Local farmer battles DEP

Diana Morgan Tracey says she is protected by the state Right to Farm Law

By: Stephanie Brown
   MONROE — Diana Morgan Tracey sloshed around her farm on Union Valley Road earlier this month after three days of rain had left the 52-acres dotted with puddles.
   It was a sunny afternoon, Nov. 14 — the first dry day all week — and while the rain had stopped, the storm of controversy surrounding her farm continued to hover over the land.
   The state Department of Environmental Protection has accused Ms. Tracey, 46, of destroying fragile wetlands on her Union Valley Road farm and another 52 wooded acres on Country Brook Lane. She said she intended to grow organic crops on the properties, bought in 2004 and 2005, and build a house for her and her dogs on the wooded tract.
   Ms. Tracey says she has done nothing wrong and that she is only trying to realize "another version of the American dream."
   "I wanted open space. To me this is how I wanted to grow old," she said while looking out over her land. "Look at this, who wouldn’t want to live here."
   The state filed complaints Nov. 2 in the Civil Division of state Superior Court in New Brunswick saying she violated the Freshwater Wetlands Protection Act and the Flood Hazard Area Control Act and has fined her $369,000, according to a press release issued Nov. 2. The state attorney general’s office, acting on behalf of the DEP, also obtained a court order halting work on the property pending a December court hearing.
   Freshwater wetlands, according to the state, are areas saturated by enough water to support vegetation commonly grown in wet environments. Under the Freshwater Wetlands Protection Act, virtually all activities proposed in wetlands are regulated by the DEP including: cutting of vegetation, dredging, excavation or removal of soil, drainage or disturbance of the water level, filling or discharge of any materials, driving of pilings, and placing of obstructions.
   The Flood Hazard Area Control Act controls development in flood plains, according to the state’s Web site.
   The state attorney general’s complaint says Ms. Tracey illegally destroyed and removed vegetation, had truckloads of fill dumped on wetlands, constructed unauthorized stream crossings and built a gravel roadway through the forest area.
   The state is asking Ms. Tracey to restore the property to its original condition.
   A hearing is scheduled on Dec. 4 before Superior Court Judge Travis Francis.
   In addition, Monroe filed a complaint in June against Ms. Tracey with the Middlesex County Agriculture Development Board alleging she violated the township’s shade tree ordinance by removing 500 trees from her property without obtaining a permit. The county board submitted the complaint to the State Agriculture Development Board. Municipal and county agencies are required under the state’s Right to Farm Act to file complaints against farmers with the county and state boards, which hold hearings and determine whether the local ordinances in question violate a farmer’s right to farm.
   The SADB denied Ms. Tracey a hearing on the Monroe complaints because of the DEP allegations. It said Ms. Tracey was in violation of state regulations and was, therefore, not covered by the Right to Farm Act.
   Marci Green, chief of legal affairs for the SADC, said in a letter dated Oct. 20 to Ms. Tracey that the committee cannot grant a hearing because the act "does not protect farms that are in violation of state laws and regulations."
   But Ms. Tracey and her attorney, Anthony Sposaro of Knapp, Torzewski, Dalena & Sposaro in Chester, say her activities are legal under exemptions granted to farmers in the wetlands regulations. Mr. Sposaro said the law allows farmers to continue farming in wetland areas if the land has a history of farming, which Ms. Tracey’s property todes.
   Ms. Tracey said the previous owners raised trees and shrubs on the property. She bought it with the intention of converting the nursery into an organic farm, she said. That is why she removed the trees, she said. The tree removal process stripped topsoil, but she then replaced it.
   "I’m not trying to change the characteristics — that it’s wet," Ms. Tracey said, visibly frustrated. "It’s wet and that’s fine. I just needed to replace the topsoil so I could plant my crops."
   Ms. Tracey also disputes the DEPs designation of what she calls a "man-made drainage ditch" as a stream. She said she hired a contractor to replace rusted drainage pipes and a rotted wood crosswalk that ran across the contested section with concrete pipes and a stone crossing.
   "There was no question of the way I did the work," Ms. Tracey said. "They just said I wasn’t allowed to because it’s a stream."
   Mr. Sposaro also says Ms. Tracey was in compliance with her Forestry Management Plan when she improved two existing roadways on the property, a gravel one that runs from Country Brook Lane to a clearing where she plans to build a house, and an old dirt road that connects her two properties.
   Ms. Tracey said she added gravel to the gravel road and removed soft dirt from the dirt road, replacing it with shale to make the ground more solid. She said she wanted to make the access road passable for a vehicle.
   DEP spokeswoman Karen Hershey would not comment on the specifics of the case because it is in litigation.
   Mr. Sposaro says the DEP overstepped its jurisdiction and should have been forced to file any complaints with the SADC. He said the Superior Court does not have jurisdiction to hear the case, and that Ms. Tracey is entitled to protection under the state Right to Farm Act. He is asking that Judge Francis grant jurisdiction to the SADC.
   David Kimmel, a right-to-farm specialist for the SADC, said the legislation does not pre-empt state regulations and that farmers who are not in compliance with state regulations are not protected by the law.
   The Right to Farm Act says that only farmers who meet the following criteria are entitled to protection: that the farmer is a commercial farmer, is in compliance with relevant state and federal rules, the farmer’s property is in a zone that permits agriculture, the farmer is in compliance with standards contained in the agriculture management practices and does not pose a threat to public health and safety.
   Mr. Sposaro disagrees. He said that the Right to Farm Act does protect his client. He said the section of the law states "any person aggrieved by the operation of a commercial farm" is required to file their complaints with the county or state boards before filing any complaints in state court. He said that "any person" should include a state administrative agency or department, like the DEP, and that the clause outlining the complaint filing process does not mention state regulations.
   "We’ve taken the position that the word ‘person,’ which is already interpreted to be applied to municipalities, applies with equal force to the DEP," Mr. Sposaro said.
   In the meantime, Ms. Tracey said she is spending all her money on the case instead of the farm and is mentally exhausted from the legal dispute.
   "My attorney assured me that in the end I will be vindicated," she said. "He also assures me that I’m going to have the worst six months of my life."