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An appellate court panel yesterday overturned a lower court ruling that county officials say jeopardized the future of agriculture and farmland preservation in Suffolk County.

The Appellate Division ruled that a variety of contested uses, including commercial horse boarding and equine operations, agricultural tourism activities — corn mazes, hay rides and “U-pick” operations, for example — and the construction of processing facilities, greenhouses and alternative energy systems are allowable on farmland stripped of development rights under the county’s farmland preservation program.

Such uses do not “waste public property or violate the public trust doctrine,” the majority held in a 3-1 ruling, overturning the September 2016 decision by State Supreme Court Justice Thomas Whelan.

The lower court threw out county laws passed in 2010 and 2013 providing for permits, special use permits and hardship exemptions for the construction of farm stands, greenhouses, barns and processing facilities, as well as the conduct of special events, on land from which the development rights had been purchased under the county’s farmland preservation program.

But those “land uses all constitute or are sufficiently related to agricultural production” and do not constitute a transfer of the county’s development rights back to the property owner, the Appellate Division held in a decision published yesterday.

The suit was brought by the Long Island Pine Barrens Society, which argued that the county legislature cannot change the county’s farmland preservation program, which was approved by voter referendum, without a mandatory referendum approving the changes.

Under the original law establishing the farmland preservation program, the county purchases development rights from preserved farmland, thereafter banning development of and restricting activities on preserved land to “agricultural production,” the plaintiff argued.

The lower court agreed, ruling that legislative changes allowing uses other than “agricultural production” without voter approval were null and void, according to the lower court’s decision.

Suffolk County appealed the trial court’s decision. Peconic Land Trust, Long Island Farm Bureau, Cornell Cooperative Extension, Farm Credit, American Farmland Trust, New York League of Conservation Voters, and the Long Island Wine Council filed an amicus brief supporting the county’s appeal.

The 2010 and 2013 county laws allow permits for structures and uses deemed consistent with a “farm operation” as defined in State Agriculture and Markets Law. Such uses and structures are needed for the survival of agriculture on Long Island and, if eliminated, would effectively kill the county farmland preservation program, according to farm advocates and legislators, including North Fork Legislator Al Krupski, a fourth-generation farmer in Cutchogue.

The Appellate Division decision is good news for farming in Suffolk, Krupski said yesterday.

“This preserves the integrity of the farmland preservation program,” Krupski said. “The implications for the future of land preservation here are really important.”

L.I. Pine Barrens Society executive director Richard Amper said late yesterday the plaintiffs will file leave to appeal the decision to the Court of Appeals, the state’s highest court.

“We think they got it wrong and we think the Court of Appeals will know that,” Amper said. “The Appellate Division contradicted its own previous decision that said laws that were created by referendum can only be altered by referendum,” he said. “Laws that are created by the people cannot be changed by politicians acting on behalf of special interests,” Amper said. If the county wants to let farmers do more than the PDR rules permit, it should be put before the public in a referendum, he argues.

“If farmers who sell their development rights to the county are allowed to do anything that Ag and Markets defines as agriculture, what did the public get by buying the development rights?” Amper asked.

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, according to the county’s Agricultural and Farmland Protection Plan (2015). The revenue for the preservation effort comes from a special quarter-percent sales tax approved by voter referendum.

N.Y. 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’ … and ‘commercial equine operation.’”

Companion bills introduced last year in the State Senate and Assembly by Sen. Ken LaValle and Assemblyman Fred Thiele would specifically allow preserved farmland in Suffolk to be used for a “farm operation” as defined in the Ag and Markets Law. Both bills remain pending.

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Denise Civiletti
Denise is a veteran local reporter, editor, attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including investigative reporting and writer of the year awards from the N.Y. Press Association. She is a founder, owner and co-publisher of this website.Email Denise.