[Continued from the previous Reporter]

VII.  Objectives to Preserve Open Space Successfully Through Agriculture and The Available Tools Individually Meeting Those Objectives

            When local and state governments try to preserve open space and farmland, a host of considerations are taken into account and a variety of institutionalized non-zoning approaches and approaches that are tied more closely to zoning and land use are used.  The institutionalized approaches include right to farm statutes, preferential tax treatment, or subsidizations.  The zoning and land use approaches include clustering, districting, zoning, or the transfer of development rights.  The zoning and land use approaches, particularly as they relate to environmental issues, will be discussed in greater detail.     

            A viable solution to preserving open space through agriculture may be attainable if attention is given to the following objectives: 1) the community at large must be assured that its environment and health and safety are not at risk as a result of zoning decisions founded on the preservation of open space through agriculture; 2) farming must remain economically viable in the area targeted for open space and agriculture; and 3) the cost to the public at large for preserving open space must remain low or proportional to the benefits realized by the public.  Certain considerations and techniques to preserve open space through agriculture are relevant to more than one of these objectives. 

A.  The Environmental Objective and Methods to relieve the
Environmental Issue

            Significant roadblocks are imposed on a local government’s ability to protect its environment and its citizens’ quality of life by using local pollution control ordinances to address agricultural pollution.  Ironically, the safe harbor given to agriculture from regulatory measures at the local level seems to conflict with concepts found in the seminal zoning case, Euclid, Ohio v. Ambler Realty Company.  In Euclid, the Supreme Court established that the Village of Euclid may justify the validity of its ordinance regulating the locations of commercial and residential land uses, and “all similar laws and regulations,” through the use of its police power[1] to protect the health, safety and welfare of its citizens.  The Court elaborated on this use of the police power, pointing out that the decision to declare an object or an activity a nuisance should be based “not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances of the locality.”[2]  Under Euclid, it stands to reason that if a municipality’s adopts a land development regulation that is designed to preserve open space on the basis of its police power, then it should also be able to use its police power to regulate uses, such as regulating the amount of fertilizer that a farmer applies to row crops that are in close proximity to a surface water body.    

            As discussed, Florida’s Growth Management Act encourages the preservation of agriculture, premised on its natural and cultural significance[3] and prevents subsequent environmental regulations from being imposed on agriculture operations.[4]  Some tools that could aid a local government’s ability to regulate agriculture and reap the benefits of a farm’s open space include, but are not limited to, Areas of Critical State Concern (ACSC), location, agricultural zoning, agricultural districts, clustering, transferable development rights, and conservation easements. 

            1.  Areas of Critical State Concern

            The DCA is permitted “from time to time” to designate certain areas of land as areas of critical state concern.[5]  ACSC designation is applicable to areas that are facing unique challenges in the form of growth management and development,[6] such as a community that wishes to maintain the character and protect the environment of its agriculturally zoned land.  The purpose of ACSC designation in a discrete geographic area is as follows:

to protect the natural resources and environment of this state as provided in s. 7, Art II of the State Constitution, ensure a water management system that will reverse the deterioration of water quality and provide optimum utilization of our limited water resources, facilitate orderly and well-planned development, and protect the health, welfare, safety, and quality of life of the residents of this state...[7]  

ACSC designation increases the level of state regulatory oversight of land use decisions within the limits of the ACSC[8] and deemed to be of regional significance.[9]  Conceivably, agricultural lands that a local government targets to preserve open space could be designated an ACSC if that land had attributes that are considered to be environmentally significant, such as a farm located on land that is a groundwater recharge or a wilderness area.[10]  

            After land is designated an ACSC, a list of state agencies is developed that have programs that are relevant to the area’s designation.[11]  DCA then must coordinate and recommend actions that the local government and state agency must take to guide development within the area so that it is consistent with the basis for the ACSC designation and avoids the dangers that could result from uncontrolled development of the area.[12]  The eligibility requirements for ACSC designation that would be relevant to agricultural operations include “an area containing, or having a significant impact upon, environmental or natural resources of regional or statewide importance;[13] or an area containing, or having a significant impact upon historical resources.”[14]  Florida’s Growth Management Act and its State Comprehensive Plan refer to agriculture as significant to Florida’s cultural and natural resources.[15]  

