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Nov 21, 2017 11:43 AMPublication: The Southampton Press

Farm Supporters Join Lawsuit That Challenges Agriculture Buildings

Farming industry advocates have joined a legal battle over the right of farmers to construct agricultural buildings on protected farmlands. This barn in Amagansett, which was constructed by the Peconic Land Trust, has been the subject of a lawsuit that sites a judge's ruling last year that says such structures cannot be built on land that has its development rights purchased by the county. Kyril Bromley
Nov 30, 2017 12:25 PM

A platoon of agriculture and land preservation groups have joined the appeal of a lawsuit—initiated by one of their own—that challenges the right of farmers to construct farm stands, barns, wineries, greenhouses and other buildings on land preserved for farming through the landmark Suffolk County farmland protection program.

The groups have waded into the legal battle, revolving around a lawsuit brought by the Long Island Pine Barrens Society, because they say that a state judge’s ruling last year, if allowed to stand, could bring an end to farmland preservation efforts throughout the region—and, potentially, undo decades of preservation deals already inked.

That ruling, rendered last September by State Supreme Court Justice Thomas Whelan, seemed to say that the County Legislature overstepped its bounds when it made two amendments to the farmland program, in 2010 and 2013, specifying the right of owners of protected farmlands to construct certain types of buildings and other accessories on their preserved land.

But the county and its new legal supporters argue that the infrastructure of agriculture, in whatever form it may take, has always been part of the intended definition of “farming.” They say that without the ability to construct buildings and other structures to support a farm or other agricultural business—which in these days of soaring operating costs increasingly look to retail-based “agro-tourism” attractions, like apple and pumpkin picking, corn mazes, and farm stands and wineries, to bolster their bottom line—no farmers will be willing to sell the rights to residential development off their land. Moreover, no young farmers will be willing, or able, to purchase preserved land to work.

“You don’t have agricultural production if you don’t have everything that is necessary to enable it to occur,” said John v.H. Halsey, president of the Peconic Land Trust, one of seven nonprofit groups that have filed amicus briefs in the lawsuit in support of the Suffolk County Farmland Program.

“This decision … essentially prohibited the county from permitting agricultural structures. That means that, in effect, you’ve locked in decisions made 40 years ago. How does a new farmer who buys a potato farm and wants to produce something different go forward if he can’t build the infrastructure he needs? How do we allow for the evolution of agriculture if it is bound to the choices of the past?”

Further, the farmland preservation advocates worry that if the understanding of what can be done on land that has already been protected through land preservation deals is permanently changed by the court ruling, then the contracts that sealed those deals, even decades ago, may be voided.

The crux of the argument brought into the appeal in the “friend of the court” briefs filed by the seven groups—the Peconic Land Trust, the Long Island Farm Bureau, the League of Conservation Voters, Cornell Cooperative Extension, the American Farmland Trust, Farm Credit East and the Long Island Wine Council—is that the original legislation creating the preservation program never intended that the accessory structures necessary for farming be considered something separate from farming itself.

“Farm is a verb,” County Legislator Bridget Fleming said. “You have to be able to run a business of farming to run a farm. In order to run a farm, you need to be able to store your vehicles, you need to irrigate, you need to protect crops. This decision, it would appear, seems to disallow reasonable agricultural practices. I think the folks who brought this suit are afraid of abuses—but there really isn’t much evidence of that.”

The folks who brought the suit, however, say that the sort of support facilities that are the focus of the laws challenged in the suit are not their concern at all, only the way in which the county addressed their being “permitted” is.

“Our issue is only the process,” said Richard Amper, the executive director of the Long Island Pine Barrens Society, a group that rose to prominence in the same 1970s wave of preservation advocacy that gave birth to the county’s farmland program. “Laws that are created by referendum can only be changed by subsequent referendum. We don’t object to what they are asking for—but the only way to do it was to have another referendum. If they are comfortable that what they are allowing is reasonable, and what the public would support, then put it on a ballot.”

Created in 1974, the Suffolk County Farmland Program was the first program in the nation to use public money to purchase the legal rights to residential development from farmers, allowing the landowners to take advantage of some of the value inherent in their acreage, without having to give up farming and sell the land entirely.

The program has preserved more than 10,000 acres of farmland and been emulated in dozens of other states, as well as in the five East End towns, with the help of revenues from the Community Preservation Fund’s 2 percent tax on real estate transactions. As the value of land has soared to once unimaginable heights in the new millennium, the need to be able to convince the few remaining farmland owners to sell to preservation programs is critical to keeping farming an active endeavor in the region, supporters say.

The county program and the subsequent town initiatives all were created with the authorization of voters through public referendums, each of which has drawn overwhelming support at the polls.

Mr. Amper says that his worry is that changing such programs administratively or legislatively, without going back to the voters, will erode voter support for such bills across the board and threaten future re-authorizations or similar future efforts, and could threaten all types of land preservation programs.

The argument of the farming advocates is complicated by terminology, some legal history and trends in the use of preserved land.

Land that has been preserved is commonly said to have been preserved “from development,” which in many eyes means no buildings will be built on it. But the farming groups are careful to note that the county program, unlike the town CPF programs in some instances, was intended to protect farms threatened by the soaring value of land for residential development, not merely protecting “open space.”

“When the county buys [the rights to] a farm, they have a contract with the farmer that says the county agrees to allow the land to be farmed,” said Rob Carpenter, executive director of the Farm Bureau. “It doesn’t mention anything about limiting buildings, or what is farming, or anything to that extent. Well, farming requires infrastructure.”

Local zoning limits how much of a farm parcel can be developed with structures, Mr. Halsey notes, while the farmland program deals give the county only the right to restrict the type of structures built.

A 1990s court ruling that declared horse farms and even polo clubs as being a form of agriculture has further tangled the effort to preserve farms, as land long ago thought protected for farming, with millions in public dollars, has in some cases become sprawling private equestrian facilities shielded behind rows of fences, tall hedges and gates.

Mr. Halsey’s group has led the charge to head off such losses of farms to other sorts of agriculture, spurring a new effort to purchase even more rights off already protected lands to ensure that they will only be used to grow food crops.

But the lawsuit has detoured the fight down a new path, and a battle over what even farmers producing food crops should be allowed to do.

Earlier this year, an Amagansett homeowner filed a separate lawsuit challenging the construction of a barn on preserved farmland off Town Lane. The barn had been built by the Peconic Land Trust itself, which owns the property and had sold the residential development rights to the county in 2006.

Mr. Halsey said the barn was built with privately raised funds as part of the support infrastructure for its Farms for the Future Initiative, a program seeking to help young farmers establish their business by softening the blow of startup costs and logistics.

As a result of the lawsuit, brought by neighbor Fouad Chartouni, the barn remains unoccupied.

“There’s a very fundamental property rights question in all this,” Mr. Halsey said. “It has shaken the confidence of not only the people who have sold their land but those who are considering it—the very people we are trying to work with.”

Should the appeal be unsuccessful, there may be other avenues to fixing what the farm advocates say is a misinterpretation of the decades-old laws. State Assemblyman Fred W. Thiele Jr. and State Senator Kenneth P. LaValle each have already introduced bills that would clarify the state definition of “farming” to include buildings and infrastructure accessory to their farming operations.

“I’m hopeful that our champions in the Senate and Assembly will be able to carry that forward, because something will need to be done legislatively if this is not overturned,” Mr. Carpenter said. “Farmers never, ever sold the rights to have agriculture buildings on their farmland in any way, shape or form.”

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