BARBARA J. HERTZ v. BOROUGH OF LINCOLN PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4838-08T34838-08T3

BARBARA J. HERTZ,

Plaintiff-Appellant,

v.

BOROUGH OF LINCOLN PARK,

Defendant-Respondent.

 
 

Argued January 27, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1812-06.

Barbara J. Hertz, appellant, argued the cause pro se.

John P. Miller argued the cause for respondent (The Buzak Law Group, LLC, attorneys; Mr. Miller, on the brief).

PER CURIAM

Plaintiff Barbara Hertz claims to be an environmentally-

conscious farmer, whose agricultural management practices lie

outside of the mainstream. She brought an action in lieu of prerogative writs that challenged in nine counts the soundness of Ordinance No. 08-06 promulgated by defendant Borough of Lincoln Park. This ordinance, according to its title, amended the municipality's zoning legislation to permit the operation of commercial farms and farming activity in conformance with the Right to Farm Act, N.J.S.A. 4:1C-1 to -10.4 (RTFA). Plaintiff's amended complaint sought additional remedies for interference with past and prospective property rights pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42 and the Federal Civil Rights Act ( 1983), 42 U.S.C.A. 1983. Moreover, plaintiff asserted that she is entitled to relief for inverse condemnation based upon putative violations of the Constitutions of the United States and New Jersey. Finally, plaintiff demands injunctive relief, plus "exemplary and punitive damages," against "Defendant Municipal Administrator/Engineer of the Borough of Lincoln Park" for alleged discriminatory harassment of plaintiff.

The action in lieu of prerogative writs was initially concluded on April 3, 2009, when Judge B. Theodore Bozonelis granted summary judgment in favor of defendant Lincoln Park, dismissing the complaint in its entirety. Attached to the order granting summary judgment was the motion judge's comprehensive eleven-page "Statement of Reasons." Plaintiff subsequently filed a motion for reconsideration, which was denied on May 4, 2009. This appeal followed.

Plaintiff has raised the following points for our consideration:

ARGUMENT POINT ONE:

THE TRIAL COURT'S ANALYSIS WAS ERRONEOUS RESPECTING DISTINCTIONS BETWEEN "QUALIFIED FARMLAND" AND "COMMERCIAL FARM" AND APPROPRIATE RIGHTS TO RAISE AND KEEP LIVESTOCK, AS THIS DEFINES AGRICULTURE

A. FARMLAND ASSESSMENT ACT

1. General Considerations

2. Dimensions and

Circumstances of Land Permitted to be Farmed

3. Earnings Required for Farm Tax Qualified Land

B. STATUTORY DISTINCTIONS: FARM TAX ASSESSED LAND VERSUS COMMERCIAL FARMING

1. Earnings Required for Commercial Farm

C. THE ORDINANCE IMPROPERLY RESTRICTS AGRICULTURE TO "COMMERCIAL FARMS": PROHIBITING FARM ANIMALS ON NON-COMMERCIAL FARMS IS CONTRARY TO THE LEGISLATIVE INTENT UNDER THE FARMLAND ASSESSMENT ACT

D. THE STATUTORY CONTINUUM FROM FARMLAND ASSESSED LAND TO COMMERCIAL FARMING AS DEFINED BY THE "RIGHT TO FARM ACT" IS VIOLATED BY THE MUNICIPAL ORDINANCE

ARGUMENT POINT TWO:

THE COURT'S ANALYSIS IS IN ERROR REGARDING THE RIGHT TO MAINTAIN A SEASONAL FARM MARKET (WITHOUT A BUILDING) FROM DECEMBER 1 THROUGH MARCH 1

A. DISCRIMINATORY RESTRICTION PROHIBITING ONE TYPE OF SEASONAL MARKET SERVES NO PURPOSE

B. THE ORDINANCE IMPROPERLY RESTRICTS THE "GROWING SEASON" TO EXCLUDE ONE LEGITIMATE FARMING ACTIVITY: MAPLE SAP COLLECTION

ARGUMENT POINT THREE:

