                     NOT FOR PUBLICATION WITHOUT THE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-4379-14T1

IN THE MATTER OF THE SADC
RESOLUTION FY2015R12(2).



           Argued April 5, 2017 – Decided May 16, 2017

           Before Judges Alvarez, Manahan, and Lisa.

           On appeal from the resolution by the New
           Jersey    State    Agriculture    Development
           Committee, Resolution No. FY2015R12(2).

           Daniel L. Schmutter argued the cause for
           appellants Max Henry Riewerts and Diane
           Tribble Riewerts (Hartman & Winnicki, P.C.,
           attorneys; Mr. Schmutter, on the briefs).

           Jason Thomas Stypinski, Deputy Attorney
           General, argued the cause for respondent State
           Agriculture Development Committee (Christopher
           S. Porrino, Attorney General, attorney;
           Melissa H. Raksa, Assistant Attorney General,
           of counsel; Mr. Stypinski, on the brief).

PER CURIAM

     Since 2012, appellants Max Henry Riewerts and Diane Tribble

Riewerts have been attempting to obtain the necessary approvals,

municipal and state, in order to relocate a right-of-way (ROW) in

which they have an interest by recorded easement deed.               After the
initial denial by the agency director of the State Agriculture

Development Committee (SADC or Committee) on October 26, 2012,

appellants    sought    formal   approval   from   the   Committee.      The

Committee denied them permission to reconfigure and move the ROW,1

which decision was memorialized in Resolution FY2015R12(2).            Their

request was finally denied on December 11, 2014, and on February

26, 2015, by resolution, FY2015R12(5), SADC denied their request

for reconsideration.      This appeal followed.

     Appellants contend the record supports outright reversal.

They assert that the decision was based on SADC staff net opinions

that resulted in arbitrary, unreasonable, and capricious action

by the agency.   The SADC argues to the contrary, that its decision

was based on a proper assessment of facts and law, and should be

affirmed.

     The     record     consists   of    transcripts     of   appellants'

presentation,    made     during   multiple   appearances     before     the

Committee, as well as exhibits such as the easement deeds.             After

our consideration of the record and the relevant law, we conclude

that it does not allow for meaningful review.             Since no formal

hearing was conducted affording the parties the opportunity to



1
  This denial was actually sent to the owner of the servient
property over which the easement crosses and forwarded to
appellants on December 17, 2012.

                                     2                            A-4379-14T1
fully explore the legal and factual issues, we now vacate the

denial and remand the matter for that purpose.

      By way of background, in March 2009, appellants acquired a

fifty-six-acre parcel known as Greenwich Township Block 44, Lot

24.     They reside on the property and lease a portion of the

landlocked parcel for farming purposes.         Access to the nearest

public road is over a ROW created in 1951 by recorded easement

deed.   It does not include a metes and bounds description, rather

it describes the location as follows:

            There is conveyed to second party a right of
            way over an existing roadway leading from the
            Bloomsbury-Warren Glen Road through the
            property of first party to the property
            hereinabove     conveyed    consisting     of
            approximately fifteen feet in width.

      On July 23, 2010, after appellants acquired their tract, the

then owner of the adjoining lot, over which the easement extends,

Block 44, Lot 5, conveyed by deed of easement to the State of New

Jersey, and the United States, all non-agricultural development

rights to that tract. The parcel is similar in size to appellants'

property.     This   conveyance   was   made   under   the   Agricultural

Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -48.

ARDA authorized the SADC, an agency created under the Right to

Farm Act, N.J.S.A. 4:1C-1 to -10, to enter into agreements with

farmland owners for the acquisition of development rights in order


                                   3                              A-4379-14T1
to keep land in agricultural production.            N.J.S.A. 4:1C-15 to -

21.

      The deed further states that the United States, "acting

through   the   United   States   Department   of   Agriculture,   Natural

Resources Conservation Service (NRCS)" funded the purchase.              The

funds for the acquisition were allocated to the Warren County

Board of Chosen Freeholders by the Board of Trustees of the New

Jersey Conservation Foundation for that purpose.

