DEMAREST FARM AND ORCHARD, LLC VS. BOROUGH OF HILLSDALE MAYOR AND COUNCIL (L-5016-17, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0538-18T3

DEMAREST FARM AND
ORCHARD, LLC,

Plaintiffs-Appellants,

v.

BOROUGH OF HILLSDALE
MAYOR AND COUNCIL,

Defendants-Respondents.
___________________________

Argued February 26, 2020 – Decided March 12, 2020

Before Judges Fuentes, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-5016-17.

Eric Victor Kleiner argued the cause for appellants
(Lawrence H. Kleiner LLC, and Eric V. Kleiner,
attorneys; Eric Victor Kleiner and Lawrence Herman
Kleiner, on the briefs).

Raymond R. Wiss argued the cause for respondents
(Mark Daniel Madaio, and Wiss & Bouregy, PC,
attorneys; Raymond R. Wiss and Thomas Kevin
Bouregy, on the brief).
PER CURIAM

Plaintiff Demarest Farm and Orchard, LLC (the Farm), appeals from an

August 21, 2018 order dismissing its complaint with prejudice. We affirm.

The Farm operates in Hillsdale and is one of the only pick-your-own

(PYO) apples and autumn celebration facilities in Bergen County. It attracts

thousands of patrons each fall season. The Farm has 215 on-site parking spaces.

Due to the large number of visitors participating in the Farm's activities during

the fall season, the Farm cannot accommodate all its patrons with on-site

parking. Therefore, it traditionally utilized off-site and street parking during

peak periods.

Unfortunately, by 2015, the Farm lost access to additional parking spaces

in the vicinity, including spaces at a school parking lot and a seven-acre private

property. Based on safety concerns arising from the Farm's lack of adequate

parking, in October 2016, the Borough of Hillsdale (Borough) passed

Emergency Resolution 16227. This resolution authorized the Hillsdale Police

Department to implement emergency road closures and no parking on the streets

near the Farm between 7:00 a.m. and 6:00 p.m. during the fall harvest season.

In 2016, the Borough held a public bid for 250 parking spaces located in

a municipal parking lot near the Farm and received no bid responses. In 2017,

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the Farm bid $.95 per day for this municipal parking lot. This bid was accepted

by the Borough.

In January 2017, the Farm filed an action with the Bergen County

Agricultural Development Board (BCADB) to allow its customers to park on

the Borough's streets as designated "Farm Parking." The Farm applied to the

BCADB for review of a Site Specific Agricultural Management Plan pursuant

to the Right to Farm Act (RTFA), N.J.S.A. 4:1C-1 to -10.4. The Borough also

filed a complaint with the BCADB, based on the RTFA. The Farm's pedestrian

safety expert issued a report, opining "there is [no] cause for concern with

respect to pedestrian safety during the PYO Season if the Event Management

Plan is followed."

At hearings conducted before the BCADB between May and August 2017,

the Farm's principal testified the Farm required a minimum of 1225 parking

spaces per day during PYO season. The Farm also presented testimony from a

pedestrian safety expert, a traffic engineering expert, and experts on land

preservation, conservation, open space planning, and economic development.

Before the BCADB, the Borough presented the testimony of Police Chief

Francaviglia. He testified the number of cars attending the Farm's fall festivities

was overwhelming and the traffic was "out of control and negatively impacted

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the Borough's residents." The Chief stated the Farm attracted so many visitors

that the Borough was unable to safely handle the situation. Similarly, the Mayor,

Douglas Frank, presented a slide show reflecting the Farm's insufficient parking

and testified the lack of adequate Farm parking created safety concerns for the

Borough's residents and Farm customers. Finally, the BCADB heard public

comments on the matter.

On June 8, 2017, the Borough's governing body introduced Ordinance 17-

09 to permanently prohibit street parking near the Farm. The ordinance

(Ordinance 17-09) purported to make permanent the emergency resolution. The

ordinance prohibited street parking near the Farm on "Saturdays, Sundays and

[h]olidays between 9:00 a.m. and 5:00 p.m. from August 30th until October

30th." On June 13, 2017, Ordinance 17-09 was adopted at the Council's public

meeting. Mayor Frank did not vote on the ordinance.

On September 6, 2017, the BCADB issued Resolution 2017-01, which

ruled that the Farm would be awarded temporary relief from the Borough's

parking restrictions. The BCADB resolved to divide the area surrounding the

Farm into four quadrants, and allowed parking on a rotating basis from 2017-

2019, with all street parking to end by 2020. Neither party appealed the

BCADB's decision.

