shutterstock_637510813On April 25, 2017, the Southold Town Board adopted Local Law No. 5 of 2017, which amends the Town’s Zoning Code as it relates to agricultural uses. Specifically, the local law amends and adds certain definitions to the Code in recognition of the changes in modern farm operations. The changes are also consistent with the expanded definitions of agriculture found in New York State’s Agriculture and Markets Law.

The new law broadens the scope of agricultural practices by adding several definitions, including those for agriculture, agricultural production, agricultural processing, farm operations, farmhouses, processed agricultural product and on-farm operation direct marketing.  These changes expand agricultural practices beyond the growing of crops and raising of livestock and will allow farmers to process their crops and other agricultural products onsite and market them for sale, much like vineyards that make wine on their properties. Such processed agricultural products include jams, jellies, cheeses, potato chips, jerkies, meats, fowl, fish, breads and baked goods, beer, wine and distilled alcoholic and non-alcoholic beverages.

Farmers will also be allowed to sell their processed agricultural products directly to consumers from within buildings constructed on the farm for the purpose of marketing their products.  The law even allows non-farmers to sell home grown fruits, vegetables or plants to the general public from a “roadside stand,” which is defined as a display area that is less than 100 square feet in size located on the same parcel where the products are grown.

According to Chris Baiz, the chairman of the Southold Agricultural Advisory Committee and a fourth-generation farmer, the high cost of land requires farmers to achieve greater cash flows in order to operate successfully.  These new changes should help local farmers realize more income from their lands by allowing them to process and market value-added products from within their operations.

hempDEREGULATING INDUSTRIAL HEMP

Plans to expand New York’s Industrial Hemp Agricultural Pilot Program were recently announced by Governor Andrew Cuomo at one of his State of the State addresses. The program, which commenced in 2016, was authorized pursuant to the federal government’s passage of its 2014 Farm Bill, which specifically allows universities and state departments of agriculture to grow or cultivate industrial hemp if:

“(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the state in which such institution of higher education or state department of agriculture is located and such research occurs.”

The law also requires that the grow sites be certified by—and registered with—their state.

HEMP NO LONGER A CONTROLLED SUBSTANCE SO LONG AS IT CONTAINS LESS THAN 0.3 THC

In 2015, a bipartisan group of U.S. senators introduced the Industrial Hemp Farming Act of 2015 that would allow American farmers to produce and cultivate industrial hemp. The bill would remove hemp from the controlled substances list as long as it contained no more than 0.3 percent THC.

The U.S. Department of Agriculture, in consultation with the U.S. Drug Enforcement Agency (DEA) and the U.S. Food and Drug Administration, released a Statement of Principles on Industrial Hemp in the Federal Register on Aug 12, 2016, to inform the public on the applicable activities related to hemp in the 2014 Farm Bill.

Under the pilot program, New York caps the number of sites permitted to farm hemp to ten locations throughout the state. The current research projects are being conducted under the auspices of SUNY Morrisville College and Cornell University’s College of Agriculture and Life Sciences. Governor Cuomo’s proposed amendments will lift the cap and expand the program to private farmers in an effort to “position New York at the forefront of a growing agricultural sector.” In 2015, it is estimated that the industrial hemp industry generated some $573 million in sales in the U.S. alone. Governor Cuomo believes that it could soon be a billion dollar industry; and New York’s Southern Tier, because of its climate and soil, is uniquely suited to be a leader in the industry.

Only time will tell if the industrial hemp industry flourishes as hoped for by the Governor or it goes up in smoke.

pumpkinsBeginning in 1974, Suffolk County enacted a series of laws, now codified as Chapter 8 of the Suffolk County Code, which sought to preserve agricultural lands. In exchange for paying an owner for the development rights of his/her farmland, the owner agreed to a covenant restricting the land to agricultural or open space. Between 1974 and 2010, more than 9,000 acres of farmland were preserved through this program.

In 2010, the County enacted Local Law 52-2010, which allowed the County to permit some development of these preserved properties, even though the owner previously had been paid taxpayer dollars to forego such development. Previously, absent a referendum of the electorate, there was an express prohibition against alienating the development rights that were preserved via this program. The 2010 amendment allowed special use permits and hardship exemptions to be issued, enabling owners or lessees of property in the program to expand agricultural use by constructing new or additional structures and amusement attractions. These included things such as greenhouses, barns, farm stands, special events and parking. Rather than requiring a referendum of the electorate, the permits and hardship exemption requests were to be handled by the Suffolk County Farmland Committee, made of up nineteen members, nine of whom were appointed by the County Executive. The other ten members were composed of persons selected by the ten Suffolk County towns, with each town getting one member.

