A2276

An Act concerning agricultural tourism activities and events, and amending and supplementing P.L.1983, c.31.

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

1. (New section) The Legislature finds and declares that:

a. The promotion of agricultural tourism is in the best interest of the citizens of, and visitors to, the State, and affirms and supports the many cultural, economic, environmental, historical, and societal benefits provided by one of the largest and most essential industries in the Garden State;

b. The State needs to encourage the promotion of agricultural heritage, education, preservation, and production through a positive agricultural business climate that protects farmland, recognizes the correlation between farming and tourism and related events, encourages people to explore the diversity of agricultural opportunities, and supports the marketing of agricultural tourism to bolster the agricultural economy in the Garden State;

c. Agricultural tourism activities, events and opportunities conducted on farms are vital to the State’s economy and quality of life, and agricultural tourism is a major growth sector for farms;

d. Wineries serve an important role in diversifying the agricultural products and services offered by farms in the State, are uniquely suited to cultivating growth in the State’s tourism industry, and invite residents and visitors alike to experience a myriad of offerings available in the Garden State year-round;

e. New Jersey farmers are innovating their way toward greater economic, environmental, and social sustainability, and their adaptability to changes, brought by technological innovations and marketplace dynamics, has enabled them to embrace the rich palette of agricultural tourism offerings and possibilities;

f. Establishing certain requirements for agricultural tourism and for special occasion events conducted on agricultural lands and at farms with wineries would provide a proper balance for those who work in the agriculture industry and those who appreciate the activities, events and opportunities that farms and wineries uniquely offer, while protecting and sustaining the agricultural output of the farm and maintaining the integrity and credibility of the “Right to Farm Act” and other farmland protections, including those for farmland that has been preserved with funds supported by the taxpayers of the State;

g. Establishing a framework by which a winery can demonstrate it functions as a farm first and foremost, and limiting cumbersome bureaucratic red tape that would hinder a winery’s ability to provide agricultural tourism activities and events, will create a balance that best allows a winery to appeal to visitors as a farm while synchronizing its agricultural business practices with the high expectations and standards of all farms operating in the State; and

h. It is therefore the intent of P.L. , c. (C. ) (pending before the Legislature as this bill) to establish as the policy of the State the encouragement of, and support for, agricultural tourism activities, events and opportunities that: (1) offer and promote agricultural heritage, education, and appreciation, and diversify and grow agricultural output, and (2) complement the preservation, protection, and retention of agricultural lands and primary agricultural uses of wineries.

2. (New section) As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Agricultural tourism” means affordable, recreational, and educational activities, events and opportunities to learn about the production of food, agricultural and horticultural products and the State’s farming heritage while helping to encourage the preservation and retention of agricultural lands. “Agricultural tourism” may include, but need not be limited to, activities, events and opportunities such as agricultural fairs, corn mazes, farm festivals, hayrides, horseback riding, petting zoos, school tours, special occasion events, and winery tours.

“Preserved farmland" means land on which a development easement was conveyed to, or retained by, the State Agriculture Development Committee, a county agriculture development board, a county, a municipality, 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.

“Special occasion event” means a wedding, lifetime milestone event, or other cultural or social event as defined by the appropriate county agriculture development board, and conducted pursuant to the requirements set forth in subsection a. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

“Winery” means a farm where the owner or operator of the farm has been issued and is operating in compliance with a plenary winery license or farm winery license pursuant to R.S.33:1-10.

3. (New section) a. A special occasion event may be conducted at a winery, pursuant to subsection h. of section 6 of P.L.1983, c.31 (C.4:1C-9), provided that:

(1) the gross income generated by the winery from all special occasion events conducted for the calendar year together account for less than 50 percent of the annual gross income of the winery, or an average of less than 50 percent of the annual gross income of the winery over the preceding three-year period;

(2) the special occasion event uses the agricultural output of the winery, to the maximum extent practicable, to promote agricultural tourism and advance the agricultural or horticultural output of the winery;

(3) the special occasion event is conducted on a Friday, Saturday, Sunday, or federal or State holiday, except that a special occasion event may be conducted on any other day of the week with the approval of the State Agriculture Development Committee. The committee may delegate its authority in that regard to a county agriculture development board;