            For instance, a large number of farming operations, such as dairy and poultry farms, exist in the Suwannee River Basin of North Central Florida, which is known to be a high recharge area for the Floridan aquifer[16] and an area with pristine spring fed surface waters.  If a town in the Suwannee River Basin identified areas around it where it wanted to preserve open space through agriculture use, the town could seek ACSC designation based on the recharge characteristics of the Floridan aquifer and the threat that farming operations in the designated area could pose to the Floridan aquifer.  Because of this land’s environmental significance, an ACSC designation would impose on certain state agencies, such as the DEP and DACS, to insure that nutrients, in the form of animal waste or fertilizer, is applied to row crops and spray fields at rates that insure that the Floridan Aquifer and the community’s ground water resources remain unpolluted by nitrogen,[17] or to impose regulations that would prevent the erosion of soils from denuded or recently harvested fields, that could choke a nearby surface water body with sediment.  ACSC designation could also trigger environmental regulations that would help a town preserve open space through farmland without sacrificing its water resources.   

            ACSC designation is not intended to be permanent,[18] nor is it intended to act as a moratorium on a community’s desired path of development.[19]  Instead, it is supposed to be a tool that introduces additional layers of regulatory oversight over activities conducted within its boundaries.  However, there are limitations to the use of the tool, such as the problems that arise when a municipality wants to remove an ACSC designation or remove property from ACSC designation.[20]  Section 380.05, Florida Statute, was revised, as a response to the problems that arise with the removal of an ACSC designation, to insure “prompt elimination of the State role.”[21]

            While there are no instances where land was designated as an ACSC because of its open space and agricultural attributes, there is nothing in the statute that would preclude using such a designation as a means of serving interests that go beyond its original purpose.  For example, the designation of a specified area in the Suwannee River Basin as ASCS could be designated based on protection of the Floridan aquifer from agricultural pollutants, even though a municipality’s core interest in the designation would be the preservation of open space through agriculture as well as gaining environmental regulatory protections beyond that available without ACSC designation.  This is significant, because Section 380.05(2)(a), Florida Statutes, was challenged successfully in Askew v. Cross Keys Waterways because overly broad criteria were used to designate an area an ACSC.[22]  In 1979, Section 380.05(2), Florida Statutes, was amended to narrow the scope of these criteria; however the plain language of the statute could still be construed as all encompassing.[23]  It would seem beneficial, therefore, to identify a specific reason, such as aquifer recharge, as the basis for the designation, as opposed to relying on the expansive criteria of the statute.  The most definitive requirement in the statute is the requirement that the designated area not exceed more than five percent of the state’s land.[24]  

            The use of ACSC to address the environmental pitfalls that can arise when agriculture uses are used to preserve open space is attractive for several reasons: 1) the definitive steps for ACSC de-designation, eventually removing the government’s presence, should appease powerful agricultural interests’ known distaste for government regulations or “command and control regulation;”[25] 2) the importance placed on ACSC de-designation also promotes a program that would allow an affected landowner, such as a farmer, to assimilate the regulatory requirements that would be triggered by ACSC designation into his operations, while knowing that the high costs associated with proving ongoing compliance are finite; 3) numerous agricultural entities are found in areas recognized by the FDEP and Water Management Districts as groundwater recharge areas;[26] and 4) the Florida Legislature refers to agriculture in its zoning and non-zoning statutes in a manner that comports with Section 380.05, Florida Statutes. 

            2) Location of Farming Operations

            An additional matter that can reduce the potential for environmental degradation to occur as a result of the preservation of open space through agriculture is a heightened degree of attention to the physical attributes of the land targeted for open space preservation and farming.  From an environmental perspective, some land is better suited for farming than others.[27]  Communities striving to preserve open space through agriculture use should consider the location of farmland that will best assimilate the strains that agriculture can place on the local environment and target those areas for open space and farming.[28] 

