FARMLAND PRESERVATION LAWS: WHAT DO THEY DO? CAN THEY BE JUSTIFIED?
architecture 8. planning ^auraria library
Thesis Project PCD 790
October 31, 1986
Aerial view of a farm in Tinley Park, III., one of the last in Cook County. Twenty years ago almost half of the county's
acreage was devoted to agriculture, today, less than si: percent remains farmland.
Little attention had been paid, historically, to the idea that the United States would ever be in danger of running out of the nation's vast resource of lands suitable for agriculture. Therefore, when local governments sought to regulate the use of agricultural lands, it was generally either to minimize conflicts between farm and neighboring nonfarm land users, or to employ agricultural land use classifications as a "holding" category to prevent potentially undesirable development.
In the 1970's, a number of factors combined to change the way many people perceived farmland in this country. During this period, exports of U.S. farm products reached record levels, stimulating the value of, and demand for, farmland. This was also the period of the great energy price shocks and supply crises. Corn-derived ethanol, used as a component of vehicle fuel, was looked upon as a major ingredient in curbing the nation's appetite for imported oil. Again, this stimulated demand for farmland.
Finally, during the 1970's there was a vast migration of American families and industry out of the cities and into suburban or rural areas. Much of this new settlement occurred in formerly agricultural areas in the shadow of existing cities. Much of it also occurred along interstates and other major highways. Therefore, this resettlement and corresponding conversion of formerly agricultural lands was taking place in high-visibility areas.
As urbanites resettled into formerly rural farming areas, conflicts often arose over farming activities, such as pesticide spraying, manure spreading, and late or early-hour equipment operations. While these activities may have gone unchallenged when an area was devoted entirely to agricultural land uses, traditional farming operations frequently cause problems with nonfarming newcomers.
The collision of these two conflicting phenomenaincreasing demand for farm products versus rapid conversion of high-visibility farmlands to urban usesled to a movement in this country to preserve our prime farmlands and protect them from the machinations of the urban/suburban land market. This nationwide concern resulted in a plethora of regulatory measures intended to preserve farmland, and also to shield farmers from the land use conflicts often engendered by the entrance of more urbanized land uses into a farm area.
This paper reviews the major programs, which have been implemented on the national, state, and local levels, to foster the preservation of farmland and to preserve the opportunity for farmers to remain in the profession of farming. Particular attention has been paid to right-to-farm laws. This is due to the fact that right-to-farm laws, and the land use issues they seek to address, run to the heart of the major urban/agricultural land use controversies.
The major farmland preservation measures implemented in this country all suffer from certain structural weaknesses which limit their ability to prevent farmland conversion. These weaknesses, identified herein, generally deal with the limited duration of protection provided against conversion to urban land uses.
There is a major controversy in the U.S. over the actual amount of land that is being taken out of farm production, for conversion to urban land uses. The National Agricultural Lands Study, a major federal initiative which analyzed the issue, concluded that the nation was losing three million acres of farmland annually to other uses.
The NALS figures, which provided the inspiration for many state and local farmland preservation measures, have since been demonstrated to be greatly exaggerated. Of equal importance, the conditions that made the demand for farmland so crucialrecord farm exports and the demand for alternative fuelshave changed dramatically, greatly reducing the demand for farm produce and thus farmland. Furthermore, the biotechnology and information revolutions in food production promise to greatly increase farm yields, reducing the overall demand for farmland even more.
This paper analyzes the factors leading to the agricultural land preservation movement and concludes that the concern over the loss of farmland to other uses is unjustified. Since the amount of farmland conversion occurring is much less than once thought, and the demand for farmland should actually decrease in the future, what is driving the continued push to preserve agricultural lands?
The major thesis of this paper is that the farmland preservation movement is, in reality, a drive to preserve agricultural land to serve as an urban/suburban open space amenity. In addition to the likelihood that the farmland conversion crisis is, in fact, a fallacy, there are two other basic components of the farmland preservation movement which, I submit, reveal its true nature.
The most ardent proponents of the movement, it has been seen, are not the farmers 'threatened' by urbanization, rather, it is environmental groups and other open space advocates. Also, who are the movement's main beneficiaries? It has been observed that it is generally not the farmers themselves, who do not like the idea of having their opportunity to reap a major financial windfall, through development of their farmlands, foreclosed by state or local government.
The major proponents, and the prime beneficiaries, of farmland preservation programs appear to be the neighboring urbanites. In light of this, I believe that local governments wishing to preserve farmland should employ the same measures typically used to obtain parkland. These communities should purchase the lands, in the name of open space, in competition with the private land market, and compensate the affected land owners accordingly.
TABLE OF CONTENTS
I. Introduction p. 1
A. Agricultural/Urban Land Use Conflicts 3
B. The Farmland "Crisis" 5
C. The Regulatory Reaction to the Crisis 6
II. Survey of U.S. Farmland Preservation Measures 7
A. Federal Programs 7
B. State Programs 10
1. Right-to-Farm Laws 15
a. The Law of Nuisance 16
b. Key Provisions of Right-to-Farm Laws 19
c. Definition of a Farming Operation 19
d. Establishing A Priority 21
e. Excluding Farmer/Developers 21
f. Attorneys' Fees 22
g. Trespass: Right-to-Farm's Achilles Heel? 23
2. Differential Property Assessment 24
a. Preferential Assessment 25
b. Property Tax Deferral 26
3. Other State Inducements to Preserve Farmland 26
C. Local Farmland Preservation Programs 27
1. Zoning Exemptions 27
2. Agricultural Zoning 28
3. Agricultural Districts 34
4. Purchase of Development Rights 35
5. Transfer of Development Rights 37
6. Conservation Easements 38
7. Land Banking 39
8. Other "Flexible" Zoning Techniques 39
D. Summary of State/Local Controls 41
E. Private Controls 42
F. Summary of Farmland Preservation Programs 43
III. Weaknesses in Farmland Preservation Techniques p. 45
A. Right-to-Farm Laws 45
B. Differential Property Tax Assessment 46
C. Zoning Exemptions 47
D. Agricultural Zoning 48
E. Agricultural Districts 49
F. Purchase of Development Rights 50
G. Transfer of Development Rights 51
H. Conservation Easements 51
I. Land Banking 52
IV. Farmland Preservation: Legitimate Land Use Concern, Or
Suburban Open Space Scam? 53
A. The Fallacy of the Farmland Crisis 53
B. Conditions Influencing Demand for U.S. Agricultural
1. The U.S. Farm Export Outlook 60
2. The Gasohol "Bust" 63
C. The Biotechnology Revolution in U.S. Agriculture 64
D. The Suburban Open Space "Scam" 68
E. The Real Beneficiaries of Farmland Preservation 70
F. The Solution: Sever Farmland Conversion/Open Space
V. In Defense of Farmland Preservation Programs 76
A. Unique and Specialized Crops 76
B. The LossThrough AbuseOf Existing Agricultural
VI. Conclusion 80
VII. References 83
FARMLAND PRESERVATION LAWS: WHAT DO THEY DO? CAN THEY BE JUSTIFIED?
Historically, land use planners have given relatively little attention to the planning and utilization of agricultural land. This is due in large part to the fact that most farmland is located in rural areas where land use regulation was often either very lax or nonexistent.
In urban areas, on the other hand, farmland was usually considered not in terms of its productive capacity in farming, but rather in terms of its speculative value for other types of land uses. Although many, if not most, zoning ordinances included an agricultural land use category, farmland was often viewed from the urban perspective as a temporary use or holding category. As the urban area expanded, farmland was to 'give way' to residential, commercial, or industrial uses.1
The relatively peaceful coexistence of urban and rural land uses
was shattered during the 1970's, when:
there was an unmistakable migration of the U.S. population from urban to more rural areas and from the North to the less densely settled South and West. Moreover, there was a surge in economic activity in rural America during the decade,
^Donald G. Hagman and Julian C. Juergensmeyer, Urban Planning and Land Development Control Law, 2nd ed., p. 478.
especially new industrial plants, comraerical distribution
centers and processing facilities.2
This rapid spread of residential, commercial, and industrial development in rural and suburban areas collided with the boom days in United States agriculture. During that period U.S. farm exports were at record levels and projected to continue to rise. The U.S. Secretary of Agriculture was encouraging farmers to plant "fence row to fence row" to meet what was then projected to be steadily increasing foreign demand for U.S. farm products.
Yet another factor portending a long-term boom for farming, and underscoring the importance of cropland to the nation's future, was the energy crisis of the 1970's. Government officials saw alcohol-enhanced fuels as a major component in a comprehensive strategy to lessen the United States' dependence upon imported fossil fuels. Alcohol produced from domestically-grown crops was viewed as a promising replacement for some of the petroleum content in vehicle fuels. Seeing no long-term end to the energy supply crisis that existed at that time, many farmers and farm-state politicians regarded the demand for farm produceas a component of fuel manufacturingto be a permanent, and significant, market factor.
Just as the future for U.S. crop production was looking its most promising, urban sprawl and increasing suburbanization were consuming ever-greater chunks of agricultural land, particularly in high-visibility urban fringe areas surrounding major metropolitan areas. As the sprawl continued, an alarm was sounded virtually
^National Agricultural Lands Study, Final Report 1981, p. 10.
nationwide about the rapid depletion of the nation's prime agricultural lands.
Agricultural/Urban Land use Conflicts
The urban/suburban pressure upon neighboring agricultural land that frequently leads to farmland conversion results from a variety of factors. The most obvious pressure upon farmers to convert their croplands concerns the inevitable rise in the value of farmlands for more intensive land uses, which occurs as urban and suburban areas expand. The magnitude of this price spiral can challenge the resolve of even the most devoted farmer. It has been reported that suburban land values average 1,800 percent more when the land is utilized for building purposes than for cultivation or grazing.3
This often abrupt increase in land values can threaten the economic viability of farms, if property tax assessments are raised to reflect the higher potential value of the land for more intensive land uses. The financial pressure exerted by greatly increased property tax liability can precipitate the involuntarily conversion of agricultural land to urban uses.
Farmers living in the vicinity of cities face other problems resulting in lower yields and ultimately threatening the future of the farm operations, through a phenomenon that has been termed "the urban shadow effect."^ As urban land uses converge on an agricultural area, farmers wishing to continue farming face several diseconomies.
^Healy & Shurt, New Forces in the Market for Rural Land, 46 Appraisal Journal 190 (1978). [As reported in Hagman and
Juergensmeyer, p. 481]
^Richard H. Jackson, Land Use in America, p. 172.
Industries may locate nearby, causing water and air pollution that can lower crop yields. Irresponsible hazardous waste generators or handlers may choose nearby farms as convenient sites for clandestine toxic waste disposal.
Nearby urbanites may engage in vandalism or outright theft of crops, livestock, and equipment. In addition, as urban activities and land uses begin to predominate, the agricultural service providers upon which farmers dependthe feed store, grain elevator, farm implement dealermay be forced out of the area due to declining markets and/or the same land price pressures which threaten the farmers themselves. Milk collection, for example, may become more costly as the distance between farms, and the distance between dairy farms and the dairy, increase.
Finally, the nearby nonfarm residents themselves, who may have
taken up residence in the once-rural area in pursuit of a rural
lifestyle and the wide-open spaces, may find traditional farm
activities objectionable. An article in the Journal of Soil and Water
Conservation summarized this often inevitable conflict as follows:
The irony of the situation is obvious: While farming creates and maintains the atmosphere and bucolic landscape so many wish to be part of, it is the business of agriculture, which mandates certain practices and functions, that many find offensive. The result is conflict that prompts nonfarming neighbors to attempt to restrict or eliminate agricultural practices. This often translates into a nonfarming majority that employs land use controls to regulate farming or that resorts to nuisance lawsuits to enjoin or restrict certain practices. What many seek, then, is farmland without farms!^
^Mark B. Lapping et al., "Right-to-farm laws: Do they resolve
land use conflicts?" 38 Journal of Soil and Water Conservation, (November-December 1983), 465.
The perceived inevitability of complaints by ex-urbanites to commonplace and nonnegligent farming practices can dissuade farmers from continuing to make needed capital investments in their farms to keep them productively viable. As the farms fall into disrepair or fail to keep technologically current, the attraction to the farmer of the windfall to be realized by selling out to developers becomes even more acute.
The Farmland "Crisis"
The threat of excessive farmland conversion prompted the Carter Administration, through the U.S. Department of Agriculture (USDA) and the President's Council on Environmental Quality (CEQ), to sponsor an interagency federal task force to investigate the loss of agricultural land on a national basis. This effort culminated in the publication of the National Agricultural Lands Study (NALS) and several related works concerning the issue of agricultural land conversion.
Research relied upon for the National Agricultural Lands Study revealed that the United States, in 1977, had approximately 413 million acres of cropland and about 127 million acres of potential cropland.6 In addition, there were some 268 million acres of rural land with low potential for cultivated crops.?
Based upon these figures and other data which form the foundation of the National Agricultural Lands Study, the report concluded that about three million net acres of agricultural land were being converted
^National Agricultural Lands Study, America's Agricultural Land Base in 1977. (Interim Report #5), p. 16.
^National Agricultural Lands Study, Final Report 1981, p. 8.
to urban and built-up uses on an annual basis. This three million acre annual figure has been somewhat cavalierly reported far and wide, and has inspired farmland preservation measures throughout the United States. The figure has also served as the fundamental thesis or cause celebre behind numerous books and professional journal articles on the subject of agricultural land protection.9
The Soil Conservation Service had fueled the clamor over the loss of agricultural land with an earlier, less publicized study which concluded that roughly five million acres of rural land were being lost yearly; through urban development, through isolation as a result of urban development, and through destruction for the benefit of new water supply projects.^ Thus, the NALS was not exactly tilling virgin ground when it arrived at its provocative conclusion.
The Regulatory Reaction to the Crisis
The reaction to the perception that the United States was destined to squander its vast agricultural land resource base, through conversion to urban uses, sparked regulatory activity at all levels of government. The following discussion provides an overview of some major agricultural land preservation programs which were enacted in response to this fear. In some cases the regulatory action actually preceded the release of the much-traveled National Agricultural Lands Study.
^National Agricultural Lands Study, Final Report 1981, p. 25.
^Frederick R. Steiner and John E. Theilacker, eds., Protecting Farmlands, p. xv. Also, see infra, notes 36 and 55.
