Perpetual Development Restrictions of Agricultural Conservation Easements and PDRs are Threatening the Economic Vitality of Farming

By: Savannah Bowling

Across the United States, the economic vitality of farming is declining.[1] Large-scale and unprecedented residential development pressure has driven up productive farmland prices, and “[a]s a result, small farm owners find it more profitable to subdivide, develop, or simply sell their land than keep it in production . . . .”[2] Further, farmland that survives development pressure and is passed on to heirs is being “consolidated by large-scale agribusiness or, increasingly, moving out of production.”[3] In response, communities have implemented agricultural conservation easements and purchase of development rights (PDRs) as tools to preserve farmland from nonfarm development.[4] These tools provide farmland owners with the option to subdivide their property into smaller tracts which are sold (or donated) and then are typically held by a nonprofit public land trust for the purpose of protecting open space, scenic, ecological, and recreational resources.[5] This results in a severance of development rights, which is a perpetual deed restriction that future landowners must uphold.[6] Once one of these tools is implemented and the land is severed, the landowner retains the right and responsibility to prevent development on the land and retains all other rights of ownership.[7]

 

While the goals of these two tools aim at preserving American farmland, and the agricultural economy and way of life, they are ironically restricting and limiting overall farm economic viability. Their perpetual development restrictions prevent farmers from developing farmland to facilitate agrotourism activities such as wine tastings and festivals, which are vital to the long-term integrity of farming in today’s rapidly-changing-and-declining farming economy. This overall issue was recently addressed in Long Island Pine Barrens Society, Inc. v. Suffolk County Legislature.[8] In 2010 and 2013, the Suffolk County Legislature enacted two amendments to a local ordinance that granted the County authority to purchase the development rights portion of agricultural lands in fee from the owners. The amendments allowed land owners who had transferred development rights to the County the opportunity to apply for agricultural development permits, special use permits, and hardship exemptions to avoid the development restrictions. Among other things, Pine Barrens Society argued that recent amendments to the County’s ordinance governing the farm preservation program constituted a “give back,” or alienation of development rights purchased with taxpayer money without a “public referendum” mandated by Chapter 8 of the 1985 Suffolk County Code. The Pine Barrens Society also argued that it violated the public trust doctrine as well as the state statue authorizing expenditures to conserve open space (GML § 247). The County argued that these amendments do not violate local or state laws because these things could be done before; the old ordinance used vague language, and the amendments cleared up ambiguity. The Supreme Court of Suffolk County voided the recent amendments to the ordinance and effectively enjoined the County from issuing any permits for structures on farms in the program. The County has since appealed to the Appellate Division, Second Department.

 

While there are many issues within this case, such as the contract terms of the development rights purchase agreement, the meanings of “agriculture and market” and “agricultural production” used in the local ordinance, and whether this was actually an alienation of development rights, this case reflects the overarching problem associated with PDRs and conservation easements: these deed restrictions may very well effectively cause the farmland to die because it can no longer remain economically viable without an additional source of income (such as using the farm for agrotourism) and subsequent heirs and owners can no longer effectively use the land. Ultimately, these deed restrictions could even be subject to an impossibility argument if they effectively cause the use of the land to die.

 

Further, in enacting local ordinances, New York counties and cities are governed by the New York State Constitution. Agriculture is the only land use mentioned throughout the state constitution, stating that: “[t]he policy of the state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.”[9] As the New York State Constitution governs the foundation of state law, it can be argued that when Suffolk County originally enacted the local law authorizing PDRs, it did so with the intent to preserve agricultural use of the land in accordance with the constitution. Thus, the purpose of the deed restrictions is no longer being upheld when it prevents agricultural use of the land. Additionally, by granting permits to allow development, the County is in fact controlling environmental impacts—the County can control lot coverage and other building requirements in order to protect the environment and open space while still allowing for development that will maintain the intent and purpose behind the deed restrictions. Such a strict and narrow ruling in this case implicates the New York State Constitution, which can cause major implications for the rest of the State as well that wish to preserve agricultural land use.

 

 

[1] Jesse Newman, U.S. Farm Income Seen Falling for Fourth Straight Year, Wall Street Journal (Feb. 7, 2017), https://www.wsj.com/articles/u-s-farm-income-seen-falling-for-fourth-straight-year-1486486691.

[2] Kendra Johnson, Conserving Farmland in California: For What and For Whom? How Agricultural Conservation Easements Can Keep Farmland Farmed, Sustainable Development Law and Policy 45, 45 (2008), http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1090&context=sdlp.

[3] Id.

[4] John B. Wright & Rhonda Skaggs, Purchase of Development Rights and Conservation Easements: Frequently Asked Questions, New Mexico State University, http://aces.nmsu.edu/pubs/research/economics/TR34.pdf (last visited Oct. 5, 2017).

[5] Id.

[6] Id.

[7] Id.

[8] 54 Misc. 3d 851 (Sup. Ct. Suffolk Cnty. 2016).

[9] N.Y. Const. art. XIV, § 4.

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