(4) the special occasion event is conducted in: (a) a temporary structure, such as an enclosed or open canopy or tent or other portable structure or facility, and any temporary structure would be put in place for only the minimum amount of time reasonably necessary to accommodate the special occasion event; (b) an existing permanent agricultural building; (c) a farm or open air pavilion; or (d) another structure used in the normal course of winery operations and activities;

(5) any special occasion event complies with applicable municipal ordinances, resolutions, or regulations concerning litter, solid waste, and traffic and the protection of public health and safety;

(6) the winery shall be subject to a site plan review and any applicable development approvals as may be required under an ordinance adopted pursuant to the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-1 et seq.);

(7) the special occasion event is subject to the noise standards set forth pursuant to the “Noise Control Act of 1971,” P.L.1971, c.418 (C.13:1G-1 et seq.), and the rules and regulations adopted thereto;

(8) the special occasion event complies with any applicable municipal ordinance that restricts performing or playing music to inside the winery’s buildings and structures;

(9) the special occasion event ends at a specific time, if required pursuant to a curfew established by a municipal ordinance;

(10) the special occasion event would not knowingly result in a significant and direct negative impact to any property adjacent to the winery; and

(11) the winery hosting a special occasion event enforces State and federal requirements concerning the legal drinking age.

b. In determining the annual gross income of a winery pursuant to this section, the gross income received from any special occasion event shall include, but need not be limited to, admission fees; rental fees; setup, breakdown and cleaning fees; and all other revenue that is not directly related to the agricultural output of the winery but is received by the winery in conjunction with conducting a special occasion event.

4. (New section) a. (1) A county agriculture development board or the State Agriculture Development Committee may order, for cause, and specify the scope of, an audit of the owner or operator of any winery engaged in conducting special occasion events, for the purpose of determining compliance with section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill). The audit shall be conducted by an independent certified public accountant approved by the board or the committee, and the reasonable costs thereof shall be paid by the owner or operator of the winery. A county agriculture development board, or the committee, may establish a list of independent certified public accountants approved for the purposes of conducting an audit pursuant to this paragraph. Copies of the audit shall be submitted to the board and the committee.

(2) An owner or operator of a winery engaged in conducting special occasion events shall not be subject to an audit authorized pursuant to this section more than once during a three-year period without good cause demonstrated by the applicable board or the committee.

b. An owner or operator of a winery engaged in conducting special occasion events shall annually certify to the county agriculture development board that the special occasion events together account for less than 50 percent of the annual gross income of the winery during the prior calendar year, or an average of less than 50 percent of the annual gross income of the winery over the preceding three-year period, pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill). The board shall forward the certification of annual gross income to the committee.

c. In conjunction with an audit ordered pursuant to subsection a. of this section, a board or the committee may request, and the winery shall then submit, additional documentation as may be necessary for the board or committee to verify compliance with section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

5. (New section) a. An owner or operator of a winery who violates P.L. , c. (C. ) (pending before the Legislature as this bill) shall be liable to a civil penalty of up to $1,000 for the first offense, up to $2,000 for the second offense, or up to $3,000 for a subsequent offense, to be collected in a civil action commenced by the State Agriculture Development Committee.

b. In addition to the penalties established pursuant to subsection a. of this section:

(1) for a second offense, the committee shall, after a hearing, suspend the owner or operator of a winery from conducting special occasion events for a period of up to six months;

(2) for a third offense, the committee shall, after a hearing, suspend the owner or operator of a winery from conducting special occasion events for a period of at least six months but not more than one year; and

(3) for a fourth or subsequent offense, the committee shall, after a hearing, suspend the owner or operator of a winery from conducting special occasion events for a period of at least one year but not more than two years.

c. Any penalty imposed pursuant to this section may be collected, with costs, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with P.L. , c. (C. ) (pending before the Legislature as this bill).

