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Laws allowing building on land in farmland-preservation program tossed

Photo Credit: Rick Kopstein / New York Law Journal

A state Supreme Court justice in Suffolk without fanfare late last month issued a sweeping decision that shakes the county’s landmark farmland-preservation program to its roots after four decades.

Justice Thomas Whelan threw out two laws passed in 2010 and 2013 that allowed farmers to get special-use permits and hardship exemptions to build structures such as greenhouses, barns and solar and wind generators on land where the public had bought out farmers’ right to build anything.

The Long Island Pine Barrens Society, which brought the lawsuit, called the two laws illegal, saying taxpayers spent millions of dollars to keep such farmland in use solely for direct “agricultural production” that would preserve its natural, scenic beauty for the public.

Whelan in his ruling said, “The development allowed . . . constitutes a substantial intrusion upon the public rights to prohibit development as the existing openness . . . is diminished, if not extinguished . . . by the erection of . . . structures.”

Whelan also ruled that provisions of the original farmland-preservation program cannot be changed by the county legislature alone, and can only be authorized in a public referendum.

Richard Amper, the society’s executive director, called the ruling “a major decision,” saying it protects the integrity of the farmland program.

Amper said that allowing the laws to stand would have undercut the public’s faith in all land-preservation programs.

“It’s obvious that the public would never vote to use public funds to prevent development, only to allow farmers to develop the land anyway,” he said.

In all, Suffolk has 39,000 acres of farmland, of which 10,000 are in the farmland program, which began in 1974. Planning officials could not provide statistics Friday on how many farms have gotten permits or exemptions for construction in the past six years.

Rob Carpenter, the Long Island Farm Bureau’s executive administrator, declined to comment on Whelan’s decision because he had not reviewed it fully. However, experts say farmers, who once simply shipped produce to wholesale markets, now need more infrastructure because they sell directly to consumer and local markets.

“The ability for farmers to have structures on their property — especially in this day and economic climate — is vital to many operations and a farmer’s ability to stay in agriculture,” Carpenter said.

Vanessa Baird-Streeter, spokeswoman for Suffolk County Executive Steve Bellone, said the administration received the ruling Friday and was reviewing it to determine whether the county will appeal.

Legis. Al Krupski (D-Cutchogue) a North Fork farmer himself, said the county should appeal the ruling or the industry will suffer.

“It’s a good program, a historic program,” Krupski said of the preservation program. “But the industry has changed a lot and the growers need to have the flexibility to make changes.”

Amper countered, “The farmers can’t have their cake and eat it, too. If they go industrial, then they can’t take preservation money at the same time.”


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