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Beating plowshares into townhomes: the loss of farmland and strategies for slowing its conversion to nonagricultural uses.

I. INTRODUCTION

Despite efforts to preserve prime agricultural land for production, farmland continues to be converted at a rate of around 1.5 million acres per year in the United States.(1) Farming is a productive industry which generates revenue and contributes to local economies. It also provides jobs to rural residents and is the cultural cornerstone of many rural communities. Farmland has significant environmental value for wildlife habitat, is a land use compatible with wetlands protection and stormwater filtering, and provides scenic open space and natural buffers between conflicting land uses.

The farming industry has an important role in rural communities. It supports many rural jobs and undeniably contributes to, if not shapes, much of rural culture. For example, in Hood River and Sherman Counties, Oregon, and Klickitat County, Washington, the agricultural sector represents 20.2%, 31%, and 13.3%, respectively, of the total employed population in each county.(2) The agricultural sector employs 12.7% of the total employed population in the Mid-Columbia Economic Development District, which covers five counties along the Columbia River.(3) Another example is California's Central Valley, where one in ten jobs statewide "is tied to farming,"(4) and urban sprawl is expected to destroy 12% of the state's farmland in the next forty-five years.(5) These numbers reflect, and likely underestimate, the importance of agriculture for many other rural communities throughout the United States.

In rural areas, farming operations have a mutually dependent relationship with nonfarming industries which either supply farm services or incorporate farm output into marketable products. These supporting industries supply the production inputs, the transportation and the marketing needs of the farm operation,(6) and offer many of the nonfarm jobs in an area. Farming also supports jobs for rural people who use farm products to make specialty foods or artistic items to sell to tourists, urban areas, or local residents. If farming is no longer a viable industry in rural communities, other dependent industries and services will experience a decline. This will result in a gap in the job market for rural residents.(7)

Preserving agricultural land also benefits the local tax base. Local governments typically rely upon property taxation to fund public services. Many of these governments have operated under the myth that new development is an effective tool to increase the property tax base. Ironically, this approach results in revenue losses due to the relative revenue contribution and costs of residential development compared to farmland, open space, or forest land preservation. In studies of land use development in Minneapolis and St. Paul, Minnesota(8) and three Massachusetts towns.(9) the relative revenue contribution of farmland to the cost of servicing farmland results in a surplus to county governments. For every dollar raised from taxing farmland, open space, or forest land, the cost of services averaged fifty cents in the Minnesota study,(10) and averaged thirty-three cents in the Massachusetts study.(11) Meanwhile, the cost of delivering services to expanded residential development outweighed the increase in apparent revenue produced. The costs associated with roads, sewers, parking lots, schools, and police and fire departments resulted in a revenue to cost of services ratio of $1 to $1.04 in Minnesota,(12) to $1 to $1.12 in Massachusetts,(13) Because agriculture contributes to the local tax base without the costs attributed to urban development, it is an important asset for communities to preserve.

In response to its decline, governments at the federal, state, and local level have pushed to develop policies to protect farmland. During Washington's King County Farm Advisory Committee's study of programs designed to conserve farmland, the group identified over seventy strategies being used throughout the country.(14) These strategies aim to prevent direct conversion of farmland to nonfarm uses, or indirect conversion of farmland due to harsh financial and legal conditions,(15) In describing in detail some of the efforts at the county, state, and federal level to protect farmland, this Article concludes that the farmland preservation program, which addresses all or most of the social and economic factors that influence farmland conversion, will be the program most effective in achieving its goals. In addition, those programs which continue to evolve to address changing social and economic circumstances, and those which address fairness to individual landowners will more likely prevail in protecting farmland. The efforts described in this Article range from agricultural districts, exclusive agricultural zoning, taxation methods, and the purchase of development rights through transfer of development rights programs and conservation easement programs. Review of these individual programs suggests that the best approach may be to borrow and combine attributes from each one. This would result in a program with exclusive agricultural zoning, the purchase of development rights, and legal and financial protections for individual farmers.

Although not directly discussed in this Article, many governmental bodies use taxation to encourage farmers to keep their land in production or to discourage developers from engaging in speculation.(16) Most of the programs discussed below incorporate some form of taxation in order to influence behavior. Because the financial benefit resulting from tax incentives or penalties is small compared to the value of farmland on the open market, taxation alone will not likely result in the long-term protection of farmland.(17)

The most typical taxation methods employed by local governments are differential assessments, deferred taxation, and restrictive agreements. Under the pure differential assessment method, agricultural land is taxed at a value that reflects only its agricultural use, despite its development potential.(18) Because this method has no penalty provision for converting farmland to nonfarm uses, it is merely a financial buffer for current farmers, yet has limited value for preventing conversion. Under deferred taxation schemes, all of the tax savings which resulted from the differential tax must be repaid upon conversion of the land from agricultural purposes.(19) This penalty tax, or recapture of lost taxes, is likely to become a cost of business for developers or farmers whose profit from the sale far exceeds any penalty.

Restrictive agreements are a binding, contractual agreement between landowners and the government. In exchange for the landowner's promise to keep the land in agricultural use, the local government may have limited authority in making land use decisions within the agricultural area, and must tax at the agricultural value. A breach by the landowner subjects the landowner to a heavy tax penalty.(20) For example, under the Williamson Act(21) a landowner agrees to a minimum ten-year contract period(22) with automatic yearly renewals(23) and a ten-year notification of non-renewal.(24) However, the timing requirement favors developers who can afford to buy and hold land for the contract period and incur no penalty. None of these methods can protect farmland over the long-term since the speculative value of the land would exceed either the tax saving or the tax penalty. The profit motive is particularly exaggerated in areas subject to intense development pressure.

A primary factor in the conversion of productive farmland is the real estate market's speculative pricing of farmland. Real estate speculators stand to profit exorbitantly from purchasing a parcel in low-density use and converting it into a high-density marketable product. Low-density farming operations which lie on the fringe of urban development are particularly vulnerable "[s]ince suburban land values average 1800% more when utilized for building purposes than for cultivation or grazing."(25) Also, developers purchase rural land because it is relatively inexpensive, and it is in large, contiguous parcels of land suitable for commercial, industrial, recreational, and housing development. Farmland is perfect for nonfarm development because it is in "large parcels of level land that are relatively free of vegetation and with adequate drainage."(26) Investors from the United States and even from abroad view land purchases as a wise investment which often outperforms the general price index and the common stock market.(27) Controlling the effects of land speculation on rural, yet developable, land is crucial to long-term farmland protection.

Farmland protection policy must address the social and economic factors which influence individual farmers' decisions to continue farming or enter into farming. Without resolving these issues, only the farmland base may be preserved while the culture that understands how to farm it will inevitably die out. This would clearly be a failure in farmland protection policy. The combination of rising land prices leading to rising property taxes and the potential to profit from developers' offers to buy will influence many farmers to retire from farming, and deter many farmers from entering the business or expanding their production levels. In King County, for example, recent sales prices indicate that the asking price for farmland has reached $100,000 per acre in some areas.(28) If farmland is unaffordable for actual farmers to buy, the preserved land base may be aesthetically pleasing, however, the economic and cultural values of farmland will be lost.

A farmer's age, health, interest in a nonfarm occupation, interest in moving to another part of the country, and children's interest in fanning, will undoubtedly influence his or her decision to sell his or her farming operation. The King County Advisory Committee reports that 50% of all United States farm assets are held by farmers age 55 and above.(29) Farmland policy which focuses upon promoting future farmers to whom retiring farmers can sell is crucial to ensuring that the farmland base is not only protected but remains productive to benefit local and state economies.

Lastly, both current and future farmers consider the profit potential and the attractiveness of the lifestyle of farming. Where farming appears practicably impossible or psychologically unappealing due to the risk of legal nuisance suits, expensive governmental regulation, or a lack of farm labor, supplies, services, infrastructure, or technical support, farmers will choose to leave or never to enter the business.(30)

Exclusive agricultural zoning is an essential tool for protecting the land base. It works to prevent windfall profits from real estate speculation, to preserve large blocks of land in commercial farming, and to keep out incompatible uses which make farming more difficult. However, because land use zoning is the result of a political process, its long-term success depends upon ongoing citizen acceptance and support of the land use restrictions. This support results from an appreciation that the zoning is substantively and procedurally fair, and will save important resources, including a community's quality of life. A favorable political climate should influence the legislature to adopt competent legislative goals and strong legislation to implement those goals, and will facilitate the implementing agencies' ability to properly enforce the regulations. Unfortunately, even with citizen support many zoning decisions at the legislative, agency, or county level may be more influenced by discrete business or political interests, resulting in policy which favors short-sighted development over long-term protection.

Unfortunately, zoning does not necessarily address fairness to individual land owners or farmer profitability, and its political nature makes it inadequate to deal with long-term protection of agricultural land. Where agricultural zoning may result in hardship to individual landowners, transfers of development rights and conservation easement programs implemented by local or state government can alleviate hardship and enhance political support for restrictive zoning. Restrictive zoning is essential to the use of either of these tactics because it provides the conceptual framework for the trading of development rights. It also limits the amount of development to which a landowner is entitled, thereby ensuring that the government has sufficient funds to carry out the program.

