IN RE: CAPE MAY COUNTY/ERNEST AND JANICE UTSCH AND ANNA MAY LETTS FARM.
DOCKET NO. A–1997–11T4
-- July 23, 2013
Barbara L. Bakley–Marino, County Counsel, attorney for appellant Cape May County (James B. Arsenault, Jr., Assistant County Counsel, on the briefs).Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey State Agriculture Development Committee (Melissa H. Raksa, Assistant Attorney General, of counsel; Alison M. Reynolds, Deputy Attorney General, on the brief).
Petitioner, Cape May County (the County), appeals from the decision of respondent, the State Agriculture Development Committee (SADC), denying the County's grant application for monies to acquire development rights for the purpose of farmland preservation. The County argues the SADC's rejection of its application was arbitrary, capricious, unreasonable, and contrary to the statutory and regulatory framework. Alternatively, the County contends the use of SADC internal policy exceeded the agency's informal rule-making authority. Following our review of these arguments, in light of the record and the applicable law, we affirm.
In 2005, Ernest and Janice Utsch and Anna May Letts (applicants) owned undeveloped realty located on New England Road, identified as Block 746, Lots 13.01 and 16.02 on the tax map of Lower Township, Cape May County (the property). Applicants filed for preliminary and final site plan approval to subdivide the property into seven residential lots, identified as Lots 13.03 through 13.09. The proposal showed Lot 13.09 abutted the Cape May Canal, Lot 13.08 abutted Bayshore Road, and five lots—Lots 13.04, 13.05, 13.06, 13.07, and 13.09—had no street frontage, but the application proposed access via an easement through Lot 13.08 on “Martin's Way.”
On February 9, 2006, the Lower Township Planning Board conditionally granted what it characterized as a “minor” subdivision approval, stating:
4. The application sought no variances.
5. The parcel consists of 10.92 acres.
6. Applicant testified that there is an existing single story dwelling on the property.
8. All would have access through Martin's Way[,] an existing right-of-way in the Township.
9. The property is to be serviced by well water and an onsite septic system for each proposed lot.
11. Applicant agrees to provide a Homeowners Association in a form satisfactory to the Board Engineer and Board Attorney for the maintenance and upkeep of the drainage easements for the proposed stone drainage trench.
12. Applicant agrees to show on the plan the placement of the disposal field for proposed Lot 13.08.
As approved, the subdivision was never recorded, as applicants never filed either a plat or deed.
On March 24, 2006, applicants filed with the Cape May County Agricultural Development Board (CADB) offering to convey a development easement, designed to restrict future non- agricultural development on the newly created Lots 13.03 through 13.07, which spanned approximately five acres. Their submission explained the “[p]roperty is located in [a] very desirable residential dev [elopement] area[,]” and “[w]e would like to preserve it for the future [and] prevent development.” The application identified the five acres to be included, and stated no portion of Lots 13.03 through 13.07 was “excepted” from the development easement. The CADB considered the offer on May 22, 2006, and recommended the County acquire the development easement.1
Using an SADC-approved list, the CADB selected two State certified appraisers to independently ascertain the value of the development easement. To do so, the appraisers were required to determine the property's fee simple value free of restrictions and its comparative value as a result of restrictions imposed by a development easement.
Barbara Marley Wenner, SCGREA, provided a written appraisal report on August 1, 2006, opining the unrestricted market value of the five-acre parcel was $903,000, or $177,000 per acre, and its development easement value was $750,000, or $147,000 per acre.2 J. Paul Bainbridge, MAI, SCGREA, appraised the property on August 31, 2006, and opined, “subject to the attached assumptions and limiting conditions,” the property's unrestricted market value was $1,625,000, or $318,128 per acre, and its development easement value was $1,617,500, or $316,660 per acre.
Upon its receipt of the County's pre-acquisition request for a State grant sharing the development easement acquisition cost, the SADC's review appraiser considered the County's appraisal submissions and certified the development easement had an estimated value of $1,351,000, or $270,200 per acre. See N.J.A.C. 2:76–17.11(e) (“The [SADC] shall appoint a review appraiser to evaluate the appraisals submitted by the [County] and to recommend a market value of the development easement for each farm.”).
Based upon this value, the County Board of Chosen Freeholders adopted Resolution No. 393–07, approving the purchase of the development easement for the five-acre parcel of applicants' property. Thereafter, applicants contracted with the County to convey a development easement for the five-acre parcel for $270,200 per acre. On December 18, 2008, the County finalized the purchase, paid $1,381,262.40, and obtained and recorded a deed of easement.
