This blog is the second in a series discussing the ins and outs of Article 25-AA of the Agriculture and Markets Law (AML) and its protections for farm operations including agricultural tourism (or agri-tourism) – such as farm stays and retreats, hotels and resorts, and beverage-based operations such as wineries, cideries, distilleries and breweries.
The Agriculture and Markets Law (AML) ensures that local governments shall not “unreasonably restrict or regulate farm operations” within approved Agricultural Districts. But what happens when local laws or regulations conflict with the State’s policy objectives? In that case, the local law or regulation is superseded by the State policy and is subject to nullification.
New York State’s Department of Agriculture and Markets (the Department) can proceed in several ways:
- Opinion Letter – Upon a request from a municipality, farm owner or operator, the Department will issue an opinion letter as to whether the municipality adopted, proposes to adopt or is administering a law or regulation that will violate AML §305-a by unreasonably restricting or regulating a farm operation. Often, if the Department finds that an unreasonable restriction has or will occur, the municipality will communicate with the Department to develop mutually acceptable modifications to the law or regulation.
- Order – At times, the municipality does not agree with the opinion letter and will not change its proposed law or regulation accordingly. The Department is then authorized to issue Orders to protect farm operations from unreasonably restrictive laws. These Orders are issued on a case-by-case basis only after conducting a thorough review, where both the farm owner/operator and the municipality have the opportunity to submit arguments to the Department. A party disagreeing with the order of the Commissioner could challenge the determination through legal action.
- Direct Action – The Department’s Commissioner also has authority, upon receiving a complaint from a person owning property within an agricultural district, to bring a direct action against a municipality to enforce the provisions of the Agriculture and Markets Law.
Submissions to the Department should be accompanied by legal argument as to why the municipality’s law or regulation unreasonably restricts agriculture and why the assistance of the Department is necessary. The attorneys at Cuddy & Feder, LLP have successfully advocated before the Department on behalf of agricultural operations and are available if you believe a local law may unreasonably restrict your agricultural business.