Furthermore, unlike zoning, both transfers of development rights and purchases of conservation easements can protect farmland forever. Effective zoning depends upon a legislature and implementing agencies which support the protection of farmland through effective policy. Where politics and private property rights are at stake, however, farmland preservation may be compromised in favor of landowners, developers, and county officials who perceive an unbridled right to develop agricultural land. Where zoning may change with the political climate, the purchase of development rights legally restricts property in perpetuity. These methods therefore ensure that resource land will not be sacrificed to competing political and business interests.

However, the purchase of development rights in conjunction with agricultural zoning does not resolve problems with farmer profitability and the appeal of farming as a business and a lifestyle. Agricultural districts are an effective supplement to agricultural zoning in order to protect current farming and secure the area for farming in the future. Agricultural districts may include tax breaks, education and training, marketing, money for infrastructure, and protection from eminent domain and nuisance suits. These programs help to keep farming profitable and attractive as a lifestyle choice. Despite the importance of agricultural districts and the programs which are associated with them, they alone cannot protect farming for the future. Without agricultural zoning, developers and farmers still have speculation value land prices tempting them to convert farmland to higher density uses. Without a purchase of development rights program, long-term protection may be compromised.

II. EXCLUSIVE AGRICULTURAL ZONING

Oregon and the Columbia River Gorge National Scenic Area are examples of exclusive agricultural zoning. Farmers within these jurisdictions are protected by deferred tax assessment, right to farm laws, and extension agents for technical support.(31) However, experience with exclusive agricultural zoning highlights potential problems with a farmland preservation program which relies too heavily upon zoning to the exclusion of other important tools.

In 1973, Senate Bill 100 created Oregon's statewide planning program.(32) The program requires every city, county, and regional agency in the state with planning authority to adopt a comprehensive plan which is consistent with the state's nineteen goals.(33) These goals range from citizen involvement to recreation to the protection of the state's important natural and historic resources.(34) In general, the system designates urban growth areas in which more intensive urban uses like residential, commercial, and industrial development may occur, while areas outside of the Urban Growth Boundary (UGB) are protected, mostly for commercial agriculture and forestry.(35)

Responding to the importance of the agriculture and forest products industries which account for about 40% to 45% of the state's economy,(36) the Oregon Legislature passed Goal 3 of the Statewide Goals to set up the framework for Exclusive Farm Use (EFU) zones. It permits farm uses or nonfarm uses in resource areas as long as they do not have significant adverse effects on accepted farm or forest practices. Goal 3 also requires counties to set minimum parcel sizes which are appropriate for maintaining existing commercial agricultural enterprises.(37) Following the passage of Oregon's comprehensive system, the conversion of farmland to urban development slowed from a rate of 30,000 acres per year in the 1960s and 1970s, to an average of 10,000 acres per year during 1982 through 1992.(38)

Oregon's system is effective in planning development throughout the state. However, the land use goals, the statutes and regulations implementing the goals, and the implementation of the states' requirements by counties, create significant problems. For example, politics, problems in drafting ordinances to achieve the goals of the state, and lack of enforcement of the ordinances at the county level, all undermine the goals of protecting farmland. About 3,000 acres of the total Oregon farmland lost each year is due to changes to the local land use plans to allow UGB expansions and rezonings.(39) Currently, eight urban areas have proposals to expand their UGB, which would come at the expense of farmland.(40) Goal 14 of the Statewide Planning Goals requires that the "[e]stablishment and change of the boundaries shall be based upon... [r]etention of agricultural land as defined, with Class I being the highest priority for retention and Class VI the lowest priority ...."(41) Although this provision favors farmland, there are social and economic forces which influence the urbanization of rural areas based upon criteria like the need for housing, employment and livability, and the demonstrated need to accommodate long-range population growth.(42) Clearly these are legitimate and important criteria. However, the need for housing to accommodate long-range population growth is a subjective standard, and cities and counties may fight for urban expansion despite the ability to increase density within urban areas through rezoning, promoting mixed use, and dense commercial development.

Another problem is the destruction of productive farmland due to the legislative choices that permit a wide variety of uses, outright or conditionally, in EFU zones. Uses like nonfarm dwellings, golf courses, schools, RV parks, personal use airports, mineral and geothermal exploration and processing, churches and nonprofit parks, playgrounds or community centers are a threat to productive land.(43) The Land Conservation and Development Commission's (LCDC) Exclusive Farm Use Report for 1994 and 1995 documents that 254 uses other than dwellings were approved during 1994. These included "four personal airstrips, ten bed and breakfasts, two churches, four dog kennels, three golf courses, six private parks, eight road improvements and four schools."(44) Year by year the cumulative effects of these uses will begin to affect the quality and availability of farmland. Despite the goals to protect and enhance farmland, the legislative choices undermine the goals.

As a result of weak or misguided statutory and regulatory provisions, farm dwellings have been constructed by individuals who have no intention of fanning. This situation threatens to create rural residential areas with large lots, yet with no productive use of the land. The farm dwelling regulations were designed to ensure that prime farmland would be used for commercial production. In order to build a home on "`high-value farmland'--soils that are prime, unique, Class I, Class II, or that support certain key crops," applicants had to show that the dwelling was customarily provided in conjunction with farm use.(45) Before 1994, the statutory standard was interpreted to mean that "all contemplated farm use on a parcel must be commenced before a farm dwelling can be allowed...the rule does not require the full establishment of all planned farm uses in all cases as a condition precedent to the building of a primary farm dwelling on any EFU parcel."(46) Once an individual invested enough into the farming operation to ensure that it was not a cover for simply building a home, the applicant could receive a building permit to construct a farm dwelling.

A study commissioned by the Department of Land Conservation and Development (DLCD) in 1991 found that a majority of farm dwellings approved between 1985 and 1987 were not being used in conjunction with commercial farm use.(47) The report concluded that "[a] significant number (14%) of farm dwelling approvals report no management or that all the land is leased out," and seventy-five percent of the farm operations with new farm dwellings grossed less than $10,000 annually.(48) The peril illustrated in these findings is that prime agricultural lands are converted to rural residential areas with, at best, hobby farms with no real economic value to the state or the county.

As a result of these findings, the Oregon Legislature passed House Bill 3661 which distinguished between high value, nonfarm, and other land within the EFU zones.(49) On high-value farmlands, DLCD had authority to change the farm dwelling rules to require applicants to show the actual ability to produce $80,000 in income. Before receiving approval for a dwelling, the land must be currently employed for farm use, must have produced at least $80,000 in gross annual income in each of the last two years or three of the last five years, must have no other dwelling on the tract, and the person occupying the dwelling must produce the farm income.(50) An applicant can use farm receipts, tax records, or some proof of farm income which is acceptable by common business standards to prove the actual income requirement.(51) Although $80,000 seemed a high standard, farms and ranches typically have an overhead of eighty percent or more, resulting in a net profit of around $16,000, not an unrealistic standard when testing for a commercial farm operation.(52)

After the new rules came into effect, LCDC found that the number of dwellings approved on high value farmland decreased from the previous year's all-time high.(53) The drop in farm dwelling approvals on all farmland in Oregon dropped from 372 in 1994 to 149 in 1995.(54) LCDC attributed this change directly to HB 3661 and LCDC's new farm dwelling rules.(55) Oregon's experience with writing statutory standards and implementing regulations to achieve the goals of protecting farmland illustrate the difficulty in translating public objectives into reality.

Because counties are the principal administrators of Oregon's land use system, their cooperation, proper application of the state's goals, and strict enforcement of conditions are essential to the comprehensive land use system. There is some evidence of enforcement problems under Oregon's system which threaten the protection of contiguous units of agricultural land. For example, in the late 1980s citizens of Jackson County became concerned with excessive building on farm and forest land. In response, the citizens formed the Jackson County Citizens League to supplement LCDC's enforcement.(56) Citizens, non-profit watchdog groups, and the state agencies have the ability to police counties. However, violations are often times difficult to detect, and require substantial research on the part of these groups. Whether there is time and resources to accomplish such oversight will affect the success of land use protections.

Experience in the Columbia River Gorge National Scenic Area illustrates the problems which arise when citizens feel resource protective standards impose too much hardship on individuals. When many have this perception, the goals of farmland protection will most likely be compromised in the interest of individual land owners. The issue of the aggregation of substandard parcels illustrates this problem. Aggregation is a practice much like phasing out legally created, yet nonconforming, uses. Where parcels were legally created, yet the subsequent passage of larger minimum parcel sizes makes the parcel substandard, landowners are required to aggregate all substandard and contiguous parcels under common ownership for development purposes.(57) Landowners may sell the aggregated parcels, however the parcels would not be qualified for development purposes. Multnomah County, Oregon's ordinance governing non-National Scenic Area lands has explicit aggregation requirements.(58) This policy may present some hardship to landowners, but aggregation is necessary to the long-term protection of large blocks of resource land for agricultural production, and to prevent the slow, yet persistent, presence of nonfarmland uses.

Under the National Scenic Area Management Plan, an aggregation policy is arguably required under the large-scale agriculture farm dwelling provisions.(59) A land owner can construct a home on a farm unit, not a legal parcel, if the home is in conjunction with an agricultural operation on that farm unit.(60) The language and the administrative history indicates that the Gorge Commission did not intend to allow homes on every legal parcel in agricultural areas since most farms constitute multiple deeds describing pieces of the entire farm.(61) They opted for development on farm units, which would require an aggregation of parcels to meet the minimum lot size in the area. This would allow farmers to sell off pieces of their farm unit which met the minimum lot size for the area, and to keep the remaining farming operation for personal use. However, many residents of many counties are hostile to this federally created land use system, and are likely to actively oppose the system if perceived land use rights are taken away.(62) There is little more sacred than the strong belief that a legally created parcel is a legal entitlement to convey and develop the parcel.