The County sent the SADC its application for an incentive grant for State contribution for the development easement's acquisition cost. The submission suggested the County sought the grant to share the cost of acquisition of development rights for a portion of Lower Township Lot 13.01. Following review, the SADC declined to consider the submission, alerting the County:
We want[ ] to have a better understanding of 1) if the existing appraisals meet SADC standards; 2) if the County c[an] qualify for relief pursuant to N.J.A.C. 2:76–17.11—which was created to offer assistance to Counties that used FY2009 funding to pre-acquire easements prior to a downturn in the market; and 3) whether the County may be in jeopardy of triggering the statute prohibiting purchase of a development easement for an amount greater than the highest appraised value[.]
The SADC identified two significant flaws found in the County's filing. First, in determining the development easement's value, the appraisals failed to comply with the SADC appraisal handbook standards because they had not considered the value of the approved subdivision within the entire parcel. The SADC stated the value of the property subject to the development easement would be “reduced significantly” if the “residential opportunities[,]” that is, the development potential of the parcels retained by applicants, was considered.3 Second, the County's appraisals assumed public access to the property through Martin's Way; however, there was no legal access because applicants failed to record the subdivision, which contained the Martin's Way right of access. The SADC noted this assumption likely increased the appraised value of the development easement, stating “Martin's Way, the legal access for the preserved area (5 hypothetical lots), is not recognized and remains a private driveway outside of the preserved area.”
The SADC did not reject the County's submission, but instead permitted the County to file a modification. In order for the application to move forward, the SADC advised the submission needed appraisals noting the value of the area to be preserved and the two retained lots subject to exception. Additionally, the application must be amended “in a way that retains access to the preserved parcel ․ (e.g., seeing if the landowner would be willing to record a legal access easement on the hypothetical Martin's Way to provide access to the building lots).” Further, “[i]n order to close, a corrective deed of easement noting the exception area and the restriction to 2 residential opportunities would be needed and a new survey noting the access easement and exception would also be needed.”
When the County did not revise its application or submit additional documentation, the SADC adopted Resolution FY2012R11(13), rejecting the County's application for a State cost-sharing grant. The resolution stated:
[T]he [p]roperty has no exception and no residential opportunity on the preserved area; and
[P]ursuant to N.J.A.C. 2:76–6.11(c)1 the SADC “may disapprove an [ ] application if it determines that the applicant has initiated proceedings in anticipation of applying to sell a development easement or during the application process which have the effect of increasing the applicant's appraised development easement value” (Schedule C); and
[T]he County appraisals did not follow procedures contained in N.J.A.C. 2:76–10.6(a)1.iii[ ], which requires the appraiser to consider the value impacts of any exceptions to the subject property (Schedule D–1), nor in N.J.A.C. 2:76–10.7(a)3.ii, which requires the appraiser to consider the value of residential opportunities associated with exception areas (Schedule D–2); and
[T]he County appraisals did not follow the procedures set forth in the SADC Appraisal Handbook[,] which requires consideration of exception areas to determine the impact on the restricted “after” value (Schedule D–3) and also requires that appraisers should not assume access to a subject property over other lands not in the application, even if owned by the applicant (Schedule E); and
[T]he County appraisals did not follow Policy P–23–A which directs appraisers to appraise the entire land parcel first, including the area to be excepted in order to determine the value the exception area contributes to the value of the lands to be subject to the development easement (Schedule D–4)[;] and
[B]oth appraisals valued the 5.112 acre [p]roperty as having 5 approved building lots and disregarded the remainder of the overall 10.92 acre parcel which contains two additional lots, contrary [to] the regulations, SADC Appraiser Handbook and Policy P–23–A as identified above; and
[T]he appraisals considered the access to the lots subject to ․ the Farmland Preservation application to be via the proposed Martin[']s Way which was identified as a proposed right of way in the property's subdivision approval, however[,] this access was never perfected, nor was an access easement recorded, therefore the legal access to the subdivided lots did not legally exist at the time the County acquired the development rights; and
[T]he tax lot ․ is physically encumbered by a portion of the landowner's existing driveway, thereby further diminishing the validity of appraisal assumptions related to clear and marketable title of the subdivision lots; and
SADC staff opinion [is] that the application and appraisals did not meet standards and requirements set forth in SADC regulations, Appraisal Handbook and SADC Policy P–23–A as outlined above; and
[O]n July 25, 2011 SADC staff issued a “Pre–Green Light Review” clarifying the issues regarding the application and assumptions used for appraising the [p]roperty and indicated that a revision of the application and new appraisals would be required in order for the application to proceed through the SADC's County [Planning Incentive Grant (PIG) ] program[.]