THE ORDINANCE SERVES NO LEGITIMATE PURPOSE

A. RESTRICTION DUE TO MONETARY GAIN FROM THE SAME PRODUCTIVE AGRICULTURAL USES DEFINES DISCRIMINATION

B. THE ORDINANCE REPRESENTS A DISCRIMINATORY PURPOSE WITH A DISCRIMINATORY EFFECT

ARGUMENT POINT FOUR:

THE NEW JERSEY SUPREME COURT HAS RULED

THAT [AN] ORDINANCE IS IMPERMISSIBLE WHICH VIOLATES STATUTORY-DEFINED RIGHTS

Because we substantially subscribe to the views articulated by Judge Bozonelis, and find plaintiff's arguments on appeal unconvincing, we affirm. R. 2:11-3(e)(1)(E). The following brief comments serve to further explain our agreement with the determination of the Law Division.

We start with first principles: a challenge to all local legislation faces formidable obstacles. A municipality's zoning ordinance is presumed to be valid and the presumption may be overcome only "by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988) (quoting Bow & Arrow Manor, Inc. v. Town of West Orange, 63 N.J. 335, 343 (1973)); Builders League of South Jersey, Inc. v. Twp. of Franklin, 395 N.J. Super. 46, 55 (App. Div. 2007). "The party attacking the ordinance bears the burden of overcoming the presumption[.]" Id. at 611 (citing Ward v. Montgomery Twp., 28 N.J. 529, 539 (1959); LaRue v. East Brunswick, 68 N.J. Super. 435, 454 (App. Div. 1961)).

"Courts should not question the wisdom of an ordinance, and if the ordinance is debatable, it should be upheld." Ibid. (citing Bow & Arrow Manor, supra, 63 N.J. at 343). Consequently, courts play a limited role when reviewing the validity of a zoning ordinance. Even so, a court may declare an ordinance to be invalid if the municipality failed to comply with the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163 when it enacted the measure. Ibid. (citing Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 21 (1976), cert. denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)). To be sustained, the ordinance must meet certain objective criteria. Ibid. First, the ordinance must advance the purposes of the MLUL that are set forth in N.J.S.A. 40:55D-2. Ibid. Second, the ordinance must be "substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements," N.J.S.A. 40:55D-62, unless the requirements of the MLUL are otherwise satisfied. Ibid. Third, the ordinance must comply with all constitutional requirements, including "the prohibition against confiscation." Id. at 611-12 (citing AMG Assocs. v. Twp. of Springfield, 65 N.J. 101, 111-12 (1974)). Lastly, the ordinance must be enacted in accordance with all applicable statutory and procedural requirements. Id. at 612.

In undertaking this analysis, the court must review "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001) (citing Weymouth Twp., supra, 80 N.J. at 21), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). This review must be undertaken with the understanding that "the means selected must have a real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character which cause the problem sought to be ameliorated." Kirsch Holding Co. v. Boro. of Manasquan, 59 N.J. 241, 251 (1971). Put another way, the fundamental question in all zoning cases "is whether the requirements of the ordinance are reasonable under the circumstances." Vickers v. Twp. Comm. of Gloucester Twp., 37 N.J. 232, 245 (1962), appeal dismissed and cert. denied, 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963), modified on other grounds by So. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158, 276-77 (1983)).

The purpose of the ordinance in question is to foster consistency with the RTFA. It does not erode rights that are supposedly granted by the FAA. Indeed, the "rights" pursuant to the FAA that plaintiff fears will be lost are simply illusory. The FAA provides for the taxation of land that is actively farmed for the sale of products based on its value as farmland, rather than on its highest and best use. N.J.S.A. 54:4-23.2. The FAA does not provide an independent authority for the right to farm. Nevertheless, one of the goals of the FAA "is to promote open space, the beauty of the countryside, and to slow down the transition of open space to development." Sudler Lakewood Land, LLC v. Lakewood Twp., 18 N.J. Tax 451, 462 (Tax 1999) (citation omitted), aff'd, 19 N.J. Tax 305 (App. Div. 2001). Plaintiff has failed to demonstrate how Lincoln Park's ordinance conflicts with the operation of the FAA or its salutary purposes, much less how the ordinance impedes the Legislature's intent.