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 In 2017, the Farm did not use any public streets or Borough parking for

customer parking. Instead, it secured the use of 900 off-site parking spaces in

another municipality. In July 2017, the Farm filed an order to show cause and

verified complaint in lieu of prerogative writs seeking to invalidate the

ordinance. On August 21, 2018, the trial court dismissed the complaint with

prejudice, finding the challenged ordinance was not arbitrary, capricious, or

unreasonable.

On appeal, the Farm argues the trial court erred in dismissing its

complaint. The Farm contends the ordinance is arbitrary and capricious because

it is contrary to "fundamental principles of municipal legislation," cannot be

reconciled with the RTFA, is "confiscatory [in] nature," demonstrates bias

against the Farm and its patrons, and was passed without the Borough

conducting any professional studies or securing an expert opinion. After a

careful review of the record, we find these arguments unavailing.

"Municipalities have the power and authority to enact ordinances in

support of the police power." Hutton Park Gardens v. Town Council of W.

Orange, 68 N.J. 543, 564 (1975). These ordinances, "like statutes, carry a

presumption of validity." Ibid. This presumption places a high burden on the

party seeking to overturn the ordinance. Ibid. In fact, a party seeking to

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invalidate an ordinance must demonstrate by clear and convincing evidence that

the ordinance is arbitrary and capricious. New Jersey Shore Builders Ass'n v.

Twp. of Jackson, 199 N.J. 38, 54-55 (2009).

"Legislative bodies are presumed to act on the basis of adequate fa ctual

support and, absent a sufficient showing to the contrary, it will be assumed that

their enactments rest upon some rational basis within their knowledge and

experience." Hutton Park Gardens, 68 N.J. at 564-65. All police-power

legislation, however, is "subject to the constitutional limitation that it be not

unreasonable, arbitrary, or capricious, and that the means selected by the

legislative body shall have real and substantial relation to the object sought to

be attained." 515 Assocs. v. City of Newark, 132 N.J. 180, 185 (1993) (citing

Bonito v. Mayor and Council of Bloomfield, 197 N.J. Super. 390, 398 (Law Div.

1984)).

N.J.S.A. 40:48-2 allows municipalities to enact ordinances that

it may deem necessary and proper for the good
government, order and protection of persons and
property, and for the preservation of the public health,
safety and welfare of the municipality and its
inhabitants, and as may be necessary to carry into effect
the powers and duties conferred and imposed by this
subtitle, or by any law.

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 When a municipality determines the most feasible manner of "curing

traffic evils and traffic congestion in a specific area, and such regulation bears

a direct relationship to the public safety, such determination is reasonab le and

not arbitrary." Cedar Grove v. Sheridan, 209 N.J. Super. 267, 279 (App. Div.

1986).

"The job of a reviewing court is not to weigh the evidence for or against

an enactment, or to evaluate the wisdom of the policy choice made." New Jersey

Shore Builders Ass'n, 199 N.J. at 56 (citing Hutton Park Gardens, 68 N.J. at

565). Accordingly, a court may not substitute its judgment for that of the

municipal body unless it is proven that the Board's action was arbitrary,

unreasonable or capricious. See Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of

W. Windsor Twp., 172 N.J. 75, 81 (2002); Medici v. BPR Co., 107 N.J. 1, 15

(1987).

Based on our de novo review, we are satisfied the Farm's complaint was

properly dismissed as the challenged ordinance was reasonably related to the

municipality's exercise of its obligation to promote the safety of its residents.

The record shows the ordinance at issue was enacted to address concerns raised

by the Hillsdale Police Department, elected officials, and residents regarding the

safety risks posed by the lack of adequate parking for the Farm's patrons. In

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fact, the ordinance passed only after the Borough first adopted an emergency

resolution, which was supported by certifications from the Mayor and the Police

Chief after they personally witnessed the worsening parking situation.

Mayor Frank confirmed he observed the area near the farm in October

2016 and saw the entire area "engulfed with vehicles and pedestrians." He noted

the streets were crowded, impassable to emergency vehicles, and pedestrians

were in danger. Moreover, Chief Francaviglia attested the situation near the

Farm began to deteriorate rapidly in 2014 and 2015, as "the streets [were] full

of vehicles and pedestrians, there is gridlock and no emergency vehicle access."

The Chief warned "it [was] only a matter of time before someone [was] injured

or killed." Further, the Chief cautioned that two Bergen County Sheriff's

Officers, three Hillsdale officers, and a traffic officer could not guarantee safe

access to the Farm and the surrounding area during PYO season in 2016 , due to

the overwhelming number of patrons at the Farm. The record also reflects the

Borough worked with the Farm for several years to find a way to safely manage

the Farm's parking and congestion issues during PYO season. Absent an

alternative proposal that could adequately address the safety issues created by

the Farm's inadequate parking facilities, the Borough passed Ordinance 17-09,

but narrowly tailored the ordinance to alleviate the known safety risks.

