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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director
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Legal Q & A

 

Farmland Assessment,
Noise Ordinances and the Municipal Vacancy Law



Deborah M. Kole
League Staff Attorney
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D. Kole

Q One of the properties in our town has a number of temporary greenhouses on it. The owners sell the plants they grow for a living. The greenhouses are open to the public for business about half the year. The customers actually buy the plants in only one of the greenhouses. That structure has a cash register and a large number of carts for carrying the plants. The patrons go into the other greenhouses to pick out the plants to buy. This is quite a thriving business, with a large customer parking lot. To my surprise, I just found out that all of the greenhouses except the one where sales take place are assessed as farmland. Is this appropriate for such a large sales operation?

A The New Jersey Supreme Court has recently decided that farmland assessment status is appropriate in a fact pattern similar to the one you describe. In Township of Monroe v. William W. Gasko and Marie Gasko 182 NJ 613 (2005), the Court reversed both the Tax Court and the Appellate Division to rule that only the greenhouse actually used for sales was exempt from such assessment. The Court said that the sales-related activities of choosing and removing plants did not change the nature of the other greenhouses, because they were still fully utilized for growing plants and contained no “sales space.” Therefore, they qualified as “single use agricultural or horticultural facilities” under the Farmland Assessment Act. Only the greenhouse where the sales actually took place would be assessed at regular tax rates. The Court found the lower court decisions too restrictive in their application of the Act to this fact pattern.

Q I am a member of our municipal governing body, and one of my colleagues on the council has suggested that we revise our noise ordinance to follow the Department of Environmental Protection model that contains decibel levels. He says that a noise ordinance without specific decibel levels is too vague, and could be declared invalid if challenged. The rest of us like the ordinance we have, and feel that the type of ordinance he suggested would be problematic in its own way. Is an ordinance without decibel levels too vague?

 

 

 

A It depends on what it says. The New Jersey Appellate Division recently found that such an ordinance without decibel levels was not too vague, in the case of New Jersey v. Clarksburg Inn, 375 NJ Super 624 (App. Div. 2005). The Millstone Township ordinance in question defined prohibited noise as being “...any loud, unnecessary or unusual noise or any noise which does or is likely to annoy, disturb, injure or endanger the comfort, repose, health, peace or safety of others.” The violation in question was a band playing on the defendant’s premises. The ordinance goes on to state that, in cases of the playing of radios, televisions, musical instruments, etc., if “...it is clearly audible at a distance of 100 feet from the building structure or vehicle in which it is located, (this) shall be prima facie evidence of a violation...”of the ordinance.

Witnesses who lived at least that far from the defendant premises had given sufficient evidence in municipal court that this standard was met, in the opinion of the court, to support conviction under the ordinance. The combination of the more general language defining prohibited noise and the specific distance provided for audibility, in the court’s view, provided for an ordinance that was not unconstitutionally vague.

Q One of my fellow council members has been having serious personal problems, and has not been able to attend meetings for the past couple of months, although he will be returning to his duties soon. One of the other members says that the Municipal Vacancy Law provides that his office must be declared vacant because he has not attended council meetings for eight weeks. Our absent colleague is a long time member of the council and a fine public servant, and we don’t want to have him replaced. Does the law require us to do so?

A The law does not require you to do so as long as a majority of the council wants to excuse the absences. NJSA 40A:16-3 g. provides for the office to be deemed vacant if the member does not attend and participate in meetings for eight consecutive weeks, unless the absence is due to legitimate illness or is “excused by the governing body.” Therefore, if a majority of the council votes to excuse his absences, he does not have to be replaced.

 

This column is for informational purposes only, and is not intended as legal advice.

 

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