In truth, we are somewhat perplexed by plaintiff's additional arguments, especially the contention that the ordinance somehow truncates the growing season. Plaintiff contends that a farming operation such as maple sap collection a decidedly late-winter activity is impaired by the ordinance. We disagree that the ordinance has any effect upon Mother Nature or the farmers in Lincoln Park who wish to engage in the green, environmentally sustainable, process of tapping maples.

Lastly, we conclude that plaintiff's discrimination complaints are wholly without merit. The record is barren of any evidence that plaintiff's grievances are cognizable pursuant to the LAD. For example, we are at a loss to discern, as was Judge Bozonelis, exactly what protected status, allegedly enjoyed by plaintiff, engendered either discrimination or retaliation. To the extent that plaintiff contends that the allegedly disparate treatment relates to the difference between a commercial and a non-commercial farm, such contention trivializes the important purposes of the LAD.

As for violations of 1983, plaintiff has failed to produce any evidence of a prima facie circumstance to which this federal legislation was intended to apply. "Generally speaking, section 1983 provides a cause of action in state or federal courts to redress federal constitutional and statutory violations by state officials." General Motors Corp. v. City of Linden, 143 N.J. 336, 341, cert. denied, 519 U.S. 816, 117 S. Ct. 66, 136 L. Ed. 2d 27 (1996). Furthermore, plaintiff's conclusory assertions of inverse condemnation and other assorted violations of her rights are completely unsubstantiated and all were rightly dismissed in the Law Division.

Affirmed.

 

At oral argument, plaintiff stated that she practiced a form of no-till farming on her "15.45 acre proprietary farm," which is intended, among other things, to not contribute to adverse climate change by fostering carbon sequestration in the soil. Among her other agricultural practices, she said, is to refrain from planting crops in fixed, linear rows, which she claims has deprived her of certain benefits by county agricultural officials. Cf. In re Barbara Hertz, SADC No. 699 (Jan. 25, 2007) (holding that Hertz had failed to establish that she operated a commercial farm as she did not provide clear evidence of income from agricultural production), available at http://www.nj.gov/

agriculture/sadc/rtfprogram/conflictres/formal/rtfdechertz.pdf.

Plaintiff's primary legal argument is that Lincoln Park's ordinance somehow contravenes provisions of the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.1 to 23.24 (FAA). We fail to see any inconsistency or incongruity between the local legislation and the state statute.

We note that the "Defendant Municipal Administrator/Engineer of the Borough of Lincoln Park" is not listed in the caption of plaintiff's amended complaint. Moreover, the answer that was filed was only on behalf of a single defendant, the municipal corporation. On appeal, no separate argument concerning the "Municipal Administrator/Engineer" was contained in plaintiff's brief. Accordingly, those claims having not been briefed, are therefore deemed abandoned. 539 Absecon Blvd. LLC. v. Shan Enter. Ltd., 406 N.J. Super. 242, 272, n.10 (App. Div.), certif. denied, 199 N.J. 541 (2009).

Hertz has previously claimed harassment by other governmental actors of Lincoln Park specifically, certain police officers which claims were tangentially considered by us in State v. Hertz, No. A-2365-05 (App. Div. Nov. 16, 2009).

The most that can be said of the ordinance is that it arguably differentiates between the sale of maple sap and its products from the sale of Christmas trees. Section 28-191(f). However, the municipal attorney pointed out at oral argument that maple tapping activities are not barred during the December 1 to February 28 period, and our review of the ordinance confirms this interpretation.

"The overarching goal of the [LAD] is nothing less than the eradication 'of the cancer of discrimination.'" Fuchilla v. Layman, 109 N.J. 319, 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). In short, the LAD is the Legislature's attempt to "protect society from the vestiges of discrimination." Cedeno v. Montclair State Univ., 163 N.J. 473, 478 (2000).

(continued)

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A-4838-08T3

February 16, 2010