IOh.R. Rep. No. 1400, 95th Cong., Second Session, p. 7, (1978).
Survey of U.S. Farmland Preservation Measures
While the federal government has been at the forefront in developing policy to address the national loss of agricultural land, federal concern over this issue has nonetheless been a relatively recent phenomenon. As recently as 1974, a U.S. Department of Agriculture (USDA) study found that "[ajlthough thousands of acres of farmland are converted annually to other uses..*[the nation is] in no danger of running out of farmland."H
The USDA did an abrupt about-face just two years later, when Secretary of Agriculture Earl Butz announced a new agency policy that would discourage federal involvement in activities that would convert agricultural land to other uses.12 The USDA directive further stated that state and local authorities would likewise be encouraged to pursue policies ultimately aimed at preserving farmland.13
Also in 1976, a second manifestation of this major federal policy shift with regard to agricultural land preservation occurred when the U.S. Council on Environmental Quality (CEQ) directed all federal agencies to take into account the loss of prime farmland when preparing
HUnited States Department of Agriculture, as reported in Hagman and Juergensmeyer at 485.
l^David L. Callies and Robert H. Freilich, Cases and Materials on Land Use, p. 882.
l^U.S. Comptroller General, Report to Congress entitled "Preserving America's FarmlandA Goal the Federal Government Should Support, (CED-79-109), p. 7.
environmental impact statements required by the National Environmental Policy Act of 1969 (NEPA).^ Compliance with the 1976 CEQ directive was initially voluntary. In 1980 the Council made federal agency consideration of farmland preservation mandatory for all federal agencies performing environmental analyses under NEPA.^
While these CEQ actions played no small part in promoting awareness of the farmland preservation issue, in practice relatively few land development projects are subjected to the full scrutiny of a NEPA environmental impact study. The NALS notes that possibly the most valuable work undertaken by the United States Environmental Protection Agency (EPA) in regard to agricultural land preservation has been the work of EPA regional offices. Some EPA regional offices have offered technical assistance to local governments to help them to assess the impact upon farmland of local governmental infrastructure programs and major private sector projects.^ On a central agency basis, the EPA had adopted, in 1978, an internal policy to protect environmentally significant agricultural land from irreversible conversion.^
The NALS also notes the efforts of other federal agencies, such as the Farmers Home Administration (FmHA), to assist in agricultural land preservation. For example, the FmHA assisted the Illinois Department
l^HJ.S. Comptroller General, p. 7. l^Callies and Freilich, p. 882.
^National Agricultural Lands Study, Final Report 1981, pp. 76-77. ^Callies and Freilich, p. 883.
of Agriculture to develop review criteria for determining the impact of selected federal programs on agricultural lands in that state.^
In 1981, Congress enacted the Farmland Protection Policy Act as a part of the Food and Agriculture Act of that year. 19 The farmland protection measures were adopted, it is presumed, at least partially in response to the findings of the NALS. The Act's Statement of Purpose reads as follows:
The purpose of this chapter is to minimize the extent to which federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses, and to assure that Federal programs are administered in a manner that, to the extent practicable, will be compatible with State, unit of local government, and private programs and policies to protect farmland.20
The Farmland Protection Policy Act (FPPA) directs the U.S. Department of Agriculture to develop criteria for identifying the effects of federal programs on farmland conversion. The law also requires agencies of the federal government to analyze the potential effects of federal agency actions upon agricultural lands, and to consider mitigative efforts to avoid any adverse impacts.2^ The Secretary of Agriculture has since promulgated rules to implement the Farmland Protection Policy Act, which establish criteria for identifying the effect of federal programs upon the potential conversion to nonfarm use of agricultural lands.22
^National Agricultural Lands Study, Final Report 1981, p. 76. 19Pub. L. No. 97-98 (Dec. 22, 1981), 7 U.S.C.A. Section 4201.
207 U.S.C.A. Section 4201 (b).
2^7 U.S.C.A. Sections 4202 (a).
22Title 7 Code of Federal Regulations Part 658.
Several major federal income tax enactments of recent vintage have been structured, at least in part, to assist farmers to remain active in farming. Two of the more important provisions in this regard are the Tax Reform Act of 1976^3 and the Economic Recovery Tax Act of 1981.24 Provisions included in these major federal tax initiatives modify assessment practices for farmland, and lessen the impact of estate taxes upon family farms.
While these measures deal first and foremost with the preservation of the family farm as an economically viable profession and lifestyle, they nonetheless have an consequential impact on farmland preservation. In fact, some local government measures intended to preserve farmland also approach the problem through taxing policy.
Few states attempt to comprehensively regulate land use, in a meaningful way, at the state level. Thus there have been relatively few attempts, on a comprehensive statewide basis, to address the issue of agricultural lands preservation. The state of Oregon is one notable exception.
The Oregon state comprehensive planning statute^ mandates land use planning in Oregon on a statewide basis. The issue of farmland
33Tax Reform Act of 1976, Pub. L. No. 9A-A55 (October A. 1976), 90 Stat. 172.
^Economic Recovery Tax Act of 1981, Pub. L. No. 97-3A (August 13, 1981), 95 Stat. 172.
25oregon Revised Statutes Annotated, Chapter 197, "Comprehensive Land Use Planning Coordination."
preservation is addressed in a variety of ways through this legislation. In fact, the "preservation of agricultural land is one of the primary objectives of Oregon's statewide planning program."26
The Oregon Legislative Assembly, through the state's comprehensive planning statute, has set forth the following policies for agricultural land use:
(1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic and economic asset to all of the people of this state, whether living in rural, urban or metropolitan areas of the state.
(2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutricious food for the people of this state and nation.
(3) Expansion of urban development into rural areas is a matter of public concern because of the unnecessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion.
(4) Exclusive farm use zoning as provided by law, substantially limits alternatives to the use of rural land and, with the importance of rural lands to the public, justifies incentives and privileges offered to encourage owners of rural lands to hold such lands in exclusive farm
This policy goal has spawned three major state-supported agricultural land preservation programs. First, in an effort to limit noncompatible, nonfarm land uses on agricultural lands, the Oregon
26R0nald Eber, "Oregon's Agricultural Land Protection Program," Protecting Farmlands, eds. Frederick R. Steiner and John E. Theilacker,
27oregon Revised Statutes Annotated, Section 215.243.
legislature established the concept of "Exclusive Farm Use Zones (EFU)."28 Agricultural land uses are encouraged and protected within the EFU zone, while a variety of compatible, nonfarm uses are also permitted. Nonfarm single-family dwellings are permitted only upon a finding that each dwelling is compatible with farm uses, does not seriously interfere with, or increase the cost of, adjacent farm practices, and is situated on land generally unsuited to farm use.29
Recognizing that the subdivision of large parcels of agricultural land into small lots encourages the exodus of the working farm, the Oregon statute requires divisions of land within an EFU to be consistent with the continuation of the existing commercial agricultural enterprises in the area. The latitude this standard gives local government in evaluating subdivision proposals takes into account the fact that agricultural activities in Oregon range from huge dryland wheat ranches in the eastern part of the state, to smaller, more intensive farming operations in the well-watered coastal and mountain areas.
A second major component of Oregon's farmland preservation legislation is the provision of certain tax benefits to agricultural land owners. These tax advantages include a form of preferential property tax assessment. Land zoned exclusive farm useand actively farmedis appraised at its farm-use value for property and inheritance tax purposes. Additionally, these lands are exempted from certain
28oregon Revised Statutes Annotated, Section 215.203.
^^Oregon Revised Statutes Annotated, Sections 215.213(3) and (4). Also, O.R.S.A. Section 215.283 (1986 Supplement).
special district and rural service assessments, such as sewer, water, and solid waste tariffs.30
The third and final major statewide measure in Oregon protecting agricultural land is Oregons "right-to-farm" law. The right-to-farm statute prohibits any state agency or local government from adopting a rule or ordinance that unreasonably restricts or regulates customary "farming practices."31 Right-to-farm laws are discussed in a generic sense in a subsequent section of this paper.
The state of Florida has also been a leading proponent of state-supported comprehensive land planning. Floridas 1979 state comprehensive plan enunciated a concern for the states threatened agricultural industry that extended beyond the issue merely of farmland preservation. The Florida statute also attempted to address other threats to agriculture, such as water supply and pollution issues.
The advisory nature of Florida's 1979 state comprehensive plan, however, resulted in the plan's having relatively little impact upon land use activities within the state. Nevertheless, the statute was at the legislative forefront in terms of identifying a need for farmland preservation. The 1979 Florida Comprehensive Plan's Objective E [Land] stated:
To prevent further harm to Florida's renewable resources lands through unregulated development, the state should embark upon a program to identify and preserve agricultural lands with special emphasis upon those agricultural lands
^^Eber, p. 166.
^Oregon Revised Statutes Annotated, Section 30.930 et seq. (as amended 1986 Supplement).
most seriously threatened by urban development or other
The state of Florida has since adopted a new, more authoritative comprehensive plan. Among the goals supporting Florida's agricultural industry, which are enumerated in the new plan, is a policy to "[c]onserve soil resources to maintain the economic value of land for agricultural pursuits and to prevent sedimentation in state waters."22 Another approach to statewide agricultural land preservation involves an interesting 'backdoor' approach that is being attempted by way of litigation in Connecticut. The Connecticut Environmental Protection Act34 mandates that the state's administrative agencies consider alternatives to development that threatens the state's natural resources.25 The plaintiffs, in a case now pending, are alleging that prime agricultural land in Connecticut constitutes a natural resource as contemplated by the state's Environmental Protection Act.26
22west's Florida Statutes Annotated, Section 23.0114(1). This provision has been amended and reconfigured, and is now found at West's F.S.A. Vol. 9A, Section 186.007 [Cumulative Annual Pocket Parts].
23west's Florida Statutes Annotated, Vol. 9A, Section 187.201(22)(b)(8). [1986 Cumulative Annual Pocket Parts]
3^Connecticut Environmental Protection Department and State Policy, West's Connecticut General Statutes Annotated, 22a-l et seq.
33west's Connecticut General Statutes Annotated, Section 22a-lb.
36Based upon a conversation with C. Luther Probst, a Hartford, Connecticut land use attorney representing the Red Hill Coalition, Inc., which is opposing the proposed Red Hill Subdivision, which will allegedly destroy "significant amounts of prime agricultural land."
While few states are taking an active role in conprehensively legislating the protection of agricultural lands on a statewide basis, many states have enacted various statutes encouraging farmland preservation. One of the most common is the right-to-farm law.
Pressures exerted upon farmers to discontinue farming operations, due to the adverse off-site impacts they may have on neighboring land uses, have resulted in the enactment of what are commonly called "right-to-farm" laws. These statutes, which have been adopted by some 47 states as of December, 1983,^8 are intended to at least partially insulate farmers from the complaints of adjoining land owners who object to the off-site impacts of conventional farm operations.
Although they vary considerably, right-to-farm laws attempt to do two things. First, they all seek to supercede the common law of nuisance, the fundamental legal doctrine most frequently used to challenge farming in urban/rural transitional areas. Second, they attempt to favor agricultural uses of land above all others, especially those which inherently conflict with farming. Right-to-farm laws generally seek to establish a "first in time, first in right" priority
^The general discussion of right-to-farm legislation contained herein is excerpted from a paper entitled "Agriculture in Conflict: The Right-to-Farm Laws and the Peri-Urban Milieu for Farming," by Mark B. Lapping and Nels R. Leutwiler.
38jacqueline P. Hand, "Right-to-Farm Laws: Breaking New Ground In The Preservation of Farmland," 45 University of Pittsburgh Law Review, (Fall 1984), 297.
wherein pre-existing farming uses of land have primacy over all others.
The Law of Nuisance
Right-to-farm laws are founded upon the idea of altering the common law doctrine of nuisance to protect existing farming operations from conventional nuisance claims. Common law nuisances are classified into private or public nuisances. The distinction between the two has been summarized as follows:^9
A public nuisance impairs the health, safety, morals and comfort of the general community without necessarily harming particular property rights in any special way. A private nuisance unreasonably interferes with the use and enjoyment of another's land. Although theoretically quite distinct, the distinction between the two may be of little practical significance.
Right-to-farm laws, attempting as they do to reorder the relative property rights of neighboring land users, are concerned primarily with private nuisance. A private nuisance is a civil wrong whose remedy lies in the hands of the individual whose rights have been disturbed.
In order to have an actionable nuisance, there must be a substantial and unreasonable interference with the property interest being asserted.
This interference can be either negligent or intentional. For the purposes of farm operations, an action constituting a nuisance will be deemed to have been intentional, although it was unintended, if it was an easily foreseeable consequence of the farmer's otherwise legal
^Donald G. Hagman, Urban Planning and Land Development Law, p. 289.
^^William L. Prosser, Law of Torts, p. 573.
farming activities. Thus, the migration of sprayed farm pesticides onto a neighbors land is considered an intentional nuisance, despite that fact this particular result is unintended.
A nuisance emanating from farming operations may also arise from negligent conduct, where the defendant has failed to take precautions against risks apparent to a reasonable man. The right-to-farm laws generally except from protection agricultural activities that are conducted in a negligent manner. For example, the North Carolina statute exempts from right-to-farm protection activities involving "the negligent or improper operation of any such agricultural
Most nuisance-driven land use disputes focus on the reasonableness of the defendant's conduct. Since all property owners are entitled to the reasonable use and enjoyment of their lands, some balance must be struck between the discordant and often incompatible uses to which lands are put.^3 ln each case, the court must make a comparative
evaluation of the conflicting interests according to objective legal standards, and the gravity of the harm to the plaintiff must be weighed against the utility of the defendants conduct.^
Because any number of otherwise reasonable actions can be considered nuisances under particular conditions, courts are often
^Prosser, p. 574.
^^North Carolina Gen. Stat. Section 106-701(a)(Supp. 1982).
oger A. Cunningham and Daniel R. Mandelker, Planning and Control of Land Development, 2nd ed., p. 37.
^Prosser, p. 596.
reluctant to find fault under the nuisance doctrine. "Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least
Right-to-farm laws tip the balance further in favor of the defendant, by statutorily declaring that standard farming practices are reasonable land uses, despite their potentially adverse impacts upon neighboring lands. The laws also alter the balancing process by establishing legislatively that the utility of farming outweighs, at least to some enhanced degree, a measure of incidental harm to neighboring landowners.