Lois Jemptgaard's property is an example of the need for an aggregation policy. Ms. Jemptgaard owns 335 acres of farmland located in Skamania County, Washington. The entire parcel is recorded under eleven separate deeds,(63) but the parcel is located in an 80-acre minimum, large-scale agricultural designation. Because the minimum parcel sizes are set to reflect the size of a farm unit which is a viable commercial operation, her farm would have four developable parcels even after aggregation. Each of those developable parcels would represent an area of land which could sustain commercial agriculture.

Unfortunately, in their acquiescence, Skamania County and the Gorge Commission interpreted the provisions not to require aggregation. Jemptgaard had the right to sell a 25-acre legally created parcel to Dean and Dicta Mills. The couple was granted approval to construct a single-family dwelling in conjunction with a ginseng operation which, on paper, barely met the Scenic Area's weak $40,000 income requirements. The combination of the weak income requirement with the right to sell off and develop every legally created parcel will result in the conversion of farmland to a rural residential community in Skamania County. Where zoning has shaky political support, it is likely that ordinances will be drafted and implemented in a way that undermines protection in favor of landowner claims of rights.

Despite the importance of Oregon's and the National Scenic Area's experience with an exclusive farm use zone, success in this area depends upon the exercise of rational policy judgments by politicians, agency officials, and each county on how, where, and when an area should grow. Legislative changes can weaken resource protective measures, which thereby restrict agency authority to implement protective regulations. Even if legislative and regulatory provisions are farmland protective, counties cooperating to implement and enforce their ordinances are an essential link to the success of farmland protection measures. Citizen groups and agencies may appeal or bring enforcement actions where counties are remiss in their enforcement of farmland protection. However, without sufficient funding and staff this safety valve will not work in every county across the state.

Neither of these exclusive agriculture systems directly addresses farmer profitability, individual fairness, and the long-term goals of protection. If farming is not financially feasible, it is difficult to justify locking up land for commercial agricultural production. Individual land owners who feel unfairly treated under the zoning restrictions will promote negative publicity. This results in weaker standards of protection, either due to the statutory or regulatory language, or local interpretations of these standards. Rational policy for farmland protection should not rely solely upon the political climate and should instead work to secure its protection into the future.

III. AGRICULTURAL DISTRICTS: TWO SYSTEMS COMPARED

New York State and King County, Washington offer two examples of "agricultural districts" designed to protect farmland. While both of these programs present important economic and legal protection for farmers, King County's agricultural districts will more likely protect farmland over the long run. New York State's program is effective in protecting current farming, but it is not designed to control the influence of real estate speculation. Suffolk County's experience with purchasing development rights within New York's agricultural district framework illustrates that purchasing these rights is essential yet prohibitively costly where real estate speculation is allowed to influence the urban development of farmland. King County's agricultural districts, however, go beyond the general concept of an agricultural district to resolve this economic problem by combining agricultural zoning and the purchase of development rights.(64) Also, King County is currently reviewing the success of its efforts and beginning to develop programs to combat many of the social and economic factors which influence conversion.(65)

The generic term "agricultural district" implies areas in which farming operations enjoy legal and financial protections. A landowner with a certain amount of acreage voluntarily enters into a binding agreement with authorities for a number of years during which the landowner enjoys special tax treatment and freedom from eminent domain.(66) If the landowner adopts a nonagricultural use during this period a heavy penalty tax is incurred.(67) Local authorities' ability to build infrastructure and services into the areas is limited.(68) Furthermore, the ability of agencies to tax through special assessments against the landowner is prohibited, and local governments can only regulate farming practices where public health and safety factors are at issue.(69)

A. New York's Program

In 1971, noting that the vitality of agriculture is integral to the economic stability and growth of local communities and the entire state,(70) New York enacted the Agricultural Districts Law and declared it "the policy of the state to conserve, protect and encourage the development and improvement of agricultural land for production of food and other agricultural products."(71) In 1992, the state legislature passed the Agricultural and Farmland Protection Program which authorizes the Commissioner of Agriculture and Markets to provide financial and technical assistance to counties for their farmland protection efforts.(72) These laws set up the local and state administrative framework for agricultural districts which provide financial and legal incentives to counties and individual farmers to preserve farmland for agricultural production.

To date, there are 411 agricultural districts in the state(73) protecting 8,480,666 acres of farmland.(74) Fifty-one locally appointed county agricultural and farmland protection boards advise the county legislative body and work with county planning boards on issues of district modification, continuation, and termination.(75) County planning staff review agricultural districts every eight years.(76) The aggregate result of these reviews shows that of the 8,480,666 acres which are enrolled in agricultural districts, 6,321,310 acres are being used for agricultural production on 22,851 farms. Since 1994 the number of enrolled acres has increased by 144,216 acres, the amount of acres in production has increased by 2,424 acres, and the number of farm operations enrolled has increased by 519 farms.(77)

Unfortunately, the increasing enrollment belies the truth of farmland protection in New York. Outside of the districts, the state lost over 700,000 acres of farmland and approximately 10,000 farms between 1982 and 1991.(78) Federal studies indicate that 58% of New York's agricultural production areas are within developing areas, and that 38% of these areas lie within counties which are immediately adjacent to developing areas.(79) These studies show that the potential for farmland conversion in New York is severe and has not been adequately dealt with through the current agricultural district structure.

While the agricultural districts program is important for the financial and legal security of an individual farmer, and perhaps slows down the process of conversion by making farming a more attractive business, the program does little to prevent the pressure "to sell farmland at relatively high prices to speculators who anticipate receiving local approval for nonagricultural land uses."(80) The nature of the districts, the benefits that accrue to landowners within a district, and the existing limitations to converting agricultural land within a district to a nonagricultural use, illustrate this situation.

1. Creation of Agricultural Districts

There are two methods by which an agricultural district may be created in a county. An owner or owners of land may propose to the county legislative body the creation of an agricultural district if the owner (or owners) owns the greater of at least five hundred acres or at least ten percent of the land proposed to be included in the district.(81) Secondly, the Commissioner of Agriculture and Markets may create a district which covers any land in units of two thousand or more acres which is not districted by the county.(82) A county legislative body may terminate a district if the area in the district is no longer predominantly viable agricultural land.(89) Despite the benefits that may result due to the creation of an agricultural district, if the underlying agricultural land use is changed to nonfarm uses over the years, the agricultural district will be terminated.

2. Benefits to Agricultural Operators

Agricultural operators within a district enjoy various benefits. Owners using land for agricultural production may apply annually to receive the agricultural assessment rather than the market value of their land for tax purposes.(84) Farmers may qualify if they own at least ten acres and their gross sales average of agricultural products is at least $10,000. If the gross sales average is at least $50,000 then the ten-acre minimum does not apply.(85) Once a landowner converts the parcel or parcels through an "outward or affirmative act changing the use of agricultural land,"(86) which does not mean the nonuse or idling of such land,(87) a heavy penalty results. The landowner must pay "five times the taxes saved in the last year in which the land benefited from an agricultural assessment, plus interest of six percent per year compounded annually for each year in which an agricultural assessment was granted, but not exceeding five years."(88)

Farmers are also exempt from taxation for farm buildings. The tax law grants a ten year property tax exemption on new or reconstructed farm buildings.(89) Under recent legislation some farm structures are exempted entirely from property taxes.(90) Structures like silos, feed grain storage bins, commodity sheds, bulk mill tanks and coolers, and manure storage and handling facilities receive this exemption.(91) In all, the agricultural assessment and farm building exemption tax laws result in $57 million in property tax relief annually.(92)

The agricultural district laws also restrict the legislative authority of state and local governments. A local government cannot enact laws which unreasonably restrict or regulate farm structures or practices unless they are justified by public health and safety.(93) This type of restriction applies to state agencies as well.(94) There are also limitations on imposing benefit assessments, special ad valorem levies, or other rates or fees in certain districts or areas.(95) Furthermore, any state agency, public benefit corporation, or local government intending to acquire land, or to construct or fund the construction of dwellings or facilities to serve nonfarm structures, must use all practicable means to meet the goals of the Agricultural Districts law and must choose alternatives to the maximum extent practicable to minimize adverse impacts on agriculture.(96)

Lastly, agricultural operators within districts enjoy protection under a right to farm provision. As long as an agricultural practice is a sound agricultural practice pursuant to an opinion by the commissioner, it cannot be the basis of a private nuisance lawsuit.(97) Before the sale or exchange of real property partially or wholly within an agricultural district, the grantor must provide notice that the property lies within a district and that farming activities, such as those with noise, dust, and odors, occur within the district.(98)

Despite the state's efforts, local town ordinances are the final decision makers on whether farmland is permitted to convert or not. State law does impose some restrictions on local governments' otherwise broad powers to govern their own affairs.(99) For example, local governments must enact comprehensive plans and local land use ordinances, rules, or regulations in a manner that realizes the goals and policies of the Agriculture and Markets Law.(100) Also, when an applicant seeks approval for a special use permit, site plan approval, use variance, or a subdivision, and the property lies within an agricultural district on a parcel with a farm operation, or on a parcel within 500 feet of a farm operation, the applicant must provide an agricultural data statement.(101) The statement helps the local reviewing board to "ascertain present and future farming conditions to ensure the proposed land use does not conflict with current or future farming activities."(102)

Furthermore, the 1992 Agriculture and Farmland Protection Program called for the creation of a county agricultural board to develop agricultural land protection plans.(103) The Act also requires certain public actions to be subject to review for their impact on the conversion of agricultural land.(104) John Nolon, the Director of the Land Use Law Center at Pace University Law School, noted that county farmland protection plans do not have any authority over local comprehensive plans, and it is unclear what the plans' relationship to the comprehensive plan should be.(105) Also, the special review was deemed redundant since all land use action goes through extensive "environmental review procedures."(106)

The Agricultural Districts Law has very little substantive effect on a town's zoning authority.(107) The district requires no zoning classifications at all and the state's restrictions only require that local governments not act inconsistently with the specific provisions of the Agricultural Districts Law. For example, they cannot exempt a landowner from penalization for conversion and cannot act inconsistently with eminent domain provisions. If they do, the state's review authority is invoked. The provision does not restrict towns from classifying the underlying zoning in an agricultural district to allow any use (except a solid waste management facility) at any density.

