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Hamptons Life

Nov 7, 2016 9:00 AMPublication: The East Hampton Press & The Southampton Press

Farmers Fear Court Decision Could Put Them Out Of Business

One of the first farms to sell development rights, the Wesnofske farm in Bridgehampton still has the look of a traditional operation. ALEXANDRA TALTY
Nov 8, 2016 3:30 PM

Some say this could be the end of the agricultural industry on the East End. Following a ruling in October, Suffolk County officials plan to file an appeal against a legal decision that limits future building on preserved county farmland. The lawsuit was brought against the county by the Long Island Pine Barrens Society.The county says the ruling calls into question the viability of the purchase of development rights, or PDR, program. Created in 1974, the program was designed as a mechanism to keep land in food production, following a rapid loss of farmland countywide.

The PDR program allowed farmers to sell the development rights to the county, thereby diminishing the tax burden in exchange for never being able to build on the protected asset. It has since been replicated for farmland preservation across the United States.

Farmers were allowed to build structures for agricultural use as defined by the state, as long as they were approved by the county’s Farmland Committee. However, according to Suffolk County’s interpretation of the recent ruling, farmers who have sold their development rights to the county will no longer be able to construct agricultural structures of any kind on their land—although prior structures will be grandfathered in.

Calling the program a “farmer welfare system,” Richard Amper, president of the Long Island Pine Barrens Society, points out that growers are still able to construct any type of buildings on their own land—unless they have sold the development rights to the county. “You can’t have your cake and eat it too,” he said. In particular, Mr. Amper takes issue with construction on preserved land that removes the East End soils that the program was created to protect.

“It is wall-to-wall concrete buildings,” he said in reference to the Kurt Weiss Greenhouses of Center Moriches, a wholesale greenhouse business, which was a wake-up call for the activist and an inspiration for the lawsuit. “It is a factory, not a farm.”

Kurt Weiss Greenhouses was listed in the suit as an operation where the property was built up even after development rights were sold, after allegations in 2007 that the owner started clearing soil at one of the farm’s sites, in East Moriches, to put up equipment for container farming of pre-potted plants, which the state deems an agricultural use. Kurt Weiss Greenhouses did not respond to a request for comment.

In the lawsuit, the Pine Barrens Society specifically challenged 2010 and 2013 amendments to the original PDR legislation that expanded uses of PDR-protected farmland subject to the committee’s approval. Since that time, catering halls, corn mazes, solar farms and more have pushed the definition of agricultural uses and what kinds of structures can be allowed, although farmers have argued that rising land values and the lean profits of wholesale farming have meant agricultural uses have to evolve with the times.

However, State Supreme Court Justice Thomas Whelan said in his ruling that the 2010 and 2013 amendments to the original program went beyond its original intent, as they allow additional development like parking for agritainment.

The county’s appeal is based on the premise that these structures should technically be permitted by the state’s definition of agriculture. But the Pine Barrens Society suit claimed that the amendments should have been voted upon by the public, as the original PDR program was created by referendum. Mr. Amper said that he thinks bringing the issue back to the public will restore trust between voters and the agricultural community, which he believes is important to the future of the industry.

“When a law is approved by voters, the politicians can’t change it,” Mr. Amper said.

Pointing out that the Farmland Committee, which is responsible for approving the structures built on preserved agricultural land, is mostly made up of farmers, he said he feels that “the entire decision-making was turned over to farmers. They’ve taken advantage of it. And the public won’t take it anymore.”

However, farm activists say that this could be the end of the county’s PDR program, unless the county appeal is successful.

“The judge went a little bit further and said no structures can be put on farmland that is protected,” said Robert Carpenter, administrative director at the Long Island Farm Bureau. “Farmers need structures whether they be barns for storing tractors or their crops.”

“The finding in this lawsuit strikes at the very heart of future agricultural success in Suffolk County, and the finding fails to recognize that support structures on agricultural lands have always been an essential and inherent component of agricultural production,” said a county spokesperson in an email on behalf of the Farmland Committee and the Department of Economic Development and Planning, the Agriculture and Marine Committee. “Based on our interpretation, there is no permitting ability [in the future].”