Right-to-farm laws also modify relative property rights in instances where property owners are said to have "come to the nuisance."^6 This oft-litigated aspect of nuisance law involves situations where an aggrieved plaintiff/landowner has purchased and occupied land despite the presence of clearly incompatible land uses, of which the plaintiff had prior notice.
The prevailing rule states that in the absence of a prescriptive right, the defendant cannot compel the surrounding premises to endure the nuisance, and that the purchaser is entitled to the reasonable use and enjoyment of his land to the same extent as any other owner.^ Right-to-farm laws generally modify this rule by expanding the priority
45prosser, p. 580.
^^See Spur Industries, Inc, v. Del E. Webb Development Co., 494 P. 2d 700 at 706.
^Prosser, p. 611.
rights of agricultural land users. These laws allow farmers to perform certain operations upon the land, based upon being there first, when priority in time ordinarily would not be a controlling factor in a common law nuisance action.
Key Provisions of Right-to-Farm Laws
The many states that have so-attempted to shield farmers from nuisance actions have taken a number of approaches to preserving the right-to-farm. The essential provisions for such a statute are discussed below.
Definition of a Farming Operation
In order to enjoy the protection afforded by right-to-farm statutes, an agricultural operation generally must satisfy statutory standards concerning what constitutes a "farm" and an acceptable "farm practice." These terms are defined broadly within the statutes, in order to provide for expansive application of the laws' protection.
The Oregon statute, for example, defines "farm" as a facility "used in the commercial production of crops, livestock, poultry, livestock products or poultry products.The term 'commercial' within this atypical definition can prove critical, since it may serve to exclude from protection the activities of landowners on large-lot 'hobby farms.'
The manner in which the term "farming operations" is defined is important for two reasons. Farming operations must be defined in such a manner as to not lock farmers into the methods and technologies existing at the time of the law's passage. The Oregon provision
^Oregon Revised Statutes Annotated, Section 30.930.
broadly defines farming practices in terms of present and future operations, thus eliminating the need to continually revise the law in order to provide coverage for advancements in farming technology
The right-to-farm statutes commonly limit their protection to farming operations which are "non-negligent." Negligence, as applied to nuisance law, involves situations "where there is no intent to interfere in any way with the plaintiff, but merely a failure to take precautions against a risk apparent to a reasonable man."50
The right-to-farm laws define negligent conduct with varying degrees of specificity, presenting the danger, in the case of a vague statute, that the courts will be needed to evaluate individual farming operations. The New Hampshire law exemplifies the statutes providing greater statutory guidance concerning the issue of negligence, stating that: "[agricultural operations shall not be found to be negligent or improper when they conform to federal, state, and local laws and regulations."51
The New Hampshire-type definition can also leave a great deal of uncertainty regarding the propriety of various agricultural activities, depending upon the amount of guidance provided by state and local laws and regulations. A proposed model right-to-farm statute would address
^Jennifer B. Todd, "The Right To Farm In Oregon," 18 Willamette Law Review, (1982), p. 158.
50prosser, p. 578.
5lNew Hampshire Revised Statutes Annotated, Chapter 430-C, Section 3 (Supp. 1983).
this issue by establishing a certification procedure for agricultural
Establishing a Priority
The statutes use a variety of ways to establish the right to a preference under a state's right-to-farm law. Some states employ priority of ownership, requiring that the farmer have owned his farm prior to the complaining neighbors purchase of his land. The majority of statutes focus not upon a priority based upon date of purchase, but rather upon the defendant/farmer's use of the land prior to the changes in the locality as a whole.53 These "prior use" statutes focus on the issue of whether agricultural operations were a reasonable land use at the time of their commencement, and have become less so only due to changes in the character of the surrounding area.
There is yet a third method of conditioning the right to
protection under the right-to-farm laws. The so-called "statute of limitations type" of laws require the farm to have been in operation for at least one, and in some statutes three, years prior to the neighboring complainant's land use.
At the heart of right-to-farm laws is the desire to protect innocent farmers from land use actions or conditions that evolve
33Edward Thompson, Jr., "Defining and Protecting the Right to
Farm (Part 2)," 5 Zoning and Planning Law Digest. (October 1982), p. 67.
53Hand, p. 308.
3^Edward Thompson, Jr., "Defining and Protecting the Right to
Farm (Part 1)," 5 Zoning and Planning Law Digest. (September 1982), p.
around them, over which they have no control. The possibility exists, however, that the land use conflicts precipitating a nuisance lawsuit were caused by the farmer himself, as he shaved acreage off of the farm and sold it for residential development.
The State of Washington's statute recognizes this possiblity and limits the extent of right-to-farm protection that will be available to farmers who have so subdivided their landholdings.55 jn effect, the Washington Legislature has demonstrated a willingness to help farmers to resist those persons "coming to the nuisance," but not if the farmers themselves are the ones to entice the movement to the nuisance. Attorneys' Fees
Having the law on one's side may not be enough for a beleagured farmer who is being continually dragged into court to defend his farming activities under the provisions of a right-to-farm statute. The expense in time and attorney's fees to oppose what could literally be "nuisance" lawsuits may encourage the farmer to terminate his farming operation.
While several states prohibit such suits under the terms of their right-to-farm statutes, at least one state has addressed the liability for attorneys' fees directly. The Texas law provides that parties bringing nuisance suits, against farmers shielded by the statute, shall be "liable to the agricultural operator for all costs and expenses incurred in defense of the action, including but not limited to
^Washington Revised Code Annotated, Title 70, Chapter 94.640(4).
attorney's fees, court costs, travel, and other related incidental expenses incurred in the defense."56 Trespass Right-to-Farm's Achilles Heel?
Legal actions founded in trespass, a legal doctrine akin to nuisance, pose a significant threat to farmers whose agricultural activities are ostensibly protected under right-to-farm laws. The Restatement of Torts concludes that "the line between trespass and nuisance has become wavering and uncertain."57 Traditionally, the courts required a physical invasion of a landowner's property by tangible substances in order for an act to constitute a trespass.
In recent years, however, a test for trespass has evolved, in many jurisdictions, which merely requires that the complained of activity interfere with a landowner's exclusive possession of his property. Under this broadened test, airborne odors and particulate matter, which frequently are the cause of farm-related land use conflicts, would constitute a cause of action under trespass. Since right-to-farm laws generally limit their protection of farmers to a partial shield againsts nuisance actions, the farmers in many jurisdictions will remain vulnerable to lawsuits brought under a trespass theory.58
56vernon's Texas Codes Annotated Agriculture, Title 8: Protection and Preservation of Agricultural Operations, Section 251.004(b).
57prosser, p. 594.
58Dana Ann Bradbury, "Suburban Sprawl and the Right to Farm," 22 Washburn University Law Review, p. 463.
Differential Property Assessment
Real property taxes frequently consume as much as fifteen to twenty percent of a farmer's net agricultural income. In urban fringe areas, real property tax liabilities can equal or exceed farm income. This is sometimes the case when farm property is assessed not in terms of its productive capacity as farmland, but rather in terms of its potential value in more intensive land uses.59
Due largely to the pressure greatly increased property tax liabilities can put on farmers to discontinue farming and turn the land over to developers, all but two of the fifty states have adopted some special method of taxing agricultural land.60 Incidentally, these special taxing or assessment methods are also considered justifiable, and rightly so, due to the fact that agricultural land typically places far less demand upon local government for the services and facilities which consume tax dollars.
Kansas, one of remaining states without a formalized preferential agricultural lands taxation system, may climb aboard the bandwagon in November, 1986. There is an initiative on the November ballot in
59Randall W. Hanna, "'Right To Farm' StatutesThe Newest Tool In Agricultural Land Preservation," 10 Florida State University Law Review (1982), p. 420.
60Edward P. Thompson, Jr., "Protecting Agricultural Lands," Land Saving Action, eds. Russell L. Brenneman and Sarah M. Bates, p. 65.
Kansas^ to amend a provision of the state constitution which now prohibits differential real property assessment.62
While the precise mechanics of the systems of differential property assessment vary from state to state, the characteristic common to all is some mechanism to assess farmland not at its "highest and best use," but rather at its value in agricultural production.63
A farmland taxing scheme common to many states is the preferential assessment system, where qualifying agricultural land is assessed strictly on the basis of farming applications. A significant characteristic of the so-called "pure" preferential assessment system is that they require only that land be designated as agricultural land in terras of its present use in order to qualify for the lowered taxation.^4 Pure preferential systems, then, lack the provision for punitive assessments when the land finally is converted to nonagricultural use.
Estate of Kansas Proposed Constitutional Amendment #3 (HCR 5018). [This proposal was passed by the voters in the November 4, 1986 election.]
^State of Kansas Constitution Article 11, Section 1.
63l}yron E. Nelson, "Differential Assessment of Agricultural Land in Kansas: A Discussion and Proposal," 25 University of Kansas Law Review. (1976-1977), p. 216.
^Jackson, p. 186.
Property Tax Deferral
Real property tax deferral is another system of differential assessment. In this system the county assessor records dual valuations for agricultural landan agricultural use valuation and a full valuation of the property in its optimal economic use.65 Upon the sale of agricultural land at its developable value, under this scheme, a "rollback" provision captures the difference between the two assessments. Over half of the fifty states have some system of deferred real property taxation for agricultural lands.66
Other State Inducements to Preserve Farmland
Right-to-farm laws and legislation mandating preferential property tax treatment for agricultural lands are two programs enacted at the state level to encourage the preservation of farmland. There are several other methods of encouraging farmland preservation that are typically implemented on the local level.
While these other schemes are implemented by local government, they nonetheless generally require the blessing of the state legislature in the form of enabling legislation. Therefore, to at least some extent, many of these locally-implemented farmland preservation systems involve the encouragement and support of the states.
65National Agricultural Lands Study, An Inventory of State and Local Programs to Protect Farmlands, (pages not numbered in document)
66Hanna, p. 422.
Local Farmland Preservation Programs
Locally implemented farmland preservation techniques fall into two general classes; those involving agricultural zoning or districting, and those employing the purchase or transfer of development rights. Agricultural zoning or districting, a regulatory approach derived from traditional Euclidian zoning, gives agricultural land use a somewhat nontraditional stature. Farmland preservation systems based upon the severance of the developmental potential of the agricultural land from the land itself, on the other hand, have evolved from an innovative land use regulatory device which has typically been employed in urban settings as an urban design or historic preservation tool.
An early regulatory means of favoring farming, and thus promoting
the preservation of agricultural land, was a statutory exemption of
farming activities from the provisions of zoning ordinances.6? Kansas
is an example of a state which exempted farming operations from the
requirements of local zoning. The Kansas statute provides that:
No determination nor rule nor regulation shall be held to apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise.6
6^Callies and Freilich, p. 884 ^Kansas Stat. Ann. 19-2921.
Despite the recent changes and innovations in the regulation of land use, "zoning remains the most frequently used and potentially the most effective land use control device to protect and preserve agricultural lands."69 There are a number of ways in which zoning can be employed to help preserve agricultural lands. One popular approach is a departure from the use of traditional 'cumulative' zoning. Another method is simply to tighten up the land uses permissable in agricultural land use zones. The approach utilized depends upon the structural dynamics of the zoning ordinance itself.
When zoning initially emerged as a land use regulatory tool, zoning ordinances almost always employed "cumulative" zoning. That is, use zones that permitted progressively more intensive land uses also permitted any land uses permissable in the more "exclusive" zones.^0 In many cases agricultural zoning was a catch-all land use classification at the bottom of the land use 'pyramid.' This allowed any number of potentially conflicting land uses within the
Conversely, some local zoning ordinances placed agricultural zones at the 'top' of the land use pyramid, making them potentially the most restrictive zones. Regardless of the relative position of agricultural zones within a zoning ordinance's land use hierachy, the definition of acceptable land uses within the agricultural zones is
^^Hagman and Juergensmeyer, p. 490.
^Hagman, Urban Planning and Land Development Law, p. 107.
often quite lax or imprecise. This imprecision frequently results in a variety of land uses, potentially incompatible with serious agriculture, being approved within the zones ostensibly devoted to farming-related land uses.
As a result of this structural lack of integrity for agricultural land use zones, incompatible land uses were often allowed to infiltrate agricultural areas and eventually force the farmers out. In response to this problem, many communities and counties are adopting exclusive agricultural zoning, as a means of prohibiting conflicting land uses. In exclusive agricultural zones, nonfarm dwellings are prohibited or strictly limited; a performance definition of farm or farm use is employed; and each request to build a farm dwelling requires individual review.71
In addition to exclusive agricultural zoning, other agricultural zoning techniques include; very low residential density control, large lot zoning, subdivision restrictions, prime agricultural land preservation, and lot frontage control.72 These techniques, while also intended to favor and thus preserve agricultural land, attempt to do so with less Draconian means than exclusive agricultural zoning.
As a result of heavy growth in the early 1970's, the York County (Pa.) Planning Commission became concerned over the problem of agricultural land conversion. To assist the planning commission to
^Robert E. Coughlin and John C. Keene, "The Protection of Farmland: An Analysis of Various State and Local Approaches," 33 Land Use Law and Zoning Digest, (June 1981), p. 8.
^William J. Conn, "Techniques for Protecting Prime Agricultural Land: Zoning Applications in York County, Pennsylvania," Protecting Farmlands, eds. Frederick R. Steiner and John E. Theilacker, p. 99.
develop a farmland preservation system that would work for York County, the planning commission staff reviewed and categorized six techniques for agricultural zoning.^3 This summary, which provides a valuable analysis of the relative merits of the six techniques, is produced on the following two pages.
^Conn, p. 98.
TABLE 10.1 Techniques for Agricultural Zoning
I. Exclusive agricultural zoning
The use of land in agricultural zones would be limited to agricultural uses and related supporting uses. Activities of a residential (other than farmsteads), commercial, or industrial nature would be prohibited.
II. Very low residential density control
All agricultural uses would be permitted. Residential uses would be permitted in the agricultural zones on a very low density basis (1 dwelling unit per 25 -50 acres,
10.125 -20.25 ha) however, dwelling units could be located on a minimum lot size of 1 -2 acres (0.405-0.810 ha). No commercial or industrial uses would be permitted.