In 2013, the County enacted Local Law 44-2013, which added a few refinements to the permit and hardship exemption program. It added agricultural tourism, horse boarding operations, hay rides, mazes and u-pick operations to the list of permitted uses.

The 2010 and 2013 local laws were challenged by the Long Island Pine Barrens Society, Inc., claiming that the laws violated a whole host of statutes and public policy. On September 28, 2016, Justice Thomas F. Whelan issued a ruling siding with the Pine Barrens Society, in which he declared the two local laws to be null and void. Justice Whelan also issued a permanent injunction that prohibited the granting of permits and hardship exemptions. He explained that the two local laws were, in effect, a “give back” to the owner of the development rights that had been bought, and paid for, by the County. Justice Whelan determined that this “give back” was a substantial intrusion and diversion of County assets for the personal gain, use and enjoyment of a private property owner, in contravention of public rights to use and enjoy the property as preserved open spaces and open areas.

The next step is up to Suffolk County to determine whether to appeal the decision. Unless it does so and is successful in overturning the ruling, the County cannot use these two local laws to allow development of preserved farmland.

 

New York State is actively promoting the development and implementation of renewable energy sources. New York State’s 2015 Energy Plan has a goal of 50% of power coming from renewable sources by 2030.

nys-from-spaceClean Energy Standard

Late last year, the Governor directed the New York State Department of Public Service (NYSDPS) to develop a Clean Energy Standard that will mandate requirements to ensure that the 50% renewable power goal is met. On January 25, 2016, the Staff of the NYSDPS issued a white paper that discusses four principal policy objectives in developing the Clean Energy Standard. These are:

  1. increasing renewable electricity supply to achieve 50% electric generation by renewable sources by 2030;
  2. supporting construction of renewable generation in the state;
  3. preventing premature closure of upstate nuclear facilities; and
  4. promoting the progress of the Governor’s Reforming the Energy Vision.

The New York State Public Service Commission is holding a series of public comment meetings throughout the state to get public feedback on what should be included in the Clean Energy Standard. The Long Island office of the NYSDPS held public comment hearings this past week. If you missed those hearings, you can still comment on the proposed standard by filing written comments with the Public Service Commission by May 31, 2016. (A link to the NYSDPS Staff White Paper and other documents on the Clean Energy Standard can be found here.

NYS Funding For Renewable Energy Projects

th5CE2WD5VA few weeks ago, the Governor announced that New York State is making available $150 million in funding to support large-scale renewable energy projects across the state. The $150 million will be awarded through a competitive process. Contracts will be awarded for a term of up to 20 years. The initial application to qualify for this funding must be submitted to the New York State Energy Research and Development Authority by May 26, 2016. More information can be found by clicking here.

The term “renewable energy” conjures up rows of solar panels. However, as noted in New York State’s 2015 Energy Plan, only about 25% of rooftops in the nation are suitable for solar panels. Where is the rest of the “renewable energy” to come from? Here is a quick description of renewable sources that state and local municipalities in New York may rely on to meet the 50% goal.

Wind Power

Harnessing wind power goes back hundreds of years. Those windmills in Holland are not just tourist attractions. Wind power today is more likely to come in the form of large wind turbines. The large blades rotate by the force of the wind, which rotates the shaft and spins the generator to create electricity. Land-based large-scale wind power facilities generated over 1,360 megawatts of power in New York in 2012. Offshore wind power plants are being studied and have the potential to provide between 350 to 700 megawatts of power.

Hydropower

As of 2010, hydropower represented 15% of power generation in New York State. One type of hydropower uses dams to store water in reservoirs. When the water is released, it activates generators to produce electricity. Another type is called run-of-river facilities. These depend upon drops in elevation to produce electricity. Another type of hydropower, hydrokinetic, generates electricity from free-flowing water going over turbines that are placed below water surfaces in tidal areas, rivers, canals, or wastewater treatment plants. Hydrokinetic technology is promising but not yet commercialized.

Biomass

Biomass is organic matter derived from living organisms.  It can be used as a source of energy.  Obtaining energy from biomass, also called bioenergy, is  not a new technique.  Wood is the major source of bioenergy, and it produces energy when it is burned.  Other sources of biomass include agricultural and forest waste, paper and pulp waste, and municipal waste.  There produce energy when they are burned.

