Superior Court of New Jersey, Appellate Division, No. A-5380-06T1, July 30, 2010: Held that an allegation of intentional nuisance is not sufficient to remove a private nuisance claim from the purview of the NJ Right to Farm Act (Act), N.J.S.A. 4:1C-1 to -10.4. Farmer Raub’s residential neighbors brought a nuisance action in Superior Court against Raub based on various actions, including where storage trailers were placed. Raub contended that the placement of the trailers constituted an acceptable agricultural practice, not a nuisance, and that the County Agriculture Development Board had primary jurisdiction to decide whether his use and placement of the trailers was or was not such a practice. The trial court refused to cede jurisdiction on this basis. The appeals court outlined a four-prong test to determine whether a trial court should defer to an agency’s primary jurisdiction and found deferral appropriate in this matter. The appeals court said that plaintiffs may proceed with their nuisance claim in Superior Court only if the Board (or an appellate jurisdiction) determines that the activity is not protected by the Act; “A final determination adverse to plaintiffs will preclude plaintiffs from doing so”.
Decision available at http://www.judiciary.state.nj.us/opinions/a5380-06.pdf.