SUFFOLK CLOSEUP - Pine Barrens Society Lawsuit Loss Is A Win

By Karl Grossman

The lawsuit brought by the Long Island Pine Barrens Society, which would have crippled Suffolk County’s visionary and nationally heralded Farmland Preservation Program, is no more. 

New York’s Court of Appeals, the state’s highest court, refused to consider it and the society has abandoned its last chance for a “re-argument” before that court.

The society’s lawsuit claimed that allowing “structures” on preserved farmland, as permitted by amendments to the Farmland Preservation Program, was not legal.

One judge, State Supreme Court Justice Thomas Whelan, ruled in 2016 in favor of the lawsuit. State Assemblyman Fred W. Thiele, Jr., an attorney and former Suffolk legislator, said Justice Whelan “basically misconstrued what the county’s original intent was—to prevent the development of farmland but still allow typical and acceptable farm practices to be utilized. Under the program, farmers have been “entitled” to build sheds, barns and other structures. “The idea was that farming is dynamic and that there would have to be changes in the future.”

Suffolk County appealed the judge’s ruling. It retained a law firm that has long fought for the environment, Riverhead-based Twomey, Latham, Shea, Kelley and Quartararo. The appeal was handled by a partner in the firm, Lisa Clare Kombrink, who has a specialty in farmland preservation as former Southampton Town attorney.

Justice Whelan’s judicial superiors on the Appellate Division of State Supreme Court last year reversed his ruling. Still, the Pine Barrens Society pushed for the Court of Appeals to step in. It refused. On December 27, 2018 came the deadline for the society to seek a “re-argument” on getting the high court to consider the case. The society let the deadline pass.

The legal brief prepared on behalf of Suffolk County by Ms. Kombrink was strong. “Now,” it stated, “under the two amendments which have been invalidated, farmers cannot build a barn, install irrigation or underground utilities, or offer hayrides or ‘you-pick’ for strawberries or other crops grown on their property….The impact is so extreme that farmers cannot even put up a fence to protect their crops from predator animals.”

“In essence,” it said, Justice Whelan “has ruled that the Suffolk County Farmland Preservation Program is meant to preserve open space, and not lands used in agricultural production.” The brief declared that the ruling “contradicts” various New York State laws that it enumerated, “all of which recognize the importance of farmland, farming and agricultural production as an important natural and economic resource in the state.”

If the Pine Barrens Society lawsuit had won, it would have undermined the Farmland Preservation Program begun in 1974. As John v.H. Halsey, president of the Peconic Land Trust, itself long involved in conservation including of farmland, commented: “If we want farmland to be farmed we have to allow farmers to do what we told them they could do when they sold their development rights. They retained the right to build structures. They never sold that right to the county and the county didn’t buy it. Suffolk’s Farmland Preservation Program, the first of its kind in the country, was created to protect not only farmland but farming. Farm operations by definition are the land, the structures, the improvements and the practices necessary to perform agricultural production.”

The program is based on the brilliant and then novel idea of purchase of development rights. Farmers are paid the difference between the value of their land in agriculture and what they could get for it if they sold it off for development. In return, the land is kept in agriculture in perpetuity. The Suffolk program has been emulated across the nation.

Suffolk Legislator Al Krupski, a fourth-generation Suffolk farmer, is “very happy” with the outcome of the matter. Ms. Kombrink did “a very good job.” If the lawsuit had succeeded, “it would have been very damaging to farming in Suffolk County going forward.” He added, “My thanks to the county executive” for his leadership on the appeal. Suffolk Executive Steve Bellone had said that if Justice Whelan’s ruling stood, it would “effectively gut the Farmland Preservation Program. If farmers can’t do the things necessary to run a successful operation, we can’t have farming here anymore.”

Ms. Kombrink comments that the “answer” to claims raised in the Pine Barrens Society lawsuit “seemed obvious. Farmers need to build structures such as barns, fences and irrigation equipment to farm their land. I am very grateful that the courts agreed and recognized this basic and very important principle” and decided “in favor” of Suffolk County.

For her, said Ms. Kombrink, “working on the case was one of the highlights of my career.” It is also one of the highlights in the history of farming in Suffolk. As a result of its  Farmland Preservation Program, Suffolk continues as a top agricultural county in the state with farming a major industry and a key to another big industry here, tourism.

Karl Grossman is a veteran investigative reporter and columnist, the winner of numerous awards for his work and a member of the L.I. Journalism Hall of Fame. He is a professor of journalism at SUNY/College at Old Westbury and the author of six books.