NY Court Upholds PDR Law and Finds Enactment of Laws to Alienate the Protected Lands Without Public Referendum Violated Provision of County Code

County residents, taxpayers, and property owners brought an action against the county legislature, alleging that local laws giving land owners who had transferred development rights to the county the opportunity to apply for agricultural development permits, special use permits, and hardship exemptions violated plaintiffs’ substantive and procedural due process rights and the provision of New York state constitution prohibiting gifts, loans, or credit by local political subdivision to persons, entities, or causes. Residents also sought a declaratory judgment that laws were null and void and a permanent injunction prohibiting granting of permits and hardship exemption to landowners pursuant to the laws.

At issue in this permanent injunction action was the validity of two local laws adopted in 2010 and 2013 by the County Legislature which amended various provisions of Chapter 8 of the Suffolk County Code entitled “Development Rights to Agricultural Land”. Chapter 8 of the 1985 Suffolk County Code codified the County of Suffolk’s previously granted authority under a series of local laws, first enacted in 1974, to purchase the development rights portions of agricultural lands in fee from the owners. In exchange for the County’s purchase of these future development rights, known as “PDRs”, the sellers conveyed to the County the development rights attached to their premises and agreed to restrict the use of their premises to agricultural production or open space by covenanting the County’s right to prohibit or restrict any use of the premises for any purpose other than agricultural production. A portion of the sales tax revenues collected by the County served as one source of the taxpayer funds expended by the County for its purchase of any PDRs under the terms of each PDR purchase agreement and conveyance.

The plaintiffs first contended that these amendments violated the “Gift and Loan” clause of the New York State Constitution. The court, however, found that the challenged amendments did not involve the gifting or lending of monies. While there was no question that development rights, standing alone, were valuable components of the “bundle of rights” associated with fee ownership and constituted both a valuable and transferable commodity, the challenged amendments only provided the opportunity to apply for agricultural development permits, special use permits and hardship exemptions. The court also found that the plaintiffs’ submissions failed to address that their PDR interests qualified as constitutionally protected property rights for purposes of substantive due process analysis and that the challenged amendments constituted an unreasonable exercise of the County’s police power which deprived the plaintiffs of their PDR interests in violation of the due process clauses.

The court next determined that a substantial intrusion or diversion of the County’s purchased development rights was effected by the amendments as they allowed the landowners to develop their property for their personal gain, use and enjoyment in contravention of the public’s right to use and enjoy such property as preserved open spaces and/or areas in their natural states as they existed at the time of the purchase. Furthermore, defendants failed to demonstrate that a park or a related public purpose existed in or was served by the development rights diverted to the landowners under the challenged amendments. The court therefore found that the plaintiffs established a prima facie showing that the challenged amendments were inconsistent with the public policy expressed in GML § 247 and were violative of the public trust doctrine and thus actionable under GML § 51.

Lastly, the plaintiffs contended that those portions of the challenged amendments which removed the unqualified requirement that a “mandatory referendum” be put to the people of Suffolk County prior to the alienation of purchased development rights, violated previous versions of the code and other local laws and were thus null and void. The plaintiffs were required to establish that the permit and hardship exemption processes set forth in the challenged amendments constituted an alienation of the County’s PDRs. The term “alienation” was defined in the Code as “the transfer of any development right in real property from the County to another”. Here, the court found that the permit and hardship exemption processes set forth in the challenged amendments constituted a “transfer” of purchased development rights and that the enactment of the amendments without a public referendum violated the SCC Chapter 8 provisions thereby rendering the amendments null and void.

Long Island Pine Barrens Society, Inc. v. Suffolk County, 39 N.Y.S.3d 710 (Suffolk Co. 10/28/2016)