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Orders Issued Pursuant to 305-a

Orders Issued Pursuant to 305-a
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Overview

The Department issues Orders pursuant to its authority under §305-a of the Agriculture & Markets Law to protect farm operations from unreasonably restrictive laws. These Orders are issued on a case-by-case basis to compel compliance, only after conducting a thorough review and after collaborating with the municipality at issue to develop mutually acceptable modifications.

The Department is providing these Orders for informational purposes to assist in guiding local governments, farmers, and the general public. These Orders should not be construed in any way as having legal effects on other parties or circumstances other than those subject to the Orders. All reasonable efforts have been made to ensure that the listing of issued Orders is complete and accurate. However, for the most current information, please contact the Department directly.

Orders

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    93-1 – 01/21/1993 – Town of Fremont

    Denial of a special permit under a law that prohibits the housing of farm animals within 200 feet of a side or rear lot or 300 feet from an existing dwelling. Farm operation sought a special permit for two existing buildings to be converted into a finishing barn and a smaller barn to house livestock. Board issued a decision granting the special permit for the finishing barn, but denied the application for the smaller barn citing concerns of Health and Safety.

     

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    94-1 - 05/26/1994 - Town of Wilson

    Refusal to further process a permit application until farm operator provides a full Environmental Assessment Form (EAF) in an application for a permit to construct a pole barn. Barn would be situated on a 210 acre lot and would be used to house cows.

     

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    95-1 - 03/06/1995 - Town of Verona

    Prohibition on the composting and storage of milk whey wastewater sludge in violation of the Town's zoning ordinance because the Town considered it a commercial or manufacturing operation rather than agricultural activity. The Local Law prohibited the disposal, storage and/or composting of materials, including sludge, septage or "non-local manure" within the Town.

     

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    97-1 - 06/18/1997 - Town of Butternuts

    Prohibition on landspreading through a local law, which prohibits the dumping of "waste materials of any nature" on land within the Town, regardless of whether the NYS DEC has granted a Waste Transporter Permit.

     

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    00-1 - 02/28/2000 - Village of Elbridge

    Denial of a permit to erect temporary greenhouse and requirement of the construction of a fence to screen existing greenhouses, or the removal of existing greenhouses. Town also required farm operation to file a long form Environmental Assessment Form under SEQRA.

     

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    01-1 - 01/19/2001 - Town of Berlin

    Restriction of a permit for a setback variance for greenhouses and variance for lighting used in greenhouses in exchange for the farm to agree to forgo any improvements of temporary or permanent nature on a portion of the parcel in use by the farm operation or any successive operation. The provision of the local law states: "No glare or heat shall be produced that is perceptible beyond the boundaries of the lot on which the use is located.

     

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    01-2 - 06/19/2001 - Town of Varick

    Imposition of a moratorium on the construction of new confined animal feeding operations (CAFOs) and a moratorium on issuing any building permits for the new construction of structures used as confined animal feeding operations until the Town has had an opportunity to review the health hazards associated with such hazards

     

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    01-3 - 09/12/2001 - Town of Sandy Creek

    Imposition of a moratorium on the land spreading of liquid manure. Prohibition of land spreading of liquid manure significantly limits a farm's nutrient management options and could result in unavoidable violations of a farm operator's CAFO permit issued by DEC.

     

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    01-4 - 09/12/2001 - Village of Lacona

    Local Law amended to prohibit the land application of liquid manure. Prohibition of land spreading of liquid manure significantly limits a farm's nutrient management options and could result in unavoidable violations of a farm operator's CAFO permit issued by DEC.

     

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    02-1 - 09/17/2002 - Town of Milo

    Imposition of requirements for site plan review for manure storage facilities; mandated nutrient management plans for smaller livestock farms; manure storage requirements for smaller farms; a prohibition against manure storage facilities within the zoned low density residential and/or commercial districts in the Town; requirements for posting of emergency contact information; excessive setbacks for livestock operation facilities, manure storage and land application of liquid manure; and land application requirements which exceed the state's base requirements.

     

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    03-1 - 02/11/2003 - Town of Fenton

    Town classification of a horse operation as Commercial Outdoor Recreational Use, not an agricultural operation, subjecting commercial horse boarding operation to site plan requirements as well as other special approval requirements.

     

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    03-2 - 10/14/2003 - Town of Throop

    Imposition of a six-month moratorium on commercial and industrial development; re-zoning a portion of the commercial and industrial zoning to residential, and requiring a special permit for the construction of agricultural buildings in an agricultural district.