            Some issues that should be considered when determining what and where farmland that will put the least strain on a local environment should be located includes: i) soil chemistry, which could lessen the amount of fertilizer that the farmer must apply to his fields, thereby decreasing cost and the potential for the contamination of ground and surface waters;[29] ii) soil drainage, which affects the amount of agricultural or storm water runoff, and thus the amount of non-point source pollution, and the extent to which soils will naturally treat wastewater that is applied to a field before percolating into the local aquifer;[30] iii) topography, which could affect the rate at which soils are eroded from denuded or recently harvested fields;[31] iv) locations of nearby surface waters, which may be the receiving bodies for storm water runoff or the migration of contaminated groundwater;[32] v) location and the condition of the ambient groundwater table, which will affect the degree to which groundwater becomes contaminated and the quantity of fresh water that will be available to the farmer.[33]   

                        a) Sliding Scale

            One zoning technique that can be applied to agriculture which considers the physical attributes of land is sliding scale zoning from a qualitative standpoint.[34]  For instance, development would be promoted on lands with soil qualities that are not conducive to farming, and development would be prohibited on lands with naturally fertile soils.[35]  This would reduce the amount of fertilizer that is needed for the production of crops in areas targeted for open space and farming.  The sliding scale concept could also be applied to natural resources and environmental concerns from the farmer’s and public’s perspectives.  Attention could be directed towards a variety of physical attributes of the land including: locations of naturally fertile soils, groundwater with features that are conducive to high rates of withdrawal and natural protections, topography best suited for farming, locations of surface water bodies, vertical distance between the ground surface and groundwater, or even features of the land that are conducive to harnessing the migration of nuisance type odors. 

                        b) Cluster Zoning

            Cluster zoning is useful in the protection of environmentally sensitive areas because it delineates those areas within a parcel of land that are to be used for development within the parcel that is to be used for open space.[36]  The environmentally sensitive areas of the parcel are identified and the locations of land uses are designated accordingly.  Agricultural use is a recognized land use in areas zoned for cluster development.[37]  Cluster zoning could be likened to a sliding scale concept, except that the sliding scale method would not include residential development in the same or common parcel.[38]

            Cluster zoning is not used widely due, in part, to the question of its effectiveness since it tends to result in clustered urban sprawl.[39]  In addition, clustering is not amenable to large scale or “factory style” farming primarily because areas intended for open space and agriculture are usually leased to the farmer by homeowners associations and it is the association’s members who often object to the environmental nuisance type conditions associated with larger farming operations.[40]  Clustering could be effective when a community is willing to specify the location for residential development and limit the maximum lot size to less than one acre, resulting in a “compact hamlet or village configuration.”[41]  Theoretically, this strategy maximizes the number of inhabitants in a small area, leaving larger areas available for open space and providing a larger buffer zone for a viable farming operation without upsetting the local environment.[42]  

B.  The Economic Objective, Takings, Land Use Methods to Achieve the Economic Objective 

                         1) The Family Farm and Critical Mass

            When decisions on whether agriculture should be used as a tool to preserve open space are made by planners and local officials, the economic realities of farming should be balanced with the actual goals and objectives of the non-farming interests.[43]  For example, one trend that arises out of the realities of economic survival, is the transformation of large numbers of small family farms at and beyond the urban fringe to smaller numbers of “factory style” farms that specialize in producing product at maximum rates and in industrial quantities.[44]  It is becoming increasingly difficult for smaller farms to survive because of the dropping price of commodities and the rising costs of production.[45] 

            Smaller family farms are more consistent with Florida’s Growth Management Laws than “factory style” farms.[46]  Authorities must consider the “critical mass” concept -- where the relationship between small farms and the necessary uses needed to support small farms – such as mechanics, retail feed and fertilizer facilities, and farm supply centers – are all in close proximity to each other – in order for the smaller farm to survive.[47]  These supporting uses and the small farm need one another to survive economically.[48]

            2) Takings Challenges

            Not only is economic viability of a farm dependent upon the farming and non-farming parties supporting the relegation of land to agriculture, but some economic use of the land is a necessary to stave off fifth amendment takings claims that may occur after a local government decides to downzone an area to agricultural use for the purpose of maintaining open space.[49] 