(1) Protect agricultural operations from conflicting land uses.
(2) Stabilize agricultural land values.
(3) Provide for orderly extension of public facilities and services.
(4) Totally prevent scattered or sprawl development.
(5) Would preserve prime agricultural lands for future food production.
(6) Would completely prevent intensive residential subdividing.
(1) Would help to stabilize agricultural land values.
(2) Would provide for the preservation of some prime agricultural lands for future food production.
(3) Would provide limited opportunity for people to live on residential lots in the agricultural areas.
(4) Would generally prevent intensive residential subdividing.
III. Large lot zoning
(4) Would provide for the preservation of some prime agricultural lands.
(5) Would slow down the rate of residential development in the agricultural areas.
All agricultural uses would be permitte'd. Residential uses would be permitted to take place only on lots of 5 acres (2.025 ha) or more in size. No commercial or industrial uses would be permitted.
(1) Would stabilize agricultural land values to a limited extent.
(2) Would provide limited opportunity for people to live in the agricultural areas.
(3) Would prevent intensive residential subdividing.
(1) Deny rural landowners the speculative benefit from the sale of land.
(2) May initially slow down the township tax base increase.
(3) Would eliminate the opportunity for people to live on residential lots in the agricultural areas.
(1) Would probably result in a pattern of scattered roadside development.
(2) Would deny rural land-owners of most of the speculative benefit from the sale of the land.
(3) Would require limited public services and facilities to be provided throughout the rural area.
(4) Would not guarantee preservation of prime agricultural lands.
(5) Would not completely eliminate the conflict between agricultural and other land uses.
(1) Would require limited public services and facilities to be provided throughout the rural areas.
(2) Would result in large lots as isolated units or in subdivisions to be scattered throughout the rural areas.
(3) Would provide the opportunity for only wealthy people to live in the agricultural areas.
(4) Would partially reduce the speculative value of land for rural landowners.
(5) Would not guarantee the preservation of prime agricultural lands.
(6) Would not prevent the conflict between agricultural and other land uses.
(7) Wastes land.
TABLE 10.1 (Continued)
Technique Description Advantages
Subdivision All agricultural uses (1) Would provide oppor- (1)
restrictions would be permitted. tunity for some residen-
Residential subdivi- tial lots in the agricul-
sions (other than minor tural areas.
subdivisions) would be (2) Would prevent intensive (2)
prohibited in agricul- residential development
tural zones or permit- not served by public
ted only when connected water or sewers or at (3)
to public water and least permit it only in
sewer facilities. No conjunction with the
commercial and indus- orderly extension of (4)
trial uses would be public services.
permitted. (3) Would provide for the
preservation of some prime agricultural lands or at least assure more (5)
open, undeveloped land.
Prime All agricultural uses (1) Would preserve all prime (1)
agricultural . would be permitted. agricultural lands for
land Residential uses would future food production.
preservation be permitted only on (2) Would partially help to (2)
soils other than the stabilize agricultural
prime agricultural soils land values.
(Classes I, II, and possi- (3) Would provide the oppor- (3)
bly III). Commercial tunity for people to live
and industrial uses on residential lots in
would not be permitted. the agricultural areas. (4)
Lot frontage All agricultural uses (1) Would generally prevent (1)
control would be permitted. intensive residential
Residential uses would subdividing.
be permitted with lot (2) Would only slightly sta-
sizes of from 1 to 2 bilize agricultural (2)
acres (0.405 to 0.81 ha) land values.
but extended frontage (3) Would only partially
(250- 300 ft, 76.25- preserve prime agricul- (3)
91.5 m) would be tural lands for future
required. Commercial food production.
and industrial uses (4) Would provide the oppor-
would not be permitted. tunity for people to live on (4)
residential lots in the agricultural areas. (5)
Source: York County Planning Commission, 1975.
Would result in isolated roadside development still being scattered throughout the agricultural areas.
Would not prevent the conflict between agricultural and other land uses.
Would not guarantee the preservation of prime agricultural lands.
Would only partially reduce the speculative value of land for rural landowners. Would probably require the extension of some public services and facilities into the agricultural areas.
Would not prevent intensive residential development.
Would encourage the haphazard scatteration of residential uses.
Would only partially prevent the conflict between agriculture and other land uses.
Would eventually require the provision of public services and facilities throughout the rural area. Would only partially reduce the speculative value of land for rural landowners.
Would tend to result in stripped roadside development along the existing improved roads.
Would not guarantee the preservation of prime agricultural lands.
Would require the provision of public services and and facilities throughout the agricultural lands.
Would only partially reduce the speculative value of land for rural owners.
Would not prevent the conflict between agricultural uses and other land uses.
As a result of York County's exhaustive analysis, several townships within the county adopted agricultural zoning classifications. The North Hopewell Township zoning ordinance limited new single family dwellings in its rural agricultural zone to a set number (six) on an existing tract of land regardless of size of the tract (assuming minimum lot size characteristics were satisfied)
Peach Bottom Township, on the other hand, employed what has been termed a "sliding scale" approach. The Peach Bottom Township's ordinance regulated the number of new single family dwellingsto be permitted upon a single, existing tractaccording to a sliding scale which increased the permissible number of units in proportion to the size of the landholding.^5
These two 'hybrid' forms of agricultural zoning met with differing fates upon challenges to their legality in the Pennsylvania courts. The Hopewell Township ordinance was invalidated by the Pennsylvania Supreme Court, for its failure to impose its restrictions in reasonable relation to the parcel sizes at issue, in what is now regarded as a landmark decision concerning non-exclusive agricultural zoning.^6 Conversely, a sliding-scale system similar to that employed in Peach
^Hopewell Township Board of Supervisors v. Golla, 452 A.2d 1337 (1982), at 1343.
^Conn, p. 104.
^Hopewell Township Board of Supervisors v. Golla. 452 A.2d 1337 (1982).
Bottom Township was upheld in 1983 by the Court of Common Pleas of York
Unlike zoning, the use of land in an agricultural district is not completely regulated by the state's police power.78 In the several states^ that have enacted agricultural district enabling legislation, agricultural landowners whose holdings meet specified acreage minimums are authorized to form special protective districts. While the laws vary from state to state, the landowner, in return for agreeing to restrict his land to agricultural use for a set period of time, and to utilize sound soil conservation practices, receives certain benefits. These advantages include:^0
1. Differential property tax assessment based upon agricultural use.
2. Exemption from special assessments unless they use the
3. Restrictions on local governments' power to regulate farming practices unless public health and safety is concerned.
4. Limitations on capital improvement expenditures promoting
5. Limitations upon governmental acquisition of land by eminent domain.
6. Conformance of state agency regulations and procedures to
support agriculture within districts.
77Cor stiaan Van Vugt v. Zoning Hearing Board of Springfield Township, (as reported in Conn, p. 106)
78Hanna, p. 418.
79The se states include California, Illinois, Iowa, Maryland, Minnesota (limited to Twin Cities Metro. Area), and Virginia. (Callies and Freilich, p. 885)
SOCallies anc* Freilich, p. 885.
7. Limitations upon the annexation of land.
8. Limitations upon the rate of tax increases.
9. Zoning of adjacent lands to reduce conflicts.
10. Anti-nuisance provisions.
As the above listing of the common characteristics of agricultural districts reveals, this form of farmland protection is in some respects an amalgamation of the other techniques described previously, such as right-to-farm laws and preferential taxation. The major advantage and appeal of the agricultural districting approach lies in its emphasis upon voluntary compliance and local initiative.
Purchase of Development Rights
Agricultural land preservation systems involving the concept of development rights endeavor to separate the various rights incident to the ownership of farmland. The right to farn the land, under these schemes, becomes distinct from the right to develop the land for nonfarming uses. This type of farmland preservation system has the additional benefit of simultaneously lessening the property tax burden upon the owner, because the assessed value of the agricultural land is reduced to reflect alienation of the farmer's development rights.
Under programs involving the purchase of development rights, the local government (or possibly the state) actually purchases the right to develop a parcel of agricultural land for uses other than farming. The government's purchase leaves the landowner all of the other rights
^Hagman and Juergensmeyer, p. 493.
^Hanna, p. 419.
of ownership, enabling him to continue to work the land at its current
Determining the value of the development rights of a parcel of agricultural land is relatively straightforward, although the appraisal process itself may be fraught with controversy. The development rights are simply defined as the difference between the market value of the land, i.e. its highest and best use, and the land's value solely for agricultural purposes.An appraisal of the land in question must thus be performed on the basis of its market value as farmland, and a second appraisal values the land in terms of its development potential.
There are two basic approaches to acquiring development rights. One method is to obtain them directly through purchase. The second approach is for the governmental entity to purchase the property in full fee, impose restrictions on its development, and then sell or lease the land, subject to those restrictions.Yet a third method of obtaining the development rights could be in the form of a charitable donation, entitling the donor to the associated tax benefits.
A noteworthy example of a purchase of development rights scheme involved King County, Washington. In 1979, the county's electorate approved a $50 million bond issue to purchase the development rights on designated farmlands within that county. This reportedly marked the
Hanna, p. 419.
^Callies and Freilich, p. 900.
National Agricultural Lands Study, Final Report 1981, p. 66.
first time that a purchase of development rights program had been approved in a general election anywhere in the United States.
Transfer of Development Rights
An agricultural land preservation concept closely related to the public sector purchase of development rights (PDR's) is the private market device termed the transfer of development rights (TDR's). In addition to their use in preserving agricultural lands, TDR's have also been employed, perhaps more commonly, to preserve historic sites and structures.^
The transfer of development rights approach to farmland preservation designates agricultural lands within certain zones to be eligible for development rights transfer, but ineligible for development for nonagricultural uses. Landowners within the designated agricultural area transfer the nonfarm development rights to their other landholdings, or sell the development rights to other landowners who wish to develop in areas where intense development is permitted. These development rights enable the transferee to engage in higher density development upon those lands than would otherwise be permissable.
The key potential advantage of TDR programs over virtually all other approaches to agricultural lands preservation is that the
86john Spellman, "King County's Purchase of Development Rights Program," Protecting Farmlands, eds. Frederick R. Steiner and John E. Theilacker, p. 81.
87penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) is a landmark historic preservation decision involving the use of TDR's.
restricted farmland owners receive compensation for their lost development potential, but without the need for the expenditure of public funds.
An example of a TDR system applied to the preservation of agricultural land is that of Montgomery County, Maryland. The county government downzoned about one-third of the 500 square mile county to agricultural uses. The affected landowners were then permitted to sell transferable development rights to developers in other parts of the county. The system has kept land prices in the agricultural reserve area low (when the development rights are partitioned), resulted in private market transactions involving hundreds of TDR's, and cost the county itself nothing other than the expenses of administering the system.9
A method of farmland preservation somewhat related to the separable development rights concept is the granting of a conservation easement. "A conservation easement is created when a landowner restricts his right to develop his own land in ways that would be incompatible with its use as farmland."90 In return for some form of consideration, or again, perhaps as a charitable act, a landowner forfeits his right to use his land for purposes other than farming.
Hagman and Juergensmeyer, p. 498.
^Richard E. Tustian, "TDRs in Practice: A Case Study of
Agricultural Preservation in Montgomery County, Maryland," 1984 Zoning and Planning Law Handbook, ed. J. Benjamin Gailey, p. 223-224.
^^Hagman and Juergensmeyer, p. 499.
Difficulties in implementing comprehensive planning policies through zoning and other land use regulations have long spurred suggestions that public agencies simply acquire land intended for development and make it available on the private market in accordance with planning policies when the time comes to develop it.91
The above passage describes the concept of land banking, another potential form of agricultural land preservation. Land banking is actually quite closely related to the purchase of development rights, at least in those situations where the governmental entity purchases the farmland outright and then conveys it back to a farmer in the form of a limited fee, absent the right to develop the land for nonagricultural purposes.
Other "Flexible11 Zoning Techniques
Yet another potential form of land use regulation which could be employed to preserve agricultural land is through the administration of flexible zoning techniques, such as cluster zoning and planned unit developments (PUD's). Cluster zoning permits a reduction in minimum lot sizes, under circumstances that assure that the amount of land reduced from the minimum size of each lot will be aggregated and set aside within the development as open space for recreational, conservation, or other amenity-based purposes.92 This approach can be used to concentrate the intensively developed portion of a tract away
9lRoger A. Cunningham and Daniel R. Mandelker, Planning and Control of Land Development, p. 967.
92jerome Rose, Legal Foundations of Land Use Planning, p. 176.
from adjoining farmland, thus lessening the potential land use conflicts between the differing uses.
The planned unit development concept generally takes clustering one step further and allows for not just the aggregation of structures, but also the congregation of a variety of different land uses. The PUD permits a mix of uses within a development, so that various housing typesfor example, multi-unit apartment buildings, townhouses, and single family dwellingsco-exist with open spaces, recreational areas, small-scale commercial activities, and business/professional uses.
As is the result with clustering, planned unit development permits structures to be grouped in a manner that provides open space within the development. This open space can then be situated in a manner to buffer the new development from existing agricultural uses. Additionally, the provision for a mixture of land uses enables the development to provide a space to accommodate land use activities generated by the development, that otherwise might need or desire to locate on adjacent farmland.
Cluster zoning and planned unit developments can have the effect of lessening the potential conflict between agricultural lands and other, more urban land uses. This beneficial result is, however, incidental to the primary purpose behind these two forms of flexible zoning. That primary purpose is to provide developers with more design flexibility.93 Since any beneficial effect upon farmland preservation
^^Donald G. Hagman, Public Planning and Control of Urban and Land Development, p. 559.
is likely to be gratuitous, clustering and PUD's cannot be considered a major factor in agricultural land preservation.
Summary of State Controls
As the above review illustrates, there are a variety of measures either implemented, or authorized, at the state level to attempt to preserve farmland and eliminate its conversion for other land use activities. The following table provides an idea of the degree to which these farmland preservation tools have been put to use throughout the United States (as of 1984).