     

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    06-1 - 01/30/2006 - Village of Shortsville

    Prohibition on the keeping of barnyard animals upon the annexation of property into the village of Shortsville from the Town of Manchester. Village Code requires compliance by obtaining approval from the Zoning Board of Appeals and Certificate of Occupancy and the setback/removal of fencing.

     

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    06-2 - 03/21/2006 - Village of Lacona

    Restriction on landspreading of liquid manure, which authorizes the locality to review pesticide records and mandates that the farm operation pay for the Village's costs to hire an attorney, geologist, certified CAFO planner and other professional consultants in connection with the Village's review, consideration and approval or rejection of an application for a farmstead; and requires an annual application fee for field application of materials.

     

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    11-1 - 02/23/2011 - Town of Southeast

    Requirement that the operator of a commercial horse boarding operation request a permit consisting of a $1,100 fee and a lengthy approval process for the construction of (1) steel sheet piling along approximately 140 feet of stream bank along a portion of the East Branch of the Croton River, (2) a rock rip rap to armor the bank and protect the pilings, and (3) vegetative plantings along the bank for stabilization purposes to avoid further erosion into an existing agricultural structure under the local Freshwater Wetlands Law. The planned activity had already been approved by the NYS DEC.

     

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    13-1 - 06/27/2013 - Town of Lewisboro

    Restriction on the definition of a commercial horse boarding operation to one that consists of 10 acres or more, operating under a horse management plan, special permit, and a site development plan approved by the Town's Planning Board. The local law also limits the number of horses on a parcel of land to one animal for the first 2 acres and one animal for each additional acre thereafter.

     

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    15-1 - 01/13/2015 - Town of Gaines

    Denial of a permit for a wind turbine to be constructed on a fruit farm because it exceeded setback requirements set by the local wind energy law. The town had previously approved the permit and after the permit was issued, mandated that the farm operation dismantle the wind tower and move it to comply with the setback requirements.

     

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    15-2 - 06/30/2015 - Town of Clarence

    Denial of a variance to a zoning law that limits the height of towers to 60 feet as measured from the average ground height surrounding the site of the tower to a farm operation desiring to increase the height by 80 feet for a total height of 140 feet for the purposes of constructing a wind turbine to offset energy needs of the greenhouse operations.

     

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    16-1 - 06/9/2016 - Town of Bennington

    Prohibition of disposal of sludge, sewage sludge, and septage generated outside of the town within the town. Farm operation operates across the borders of both Erie and Wyoming Counties and deposits Equate bio-solids for the production of corn and soybean. The farm operation intends to apply through the method of injection.

     

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    16-2 - 12/14/2016 - Town of Ellenburg

    Prohibition of "septage" in any zone, defined as "sludge (or derivatives of) biosolids" under Town's Zoning Code, which includes the Class A biosolid Fertilimer. Fertilimer is proposed to be applied to three parcels consisting of 154 acres of land in a total area of 900 owned acres and 500 rented acres. Both EPA and DEC have not identified additional toxic pollutants in biosolids for regulation under the Clean Water Act and have determined that the risk potential is low.

     

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    17-1 - 05/22/2017 - Town of Wheatfield

    Prohibition of the application of Equate on one parcel used for crop production within the Town under the Biosolids Management Law, which prohibits biosolids, digestate, or other liquid derived from materials containing human waste, pathogenic organisms, and/or municipal wastewater, at any location within the Town. Unreasonably regulates on-farm disposal, storage and/or composting of sludge, septage and non-local manure for agricultural purposes within an agricultural district.

     

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Related Court Decisions

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    Lysander v. Hafner – Court of Appeals (2001)

    Court upholds Department’s interpretation that mobile homes used to house migrant farm workers are within the scope of farm operations under §305-a and holds that the municipality’s restriction requiring that all residences have a first floor area of at least 1,100 square feet was superseded by §305-a.

     

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    Town of Wheatfield v. Ball – Supreme Court, Albany County (2018)

    Department was authorized to issue AML §36 Order (Order 17-1) requiring a town's compliance with AML § 305-a. Department’s guidelines were not in violation of the State Administrative Procedure Act (SAPA). AML §305-a preempts local law where such local law operates in violation. Order was entitled to deference and was not arbitrary or capricious as it related to Town’s restriction on the land spreading of biosolids.

     

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Contact the Sound Agricultural Practices team

To request a sound agricultural practice review, a letter must be sent to the Department with a detailed description of the farm operation, the practices to be reviewed, and the nature of the nuisance complaint.

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The New York State Department of Agriculture and Markets

10B Airline Drive

Albany, New York 12235