“It is the policy of this state... to conserve, protect and encourage the development and improvement of agricultural land for the production of food, and other products, and also for its natural and ecological value.” Article 25AA-NYS Agriculture and Markets Law
Background
Recently in Seneca County, New York, a conflict arose between environmental sustainability proponents and property rights advocates. This in itself is in no way surprising. However, because the opposing views were both held by members of the agriculture community, a specific and well organized segment of rural society unified under Farm Bureau, a unique opportunity presents itself to better understand some of the nuances of collisions of property rights advocacy with a particular kind of sustainability and open space preservation that favors continuing agricultural practices.
By way of background, according to a 2001 USDA Economic Research Service report on development impacts on farming[1], development in agricultural districts may cause the following:
Suburban neighbors’ complaints about farm odors and chemical spraying may force farmers to turn to enterprises that produce fewer negative side effects. Some of the alternatives will be more profitable and some will be less.
Conflicts can arise between growers and new suburban neighbors over early morning noise, and increased traffic can hinder farmers’ ability to move their equipment along overcrowded rural roads being used as commuter routes.
Markets for traditional dairy products or field crops may be reduced, as milk-collection routes are curtailed and grain elevators go out of business. In some areas, farm input suppliers, machinery dealers, and other forms of agricultural support may decline.
Real estate taxes may rise as land prices rise to reflect the potential for non-farm development.
Growers may face increased pressure from water- and land-use restrictions.
Farms may face deteriorating crop yields from urban smog, theft, and vandalism.
Farm Bureau at the local and state level supported and favored passage of Article 25AA- NYS Agriculture and Markets Law, commonly called “The Ag Districts Law” and/or “The Right To Farm Law.” [2] The law declared that many of the agricultural lands in New York State are in jeopardy of being lost for any agricultural purposes, and that when nonagricultural development extends into farm areas, competition for limited land resources results. The law also registered concern over ordinances inhibiting farming, rising farm taxes, and hopes for speculative gains that discourage investments in farm improvements, often leading to the idling or conversion of potentially productive agricultural land.
The law makes it the “policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products.” It is also the declared policy of the state to conserve and protect agricultural lands as valued natural and ecological resources which provide needed open spaces for clean air sheds, as well as for aesthetic purposes.
The legal basis of the law, it was argued at its passage, was that the constitution of the state of New York directs the legislature to provide for the protection of agricultural lands. Therefore, the law was intended to provide a locally-initiated mechanism for the protection and enhancement of New York State's agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance. The problem is, the law anticipated only fending off attacks from the non-farming public. As a result, the law has two major “blind spots” as we shall see shortly.
New York State Agricultural Districts Law
Sixteen different states in the U.S. have developed agricultural district programs. They allow farmers to form special areas where commercial agriculture is encouraged and protected. Participation by farmers is voluntary and in exchange for enrollment, farmers receive packages of benefits including favorable tax treatment, right-to-farm protections and shielding from infrastructure financial assessments. Some states (e.g. Pennsylvania) also make it very difficult to extend public improvements into farm areas that could cause negative impacts on agriculture.
In New York State, an agricultural district is an area containing important agricultural land that is created through petition by farmers and officially designated by a County Legislature. Under provisions of the Agricultural Districts Law as amended, an agricultural district is comprised of 500 or more acres of reasonably contiguous, viable agricultural land. Districts are reviewed every eight years to determine the current extent of agricultural land in the area and to identify whether inclusions or exclusions to the district will be made.
Agricultural District programs offer several strengths as farmland protection tools. These
include the following according to the American Farmland Trust[3] and others:
Agricultural District programs are very flexible; benefits and restrictions can be tailored to local conditions.
Agricultural Districts help stabilize the land base at low public cost.
Agricultural Districts provide multiple benefits to farmers, including tax relief, protection from local regulation and eligibility for purchase of development rights
programs. These benefits help support the economics of farming.
Agricultural Districts help create a critical mass of land to keep farming viable.
Enrollment in Agricultural Districts is voluntary, making the programs popular with farmers.