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Accordingly, we perceive no basis to overturn the trial court's dismissal of the

Farm's complaint.

To the extent the Farm argues the Mayor and Council were required to

obtain expert reports or engage in professional studies before enacting the

ordinance, we do not agree. Our Supreme Court confirmed "[i]t is entirely

appropriate for a governing body to hear testimony from its citizens and to

respond. Indeed, it may be that the testimony offered by those citizens, without

expert analysis, will be sufficient [to enact an ordinance]." Riya Finnegan LLC

v. Twp. Council of Twp. of S. Brunswick, 197 N.J. 184, 193 (2008).

The Farm next contends the ordinance may not be reconciled with the

RTFA as it conflicts with the interests sought to be advanced by the RTFA.

Again, we disagree.

As our Supreme Court observed, "[t]here will be those cases where the

local [] ordinance simply does not affect farming. There will be other disputes

where, although the ordinance has a peripheral effect on farming, it implicates

a policy that does not directly conflict with farming practices." Twp. of Franklin

v. Den Hollander, 172 N.J. 147, 152 (2002). Thus, a "fact-sensitive inquiry will

be essential in virtually every case." Id. at 153. The Den Hollander Court

provided an example to demonstrate that not all ordinances that may i mpact a

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farm actually interfere with farming, such as when a farmer seeks to erect a silo

taller than the municipal height limitation allows, or build a barn with a smaller

side yard than permitted by a municipal ordinance. 172 N.J. at 153. The Den

Hollander Court explained: "On the face of it, such ordinances do not interfere

with farming and, therefore, the zoning ordinance limitations ordinarily should

be respected." Id. at 152.

The Den Hollander Court also affirmed that the County Agricultural

Board, by way of the RTFA, has primary jurisdiction to address a dispute

between a farm owner and the municipality over alleged violations of the local

municipal land use laws. Id. at 151. The Court added that while the agricultural

boards have primary jurisdiction over such disputes, "the boards do not have

carte blanche to impose their views." Ibid.

Under the RTFA, an "owner or operator of a commercial farm . . . which

does not pose a direct threat to public health and safety may . . . . [p]rovide for

the operation of a farm market, including the construction of building and

parking areas in conformance with municipal standards." N.J.S.A. 4:1C-9(c).

Consistent with its obligation, an agricultural board must assess a "direct threat

to public health or safety" broadly, "not as a narrow limitation in considering

complaints of an aggrieved party that local land use or other relevant ordinances

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are being violated by the conduct of the commercial farm operator." Twp. of

Franklin v. Hollander, 338 N.J. Super. 373, 394 (App. Div. 2001), aff'd, 172 N.J.

147 (2002).

Here, the BCADB "considered the relevant municipal public health and

safety standards including those which might have a peripheral effect on farming

but do not directly conflict with farming practices." The BCADB determined

the Farm failed to justify its request for a permanent variance from the State's

Agricultural Management Plan and that the "critical underlying issue [was] a

continuous, annual increase in traffic and pedestrian volumes which creates

negative impacts through a level of chaos and unmanageability [and there is]

actionable concern over the unmitigated, negative impacts on the public health

and welfare of the neighborhoods arising from the Farm's proposed use of

municipal streets." Again, the BCADB's decision was not appealed by either

party.

Although the Farm contends the trial judge erred by referring to the

BCADB's conclusions in her decision, we do not agree. Rather, the trial judge

clearly stated she was "not bound by the findings of the BCADB, nor [were] the

findings of that Board before this court for review." Additionally, the judge

remarked, "it is useful to the court to refer to that Board's resolution." Although

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the judge was "persuaded by the reasoning of the BCADB, finding its decision

to be based in fact, carefully considered, weighing the interests of all parties and

stakeholders and coming to conclusions based upon the Right to Farm Act and

State Agricultural Development Committee Regulations," the judge

nevertheless engaged in an independent, thorough analysis before finding the

Farm failed to meet its heavy burden to overturn the ordinance. We have no

reason to second-guess her findings. Moreover, as Ordinance 17-09 does not

directly interfere with farming practices but instead, addresses safety concerns,

we are satisfied the trial judge correctly rejected the Farm's argument that the

ordinance ran contrary to the legislative goals of the RTFA.

Since the Farm failed to demonstrate by clear and convincing evidence

that Ordinance 17-09 was arbitrary or capricious, we affirm the trial judge's

dismissal of the Farm's complaint with prejudice. The Farm's remaining

arguments lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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