Unfortunately, while the agricultural district insulates farmers from some of the effects of development pressure, the agricultural district laws do little to prevent nonagricultural development from occurring within the districts, and the eventual termination of the district. Each farm unit which is developed contributes to the conversion of prime farmland to rural residential enclaves and the inevitable practical difficulty in conducting farming operations in such an area. Although farmers need not respond in court to nuisance suits, they still have neighbors who may complain to them personally about the noise, odor, dust, and farm equipment slowing down the local roads.(108) Increased population results in increased vandalism and trespass onto property. Further, congestion on rural roads makes the "passage of farm machinery difficult, dangerous, and, at times, impossible."(109) The appeal of selling one's farm for real estate speculation prices exists even without these aggravating circumstances. Because this incremental conversion of farmland within a district will likely result in a change in the area's character, the county will have grounds to terminate the district, much like a rezoning occurs when an area is no longer suitable for a particular use.

Suffolk County addresses the weaknesses in town ordinances through a purchase of development rights program. Because it is publicly funded and must purchase development rights on properties which have high density development potential, the program has financial problems which could ultimately undermine its success. In 1976, Suffolk County agricultural districts' most restrictive density was ten acre parcels.(110) Due to these circumstances, Suffolk County must purchase development rights in order to stave off inevitable nonagricultural development. Since many areas are zoned for one and two acre parcels, the purchase costs are high, between six thousand and twenty thousand dollars per acre. Recently, the county has had difficulty purchasing development rights since landowners' expectations were raised in the 1980s when housing prices tripled and land prices increased. With the market values declining in the 1990s, the county's purchase offers appear too low and landowners are rejecting offers to buy. With the no-tax-increase mentality in political circles and the current funding coming from the county capital budget, the program is in need of finding creative funding solutions.(111)

Despite New York's efforts, it appears that the lack of zoning restrictions at the town level is a major weakness in the program. Nolon described New York's system as an "overlapping, patchwork, uncoordinated approach to land resource management,"(112) which still allows agricultural land to be converted to nonagricultural uses approved under local zoning laws.(113) Long-term protection is ensured only if farming is profitable and if the land base is protected for farming. Where there is no agricultural zoning, real estate speculation will result in the conversion of land. Without this zoning, efforts to purchase development rights may be thwarted due to the size of a landowner's bundle of development sticks. In this scenario, it is unlikely that the land base for farming can be retained over the long term.

B. Washington State's King County Approach

In contrast to New York's program, King County employs a more comprehensive effort to protect farmland. King County's highly fertile farmland is also the home of the Seattle metropolitan area. King County began fighting the rapid conversion of farmland in 1979 through a purchase of development rights program. Subsequently, the county adopted a comprehensive scheme designed to protect agricultural land from development pressures. The agricultural production district is a preferential farm use zoning system with programs to address the needs of individual farmers through marketing programs, tax incentives, and educational programs.

As a result of urbanization, there were only 55,000 acres of farmland in King County in 1975, down from 100,000 acres at the beginning of the century.(114) Responding to the alarming figure that three thousand acres would be taken from production per year if the trends continued, voters approved a $50 million bond sale in 1979 for the Farmland Preservation Program to buy development rights on prime farmland. Since the program's beginning, 12,600 acres have been preserved.(115) The county purchases the development rights and, in exchange, the owners grant the county the right to place covenants and restrictions relating to the use of the property. For example, the property is restricted to agricultural and open space uses. Generally, one dwelling unit per thirty-five acres is permitted, and the property cannot be subdivided to create parcels smaller than twenty acres.(116) In addition, the number of dwelling units on the new parcels may not exceed the number originally permitted on the entire parcel.(117) No more than five percent of the property may be covered by structures or surfaces which interfere with the cultivation of the soil.(118) Activities which disrupt the soil in a manner inconsistent with agricultural uses are prohibited. Such activities include mining, drilling, and extracting oil, gas, gravel, or minerals, and the dumping or storage of nonagricultural solid or liquid waste, trash, rubbish, or noxious materials.(119) Landowners are also prohibited from engaging in activities that violate sound agricultural soil and water conservation practices. King County has the right to inspect properties to ensure compliance, and all properties are visited every three years unless circumstances require more inspections.(120) Because the restrictions "run with the land," they remain effective even if the land is sold, bequeathed, rented, or annexed by another jurisdiction.(121)

Following the passage of the development rights program, King County established Agricultural Production Districts (APDs).(122) Unlike the agricultural districts in New York, the APDs involve use and density zoning restrictions to protect farmland. The Comprehensive Plan (Plan) establishes minimum density requirements in order to preserve parcels large enough for commercial agriculture. The Plan establishes that "[a]griculture should be the principal land use in the Agricultural Production Districts. Permanent new construction within districts should not conflict with commercial farming and should be limited to residences, farm buildings and direct marketing farm stands."(123) The Plan also states that conversion to other uses should occur only when it is shown that the lands are no longer suitable for agricultural purposes and that conversion "will not diminish the effectiveness of farming" inside the boundaries of the district.(124)

Conversion is further limited by a mitigation requirement. A proposed conversion can only occur if mitigated through "the addition of agricultural land abutting" the district which is of equal acreage, and has equal or greater soil and agricultural value.(125) A pending proposal to amend the Plan would allow conversion without mitigation if the land is within an Urban Growth Area, no profitable commercial fanning has occurred since 1966, the land has urban access and urban services, is close to non-agricultural markets, and has value in supposing a family-wage job.(126)

The Plan limits public works projects by giving priority to maintaining the integrity of the agricultural land base. Public services and utilities should be designed to minimize adverse impacts on agriculture and to maintain total farm acres. For example, the county should only build roads for safety and to benefit agricultural uses. The construction of arterials should be routed around the APDs.(127) Also, recreational facilities should not be sited within an APD, and if they are, the county should work with farmers to minimize impacts to farmland and agricultural practices.(128)

Despite the efforts to protect King County's productive farmland, the county has lost approximately 1200 acres per year for the past ten years.(129) Although this conversion could be due to the grandfathering of uses which existed before establishing the APDs,(130) or conversion of farmland which is not within an APD, it is not clear why this amount of farmland is being converted. Because King County alone controls the underlying zoning of the APDs, the urban areas do not directly influence the conversion.(131) However, the nature of urban areas and their real estate markets have the potential to influence the conversion of farmland through requests for rezoning by landowners, or requests for removal of a parcel from an APD.(132) The Plan may be amended yearly, and each year the Department of Natural Resources receives "proposals to remove land from the APD or rezone land in the APD to a higher use."(133) These attempts occur mostly in urban areas that "for the most part are surrounded by industrial land, but the land is some of the very best and most fertile" in the county.(134)

The problem of rezoning requests and the general conversion of farmland was addressed by the Farm Advisory Committee (Committee). It recommended a set of incentives and strategies which the King County Council has adopted and is currently implementing.(135) The Committee's first strategy is to limit the purchase of development rights to lands within each APD.(136) Ironically, these areas have been zoned for exclusive agricultural use, yet the Committee targets these areas for purchase over farming parcels which lie outside the APDs and therefore have more lenient zoning restrictions. The reality, as Eric Nelson of the Department of Natural Resources explains, is that "although zoning has worked to this point, zoning is still up to the political will, and we have had some close calls, too close for comfort in our opinion .... We are more comfortable with buying development rights on farmland in the APDs."(137) So, despite protection offered by the APD zoning system, there is still a need to supplement the political system with the purchase of development rights to ensure protection into the future.