Biofuels is another category of biomass, which convert biomass into liquid fuel used in transportation. Ethanol and biodiesel are probably the most well-known examples. Corn or soybeans are combined with other ingredients to make these fuels. Landfills are another source of biomass fuels. The decomposition of landfill waste produces methane gas that can be collected and used as fuel.

Solar Power

Solar energy can come from the familiar solar photovoltaic panels used to produce electricity Another type of solar power, solar thermal power, is used to meet non-electric generating demands. It uses the sun’s power to directly heat water or interior spaces.

Geothermal

This type of renewable power uses heat from below the earth‘s surface to generate electricity and comes from subterranean hot water or steam reservoirs. This heat is accessed by drilling into the earth to tap these sources. Geothermal energy can be used in both large and small scale facilities. Large utilities use geothermal power to drive generators and produce electricity. A single home can also tap into a geothermal source for heating and cooling, usually through a heat pump. In winter, the pump transfers heat from the earth into a home; it reverses the process in summer, cooling the home by transferring heat from it back into the earth.

Fuel Cells

A fuel cell is composed of two electrodes (one positive and one negative) and an electrolyte that is located between the two electrodes. A chemical reaction happens inside the fuel cell that generates electricity. The most common fuel cell used in electric vehicles uses hydrogen and oxygen. The chemical reaction generates electricity to power the car and creates water as the exhaust product.

Conclusion

Renewable sources have the potential to generate significant amounts of energy in place of fossil fuels. It will be interesting to see what techniques the Clean Energy Standard will mandate to achieve the 50% by 2030 goal and also what public-private partnerships apply for the $150 million being made available by the State of New York as part of its effort to achieve this goal.

gw-graphic-chart-epa-vs-ucs-state-renewable-energy-targets-FINAL

farmlandIn December 2015, Suffolk County adopted an Agricultural and Farmland Protection Plan. The previous plan was adopted twenty years ago. This new plan discusses the current state of agriculture, sets goals for the future and provides recommendations to increase competitiveness and resiliency. Here are some highlights from the 2015 Plan.

Fun Facts

Did you know that Suffolk County is ranked third in value of agricultural production in New York? Pretty remarkable when you consider that the sector has shrunk from more than 100,000 acres of farmland decades ago to about 39,000 acres currently (about 6% of all the land located in the county). The last decade has actually seen a small increase in farmland acreage and a stabilizing of the number of farms located in Suffolk County. Half the acreage is protected by municipal governments or by non-for-profit organizations. The remaining farmland acreage is unprotected. Because farmland is typically flat and cleared, it is often a target for redevelopment.

The vast majority of Suffolk County farms are small, with about a third having less than 9 acres and another third being between 10 and 49 acres. The type of crops grown here has changed. Once known for vast potato farms, Suffolk County farmland is now more likely to be used to grow nursery stock, sod or wine grapes. Aquaculture is also on the rise, aided by the adoption of the Suffolk County Shellfish Aquaculture Lease Programaquaculture

2015 Plan’s Vision

The 2015 Plan’s vision is “to foster adaptable public policy along with the commitment and support of the farming community to protect, encourage and sustain agriculture as an industry for future generations in Suffolk County.” The Plan’s vision wants local public policy to “strongly support…economic environments where agriculture can flourish” and “anticipate new challenges to Suffolk’s farming community and be flexible enough to embrace new solutions when needed.”

Goals

The 2015 Plan has several goals These include:

(1) preserving agriculture as an essential industry, preserving the quality of life in the county and generating economic activity to sustain complementary industries such as tourism;

(2) purchasing development rights to the unprotected farmland;

(3) incentivizing farmers to use best management practices to protect ground and surface waters, prevent erosion, and increase resilience to climate change and extreme weather events;

(4) retaining the culture of farming which strengthens community identity and contributes to economic development; and

(5) maintaining economic viability of the farming industry.

Objectives

The 2015 Plan also has numerous objectives for these goals. These objectives include:

(1) supporting public policy to protect health, safety and the environment without hindering or discouraging agriculture;

(2) leveraging investments in infrastructure to support new farms and expanding marketing opportunities;

(3) nurturing public/private interest in diversification of crops, best management practices, and educational and technical support for farming;

(4) identifying challenges and creating strategies for overcoming challenges faced by farms;

(5) developing long-term strategies to protect ground and surface waters and preserve agricultural soils;

(6) identifying new crops and new methods to market them;

(7) preserving farmland; and

(8) maximizing governmental farmland preservation funds to protect Suffolk’s farmland.

