With New York State ready to press play after several months of being on “PAUSE” in response to Governor Cuomo’s Executive Order amidst the COVID-19 pandemic, the phased reopening of New York’s economy will be an ongoing process in the coming months.
Like many other sectors of New York’s economy, agricultural tourism (or “agri-tourism”) – such as farm stays and retreats, hotels and resorts, beverage-based operations like wineries, cideries, distilleries and breweries, and on-farm events such as farm stands, “U-pick” and harvest festivals which are designed to market and promote the farm’s crops and other products – were booming before the PAUSE. However, with new social distancing policies and guidelines, now more than ever agriculture and agricultural-related uses in the Hudson Valley and surrounding areas in New York will rely on creative adaptation to survive and thrive amidst the new realities confronting the industry.
An important aspect of agriculture and its corresponding adaptive regrowth is understanding the dynamic between local regulation and the State’s interest in protecting and enhancing agricultural land and farm-related uses. Indeed, the interest in protecting and promoting agriculture is not limited to traditional crop-based farming and rearing of livestock, but also applies to beverage-based facilities, equestrian uses and even emerging markets such as industrial hemp and cannabis-based products. To further this interest, the State Legislature enacted Article 25-AA of the Agriculture and Markets Law (“AML”) with the express purpose of conserving, protecting and encouraging the development and improvement of agricultural land relative to local ordinances. Article 25-AA of the AML executes its legislative intent through County agricultural districts which provide various benefits such as tax exemptions,1 protection from unreasonably restrictive local regulation and right-to-farm laws.
This blog is the first in a series that will explore the ins-and-outs of Article 25-AA of the AML while largely focusing on the local land use entitlement process and the many ways agricultural and farm-related businesses are protected from unreasonably restrictive local regulation. AML Section 305-a provides that local governments “shall not unreasonably restrict or regulate farm operations within agricultural districts.” Farm operations include the land and on-farm buildings, equipment and practices which contribute to the production, preparation, and marketing of crops, livestock, and livestock products as a commercial enterprise. Farm operations also explicitly include commercial horse boarding and equine operations, as well as timber operations and compost, mulch and other biomass crops.
To assist in implementing the protections provided by Section 305-a, the New York State Department of Agriculture and Markets (the “Department”) issues guidelines as to the types of local regulations that will, in their opinion, unreasonably restrict or regulate farm operations within established County agricultural districts.2 Such guidance documents include guidelines for review of local laws affecting direct farm marketing activities,3 as well as local laws affecting farm distilleries, breweries and wineries,4 to simply name a few. The Department regularly updates these guidelines to reflect changes in the agricultural industry and the state’s legislative policies affecting same. In light of the COVID-19 pandemic, it is expected that updated guidance will be issued as the state looks to further support the industry.5
The protection from unreasonably restrictive local laws offered by AML Section 305-a will continue to play an important role in the adaptive regrowth of agriculture in the Hudson Valley and New York State. The experienced Land Use, Zoning + Development team at Cuddy & Feder is available to advocate on your behalf to ensure your agrarian business can grow without unreasonable local restriction and maintain its essential contributions to the economic stability and growth of the local community and State as a whole.
- Tax implications should be reviewed by a qualified tax professional.
- https://agriculture.ny.gov/system/files/documents/2019/11/305-afarmmarket.pdf (revised September 30, 2019).
- For example, as social distancing protocols call for the avoidance of crowds, reducing agri-tourism businesses to carry-out, delivery and retail while the state remains on PAUSE, the State Liquor Authority relaxed its strict regulations to allow farm breweries to take orders from persons not at the premises for delivery of beer.