Old MacDonald Has A Right To Build On His Farm: Sale of Development Rights In Suffolk County Does Not Preclude Certain Uses of Farmland

March 26, 2018

Long Island’s ever-evolving agricultural industry won a major battle in the Appellate Division this month when the court overturned Supreme Court Justice Whelan’s decision, which invalidated two local laws of the Suffolk County Legislature.   See, Long Island Pine Barrens Society, Inc. v. Suffolk County Legislature, 2018 NY Slip Op. 01598 (March 14, 2018).

The Appellate Division voted 3-1 to overturn the decision, holding that 2010 and 2013 local law amendments to Suffolk County’s farmland preservation program allowing for new structures and uses on preserved farmland did not waste public property or violate the public trust doctrine.

Enacted in 1974 as one of the nation’s first, Suffolk County’s farmland preservation program is designed primarily to protect lands for agricultural production through the purchase of potential development rights (PDR).  Once the PDRs are sold, development or use of agricultural lands is restricted.

There have been several amendments to Suffolk County’s PDR law allowing, among other things, an expansion of the definitions of “agricultural production” and operation of a “farm stand“.   The 2010 and 2013 local law amendments expanded Suffolk’s farmland preservation program to allow certain structures, uses and special events on preserved farmland.

Plaintiff claimed that the 2010 and 2013 local laws illegally empowered the County to “give back” the previously purchased PDR rights to the landowner, therefore breaching the public trust doctrine.  The basic premise of plaintiff’s claims and the lower court’s decision was that these amendments, by permitting additional uses and development of “preserved” farmland, allowed an “alienation” of development rights by the County. See, Long  Island Pine Barrens Society, Inc. v. Suffolk County, 54 Misc3d 851 [2016].

In general terms, the purchase of development rights is seen by many as the complete sterilization of property so that nothing else can be done.  A simple example would be the sale of development rights to protect a wooded or environmentally sensitive land.  Once the rights are sold, the land should remain undeveloped in perpetuity.

Agricultural preservation through the  County’s PDR program is different since it contemplates active uses of “preserved” farmland for agricultural production such as commercial horse boarding, “U-Pick” operations, corn mazes, hay rides, wineries and alternate energy systems.  Farming, in this sense, is not static, so neither is the land that supports possible active uses.

As the Appellate Division pointed out, the County’s PDR program is consistent with New York’s Agriculture and Market’s Law Section 301  definition of “land used in agricultural production”.   Moreover, the legislative history and case law associated with New York’s Agriculture and Markets law supports the for-profit and active use of the agricultural property for farm operations.  This includes the right and flexibility of the owners to build new structures and try new uses on their land.

Here, the County’s amendments, upheld by the Second Department, recognize the farmer’s need to respond to changes in agriculture.  Long Island’s farmers require not just barns and equipment storage, but also other structures and uses that help to ensure Long Island’s long-term farming survival.  Given the implications here, plaintiffs may appeal this decision to the Court of Appeals.