The County appeals from the SADC's November 3, 2011 decision denying its application for a cost-sharing grant to acquire the applicants' five-acre parcel.
Appellate review of an administrative agency's final determination is limited, In re Herrmann, 192 N.J. 19, 27 (2007) (citation omitted), given the “strong presumption of reasonableness” accorded to agencies exercising their statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L. Ed.2d 245 (1980). See also Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (“In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited.” (citation omitted)). Accordingly, “[c]ourts [may] intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy[,]” Mazza, supra, 143 N.J. at 25, with the burden of proof falling on the challenger. In re Arenas, 385 N.J.Super. 440, 443–44 (App.Div.) (citations omitted), certif. denied, 188 N.J. 219 (2006).
As a general rule, we will not set aside an agency's final decision unless the challenger presents “a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence.” In re Application of Virtua–West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citations omitted). See also Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963) (declining to upset an agency decision “in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the civil service act”) (citations omitted)). Mere doubts as to the wisdom of the decision or the fact the record may support more than one outcome does not warrant this court's intrusion in the agency's determinations or findings. Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 92–93 (1973). See also In re Taylor, 158 N.J. 644, 657 (1999) (stating if agency decision is supported by “sufficient credible evidence in the record[,]” a reviewing court must uphold the decision “even if [it] believes that it would have reached a different result” (citations omitted)). Consequently, our task is to ensure the agency's determination is based on substantial evidence and supported by the record. In re Carter, 191 N.J. 474, 483 (2007) (citation omitted).
While we accord deference to the agency's “expertise and superior knowledge of a particular field[,]” ibid. (internal quotation marks and citation omitted), we are “in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.” Mayflower, supra, 64 N.J. at 93. The agency's interpretation of the law is subject to plenary review. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).
We also recite the statutory framework advancing the Legislature's aim of farmland preservation implicated by this appeal. The County's request for funds was filed pursuant to the PIG program, which is implemented through provisions of the Right to Farm Act (RTFA), N.J.S.A. 4:1C–1 to –10.4, and the Agriculture Retention and Development Act (ARDA), N.J.S.A. 4:1C–11 to –48.
The Legislature enacted the ARDA to “strengthen[ ] ․ the agricultural industry[,]” understanding “the preservation of farmland [is] important to the present and future economy of the State and the welfare of the citizens of the State[.]” N.J.S.A. 4:1C–12a. The RTFA, enacted at the same time, embodies the same public policy, stating “[t]he retention of agricultural activities would serve the best interest of all citizens of this State by insuring the numerous social, economic and environmental benefits which accrue from one of the largest industries in the Garden State[.]” N.J.S.A. 4:1C–2a. In an effort to effectuate these objectives, the Legislature determined it was “necessary to authorize the establishment of State and county organizations to coordinate the development of farmland preservation programs within identified areas where ․ certain financial, administrative and regulatory benefits will be made available to those landowners who choose to participate [.]” N.J.S.A. 4:1C–12c.
The SADC, created by the RTFA, “share[s] the same purpose to protect and encourage agriculture[,]” Twp. of S. Brunswick v. SADC, 352 N.J.Super. 361, 365 (App.Div.2002) (citing N.J.S.A. 4:1C–2 and –12), and ensures “the State's regulatory action with respect to agricultural activities may be undertaken with a more complete understanding of the needs and difficulties of agriculture[.]” N.J.S.A. 4:1C–4a. See also In re Agric., Aquacultural, & Horticultural Water Usage Certification Rules, N.J.A.C. 7:20A–1.1 et seq., 410 N.J.Super. 209, 227 (App.Div.2009).
The SADC is empowered to “[e]stablish guidelines ․ for identification of agricultural lands suitable for inclusion in agricultural development areas and farmland preservation programs[,]” and to “[r]eview and approve, conditionally approve or disapprove all applications for funds[.]” N.J.S.A. 4:1C–7a, e. The SADC also has specific authority to “[a]pply for, receive, and accept ․ grants or loans for, or in aid of, the committee's authorized purposes;” to “[e]nter into any agreement or contract ․ necessary, convenient, or desirable ․ to carry out [its] power ․;” and to “[a]dopt, pursuant to the ‘Administrative Procedure Act,’ [N.J.S.A. 52:14B–1 to –30], rules and regulations necessary to implement the [RTFA's] provisions[.]” N.J.S.A. 4:1C–5d, e, f.
