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Merenich details ABCs of state’s Right to Farm Act

By RICHARD SKELLY
AFP Correspondent

NEW BRUNSWICK (March 1 2017) — Agriculture law specialist Robert Merenich of Linwood briefed a crowd of organic farmers at the 27th Northeast Organic Farming Association-New Jersey winter conference on Jan. 29 regarding the basics of the Garden State’s Right to Farm statutes.
Merenich took questions from farmers gathered around a conference table but cautioned he was not offering legal advice specific to their questions.
Merenich has been practicing agricultural law since 1997.
He fell into farming and ag law when handling an environmental issue for a client, but at that point in time, the Right to Farm Act in the Garden State had not been amended.
New Jersey’s legislature passed a Right to Farm Act in 1983, but it wasn’t until the body of statutes was amended in 1997 that it actually had some teeth, Merenich said in his introduction.
Once the Right to Farm Act was “refurbished and fortified in 1997, and it gave two important protections to farmers,” he said. One was the ability for the farmer to have a pre-emption of municipal and county regulation of his / her commercial farming operation, and a second improvement concerned nuisance complaints against farmers.
“If that farmer is determined to be acting responsibly, then we’re going to throw that case out of court,” he explained.
Merenich stressed repeatedly that the onus is on the commercial farmer to keep records and offer up proof, or a series of proofs, that he/she is/was acting responsibly when a nuisance complaint is brought against him.
Merenich briefly described a case that had been brought by a municipality against his client, a commercial farm operation that went to New Jersey Superior Court.
Merenich argued Superior Court doesn’t have jurisdiction over the matter anymore; it should instead be moved to the county agricultural development board.
The court initially disagreed, but Merenich appealed for his client, “and they said, you know what, they don’t have jurisdiction and the Appellate Court and Supreme Court agreed.”
Aside from getting nuisance complaint cases against farmers moved to the county agricultural development boards, Merenich told the audience that almost all of his right to farm cases are in counties in central and northern New Jersey. Complaints or attempted legal actions against farmers in southern New Jersey counties are less frequent, he said.
“South Jersey is a different state, the governments there are far more favorable to farming, and you’re not going to get the same kind of complaints that you do when you have one and two million dollar properties next to your farm land,” he said.
“I don’t have anything in Right to Farm Act cases in southern New Jersey, it just doesn’t happen there.”
Panel attendees received both a truncated eight-page outline of pertinent points in New Jersey’s Right to Farm Act as well as a more substantial tome, a 70-page packet of information that included a case study.
Highlights of Merenich’s talk included a few other points:
• To be protected under New Jersey’s Right to Farm Act as amended in 1997, the onus is on the farmer himself/herself to demonstrate things like income from the land;
• “The right to farm act seeks to remove or lessen the burdensome impact of county or state regulations,” he said, noting every business owner in the Garden State faces federal laws, state laws, county ordinances and municipal ordinances;
• “The statute says it appreciates how that can become confusing for everybody and we want to protect the compliant farmer from nuisance complaints,” he continued;
• “We’re all property owners: look at your property as a bundle of sticks,” he said, “one of the sticks you have is the ability to exclude people from your property. But the most important stick you have is for the use and enjoyment of your property, and the legislature in looking at the right to farm act, you have to keep in back of your mind, not only do you have that stick to the use and enjoyment of your property but so does that person [or organized group] bringing the complaint against you;”
• “It stinks here, or there’s water coming onto my property. Your use and enjoyment of your property is imposing on my use and enjoyment of my property, what are we going to do about this?” If the farmer offers up multiple proofs that he is engaging in responsible farming on his property before the county Ag development board, then it’s likely the nuisance case would be dismissed; and
• “A theme in all this, is there is a balance that must be maintained,” Merenich continued, noting he advises farmers being hit with nuisance complaints to go and talk with their neighbors and keep them involved in what’s going on. “It’s the best way to protect yourself against getting into a conflict in the first place, it’s a protective act, it protects the compliant responsible farmer. The Right to Farm Act will not be enforceable if it doesn’t take the considerations of the adjoining property owners into mind,” he said.
In summing up, Merenich advised the group of smaller organic farmers to keep records and document all their activities and to be proactive and let their neighbors know about things like spring ploughing kicking up extra dust in the neighborhood on windy days, or the addition of air guns at certain hours of the day to keep birds and other pests out of corn fields.
“The protected farmer is the responsible farmer,” Merenich said, “who maintains evidence of his eligibility for protection under the Act, and his/her adherence to the applicable management practices for the applicable agricultural activity in question. I can’t emphasize it enough: we’re in a country that observes property rights. The people around you enjoy those rights as well. You have to realize in the back of your mind, those people have a right to enjoy their property as well.
“But under the Right to Farm Act, if you’re responsible in your use of your land, you are protected.”