Those who seek to control sprawl development by making it more difficult to turn the state’s remaining agricultural and horticultural lands into housing tracts should be buoyed by a recent trial court decision.
In New Jersey Farm Bureau, et al. v. Township of East Amwell, (Law Div., Somerset Co., Aug. 1, 2002), the court upheld the municipality’s downzoning that resulted in an increase of the minimum lot size needed to build a single-family home from three acres to 10 acres.
Among other things, this will ensure that fewer new homes will be constructed and fewer school-aged children will enter the education system in East Amwell. But according to the affected landowners, the revised ordinance will also substantially and impermissibly reduce the value of their property.
From the landowners’ perspective, it could have been even worse. Prior to adopting 10-acre zoning, the municipality had considered and rejected increasing the minimum lot size to 25 acres.
As could be expected, the landowners and their allies have sought review in the Appellate Division. Due to the importance of the issues, it is probable that a number of interested parties will seek permission to file amici briefs. In light of the statewide interest in the issues involved in the case, the matter appears headed for the Supreme Court.
COMMITMENT TO AGRICULTURE
East Amwell Township, Hunterdon County, is off (but not all that far off), the beaten path. State highway routes 202 and 31 traverse the 28.6 square mile municipality where about 4,800 residents live either in the village of Ringoes or in scattered homes along small country roads. East Amwell is located near both Flemington and Lambertville, as well as within easy driving distance of the more populous and increasingly congested areas of both Mercer and Somerset Counties.
East Amwell has been able to retain a rural appearance despite the waves of suburban development that have transformed much of the state’s landscape. The local resistence to any form of central sewerage service in no small measure made this possible by presenting serious impediments to large-scale development. As a result, East Amwell has remained relatively unchanged and agricultural uses continue to be the predominate land use.
Starting in 1976, East Amwell’s residents took positive steps to ensure that agriculture retained a permanent and preferred status within its borders. This goal was reflected as early as the township’s 1978 master plan.
The township also demonstrated its commitment to agricultural retention through the purchase of development rights. This program has resulted in the permanent preservation of some 3,000 acres of farmland and has made East Amwell a statewide leader in that effort.
The township’s 1985 master plan continued to recognize the need to foster agricultural activities. This led to East Amwell’s adoption of a right-to-farm ordinance designed to protect agricultural landowners from nuisance claims asserted by residential neighbors unfamiliar with the nature of these operations.
The validity of this approach was recently upheld in Franklin Township v. Hollander, 172 N.J. 147 (2002). For a detailed discussion of the Court’s view of right-to-farm measures, see Goldshore and Wolf, “Right to Farm Act Pre-empts Local Land-Use Authority,” 168 N.J.L.J. 1134 (June 17, 2002).
It is also significant that the master plan acknowledged the need for East Amwell to address its affordable housing obligations. The municipality subsequently satisfied this requirement primarily through the rehabilitation of existing substandard housing stock and regional contribution agreements.
Even more important, the township expressed the preference to continue to rely on septic disposal rather than on any form of central sewerage facilities for managing wastewater. For some time the planning community has been aware that the provision of central utility facilities has the potential for unintended growth-inducing impacts. In the absence of these facilities, East Amwell did not have to respond to the predictable demands for the extension of service to vacant lands.
The State Development and Redevelopment Plan, issued in 1992, assisted East Amwell’s agricultural retention efforts by appropriately placing East Amwell in a rural planning area.
The state development plan encouraged future growth (to the extent that it occurred) to be directed toward centers rather than proceeding in an uncoordinated manner. East Amwell’s planning efforts in the following years were consistent with the goal of preserving agriculture, but the municipality did not appear to have been convinced that its vision for the future would be advanced through seeking center designation.
Unlike some other municipalities, East Amwell was willing to put its money where its mouth was � through its program to purchase development rights � when it came to preserving farmland. But by 1997, the township realized that the program had its limits and other land-use based techniques would also be required.
The following year, the planning board began to question whether its dependence on three-acre zoning would accomplish its objective. The township concluded that this zoning standard would ultimately result in suburban sprawl and threaten the long-range preservation of agriculture. This led to the adoption of Ordinance 99-06.
THE ORDINANCE
Strictly speaking, the challenged ordinance did more than establish ten-acre minimum lot sizes as of right, although that is the way affected landowners are inclined to see it. The ordinance also permitted lot size averaging, as well as an open lands ratio option. Tracts of 25 acres or more could qualify for the third option. Under that approach, the landowner would be required to preserve 75 percent of the property as open space with one dwelling. The remainder of the property, subject to certain limitations, was zoned for 1.5 acre lots.
The affected landowners argued that the proposal was confiscatory and would require them to maintain a bucolic vista for the benefit of their suburban neighbors. In essence, they claimed that the downzoning had the effect of punishing them for having not previously sold their land for large-scale development.
Predictably, the proponents, including representatives of statewide environmental groups, viewed the proposal as achieving a proper balance between preservation and the landowners’ equity concerns.
The controversy over the ordinance, as well as farmland preservation efforts in general, is not limited to East Amwell. Agricultural landowners tend to view their property as an asset that will escalate in value and that can be sold at the appropriate time to the highest bidder for development.