The statutory scheme specifically envisions the purchase of farmland development easements requiring land to be dedicated to agricultural purposes. See N.J.S.A. 4:1C–24a(2) (“Any landowner whose land is within a municipally approved program or other farmland preservation program ․, and which is included in an agricultural development area, may enter into an agreement to convey a development easement on the land to the board.”). In this regard, the RTFA includes a framework for bargaining between the State and property owners through the CADB. N.J.S.A. 4:1C–31. The RTFA expressly limits how much may be paid for a development easement so that “[n]o development easement shall be purchased at a price greater than the appraised value[.]” N.J.S.A. 4:1C–31c, h.
Any purchase of farmland by the SADC is made with public funds, and the SADC is, in our judgment, obligated to ensure that it spends those funds wisely and exercises sound judgment in doing so. Indeed, if the SADC were not able to obtain appraisals to determine the fair market value, the process would be subject to collusion and chicanery.
[Bruce Paparone, Inc. v. SADC, 392 N.J.Super. 391, 400 (App.Div.2007).]
Consequently, land acquisition is not a device to aid individual owners, but is an exercise of the public trust, which must consider preservation of the public fisc.
To insure the consideration for development rights is fair, the proposed property must be evaluated by “[t]wo independent apprais[ers,]” N.J.S.A. 4:1C–31c, and “in accordance with procedures detailed in the appraisal handbook for standards at N.J.A.C. 2:76–6.10, generally recognized appraisal practices, N.J.S.A. 4:1C–11 et seq., and 13:8C–1 et seq., ․ and the [SADC]'s appraisal handbook.” N.J.A.C. 2:76–17.10(a)2.
N.J.S.A. 4:1C–43.1a authorizes the creation of the PIG program for eligible counties and municipalities. Implementing regulations for a county farmland preservation PIG program are found at N.J.A.C. 2:76–17.1 to –17.16.4 The regulations provide the SADC must “certify the market value of [a] development easement and report the certified value to the county.” N.J.A.C. 2:76–17.11(g). The value is communicated to the landowner and the “county may negotiate a purchase price of the development easement for an amount greater than or less than the [SADC]'s certified market value ․, but not greater than the higher of the two independent appraised development easement values[.]” N.J.A.C. 2:76–17.12(a)1. As an additional check, the SADC retains the power to “disapprove an application if it determines that the applicant has initiated proceedings in anticipation of applying to sell a development easement or during the application process which have the effect of increasing the applicant's appraised development easement value.” N.J.A.C. 2:76–6.11(c)1.
The County argues the SADC's denial of its application for a cost-sharing grant to defray its acquisition costs in obtaining the development easement violated the statutory and regulatory framework applicable to the PIG Program, and was arbitrary, capricious, and unreasonable. Specifically, the County maintains the SADC's factual findings requiring “an appraisal of the entire ten [-]plus[-]acre parcel—prior to subdivision—with areas of ‘exception’ for the existing and contemplated residential structures[,]” misconstrued its regulations. Second, the County contends the SADC's decision was based in whole or in part on internal SADC policy, Policy P–23–A, which it claims is “inconsistent with the purposes of the [RTFA,]” and amounts improper to agency rulemaking.
The SADC counters that applicants “sought to enroll five lots for farmland preservation that d[id] not actually exist” because the subdivision was not recorded. Reasoning the property owners could not convey marketable title to a portion of an approved yet unrecorded and unperfected subdivision, the SADC argues “it was improper for the County's appraisers to appraise only five of the approved lots, as these lots only exist within the context of the entire approved seven-lot [proposed] subdivision.” Any appraisal valuing the easement must consider all seven lots, including the two considered “exceptions” to the development easement.
The parties are at odds on whether the subdivision was valid at the time the County's PIG program request was filed. We briefly consider the legal principles guiding this review.
Lower Township approved applicant's request as a “minor” subdivision. A “[m]inor subdivision” is defined within the Municipal Land Use Law (MLUL) at N.J.S.A. 40:55D–5, as a subdivision which creates “a number of lots specifically permitted by ordinance[,] ․ provided that such subdivision does not involve (1) a planned development, (2) any new street or (3) the extension of any off-tract improvement, the cost of which is to be prorated pursuant to [N.J.S.A. 40:55D–42].” Importantly, Lower Township Ordinance Section 400–8 expressly defines a “minor subdivision” as “[a]ny division of land containing an aggregate of not more than three lots (two new lots and the remaining parcel), each fronting on an existing street or streets [and] not involving any new street or the installation of any street improvements or the extension of Township facilities[.]” Lower Twp., Cape May Cnty., Ordinance § 400–8 (emphasis added). Also important is the MLUL requirement that “approval of a minor subdivision shall expire 190 days from the date on which the resolution of municipal approval is adopted unless within such period a plat ․ or a deed ․ is filed by the developer with the county recording officer [.]” N.J.S.A. 40:55D–47d.
