Can Farming and Open Space Protections Coexist?

Credit: Mark Izeman

This blog is co-authored with Emily Kenyon*

Expanded farming operations on Long Island do not conflict with long-standing land protection and open space laws, a New York State appellate court recently ruled. 

In its decision, the State’s Second Department found that an updated farmland protection law in Suffolk County – the eastern half of Long Island – that allows farmers to apply for permits to construct greenhouses and other structures, and engage in certain food business activities, does not run afoul of the County’s previous purchase of “development rights” on these farms. 

This court opinion is part of a growing national area of “food law” that NRDC and our partners at Pace Law School – as well as other institutions -- are helping to shape.

The ruling stems from a land preservation program created in 1974 – the first such program in the nation – that enables farmers to sell their future development rights to the county for up-front money as long as they agree to restrict the use of the lands for agricultural production. 

This program thus helps preserve valuable farms in an incredibly expensive part of New York – indeed, one acre in Suffolk County can easily sell for hundreds of thousands of dollars.  The law also preserves valuable open space and slows environmentally-destructive suburban sprawl. 

The County Legislature has amended the original law more than a half-dozen times over the last several decades to respond to evolving definitions of what constitutes agricultural production – for example, a 1992 change allowed the erection of farm stands on protected land to allow farmers to sell their goods directly to consumers. 

But the most significant changes to the law were made in 2010 and 2013. Prior to 2010, the law provided that farmers could apply for a permit to construct structures, but it did not provide specific details about which structures would be allowed aside from farm stands.  The changes in 2010 and 2013 expanded the permitting provisions to explicitly list the types of structures for which farmers could apply for permits – such as greenhouses, barns, and alternative energy systems. Farmers can also now (a) apply for a “special use permit” to allow them to conduct a site disturbance like excavation or to hold a special event like a wedding; (b) engage in “U-Pick” and certain other agritourism activities; and (c) apply for a permit to set-up on-site processing of locally grown agricultural products – such as turning apples into apple pie.

Credit: Mark Izeman

These changes to the law also put limitations on how much farmland can be covered by such structures, technically called “lot coverage restrictions.”  But the amendments also allowed farmers to seek a waiver from these constraints if they could demonstrate it constituted a hardship.

In 2010, a land protection group in Suffolk County, the Long Island Pine Barrens Society, and two taxpayers filed a lawsuit against the County alleging that by allowing farmers to construct new structures and undertake new commercial activities, the changes to the law essentially “gave back” the development rights the County previously purchased.  More specifically, the group argued that the amendments constituted an alienation of the County’s rights in violation of the “public trust doctrine” and underlying state and county statutes.  The Pine Barrens Society later added new claims to also challenge the subsequent 2013 amendment (the latest to date) on largely the same grounds.

Warning – legal jargon ahead!  In simple terms, the public trust doctrine is a legal principle developed by the courts that a locality may not sell off or convert to private use property that is held “in trust for the public” – including waterfront areas and wetlands – unless there is special legislative authority authorizing the action.  In New York State, this court-created doctrine has been expanded to include land that has been dedicated as parkland.  Thus, the State Legislature in Albany – even if the parkland is owned by a city or town – must approve any substantial intrusion into that dedicated parkland for non-park purposes.

In 2016, a lower court judge ruled in favor of the Pine Barrens Society and the taxpayers, holding, among other things, that the 2010 and 2013 amendments violated the public trust doctrine because they gave new development opportunities back to landowners after they had previously sold their rights to the County.

In its March 14, 2018 decision, the Second Department reversed the lower court ruling.  The appellate court agreed with the lower court that the public trust doctrine applied to the development rights purchased from the farms, and that the County held those rights for public use.  This is the first time a New York appellate court has expanded the scope of the public trust doctrine to cover farmland development rights sold to a locality.

However, the court also found, as written in the amended law, that the provisions relating to constructing certain agriculture-related structures (installing alternative energy systems and promoting agritourism, among other activities) did not violate the public trust doctrine and were consistent with agricultural production. 

Credit: Mark Izeman

One judge on the four-judge panel wrote in a dissenting opinion that she, while agreeing with the majority on much of their ruling, would have declared the provisions of the Suffolk County law that allow for processing facilities and farm stands on the protected farmland to have violated the public trust doctrine because they do not constitute agricultural production.  In response, the majority wrote that it believed the processing provisions were narrowly drawn and did not constitute a “substantial intrusion” into the public's right to restrict the use of the land.

More broadly, the majority noted that its ruling only applied to the challenged laws as written, known as “prima facie” in legalese.  The Court wrote that future plaintiffs could challenge the issuance of specific permits to farms under the County’s program where they believe a public trust violation has occurred. 

In reviewing these future “case by case” challenges, the courts would presumably be able to review the existing land use restrictions at individual farms – which vary based on the unique characteristics of the property – and determine how significantly any newly permitted activities alter those previously imposed development restrictions.

It is likely that the Pine Barren Society will ask the State’s highest court – the Court of Appeals in Albany – to allow it to appeal the Second Department’s ruling.   

Stay tuned for developments on this precedent-setting case.


*Emily Kenyon is a legal fellow at the Pace-NRDC Food Law Initiative where she works to improve our food system.