SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5710-12T3 STATE OF NEW JERSEY, STATE AGRICULTURE DEVELOPMENT COMMITTEE, COUNTY OF HUNTERDON and TOWNSHIP OF FRANKLIN, Plaintiffs-Respondents, v. QUAKER VALLEY FARMS, LLC and DAVID DEN HOLLANDER, Defendants-Appellants. ___________________________________ Argued October 28, 2014 – Decided Before Judges Ostrer, Hayden and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. C-14007-08. Robert P. Merenich argued the cause for appellants (Gemmel, Todd & Merenich, P.A., attorneys; Mr. Merenich, on the briefs). Jason Stypinski, Deputy Attorney General, argued the cause for respondent State of New Jersey, State Agriculture Development Committee (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stypinski and John Doyle, Deputy Attorney General, on the brief). Shana L. Taylor, County Counsel, attorney for respondent County of Hunterdon, joins in July 24, 2015 2 A-5710-12T3 the brief of respondent State of New Jersey, State Agriculture Development Committee. Courter, Kobert & Cohen, P.C., attorneys for respondent Township of Franklin, join in the brief of respondent State of New Jersey, State Agriculture Development Committee. PER CURIAM This case arises from the disruption of over twenty acres of top soil on a 120-acre farm subject to a deed of easement (DOE) executed pursuant to the Agriculture Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -31, -32 to -37. The disruption occurred in the course of defendants’ grading of rolling Hunterdon County farmland to accommodate the placement of hoophouses1 three-hundred feet in length on land with no more than a one percent slope. Pursuant to its enforcement powers under N.J.S.A. 4:1C-33, the State Agriculture Development Committee (SADC) filed a verified complaint in the General Equity Part against defendants Quaker Valley Farms, L.L.C., and its owner and member, David Den Hollander, seeking various forms of injunctive relief, to stop defendants’ grading activities, and to remediate the damage done to the soil. Defendants filed a counter-claim, alleging a violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2, 1 A “hoophouse” is usually a temporary greenhouse structure, made of plastic sheeting, attached to hoop-like supports. See N.J.A.C. 5:23-3.2(d)(4). 3 A-5710-12T3 and other claims, arising out of the SADC’s alleged interference with their use of the farmland.2 After issues of liability and remedy were bifurcated, Judge Peter A. Buchsbaum granted the SADC’s motion for summary judgment, and denied defendants’ cross-motion, finding that defendants violated the DOE’s terms. The court subsequently denied a motion for reconsideration. And, after a four-day trial on remedy, the court entered a decision and order providing for the remediation of the displaced soil. Defendants appeal from the court’s orders. As pertains to the court’s liability determination, defendants principally argue that the court misinterpreted the DOE, assigning insufficient weight to the right granted thereunder to erect agricultural structures and to engage in agricultural activities, which includes greenhouse farming. Defendants also argue that the SADC lacks clear, consistently applied standards governing the extent to which farmers governed by DOEs may disrupt soils of preserved farmland to erect otherwise permitted agricultural structures. Defendants contend as well that an approved “C. 251 plan,” pursuant to the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-39 to -55, to control 2 Plaintiffs, Hunterdon County and Franklin Township, also filed complaints arising out of defendants’ activities. They join in the SADC’s brief. 4 A-5710-12T3 erosion and runoff caused by previously constructed greenhouses, authorized defendants to engage in the challenged activity.3 Having reviewed defendants’ arguments in light of the record and applicable principles of law, we affirm the trial court orders substantially for the reasons set forth in Judge Buchsbaum’s three comprehensive written opinions. We review de novo the trial court’s grant of summary judgment. Henry v. N.J. Dep’t of Human Servs., 204 N.J. 320, 330 (2010). Absent ambiguity that presents a question of fact, interpretation of a deed is a question of law for the court, which we likewise review de novo. See Hofer v. Carino, 4 N.J. 244, 250 (1950). However, we discern no error in the trial court’s thorough analysis of the record and the arguments presented. We add the following brief additional comments, focused on the issue of the interpretation of the DOE. The court’s “prime consideration” in interpreting a deed “is the intention of the parties.” Normanoch Ass’n v. Baldasanno, 40 N.J. 113, 125 (1963). The court may resort to extrinsic evidence to inform the court’s interpretation. See Boylan v. Borough of Pt. Pleasant Beach, 410 N.J. Super. 564, 569 (App. Div. 2009); cf. Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953) 3 “C. 251” plan refers to the chapter number of the Soil Erosion and Sediment Control Act, L. 1975, c. 251. 