Beginning 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.