State* Using Farmland Protection Tools
State T r AD PDR TDR AZ RFL GEO State TV AD PDR TDR AZ RFL CEO
AL X X 8 MT X X 23
AK X 1 NB X X 1
AZ X X X 19 NV X 1
AR X X 2 NH X X X 100
CA X X X 15 NJ X X X X X 9
CO X X X 19 NM X X 44
CT X X X X 70 NY X X X X X 16
DE X X X 13 NC X X 17
FL X X 100 ND X X X 2
GA X X X 14 OH X X 9
HI X X X 20 OK X X 1
ID X X X X 4 OR X X X 9
IL X X X X X 4 PA X X X X X X X 21
IN X- X X 4 RI X X X 100
IA X X X 2 SC X X 20
KS X 1 SD X X 8
KY X X X X 10 TN X X 9
LA X 2 TX X X 5
ME X X X 1 UT X X X 35
MD X X X X X X X 44 VT X X X 43
MA X X X X X 51 VA X X X 24
MI X X X 11 WA X X X X X X 23
MN X X X X 2 WV X X 73
MS X X 5 Wl X X X 1
MO X X 2 WY X X 1
"The seven basic protection tools are tax incentives, agricultural districting, purchase of development rights, transfer of development rights, enabling legislation for agricultural zoning, right to farm laws, and governors' executive orders.
* "This column represents the percentage of farmland each state can expect to lose by the year 2000 if conversion continues at the 1967-1975 rate, as projected by the National Agricultural Lands Study.
Several of the farmland conservation programs described above have also been utilized by private sector organizations interested in the preservation of agricultural land. Specifically, conservation easements, development rights purchases, and the concept of land banking have been used in this manner.
Private sector groups active in farmland preservation are generally structured as charitable organizations, and are commonly referred to as private land trusts. In order to qualify as a charitable organization, the trust must exist for a charitable purpose and operate for the benefit of an indefinite group of persons. Additionally, the trust must satisfy various state laws relating to charitable organizations and numerous federal and state tax laws and regulations.^ By so qualifying, the private land trust is eligible to accept tax deductible or tax exempt charitable donations of agricultural lands.
The American Farmland Trust (AFT) is an example of the private conservation organizations functioning throughout the nation to preserve agricultural lands. The AFT, a private organization committed exclusively to agricultural land preservation, frequently negotiates to purchase farmlands from owners interested in selling their lands under a governmental purchase of development rights program.95
The AFT functions as a go-between for the farmer and local government in instances where the local PDR program is not responsive
9^Hagman and Juegensraeyer, p. 501.
^Thompson, Jr., "Protecting Agricultural Lands," p. 68.
enough to the farmer's need to sell. The farms are typically purchased by the American Farm Trust outright, with the development rights eventually sold to the cooperating state or local agency. The underlying land is then conveyed, generally at less than half its fair market value, typically to a young farm family who otherwise could not afford to purchase their own farm.96
Another example of the involvement of non-profit organizations in agricultural land preservation is the "Gifts of Heritage Program" administered by the National Trust for Historic Preservation. This program is intended to keep historically significant, working farms in agricultural production.
The Trust acquires farms through donation and then sells them to persons interested in working the farms, while the Trust retains the development rights. The Trust's program takes the farmland protection process a step further by endeavoring to also preserve the historic structures and historically or culturally noteworthy physical characteristics of the farm, such as wind-rows and fence lines.9?
Summary of Farmland Preservation Programs
As the preceding review illustrates, there are a wide range of programs in existence, at all levels of government, which were designed, or have been adapted, to the cause of agricultural land
96Thompson, Jr., p. 68.
9^This information is based upon a presentation by Ms. Marilyn Fedelchek, Director of the Rural Conservation Project, National Trust for Historic Preservation, at Kansas State University on October, 20, 1986.
preservation. The purpose of the above analysis of farmland preservation measures is to familiarize the reader with the various perservation programs, so that you are better able to evaluate the basis or legitimacy of the agricultural land preservation movement* in terms of discussion that follows.
Weaknesses in Faraland Preservation Techniques
As the above discussion demonstrates, government at all levels in the United States has come up with a variety of regulatory measures that fall under the rubric of "agricultural land preservation." In evaluating the effectiveness of the various schemes, the ultimate goal that these measures endeavor to serve must be considered. Presumably, farmland protection measures are being undertaken with the goal of keeping land in productive farm use for the foreseeable future, arguably foreverhowever long that may be.
Unfortunately, it appears that most, if not all of the leading farmland preservation techniques discussed above have serious structural weaknesses which threaten their ability to adequately protect farmland from conversion to other land uses. The obvious and inherent flaws in so many of these measures inevitably lead to questions of whether a concern over the decrease in farmland is the real thrust behind these regulations.
The following analysis will briefly investigate the agricultural land preservation measures in terms of some of these inherent weaknesses.
Right-to-farm laws attempt to legislatively shield farmers from common law nuisance lawsuits that frequently result when more urbanized land users move into a traditionally agricultural area. These law
suits, or the mere threat of them, may foment the termination of a viable farming operation in favor of development of the lands for other uses. Right-to-farm laws, therefore, function to help preserve the option of farming for as long as a farmer might choose to do so.
However, should a farmer, or his heirs, decide to sell the farm to developers, the right-to-farm laws do not stand in the way. In fact, a right-to-farm statute, founded upon a time-based priority of ownership, may even fail to protect the agricultural status of the land in the event of a purchase or transfer to another party who nonetheless desires to continue farming it.
Right-to-farm laws, then, strive to preserve the right of farmers to continue existing farming operations. This has the obvious effect of perpetuating the use of the lands involved for farming. The continued use of these lands for farming will last only as long as the farmer, or his heirs, choose to continue in the occupation of farming. This structural limitation in what right-to-farm laws can accomplish makes them of limited value in terms of real agricultural land preservation.
Differential Property Tax Assessment
The various forms of real estate tax relief granted to lands used for farm operations have the same limitations, in terms of long-term agricultural land preservation, as the right-to-farm laws. That is, the tax preferences only prevent farmland conversion for as long as the farmer wishes to continue farming. Should the farmer, or his heirs, finally succomb to the allure of the big development dollars
that may be possible, there is little that the tax preferences can do to stand in the way.
In the case of property tax deferral, there is at least the threat of a financial penalty, in the form of back assessments, to discourage farmers from finally selling out. However, keeping in mind the potential magnitude of the payoffs from developing agricultural land in the urban fringe,98 it is not likely that the accumulated back assessments will be enough to stand in the way of conversion of the land to more intensive uses.
The same limitations exist with respect to tax preferences granted on the federal level. While the measures may help to perpetuate farming as a economically viable profession, they do not guarantee that the lands involved will remain in farming applications.
Special regulatory consideration of farmland, such as exclusion from the dictates of a local zoning ordinance, may have a short-term ability to keep land in farm production. This regulatory preference, however, still only functions at the pleasure of the farmer eligible for it. Once the landowner determines that the time is ripe to develop the land, the exemption from coverage under local zoning will not stand in the way.
Zoning exemptions may, in fact, be of minimal value in protecting existing farm operations, even where a landowner wishes to continue. This is because the exemption from local zoning requirements does not
98See Note 3.
function as a grant of immunity from the legal dictates of the common law nuisance doctrine. Objections to farming operations may force a discontinuance of farming, through a private nuisance suit, regardless of the preference granted the farm vis a vis conformance to local land use regulations such as zoning.
One of the potentially more effective methods of restricting farmland conversion is through the use of agricultural zoning. By strictly limiting the possible land uses within an area, local governments can effectively eliminate farmland conversion.
There are weaknesses, however, in agricultural zoning. These drawbacks are frequently found in agricultural zoning as it is actually implemented. A fundamental weakness involves the definition of a farm, or in designation of minimum parcel sizes permissible within the agricultural zone. Many agricultural zoning ordinances are simply a variation on large-lot zoning, with 10 to 40 acre minimum lot sizes intended to limit the potential use of farmlands for residential lots.
In actual practice, large lots do not necessarily discourage development. In fact, in many urban fringe areas, this type of zoning may encourage the development of 'hobby farms' by urbanites seeking a limited dosage of the 'rural lifestyle.'
Some agricultural zoning ordinances avoid the 'hobby farm' result by permitting only a limited amount of subdivision by each established large land holding. This type of program can take the form of cluster zoning, by concentrating the few residential lots permitted in one
area. This approach, however, does nothing to address the potential conflicts between the new non-farm residents and the ongoing farm operations. In states with effective right-to-farm statutes, these potential conflicts might be avoided. The right-to-farm statute will be of no assistance, however, if it exempts farmer/developers from its protective provisions.99
An additional weakness in agricultural zoning, which is a weakness shared with most locally initiated governmental land use regulations, is that the protective provisions may be enforced, or remain intact, only so long as a particular group of city or county legislators remains in office. Local officials more sympathetic to development than to farming and/or the merits of wide-open spaces may grant zoning rezonings or alter the text of the zoning ordinance in a manner which circumvents the goals of the protective agricultural zoning.
Agricultural districting as a form of farmland preservation suffers from the same fundamental weakness identified in several of the other techniques discussed above. The idea of agricultural districting is to encourage farmers to voluntarily agree to restrict the use of their lands to agricultural activities, in exchange for a variety of special considerationsprimarily in the form of exemptions from the taxes and levies of local government, which may threaten the profitability of the farms. Local government also frequently agrees to refrain from actions, such as infrastructure extensions and eminent
99See Note 54.
domain proceedings, which would quicken the pace of urbanization in the area.
While the voluntary nature of agricultural districting is often perceived as making it an attractive regulatory technique, the voluntary nature of such a programand the fact that the restrictive agreements are generally effective for a limited number of yearsmakes it a dubious method of farmland preservation. Again, it has the effect of preventing farmland conversion only so long as the farmer finds it to be in his best interests to continue farming. The New York law, however, does mandate inclusion of certain parcels in an agricultural district, if such farmland is considered unique or irreplaceable.100
Purchase of Development Rights
A purchase of development rights program can be quite effective as a means of preserving agricultural lands. When government purchases the right to determine whether development is to occur upon farmland, they have taken the pervasive allure of land conversion out of the hands of private landowners who may find the potential rewards irresistible.
There are two major weaknesses is this type of farmland preservation program. First and foremost, the purchase of development rights, particularly in the face of encroaching development, can be extremely expensive. Secondly, there exists the danger that local governments, in a moment of weakness or budgetary desperation, may
lO^McKinney' s New York Agriculture & Markets Law, Section 304(1).
themselves endeavor to sell the development rights which had been previously acquired.
Transfer of Development Rights
The TDR program can also be an effective obstacle to farmland conversion. This technique has the significant added benefits of imposing the cost for acquiring the development rights upon the private development community rather than government itself. The drawback to transferable development rights programs is that they are better suited to urban applications. That is, in rural or less intensely developed areas, it may be more difficult to provide 'receiving areas' to which the development rights can properly be transferred.
The grant of conservation easements connected to agricultural lands can be an effective form of farmland preservation. They have an advantage over PDR's in that political considerations are less likely to undermine the program because the easements are frequently granted to nonprofit organizations devoted to the cause of farmland preservation. The fact that conservation easements are primarily driven by charitable donations, however, does severely restrict the degree to which they can have an impact upon agricultural land preservation.
Land banking suffers from the same limitations as a development rights purchase program. That is, it costs moneylots of itto assemble the farmlands that government wishes to 'bank' to prevent their conversion to other uses. It is one thing to sell the taxpayers/voters on the merit of agricultural land preservation. It is quite another to persuade them to actually pay the freight on such a program.
FARMLAND PRESERVATION: LEGITIMATE LAND-USE CONCERN OR SUBURBAN OPEN SPACE SCAM?
The Fallacy of the Farmland Crisis
The actual need to protect high quality agricultural land through public policies and programs at various levels of government has been debated in the U.S. for at least three decades.The frenzy of governmental activity in the area of farmland preservation, however, got its major impetus in the 1970's, when the boom in agricultural exports collided with a boom in suburban residential, commercial, and industrial development.
The perception that the United States' prime agricultural land resource base was being seriously eroded was occassioned in large part by the fact that the farmlands being converted to other uses were usually within the shadow of urbanized areas, much of it in the densely-settled Northeast, and Midwestern and Californian urban areas. Therefore, when agricultural land conversion did occur, it generally occurred in high-visibility areas.
As the concern over this issue increased, and the prospects for U.S. agricultural markets likewise grew, James Jeffords, a U.S. Representative from Vermont, did what politicans frequently dohe promoted the idea of a federal study of the issue. With a former peanut farmer in the White House at the time, the appeal for an
lOlRutherford H. Platt, "The Farmland Conversion Debate: NALS and Beyond," 37:4 Professional Geographer. (November 1985), p. 433.
investigation of the issue did not exactly fall upon deaf ears. A federal task force was duly commissioned, whose work culminated in the previously mentioned National Agricultural Lands Study (NALS).
The National Agricultural Lands Study was established in June, 1979, when the U.S. Department of Agriculture and President Carters Council on Environmental Quality agreed to co-sponsor an interagency study of the agricultural lands conversion issue. The NALS was charged with the following tasks:102
Determining the nature, rate, extent, and causes of conversion of agricultural land to nonagricultural uses.
Evaluating the economic, environmental, and social consequences of agricultural land conversion and methods used to attempt to restrain and retard conversion.
Recommending administrative and legislative actions, if found necessary, to reduce potential losses to the nation that might result from continued conversion of agricultural land to nonagricultural uses.
Presenting a final report on findings and recommendations in January, 1981.
While those in charge of the NALS may not necessarily have prejudged the magnitude of the farmland conversion crisis, it is instructive to note that in September, 1979, a scant three months after it was created, the NALS released and widely distributed a pamphlet entitled: Where Have the FarmLands Gone?" Prominently
festooned upon the pamphlets front cover was the following observation:
102Natj.onai Agricultural Lands Study, Final Report 1981, p. 4-5.
Ten years from now, Americans could be as concerned over the loss of the nation's prime farm lands as they are today over shortages of oil and gasoline.
Six months later, NALS fired a second salvo in what is now viewed by many to have been the task force's farmland preservation crusade. In the executive summary of a NASL interim report entitled The Protection of Farmland, NALS concluded that: "The total annual loss of agricultural lands [in the U.S.] is a staggering three million acres, or twelve square miles per day."^^
Again, as mentioned earlier in this paper, the NALS' three million acre annual figure*1-^ evolved into a rallying cry in state legislatures, professional journal articles, and among farm and environmental groups. With the study's provocative conclusion as the primary justification, a clamor to institute farmland preservation mechanisms grew.
