Release of Pineland Development Restrictions Invalidated

Once Suffolk County pays a landowner to acquire Pineland Development Rights, can the county give some of those rights back to the landowner, without even requiring the landowner to pay for them? When the county enacted a local law authorizing a local body to do just that, an environmental group challenged the local law, and the litigation reached Suffolk County Supreme Court in Matter of Long Island Pine Barrens Society, Inc. v. Suffolk County Legislature, 2016 NY Slip Op 26321. That court, in an opinion by Justice Thomas F. Whelan, invalidated the local law. The court's decision appears unimpeachable as a matter of equity, but the legal bases for the court's decision raise a number of questions.

The Case

Beginning in 1974, Suffolk County local laws authorized the county to purchase development rights from owners of agricultural lands. When the landowners conveyed these development rights, known as Pineland Development Rights, or PDRs, the landowners covenanted not to use the premises for any purpose other than agricultural production or open space. In return, the landowners received cash and diminished tax assessments that reflected the limited uses they could make of the land. In 1985, the county codified the local laws as chapter 8 of the Suffolk County Code. The 1985 version of chapter 8 prohibited the county from alienating the PDRs unless a voter referendum approved the alienation.

In 1992, the county legislature amended chapter 8 to permit a landowner, upon grant of a permit by the Suffolk County farmland committee, to erect a farmland on land over which the landowner had previously granted the county a PDR. The farmland committee had no power to issue a permit for any other use. In 2010, however, the county legislature amended chapter 8 to authorize the farmland committee to issue permits to permit development for a variety of other uses, including erection of new structures and the installation of amusements and attractions. Another local law, enacted in 2013, further expanded the farmland committee's power to issue permits and exemptions. The Long Island Pine Barrens Society, together with a number of named individuals, challenged the 2010 and 2013 amendments on a number of legal grounds: first, the that the challenged local laws constituted a gift of public property in violation of the state constitution, second, that the local laws violated section 247 of the General Municipal Law (the statute that enabled the county to create PDRs), third, that the local laws violated the public trust doctrine, and fourth, that the local laws violated the mandatory referendum provision of chapter 8, as originally enacted.

The Decision

Justice Whelan invalidated the amendments to section 8 on three grounds. First, he found that the challenged amendments constituted a “give back” of rights the county had previously purchased by giving landowners development opportunities they had previously relinquished. In Justice Whelan's view, this “give back” violated both section 257 of the General Municipal Law and the common law public trust doctrine. Second, he concluded that the permit and hardship exemption processes created by the amendment constituted transfers of development rights the county had already purchased, and that, as a result, the amendments authorizing these transfers violated chapter 8, as originally enacted, because the amendments were not approved by public referendum. The court, however, concluded that the amendments did not violate the state constitution's prohibition on gifts of public property because the amendments themselves did not transfer property to landowners, but merely created a procedure by which landowners could apply for permits or exemptions.

Analysis

The court's instinct — that the county ought not to be able to give away rights the taxpayers had paid for — is quite understandable, but the doctrinal path the court took to reach its result is paved with difficulties. Consider first the claim that the 2010 and 2013 local laws violated section 247 of the General Business Law. That statute authorizes counties and municipalities to use public funds to protect open space through the acquisition of property interests, but says nothing about whether those interests must be permanent or inalienable. The statute authorizes government entities to protect open space not only by acquisition of fees, easements, or covenants, but also by leases or “other contractual rights,” interests that are typically temporary in nature and subject to modification.

The court's invocation of the public trust doctrine is similarly problematic. That doctrine prohibits alienation of parkland without the approval of the state legislatures, but does not preclude municipalities from transferring property not devoted to park purposes. (See, e.g., Glick v. Harvey, 25 NY3d 1175, in which the Court of Appeals, after concluding that New York City had not dedicated land as parkland, upheld the city's approval of an NYU expansion plan which would allow use of the municipal land in connection with construction of new buildings.) Even within parks, the doctrine permits incidental operation of commercial enterprises. For instance, in Union Square Park Community Coalition, Inc. v. New York City Dept. of Parks and Recreation, 22 NY3d 648, the Court of Appeals upheld a license of space in Union Square Park for restaurant purposes. Certainly, if Suffolk County had decided to sell its PDRs back to the landowners who conveyed them so that those landowners could operate amusements on their farms, the public trust doctrine would not stand in the county's way.

Finally, although the court correctly perceived a conflict between the challenged local laws and the referendum requirement imposed by the original chapter 8 of the Suffolk County Code, it is unclear why that conflict should result in invalidation of the subsequent local law. Chapter 8 was itself enacted as a local law, and legislatures are generally free to amend their own pre-existing laws, as the Suffolk legislature did in this case.

The real problem with the challenged local laws is not that they authorized transfer of the PDRs, but rather that they authorized transfers for free. The county authorized the farmland committee to give away — to private landowners — rights for which the county's taxpayers had previously paid. For that reason, the state constitution's prohibition on gifts of public property (NY State Const, art. 8, sec. 1) probably furnishes the most plausible basis for challenging the county's action – although that provision has rarely been invoked to invalidate local government action. The problem with the state constitutional argument is that municipalities often give property rights to landowners without compensation — by rezoning to permit more intensive uses. If one views the county's action as merely a relaxation of regulatory requirements rather than a transfer of property rights, the challenged local laws would not appear to violate the state constitution.

Justice Whelan was unwilling to invoke the constitutional provision for a different reason. He emphasized that the local law did not itself give away county property; it simply implemented a procedure by which the farmland committee could, in the future, grant exemptions or permits. That argument, however, rests on shaky ground. It would be peculiar if a county or municipality could evade a state constitutional prohibition on gifts of public property by using a two-step procedure to complete the gift.

Justice Whelan made a valiant effort to control Suffolk County's questionable actions. Whether his approach will survive appeal remains to be seen.

***** Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of this newsletter.