A landowner in an Agricultural District can take advantage of farmland protection
techniques that would otherwise require agricultural zoning. Such zoning can impose strict restrictions on farmland and is not part of New York's Agricultural District Law, although individual communities can opt to pursue such options as part of their own programs.
These strengths are accompanied by some drawbacks, however. Again, the American Farmland Trust suggests these include:
Sanctions for withdrawing land from agricultural districts may not be strong enough to discourage conversion.
Limits on non-farm development may not prevent expansion of public services such as water and sewer lines into agricultural areas. New York State's Agricultural District Law, fortunately, does address this issue with exemption from special district levies based on frontage and specific planning and notice requirements.
The benefits provided by Agricultural Districts are not always enough incentive for farmers to enroll. Owners must also pay penalties to remove themselves from a District prior to its eight-year term.
The procedure for creating agricultural districts can be lengthy and complex.
More Background-The Specifics of the Seneca County Case
As has been described above, the “Ag Districts Law” seems to protect farmers from undue persecution, and protect farmland from conversion to residential or commercial development. The perpetrators of these “attacks” upon farming are of course assumed to be non-farmers. But what happens when a farmer threatens the future of farmland by pushing to convert his farmland into residential development, and neighboring farmers want to fend off such an attack by invoking the “Ag Districts Law?”
In 2003, a local property owner in Seneca County New York, formerly a farmer, decided that he would provide for his retirement by converting his farmland into residential development lots. After hiring a surveyor and making appropriate drawings, maps, and plans, he approached the Town Planning Board for approval for a major subdivision. The Town is required to hold a Public Hearing for major subdivisions, and at this particular hearing, a significant public outcry ensued over the proposed subdivision. Concerns ranged from the loss of views and open space, to negative effects of sprawl upon neighboring farms, to environmental concerns about overloading a fragile water table with septic systems and consumption of potable water. A petition was circulated and many signatures were collected. The land owner had few people speak in favor of his project.
The town planning board, recognizing the furor of the proposed subdivision, decided to enter into the New York State Environmental Quality Review process using “rigorous” interpretations. The Board found that the environment would potentially be harmed by the major subdivision, and forwarded the opinion to the county planning board. The county, however, found that there would be no significant adverse impact of the conversion of this agricultural land. Taking into consideration the public’s concern with this project, the planning board recommended that the land owner revise his plans to only convert one lot to residential development at that time. The hope was that the planning board, which was nearing the end of writing a comprehensive plan for the town, would be in a better position in the future to deal with land use issues, especially if new zoning were adopted that would protect agricultural land within agricultural districts. In spite of the public outcry over the proposed subdivision, the single lot split was approved.
In 2006, the same farmer appeared again before the town planning board, this time to split off a second lot from his original farm, one of the seven lots proposed in the initial major subdivision proposal. Predictably, the farmer encountered the same adversity, perhaps with even more intensity. This time, the neighboring farmers attempted to invoke the “Ag Districts Law” while appealing to Farm Bureau and county agencies, setting in motion a pitched battle over the intent of agriculture protection laws and opening up new legal questions that remain unanswered.
The Arguments
Attempts to block or forestall conversion of the farm in question originally hinged on two related arguments; 1.) that by virtue of Agricultural Districts law, it was illegal, or at least in violation of both the spirit and the letter of the Agriculture Districts law, especially provisions to protect and preserve farmable land, for the Town Planning Board to approve residential development in a certified agriculture district, even if town zoning did not specifically prohibit it, and 2.) that allowing residential development in an agricultural district where neighboring farms had properly registered their concern through Agriculture Data Statements caused harms to the livelihoods of neighboring farms and violated their “rights to farm,” also protected in the Agriculture Districts Law (AML §305-a).[4]
A third, unique argument to block agriculture land conversion to residential or commercial development was also presented. This argument takes a creative “future tense” interpretation of the “Right to Farm” provision in the Ag Districts law. At issue is the future “Rights to Farm” of future farmers if current farmable land is converted to commercial development. In other words, if I am a 12 year old boy with aspirations of farming in my home county, my “Right to Farm” may be impinged upon if my opportunity to farm is foreclosed by dwindling farmable land in my community.