The NALS conclusions concerning the magnitude of the farmland conversion "crisis" have since come under increasing fire. Several critiques of the NALS findings, appearing in scholarly journals, fault
lO^ational Agricultural Lands Study, "Where Have the FarmLands Gone?" The inside front cover of the pamphlet contains a notation attributing the quotation to Norman Berg, Chief, USDA Soil Conservation Service.
lO^National Agricultural Lands Study, Executive Summary The Protection of Farmland, p. 4.
105The NASL later qualified the three million acre annual figure somewhat by observing that: "The U.S. has been converting agricultural land to nonagricultural uses at the rate of about three million acres per yearof which about one Million acres is froa the cropland base.
[emphasis added]." NASL Final Report 1981, page 8. Nevertheless, the unqualified "three million acre" figure continued to be cited in books and academic journals for years.
both the methodology and the underlying data employed in arriving at the NALS farmland conversion figures.
The authors of the National Agricultural Lands Study based their farmland conversion computations' upon survey data compiled by the Soil Conservation Service (SCS). The results of four major SCS studies of farmland conversion are summarized in the Table below:106
Soil Conservation Service Estimates of Urban and Built-Up Land Area, 48
Year of survey Acres urban and built-up" (includes rural transportation) (% of U.S. land area) Average annual acres converted (Annual rate of conversion)
1958 50,660,000' (2.1%)
1967 60,876,000= 0.29c) 1,135,100 (1958-67) (2.249?)
1977 89,340,000= (4.19c) 2,846,400 (1967-77) (4.689?)
1975 N.A. N.A. 2,080,0004 (1967-75) (3.42%)
While both the 1975 and 1977 surveys listed above were relied upon by the NALS, the Final Report 19811Q7 attributes its three million acre per year conversion figure to data from the 1975 Soil
lOSwilliam A. Fischel, The Urbanization of Agricultural Land: A Review of the National Agricultural Lands Study, 58:2 Land Economics. (May 1982), p. 239.
lO^National Agricultural Lands Study, Final Report 1981, p. 35.
Conservation Survey's National Resources Inventory,108 This data was released two years later as the SCS Potential Cropland Study.
In an article appearing in the journal Land Economics in 1982, Dartmouth College Economics Professor William Fischel concluded that the Soil Conservation Service surveys relied upon by NALS "overstate the rate of urbanization that has occurred in the last decade."109 jn his methodical attack upon the NALS findings, the author advances three premises: the method by which urbanization is estimated in both surveys is subject to considerable bias; other data concerning urbanization during that period do not corroborate the SCS data, and; there exists an alternate study, using what he deems to be more reasonable methods of determining levels of urbanization, which contradicts the NALS results.HO
In a companion critique of NASL appearing in the same issue of
Land Economics as that of Professor Fischel, an agricultural economist
from the University of Minnesota concluded that "the United States is
not losing 3 million acres of farmland a year."HI Among the
observations contained in the Raup analysis are the following:
From the outset, the study encountered data problems that were to plague it to completion.H2##.Differences in definition, spatial coverage, and time frame led to much confusion in the initial
108ihe 1975 National Resources Inventory is a data series which was compiled from 1967 to 1975 by the Soil Conservation Service.
lO^pischel, p. 239.
HOpischel, pp. 239-240.
Hlphilip M. Raup, "An Agricultural Critique of the National Agricultural Lands Study," 58:2 Land Economics, (May 1982), p. 267.
IHRaupj p. 261.
development of a data base for the NALS. H3.. .The demand for shocking statistics has led to a serious misuse of NALS data, a misuse that has been fostered by the confusing way in which the data have been presented.
In a more recent look at the National Agricultural Lands Study,
Rutherford Platt, a geography and planning law professor at the
University of Massachusetts, found similar fault with the NASL farmland
conversion figures, particularly in light of data from a later SCS land
survey.Professor Platt's 1985 analysis of the NALS concludes:
The [1982 NRI] figures vindicate those who questioned reliance upon the PCS estimates of cropland losses...Both cropland and
potential cropland are listed at higher totals in 1982 than in either the PCS or the 1977 [National Resource Inventory], Prime farmland is virtually unchanged from the 1977 total. Urban land has decreased substantially.. .due to more accurate measurement techniques.
Professor Platt further concludes: "At the national scale, no
appreciable loss of cropland or prime farmland apparently occurred between 1977 - 1982.To further illustrate the difference
between the two estimates of land resources relied upon by NALS and that arrived at by the 1982 National Resources Inventory, Professor Platt included the comparison table that appears on the following
H^Raup^ p. 262.
ll^Raup, p. 267.
H^Soil Conservation Service, 1982 National Resource Inventory.
1-^Rutherford h. Platt, "The Farmland Conversion Debate: NALS
and Beyond," 37:A Professional Geographer. (1985), p. 440.
H7piatt, P* 440. ll^Platt, p. 440.
COMPARISON OF THREE ESTIMATES OF IANO RESOURCES (millions of acres)
PCS NALS/NRI 77 NRI 82
Nonfederal Land 1,439 1,512 1,497
Urban 166 69 46
Rural Land 1,416 1,443 1,413
Cropland 400 413 421
Potential Cropland 111 127 153
Prime Farmland 335 (a) 345 342
Rangeland (b) 414 406
Forest 375 376 394
Pasture (b) 133 133
Other 69 23 59
(a) Class I and II soils excluding urban and water areas.
(b) PCS lists S71 million acres for range and pasture combined.
Casting further doubt over the magnitude of annual losses of farmland in the United States is the conclusion, by land use consultant Peter Wolf, that in the period 1970 to 1980, "approximately 1 million acres were lost annually to urban and rural encroachment, of which roughly 500,000 acres were cropland,"H9 Mr. Wolf further notes that although farmland is being converted to other land uses, additions to the U.S. cropland base are continually occurring as new fields are cleared, drained, and irrigated. Similarly, another author notes that "more land is reclaimed each year than is lost to urban sprawl.."120
As the above discussion endeavors to demonstrate, it has been difficult to determine the magnitude of the actual loss of farmland due to conversion, over the past two decades. It appears, however, that the most widely disseminated figures were vastly overblown.
ll^Peter Wolf, Land in America: Its Value. Use and Control, p.
120jackson, p. 175.
Conditions Influencing Demand for U.S. Agricultural Output
While the actual accurancy of the conversion figures are crucial to this debate, of equal importance is the fact that the conditions which seemed to dictate the need for ever-increasing cropland resources in the United States have themselves vastly changed. Three of these major factors, and their impact on the likely future demand for U.S. agricultural lands for farming applications, are discussed below.
The U.S. Farm Export Outlook
As previously mentioned, the real impetus for farmland preservation came during the 1970's when U.S. agricultural exports were at an all-time high. These boom days were brought about by a variety of factors, including the large-scale entry of the Soviet Union into the world grain market and the shortfall in world grain supplies in the mid-70's.^l Additionally, the war in Indo-China, which to a large extent took the Asian rice bowl out of production, fueled the international demand for U.S. farm produce.122
These factors combined to boost U.S. farm export levels to record highs, levels which the U.S. Department of Agriculture, perhaps naively, assumed would last indefinitely. For a number of reasons, U.S. farm exports plummeted abruptly in the early 1980's, and have yet to recover.
my October 20, 1986 discussion with Dr. Cornelia Butler
Flora, Department of Sociology, Anthropology and Social Work, Kansas State University.
A major factor blamed for the decline in U.S. agricultural exports is the much-maligned embargo upon grain sales to the Soviet Union in retaliation for the Soviet invasion of Afghanistan. The sudden cutoff of previously committed grain deliveries tarnished the U.S., worldwide, with the image of an unreliable or fickle trading partner. This is an image which the U.S. is finding hard to dispel.
In addition, some of the nation's biggest grain customers, notably China, India, and several Third World countries, have developed their own agricultural production capacities to the point where they not only have freed themselves from the need for U.S. farm produce, they are actually competing to supply grain to other U.S. customers.
China is the prime example of a nation that has radically altered its position in world agricultural markets. Due to gains in China's domestic agricultural production, the United States has seen its exports of farm produce to that nation plummet from $2.3 billion in 1980 to just $180 Billion in the first eleven months of 1985. In Japan, Peking was able to break a long-standing U.S. monopoly on corn exports, and gained a ten percent share of the market in 1985. Also last year, orders from Indonesia for 150,000 tons of soybeans enabled China to displace the United States as Indonesia's main supplier of soybeans. ^3
In a recent article by Dale E. Hathaway, a former Undersecretary of Agriculture, supports the idea that significant former export markets for U.S. grain may be lost for good. He notes that:
123ch:i.na' s Ag Production Causing Headaches," The Manhattan Mercury, April 6, 1986. [based upon a dispatch from Deutsche Presse-Agentur]
Both the China market and the European Economic Community market have been lost to internal production and, to make matters worse, both have now become significant competitors in the export markets for some products.-124
Exerting additional pressure on U.S. exports, Hathaway added, is the fact that internal market growth of our traditional competitors (Canada, Australia, and Argentina) is also down, forcing exports to absorb more of the production growth in those nations.125 This will result in ever-increasing competitive pressure on the remaining foreign markets available to U.S. farm exports.
Poor quality and high prices are two factors which will continue to frustrate U.S. agricultural markets in the future. Domestic agricultural policies are continuing to inhibit the ability of U.S. farm products to compete in world markets. U.S. Department of Agriculture Secretary Richard Lyng has concluded that loan support prices under the 1981 farm bill became so high, relative to world market prices, that the United States was priced out of the export market and forced into the role of residual supplier.126
Secretary Lyng also acknowledged the growing concern over the perception in international grain markets that the U.S. is marketing an inferior product. Inadequate governmental quality regulation and intentional efforts by grain exporters to provide the minimally
124i)aie e# Hathaway, "The Challenge in Building Demand for U.S. Farm Exports," Economic Review. (February, 1986), p. 19.
125nathaway, p. 19.
126pichard Lyng, "U.S. Agricultural Policy," [Presentation at a symposium entitled "Competing in the World Marketplace: The Challenge for American Agriculture," in Kansas City, Mo., in November, 1985.
acceptable product possible have been cited as further threats to U.S. farm exports.
In response to persistent complaints by foreign grain buyers, Congress pushed through a measure in the closing days of their latest session which prohibits grain handlers from adding "foreign material" to grain once it has been removed. 127 The reactions to this legislation, from grain handlers and exporters has been mixed, but again, the international perception that U.S. grain is intentionally adulterated to meet minimum standards will be hard to dispell.
The Gasohol Bust*
A changing national and international situation concerning energy also has had an impact upon the demand for farm produce, and thus farmland, in recent years. The National Agricultural Lands Study, undertaken in the midst of the 1979-1980 domestic energy crunch, regarded the demand for alcohol-enhanced fuels to be a major, and lasting, source of demand for farm products. At that time, gasohol was being regarded as a major 'alternative' fuel source.
Gasohol is most commonly produced by converting corn to ethanol and then mixing it in a 1 to 9 blend with gasoline. Obviously, if gasohol had really caught on, the demand for corn could have been phenomenal. In fact, in forcasting future demand for agricultural land, the NALS had adopted prior USDA projections for ethanol production of "2.6 billion gallons by 1985, 4.2 billion gallons by
127Barry Massey, "Doubts Persist Over Clean Grain Measure," The Manhattan Mercury (Associated Press dispatch), October 27, 1986, p. 1.
1990, and 5.7 billion by 2000."128 naLS then concluded that "the net acreage of additional row crops needed to support 4-6 billion gallons of ethanol production would be closer to 7-11 million acres."129
Demand for alcohol-based fuels has been a victim of this nations short-sighted belief that the energy crisis is a thing of the past. As the price of gasoline dropped, and automobile manufacturers expressed concerns over the performance characteristics of gasohol, the bottom dropped out of the gasohol market. In fact, "despite vigorous promotion by farm-state politicians and a variety of government incentives, gasohol never captured more than 2 percent of the American Market...Now most distributors have dropped gasohol."130 This is not to say alcohol fuels demand may not, one day, spur a greatly enhanced U.S. corn market and thus the demand for farmland. It does, however, cast further doubt upon the merits of the crisis mentality of the NALS.
The Biotechnology Revolution in U.S. Agriculture
Another factor affecting future demand for farmland, for agricultural purposes, is the impact evolving agricultural technologies will have on crop and livestock yields. U.S. agricultural technology for the last few years has been relatively stagnant, following what has
12%ational Agricultural Lands Study, Final Report 1981. p. 54.
129National Agricultural Lands Study, Final Report 1981, p. 54.
130"American Interest in Alternative Fuels is a Thing of Past," Kansas City Times. October 18, 1986, p. 1 F. [from The New York Times]
been termed "the chemical era of 1950-80."131 However, the U.S. is
now entering what industry experts are touting as the biotechnology and information era.
Biotechnology has been defined as any technique that uses living organisms to make or modify products, to improve plants or animals, or to develop microorganisms for specific uses.132 The Office of Technology and Assessment (OTA) recently published the results of an exhaustive study, commissioned by several Congressional committees, of the structure and future of American agriculture. The OTA report concluded that: "Like the eras that preceded it, the biotechnology and information technology era will bring technologies that can significantly increase agricultural yields."133
The OTA found that the impacts of the new technologies will be first felt in livestock production, where embryo transplants, gene insertion, growth hormones, and other genetic engineering processes will produce more milk per cow and more meat per pound of feed. In fact, under what OTA terms its "most likely conditions," milk production per cow is expected to increase from the 12,000 pounds in 1982 to at least 24,000 pounds by the turn of the century, an annual growth rate of almost four percent.^4
13lMichael Phillips, "Research and Technology in Agriculture," [From a paper presented at a symposium entitled "Competing in the World Marketplace: The Challenge for American Agriculture," in Kansas City
in November, 1985]
133offi.ce of Technology Assessment, Technology. Public Policy, and the Changing Structure of American Agriculture, p. 10.
134office of Technology Assessment, p. 10.
The OTA report concludes that the continued evolution of emerging technologies will enable the U.S. "not only to meet domestic demand, but also to contribute significantly to meeting world demand in the next 20 years."135 The following two tables, taken from the OTA report, summarize the anticipated impact biotechnology is expected to have upon crop and animal yields in the next fifteen years.
