What is a Farm? Changes in Suffolk County’s Farmland Program Force the Question

Should farmers be allowed to build deer fences and other agricultural structures on protected land? A recent ruling says no.

Tom Wickham, whose family has farmed three hundred acres in Cutchogue since the 17th century, would like to put fencing around some of his fruit trees this spring to protect them from the predations of local deer. The problem? Although his land is protected from development, he can’t be sure that he is allowed to protect it from ravenous deer now that the permitting process for farm structures has ended.

In a stunning decision last fall, the fundamental principles of farmland preservation in Suffolk County were called into question when the Supreme Court struck down two key amendments of the Suffolk County Farmland Program, ending the county’s ability to issue permits for farm structures on preserved land.

Supreme Court Judge Thomas Whelan, ruled in a suit brought by the Long Island Pine Barrens Society, an environmental advocacy organization, that two amendments spelling out the kinds of farm structures allowed on preserved farmland were in violation of the program, and specifying the kinds of structures allowed on farmland under the program constituted a “giveback” by the County of the development rights sold by the farmer.

Established in 1974, Suffolk County’s Farmland Program is a trailblazer, the first land preservation program in the country enabling farmers to sell their development rights and keep their land as long as it is used for agricultural production. The program saved over 10,000 acres of farmland in Suffolk County preventing the loss of open spaces and local farms, even as communities elsewhere built strip malls and tract houses on every available acre of land.

The County program gave birth to town and municipal land preservation programs such as the Community Preservation Program; initiatives that saved another 10,000 acres of farmland on the East End. The Farmland Program was designed to preserve farming as well as farmland, and in Suffolk County it has done both, making it popular with farmers and the people.

But farms look different today. Four decades ago, corn mazes were not a thing. The East End had one vineyard and about 17 acres of wine grapes under cultivation. Now the East End of Long Island is the third-largest wine-producing area in the country, and local farming has moved away from potatoes and cauliflower to diversified crops, farm stands, pumpkin picking, cut-your-own Christmas trees, and fields of hops for the local craft breweries, all of which have boosted the local economy.

Farms like Shamrock Christmas Tree farm have helped to boost the local economy. • Photo by Doug Young

When the decision came down, Farmer Jeff Rottkamp was in the process of selling the development rights for about twenty acres of his Baiting River property so he could then purchase additional farmland adjacent to his property for two sons who have entered the family business. The court ruling created uncertainty about what rights he was selling, leading Rottkamp to withdraw his application.

The farms on protected County land most likely to be negatively impacted by the current atmosphere of uncertainty about farm structures are the smallest ones, strained by economies of scale and prohibitive cost of acquiring unprotected land on which to build needed structures. In Suffolk County most farms are small, with 35% on fewer than ten acres.

John Halsey is the founder and president of the Peconic Land Trust, a land conservation organization that has helped facilitate land deals struck through the Suffolk County Farmland Program and replicated through similar deals across the country. He described the effect of the September court decision: “If a farmer can’t actually engage in agricultural production on farmland, then what have we done? If you can’t put up a deer fence, if you can’t put in irrigation, if you can’t have a barn to store your crops [in] or put up a hoop house to start your plants, you’ve taken away rights that relate to bona fide agricultural production.  I don’t believe that is the intent of this or any farmland protection program.”

What will the recent ruling mean for centuries-old farms like Wickham’s?

The legal implications of this decision for farmers on county-protected land have not been clarified, and it’s hard to find legislators, county officials, or lawyers who can provide definitive answers. Farmers who have sold their development rights to the County and want to put in a greenhouse or barn are no longer sure these structures will be allowed. This uncertainty, according to Tom Wickham is especially unsettling for farmers at the beginning of a growing season. “Farmers don’t know what they can and can’t do with their property.”

Like the practical outcomes of the court’s decision, the issues that motivated the Pine Barrens Society to sue the County seem murky. Richard Amper, Executive Director of the Society said he was concerned with what he saw as permissive amendments to the Farmland Program. “The law became welfare for agriculture,” he said. But, he added, the suit against the County’s Farmland program amendments should not be interpreted as opposition to farmers or farming, but motivated by his concern that the amendments had not been voted on by the public. “The problem is trying to do through the local laws what should have been done by referenda.”

Suffolk County has filed an appeal to the September decision at the state level. In early January, County Executive Steve Bellone and legislators Al Krupski and Bridget Fleming introduced new county legislation to ensure that reasonable agricultural practices continue to be allowed on preserved farmland. But for this growing season, Suffolk County farmers on County-protected property will likely have to farm without new greenhouses, barns or farmstands to help them grow, store and sell their crops.

The Wickham Fruit Farm was one of the first farms in New York State to grow the Snapdragon variety, an apple so flavorful and crisp that anyone who tastes one wants another. Tom Wickham is optimistic that his enthusiasm for growing apples, and people’s enthusiasm for eating and picking them, will result in a way forward on the question of farm structures on protected land. “There is so much value on each side of this issue that reasonable people should be able to negotiate.”

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Charity Robey

Charity Robey writes about culinary history, cooking, farming and fishing, and tends a sourdough starter she calls “The Beast.” Her work has appeared in The Shelter Island Reporter The Suffolk-Times, and The New York Times.