Preserved Farmland Really Is for Farming

In 1974, Suffolk County adopted its agricultural preservation program, one of the first in the United States, known as Chapter 8 of the Suffolk County Code. The law established a process for the purchase of “development rights” on farmland, whereby a farmer retains fee ownership, but receives compensation to give up the right to build homes or to develop the land for any commercial uses other than agriculture. Suffolk County's program has grown over the years, resulting in the preservation of more than 10,485 acres of land for farming.

The program continued without apparent controversy until 2010 and 2013, when two amendments were adopted to Chapter 8. Through the laws, the County Legislature strengthened the criteria for the issuance of permits to build structures such as barns, greenhouses and fences, and for the regulation of farm-related uses. The reaction to the legislation exemplifies the adage: “No good deed goes unpunished.”

Procedural History

In response to the amendments, the Long Island Pine Barrens Society, its executive director and two taxpayers sought an injunction against the Legislature and the County Farmland Committee to prohibit the issuance of any further permits. They also requested a declaratory judgment that the laws violated the gifts and loans clause of the New York State Constitution, GML §247, the public trust doctrine and substantive due process, and were subject to mandatory referendum. The crux of plaintiff's position was that the County preservation program was really meant to preserve open space, and that farmland protected under the program could not include improvements needed for farming such as barns, storage sheds and fences, because the land was no longer “open,” as referenced in GML §247.

Supreme Court (Whelan. J.) rejected claims that the amendments violated the Gift and Loan clause of the NYS Constitution and that plaintiff's substantive due process rights were violated. However, the Court awarded summary judgment in favor of the Plaintiffs on other grounds, declaring the 2010 and 2013 laws null and void, and issuing a permanent injunction prohibiting the Farmland Committee from granting permits or other approvals under the amendments.

Under its reasoning, privately-owned land preserved for farming under the County program was subject to the public trust doctrine, and “the public's rights and interests” in preserved farmland “were fixed at the time of each sale and purchase of such rights.” That is, no new structures could be built (except for farmstands), and no new agricultural uses could be added once the land was preserved for farming.

The court further ruled that the County program violated GML §247, finding that the “sole objective” of the enabling statute is “the preservation of open spaces and open areas.” Under the court's rationale, the laws which provided details on the permit process for the construction of agricultural structures and various agricultural uses was in effect a “give back” or an alienation of the public's rights in the property.

Finally, Justice Whelan determined that the laws were subject to mandatory referendum.

The County appealed and also requested a calendar preference due to the importance of the issues. Peconic Land Trust, Long Island Farm Bureau, Farm Credit East, New York League of Conservation Voters, Cornell Cooperative Extension of Suffolk County, American Farmland Trust and Long Island Wine Council, Inc. filed a joint amicus brief.

The Second Department's Decision

The Appellate Division granted the request for a preference and heard oral argument on Dec. 11, 2017. On March 14, 2018, the court reversed the lower court's judgment, finding that the two County laws were not illegal, null and void, did not violate General Municipal Law Section 247 or the public trust doctrine, and that a referendum was not required for their adoption.

The justices recognized that no transfer or alienation of development rights could occur under the laws, since the uses permitted all constituted or were sufficiently related to agricultural production, including barns, commercial horse boarding and equine operations, farm stands, processing facilities, crop mazes, hay rides and “U-pick” operations.

However, in an unexpected finding, the court upheld the extension of the public trust doctrine to development rights on privately-owned agricultural land, noting that the “County acquired these development rights for public use and not in its 'corporate capacity.'” Nevertheless, no violation of the doctrine or any waste of public property was determined to have occurred, since the uses remained agricultural

Conclusion

Farmers and land conservationists met the Second Department's decision with relief. The court confirmed that land preserved for farming, through the purchase of development rights, can continue to be used for the business of farming — growing crops, raising horses, building barns, and fences, “U-pick” apples, pumpkins and strawberries, hayrides and farm tours — the special activities that contribute unmistakably to the quality of life in a rural community.

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Lisa Clare Kombrink, Esq., a partner at Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, in Riverhead, NY, and the granddaughter of southern Illinois farmers, has worked in farmland preservation for more than 25 years. She represented Suffolk County in the Pine Barrens case.