Strategies

Chapter 5 of the 2015 Plan contains many strategies to promote agriculture and agri-tourism. Some of these strategies include:

(1) taking advantage of the growing interest in farming by educating people about agricultural careers on Long Island;

(2) creating internships and apprenticeship programs;

(3) continuing to purchase farmland development rights;

(4) leveraging state and federal funding for farmland preservation;

(5) legislative reform to counter the impact of state and federal inheritance taxes on farmland;

(6) incorporating renewable energy as a way to counteract high energy and fuel costs;

(7) recommendations on branding, direct marketing opportunities, and investing in local food hubs and incubators;

(8) planning for climate change; and

(9) eliminating excessive regulations.

Related Programs and Town Regulations

The 2015 Plan also identifies municipal policies, programs, plans and regulations that concern agriculture and aquaculture. Some of these include:

(1) Suffolk County Farmland Purchase of Development Rights Program;

(2) Suffolk County Shellfish Aquaculture Lease Program; and

(3) Town and Village Comprehensive Plans and Zoning and Subdivision Regulations that relate to agriculture.

The 2015 Plan gives examples of the latter. It notes that the Town of Babylon’s comprehensive plan does not discuss or set goals for agriculture. Its zoning code permits agricultural occupations in four of its fourteen zoning districts and has distance restrictions for horses and livestock. The Town of Brookhaven’s comprehensive plan does not have a section dedicated to agriculture but does have a section in its town code regarding the right to farm and protected farm practices.

The Town of East Hampton’s comprehensive plan has one stated goal related to preserving agriculture. It has a right to farm policy, a community preservation fund, and allows farming in many of its zoning districts. The Town of Huntington’s comprehensive plan includes a chapter on open space, including agriculture. It has an environmental open space and park fund and allows agriculture in fourteen of its 33 zoning districts. The Town of Islip allows agriculture in six of its 27 zoning districts, but there are also buffer zones and livestock restrictions. The Town of Riverhead’s comprehensive plan has a chapter on agriculture and town regulations giving farmers the right to farm without undue interference from adjacent landowners.

Shelter Island’s comprehensive plan does not discuss agriculture, but it does have a community preservation fund. It allows agriculture in four of its eleven zoning districts. The Town of Southampton’s comprehensive plan includes a section entitled “Vision for Agriculture,” which recognizes the importance of agriculture. Its town code recognizes the right to farm and exempts agriculture from noise pollution regulations. The Town of Southold’s comprehensive plan includes a chapter on agriculture, has a farm and farmland protection strategy and its town code recognizes farming as an essential activity.

Conclusion

Suffolk County’s new Agricultural and Farmland Protection Plan is a comprehensive approach to protect and preserve a vital industry. It will be exciting to watch the county implement this plan.

 

With an increase in the number of vineyards marketing themselves as venues for wedding receptions and special events, local governments across New York State have begun enacting legislation aimed at curtailing the marketing activities of vineyards, indicating that they are seeking to protect the health and safety of their communities. Vineyard Wedding PicSome towns and villages now require vineyards to obtain special permits or even submit site plans, a process that can often be drawn-out and arduous, before permitting vineyards to host certain events. But can municipalities regulate the marketing activities of vineyards located in a local agricultural district? The answer is: it depends.

NYS Agriculture and Markets Law

The New York State Department of Agriculture and Markets recognizes the importance marketing plays in the success and economic viability of a vineyard. In fact, §301(11) of the Agriculture and Markets Law (“AML”) expressly acknowledges that “marketing activities” are part of the “farm operation” of a vineyard when the wine served at these events is composed predominantly of on-farm grapes and fruit. The Department has also determined that on-farm wedding receptions, charitable events and other similar undertakings constitute “marketing activities” and are thus protected and cannot be unreasonably restricted by local municipalities if the vineyard is located in a local agricultural district.

Events hosted by vineyards must be:

  • directly related to the sale of the wine produced on-site
  • be composed from at least 51% of the grapes harvested thereon
  • be incidental to the retail sale of the wine sold
  • hosted by the vineyard or a customer of the vineyard, not an unrelated third-party.

If these conditions are not met, the vineyard cannot avail itself of the protections afforded by the AML and will be subject to local zoning laws.

Municipality Rights & Limits

The Department will also allow local municipalities to require a vineyard to obtain a special use permit or subject itself to site plan review so long as the process is streamlined and not unreasonably burdensome or cost prohibitive. Local municipalities can also require certain information from the vineyard about the proposed event. For example a town or village may be interested in the date and time of a proposed event, the number of people expected to attend, security information, etc.