Arguments supporting a farmer’s inalienable right to do whatever he desires with his land were not particularly new or unique, and followed strict property rights movement rhetoric closely.
Two Blind Spots
Among the threats to agricultural land, one of the largest threats is farmers who, because of development pressures, become real estate speculators and sell their land for commercial or residential development. Despite the noble and well meaning aims of Agricultural Districts Law, it seems that an overarching “problem” with the law is that it does not anticipate conflict between and among farmers about land use decisions within the agriculture community, and therefore has two significant blind spots, which prevent the law from effectively addressing one of the largest threats to farmland.
The first “blind spot” is that there is no language in the law suggesting penalty or punitive damages for violation of Agricultural Districts Law, jurisdiction, or even guidance to municipalities on what they should do to enforce. The second is that the agricultural real estate assessment “penalty upon conversion” provision intended to be a disincentive, is so small as to be meaningless. As a result of these two blind spots, among those who have the most “agency” in terms of the threat of development, there is least enforceability or accountability.
Conclusion
The Ag Districts law limits a town or municipalities ability to restrict or regulate agriculture, but it does not limit a towns’ ability to protect agriculture, even if it protects agriculture from some farmers who want to cash out and sell their farms. Therefore, towns and municipalities should strengthen local “Right to Farm” ordinances and impose significant penalties upon farmers wishing to cash out of agricultural districts, especially if they have reaped tax savings for having been in Ag districts. These penalties could be reduced based upon selling farmers willingness to enter into other farmland preservation programs (percentage of land in easements, PDR/TDR, etc.). This kind of approach will help create locally based agricultural enhancement initiatives that provide both incentives and disincentives in efforts to protect agricultural and open space, while preserving property rights.
[1] http://www.ers.usda.gov/publications/aer803/
[2] http://www.agmkt.state.ny.us/AP/agservices/2004C115.pdf
[3] See: http://www.farmland.org/resources/publications/documents/NewYorkLandownerGuide.pdf
and: http://www.farmland.org/resources/reports/default.asp
[4] http://www.agmkt.state.ny.us/ap/agservices/new305/guidance.pdf
Background
Recently in Seneca County, New York, a conflict arose between environmental sustainability proponents and property rights advocates. This in itself is in no way surprising. However, because the opposing views were both held by members of the agriculture community, a specific and well organized segment of rural society unified under Farm Bureau, a unique opportunity presents itself to better understand some of the nuances of collisions of property rights advocacy with a particular kind of sustainability and open space preservation that favors continuing agricultural practices.
By way of background, according to a 2001 USDA Economic Research Service report on development impacts on farming[1], development in agricultural districts may cause the following:
Suburban neighbors’ complaints about farm odors and chemical spraying may force farmers to turn to enterprises that produce fewer negative side effects. Some of the alternatives will be more profitable and some will be less.
Conflicts can arise between growers and new suburban neighbors over early morning noise, and increased traffic can hinder farmers’ ability to move their equipment along overcrowded rural roads being used as commuter routes.
Markets for traditional dairy products or field crops may be reduced, as milk-collection routes are curtailed and grain elevators go out of business. In some areas, farm input suppliers, machinery dealers, and other forms of agricultural support may decline.
Real estate taxes may rise as land prices rise to reflect the potential for non-farm development.
Growers may face increased pressure from water- and land-use restrictions.
Farms may face deteriorating crop yields from urban smog, theft, and vandalism.
Farm Bureau at the local and state level supported and favored passage of Article 25AA- NYS Agriculture and Markets Law, commonly called “The Ag Districts Law” and/or “The Right To Farm Law.” [2] The law declared that many of the agricultural lands in New York State are in jeopardy of being lost for any agricultural purposes, and that when nonagricultural development extends into farm areas, competition for limited land resources results. The law also registered concern over ordinances inhibiting farming, rising farm taxes, and hopes for speculative gains that discourage investments in farm improvements, often leading to the idling or conversion of potentially productive agricultural land.