A “major subdivision” is “any subdivision not classified as a minor subdivision.” N.J.S.A. 40:55D–5; Lower Twp., Cape May Cnty., Ordinance § 400–8. Approval of a major subdivision “expire[s] 95 days from the date of signing of the plat unless within such period the plat shall have been duly filed by the developer with the county recording officer.” N.J.S.A. 40:55D–54a.
Both a minor subdivision, pursuant to N.J.S.A. 40:55D–47f, and a major subdivision, pursuant to N.J.S.A. 40:55D–54a, permit a developer to apply to the planning board for an extension of the expiration period, either before or after the expiration date has passed, by presenting evidence: “(1) that the developer was barred or prevented, directly or indirectly, from filing because of delays in obtaining legally required approvals from other governmental or quasi-governmental entities and (2) that the developer applied promptly for and diligently pursued the required approvals.”
In this matter, applicant's development involved a major subdivision, as defined under Lower Township's planning ordinance. Once approval was granted, applicants should have recorded the approved plat or new deed with the county recording officer within ninety-five days. Because the subdivision was never recorded, all approvals expired. Labeling the development a minor subdivision does not save it. Although the period to effectuate recording of a “minor” subdivision is greater than that for a major subdivision (190 days rather than 95 days), the fact remains here, applicants never took steps to record the subdivision. Therefore, under either statutory section, subdivision approvals expired.
In the absence of a perfected, legal subdivision, the SADC correctly concluded the proposed area subject to the development easement was a portion of the entire parcel, not five separate buildable lots. Further, as the SADC found, Martin's Way remained a private driveway outside of the preserved area, not a dedicated easement. Consequently, the County's notion the SADC ignored a “lawful subdivision” is unfounded.
An appraisal of the property for purposes of a PIG grant must value the property as it exists, not provide a valuation on hypothetical facts. While the subdivision had been properly sought and approved at the time Wenner and Bainbridge undertook their assignments, neither verified the proper recordation of the subdivision and the existence of the access easement. Their assumption of these facts surely changed their respective valuations because each appraised five individual, continuous, residential building lots, accessible by an express easement right-of-way. Neither appraiser considered the value of an inaccessible five-acre portion within a ten-acre plot or the contiguous excepted retained land.
The County also suggests the SADC cannot reject the existence of the subdivision for valuation purposes of the development easement, and, at the same time, consider the subdivision as creating two retained lots as “residential exceptions.” However, the fact remains the County's appraisals did not value what the County purchased. We find nothing arbitrary or capricious about the SADC requiring the County to take steps to perfect the easement and to file updated appraisals once that was accomplished, or alternatively, submit appraisals reflecting the deed granted to the County—i.e., development rights for “Block 746, Lot(s) Portion of Lot 13.01[.]” 5
We further consider the SADC's actions reasonable as the County was given the opportunity to cure the access impediment by “amending the application in a way that retains access to the preserved parcel in order to allow the application to move forward (e.g., seeing if the landowner would be willing to record a legal access easement on the hypothetical Martin's Way to provide access to the building lots).” The suggestion was ignored.
Despite the County's arguments extolling the propriety of its appraisals, we note the SADC's rejection resulted not because the appraisers were unqualified or their general methodology unacceptable. Rather, rejection was grounded on the appraisers' error in assuming the subdivision was perfected, the lots subject to the development easement had been afforded public access, and the retained residential lots were separated and should be excluded from consideration. As we have discussed, these assumptions undergird the accuracy of the experts' opinions of value. When the assumptions are flawed, the values offered by the County's experts are unreliable.
The County also challenges the SADC's use of the Farmland Preservation Program Appraiser Handbook, (Appraisal Handbook), and internal SADC policy. The SADC's rejection of the County's application noted its appraisals did not meet N.J.A.C. 2:76–10.6(a)1.iii and N.J.A.C. 2:76–10.7(a)3.ii. Further, the appraisals “did not follow the procedures set forth in the SADC Appraisal Handbook” and “follow Policy P–23–A[.]”