Additionally, the Committee recognized that the preservation of the land base will not necessarily result in the productive use of that land.(138) In response the Committee set forth an incentive package which both preserves farmland and encourages the business of farming.(139) The high cost of land is a barrier to farming in the County, with prices ranging from $3,400 an acre for parcels over twenty-five acres in Snoqualmie Valley, up to $100,000 per acre in the Lower Green and Sammamish Valley APDs.(140) The Committee recommended 1) a "purchase of development rights" program targeted within each APD, 2) lot clustering, 3) transfers of development rights, and 4) density bonuses on properties for which development rights were not purchased.(141)

In order to promote actual farming, the Committee recommended that applicants for development rights purchases be asked how farming will continue on the property, and that priority be given to farmers who agree to participate in a mentoring program.(142)

The Farm Link program is used in twenty-three states and avoids the problem if a retiring farmer who sees no alternative but to sell to individuals who can afford "large rural estates," but who do not wish to commercially farm the land.(143) The link program is a clearinghouse and database with names of retiring farmers and those looking to buy farmland.(144) The retiring farmer selects someone with whom he or she is comfortable, and a detailed arrangement is set up which may allow a gradual transition with the retiring farmer retaining most of the ownership and management responsibilities in order to give the new farmer time to learn the business.(145) The Committee also recommended following the Massachusetts model which gives the county the first option to purchase the property in fee simple after the development rights have been purchased. Following the purchase, the county could lease the land or sell the land to a committed farmer.(146)

Although many farmers face financial difficulty due to national trends, like government pricing of products or competition with corporate farms, the Committee noted that there are measures which the county could take. Although restricting uses in agricultural districts is important, the Committee recommended allowing commercial agricultural uses which farmers could use to sell and manufacture products.(147) It also recommended tax breaks for homes and farm-related structures,(148) grants or low interest loan programs to pay for environmental compliance,(149) and health insurance assistance for farmers.(150)

Finding that existing and new farmers desire more technical assistance and education to operate farms cost effectively and efficiently, the Committee recommended many information assistance programs.(151) These include: 1) hiring more agricultural agents,(152) 2) funding an endowment to give grants to conduct research,(153) 3) providing technical assistance and education programs,(154) 4) developing a mentoring program to allow experienced farmers to share their knowledge one-on-one with new or existing farmers,(155) 5) creating training programs for new farmers through the Cooperative Extension Service, local community colleges and existing high school vocational programs,(156) 6) establishing a revolving loan fund with low interest rates,(157) 7) developing demonstration farms to educate farmers and the public,(158) and 8) creating a "farmbudsman" position within King County to advise farmers on completing permits and farm plans, and to provide information about tax incentive programs, regulatory requirements, grants, loans, and other forms of assistance.(159)

Because many farmers do not have the time or resources to develop marketing or promotional programs, or to educate the public about the economic importance of farming or the benefits of local agricultural products, the Committee recommended various strategies modeled on those employed by California's Sonoma County, near San Francisco, and Placer County, near Sacramento.(160) Like large commercial farms, small independent farmers could join together to form an independent "farm marketing association."(161) This would allow farmers to pool resources to develop marketing campaigns, increase public awareness, and encourage the wholesale and retail sale of local products.(162) One marketing method is to develop labels which identify a product as locally produced, which encourages consumers to buy food grown locally.(163) Other efforts include issuing "Farm Reports" which identify foods in season and where they can be purchased or picked, and include a calendar of events, recipes with local produce, and profiles of local farming families.(164) Also, because farmers' markets have become an important means to selling products, the county should identify county or state owned lands which could be used on a regular basis for long periods of time.(165) Lastly, the Committee recommended promotion of community supported agriculture (CSA) programs.(166) CSA is a seasonal contractual arrangement with a consumer and a grower, and is essentially a risk and cost sharing agreement. Consumers pay their fees at the beginning of the season and receive whatever crops are productive throughout the season.(167)

The last problem areas identified by the Committee focus on regulatory requirements and encroaching populations. The Committee recommended that the building permit system be less costly and time consuming,(168) that temporary housing be permitted for farm workers,(169) and that the King County Agricultural Commission have the authority to review policies and regulations which have the potential to substantially impact farmers.(170) And, although there are "right to farm" laws in effect within the agricultural production district, the Committee found that the encroaching urban development requires a county-wide right to farm law in order to safeguard farmers' rights.(171)

It is clear from the diversity of problems that farmers face that a farmland protection program should not only involve agricultural zoning and purchases of development rights, but should contemplate any and all programs which address the unique circumstances of farmers as business people with a valuable, yet often undervalued, commodity. King County's multi-faceted program is a realistic approach to controlling the development of farmland.

IV. AGRICULTURAL ZONING AND TRANSFER OF DEVELOPMENT RIGHTS

Used in conjunction with agricultural zoning, transfers of development rights (TDR) are an effective tool for protecting farmland. Financing a TDR program may prove more feasible over the long-term since restricted landowners are compensated by the open market rather than public funds. Transferring development rights also results in a fair redistribution of profits between those who are restricted in the use of their property and developers who stand to profit from more intensive development in urban areas. Farmland is protected over the long term since the sale of the development right accompanies a deed restriction. Although staving off development is one goal of farmland preservation, productive use of the reserved farmland is another, equally important goal of farmland protection. TDR programs do not necessarily ensure the profitability, and therefore desirability, of the farming profession. Since transfers of development rights do not include a promise to farm, just a promise to accept the development restrictions on the parcel, a TDR program combined with a program like King County's to promote the appeal of farming to current and future farmers would be a more effective method of protecting farmland.

In 1978, in response to postwar urban sprawl, Congress created the country's first national reserve in southern New Jersey. Today 500,000 people live in the New Jersey Pinelands Reserve, which contains 1.1 million acres of pine-oak and cedar forests, tea-colored streams and rivers, farms, hamlets, and small towns.(172) Pursuant to federal law, the state was to lead the effort in evaluating the area's resources and developing a plan to balance protection with new development.(173) Governor Byrne established the Pinelands Commission with authority to develop a Comprehensive Management Plan (Plan), and the New Jersey Legislature passed the Pinelands Protection Act, which required county and municipal master plans and land use ordinances to conform with the Plan.(174)

Although local governments are the primary administrators of the Plan, the Commission, made up of seven members appointed by each county, seven members appointed by the Governor, and one member appointed by the Secretary of Interior,(175) retains oversight and interpretive authority.(176) If a local government does not bring its ordinance into compliance with the Commission's Plan, the Commission must enforce the Plan's minimum standards.(177) Currently, nearly all of the Pinelands Area municipalities have completed or are in the process of revising their plans and ordinances.(178) Applications to develop must be fried with both the Commission and the municipality, and local approvals are subject to Commission review to determine if the decision is consistent with the Plan.(179) Also, the Commission has authority to grant variances from strict adherence to the Plan in case of extraordinary hardship or compelling public need, and the Commission may issue binding letters of interpretation of any of the Plan's provisions.(180)

The Pinelands Commission Management Plan employs agricultural zoning and the transfer of development rights to protect the region's important farming economy. The Plan divides the region into strict land use classifications in order to direct development towards already developed areas or designated developing areas, and to protect valuable resources, including the region's traditional character.(181) The land use classifications range from the highly restricted Preservation areas(182) to the diverse Protection Areas, which are divided into Forest, Agricultural Production, Regional Growth, and Rural Development Areas.(183) The Commission's Plan designates 67,300 acres as Agricultural Production Areas, all in 1,000 acre blocks of active farmland and adjacent productive farm soil, and designates farming and related activities as the dominant land use.(184)

The Plan protects farmland and the productivity of farming operations over the long term by imposing housing density and use limitations,(185) as well as protecting operators from nuisance suits and requiring environmentally sustainable management methods.(186) Agriculture, forestry, recreational uses, agricultural commercial establishments, and agricultural processing facilities are permitted outright in the Agricultural Production Areas.(187) However, roadside retail establishments, resource-related industries like sand or gravel, airports and heliports accessory to agricultural uses, light industries, fish and wildlife management, agricultural employee housing, intensive recreational uses, various waste management facilities, public service infrastructure, home occupations, and public airport facilities may be permitted at the option of the municipality and are subject to various conditions.(188)

The residential density restrictions ensure that farmland is used for farming purposes and that nonfarm residential development is stabilized after a certain point. Farmers or their employees are permitted one home for every ten acres if the home is accessory to an active agricultural operation in which the operator or employee is actively engaged and the home is essential to the agricultural operation, the lot is under or qualified for agricultural assessment, and the dwelling is located on a lot with an active production history or where a farm management plan has been prepared which shows the property will be farmed.(189) New non-farm related housing is limited to one dwelling per forty acres, with units clustered on one acre lots and the remainder of the parcel, including all contiguous lands under common ownership, to be permanently dedicated to agricultural uses through a deed restriction.(190) The municipality can deny a residential dwelling where the development interferes with the agricultural use of the remaining parcel and adjoining lands.(191)

New Jersey's valuable cranberry and blueberry farming largely occurs within the Preservation Areas in which traditional residential, commercial, and industrial development is essentially prohibited.(192) The Plan designates Special Agricultural Production Areas in the Preservation Area to allow the cultivation of berries and other native plants, and housing for agricultural employees and others with historical links to the Pinelands area.(193)

Agriculture-related development is "generally exempt from Pinelands Commission review," but the Plan imposes management standards on agricultural operations,(194) Agricultural activities must be carried out in accordance with recommended practices established for the specific agricultural activity by the New Jersey Department of Agriculture, the Soil Conservation Service, and the New Jersey Agricultural Experiment Station.(195) Where an area within an Agricultural Production zone is determined to have substandard surface or groundwater, a Resource Conservation Plan must be prepared to avoid degrading water quality.(196) The Plan also requires local governments to protect farming operations from nuisance suits.(197) Each municipality must pass a right to farm ordinance which exempts agricultural operations from all ordinances and regulations pertaining to time limits on operations, dust limits, and odor restrictions, unless they are needed to maintain the public health.(198)

In order to create a fair system which gives landowners whose property use has been restricted a "supplemental use of their property"(199) while enhancing the long-term efforts to protect the Pinelands' valuable resources, the Plan created the Pinelands Development Credit (PDC) Program. This is a TDR program which shifts development away from sensitive environmental and agricultural areas to areas designated as appropriate for development.(200) Land owners in the Preservation Area, the Special Agricultural Production Area, and the Agricultural Production Area whose development opportunities were taken away by the Plan's restrictive provisions benefit financially from the sale of those development rights to developers who shift them into the growth areas.(201) The PDC program results in a redistribution of the financial gains from the rising land values in areas zoned to permit dense residential development from developers to landowners with restricted properties.