The law makes it the “policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products.” It is also the declared policy of the state to conserve and protect agricultural lands as valued natural and ecological resources which provide needed open spaces for clean air sheds, as well as for aesthetic purposes.
The legal basis of the law, it was argued at its passage, was that the constitution of the state of New York directs the legislature to provide for the protection of agricultural lands. Therefore, the law was intended to provide a locally-initiated mechanism for the protection and enhancement of New York State's agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance. The problem is, the law anticipated only fending off attacks from the non-farming public. As a result, the law has two major “blind spots” as we shall see shortly.
New York State Agricultural Districts Law
Sixteen different states in the U.S. have developed agricultural district programs. They allow farmers to form special areas where commercial agriculture is encouraged and protected. Participation by farmers is voluntary and in exchange for enrollment, farmers receive packages of benefits including favorable tax treatment, right-to-farm protections and shielding from infrastructure financial assessments. Some states (e.g. Pennsylvania) also make it very difficult to extend public improvements into farm areas that could cause negative impacts on agriculture.
In New York State, an agricultural district is an area containing important agricultural land that is created through petition by farmers and officially designated by a County Legislature. Under provisions of the Agricultural Districts Law as amended, an agricultural district is comprised of 500 or more acres of reasonably contiguous, viable agricultural land. Districts are reviewed every eight years to determine the current extent of agricultural land in the area and to identify whether inclusions or exclusions to the district will be made.
Agricultural District programs offer several strengths as farmland protection tools. These
include the following according to the American Farmland Trust[3] and others:
Agricultural District programs are very flexible; benefits and restrictions can be tailored to local conditions.
Agricultural Districts help stabilize the land base at low public cost.
Agricultural Districts provide multiple benefits to farmers, including tax relief, protection from local regulation and eligibility for purchase of development rights
programs. These benefits help support the economics of farming.
Agricultural Districts help create a critical mass of land to keep farming viable.
Enrollment in Agricultural Districts is voluntary, making the programs popular with farmers.
A landowner in an Agricultural District can take advantage of farmland protection
techniques that would otherwise require agricultural zoning. Such zoning can impose strict restrictions on farmland and is not part of New York's Agricultural District Law, although individual communities can opt to pursue such options as part of their own programs.
These strengths are accompanied by some drawbacks, however. Again, the American Farmland Trust suggests these include:
Sanctions for withdrawing land from agricultural districts may not be strong enough to discourage conversion.
Limits on non-farm development may not prevent expansion of public services such as water and sewer lines into agricultural areas. New York State's Agricultural District Law, fortunately, does address this issue with exemption from special district levies based on frontage and specific planning and notice requirements.
The benefits provided by Agricultural Districts are not always enough incentive for farmers to enroll. Owners must also pay penalties to remove themselves from a District prior to its eight-year term.
The procedure for creating agricultural districts can be lengthy and complex.
More Background-The Specifics of the Seneca County Case
As has been described above, the “Ag Districts Law” seems to protect farmers from undue persecution, and protect farmland from conversion to residential or commercial development. The perpetrators of these “attacks” upon farming are of course assumed to be non-farmers. But what happens when a farmer threatens the future of farmland by pushing to convert his farmland into residential development, and neighboring farmers want to fend off such an attack by invoking the “Ag Districts Law?”
In 2003, a local property owner in Seneca County New York, formerly a farmer, decided that he would provide for his retirement by converting his farmland into residential development lots. After hiring a surveyor and making appropriate drawings, maps, and plans, he approached the Town Planning Board for approval for a major subdivision. The Town is required to hold a Public Hearing for major subdivisions, and at this particular hearing, a significant public outcry ensued over the proposed subdivision. Concerns ranged from the loss of views and open space, to negative effects of sprawl upon neighboring farms, to environmental concerns about overloading a fragile water table with septic systems and consumption of potable water. A petition was circulated and many signatures were collected. The land owner had few people speak in favor of his project.