            The threshold for economic viability is poorly defined in the case law.  The Supreme Court in Penn Central Transportation Co. v. City of New York opted to make a case by case inquiry on the question of when a regulation requires that “economic injuries caused by public action be compensated by government.”[50]  The Court applied three factors to be considered when determining whether governmental action constitutes a taking: 1) the economic impact of the regulation on the claimant; 2) the regulation’s interference with investment backed expectations; and 3) the character of the government action.[51]  It is conceivable that a farmer’s could challenge a land use ordinance designed to preserve open space as a taking because it would interfere with the farmer’s investment backed expectation of retiring on the proceeds received from the sale of his farm to a developer.  In Penn Central, the court held that since the City’s landmark ordinance did not entirely preclude the plaintiff’s profitable use of the property or “investment backed expectation,” the ordinance did not constitute a taking.[52]

            In City of Miami Beach v. Zorovich, the plaintiffs challenged the City’s zoning classification because it prevented them from constructing a motel in a neighborhood with two other motels and a high rise apartment building.  The Court held that a landowner did not have a constitutional entitlement to make the “highest and best use of his land,” thus invalidating a zoning ordinance.[53]  An attack on a zoning ordinance will only be sustained upon a showing of “complete deprivation,” preventing all uses of the property.[54]  In Zorovich, the fact that a residential dwelling was permitted, albeit less profitable, was fatal to his claim. 

            The dissent in Lucas v. South Carolina points out the unfairness of this “all or nothing” approach and criticized the lack of any quantification of economic value that is considered in a takings challenge.  Justice Blackmun’s dissent indicates that compensation for the taking of all economic use is not consistent with the lack of compensation for a taking of a percentage of economic use.[55]  Under Justice Blackmun’s view, a farmer could be entitled to compensation equal to the difference between the value of the farm as an agricultural operation and the value of the farm from a development perspective.  The Lucas dissent is significant for farmers because the difference between the value of a farmer’s land for agricultural purposes and its value for development purposes is usually substantial, making the Zorovich situation seem insignificant in comparison. 

            Despite these challenges, the use of agricultural zoning to preserve open space through the preservation of farmland is usually upheld.[56]               

3) Agricultural Districts and Agricultural Zoning  

            Agricultural districts help maintain the economic viability of farming because they set aside areas of farmland large enough to sustain farming operations sufficient to support nearby support uses needed for the affordable operation of a farm.[57]  Agricultural districting addresses the critical mass issue by encouraging and enabling the existence of the agricultural support industries.  It also aids in preserving a population that will be more likely to act as a cohesive political force with common goals,[58] as opposed to a segmented population with opposing priorities, whether they are founded on the importance of preserving farmland for the purpose of open space or the importance of preserving farmland for the purpose of growing crops or raising livestock.   

            Agricultural zoning differs from agricultural districting, in that agricultural zoning deals with specific land uses and is a zoning tool that can be used within an agricultural district.[59]  Agricultural districting generally provides an entire cache of zoning and non-zoning tools, such as tax benefits and right to farm statutes, designed to protect farmers from common law lawsuits under certain conditions.[60] 

C. Low Monetary Cost and Benefits to the Public

            Preserving open space through agriculture use at no cost to the public is ideal, but at the same time this may be difficult because it may be inequitable to ask farmers to cater to a public purpose without compensation.[61]  The least expensive techniques available to local governments are agricultural zoning ordinances and transfer of development rights.[62]      

            1) Agricultural Zoning Ordinances

            Agricultural zoning ordinances – such as exclusive agricultural zoning, area based zoning, large lot zoning, and cluster zoning – are the simplest and least expensive means of preserving open space through agriculture.[63]  They are not voluntary and they do not rely on financial incentives for their implementation.[64]  Agricultural zoning strives to eliminate incompatible uses of the land and maintain the area’s rural character.[65]  Its effectiveness in the preservation of open space is born out by the fact property values are kept low through the enforcement of restrictions on development.[66] 

            The down side to agricultural zoning ordinances, as with many ordinances, is the fact that it is susceptibility to changes based on the political ideology of government leaders.[67]  Furthermore, while agricultural zoning has a low cost for the public, that benefit comes at the expense of the farmer who generally sees a loss in the value of his property as a result of the agricultural zoning.[68] 

            In turn, the use of agricultural zoning poses a greater risk of exposing the taxpayers to a potentially costly defense of Fifth Amendment takings claims and puts local governments on the constant defense of requests for variances or re-zonings which risk undermining the original purpose of the agricultural zoning ordinance and the credibility of a municipality’s comprehensive plan.                     