Development rights can be bought and sold on the open market. The rights are "allocated to properties located within sending areas; they are then severed, sold, and used to increase the amount of development permitted in receiving areas."(202) Once a landowner sells a development right, she places an easement on the deed to the property which ensures that the property will forever be used for agriculture or another favored use.(203) Developers have an incentive to buy a PDC since the zoning ordinances allow higher density development with the purchase of a PDC.(204) Also, municipalities can grant variances for residential development in business zones, or vice versa, or to build a home on a nonconforming lot, if a PDC is purchased.(205)

PDCs are allocated to each property within a sending area with each PDC representing four transferred development rights, four residential building lots, or four homes.(206) The number of transferable rights depends upon the relative worth of the type of land, and is a fairly involved process which requires the Pinelands Commission to issue official allocations.(207) The policy of encouraging farming in the Pinelands results in more development rights allocated to farming areas.(208) Generally, actively farmed land and other lands located in an agricultural area receive one right for each 4.9 acres.(209) After receiving a PDC allocation, the landowner applies to the PDC bank for a PDC Certificate.(210)

The PDC bank is an important institution for the success of the PDC Program. The bank guarantees loans using development credits as collateral, buys credits from owners in hardship or other special situations, and maintains a registry of credit owners and purchasers.(211) After the PDC bank issues the Certificate, PDC owners may list the development credit for sale, directly contact buyers, or sell PDCs to the PDC bank or other government agencies in special situations.(212) Sellers can assess the value of their PDC by evaluating the PDC bank's listing of all recent PDC sales, prices, the number of rights currently on the market, and the value of the right to the specific buyer with whom they are negotiating.(213)

The sale and use of development rights in projects has continually increased since 1981. In 1991, the Management Plan estimated that 5,625 PDCs were available for allocation, with 550 allocated, severed, and sold.(214) This resulted in 5,876 acres of permanent protection with 1,698 acres protected in the Agricultural Production Area and 603 acres in the Special Agricultural Production Area.(215) In 1994, developers bought 123 rights, while in 1995 they bought 152 rights.(216) The total amount of land permanently protected is now close to 13,000 acres.(217) Because the bank is in place, landowners are now familiar with the process of selling PDCs and developers are more adept at making use of the rights in projects. The program's future seems bright.

Within the framework of agricultural zoning, transfers of development rights are an effective tool for protecting farmland. Restricted landowners receive compensation for their losses, while farmland is permanently protected by a deed restriction. In addition, a comprehensive program should include property tax relief, marketing and sales training, establishment and maintenance of necessary infrastructure, and technological support to farmers.

V. AGRICULTURAL ZONING AND CONSERVATION EASEMENTS

Lancaster County, Pennsylvania's farmland protection program involves agricultural zoning, Agricultural Security Areas and a Conservation Easement Purchase Program. Each township has authority over its land use ordinance, but thirty-nine of the forty-one townships have effective agricultural zoning which covers 320,000 acres, which is more than half of the entire county.(218) The goals of this zoning are "to protect agricultural land uses and activities from conflicts with non-farm uses and activities, and to maintain agricultural land in large blocks.(219) Most townships allow one building lot per twenty-five acres, though a few allow only one building lot per fifty acres.(220)

In 1988, the Governor signed Act 149 into law to establish a Statewide Farmland Preservation Program, which created the opportunity for townships to form Agricultural Security Areas and for the county and the state to purchase easements within those areas.(221) Thirty townships have created Agricultural Security Areas which cover 121,000 acres.(222) These areas, like New York's agricultural districts, do not restrict farmers, but instead form a protection area for farming operations.(223) Farmers in security areas benefit from right to farm laws and receive limited protection from eminent domain.(224) They also become eligible to participate in the Conservation Easement Purchase Program (Purchase Program).(225)

The Purchase Program was at first a county endeavor with no guidelines or precedent to guide the program. In April of 1980, the Lancaster County Commissioners appointed a nine-member Agricultural Preserve Board to develop guidelines for purchasing conservation easements.(226) The guidelines were adopted by the County Commissioners in 1984, and in the same year the first applications for sale of conservation easements were received, resulting in the purchase of easements on four farms totaling 312 acres.(227) At this point easements were valued by a "standard incentive payment" at $250 per acre.(228) This practice was soon abandoned and the county began applying the full appraisal value of an easement to determine sale price.(229) In 1989, the State Agricultural Land Protection Board approved the Lancaster County Agricultural Preserve Board's Program Guidelines and the state and the county began their joint efforts to acquire easements.(230)

The success of this program is due to both the county and the state's commitment to agricultural land protection. It has also been made possible by the Lancaster Farmland Trust, which signed a cooperative agreement with the county in order to coordinate their preservation efforts.(231) At the end of 1995, the efforts of the three groups had resulted in the purchase of conservation easements for 247 farms covering 20,700 acres of farmland.(232)

Despite its seven years of existence and ongoing efforts to purchase easements in the county, the number of landowners willing to sell easements does not appear to be decreasing.(233) Although a record number of 94 easement applications involving 7,762 acres of farmland were filed in 1991,(234) the county continues to receive offers to sell easements on substantial areas of land: 5,290 acres in 1992, 2,778 acres in 1994, and 3,153 acres in 1995.(235) The number of farms and acres that the county purchases each year is far less than the number of offers. In 1991 the county bought easements on 3,391 acres, in 1992, 2,270 acres, in 1993, 1657 acres, in 1994, 1845 acres, and in 1995, 1,307 acres of easements.(236)

The cost of purchasing easements may make a conservation program prohibitive for many communities and states. Lancaster County and the State of Pennsylvania share the expensive burden of purchasing easements. For example, in 1995 the state farmland preservation fund allocated $2,403,538 and Lancaster's commissioners, $1,000,000, for easement purchases.(237) The 1995 Conservation Easement Appraisal results show the average appraised easement value per acre was $2,453, resulting in an appraised value of $3,289,853 for 1,341 acres in 1995.(238) The appraisal results show that there is a spectrum of easement values per acre depending upon the township in which the appraisal occurs.(239) For example, Fulton Township had a per acre easement value of $885, while East Donegal Township had one appraisal value of $4518 per acre.(240)

The development value per acre is directly related to the stringency of the township's ordinance, the development pressure (and therefore the number of development rights to be purchased), and the soil capability of the farm in question.(241) Once an owner applies for an easement, the Agricultural Preserve Board "ranks all easement sale applications.., into priority order using the ranking system" which "measures the development pressure and soil quality of the farm."(242) Tom Daniels, the Director of the Agricultural Preserve Board, explained that an appraiser determines the development potential of a farm by looking at the current zoning and possibility of future changes in zoning, the sewage and water service availability, and proximity to urban areas.(243) The appraiser uses this information to consider four comparable sales of farms with development rights still on the property and compares those sales with four comparable sales of farms without development rights, to determine the value of the development rights to the farm.(244)

Once a landowner has signed an easement, land use restrictions are perpetual.(245) In Lancaster County, the easement permits all agricultural and associated uses, like farm buildings, farm support businesses, home craft occupations, and bed and breakfasts in the existing home.(246) Landowners may construct an additional home for seasonal or full-time farm workers, whether they are family members or employees.(247) The easement prohibits any other residential, commercial, or industrial use.(248) The Agricultural Preserve Board typically monitors the property once a year, maintains written records of the visits, and "has the legal right to require the landowner to correct [a] violation and restore the property to its condition prior to the violation."(249)

Like the transfer of development rights, conservation easements are an important supplement to exclusive agricultural zoning. They ensure that landowners are fairly treated and that protection is permanent. Counties can target areas of prime farmland which are subject to intense development pressure and, through purchasing development rights, force development to occur in a manner which does not jeopardize the most productive agricultural land. However, purchasing development rights is an expensive project which involves taxpayer money. Lancaster County's partnership with the state and a private nonprofit shows the importance of governments and private groups working together to achieve conservation goals. Although purchasing development rights in conjunction with agricultural zoning protects the land base, this system does not address many of the social and economic factors that hinder farmers in the productive use of that land.

VI. CONCLUSION

Throughout the United States there is a need to balance farmland protection with the growth of urban areas. Although it may seem that the United States has an inexhaustible land base for both development and farming, there are other factors which set limitations to growth. The availability of water, acceptable climate, and fertile lands control the productivity of farming, while at the same time influence where people choose to live. The Northwest's Seattle and Portland areas and California's Central Valley are good examples of livable areas which boast some of the most fertile farmland in the country. In areas like these, conversion of agricultural land to more profitable, higher density uses will continue to occur at a rapid pace unless local governments and private organizations become active in controlling and directing this development. There is no doubt that exclusive agricultural zoning is important to the preservation of farmland, however organizations must also address the socio-economic factors which influence people to become and remain farmers. A farmland protection program must also face the reality that zoning is a political process that responds to interests like urban growth, economic development, real estate speculators, home builders, and people with traditional American notions of inviolable property rights. Purchasing development rights through conservation easements or transfers of development rights presents an opportunity to limit the influence of politics by placing legal restrictions on parcels in perpetuity. Each region has its unique problems with development pressure, the amount of farmland available for farming, and the economic means and political support to implement the strategies discussed in this Article. Farmland protection efforts must identify the barriers to farmland protection, design policy to address these barriers, and seek out federal, state, county, and private funding sources to support farmland protection.