Table 3*1.Estimated Percentage Change In Crop Yield
Crop Technology package Less-new-technology 2000 Most likely 2000 More-new-technology 2000
Co'n 15.6% 21.5% 28.5%
B 8.8 14.4 20.8
C -31.2 -28.8 -28.0
Cotton Package A 5.4 9.0 12.0
B 2.3 2.8 3.1
C 0 0 0
Rice Package A 8.4 12.4 15.6
B 8.8 14.4 18.6
Sovbean Package A 14.9 22.1 23.9
B 4.9 7.2 7.5
C 3.7 4.6 5.5
Wheat Package A 24.0 24.0 24.0
B 1.5 1.5 1.5
C 5.0 5.0 5.0
source Of*c of Technology Aueeement.
135office of Technology Assessment, p. 11.
Table 3-2.Estimated Percentage Change In Animal Feed and Reproductive Efficiency
Animal Technology package Efficiency measure
Beef Package A Pounds meat per lb feed Calves per cow
B Pounds meat per lb feed Calves per cow
C Pounds meat per lb feed Calves per cow
D Pounds meat per lb feed Calves per cow
E Pounds meat per lb feed Calves per cow
F Pounds meat per lb feed Calves per cow
Dairy Package A Pounds milk per lb feed Pounds milk per cow
B Pounds milk per lb feed Pounds milk per cow
C Pounds milk per lb feed Pounds milk per cow
D Pounds milk per lb feed Pounds milk per cow
Poultry Packaae A Pounds meat per lb feed Eggs per layer per year
B Pounds meat per lb feed Eggs per layer per year
C Pounds meat per lb feed Eggs per layer per year
Swine Packaae A Pounds meat per lb feed Pigs per sow per year
B Pounds meat per lb feed Pigs per sow per year
C Pounds meat per lb feed Pigs per sow per year
Less-new technology Most likely More-new-technology 2000 2000 2000
0 22.4% 30.4%
0 0 28.4
5.8% 10.4 12.4
1.2 5.2 6.4
1.8 4.5 5.8
1.2 2.0 3.2
0.1 1.2 1.7
0 0.3 0.9
1.4 2.8 3.3
2.3 5.3 6.6
0 1.1 1.5
0 0 0
5.8 13.2 15.2
6.8 12.2 15.2
7.6 11.0 13.0
9.4 12.2 14.6
7.8 12.4 15.2
15.0 21.3 24.3
7.3 9.2 11.3
4.6 5.8 7.1
2.5 3.1 3.9
4.0 5.0 6.2
1.3 1.6 2.0
1.6 2.0 2.5
4.8 12.6 15.0
14.4 27.6 50.0
SO'-PCS: 0'fic o* Tnnnoiogy Assessment.
A reasonable conclusion concerning future demand for farmland in the United States, in light of probable U.S. export markets and significantly higher per acre and per animal yields, is that the nation can probably get along quite nicely with the amount of acreage in production at the present time. Furthermore, despite a recent boom in suburban residential, commercial, and industrial development, the amount of agricultural land converted to other uses, on a national basis, is relatively small.
The Suburban Open Space "Scam"
Farmland preservation has remained a prominent, and somewhat emotional, issue to this day. This is the case despite the demonstrable drop in demand for farm products and studies downplaying the actual magnitude of agricultural land conversion.
If the concerns over the ability of the nation to satisfy demand for farm products are indeed baseless, what is driving this campaign to keep farmland in agricultural uses? I would argue that the farmland preservation issue is, in reality, a convenient rallying cry by local governments and environmental organizations that seek to maintain open space, wildlife habitat, and the "rural character" of communities.
The primary arguments of the critics of the agricultural land preservation movement are summarized quite succinctly in the passage from an article analyzing farmland preservation efforts in the state of California:
To some critics, governmental policies and land use controls designed to reduce farmland alienation are an unnecessary intrusion into the "free" market place. Other opponents have charged that local farmland protection policies are
surreptitiously-conceived schemes to implement no-growth policies, with support from elitiest community groups and environmental organizations. Their motive is said to be to control the impacts of urbanization rather than to protect the agricultural production capability of a community.1^6
Interestingly, the author also observes that the proponents of
farmland preservation "admit to tacitly using environmental and open
space concerns to win public acceptance for the cause, but emphasize
that the salient issue is protecting agricultural production
capability."137 j WOuld argue just the opposite, because I have never
heard of an farmland conservation issue phrased in terras of the need
for open space.
It appears to me that preaching farmland conservation in the name of farming would be more palatable to community at large than trying to sell the publicand the farmerson the hard-to-quantify need for public open space. I believe the environmentalists and other open space advocates that are trumpeting the cause of farmland preservation would bear me out.
Other authors have reached the same conclusion concerning the "hidden agenda" behind the agricultural land preservation movement. Peter Wolf suggests that the rationale for farmland preservation at the urban fringe is more an aesthetics and amenity issue than a reasonable effort to conserve a precious natural and national resource.^8 While Wolf concedes that the preservation of open space
136()wen j. Furuseth, "Influences on County Farmland Protection Efforts in California: A Discriminant Analysis," 37:4 Professional Geographer, (1985), p. 443.
137puruseth, p. 443.
l^Peter Wolf, Land in America: Its Value. Use and Control, p.505.
surrounding urban and suburban areas is a worthy cause, he believes the battle over farmland conversion should then be waged on those terras.
Rather than founding an open space argument on the dubious premise of the likelihood of future agricultural production deficiencies, Wolf feels that the argument should be framed in terms of the need communities have for open space. Wolf believes that the real need at the urban fringe is for lands "maintained as fields, meadows, or woodland, and not as farm patches, which [due to the urban shadow effect] are neither economic, healthy, nor rational for the farmer, or
for the community.1^9
The Real Beneficiaries of Farmland Preservation
There is perhaps no better way to expose the true impetus behind the agricultural preservation movement than to analyze who really stands to gain from its success. Presumably, the farmers themselves would be most supportive of a policy intended to perpetuate their way of life. It would also seem that farmers would be the ones most sensitive to a farmland conversion "crisis," if, in fact, one really existed.
An analysis of who really wins with farmland preservation is provided in William Fischels review of the National Agricultural Lands Study:
Perhaps a way to understand the recommendations of the NALS, and the intent of the entire enterprise, is to ask who benefits from them. Except for "right to farm" legislation, farmers who currently own land are most likely to be harmed by the recommendations. This is because of the restrictions that will be placed on the disposal of their property if
139peter Wolf, p. 506.
the recommendations are put into effect. Farmers who do want to develop their land will find that residents opposed to such development will have some highly potent weapons.1^0
Fischel proceeds to conclude that "the real beneficiaries of the
[NALS] recommendations, and the real force behind the farmland
preservation movement, are local antidevelopment interests.This
conclusion would appear to be borne out by the current situation in
Connecticut, where the issue of whether prime agricultural land is an
intended beneficiary of protection under the Connecticut Environmental
Protection Act, is being litigated.1^2 According to an attorney for
the advocates of farmland protection, "the opinion of farmers toward
these efforts is definitely mixed. The principal advocates are
primarily not farmers."143
A comment by the above-quoted attorney raises another interesting point concerning agricultural lands preservation. Mr. Probst noted that while farmland preservation may be a suburban open space scam in some areas of the country, in others it is being used to "preserve regional agricultural productivity."^^ This again emphasizes the fundamental point of whether or not the private land market should be permitted to ultimately make land use choices.
l^Opischel, p. 256. l^Fischel, p. 257.
notes 34 and 35.
tter to the author from C. Luther Probst, attorney with Robinson & Cole, a leading East Coast land use/environmental law firm.
Why does Mr. Probst, and presumably his non-farmer clients, wish to see a regional agricultural industry preserved? Perhaps it is due to a desire to preserve the regions economic diversity, or possibly it is simply a ruse to preserve open space or control growth. Even assuming the former, while economic diversity is a desirable regional attribute, I would question whether the current farmland preservation movement is the appropriate vehicle to attain that goal.
Returning to the desires of the farmers themselves, Peter Wolf notes that highly restrictive land use conversion policies would likely be resented by many of the farmers who own prime farmland. Wolf cites a statement by the Regional Science Research Institute in Philadelphia, that farmers are essentially "producers of two entirely different classes of goods for two different markets: agricultural commodities and development sites."1^5 Peter Wolf, while advocating
prime farmland preservation personally, concedes that marketing "a development site instead of cauliflower provides a once-in-a-lifetime bonanza which some farmers understandably seek."1^6
On the one hand I would argue that agricultural land preservation, in most instances, is unjustified in terms of the likely future demand for farm products. Yet I would also be the first to concede that open space preservation is a worthy urban/suburban governmental pursuit. The need, I believe, is to divorce the two issues and deal with open
*-^5Reg;i.ona]. Science Research Institute, (from Wolf, p. 516).
146Wolf, p. 517.
spaces needs or desires honestly, and not attempt to conceal them behind the veneer of farmland preservation.
There are straightforward ways of dealing with the need for open space. All it takes is money.
As a recent example of a forthright open space acquisition program, Suffolk County, New York has proposed a bond sale in order to finance the purchase, for some $60 million, of 4,833 acres of undeveloped land on Long Island. The sole intent of the purchase would be to protect from development the area's last remaining wilderness lands.This proposal illustrates the potential use, and indeed the potential expense, of employing land banking types of land preservation measures.
An open space acquisition program in Libertyville Township, Illinois demonstrates both the process, and the pitfalls, of attempting to preserve agricultural lands strictly for the sake of open space. Libertyville Township, situated northwest of Chicago in the natural path of Chicagos suburban growth, is seeking to purchase 3,000 acres of undeveloped land, against the wishes of the current owners, in order to preserve the land in its natural state. A referendum in November, 1985 authorized the township to borrow almost $23 million to purchase land for open space.
When the owners of an 881 acre segment of the desired parcel rejected the Township's purchase offer, the Township filed suit to
l^Land use Planning Report, July 7, 1986, p. 213.
l^Cheryl terHorst, "Communities at the Crossroads," North Shore Magazine. (July, 1986), p. 48.
condemn the land under Illinois' Township Open Space Act,1^9 which is enabling legislation enacted in Illinois granting towns a variety of powers, including the power of eminent domain,150 to acquire open space. Ironically, the act appears to exempt farmland from the local government open space condemnation authority. The Township, however, is advocating an interpretation of the Open Space Act which would grant local governments the right to condemn the developnent rights of agricultural land.151
The comments of an attorney who has been involved with related land use disputes in the area for 15 years shed additional light on the agricultural lands preservation movement. "I'm very supportive of [the proposal to condemn the lands for open space]...The people want to retain the area as it has been. They do not want mass production of crackerbox homes."152
This comment serves to introduce my final criticism of the farmland preservation movement. That is, the preservation of agricultural land is sometimes a gloss put on exclusionary zoning. Imposition of permanent, large lot, residential zoning upon an agricultural area, in the shadow of a growing community, almost guarantees the demise of serious farming, in favor of 10 to 40 acre 'hobby farms' or 'ranchettes.'
l^^Smith-Hurd Illinois Annotated Statutes, Chapter 139, Section 321 et seq.
150Smith-Hurd Illinois Annotated Statutes, Chapter 139, Paragraph 324.02, Section 4.02.
151terHorst, p. 51.
152terHorst, p. 52.
Large lot zoning regulations often have the effect of terminating serious farming and severely limiting population growth in the affected area. Large lot zoning can also, and often not coincidentally, make it virtually impossible for low or possibly even middle income persons to live in the area.
The fact that large lot zoning is endorsed by William Toner, one of the nation's leading disciples of agricultural land preservation, casts further doubt upon the true agenda of the farmland preservation movement. [Mr. Toner has espoused 35 acre minimum lot sizes as an appropriate farmland preservation strategy in both a supporting document he prepared for the NALS,^3 an(j in a professional paper^^ he authored shortly thereafter.]
^^National Agricultural Lands Study, Zoning to Protect Farming: A Citizens' Guidebook, p. 26.
l^^William Toner, "Three Guidelines for Communities in Protecting Farming," Protecting Farmlands, eds. Frederick R. Steiner and John E. Theilacker, p. 68.
In Defense of Farmland Preservation Programs
As I have attempted to demonstrate, I believe that the need to preserve agricultural land, for the sake of agricultural productive ability, has been greatly exaggerated in this country. More importantly, I believe that the farmland preservation movement is a convenient facade for suburban communities striving to preserve open space for the enjoyment of nonfarming residents. While I embrace the need for open space, I feel that efforts to preserve open space should be caged in those terms.
Nonetheless, I believe that in certain instances, and under certain conditions, the need to preserve agricultural land for the purposes of agriculture can perhaps be legitimized. These circumstances involve; (1) unique croplands due to climate, soil types or other specialized characteristics, and; (2) continued losses from this nation's present agricultural land resources due to abuse of existing farmlands.
Unique and Specialized Crops
Farmland preservation advocates often emphasize the need to preserve agricultural lands that grow crops of a specialized nature.155 Since many of these crops require particular soil types or climatic conditions, the loss of farmlands suitable for specialty crops in one region of the country may not be replaceable by putting additional agricultural lands into production in another region.
l^National Agricultural Lands Study, Final Report 1981, p. 41.
This threat of irretrievable loss, at least on a national level,
has been exemplified by the situation in Florida, concerning rapid urbanization of lands once used to produce citrus fruits such as grapefruit. Since these crops are dependent upon Florida's moderate climate, there are arguably minimal opportunities, on a nationwide basis, to replace these lost agricultural lands with lands in other parts of the country.
In its own somewhat hysterical fashion, the National Agricultural Lands Study summarized the specialty crop or specialized croplands issue as follows:
Certain unique cropsred tart cherries, apples, apricots, avocadoes, prunes, citrus fruits, cranberries and peaches, for example, may vanish permanently. For there is usually no replacing the particular soils and micro-climates these crops require once the soils are sealed under asphalt or
This concern, if it is indeed legitimate, is easy to appreciate. Yet there are critics of this claim also. The Urban Land Institute, whose institutional bias runs counter to that displayed by the National Agricultural Lands Study, made the following observation:
In fact, there is remarkably little evidence available to determine the necessity of preserving [unique or specialty crop] agricultural lands. There are many questions and few answers. How many areas now grow crops that could not be grown elsewhere? How many crops could be grown elsewhere but at a higher cost? How necessary are these crops to the economy or to the well-being of the population? How many could be imported from other countries and at what cost?