      Attached to the 2010 farm preservation easement deed is a

schedule including a metes and bounds description of the property

and the following language:       "Subject to a Right of Way for access

to Block 44 Lot 24 containing 0.423 acres.             Said Right of Way

being approximately 15-feet wide as recited in Deed Book 351 page

139, Deed Book 373 page 273 and Deed Book 421 page 490."           The deed

further discloses an ROW belonging to Lot 5 over appellants' lot,

"for Certain Water Rights benefitting Block 44 Lot 5."             The ROW

over Lot 24 was memorialized years prior in a recorded deed.

      Lot 5 is currently owned by Robert Santini.            Although he

supports appellants' proposal, he did not make the application

himself nor was he involved in any presentation to the SADC.

Committee members, for reasons not stated on the record, suggested

he should have been involved in the application.



                                     4                              A-4379-14T1
     Despite the existence of the two recorded deeds regarding

ROWs having been described in the farmland deed, it appears no

notice of the conveyance of development rights was provided to

appellants.   They were unaware of the change in Lot 5's status

until they approached the municipality to obtain the necessary

approvals or permits to reconfigure their ROW.

     Appellants' ROW includes two ninety-degree turns around a

railroad embankment on the southerly end of the driveway, which

are difficult to negotiate with farm equipment.       They contend that

in addition, the ROW is impacted by runoff from the County road

and from Lot 5, as well as flooding and erosion.

     Appellants    submitted   an   engineer's   report   and   sketch    in

support of their proposed alternative ROW, basically a straight

line drawn from the County road across Lot 5 to their lot on the

southerly end. The local fire chief wrote a letter that appellants

presented to the SADC, confirming that a fire truck would have

difficulty negotiating the two ninety-degree turns to reach Lot

24 from the County road.       Appellants represented that entry onto

the County road from Lot 24 is dangerous in the summer, when corn

grown on Lot 5 attains its full height, as visibility becomes

virtually non-existent.

     Appellants'    proposed    reconfiguration,    identified    by     all

parties as Alternative 1, placed the entry point on the County

                                    5                             A-4379-14T1
road further to the east at an angle with the road.                Throughout

the meetings, the Committee acknowledged that appellants' safety

concerns were legitimate.        No formal expert report or testimony

was presented other than appellants' engineering report and plan

depicting Alternative 1.

      The SADC staff rejected Alternative 1 and came up with their

own proposal, known as Alternative 2.          The Committee followed the

"staff recommendations" included in their meeting packets.                   They

are not included in the appendices on appeal, and we cannot discern

if appellants had access to them during their several appearances

before the Committee.         Alternative 2 essentially tracked the

present driveway, except it somewhat eased the turns at the end

of the ROW.

      Based on SADC staff recommendations, the NRCS in writing also

rejected Alternative 1 but consented to Alternative 2.                       When

appellants realized they had not been given a copy of that letter,

one   was   provided,   and   they   were    invited   to   present    any    new

information at the next meeting.            Because in the opinion of the

SADC, appellants did not provide any new information in response

to the NRCS letter, the application was again rejected.

      A consequential and disputed point was the issue of whether

the   reconfiguration    of   the    ROW   would   result   in   the   loss   of

farmland.     Appellants contended that removal of the blacktop

                                       6                               A-4379-14T1
extending over the present ROW, and remediation of the soil

beneath, would lead to its eventual reclamation for farmland

purposes.    Appellants pointed out that, based on materials posted

on a government internet website, such reclamation of impacted

soil could occur within one to two years of the removal of the

asphalt after deep plowing.

      The SADC took the position that Alternative 1 would result

in the loss of farmland both because of the additional ground

consumed by a new ROW, and the nonarable area that would be left

by   the   removal   of   the   blacktop   extending   over   the   old   ROW.

Appellants unsuccessfully argued that the change would lead to

more, not less, available farmland since they contended that

Alternative 1 actually covered slightly less square footage than

the present ROW, and the land beneath the ROW blacktop could be

remediated for agricultural purposes.