            2) Transferable Development Rights

            Transferable Development Rights (TDRs) can be used to preserve open space and agriculture because the cost of preservation is sustained by private land speculators.[69]  A TDR program establishes sending and receiving areas which are targeted, respectively, for preservation and development.[70]  For instance, a farmer in a sending or preservation area would be barred from developing his land and, in return, would receive development rights that could be sold or used in a receiving or development area.[71]

            TDRs are similar to cluster development.  However, cluster development locates development and agriculture on the same parcel of land, whereas the locations of preservation and development areas in TDRs can substantially removed from one another.  TDRs are not as effective as cluster development in the protection of the environment from agricultural pollution, however sending areas in a TDR are more likely suited for large scale farming operations. 

            Although the Florida Legislature encourages TDRs and refers to them as “innovative land development regulations,”[72] TDRs are not widely used.  One problem with TDRs is that the locations of sending areas are largely speculative if there is no urban area where development rights can be used or any available buyer to acquire the development right.  The lack of marketability and resale value is common and gives rise to legal challenges based on takings and due process by landowners in receiving areas.[73]  TDRs could be a viable tool if the legislature were to create a receiving market, such as a development rights bank that would purchase the development right prior to the availability of the market.[74]  Such a proposition, however, increases the expense imposed on taxpayers.

            Florida Courts have ruled in favor of TDR programs in response to takings challenges.  In Hollywood v. Hollywood, Inc., the Court upheld the down zoning of the plaintiff’s property because it was reasonably related to a legitimate public purpose.[75]  Glisson v. Alachua County, concerned TDRs and other land use regulations that were passed in accordance with the Growth Management Act.  The Court held that the inclusion of land development regulations in a comprehensive plan, as a pretext to avoiding a facial takings challenge, did not render the TDR or plan “confiscatory.”[76] 
 

VIII. The Solution in Effectively Using Agriculture to Preserve Open Space

            The economic and environmental objectives that are relevant to preserve open space successfully through agriculture will always be connected.  The objective of instilling environmental stewardship into agriculture use is a critical challenge, primarily because a clean environment is expensive[77] and reversing longstanding government protections of agriculture will be difficult politically.[78]  “The legacy of safe harbor…will haunt us relentlessly.”[79]  The solution will vary depending on whether safe harbor is lifted or remains in place.        

            A.  Safe Harbor Lifted

            The benefit of imposing effective environmental regulations on agriculture uses is obvious. [80]  The most logical regulatory tool to be used to impose environmental regulations on agricultural use is the Clean Water Act.[81]  Measures could be taken to expand the scope of agricultural activities that are deemed point sources and thus required to meet NPDES permitting requirements beyond large livestock operations (CAFOS) that are currently subject to those requirements.[82]  In Florida, the legality of imposing NPDES permitting requirements on large animal feeding operations (CAFOS) has been upheld and, at least the Second Circuit has directed the state to expand NPDES permitting to all animal feeding operations.[83]  There is no indication that these requirements could not be applied to crop based and livestock agricultural operations across the board, beginning with nutrient management initiatives and reporting requirements for the discharge of chemicals and effluent.  In addition, TMDL initiatives designed to protect the ambient quality of surface waters and Section 404 wetlands permitting programs could be imposed on agriculture to a greater extent.[84]          

            An alternative to imposing the costs of environmental compliance on the farmer would be to shift the financial burden of compliance to the sources of the constituents that make up the pollutants emanating from agricultural operations.[85]  This could be accomplished by implementing a system that forces chemical manufacturers and wholesale distributors of fertilizers, herbicides, and pesticides to place strict limitations on the amount of chemicals sold to the individual farmer, based on the physical attributes of his particular operation.[86]

            B.  Safe Harbor Remains

            If agricultural interests maintain a degree of safe harbor from environmental regulations, then the use of agriculture to preserve open space as an attractive growth management tool will entail a form of environmental bribery or “green payments,”[87] combined with a program of sliding scale zoning that takes into account the interests of the farming and non-farming communities.   

