S1538

An Act concerning agriculture and solar and wind energy, supplementing P.L.1983, c.32 (C.4:1C-11 et seq.), and amending P.L.1983, c.31.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in sections 1 through 4 of this act:

“Basic generation service provider” means the same as that term is defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51).

“Electric power supplier” means the same as that term is defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51).

“Electric public utility” means the same as that term is defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51).

“Preserved farmland” means land on which a development easement was conveyed to, or retained by, the committee, a board, or a qualifying tax exempt nonprofit organization pursuant to the provisions of section 24 of P.L.1983, c.32 (C.4:1C-31), section 5 of P.L.1988, c.4 (C.4:1C-31.1), section 1 of P.L.1989, c.28 (C.4:1C-38), section 1 of P.L.1999, c.180 (C.4:1C-43.1), sections 37 through 40 of P.L.1999, c.152 (C.13:8C-37 through C.13:8C-40), or any other State law enacted for farmland preservation purposes.

"Qualifying tax exempt nonprofit organization" means the same as that term is defined pursuant to section 3 of P.L.1999, c.152 (C.13:8C-3).

2. (New section) a. Notwithstanding any law, rule or regulation to the contrary, a person who owns preserved farmland may construct, install, and operate solar or wind energy facilities and equipment on the farm, whether on the preserved portion of the farm or on any portion excluded from preservation, for the purpose of generating power or heat, and may make improvements to any agricultural, residential, or other building or structure on the land for that purpose, provided that the solar or wind energy generation facilities and equipment:

(1) do not interfere significantly with the use of the land for agricultural production, as determined by the committee;

(2) are owned by the landowner; and

(3) are used to provide power or heat to the farm, either directly or indirectly, or to reduce, through net metering or similar programs and systems, energy costs on the farm.

b. A landowner shall seek and obtain the approval of the committee before constructing, installing, and operating solar or wind energy facilities and equipment on the preserved farm as allowed pursuant to subsection a. of this section. The committee shall, within 90 days of receipt, approve, disapprove, or approve with conditions an application submitted for the purposes of subsection a. of this section. The decision of the committee on the application shall be based solely upon the criteria listed in subsection a. of this section.

c. No fee shall be charged of the landowner for review of an application submitted to, or issuance of a decision by, the committee pursuant to this section.

d. The committee may suspend or revoke an approval issued pursuant to this section for a violation of any term or condition of the approval or any provision of this section.

3. (New section) a. Notwithstanding any law, rule or regulation to the contrary, a person who owns preserved farmland may apply for, or authorize another person to apply for, a special permit from the committee pursuant to this section to allow the other person to: (1) construct, install, and operate solar or wind energy facilities and equipment on the farm, whether on the preserved portion of the farm or on any portion excluded from preservation, for the purpose of generating power or heat for sale to an electric public utility, electric power supplier, or basic generation service provider or to a public or private entity; or (2) make improvements to any agricultural, residential, or other building or structure on the land for that purpose.

b. The committee, in its sole discretion, may issue a special permit pursuant to this section if the development easement is owned by the committee. The committee and the board, in their joint discretion, may authorize the committee to issue a special permit pursuant to this section if the development easement is owned by a board. The committee and the qualifying tax exempt nonprofit organization, in their joint discretion, may authorize the committee to issue a special permit pursuant to this section if the development easement is owned by a qualifying tax exempt nonprofit organization.

c. A special permit may be issued pursuant to this section provided that:

(1) the land is a commercial farm as defined pursuant to section 3 of P.L.1983, c.31 (C.4:1C-3);

(2) the permit is for a maximum of 20 years duration, subject to renewal;

(3) the solar or wind energy facilities and equipment do not interfere significantly with the use of the land for agricultural production, as determined by the committee;

(4) the solar or wind energy facilities and equipment do not have a significant adverse impact upon the soils, water resources, air quality, or other natural resources of the land or the surrounding area; and

(5) any necessary approvals that may be required by federal, State, or local law, rule, regulation, or ordinance are obtained.

d. The application fee for a special permit authorized pursuant to this section shall be $1,000, payable to the committee regardless of whether or not a permit is issued. All proceeds from the collection of application fees by the committee pursuant to this section shall be dedicated to, and utilized by, the committee for farmland preservation purposes.

e. The committee may suspend or revoke a special permit issued pursuant to this section for a violation of any term or condition of the permit or any provision of this section.

4. a. The committee shall, within 60 days after the date of enactment of this act, develop guidelines for the implementation and administration of this act, including, but not limited to, procedures and standards for the filing, evaluation, and approval of permit applications pursuant to section 3 of this act, which seek to balance, as equally important concepts, the public interest in protecting farmland from further development as a means of preserving agriculture and agricultural structures and enhancing the beauty and character of the State and the local communities where farmland has been preserved with the public interest in providing support to sustain and strengthen the agricultural industry in the State.

b. (1) Every two years, the committee shall prepare a report on the implementation of this act. The report shall include a survey and inventory of all solar or wind energy facilities and equipment placed on preserved farmland in accordance with this act; the extent to which existing structures, such as barns, sheds, and silos, are used for those purposes, and how those structures have been modified therefor; the extent to which new structures, instead of existing structures, have been erected; and such other information as the committee deems useful.

