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

• Court: New Jersey Superior Court Appellate Division
• Decided: July 12, 2018
• Docket: A-5025-14T2/A-3417-15T2/A-3670-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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