Under New York's Right-to-Farm laws, towns and villages are prohibited from adopting local laws that unreasonably restrict farm operations located in a County-certified agricultural district.
In a decision dated May 22, 2008, the Third Department upheld a Department of Agriculture determination that a village law regulating field applications of fertilizers and manure over the Village's water supply aquifer was "unreasonably restrictive" as applied to farm operations located in an agricultural district. (Village of Lacona v. New York State Department of Agriculture, 2008 N.Y. Slip. Op. 04597).
In 2000, the Village of Lacona (located in Oswego County) adopted a local law prohibiting the use of liquefied manure anywhere in the village, including on farms. After the Department of Agriculture issued a determination that this outright ban was unreasonably restrictive as applied to farm operations, the Village repealed the law and began drafting a new version.
The Village adopted a new local law in 2002. Although the Village had received input from the Department of Agriculture, the DEC, and the Department of Health expressing concerns about aspects of this local law during the drafting process, the law ultimately adopted by the Village did not contain any significant revisions responsive to those concerns.
The new law regulated field application of fertilizers and manure over the Village's water supply aquifer. It also required farmers to submit a plan to the Village for approval addressing farm operations such as housing and feeding of animals, storage of crops and feed, storage and handling of fertilizer and manure, and storage and handling of pesticides. The new law also required farmers to pay a $250 application fee to defray the Village's review costs.
The Department of Agriculture reviewed the new local law, and issued an Order directing the Village to abstain from applying the new law to farm operations in agricultural districts based upon the Department's determination that it was unreasonably restrictive. The Village commenced an Article 78 and declaratory judgment proceeding challenging this decision.
The Third Department noted that the Village's expert had conceded that "the practice of manure application has been safely employed in the past without significant environmental detriment." Although the Village's expert expressed concern that manure usage in watershed areas could endanger public drinking water supplies, the Third Department credited the New York State Department of Health's assessment that the continued application of liquid manure on farms within the Village would not pose any public health risk, and that the existing regulations already in place provided adequate protection.
Accordingly, deferring to the Department of Agriculture's interpretation and application of Agriculture and Markets Law section 305-a, the Third Department upheld the Department's Order barring the Village from applying this law to farm operations in agricultural districts.
The Third Department also concluded that the pesticide regulations contained in the local law were preempted by Article 33 of the Environmental Conservation Law.
