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In re Application of Long Island Pine Barrens Society Inc.

Supreme Court, Suffolk County

September 28, 2016

In the Matter of the application of Long Island Pine Barrens Society, Inc., RICHARD AMPER, as Executive Director,
v.
Suffolk County Legislature, SUFFOLK COUNTY FARMLAND COMMITTEE and LONG ISLAND FARM BUREAU, INC., Defendants. THOMAS CASEY and ROBERT McGRATH, Residents, Taxpayers and Property Owners, Plaintiffs,

          Plaintiff: Long Island Pine Barrens Society et al Atty: Gordon & Juengst, PC

          Defendant: Suffolk County Legislature et al Atty: Suffolk County Atty. By Leonard G. Kapsalis, Esq.

          THOMAS F. WHELAN, J.

         Upon the following papers numbered 1 to 16 read on this motion by defendants to strike answer, among other things and the cross motion by defendants for summary judgment; Notice of Motions/Order to Show Cause and supporting papers 1-6; Notice of Cross Motion and supporting papers 7-9; Answering papers 10-11; Reply papers 12-13; Other 14-15 (plaintiffs' memorandum); 16 (defendants' memorandum); (and after hearing counsel in support and opposed to the motion) it is, ORDERED that those portions of this motion (#005) by the plaintiffs for an order dismissing the affirmative defenses asserted in the amended answer of the County defendants and for summary judgment on its supplemental and amended complaint is granted to the extent set forth below while the remaining portions of the plaintiffs' motion wherein they seek dismissal of the amended answer served by the County defendants pursuant to CPLR 3126 or for an order compelling further responses is denied; and it is further

         ORDERED that the County defendants' cross motion (#006) to dismiss the plaintiffs' amended complaint is granted to the extent set forth herein; and it is further

         ORDERED that the court hereby declares that Local Laws No. 52-2010 and 44-2013, adopted by the Suffolk County Legislature and codified as Chapter 8 of the Suffolk County Code, are null and void and of no further effect and the defendants are hereby permanently enjoined from granting permits and hardship exemptions to the landowners of PDR properties or undertaking any future action pursuant to those amendments.

         At issue in this declaratory judgment/permanent injunction action is the validity of two local laws adopted in 2010 and 2013 by the County Legislature which amended various provisions of Chapter 8 of the Suffolk County Code entitled "Development Rights to Agricultural Land". Chapter 8 of the 1985 Suffolk County Code codified the County of Suffolk's previously granted authority under a series of local laws, first enacted in 1974, to purchase the development rights portions of agricultural lands in fee from the owners of such lands. In exchange for the County's purchase of these future development rights, known as "PDRs", the sellers conveyed to the County the development rights attached to their premises and agreed to restrict the use of their premises to agricultural production or open space by covenanting the County's right to prohibit or restrict any use of the premises for any purpose other than agricultural production. A portion of the sales tax revenues collected by the County serves as one source of the taxpayer funds expended by the County for its purchase of any PDRs under the terms of each PDR purchase agreement and conveyance.

         Following the 1985 codification of Local Law No. 16-1981 as Chapter 8 of the Suffolk County Code [hereinafter "SCC Chapter 8"], the provisions thereof were amended in 1992, 1997, 1999, 2010 and 2013. The 2010 amendment enacted by Local Law No. 52-2010 precipitated the commencement of this action, during the pendency of which, Local Law No. 44-2013 was adopted and added further amendments to SCC Chapter 8. Each of these local laws are challenged by the plaintiffs in five separately dedicated causes of action set forth in their supplemental and amended complaints.

         In the First and Second causes of action, the targeted local laws are challenged as violative of Article VIII, section 1 of the New York State Constitution, which prohibits gifts, loans or credit by local political subdivision to persons, entities or causes except as provided therein, and Article IX, section 2[c] of the Constitution which prohibits the adoption of local laws that are inconsistent with any of its provisions. The Third and Fourth causes of action contain claims that the subject local laws violate the expressed legislative intent of § 247 of the General Municipal Law, while the Fifth and Sixth causes of action challenge the subject local laws as violative of the public trust doctrine. In the Seventh and Eighth causes of action, the plaintiffs contend that the targeted local laws are inconsistent with prior versions of Development Rights Program Law which required voter approval by referendum of any proposed local law that effects an alienation of the County's purchased development rights. The last two causes of action set forth in the supplemental amended complaint challenge the subject local law as violative of the plaintiff's substantive and procedural due process rights. The plaintiffs thus demand a judgment declaring and setting aside the subject amendments and permanent injunctive relief with respect to further action thereunder.