“This is the biggest threat to farming that we’ve ever faced,” said Alex Balsam, a farmer who is the Town of East Hampton’s representative on the Suffolk County Farmland Committee. “Without being able to have standard agriculture structures that are part of any viable farm business, you can’t have a farm business.”

Suffolk has lost farmland at a higher rate since 1969 than the state overall, and any say that without the PDR program, there would be no agriculture on the East End. Some worry that new ruling will discourage farmers from selling their development rights to the county.

“We are very concerned about the recent court ruling and its impact on our local, working farms,” said John v.H. Halsey, president of Peconic Land Trust. “There are open space benefits related to working landscapes, but they have never been intended to be at the expense of agriculture itself.”

The tension between preserving open spaces and preserving farmland is an issue that is raised often. Any grower will tell you that farming isn’t necessarily a bucolic endeavor with beautiful fields with a tractor in the distance. It can involve fencing, hedges, chicken coops, generators, cold storage facilities and greenhouses, all of which might obstruct a pretty vista.

“You are either preserving farmland or open space. If it is farmland, then let the farmers regulate it,” said one Bridgehampton farmer who sells produce at retail venues and asked not to be named because he shares his farm with family members. “You can’t cut a farmer off at his knees.”

Development rights are sold in perpetuity. But while an older generation might be wholesaling potatoes and need only certain kinds of structures, the newer generation might be growing specialty vegetables like kale that might need different kinds of structures.

“Economically, the wholesale market is not really a viable market anymore,” said Mr. Carpenter, citing the high cost of land. “Farmers are increasingly turning to value-add productions like agritainment or new kinds of farming that might require additional structures.”

“There are arguments that farmers can’t make it in farming so they should be allowed to do other things,” says Thomas Halsey, a Water Mill farmer who was part of the original committee that devised the PDR program in the 1970s. “I am not in favor of allowing catering areas on preserved land, I am not in favor of allowing parking on preserved land.”

Mr. Amper and his supporters believe that under the new regulations, farmers will still be able to put up non-permanent structures like deer fencing or hoop houses, just not catering halls. The county does not read the ruling that way, which is part of the reason it is filing an appeal.

“Owners of farm fields generally at this point want to see agriculture continue on their parcel,” said Mr. Balsam. “If it can’t properly be done, I think they will turn to outright development.”

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Why not put limitations on building as a fraction of the total property?
By hbz (6), Hampton Bays on Nov 8, 16 9:49 AM
1 member liked this comment
There are!

Parcel Area
(acres) Maximum Lot Coverage
0 to 25 15%
25 to 50 12.5%
More than 50 10%
By noted (8), quogue on Jan 4, 17 4:17 PM
There has to be some valuation to farmland, its an essential part of the environment. We have a ton of money on the preservation fund why not use part of that to help farmers. God knows we have enough real estate on the market/
By lo-cal (45), southampton on Nov 18, 16 9:54 AM
1 member liked this comment
The farmland preservation was to protect and keep farmland and I thought, open spaces. Many fields were preserved but the outer parcels subdivided for homes so most field views are obstructed and only enjoyed by those who built on those parcels. Some have turned around and built polo fields and horse barns. While it is agriculture is it really farming?
By RUOK2 (9), Water Mill on Dec 9, 16 11:39 AM
This would never have happened were it not for the finding of a judge in the 1990s that polo grounds and "horse farms" were agricultural. I wonder how deeply that particular pocket got lined?

First, huge dwellings were built on the land. They were "part of the horse farms." I use quotation marks because in all the years since that ruling, I've rarely seen so much as one horse on those lands. Then came "equestrian compounds" where most of the land is covered with buildings and for-profit ...more
By btdt (405), water mill on Dec 15, 16 10:45 AM
Remnants, rolls, area rugs