(2) The report prepared pursuant to this subsection shall be transmitted to the Governor, the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), and the respective chairpersons of the Senate Economic Growth Committee, the Senate Environment Committee, the Assembly Agriculture and Natural Resources Committee, and the Assembly Environment and Solid Waste Committee or their designated successors. Copies of the report shall also be made available to the public upon request and free of charge, and shall be posted on the website of the State Agriculture Development Committee.

c. The committee shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to carry out the purposes of this act.

5. Section 6 of P.L.1983, c.31 (C.4:1C-9) is amended to read as follows:

6. Notwithstanding the provisions of any municipal or county ordinance, resolution, or regulation to the contrary, the owner or operator of a commercial farm, located in an area in which, as of December 31, 1997 or thereafter, agriculture is a permitted use under the municipal zoning ordinance and is consistent with the municipal master plan, or which commercial farm is in operation as of the effective date of P.L.1998, c.48 (C.4:1C-10.1 et al.), and the operation of which conforms to agricultural management practices recommended by the committee and adopted pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), or whose specific operation or practice has been determined by the appropriate county board, or in a county where no county board exists, the committee, to constitute a generally accepted agricultural operation or practice, and all relevant federal or State statutes or rules and regulations adopted pursuant thereto, and which does not pose a direct threat to public health and safety may:

a. Produce agricultural and horticultural crops, trees and forest products, livestock, and poultry and other commodities as described in the Standard Industrial Classification for agriculture, forestry, fishing and trapping or, after the operative date of the regulations adopted pursuant to section 5 of P.L.2003, c.157 (C.4:1C-9.1), included under the corresponding classification under the North American Industry Classification System;

b. Process and package the agricultural output of the commercial farm;

c. Provide for the operation of a farm market, including the construction of building and parking areas in conformance with municipal standards;

d. Replenish soil nutrients and improve soil tilth;

e. Control pests, predators and diseases of plants and animals;

f. Clear woodlands using open burning and other techniques, install and maintain vegetative and terrain alterations and other physical facilities for water and soil conservation and surface water control in wetland areas;

g. Conduct on-site disposal of organic agricultural wastes;

h. Conduct agriculture-related educational and farm-based recreational activities provided that the activities are related to marketing the agricultural or horticultural output of the commercial farm; [and]

i. Engage in the generation of power or heat from solar or wind energy; and

j. Engage in any other agricultural activity as determined by the State Agriculture Development Committee and adopted by rule or regulation pursuant to the provisions of the "Administrative
Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2003, c.157, s.6)

6. This act shall take effect immediately.

STATEMENT

This bill would allow a person who owns preserved farmland to construct, install, and operate solar or wind energy facilities and equipment on the farm, whether on the preserved portion of the farm or on any portion excluded from preservation, for the purpose of generating power or heat, and to make improvements to any agricultural, residential, or other building or structure on the land for that purpose, provided that the solar or wind energy generation facilities and equipment:

(1) do not interfere significantly with the use of the land for agricultural production, as determined by the State Agriculture Development Committee (SADC);

(2) are owned by the landowner; and

(3) are used to provide power or heat to the farm, either directly or indirectly, or to reduce, through net metering or similar programs and systems, energy costs on the farm.

The landowner would be required to obtain the prior approval of the SADC before constructing, installing, and operating the solar or wind energy facilities and equipment on the preserved farm. No fee would be charged of the landowner for review of an application submitted to, or issuance of a decision by, the SADC in these situations.

The bill also would allow a person who owns preserved farmland to apply for, or authorize another person to apply for, a special permit from the SADC to allow the other person to: (1) construct, install, and operate solar or wind energy facilities and equipment on the farm, whether on the preserved portion of the farm or on any portion excluded from preservation, for the purpose of generating power or heat for sale to an electric public utility, electric power supplier, or basic generation service provider or to a public or private entity; or (2) make improvements to any agricultural, residential, or other building or structure on the land for that purpose.

A special permit for that purpose may be issued by the SADC in such situations provided that:

(1) the land is a commercial farm as defined pursuant to the “Right to Farm Act”;

(2) the permit is for a maximum of 20 years duration, subject to renewal;

(3) the solar or wind energy facilities and equipment do not interfere significantly with the use of the land for agricultural production, as determined by the SADC;

(5) any necessary approvals that may be required by federal, State, or local law, rule, regulation, or ordinance are obtained.

The application fee for such a special permit would be $1,000, payable to the SADC regardless of whether or not a permit is issued. All proceeds from the collection of these application fees would be dedicated to, and utilized by, the SADC for farmland preservation purposes.

The bill would authorize the SADC to suspend or revoke a special permit or approval issued pursuant to this bill for a violation of any term or condition of the permit or approval or any provision of the bill.

The bill also would amend the “Right to Farm Act” to include power or heat generation from solar or wind energy as a generally accepted agricultural operation or practice for purposes of the protections afforded to farmers under that law.

Finally, the bill would charge the SADC with the responsibility of developing guidelines for the implementation and administration of the bill, including, but not limited to, procedures and standards for the filing, evaluation, and approval of special permit applications, which seek to balance, as equally important concepts, the public interest in protecting farmland from further development as a means of preserving agriculture and agricultural structures and enhancing the beauty and character of the State and the local communities where farmland has been preserved with the public interest in providing support to sustain and strengthen the State’s agricultural industry. The SADC also would be charged with preparing a program report every two years.