         The focus of the plaintiffs' claims is that the challenged local law amendments of 2010 and 2013 empower the County, through its co-defendant, Suffolk County Farmland Committee, to "give back" the County's previously acquired PDRs. This "give back", or alienation of PDR rights, is allegedly accomplished by the newly added provisions contained in the local law challenged herein, which allows development of PDR properties by the owners of such properties or their lessees in accordance with permit and hardship exemption processes. These processes were the focus of the 2010 amendments and were expanded upon in the 2013 amendments. All versions of SCC Chapter 8 prior to 2010 expressly prohibited the alienation in any manner, of PDRs, except upon the adoption of a local law adopted and approved by a "mandatory" referendum of the electorate. This provision was changed by the first challenged Local Law 52-2010 [SCC § 8-6], wherein it was provided that all development rights acquired by the County are inalienable except as provided in the Code. SCC 8-6 now states, in relevant part, as follows: "Unless authorized by local law recommended by the Committee and approved upon mandatory referendum, development rights acquired by the County to agricultural lands shall not be alienated in any manner, except where provided herein ".

         Prior to 1992, SCC Chapter 8 defined the term Development Right as follows: "As authorized by § 247 of the New York State General Municipal Law, as amended, shall be the permanent legal interest and right to permit, require, to restrict the use of the premises exclusively for agricultural production as that term is presently defined in Section 301 of the NYS Agricultural and Markets Law and the right to prohibit and restrict the use of the premises for any other purposes other than agricultural production" (see SCC § 8, 1981). In 1992, Local Law 12-1992 expanded the last phrase of the definition Development Right to read, in relevant part, as follows: "... and the permanent legal right to limit, prohibit and restrict its future development for any other purposes other than agricultural production and operation of a farm stand " (see SCC § 8.2, Development Rights as Amended in 1992). Operation of any such farm stand required issuance of a permit therefor by the Farmland Committee. It thus appears from the record before the court, that the permit process was first created by the 1992 amendments, but only with respect to farm stands, and that the Farmland Committee's powers included the authority to its issue such permits to PDR landowners.

         Pursuant to the 2010 amendments, SCC § 8-6 of Code, numerous new agricultural development permits, special use permits and hardship exemptions, were made available to those owning or occupying agricultural lands within the PDR Program. Pursuant to these permit and exemption processes, the owners of such lands or their lessees were allowed to expand permitted agricultural uses by the erection or construction of new or additional structures and the installation of amusements and attractions (see Local Law No. 52-2010; SCC Chapter 8 at §§ 8-8; 8-9; 8-10). Lot coverage limitation and other restrictions are governed by § 8-10(A) and (B), although relief therefrom is available if a hardship waiver is granted under § 8-10(C) of the subject resolution. In no event, however, may the lot coverage of any parcel within the Program exceed 25% of the lot area. The power to hear, grant and deny such permits and hardship exemptions was vested in the Farmland Committee or its successor. The Committee is comprised of 19 members appointed by the County Executive upon approval of the Legislature and one from each of the ten Towns in Suffolk County. These permit and hardship exemption processes are alleged to have been intensified and expanded by the second local law challenged herein, namely, Local Law No. 44-2013 which is now codified as SCC Chapter 8.

         According to the plaintiffs, the sum and substance of the 2010 and 2013 local law amendments is to permit the installation of structures in the form of greenhouses, barns, utilities and alternative energy systems and construction of new or the expansion of existing farm stands, to landowners of agricultural lands, who by contract and conveyance, relinquished their rights to develop their land in such manner in favor of the County. Such development is said to be impermissible under the limited agricultural production use allowed by state and local laws for PDRs and the allowance of such development by the Farmland Committee, alone, effectively destroys the efficacy of the PDRs purchased by the County with taxpayers' money for the benefit of Suffolk County residents.

         Specifically, the plaintiffs contend that the permit and hardship exemptions are illegal and otherwise improper for several reasons. First, it is argued that the development rights previously conveyed to the County for the benefit of its citizenry are impaired whenever permits or hardship exemptions are granted. According to the plaintiffs, the grant of any such permit or exemption effects an "alienation", defined in the code as a "transfer", of the previously purchased development rights by the County in contravention of the letter, spirit and intent of the prior legislation allowing PDRs, which was approved upon referendum by people of Suffolk County. Such a transfer or "alienation" violates the pre-amendment Code provisions which unconditionally precluded any such transfer or alienation without approval by "mandatory referendum". The ability of PDR property owners or lessees to obtain from the Farmland Committee alone, a permit or hardship exemption that ...


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