      The resolution contained the following findings:

            1. The proposal does not constitute an
            agricultural use or serve an agricultural
            purpose but [] instead constitutes development
            of the [p]remises for the nonagricultural
            purpose of improved access to an adjacent
            residential property; []
            2. The purpose would be detrimental to
            drainage, flood control, erosion control, and
            soil conservation as a result of steeper
            slopes and the potential for more runoff and
            erosion; []
            3. The proposal, as described in the
            [e]ngineering [r]port and [addendum], would be

                                      7                              A-4379-14T1
           detrimental to the continued agricultural use
           of the [p]remises by taking more prime
           farmland out of production than the existing
           [ROW,] . . . additional land will be removed
           from crop production[,] . . . [the proposal]
           will reduce the size of the fields, increase
           field edge and attendant crop loss to
           wildlife; []
           4. [The addendum's] design . . . would require
           easements of 45 feet in width where the
           current roadway total 15 feet in width . . .;
           []
           5. Conveyance of an additional easement
           greater than the existing 15 foot wide
           easement . . . would be a violation of the
           Deed of Easement; and
           6. As described in the November 17, 2014,
           letter from the NRCS, . . . [alternative] 1
           is in conflict with [the] Deed of Easement
           . . . and therefore the request is denied by
           that agency.

    Additionally, Alternative 2 was approved for the following

reasons:

           1. The proposal constitutes an agricultural
           use and serves agricultural and conservation
           purposes by addressing existing drainage,
           erosion control, and soil conservation . . . .
           Specifically, drainage and erosion control
           concerns . . . could be addressed in the
           triangle of land between the old alignment and
           the new alignment through the installation of
           various NRCS conservation practices . . . ;
           []
           2. The proposal reduces impervious cover
           . . . and does not impact any prime farmland;
           and
           3. The proposal is not in conflict [with any]
           Deed of Easement restrictions inherent to
           farms preserved with funding from NRCS through
           [Farms and Ranch Lands Protection Program] as
           confirmed by the NRCS on November 17, 2014
           . . . .

                                 8                          A-4379-14T1
     On appeal, appellants raise the following points of error:

            ALL OF THE EVIDENCE IN THE RECORD SUPPORTS
            APPELLANTS' APPLICATION, AND THUS THE DECISION
            BELOW SHOULD BE REVERSED WITH DIRECTIONS TO
            ENTER A DECISION GRANTING THE APPLICATION.

                 A. SADC's Determination was Arbitrary and
                 Capricious    and   not   Supported    by
                 Substantial Credible Evidence.

                 B. This Court Has Authority to Provide
                 Relief as to the Driveway Easement.

     Appellate    courts   have   a       "limited   role"   in   reviewing

administrative agency decisions.          In re Stallworth, 208 N.J. 182,

194 (2011).    An agency's judgment may only be reversed if it was

"arbitrary, capricious, [] unreasonable, or [] not supported by

substantial credible evidence in the record as a whole."              Ibid.

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Moreover, "courts typically defer to the expertise of agencies in

technical matters which lie within their special competence" and

"give deference to agencies' construction of the statutory schemes

they are entrusted to administer."           Pasquince v. Brighton Arms

Apartments, 378 N.J. Super. 588, 597 (App. Div. 2005) (citations

omitted).

     In order to review such decisions, however, in light of the

deference ordinarily accorded to an agency, we must be presented

with an adequate record.     See Stevens v. Bd. of Trs., 294 N.J.

Super. 643, 655 (App. Div. 1996) (citation omitted) ("When an

                                      9                             A-4379-14T1
administrative      agency's      decision     is   not   accompanied     by    the

requisite findings of fact and conclusions of law, the usual remedy

is   to    remand   the   matter     to       the   agency   to    correct      this

deficiency.").

      The record does not support appellants' position that a

reversal of the agency decision is warranted.                We lack important

information necessary to fairly accomplish our deferential review.

