voiced BY Jerry Cosgrove
JUDY ANDERSON
or established local PDR programs
too. And our state’s highest Court of
Appeals has recognized and affirmed
this approach.
The answer to the second ques-
tion was recently articulated by
attorney and law professor Bill
Hutton in a characteristically concise
manner: “Section 170(h)’s five
categories of conservation purpose
are disjunctive—any one will do. Of
course, if the grantee believes that
the farm is indeed pretty, it may
SUBJECTIVE SCENERY
want to invoke the ‘scenic’ qualifier,
despite the mischief such a recitation
is apt to cause. So our challenge, it
R
seems to me, is to educate folks to
ecently I was asked to review some language for a conserva- resist the temptation to consider any
tion easement on farmland relative to the easement’s purpose open space target property as scenic,
clause, which included reference to scenic attributes as part when to do so will almost certainly
complicate the landowner’s life and
of its conservation purposes justification for Section 170(h) limit economic choices otherwise
of the Internal Revenue Code. available.”
As Bill observes, the allure
As a former farmer, I have to admit that the intend that significance be measured of scenic preservation of working
word “scenic” always raises a red flag in a conser- only by scenic attributes? lands inevitably creates tension,
vation easement on working farm or ranch land. My answer to the first question if not conflict, with the economic
There are aspects of agriculture that are ugly, relative to farmland is an easy one necessities of the farming and
smelly and noisy. Because beauty has always been here in New York state—our state ranching business.
in the eye of the beholder, any “scenic” attribute constitution, Environmental Conser- So while it is true that 170(h)
is inevitably going to be subjective. vation Law and Agriculture and provides for scenic enjoyment as one
However, what caught my atten- Markets Law provide that the policy category of conservation purpose, it
tion was a new phrase that I had of the state shall be to encourage the is but one test only and probably not
not seen before. The term “scenic development and improvement of its the best choice for working farm
benefit to the public” was referenced agricultural lands for the produc- and ranch land. While I may not
as a “key component” of satisfying tion of food and other agricultural agree with the use of “scenic enjoy-
the conservation purposes test products. It further states that the ment” as the preferred conserva-
under 170(h)(4)(A)(iii). Just to be legislature, in implementing this tion purpose (in fact, our program
sure, I checked that statute and policy, shall include adequate provi- permits the use of scenic attributes
confirmed that the two-prong test sion for the protection of agricultural as a secondary purpose to the
of that provision does in fact still lands. The New York State Agri- conservation of viable agricultural
have two prongs: “scenic enjoyment cultural Districts Law protects the land and agricultural soil resources),
of the general public” or “pursuant “right to farm,” and the Agricultural I strongly disagree with the view
to a clearly delineated Federal, State and Farmland Protection Programs that a “scenic benefit to the public”
or local governmental conservation have provided assistance for farm- or “the scenic enjoyment of the
policy, and will yield a significant land protection planning and the general public” are necessarily a
public benefit.” So who decides if purchase of development rights using critical component for satisfying the
such a governmental conservation agricultural conservation easements. conservation purposes of 170(h).
policy will yield significant public Many local governments have devel-
benefit? And did Congress possibly oped farmland protection plans and/ ATTORNEY JERRY COSGROVE IS A DEPUTY
COMMISSIONER AT THE NEW YORK STATE DEPARTMENT
OF AGRICULTURE AND MARKETS, AND OVERSEES THE
STATE’S FARMLAND PROTECTION PROGRAM. FROM
“Voiced” is an opinion piece and does not necessarily reflect the opinions of the
1992 TO 2007 HE WAS THE NORTHEAST DIRECTOR FOR
Land Trust Alliance. As always, please seek the advice of your land trust’s attorney. AMERICAN FARMLAND TRUST.
12 Winter 2010 SAVING land www.landtrustalliance.org