N.J.A.C. 2:76–10.6(a)1.iii, requires any pre-acquisition appraisal of a development easement must include “[a]ny exceptions to the subject property [,]” and “[t]he appraiser shall incorporate the effect of the value of exceptions into the valuation[.]” Likewise, N.J.A.C. 2:76–10.7(a)3.ii requires the appraiser to “adjust the comparable sales to include ․ residential opportunities[,]” which might include “an existing residential unit, an exception ․ not encumbered by the deed restrictions, or a residual dwelling site opportunity[.]”
SADC Policy P–23–A merely restates those regulatory standards by providing:
[A] formal subdivision is not needed to except a portion of property; however, a specific description is needed․ [C]ertain portions of the property can be excluded from the deed of easement, but the excluded portion must be considered in the value of the property that will be subject to the easement. Appraising a portion of a property without considering the ENTIRE property may not represent the property's true valuation condition, thus skewing value.
Therefore, when appraising properties from which exceptions are to be withheld, the appraiser is directed to appraise the entire land parcel first, INCLUDING the area to be excepted. The appraiser shall then allocate value to the respective areas of the property (excepted area and area to be encumbered.) Finally, the value allocated to the excepted portion, as it contributes to the whole property, shall be deducted from the total value estimate thus yielding the value for the portion to be restricted.
[SADC, Policy P–23A: Valuation of Permitted Exception (Jan. 18, 1990), available at http://www.state.nj.us/agriculture/sadc/rules/P23A.pdf (last visited June 30, 2013).]
Finally, the SADC's Appraiser Handbook is based on the appraisal standards set forth in the regulations at N.J.A.C. 2:76–10.1 to –10.9. The Appraiser Handbook is a guide to aid those preparing appraisals pertaining to, among other things, development rights. The Appraiser Handbook states: “Appraisers should not simply assume access to subject property over other lands not in the application, even if owned by the applicant.” SADC, N.J. Farmland Pres. Program Appraiser Handbook 33 (2011). That is, the “appraiser must condition his or her value upon an access agreement being in place prior to the conveyance of the deed of easement[,]” and “[i]f the land required for access is not owned by the property owner then the appraiser shall not assume access will be granted.” Ibid.
Our opinion discusses the regulatory provisions which impose these very requirements. An argument suggesting the Appraiser Handbook represents separate, illegal rulemaking is unfounded. We discern no error in the SADC's reference to provisions of the Appraiser Handbook, rather than citing regulations incorporating the very same mandates.
We specifically decline to consider the County's arguments challenging the SADC's application of the cited regulatory provisions as improper rulemaking, which it is not, or to decide whether applicants “initiated proceedings in anticipation of applying to sell a development easement or during the application process which have the effect of increasing the applicant's appraised development easement value[,]” as prohibited by N.J.A.C. 2:76–6.11(c)1. The bases already identified support rejection of the County's shared cost PIG plan request, making such an examination unnecessary. Finally, we reject any other arguments not specifically addressed in our opinion as without merit. R. 2:11–3(e)(1)(E).
Following our review, we conclude the applicants' failure to perfect subdivision approval allowed all approvals to expire. This change altered the value of the proposed development rights for the 5.1 acres because the land subject to the development easement remained part of the 10.92–acre parcel. Accordingly, we conclude the SADC's rejection of the County's PIG program cost share request based on the appraisal defects was not arbitrary, capricious or unreasonable.
1. FN1. “Exceptions” are statutorily defined as “portions of the applicant's land holdings which are not to be encumbered by the deed restrictions [.]” N.J.A.C. 2:76–10.2. The deed of easement preserved for agricultural development only five acres of the undivided ten-acre lot, implicating the portion of the property not covered by the development easement.
2. FN2. Prior to releasing the appraisals for the SADC's consideration, the County asked Wenner “to confirm all ․ numbers and to review ․ comparables[,]” noting there was an “above average difference, ․ [between] the development of the fee simple and development easement values.” Following her review of the data, she modified her opinion of value, increasing the development easement value.
3. FN3. The term “residential opportunity” is not specifically defined in applicable statutes or regulations. However, the term refers to use of the acreage for residential development, unencumbered by the development restrictions.
4. FN4. Almost identical provisions were adopted for a municipal PIG program, N.J.A.C. 2:76A–17.1 to –17.17.
5. FN5. We are aware Schedule A, attached to the County's recorded Deed of Easement, references and describes the individual Lots as granted by the subdivision; however, these lots do not exist as a matter of law, calling into question what rights the deed conveys.