Appellants had no opportunity to present evidence except very

informally, nor were they able to cross-examine SADC staff.                       We

do   not   have   the   reports    the    Committee    relied     upon,   nor    the

credentials and areas of expertise of the SADC personnel whose

recommendations and opinions appear to have been adopted.                       Thus

we cannot determine whether SADC's exercise of discretion in

rejecting appellants' engineer's report was reasonable.

      It is undisputed that "[d]ue process does not always require

an administrative agency to hold an evidentiary hearing before it

goes about the business it was created to conduct."                In re Request

for Solid Waste Util. Customer Lists, 106 N.J. 508, 520 (1987).

This is because "[t]he power to supervise and investigate a

regulated industry could be undermined if a regulator were required

to provide the industry with the right to produce witnesses and

cross-examine staff members before the agency could act."                    Id. at

520-21.    "Sometimes nothing more is required than notice and the

                                         10                               A-4379-14T1
opportunity to present reasons, either orally or in writing, why

the proposed action should not be taken."             Id. at 521.

      In   High     Horizon     Development     Co.     v.     Department         of

Transportation, 120 N.J. 40, 42 (1990), the Court addressed the

question of when administrative agencies were required to conduct

trial-type hearings.         The key issue is "whether the agency is

acting in a judicial or quasi-judicial capacity or in a legislative

capacity."     Id. at 50.

           If the [agency] is exercising "policy or
           discretion" with respect to [the issues], a
           clear requirement for a trial-type hearing is
           not present. On the other hand, if the
           questions turn on expert opinion relied on by
           the agency, one must be able in some way to
           contest the bases of the opinion.

           [Id. at 51.]

Additionally, trial-type hearings may be required when the agency

must resolve factual issues.         Ibid.   Because in this case the SADC

was   acting    upon    an   application     brought    by     a   third     party

significantly affecting that party's rights, it was acting in a

"judicial or quasi-judicial capacity[.]"          See id. at 50.

      In this case, the agency made some assumptions regarding the

law in rendering their decision, such as that the failure to notify

appellants     of      the    farm   preservation       deed       was     legally

inconsequential.       Similarly, the Committee assumed Lot 5's change

in use, which precludes appellants from modifying their pre-

                                      11                                   A-4379-14T1
existing ROW, was not compensable.             The Committee also assumed

appellants can be bound by the conditions limiting the use of Lot

5 when they never agreed to those restrictions.             These assumptions

may all be correct, and we express no opinion regarding them, but

they warrant some consideration by the Committee.

       Additionally, Alternative 2 did not significantly modify the

ROW.    From the record available to us, safety and other concerns

were   unaffected.     A    more   complete        exploration    of    potential

consequences such as runoff, soil erosion, and the restoration of

land   for   agricultural   purposes     is    necessary.        The    questions

"turn[ed] on expert opinion relied on by the agency," and without

a hearing, appellants, third parties previously unconnected to the

SADC, could not have successfully "contest[ed] the bases of the

opinion."     See id. at 51.

       Paragraphs 2, 4, and 5 purport to make factual findings

regarding conditions such as flood control, the width of the

proposed roadway as opposed to the current roadway, and changes

to the width of the easement, which were in stark contrast to the

information    appellants    presented,       or   were   not    in    the    record

provided on appeal.    Paragraph 3 of the Resolution indicates that

Alternative 1 would decrease the amount of prime farmland available

for production, while appellants argued that the agricultural use

of both properties would be enhanced by the reclamation of the

                                    12                                       A-4379-14T1
present ROW and improvement of drainage, flood control, erosion

conditions, and soil conservation resulting from Alternative 1.

We do not have a basis for passing on the reasonableness of those

conclusions.    Finally, although the NRCS denied the application,

a factor the SADC took into consideration, that refusal appears

to be solely in response to communications from the SADC.

     Thus, a remand is necessary because the record does not allow

for fair review, appellants were not afforded the process due

them,   and   significant   legal   and    factual   questions   were   not

addressed by the proceedings before the resolution was adopted.

The denial of appellants' application is therefore vacated, and

the matter remanded for hearing.         We do not retain jurisdiction.

     Remanded for a hearing.




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