With its own farmland rules struck down by court, Suffolk County turns to State Legislature for help

Suffolk County is trying another route around a State Supreme Court judge’s decision officials say jeopardizes the farmland protection program: Albany.

State Supreme Court Justice Thomas Whelan in September threw out county laws passed in 2010 and 2013 that allowed farmers to build farm stands, greenhouses, barns and processing facilities on land from which the development rights had been purchased under the county’s farmland preservation program.

The laws empowered an appointed committee to grant special-use permits and hardship exemptions for the development.

The L.I. Pine Barrens Society brought a lawsuit challenging the 2010 and 2013 amendments to the original program, established more than 40 years ago.

Companion bills introduced in the State Legislature last month by State Senator Ken LaValle and Assemblyman Fred Thiele would specifically allow use of preserved agricultural land as a “farm operation” as that term is defined in the State Agriculture and Markets Law.

The Agriculture and Markets Law defines “farm operation” as “the land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise. It includes a ‘commercial horse boarding operation,’ a ‘timber operation,’ ‘compost, mulch or other biomass crops’ as defined in subdivision sixteen of this section and ‘commercial equine operation.’”

The Suffolk County Legislature on Tuesday passed a “home rule” message supporting the bills.

County officials say the Whelan decision jeopardizes the future of farming in Suffolk. It left farmers in a state of limbo, because they do not know what is allowed on preserved land, they said. The uncertainty caused landowners to reconsider entering into the program, according to a statement issued by County Legislator Al Krupski.

Krupski, a fourth-generation farmer in Cutchogue, said the bills are necessary to restore the functionality and the efficacy of the county’s farmland preservation program.

Richard Amper, executive director of the L.I. Pine Barrens Society, said yesterday the county is “trying to get around a court decision that said that any law that is made by referendum can only be changed by referendum. I don’t think the State Legislature will do anything about that or can do anything about that.”

Suffolk County’s farmland preservation program, created in 1974, is the oldest farmland protection program in the nation. Since its creation, it has preserved more than 10,750 acres — at a cost of more than $260 million. The revenue for the preservation effort comes from a special quarter-percent sales tax approved by voter referendum.

“The public has put up $2 billion for land preservation. The county can’t just say, ‘April Fool!’ to the taxpayers. They’d be killing the goose that laid the golden egg,” Amper said. “If a county or state legislature can change laws made by referendum, nobody’s going to vote for a referendum again,” he said.

“If the county wants to let the farmers do more than the PDR rules permit, then they should put it before the public in a referendum,” he said. “This is about the integrity of the ballot box.”

Amper said development of farmland after the development rights have been purchased by the county includes construction of structures such as permanent greenhouses and processing facilities. Deer fencing, irrigation equipment hoop houses and the like are not banned development because they are not permanent structures, he said.

“The county continues to argue that it’s okay for a farmer to sell his development rights and develop the land anyway,” Amper said. “That’s been struck down by the court and is unlikely to be changed by the State Legislature,” he said.

In January, County Executive Steve Bellone, through the presiding officer introduced legislation, cosponsored by Krupski and South Fork Legislator Bridget Fleming, to reauthorize the farmland preservation program and the county’s farmland committee, to allow the construction of farm stands and processing facilities and to define the right to farm on agricultural lands to include “agricultural tourism” and the right to build barns, sheds and greenhouses “necessary for a farm operation and/or supportive of agricultural production.”

That bill was withdrawn in April. “It no longer served a purpose,” Krupski said in an interview yesterday. The county is appealing the Whelan decision and “the appeal is going forward,” Krupski said. “The best remedy now is to go back to the rules before the amendment in 2010. State legislation is going to help us clarify it for the future,” he said.

“The judge was confused between the open space program and working farm preservation,” Krupski said.