Those who do not own the land, but enjoy its pleasing appearance, come to the issue from a different perspective, frequently having relocated from more congested areas.
PRESERVING LAND VS. PRESERVING VALUE
The trial involved a battle between those interested in preserving land values and those interested in preserving the land. Aligned on one side were the investors, farmers and the Farm Bureau (a trade association for agricultural interests) and on the other side was the township defending its ordinance.
The two consolidated complaints asserted numerous grounds for setting aside the ordinance. These included that the governmental action was arbitrary and capricious; was an attempt to misuse the zoning power to exclude families with school-aged children; diminished the landowners’ equity and made it impossible for them to obtain financing for agricultural operations; and was inconsistent with the state development plan.
East Amwell’s response was that its actions were entitled to a presumption of validity and had been taken in accordance with law. The municipality claimed that it had acted consistently with its well-established farmland preservation policy and in conformity with the state development plan and its affordable housing obligations.
The plaintiffs presented a number of lay and expert witnesses. These witnesses testified that 10-acre zoning would encourage sprawl and have numerous adverse economic impacts on farmers. Further, they testified that the ordinance was not a true farm preservation mechanism and that it was inconsistent with the state development plan.
East Amwell countered with three experts: a professional planner, a professional engineer and an economic analyst.
The planner testified that the ordinance was consistent with the Municipal Land Use Law and the engineer indicated that the reliance on septics was an appropriate choice for wastewater disposal. See N.J.S.A. 40:55D-1 et seq.
The economic expert testified that the ordinance presented no impediment to farming, that there was no proof of the plaintiffs’ inability to borrow funds as a result of the ordinance and that the prices per acre in the affected area had actually increased.
In rejecting the plaintiffs’ claims, the court turned to the well-established rules for reviewing municipal ordinances and applied the usual presumptions of validity. The court found that the ordinance was rationally related to the purposes of the Municipal Land Use Law and determined that it was adopted in a procedurally appropriate manner.
In discussing the plaintiffs’ state development plan and Mt. Laurel based objections, the court reflected on the problems facing municipalities in other rural parts of the state:
There is, indeed nothing in the State Plan, nothing in the MLUL and nothing in the decisions of our Supreme Court or our Appellate Division that compels a Township to sit idly by and watch one bad zoning experience become the norm. . . . And just as surely the Planners seeing the cookie cutter developments as of right obliterating what in recent memory were farmlands in neighboring Raritan Township had no obligation to wait until, in effect, the wolf was at the door. Their farsighted proactive approach is not, in the end, inconsistent at all with Mt. Laurel or its obligations nor is it exclusionary. Slip Opinion, at 64.
Moreover, the court was not convinced by the plaintiffs’ lost land equity claims, finding that there was no evidence to support those claims or the claims that the plaintiffs had been otherwise singled out by the ordinance.
COMMENTS
Howard Cohen,who represented the municipality, was very pleased with the trial court’s ruling. He indicated that the decision provided a road map for rural municipalities interested in preserving agriculture.
East Amwell’s position was enhanced by the fact that it had complied with its affordable housing obligations and had a long history of commitment to agricultural preservation. In light of those factors, the municipality’s large lot zoning requirement was an appropriate and sustainable technique for preserving agriculture as well as the municipality’s rural character.
Smart growth advocates also had a favorable view of the decision. According to Barbara Lawrence, executive director of New Jersey Future, an organization that promotes smart growth, “The State Plan is the alternative to sprawl as usual. But the State Plan can’t be implemented without local regulations to support it. [T]he court [in the East Amwell case] recognized those regulations are as necessary for protecting farmland as for protecting other open lands.”
The New Jersey Farm Bureau, the voice of farmland owners throughout the state, took serious issue with the ruling. The group indicated that it was very disappointed with the decision, which it described as “upholding large lot zoning as a farmland preservation technique.” As a result, the Farm Bureau has filed an appeal in the Appellate Division.
Archibald Reid represented the Thompson Land affiliated companies, the owners of approximately 600 acres of unencumbered property in East Amwell. His clients had previously sold development easements to the municipality, but were unwilling to accept the downzoning which they claimed substantially reduced the value of their remaining properties.
Reid had a very negative view of the decision. According to him, the municipality’s reasoning was very unrealistic as East Amwell’s agricultural landowners are older, are not interested in continuing to farm the land and are not being replaced by younger people who are committed to agricultural pursuits. He described the township’s efforts as being a dictatorial attempt to bind the current residents to the land and to deprive them of their equity in the property.
Goldshore is a partner at Szaferman, Lakind, Blumstein, Blader, Lehmann & Goldshore of Lawrenceville. Goldshore and Wolf are co-authors of New Jersey Environmental Law, the Environmental Law Citator, the Environmental Law Newsletter, published by the New Jersey Institute of Continuing Legal Education, and an online New Jersey environmental newsletter, www.njenvironews.com. Goldshore is a co-author of New Jersey Brownfields Law, published by New Jersey Law Journal Law Books. Their column appears regularly in the Law Journal.