(1) American Farmland Trust, Membership Pamphlet, Saving the Land that Feeds America (1995).

(2) UNITED STATES DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, COUNTY AND CITY DATA BOOK (1994).

(3) MID-COLUMBIA ECONOMIC DEVELOPMENT DISTRICT, SECTORAL EMPLOYMENT IN THE MIDCOLUMBIA REGION (1994) (estimates based on figures from the Oregon and Washington State Employment Departments) (on file with author).

(4) Mark Arax, Sprawl Threatens Central Valley, Study Says, L.A. TIMES, Oct. 26, 1995, at A3.

(5) Id.

(6) James B. Wadley, Small Farms: The USDA, Rural Communities and Urban Pressures, 21 WASHBURN L.J. 478, 498 (1982).

(7) Id.

(8) AMERICAN FARMLAND TRUST, FARMLAND AND THE TAX BILL: THE COST OF COMMUNITY SERVICES IN THREE MINNESOTA CITIES iii (1994) (on file with author) [hereinafter THREE MINNESOTA CITIES].

(9) AMERICAN FARMLAND TRUST, DOES FARMLAND PROTECTION PAY? THE COST OF COMMUNITY SERVICES IN THREE MASSACHUSETTS TOWNS ii (1992) (on file with author) [hereinafter THREE MASSACHUSETTS TOWNS].

(10) THREE MINNESOTA CITES, supra note 8.

(11) THREE MASSACHUSETTS TOWNS, supra note 9.

(12) THREE MINNESOTA CITIES, supra note 8.

(13) THREE MASSACHUSETTS TOWNS, supra note 9.

(14) KING COUNTY FARM ADVISORY COMM., KING COUNTY, WASH. DEP'T OF NATURAL RESOURCES, THE FARM AND FOREST REPORT, A STRATEGY TO PRESERVE FARMS AND FARMING 5-2 (1996) (on file with author) [hereinafter FARM AND FOREST].

(15) Id. at 5-1.

(16) Julian C. Juergensmeyer, Farmland Preservation: A Vital Agricultural Law Issue for the 1980's, 21 WASHBURN L. J. 443, 466 (1982).

(17) Id. at 466-67.

(18) Id.

(19) Id. at 469.

(20) Id.

(21) CAL. GOV'T CODE [subsections] 51200-51295 (West 1983 & Supp. 1998). The Williamson Act is otherwise known as the California Land Conservation Act of 1965.

(22) Id. [sections] 51244.

(23) Id.

(24) Id. [sections] 51245. Breach of a contract results in a cancellation fee of 12.5% of the cancellation value of the property. Id. [sections] 51283.

(25) Juergensmeyer, supra note 16, at 444.

(26) Id. at 443.

(27) Id. at 445.

(28) FARM AND FOREST, supra note 14, at 5-2.

(29) Id. at 5-6.

(30) Juergensmeyer, supra note 16, at 445.

(31) See, e.g., 16 U.S.C. [subsections] 544-544p (1994) (establishing the Scenic Area and its management requirements).

(32) Remarks by Richard Benner, Director, Department of Land Conservation and Development, to the Oregon Board of Agriculture, in Saving Oregon's Farmland 1 (Feb. 15, 1996) [hereinafter Benner Remarks].

(33) Tara J. Schleicher, A Tale of Two Courts: Difference Between Oregon's Approach and. the United States Supreme Court's Approach to Fifth Amendment Takings Claims, 31 WILLAMETTE L. REV. 817, 827 (1995).

(34) These include agricultural and forest lands, open spaces, scenic and historic areas, natural resources, housing, coastal shorelands, beaches and dunes, ocean resources, transportation, energy conservation, the Willamette greenway, and estuarine resources.

(35) Benner Remarks, supra note 32, at 2.

(36) DEPARTMENT OF LAND CONSERVATION AND DEV., ANALYSIS AND RECOMMENDATIONS OF THE RESULTS AND CONCLUSIONS OF THE FARM AND FOREST RESEARCH PROJECT 1 (1991) (on file with author) [hereinafter ANALYSIS AND RECOMMENDATIONS].

(37) DEPARTMENT OF LAND CONSERVATION AND DEV., OREGON'S STATEWIDE PLANNING GOALS AND GUIDELINES 6 (1995) (on file with author) [hereinafter GOALS AND GUIDELINES].

(38) 1000 FRIENDS OF OREGON, LANDMARK: THE FIGHT TO SAVE OREGON'S FARMS AND FORESTS 1 (1996).

(39) Id.

(40) Id. at 8.

(41) GOALS AND GUIDELINES, supra note 37, at 21.

(42) Id.

(43) AGRICULTURAL RESOURCES GROUP, WASCO COUNTY EXCLUSIVE FARM USE LAND USE AND DEVELOPMENT ORDINANCE [sections] 3.210 (1996); see also OR. REV. STAT. [sections] 215.283(2) (1997) (listing uses that "may be established [in an EFU], subject to the approval of the governing body").

(44) LAND CONSERVATION AND DEV. COMMISSION, EXCLUSIVE FARM USE REPORT 1994-95, at 19 (1996) (on file with the author) [hereinafter FARM USE REPORT].

(45) Benner Remarks, supra note 32, at 5.

(46) Forster v. Polk County, 839 P.2d 241, 244 (1992) Oregon resident Forster's dwelling on a Christmas tree farm was allowed in an EFU by Polk County, but the Land Use Board of Appeals (LUBA) remanded because Forster's farm management plan had not been fully carried out. The Court of Appeals of Oregon held that LUBA's ruling was not authorized and that the dwelling could be built prior to full implementation of the management plan. Id.

(47) ANALYSIS AND RECOMMENDATIONS, supra note 36, at 5.

(48) Id.

(49) H.3661, 67th Or. Legis. Assm. (1993); Interview with Dotty Devaney, Planner, Wasco County, Or. (Sept. 8, 1996).

(50) OR. ADMIN. R. 660-33-135(7)(a)-(c) (1994).

(51) Interview with Dotty Devaney, supra note 49.

(52) Benner Remarks, supra note 32, at 5.

(53) FARM USE REPORT, supra note 44, at 3.

(54) Id.

(55) Id. at 2.

(56) JACKSON COUNTY CITIZENS LEAGUE, A HISTORY (Mar. 19, 1992) (on file with author).

(57) MULTNOMAH COUNTY, OR., MULTNOMAH COUNTY CODE 11.15.2018 (1995).

(58) Id. A lot of record is "[a] group of contiguous parcels of land... [w]hich individually do not meet the minimum lot size requirements...but, when considered in combination, comply as nearly as possible with a minimum lot size of nineteen acres, without creating any new lot line." Id. 11.15.2018(A)(3)(c).

(59) COLUMBIA RIVER GORGE COMMISSION, DRAFT POLICY OPTIONS: AGRICULTURAL LANDS IN GENERAL MANAGEMENT AREAS 6 (May 15, 1990) (on file with author).

(60) The Columbia River Gorge National Scenic Area was created by federal law that affects six counties in Oregon and Washington along the Columbia River. 16 U.S.C. [sections] 544 (1994). The law provided the framework for the passage of a bi-state compact to create a bi-state agency, the Columbia River Gorge Commission. The Commission was charged with writing the Management Plan, a zoning scheme with which all of the counties' ordinances must comply in order for the county to have authority to apply its own ordinance. Id. [sections] 544d.

(61) COLUMBIA RIVER GORGE COMMISSION, supra note 59.

(62) For example, Lois Jemptgaard had filed a takings lawsuit which was dismissed for lack of ripeness and she has been used as a poster child by the property rights advocates as the poor, vulnerable old woman with no economic use of her land. Skamania County has been renowned for threatening to throw out its Scenic Area Ordinance and one visiting the county will likely see signs saying "something stinks in the Gorge."

(63) Friends of the Columbia Gorge v. Skamania County, Columbia River Gorge Commission File No. COA-S-95-02 (1995).

(64) See infra Part III.B.

(65) Id.

(66) Juergensmeyer, supra note 16, at 456.

(67) Id.

(68) Id.

(69) Id.

(70) N.Y. AGRIC. AND MKTS, LAW art. 25AA, [sections] 300 (McKinney 1996).

(71) Id.

(72) N.Y. AGRIC. AND MKTS. LAW art. 25AA, [sections] 323 (McKinney Supp. 1997-1998).

(73) N.Y. STATE DEP'T OF AGRIC. AND MKTS., AGRICULTURAL DISTRICTS AND COUNTY AGRICULTURAL AND FARMLAND PROTECTION PLANS--A STATUS REPORT 3 (1996) (on file with author).

(74) Id. at 7.

(75) Id. at 3.

(76) Id.

(77) Id. at 7.

(78) John R. Nolon, The Stable Door is Open: New York's Statutes to Protect Farm Land, 67 N.Y. ST. B.J. 36 (1995).

(79) Id.

(80) Id. at 37.

(81) N.Y. AGRIC. AND MKTS. LAW art. 25AA, [sections] 303(1) (McKinney Supp. 1997-1998).

(82) Id. [sections] 304(1).