156National Agricultural Lands Study, Where Have the FarmLands Gone? p. 10.
None of these questions have been addressed by the NALS or other groups favoring preservation of unique croplands.1^7
While the sources cited above represent the two extremes in
looking at the issue of the loss of unique agricultural lands, the
issue does merit further study. This is especially true due to the
fact that much of the urbanization and suburban sprawl which is
occurring in the U.S. is now taking place in the Sun Belt. These warm
weather regions, found in states such as Arizona, California, Florida,
and Hawaii, are the primary sources of domestically grown specialty
fruits and vegetables. The loss of these lands cannot be easily
compensated through the reclamation of additional croplands in less
The LossThrough AbuseOf Existing Agricultural Lands
The second major issue, and perhaps the most significant factor, capable of tipping the scales in favor of agricultural land preservation is the current national pattern of abuse of the existing farmlands now in production in the this country. The Urban Land Institute, again not exactly an unbiased source, speculates, based upon its research, that "crop yields and soil degradation, probably will affect future crop production more than farmland conversion.158 The danger of squandering much of the nation's agricultural land base through ill-advised farming and reclamation practices, rather than
157Fred ric A. Strom, ed., "Has the 'Farmland Crisis' Been Overstated?: Recommendations for Balancing Urban and Agricultural Land Needs," 1983 Zoning and Planning Law Handbook, p. 249. Excerpted by Strom from a policy statement promulgated in 1982 by the Board of Trustees of the Urban Land Institute, a development industry-backed research and public information organization.
^Strom, p. 246.
conversion to nonfarm uses, is significant. In a recent book
scrutinizing federal water policy in the West, author Marc Reisner
makes the following observation concerning the adverse impacts upon
agricultural lands from federal reclamation projects:
[Within the next 50 years] as much irrigated land is likely to go out of productionland that grows nearly 40 percent of our agricultural exportsas the Bureau of Reclamation managed to put into production during its entire career.159
Excessive irrigation, fertilization, and erosion can take a heavy
toll upon the long-term agricultural productivity of the nation's
farmlands. If the present, abusive farming practices were to continue
unabated, they could have a significant impact upon the importance of
urban conversion of farmlands, as it relates to the adequacy of the
nation's future agricultural land base.
Once again, however, there exists the possibility that technology
will come to our rescue. A recent Office of Technology Assessment
study, cited earlier in this paper, reaches the following conclusion:
In general, with a few notable exceptions, most emerging technologies are expected to reduce substantially the land and water requirements for meeting future agricultural needs. Consequently, these technologies are expected to reduce certain environmental problems associated with the use of land and water. The technologies are thought to have beneficial effects relative to soil erosion, to reduce threats to wildlife habitat, and to reduce the dangers associated with the use of agricultural chemicals. New tillage technologies, however, may reduce erosion and threats to wildlife while increasing the dangers from the use of agricultural chemicals.160
l^Marc Reisner, Cadillac Desert: The American West and Its
Disappearing Water. This passage is taken from a review of Reisner s book entitled "The Wreck in Reclamation," by Brad Warren, appearing in 71 Sierra Magazine, (November-December 1986), p. 91.
16C*0ffice of Technology Assessment, p. 15.
On the basis of the preceding analysis, I believe that the farmland conversion crisis' in this country is greatly overstated. The actual amount of agricultural land being converted to urban uses is far smaller than widely believed. Also, the amount of potential farmland in this nation which is still in its native, uncultivated state, be it woodland or prairie, is still relatively large.1^1
Furthermore, the conditions that would merit further expansion of the nations farmland baseincreased farm exports and the use of farm products as a fuel sourceare actually in decline. In light of the realigned world agricultural markets and the recent U.S. farm export trends, coupled with the demise of the ethanol based fuel industry, there may be an actual drop in demand for agricultural land.
The imminent biotechnology and informational revolution in the agricultural industry could further inhibit the need for additional agricultural lands. The greatly increased crop and livestock yields which seem likely reduce the overall agricultural land demands even more. These technological gains also promise to be gentler on the lands now being farmed, so that less farmland is likely to be 'worn out in the future.
Nonetheless, population growth, particularly on a worldwide level, continues. There will be an undeniable increase in the need
for farm produce, the question remains, however, as to the likely
161Wolf, p. 495.
source of this additional agricultural production. The danger in ignoring the farmland conversion issue in light of current conditions, is the cost involved should we determine later that the nation's prime farmlands, were, in fact, needed in the future. It is the job of the planning profession to employ foresight in providing for these future needs. As one venerable planning practicioner, author, and professor frequently notes: "Planning should be pro-active not re-active."162
While the assumptions upon which the agricultural land preservation movement are undergoing increasing scrutiny and intellectual challenge, the movement itself seems to be chugging right along. This seeming inconsistency is due, as I have noted, to the fact that farmland preservation is being employed, for the most part, as a suburban battle cry to supplement or maintain open spaces, at reduced cost.
Many of the farmland preservation measures described earlier in this paper will enable communities to set aside open space at far less municipal expense than would outright purchase or condemnation of the lands. While this may be good for municipal balance sheets, I question the honesty of setting aside open spaces in this manner.
The propriety of using farmland preservation tactics to preserve open space is made even more doubtful when one considers that the farmers may, in fact, be the persons to suffer the most when these programs are implemented. The loss of the development potential of their lands, as noted previously, can be a major financial loss.
Ik^Herbert H. Smith, PCD 500, Fundamentals of Planning Policy lecture at the University of Colorado-Denver, circa 1983.
Therefore, I believe that the urban land market should be permitted to operate freely, because their is little justification for governmental interference in the name of farmland preservation. If local governments wish to participate in this market in order to reserve open spaces as urban amenities, they should compete for these lands with the various parties that recognize the potential value of the lands.
"American Interest in Alternative Fuels is a Thing of Past," Kansas City Times, October 18, 1986, p. 1 F.
Borden, Eugene, ed. Vol. 14 Land Use Planning Report. Silver Spring, Md.: Business Publishers, Inc., July 7, 1986.
Bradbury, Dana Ann. "Suburban Sprawl and the Right to Farm," 22
Washburn University Law Review, p. 448-468.
Callies, David L. and Robert H. Freilich. Cases and Materials on Land Use. St. Paul: West Publishing Co., 1986.
"China's Ag Production Causing Headaches," The Manhattan Mercury. April 6, 1986.
Conn, William J. "Techniques for Protecting Prime Agricultural Land: Zoning Applications in York County, Pennsylvania," Protecting Farmlands. eds. Frederick R. Steiner and John E. Theilacker. Westport, Conn.: AVI Publishing Company, Inc., 1984.
Coughlin, Robert E. and John C. Keene. "The Protection of Farmland: An Analysis of Various State and Local Approaches," 33 Land Use and Zoning Law Digest, (June 1981), p. 5-11.
Cunningham, Roger A. and Daniel R. Mandelker. Planning and Control of Land Development. Charlottesville, Va.: The Michie Company,
Planning and Control of Land Development, 2nd ed. Charlotteville, Va.: The Michie Company, 1979.
Drabenstott, Mark, and Kim Norris. "Competing in the World
Marketplace: The Challenge for American Agriculture," 71 Economic Review, (February 1986), p. 3-14.
Eber, Ronald. "Oregon's Agricultural Land Protection Program," Protecting Farmlands, eds. Frederick R. Steiner and John E. Theilacker. Westport, Conn.: AVI Publishing Company, Inc., 1984.
Fischel, William A. "The Urbanization of Agricultural Land: A Review of the National Agricultural Lands Study," 58:2 Land Economics. (May 1982), p. 236-259.
Furuseth, Owen J. "Influences on County Farmland Protection Efforts in California: A Discriminant Analysis," 37 Professional
Geographer, (November 1985), p. 443-451.
Hagman, Donald G. Public Planning and Control of Urban and Land Development. St. Paul: West Publishing Co., 1982.
-----. Urban Planning and Land Development Law. St. Paul: West
Publishing Co., 1975.
Hagman, Donald G., and Julian C. Juergensmeyer. Urban Planning and Land Development Control Law. 2nd ed. St. Paul: West Publishing Co., 1986.
Hand, Jacqueline P. "Right-to-Farm Laws: Breaking New Ground in the Preservation of Farmland," 45 University of Pittsburgh Law Review, (Fall 1984), p. 289-350.
Hanna, Randall W. "'Right To Farm' StatutesThe Newest Tool In Agricultural Land Preservation," 10 Florida State University Law Review (1982), p. 415-439.
Hathaway, Dale E. "The Challenge in Building Demand for U.S. Farm Exports," 71 Economic Review, (February 1986), p. 15-27.
Hopewell Township Board of Supervisors v. Golla. 499 Pa. 246, 452 A.2d 1337 (1982).
Jackson, Richard H. Land Use in America. New York: Halsted Press, 1981.
Kansas Statutes Annotated
Lapping, Mark B., et al. "Right-to-Farm laws: Do they resolve land use conflicts?'* 38 Journal of Soil and Water Conservation, (November-December 1983), 465-467.
Lapping, Mark B. and Nels R. Leutwiler. Agriculture in Conflict: The Right-to-Farm Laws and the Peri-Urban Milieu for Farming, (unpublished), 1986.
Massey, Barry. "Doubts Persist Over Clean Grain Measure," The Mannhattan (KS) Mercury, October 27, 1986.
McKinney's New York Agricultural & Markets Law.
National Agricultural Lands Study. America's Agricultural Land Base in 1977 (Interim Report #5). Washington, D.C.: U.S. Government Printing Office, 1980.
-----. An Inventory of State and Local Programs to Protect Farmland.
Washington, D.C.: U.S. Government Printing Office, 1981.
National Agricultural Lands Study. Final Report 1981. Washington, D.C.: U.S. Government Printing Office, 1981.
Executive Summary The Protection of Farmland. Washington, D.C.: U.S. Government Printing Office, 1980.
Where Have All The FarmLands Gone? Washington, D.C.: National Agricultural Lands Study, 1979.
Nelson, Byron E., "Differential Assessment of Agricultural Land in Kansas: A Discussion and Proposal," 25 University of Kansas Law
Review. (1976-1977), p. 212-230.
New Hampshire Revised Statutes Annotated.
North Carolina General Statutes.
Office of Technology Assessment, U.S. Congress. Technology. Public Policy, and the Changing Structure of American Agriculture. [0TA-F-285] Washington, D.C.: U.S. Government Printing Office, 1986.
Oregon Revised Statutes Annotated.
Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).
Platt, Rutherford, H. "The Farmland Conversion Debate: NALS and
Beyond," 37:4 Professional Geographer. (November 1985), p. 433-442.
Prosser, William L. Law of Torts. St. Paul: West Publishing Co., 1977.
Raup, Philip M. "An Agricultural Critique of the National Agricultural Lands Study," 58:2 Land Economics. (May 1982), p. 260-276.
Reisner, Marc P. Cadillac Desert: The American West and Its
Disappearing Water. New York: Viking Penguin Inc., 1986.
Rose, Jerome G. Legal Foundations of Land Use Planning. New
Brunswick, N.J.: Rutgers University, 1979.
Smith-Hurd Illinois Annotated Statutes.
Spellman, John. "King Countys Purchase of Development Rights
Program," Protecting Farmlands. eds. Frederick R. Steiner and John E. Theilacker. Westport, Conn.: AVI Publishing Company, Inc., 1984.
Soil Conservation Service. 1982 National Resource Inventory. Washington, D.C.: U.S. Government Printing Office, 1982.
Spur Industries, Inc, v. Del E. Webb Development Co.. 108 Ariz. 178, 494 P.2d 700 (1972).
State of Kansas Constitution, Article 11, Section 1.
State of Kansas Proposed Constitutional Amendments. Ballot Proposition HCR 5018, Question #3.
Steiner, Frederick, R. and John E. Theilacker. eds. Protecting Farmlands. Westport, Conn.: AVI Publishing Company, Inc., 1984.
Strom, Fredric A. 1983 Zoning and Planning Law Handbook. New York: Clark Boardraan Company, Ltd., 1983.
terHorst, Cheryl. "Communities at the Crossroads," North Shore Magazine, (July 1986), p. 48-53.
Thompson, Jr., Edward. "Defining and Protecting the Right to Farm (Part 1)," 5 Zoning and Planning Law Digest, (September 1982),
"Defining and Protecting the Right to Farm (Part 2)," 5 Zoning and Planning Law Digest, (October 1982), p. 65-70.
-----. "Protecting Agricultural Lands," Land Saving Action, eds.
Russell L. Brenneman and Sarah M Bates. Covelo, CA.: Island
Todd, Jennifer B. "The Right To Farm In Oregon," 18 Willamette Law Review. (1982), p. 153-171.
Toner, William. "Three Guidelines for Communities in Protecting Farming," Protecting Farmlands. eds. Frederick R. Steiner and John E. Theilacker. Westport, Conn.: AVI Publishing Company, Inc., 1984.
Zoning to Protect Farming: A Citizens' Guidebook. Washington, D.C.: National Agricultural Lands Study, 1981.
Tustian, Richard E. "TDRs in Practice: A Case Study of Agricultural Preservation in Montgomery County, Maryland," 1984 Zoning and Planning Law Handbook, ed. J. Benjamin Gailey. New York: Clark Boardman Company, Ltd., 1984.
United States Code Annotated. Title 7, Sections 4201-4202.
United States Code of Federal Regulations. Title 7, Part 658.
United States Congress. Economic Recovery Act of 1981. Pub. L. No. 97-34. 1981.
United States Congress. Tax Reform Act of 1976, Pub. L. No. 94-455. 1976.
U.S. Comptroller General. Preserving Americas FarmlandA Goal the Federal Government Should Support (Report to Congress #CED-79-109). Washington, D.C.: U.S. Government Printing Office, 1979.
U.S. House of Representatives, 95th Congress, Second Session. H.R. Rep. No. 1400. Washington D.C.: U.S. Government Printing Office, 1978.
Vernons Texas Codes Annotated.
Warren, Brad. "The Wreck in Reclamation," 71 Sierra Magazine. (November-December 1986), p. 91-93.
Washington Revised Code Annotated.
West's Connecticut General Statutes Annotated.
West's Florida Statutes Annotated.
Wolf, Peter. Land in America: Its Value. Use and Control. New York: Pantheon Books, 1981.