Limitation on Local Regulation
An increase in the number of non-farm residents in agricultural areas may result in new zoning and regulatory actions by localities which inhibit farming operations. To safeguard against this, §305-a of the ADL prohibits the enactment and administration of comprehensive plans, laws, ordinances, rules or regulations by local governments which would unreasonably restrict or regulate farm operations within an agricultural district, unless it can be shown that the public health or safety is threatened.
The Commissioner may independently or upon a complaint initiate a review of the enactment or administration of a local law. The Commissioner is authorized to bring an action or issue an order to enforce ADL §305-a.
The Department has developed guidelines on the effect of ADL §305-a on enactment and administration of local laws and regulations. These documents are updated periodically and may be obtained by contacting NYS Ag and Markets.
Limits to Publicly Funded Construction or Eminent Domain Projects
Government actions may impact farms and agricultural resources through the acquisition of property interests or funding of infrastructure development, such as sewer and water lines. The ADL (§305, subd. 4) requires that State agencies, local governments and public benefit corporations which intend to acquire more than one acre of land from any active farm within an agricultural district or more than 10 acres in total from a district, must file a notice of intent with the Commissioner at least 65 days prior to taking the action. Similarly, a notice must be filed for all actions where the government sponsor intends to advance a grant, loan, interest subsidy or other form of public funding for the construction of dwellings, commercial or industrial facilities, or water or sewer facilities to serve non-farm structures within an agricultural district.
The notice requirement does not apply in the case of an emergency project which is immediately necessary for the protection of life or property. The notice requirement provides for a full evaluation of the potential impacts of a government sponsored acquisition or construction project on farms and farm resources. The ADL and implementing regulations require a project sponsor to provide information essential to analyzing agricultural impacts along with a report justifying the proposed project.
Upon receipt of a notice of intent that has been determined by the Department to be complete, the Commissioner has 45 days to determine the effect the action would have on agricultural operations within the district.
If it is determined that the proposed action would have an unreasonably adverse effect, the Commissioner may issue an order delaying the action for an additional period of 60 days. During this time, the Commissioner may conduct a public hearing, upon providing public notice, within or accessible to the area affected. On or before the expiration of the 60 days, the Commissioner must report his or her findings to the project sponsor, the public at large and any public entity having the power of review or approval of the action.
The Commissioner may propose that an alternative which minimizes or avoids adverse impacts be accepted. The project sponsor must provide a detailed evaluation and reasons if the proposed mitigation is rejected. At least 10 days prior to commencing the action, the project sponsor must certify to the Commissioner that adverse impacts will be minimized or avoided. The Commissioner may bring an action to enforce mitigation measures. He or she may also request that the Attorney General institute an action to compel compliance with these requirements.
Limitation on Local Benefit Assessments
Improvement projects from local municipalities may include sewer, water, lighting, non-farm drainage, and solid waste disposal. Benefit assessments, special ad valorem levies and other rates or fees for local improvements in certain improvement districts or benefit areas are generally calculated on the basis of the value, acreage, or frontage of the properties benefited. Agricultural operations commonly involve large tracts of land and multiple structures. The ADL restricts assessments for local improvements to a lot not exceeding one-half acre surrounding any dwelling or non-farm structure located on land used in agricultural production in an agricultural district, and to farm structures directly benefited by the services. This limitation does not apply in those instances where the benefit assessments, special ad valorem levies or other rates or fees were imposed prior to the formation of the agricultural district.
Discouragement of Private Nuisance Lawsuits
Agricultural District Law attempts to discourage private nuisance lawsuits in two different ways. First, the Commissioner may, in consultation with the Advisory Council on Agriculture (ACA), issue opinions upon request as to whether a particular agricultural practice is sound (ADL §308). A sound agricultural practice (SAP) refers to the practices necessary for the onfarm production, preparation, and marketing of agricultural commodities. An agricultural practice conducted in an agricultural district or on land receiving an agricultural assessment shall not constitute a private nuisance provided that the practice is determined to be an SAP pursuant to an opinion of the Commissioner. The Commissioner is also authorized, in consultation with the ACA, to issue advisory opinions on a case-by-case basis as to whether particular land uses are agricultural in nature.
Second, prospective buyers are notified that the property is within an agricultural district prior to purchase. The buyer is given the statement below to sign, acknowledging the purpose and scope of agricultural districts.
“It is the policy of this state and this community 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. This disclosure notice is to inform prospective residents that the property they are about to acquire lies partially or wholly within an agricultural district and that farming activities occur within the district. Such farming activities may include, but not be limited to, activities that cause noise, dust and odors. Prospective residents are also informed that the location of property within an agricultural district may impact the ability to access water and/or sewer services for such property under certain circumstances. Prospective purchasers are urged to contact the New York State Department of Agriculture and Markets to obtain additional information or clarification regarding their rights and obligations under article 25-AA of the Agriculture and Markets Law.”
Policy of State Agencies
The ADL (§305, subd. 3) directs all State agencies to encourage the maintenance of viable farming in agricultural districts and directs the modification of their administrative regulations and procedures to effectuate this policy insofar as is consistent with the promotion of public health and safety and any federal laws, standards, criteria, rules, regulations, policies or requirements, including provisions applicable only to obtaining federal funding.