review (public hearing process):

▪ Appropriate consideration and deference given to municipal standards
▪ Balance agricultural needs against municipal public health and safety
concerns
▪ Farmer has to show “legitimate agriculturally-based reason” for not
complying with municipal regulations
Township of Franklin v. den Hollander, N.J. Supreme Court (2002)
 Activities Eligible for Protection
▪ Produce agricultural and horticultural crops, trees and forest
products, livestock, and poultry
▪ Process and package agricultural output of farm
▪ Farm markets – but buildings and parking areas to be in conformance
with municipal standards
▪ Control pests, predators and diseases of plants and animals
▪ On-site disposal of organic agricultural wastes
▪ Agriculture-related educational and farm-based recreational activities
– but those activities must be related to marketing the agricultural
output of farm
▪ Equine service and complimentary equine activities
▪ Generation of power or heat from biomass, solar, or wind energy
 Activities Not Protected
▪ Landscaping business and activities
▪ Processing agricultural products not grown on the farm
▪ Example: processing firewood from trees grown on someone
else’s property
▪ Agricultural labor housing

▪ Notes:
▪ Few RTF matters are ever clear-cut
▪ If an activity is not eligible for RTF
protection, it doesn’t mean that a farmer
can’t do the activity – it just means RTF
can’t preempt local regulations or provide
protection for the activity from nuisance suits
 Other Preservation Tools

 Contiguous clustering
 Lot size averaging
 Open space subdivisions
 Non-contiguous clustering
 Two or more non-adjacent parcels are
treated as a single site for the purpose of
clustering.

Clarke Caton Hintz

Photo

 Transfer of development rights

 Transfer of
Development Rights in
New Jersey

 Pinelands Development Credit Bank Act

(1985)
 Burlington County Transfer of
Development Rights Demonstration Act
(1989)
 State Transfer of Development Rights
Bank Act (1993)
 State Transfer of Development Rights Act
(2004)
 Highlands Water Protection and Planning
Act (2004)
 State TDR Act
(N.J.S.A. 40:55D-137 et seq)

 Comprehensive statewide TDR enabling legislation (1st in the Nation)

 Authorized Intra-municipal and Inter-municipal TDR statewide

 Established TDR planning process

 Established TDR planning requirements
 Development Transfer Plan Element

 Utility Service Plan Element

 Capital Improvement Program

 Real Estate Market Analysis

 Planning Assistance Grants for up to $40,000/municipality from State

TDR Bank
 TDR Planning Process
2004 State TDR Act
(N.J.S.A. 40:55D-137 et seq)

Plan Endorsement
• Development Transfer Element &
• Capital Improvement Program County Approval
• Utility Service Plan
• Real Estate Market Analysis
TDR Ordinance

Periodic Review
 Cluster Development Bill
(P.L. 2013, c. 106)

 Amends MLUL to update authority for

contiguous and non-contiguous
clustering and lot-size averaging
 Clarifies permission under conventional
or planned development
 Allows for assignment of bonus density
 Allows for minimum and maximum lot
size and FAR
 Allows conveyance of cluster restricted
land
 Municipalities may provide for areas to
be developed or preserved through
clustering, or criteria for establishment
of such areas
 Non-contiguous cluster must be
optional
 For more information:

State Agriculture Development Committee

(www.state.nj.us/agriculture/sadc.htm)
Phone: 609 / 984 – 2504

Steven Bruder (steven.bruder@ag.nj.gov)