6. 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] Except as provided pursuant to paragraph (6) of subsection a. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), conduct agriculture-related educational and farm-based recreational activities, including agricultural tourism activities and events, provided that the activities and events are related to marketing and advancing the agricultural or horticultural output of the commercial farm;

i. Engage in the generation of power or heat from biomass, solar, or wind energy, provided that the energy generation is consistent with the provisions of P.L.2009, c.213 (C.4:1C-32.4 et al.), as applicable, and the rules and regulations adopted therefor and pursuant to section 3 of P.L.2009, c.213 (C.4:1C-9.2); 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.2009, c.213, s.2)

7. (New section) a. 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 as may be necessary for the implementation of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. Notwithstanding any provision of P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, within two years after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), the committee shall adopt immediately upon filing with the Office of Administrative Law agricultural management practices for agricultural tourism activities and events on commercial farms, which shall be effective for a period not to exceed two years following the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill) and shall thereafter be amended, adopted, or readopted by the committee in accordance with the requirements of P.L.1968, c.410 (C.52:14B-1 et seq.).

c. For the purposes of this section and subsection h. of section 6 of P.L.1983, c.31 (C.4:1C-9), an agricultural tourism event includes a “special occasion event” as defined pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

8. This act shall take effect immediately.

STATEMENT

The bill would require the adoption of agricultural management practices (AMPs) for agricultural tourism events related to marketing and advancing agricultural output of farms, and allow special occasion events that promote agricultural tourism to be conducted at wineries under certain circumstances.

The bill permits a special occasion event to be conducted at a winery provided that:

(3) the special occasion event is conducted on a Friday, Saturday, Sunday, or federal or State holiday, except that a special occasion event may be conducted on any other day of the week with the approval of the State Agriculture Development Committee (SADC). The SADC may delegate its authority in that regard to a county agriculture development board (CADB);

(5) any special occasion event complies with applicable municipal ordinances, resolutions, or regulations concerning litter, solid waste, and traffic and the protection of public health and safety;

(6) the winery is subject to a site plan review and any applicable development approvals as may be required under an ordinance adopted pursuant to the “Municipal Land Use Law”;

(7) the special occasion event is subject to the noise standards set forth pursuant to the “Noise Control Act of 1971” and any rules and regulations adopted thereunder;

(8) the special occasion event complies with any applicable municipal ordinance that restricts performing or playing music to inside the winery’s buildings and structures;

(9) the special occasion event ends at a specific time, if required pursuant to a curfew established by a municipal ordinance;

(10) the special occasion event would not knowingly result in a significant and direct negative impact to any property adjacent to the winery; and

(11) the winery hosting a special occasion event enforces State and federal requirements concerning the legal drinking age.

The bill defines a “special occasion event” to mean a wedding, lifetime milestone event, or other cultural or social event as defined by the appropriate CADB, and conducted pursuant to the requirements set forth in the bill.

A CADB or the SADC may order, for cause, and specify the scope of, an audit of the owner or operator of a winery engaged in conducting special occasion events. The audit would be conducted by an approved independent certified public accountant, and the reasonable costs of the audit would be paid by the owner or operator of the winery. An owner or operator of a winery engaged in conducting special occasion events would not be subject to an audit more than once during a three-year period without good cause demonstrated by the applicable board or the SADC.

An owner or operator of a winery engaged in conducting special occasion events would also annually certify to the CADB that the special occasion events together account for less than 50 percent of the annual gross income of the winery during the prior calendar year, or an average of less than 50 percent of the annual gross income of the winery over a three-year period. A CADB would forward the certification of annual gross income to the SADC.

An owner or operator of a winery in violation of the bill’s provisions would be subject to a civil penalty of up to $1,000 for the first offense, up to $2,000 for a second offense, and up to $3,000 for a subsequent offense, to be collected in a civil action commenced by the SADC. Additionally, the SADC would, after a hearing, suspend the owner or operator of a winery from conducting special occasion events for a period of: up to six months for a second offense; at least six months but not more than one year for a third offense; and at least one year but not more than two years for any subsequent offense.

Specifically, section 6 of the bill would amend the “Right to Farm Act,” P.L.1983, c.31 (C.4:1C-1 et seq.) to include certain events as a permitted activity under the law, by allowing a farm to conduct agriculture-related educational and farm-based recreational events provided that the events are related to marketing and advancing the agricultural or horticultural output of the commercial farm. Under the AMPs, agricultural tourism events would include special occasion events.