(83) Id. [sections] 303(5).

(84) N.Y. STATE ADVISORY COUNCIL ON AGRIC., FARM PROPERTY TAXES IN NEW YORK STATE 38 (1996) (on file with author) [hereinafter FARM PROPERTY TAXES].

(85) Id.

(86) N.Y. AGRIC. AND MKTS. LAW art. 25AA, [sections] 301(8) (McKinney Supp. 1997-1998).

(87) Id.

(88) Id. [sections] 305(1)(d).

(89) FARM PROPERTY TAXES, supra note 84, at 38.

(90) Id.

(91) Id.

(92) Id.

(93) N.Y. AGRIC. AND MKTS. LAW art. 25AA, [sections] 305(5) (McKinney Supp. 1997-1998).

(94) Id. [sections] 305(3) (1996).

(95) Id. [sections] 305(5) (McKinney Supp. 1997-1998).

(96) Id. [sections] 305(4).

(97) Id. [sections] 308(2).

(98) Id. [sections] 310(1).

(99) AGRICULTURAL PROTECTION AND DEV. SERVS., N.Y. STATE DEP'T OF AGRIC. AND MKTS., LOCAL LAWS AND AGRICULTURAL DISTRICTS: HOW DO THEY RELATE? (n.d.) (on file with author).

(100) N.Y. AGRIC. AND MKTS. LAW art.. 25AA [sections] 305-a(1) (McKinney Supp. 1997-1998).

(101) Id. [sections] 305-a(2).

(102) NEW YORK STATE DEP'T OF AGRIC. AND MKTS., PROCESSING AN AGRICULTURAL DATA STATEMENT (PURSUANT TO SECTION 305-A OF THE AGRICULTURE AND MARKETS LAW) (on fiel with author).

(103) Nolon, supra note 78, at 39.

(104) Id.

(105) Id.

(106) Id.

(107) Telephone Interview with Roy Fedelem, Principal Planner, Suffolk County Planning Department, Hauppause, N.Y. (Oct. 16, 1996).

(108) Nolon, supra note 78, at 38.

(109) Id.

(110) Telephone Interview with Roy Fedelem, supra note 107.

(111) Id.

(112) Nolon, supra note 78, at 39.

(113) Id.

(114) DEPARTMENT OF NATURAL RESOURCES, KING COUNTY, WASH., KING COUNTY'S FARMLAND PRESERVATION PROGRAM (1995) (on file with author) [hereinafter FARMLAND PRESERVATION PROGRAM].

(115) KING COUNTY, WASH., KING COUNTY COMPREHENSIVE PLAN, Resource Lands Chapter RL-301 to -310 (1995) (on file with author) [hereinafter COMPREHENSIVE PLAN].

(116) FARMLAND PRESERVATION PROGRAM, supra note 114.

(117) Deed and Agreement Relating to Development Rights, Restrictions on the Use of the Land, Section II: Reservation of Dwelling Units (on file with the King County Real Property Division).

(118) Id. at Section III: Further Restriction on Use of the Land.

(119) Id.

(120) FARMLAND PRESERVATION PROGRAM, supra note 114.

(121) Id.

(122) COMPREHENSIVE PLAN, supra note 115, at RL-301 to -310.

(123) Id. at RL-302.

(124) Id. at RL-304.

(125) Id.

(126) KING COUNTY, WASH., AMENDMENT TO THE 1994 KING COUNTY COMPREHENSIVE PLAN RL-304 (1996) (on file with author).

(127) COMPREHENSIVE PLAN, supra note 115, at RL-307.

(128) Id. at RL-308.

(129) Id.

(130) E-Mail Message from Eric Nelson, Livestock Program Administrator Agriculture and Resource Lands, Natural Resource Division, Department of Natural Resources, to Jeanne White (Nov. 21, 1996) (on file with author) [hereinafter Nelson E-Mail].

(131) Id.

(132) Id.

(133) Id.

(134) Id.

(135) FARM AND FOREST, supra note 14, at 5-1.

(136) Id. at 5-3.

(137) Nelson E-Mall, supra note 130.

(138) FARM AND FOREST, supra note 14, at 5-4.

(139) Id.

(140) Id. at 5-2.

(141) Id. at 5-3, 5-9.

(142) Id. at 5-4.

(143) Id. at 5-7.

(144) Id.

(145) Id.

(146) Id. at 5-4; 5-5.

(147) Id. at 5-12.

(148) Id. at 5-13.

(149) Id. at 5-15.

(150) Id. at 5-16.

(151) Id. at 5-17.

(152) Id. at 5-18.

(153) Id. at 5-19.

(154) Id.

(155) Id. at 5-20.

(156) Id. at 5-21.

(157) Id. at 5-23.

(158) Id. at 5-26.

(159) Id. at 5-24.

(160) Id. at 5-27.

(161) Id. at 5-28.

(162) Id.

(163) Id. at 5-30.

(164) Id. at 5-31.

(165) Id. at 5-33.

(166) Id. at 5-34.

(167) Id.

(168) Id. at 5-36.

(169) Id. at 5-38.

(170) Id. at 5-39.

(171) Id. at 5-41.

(172) STATE OF N.J. PINELANDS COMM'N, A BRIEF HISTORY OF THE NEW JERSEY PINELANDS AND THE PINELANDS COMPREHENSIVE MANAGEMENT PLAN 1 (1994) (on file with author) [hereinafter A BRIEF HISTORY].

(173) 16 U.S.C. [sections] 471i (1994).

(174) N.J. STAT. ANN. [subsections] 13:18A-I, :18A-2 (West 1997).

(175) 16 U.S.C. [sections] 471i(d) (1994).

(176) A BRIEF HISTORY, supra note 172, at 15.

(177) N.J. STAT. ANN. [sections] 13:18A-10 (West 1997).

(178) A BRIEF HISTORY, supra note 172, at 15.

(179) N.J. STAT. ANN. [sections] 13:18A-10 (West 1997).

(180) Id.

(181) A BRIEF HISTORY, supra note 172, at 3.

(182) Id. at 4.

(183) Id. at 5-7.

(184) Id. at 6.

(185) N.J. ADMIN. CODE tit. 7, [sections] 50-5.24 (1996).

(186) Id. [sections] 50-6.52 to -6.54.

(187) Id. [sections] 50-5.24.

(188) Id.

(189) Id.

(190) Id.

(191) Id.

(192) A BRIEF HISTORY, supra note 172, at 5.

(193) Id.

(194) Id. at 14.

(195) N.J. ADMIN. CODE tit. 7, [sections] 50-6.53(a) (1996).

(196) Id. [sections] 50-6.53.

(197) Id. [sections] 50-6.54.

(198) Id.

(199) NEW JERSEY PINELANDS COMM'N, COMPREHENSIVE MANAGEMENT PLAN, THE SECOND PROGRESS REPORT ON PLAN IMPLEMENTATION IV-1 (Dec. 1991) (on file with author) [hereinafter SECOND PROGRESS REPORT].

(200) THE PINELANDS DEV. CREDIT PROGRAM, TRANSFERRING DEVELOPMENT RIGHTS IN NEW JERSEY'S PINELANDS 5 (on file with author) [hereinafter TDR IN NEW JERSEY].

(201) Id. at 6.

(202) Id. at 5.

(203) Id.

(204) Id. at 13.

(205) Id. at 5.

(206) Id. at 13.

(207) Id. at 6.

(208) Id.

(209) Id.

(210) Id. at 9.

(211) A BRIEF HISTORY, supra note 172, at 8.

(212) TDR IN NEW JERSEY, supra note 200.

(213) Id. at 11.

(214) SECOND PROGRESS REPORT, supra note 199, at IV-1 to -2.

(215) Id. at IV-4.

(216) NEW JERSEY PINELANDS COMM'N, STRENGTHENING PINELANDS PARTNERSHIPS, 1995 ANNUAL REPORT 5 (1995).

(217) Id. at 5.

(218) LANCASTER COUNTY AGRIC. PRESERVE BD., ANNUAL REPORT 1995, at 7 (1996).

(219) Id.

(220) Id.

(221) Id. at 1.

(222) Id. at 6.

(223) Id.

(224) Id.

(225) Id.

(226) Id. at 1.

(227) Id.

(228) Id.

(229) Id.

(230) Id.

(231) Id.

(232) Id.

(233) Id. at 1-2.

(234) Id. at 1.

(235) Id.

(236) Id.

(237) Id. at 2.

(238) Id.

(239) Id.

(240) Id.

(241) See generally LANCASTER COUNTY AGRIC. PRESERVE BD., LANCASTER COUNTY AGRICULTURAL CONSERVATION EASEMENT PURCHASE PROGRAM (n.d.) (on file with author) [hereinafter LANCASTER COUNTY PURCHASE PROGRAM].

(242) Id.

(243) Telephone Interview with Tom Daniels, Director of the Lancaster County Agricultural Preserve Board, Lancaster County, Pa. (Oct. 24, 1996).

(244) Id.

(245) LANCASTER COUNTY' PURCHASE PROGRAM, supra note 241, at 2.

(246) Id.

(247) Id.

(248) Id.

(249) Id. at 3.

JEANNE S. WHITE Attorney, Charles T. Brandt & Associates, Aspen, Colorado; J.D. 1996, Northwestern School of Law of Lewis & Clark College; B.A. 1992, Law and Public Policy, Brown University. The Author wishes to thank Professor Don Large for his guidance.
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