The town planning board, recognizing the furor of the proposed subdivision, decided to enter into the New York State Environmental Quality Review process using “rigorous” interpretations. The Board found that the environment would potentially be harmed by the major subdivision, and forwarded the opinion to the county planning board. The county, however, found that there would be no significant adverse impact of the conversion of this agricultural land. Taking into consideration the public’s concern with this project, the planning board recommended that the land owner revise his plans to only convert one lot to residential development at that time. The hope was that the planning board, which was nearing the end of writing a comprehensive plan for the town, would be in a better position in the future to deal with land use issues, especially if new zoning were adopted that would protect agricultural land within agricultural districts. In spite of the public outcry over the proposed subdivision, the single lot split was approved.
In 2006, the same farmer appeared again before the town planning board, this time to split off a second lot from his original farm, one of the seven lots proposed in the initial major subdivision proposal. Predictably, the farmer encountered the same adversity, perhaps with even more intensity. This time, the neighboring farmers attempted to invoke the “Ag Districts Law” while appealing to Farm Bureau and county agencies, setting in motion a pitched battle over the intent of agriculture protection laws and opening up new legal questions that remain unanswered.
The Arguments
Attempts to block or forestall conversion of the farm in question originally hinged on two related arguments; 1.) that by virtue of Agricultural Districts law, it was illegal, or at least in violation of both the spirit and the letter of the Agriculture Districts law, especially provisions to protect and preserve farmable land, for the Town Planning Board to approve residential development in a certified agriculture district, even if town zoning did not specifically prohibit it, and 2.) that allowing residential development in an agricultural district where neighboring farms had properly registered their concern through Agriculture Data Statements caused harms to the livelihoods of neighboring farms and violated their “rights to farm,” also protected in the Agriculture Districts Law (AML §305-a).[4]
A third, unique argument to block agriculture land conversion to residential or commercial development was also presented. This argument takes a creative “future tense” interpretation of the “Right to Farm” provision in the Ag Districts law. At issue is the future “Rights to Farm” of future farmers if current farmable land is converted to commercial development. In other words, if I am a 12 year old boy with aspirations of farming in my home county, my “Right to Farm” may be impinged upon if my opportunity to farm is foreclosed by dwindling farmable land in my community.
Arguments supporting a farmer’s inalienable right to do whatever he desires with his land were not particularly new or unique, and followed strict property rights movement rhetoric closely.
Two Blind Spots
Among the threats to agricultural land, one of the largest threats is farmers who, because of development pressures, become real estate speculators and sell their land for commercial or residential development. Despite the noble and well meaning aims of Agricultural Districts Law, it seems that an overarching “problem” with the law is that it does not anticipate conflict between and among farmers about land use decisions within the agriculture community, and therefore has two significant blind spots, which prevent the law from effectively addressing one of the largest threats to farmland.
The first “blind spot” is that there is no language in the law suggesting penalty or punitive damages for violation of Agricultural Districts Law, jurisdiction, or even guidance to municipalities on what they should do to enforce. The second is that the agricultural real estate assessment “penalty upon conversion” provision intended to be a disincentive, is so small as to be meaningless. As a result of these two blind spots, among those who have the most “agency” in terms of the threat of development, there is least enforceability or accountability.
Conclusion
The Ag Districts law limits a town or municipalities ability to restrict or regulate agriculture, but it does not limit a towns’ ability to protect agriculture, even if it protects agriculture from some farmers who want to cash out and sell their farms. Therefore, towns and municipalities should strengthen local “Right to Farm” ordinances and impose significant penalties upon farmers wishing to cash out of agricultural districts, especially if they have reaped tax savings for having been in Ag districts. These penalties could be reduced based upon selling farmers willingness to enter into other farmland preservation programs (percentage of land in easements, PDR/TDR, etc.). This kind of approach will help create locally based agricultural enhancement initiatives that provide both incentives and disincentives in efforts to protect agricultural and open space, while preserving property rights.
[1] http://www.ers.usda.gov/publications/aer803/
[2] http://www.agmkt.state.ny.us/AP/agservices/2004C115.pdf
[3] See: http://www.farmland.org/resources/publications/documents/NewYorkLandownerGuide.pdf
and: http://www.farmland.org/resources/reports/default.asp
[4] http://www.agmkt.state.ny.us/ap/agservices/new305/guidance.pdf
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