Should a vineyard find the process to obtain approval from the local government to be unreasonable or arbitrary and capricious, the Department may review the matter pursuant to its powers under §305-a of the AML.

Take-away for Vineyard Owners & Operators

It is important for owners and operators of vineyards to understand that not all marketing activities will be protected by the AML. Even more important is the requirement that vineyards maintain sufficient records which conclusively demonstrate that the marketing events hosted are incidental to the annual sales of the vineyard’s wine. Moreover, the local government may require the vineyard to submit an annual report that confirms the incidental nature of the marketing events.

The AML protects vineyards located within a local agricultural district from unreasonable regulations promulgated by municipalities and can be a good friend when a vineyard’s rights are being infringed upon.

A Southold couple’s dream to build a winery and continue operating a tasting room at their Old North Road residence seems all but lost after a recent ruling of the Southold Town Zoning Board of Appeals. The Town Zoning Board denied their requests for variances that would allow the winery and tasting room to operate on the same parcel they call their home. The Board also denied the couple’s request for an area variance that would allow the winery to be constructed 60 feet from the front yard lot line, where a 100-foot setback is required.Winery

Regan and Carey Meador purchased the 23.5-acre parcel in 2012 with the intention of raising their young family there and also operating a family-run winery. However, because the development rights for all but one acre of the lot had been transferred to the Town of Southold through its Farmland and Open Space Preservation Program, the remaining one acre, on which a single-family residence is situated, is too small for both uses, according to the Southold Town Zoning Code. Unlike Suffolk County’s Farmland Program, Southold Town prohibits agricultural processing facilities, like wineries, to be located on preserved farmland.

As per the Code, the Meadors’ proposal runs afoul of the “bulk schedule”, which requires a minimum of two acres of developable land per use. Because 22.5 acres of the property is preserved farmland upon which they operate their vineyard, the remaining one-acre lot is substantially undersized for both their residence and the proposed winery, according to the Zoning Board. The Meadors argued that the entire 23.5 acres should be considered as part of the family’s farm operation, thus eliminating the need for variances from the “bulk schedule”. The Zoning Board, however, did not find that argument persuasive and unanimously denied the couple’s application. It remains to be seen whether an appeal of the Zoning Board’s decision will be taken.

Adding to the Meadors’ problems, the New York State Liquor Authority has scheduled a hearing to determine if the winery’s liquor license should be revoked, since it has been operating without the proper local permits in place.

FWine Grapes NYSor the first time since 2005, the New York State Department of Agriculture and Markets is allowing New York wineries to produce wines with grapes grown out-of-state.
The move comes after New York suffered through one of the harshest winters in recent memory, which resulted in wide scale damage to vines and resulted in a drastic reduction of 2014’s grape yield. Some vineyards even experienced trunk damage so bad that entire plants needed to be replaced.

Pursuant to §76-a(5)(b) of the New York Alcoholic Beverage Control Law, “no licensed farm winery shall manufacture or sell any wine not produced exclusively from grapes or other fruits or agricultural products grown or produced in New York.” The law, however, provides an exception to this requirement where more than 40% of a specific grape varietal is destroyed by a natural disaster, Act of God, or continued adverse weather.

In order to be designated as a New York wine though, federal law requires that at least 75 percent of grape contents must have been grown in New York. It is still too early to know whether New York wineries will be able to meet this condition.

The grape varietals which are included in the Department of Agriculture and Market’s declaration are: Riesling, Cabernet Franc, Pinot Noir, Chardonnay, Gewürztraminer, Merlot, Pinot Gris, Cabernet Sauvignon, Lemberger, Syrah, Gamay Noir, Brianna, Frontenac, La Crescent, and Noiret.

Wineries interested in using out-of-state grapes will need to complete the Department of Agriculture’s application.

There is still time to apply for funding through the United States Department of Agriculture’s Specialty Crop Block Grant Program, but not much.

The Program was designed to provide financial support to farms and farmers who produce specialty crops, i.e., grapes, hops, etc… Approximately $66 million in funding is available nationwide with $1.4 million earmarked for New York. In New York, the program is being administered by the New York State Department of Agriculture. If you are considering seeking funding from the program do not delay! Applications in New York must be received by Friday, May 2, 2014.

Applications to be considered for funding can be found here http://www.agriculture.ny.gov/AP/Slide/SpecialtyCrop.html.