The Agricultural Districts Law authorizes the Commissioner to issue opinions, upon request, concerning the soundness of specific agricultural practices. If the Commissioner determines that a practice is sound, the practice shall not constitute a private nuisance.
The Commissioner's opinion is based on in-depth on-site reviews of practices which are called into question, research, and coordination with other state actors. In order for a practice to be considered sound, it must be legal, not harmful, necessary, and supported by expert guidance or opinion. Most of these cases involve extensive investigation and may take six to twelve months, or longer to complete depending on the complexity of the issue.
Agriculture in Nature Opinions
In addition to sound agricultural practice opinions, the Commissioner is also authorized to issue non-binding, case-by-case opinions on whether particular land uses are agricultural in nature. These opinions are purely advisory and do not implicate an investigatory process on the part of the Department. When examining all agricultural practices, the Commissioner uses the Agriculture and Markets Law Article 25AA to determine whether or not the practice under review is agricultural based on information provided by the farmer. To request an opinion, a letter must be submitted to the Commissioner describing the particular land use and any supporting information that may be helpful.
The following guidelines are used by the Commissioner of Agriculture and Markets in helping to establish opinions on whether particular agricultural practices are sound. These guidelines were recommended for the Commissioner’s use by the Advisory Council on Agriculture.
The these guidelines are reviewed annually by the Commissioner and the Advisory Council on Agriculture, allowing for modifications based on the Department’s experience in administering Section 308 of the Agriculture and Markets Law.
The practice should be legal.
Farmers have a basic obligation to comply with all federal, state, and local laws and regulations which reasonably govern the operation of their farm enterprises. It would be inappropriate for the Commissioner to conclude that an agricultural practice, as employed by a farmer in any given case, is sound if it has been found to be in violation of law or regulation and the violation is attributable to a basic short coming or flaw in the practice. This precept would not necessarily preclude the Commissioner from rendering an opinion that a practice which has violated the law is sound if the violation is the result of an accident, an incident of unintended mismanagement, an act of God, or some other unusual, unexpected occurrence, provided the practice meets other acceptable tests for soundness. Similarly, the Commissioner should not be bound to consider any local law which does not comply with the intent of Section 305-a of the Agriculture and Markets Law which prohibits local governments from enacting laws or regulations which unreasonably restrict farm operations.
The practice should not cause bodily harm or property damage off the farm.
Whether legal or not, an agricultural practice may generate effects off the farm. These effects could entail personal (i.e. bodily) harm and/or property damage. The extent to which a specific agricultural practice results in significantly adverse health consequences or property damage off the farm should have a direct bearing on any soundness determination.
The practice should achieve the results intended in a reasonable and supportable way.
Farmers have available to them many published information sources on a wide range of production practices. These recommended practices generally carry the weight of years of research and practical application. Land grant colleges are an excellent source of widely accepted technical information on the preferred methods for conducting various practices to achieve the most effective results. Product information, including proper use instructions, such as for pesticides, fertilizers, machinery, and seed, is another form of published technical guidance. The degree to which a practice conforms with published guidance from reputable sources is an important consideration in judging whether a practice is sound, as is the manner in which that published guidance has been adapted to the conditions peculiar to a specific farm and agricultural production system.
The opinion of recognized experts may also be instrumental in determining the soundness of a practice. This type of verification will be particularly important where the circumstances of a given case are not fully addressed, or covered at all, by published recommendations or guidelines. Such expert opinions could be based on site specific field investigations and/or the review and evaluation of facts provided by other sources.
The practice should be necessary.
The availability of alternatives that may be equal or superior in their efficacy that would reduce or avoid off-farm side effects associated with the practice in question without causing undue costs or disruptions to orderly farm operations should be considered in deciding whether or not an agricultural practice is sound.
Each sound agricultural practice review is conducted on a case-by-case basis, and review procedures will vary with each case. Some typical steps involved in a review may include:
- Staff receive request to conduct a sound agricultural practice review pursuant to Section 308 of the Agriculture and Markets Law.
- Staff request that an attorney be assigned to work with Division staff.
- Staff correspond with requester/complainant to obtain specifics on practice(s) in question.
- Staff prepare for sound agricultural practice review by:
- Notifying landowner of review and who requested the review;
- Arranging a meeting with the landowner; and
- Visiting the landowner with or without an expert in the particular discipline in question and conducting the review.
- Staff send a letter to adjoining landowners where the practice under review is conducted to notify said landowners that the Commissioner is conducting a sound agricultural practice review. The notification will state the nature of the farm practice under review and provide an opportunity for adjoining landowners to comment on said practice.
- Staff contact experts in the particular discipline in question and obtain an unbiased analysis of practice(s) under review. They obtain recommendations if needed.
- Staff contact the requester/complainant to determine what information is available concerning the practice(s) under review.
- Staff contact government officials (federal, state, and local) to determine if any laws have been violated.
- Staff contact law enforcement and/or ordinance enforcement officers to determine if a citation has been issued or if complaints have been received concerning the practice(s) under review.
- Staff contact other aggrieved parties, if any.
- Staff conduct independent research and review pertinent literature on the subject at hand.
- Staff prepare a draft field report including a technical assessment of the practice as employed by the landowner.
- Staff discuss the issue with the Department's legal staff assigned to the review.
- Staff identify deficiencies in draft field report, if any, and gather additional information.
- Staff draft the opinion.
- As required by Law, the Commissioner consults with appropriate state agencies and guidelines recommended by the Advisory Council on Agriculture, as well as the Council itself.
- Where appropriate, the Commissioner may consult with the New York State College of Agriculture and Life Sciences and the USDA Natural Resources Conservation Service.
- The Commissioner reviews comments, if any, from reviewing the Council/agencies' guidelines and modifies the opinion as deemed appropriate.
- A formal Opinion is issued by the Commissioner.
- Notice is given in a newspaper having a general circulation in the area surrounding the practice that an Opinion has been issued pursuant to Section 308 of the Agriculture and Markets Law. Notice is also provided to the owner of the property on which the practice is conducted and any adjoining property owners where the practice under review is conducted.
Request a Review
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.