5 A-5710-12T3 (stating that “in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain are necessarily to be regarded”). We apply the same principles in interpreting an easement. When “language purportedly granting an easement is ambiguous or in dispute, ‘the primary rule of construction is that the intent of the conveyor is . . . determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances.'” Poblette v. Towne of Historic Smithville Cmty. Ass’n, 355 N.J. Super. 55, 63 (App. Div. 2002) (quoting Hammett v. Rosensohn, 26 N.J. 415, 423 (1958)). However, if “the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern.” Rosen v. Keeler, 411 N.J. Super. 439, 451 (App. Div. 2010) (internal quotation marks and citation omitted). Unquestionably, there is tension between provisions of the DOE. We quote several key paragraphs below. On one hand, the DOE limits soil disruption. Paragraph 2 requires compliance with ARDA and rules promulgated by the SADC, and paragraph 7 proscribes activities “detrimental to . . . soil conservation” and “detrimental to the continued agricultural use of the 6 A-5710-12T3 Premises.” On the other hand, the DOE authorizes construction of greenhouses (and other structures) for agricultural purposes, which inevitably involves disruption of soil. Paragraph 2 states that the premises are retained for “agricultural use and production” which includes greenhouse farming; paragraph 5 authorizes removal of soil for agricultural purposes; and paragraph 14 authorizes construction of “buildings for agricultural purposes.” The key provisions state: 2. The premises shall be retained for agricultural use and production in compliance with N.J.S.A. 4:1C-11 et seq., P.L. 1983, c.32, and all other rules promulgated by [SADC]. 5. No sand, gravel, loam, rock, or other minerals shall be deposited on or removed from the Premises excepting only those materials required for the agricultural purpose for which the land is being used. 7. No activity shall be permitted on the Premises which would be detrimental to drainage, flood control, water conservation, erosion control, or soil conservation, nor shall any other activity be permitted which would be detrimental to the continued agricultural use of the Premises. 14. Grantor may construct any new buildings for agricultural purposes. The absence of clear standards regarding the permissible amount of impervious cover, and the methods and extent of permissible soil displacement, create uncertainty and ambiguity regarding the point at which greenhouse farming activities 7 A-5710-12T3 authorized by paragraphs 2, 5 and 14 clash with those proscribed by paragraph 2 and 7. We may also assume for our purposes, defendants’ contention that enforcement of DOE provisions has not been uniform. However, we need not labor in the grey area of the DOE, because the facts in this case place us in the interpretive area that is black or white. The undisputed facts are that defendants engaged in “cut and fill” activities that carved into top-soil and sub-soils to depths of over ten feet, mixed topsoil with subsoil and even rocky layers beneath that, and then laid the mixture on the low-lying lands to even its slope. As a result, highly rated topsoil was irremediably, and unnecessarily degraded. Defendants did not separately remove the layer of top soil, and preserve it, before removing the subsoil. We are persuaded that the provisions of the DOE, reasonably read together, do not authorize such permanent and unnecessary disruption and degradation of highly rated soils. We also are unpersuaded by defendants’ argument that the trial court erred in its interpretation of the DOE by impermissibly deferring to the SADC’s interpretation. Simply put, there was no deference to agency interpretation.4 Judge 4 We recognize that the deed terms are prescribed by regulation, N.J.A.C. 2:76-6.15. However, plaintiff has presented no (continued) 8 A-5710-12T3 Buchsbaum deferred to agency determinations regarding the assessment of the soil quality, which led to the purchase of the easement in the first place. However, the task of deed interpretation was assumed by the court. Furthermore, we discern no basis to disturb the court’s decision on remedy. “[T]he trial court’s fashioning of [an] appropriate equitable remedy is committed to the exercise of its sound discretion.” Todaro v. Cnty. of Union, 392 N.J. Super. 448, 456 (App. Div. 2007). We also defer to the trial court’s findings of fact, reached after an evidentiary hearing at which the court is able to reach credibility determinations. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Judge Buchsbaum fashioned a reasonable remedy, recognizing the impracticability of returning the farmland to its prior state, and even leaving open the possibility of construction of some hoophouses on the land. The court was not compelled to adopt defendants’ proposal to restore the soil while still constructing terraces with slopes appropriate for placement of the hoophouses. Affirmed.