In 2015, the Governor signed into law, P.L. 2015, c.76, which preempted municipal authority to regulate beekeeping activity. Meaning, municipal governments could no longer adopt ordinances to regulate beekeeping within their borders and all ordinances regulating such activity adopted prior to the law were now void. As a “home rule state,” New Jersey’s municipalities are generally said to have broad power to enact local regulations for all activities, except where the Legislature has specifically preempted. P.L. 2015, c.76 is a rare example of state preemption over local authority. Instead of allowing for local control, the 2015 law vested exclusive authority to promulgate beekeeping regulations and standards with the State Department of Agriculture. Unlike most other forms of preemption, however, P.L. 2015, c.76 allows municipalities to be delegated authority to monitor and enforce the standards promulgated by the Department.
Since the law’s signing, the Department of Agriculture has worked with the League and various beekeeping organizations to compose standards to regulate beekeeping. On November 20, 2017, the Department published those proposed standards. You can view these proposed regulations in their entirety, here.
Below is a brief overview of the Department’s proposed standards. This is simply an overview, highlighting pertinent sections of the proposed regulations which have a direct municipal impact. This overview should be read in conjunction with the proposed regulations in their entirety. Comments on these proposed regulations are due by January 19, 2018. If you have questions or concerns with these proposed regulations that you wish to be addressed you should submit written comments to the Department before the January 19, 2018 deadline. For more details on how to submit comments please see the notice of proposed rulemaking, here. Also, you may forward these concerns to the League so that they may be addressed in the comments the League plans to submit to the Department.
Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x. 137.
|<1/4 Acre||¼ Acre to <5 Acres||5 Acres or More|
|Residential property where Agriculture is a Permitted Use||*Not Addressed*||2 Hives per lot||40 Hives per lot|
|Residential property where agriculture is not a permitted use||New (not already in existence) hives are not permitted. If hives were in existence prior to July 31, 2015, a waiver may be sought under N.J.A.C 2:24-76.3||None, without a waiver. Hobbyist may seek waiver for up to 2 hives per lot.||None, without a waiver. Hobbyist may seek waiver for up to 10 hives per lot.|
|Commercial property where agriculture is not a permitted use||New (not already in existence) hives are not permitted. If hives were in existence prior to July 31, 2015, a non-qualified commercial beekeeper may seek a waiver for up to 10 hives.||Non-qualified commercial beekeeper may seek a waiver for up to 10 hives per lot.||Non-qualified commercial beekeeper may seek a waiver for up to 20 hives per lot.|
|Farms or commercial farms||Number of hives permitted is subject to N.J.A.C 2:76-2A.2||Number of hives permitted is subject to N.J.A.C 2:76-2A.2||Number of hives permitted is subject to N.J.A.C 2:76-2A.2|
|Undeveloped tract of land where agriculture is a permitted use||*Not addressed*||*Not Addressed*||40 Hives per lot|
Waiver and Procedures for Requesting Waivers
The above-listed hive limitations may be extended through a request for a waiver. A waiver is submitted by the beekeeper to the governing authority. The governing authority can be the Department or a municipality if the municipality adopts through ordinance the Department’s apiary standards. (More on this below) In order to obtain a waiver to own and maintain additional hives, the beekeeper must submit an application for hearing to the governing authority. The request for a hearing must be made at least 10 days prior to a regularly scheduled meeting of a governing body, with public notice provided as required for regulatory actions of that governing body. The applicant must also obtain from the municipality’s tax assessor’s office a certified list of all property owners within 200 feet of the applicant’s property and provide to all of those property owners written notice of the meeting where the waiver application will be heard. The notice shall include the following:
- The name and address of the applicant;
- The address, lot and block number of the property at which the applicant intends to maintain the hive(s);
- The nature of the waiver requested, setting forth the number of the proposed hives; and
- The date, time, and place of the hearing before the governing body.