            Germany has successfully preserved eighty-four percent of its country for agricultural and forestry purposes[88] despite a population density that is “eight times greater than that of the United States.”[89]  Germany’s strategies include a variety of zoning and non-zoning approaches, many of which are similar to those techniques used in the United States.[90]  Two general differences from those employed in the US are: 1) the German mentality that private property should be widely accessible to the public for relaxation recreational purposes,[91] and 2) the higher degree of incentives that Germany gives its farmers to reduce agricultural pollution.[92]  In Germany, farmers can receive money in exchange for implementing measures that will reduce the burden on the environment.[93]  These measures are directed at less intensive uses of the land, and range from a regulated crop and livestock rotation program to a temporary cessation of farming altogether.[94]            

            A US program that would preserve open space through agriculture could use some available tools such as ACSC, when environmentally sensitive areas are at risk, along with the aspects of selected techniques used in Germany, such as payment to better manage a farm’s environmental impact and a more open mentality with regards to public access to private lands. 

            Local governments may need to merge concepts of heritage, culture, recreation, and relaxation, with a pristine environment in order to implement a program that pays American farmers to ignore profitable opportunities or temporarily shut down an operation for environmental reasons.[95]  In return for a local tax that could be construed as “polluter gets paid,” local taxpayers could be permitted to enter and utilize the private agricultural land for recreational purposes.  The public will be more likely to support the imposition of a tax earmarked for enticing farmers to preserve open space with minimal pollution, if it is receiving a tangible benefit beyond a clean environment.  Those that associate agriculture with pollution or place a high importance on a clean environment may be in a minority, particularly in a community with agricultural interests, so the funding of the payment for farmers must be founded on a wide range of principles.[96]  Furthermore, economic studies have demonstrated that dollar for dollar, the cost-benefit ratio to the public of earmarking land for open space far outweighs the monetary benefits of using the same land for development purposes.[97]  The public will respect and support initiatives that are shown to ultimately benefit their bank accounts.   

            The farmers should uphold their end of the bargain by adopting measures that do not require expensive methods of determining compliance or effectiveness.  For instance, in Florida certain agricultural operations adhere to best management practices (BMPs),[98] which are intended to reduce the discharge of pollutants from agricultural operations.  State and federal legislation have mentioned BMPs for years.  However, based on the current ambient quality of waters of the state in Florida, BMPs appear to fall short when it comes to meeting meaningful environmental objectives.[99]  Agricultural BMP directives in Florida have no means of measuring effectiveness reliably, such as through reporting requirements, compliance monitoring or enforcement mechanisms. 

            Measures that will show immediate results include sophisticated programs of sliding scale zoning, crop and livestock rotation, and selected venues for pulsated or permanent reductions in the intensity of farming.  Sliding scale zoning could direct planners and farmers to consider the physical features of the land and the types of farming operations, from a social and scientific perspective, that are most appropriate for use in an area.  Authorities could better site farms based on intensity.  A less intensive or organic farm that nets a higher profit for its product could operate viably year round in close proximity to residential areas, on more expensive land, or near environmentally sensitive land features.  A more intensive operation should be staged further away from residential and environmentally sensitive areas and could be targeted for more regular rotations of crops of livestock or breaks in its operation.

            Local governments cannot rely on state and federal authorities to protect their environment following planning decisions.  If local authorities can teach the public that open space should be pristine and that it will be costly, then open space preservation through agriculture use can be achieved through zoning and land use tools.              

Conclusion

            The scenes of silos, cows in a pasture, and endless rows of corn rightfully bring feelings of serenity to the rural and urban resident.  There is no argument that society as a whole, is better off with pastures than pavement.  Florida’s growth management statutes and policies have good intentions in their efforts to advance agriculture and open space.  However, legislators and much of society has treated agriculture as a benign entity. 

            Agriculture was left behind during the first generation of environmental regulations in the 1970s, when legislation such as the Clean Water Act helped cleanse industrial pollution.  The CWA has always acknowledged the unseen forms of contamination, such as non-point source and groundwater pollution.  However, planners, legislators, and society as a whole are slow to react to forces that do not trigger the human senses immediately.  A lack of focus on the less obvious forms of pollution (non-point source and groundwater) may have contributed to the indestructible culture of safe harbor for farming, allowing agriculture to enjoy exemptions from regulations that other industries have now assimilated into their bottom line.  It is the invisible forms of pollution that will destroy natural resources if society does not demand that authorities control growth management and preserve open space with a broader perspective of the potential sources of pollution.