The governing authority may grant or deny an application for a waiver based upon a preponderance of evidence (roughly 51% or more) that the applicant has demonstrated good cause for granting such waiver. Furthermore, an applicant seeking a waiver must certify that the hives are free of disease. When deciding to grant or deny a waiver the governing authority shall consider the following:
- The size of the property where the applicant proposes to keep the hive(s);
- The distance between the location of where the hive(s)is/are intended to be kept and the physical location of adjacent property owners’ homes or dwelling units;
- Whether the property where the Hives are proposed to be kept is fenced to provide a particular type of flyway barrier;
- Whether the hives for which the waiver is requested are the first hives or an addition to existing hives on the applicant’s property;
- The prior history of complaints against the applicant for violations of the beekeeping standards;
- The zoning district of the property where the hives are proposed to be kept;
- Whether the hive(s) serve some business purpose or the hive(s) are to be kept as a hobby; and
- Other such facts as the governing authority may believe appropriate to consider according to the case and circumstances presented at the time the application is heard.
A waiver can also be revoked upon the request of a resident or property owner of the municipality in which the hives are located. In order to seek a waiver revocation, the applicant seeking revocation must address the same issues as someone seeking a waiver and be made by a person who certifies they reside or own property in the municipality in which the waiver applies. Furthermore, notice must be given to the beekeeper through regular and certified mail that waiver revocation will be sought.
Location of Hives
All hives must be located a minimum of 10 feet from any property line and at least 25 feet from any roadside, sidewalk, or path. Hives must also be 85 feet away from any public place including playgrounds, sports fields, schools, churches, or churches unless special permission is granted for educational or research purposes. Entrance to the hives must be located away from adjacent residential property.
A beekeeper must establish a flyway barrier at least six feet tall. The flyway barrier must be made of a solid wall, fence, dense vegetation, or some combination thereof. The flyway barrier must run parallel to the property line and extend 10 feet beyond the colony in each direction. If the adjacent property is undeveloped or agriculturally utilized, then no flyway barrier is required.
Beekeepers are also required to register with the Department. The proposed rules identify the information needed for registration and the process for doing such. If you wish to examine these requirements please see the complete copy of the proposed rules found in the link above.
Along with registration, hobbyist beekeepers are required to certify that they have completed recurrent training every five years. This training can be provided by the various entities including Rutgers University, the Department, or the NJ Beekeepers association. Records of the completion of these programs must be submitted to the governing body overseeing these standards.
Administration of Standards and Authority Delegated to Municipalities
Without municipal action, administration of these proposed standards is provided by the Department of Agriculture. A municipality, however, may take over administration if it passes an ordinance adopting by reference the apiary standards promulgated by the Department. A municipality wishing to take over administration must designate the municipal office responsible for monitoring the standard and must also send a copy of any ordinance(s) adopting these standards at least two weeks in advance of formal consideration of such ordinance.
If a municipality which has adopted the Department’s standards finds a condition or circumstance is not sufficiently addressed by those standards the municipality shall request guidance from the Department. This guidance can include making a request to the Department, allowing the municipality to adopt apiary standards that were in effect by ordinance prior to the passing of P.L. 2015 c.76, on July 31, 2015, if those prior standards would resolve the condition or circumstance. The Department must provide guidance to a municipality no later than 90 days from the time such request is received.
If the Department fails to provide guidance within 90 days, the municipality may adopt by ordinance its own standards to address the condition or circumstance. Prior to adopting its own standards, however, a municipality must first consult with the Department, the League, the NJ Beekeepers Association, and the Mid-Atlantic Apiculture Research and Extension Consortium. Further, any standards the municipality chooses to adopt under this fashion must reflect consideration for population density, the density and intensity of development, type of land use, and honey bee biology and behavior.
For those municipalities which adopt the Department’s standards, reports must be provided to the Department covering the period between February 15 and October 15 annually. Reports must be submitted by May 31, August 30, and October 30 and must contain the following:
- The number of registration applications incorrectly sent to the municipality and forwarded to the Department;
- The number and type of complaints from residents including complaints of swarms and/or disruptive contact of honey bees with swimming pools;
- The number of monitoring inspections by the municipality;
- The number of registrant reports of disease of bees to the municipality and forwarded to the Department; and
- The number and type of enforcement actions taken.
Contact: Frank Marshall, Esq, Staff Attorney, email@example.com,609-695-3481 x137.