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Volume 12 - Opinions of Counsel SBRPTS No. 34

Opinions of Counsel index

Exemption - Agricultural (qualified lands requirement) (silvopasture) - Agriculture and Markets Law, § 301 (agricultural production requirement) (silvopasture):

Forested land used as silvopasture may only qualify for an agricultural assessment as farm woodland.

We have received a copy of a memorandum entitled “Guidelines for Local Assessors: Silvopasture and Use of Woodlands and Woodland Pastures.” The memorandum asserts that land devoted to silvopasture is used in agricultural production for purposes of Article 25-AA of the Agriculture and Markets Law. The memorandum contends that assessors should consider forested or wooded land devoted to “silvopasture” to be land used to produce livestock and/or livestock products for sale, rather than farm woodland, for the purposes of the agricultural assessment program. If assessors accept this characterization of such land, more wooded land within commercial farms, i.e., land in excess of the fifty acre limit discussed below, would qualify for an agricultural assessment. We disagree with this analysis.

We accept for purposes of this Opinion the definition of “silvopasture” contained in the memorandum:

Silvopasture is a planned and managed combination of trees, forages, and commercial livestock for a productive benefit. Farm owners who allow livestock to roam and graze in brushy or wooded areas without additional improvements, such as silvicultural thinning, forage establishment, and durable fencing, are not engaged in silvopasturing.

The memorandum describes five “practices [as] characteristic of silvopasturing efforts in New York State.” The five practices are described as follows: (1) “[l]andowner or farm operator establishes grass and/or legume forages in the silvopasture that are shade tolerant, perennial, durable, palatable, nutritious, and persistent;” (2) “[l]andowner or farm operator intentionally thins the density of the trees and shrub species to manage the amount of sunlight reaching the woodland pasture forages during the growing season;” (3) “[f]encing utilized in silvopasture is durable and effective for livestock, but not necessarily permanent;” (4) “[l]ivestock are rotated to avoid damaging behavior, optimize forage access, and allow rest periods to maintain vegetative health;” and (5) “[l]andowner or farm operator has a written plan outlining the intended sequence of forage establishment, vegetation removal, silvicultural interventions, and livestock production.” The article concludes that land devoted to silvopasture: (1) “may be used for grazing and sheltering of livestock including, but not limited to: cattle, poultry, goats, sheep, and hogs;”' and (2) “is concurrently used for long-term development of woodland products such as timber, nut crops, and firewood.”

Agriculture and Markets Law, (AML), Article 25-AA (§ 300 et seq.), authorizes agricultural assessments for “land used in agricultural production” (AML, §§ 305(1)(a) and 306(1)). Land qualified to receive an agricultural assessment may be located within or outside an agricultural district (Ibid.).

Generally, “land used in agricultural production” must consist of “not less than seven acres . . . used as a single operation in the preceding two years for the production for sale of crops, livestock or livestock products of an average gross sales value of [$10,000] or more.” A commercial farm operation’s “land used in agricultural production,” in certain circumstances, also may include a maximum of 50 acres of “farm woodland” (AML, § 301(4)(d)). {1}  The latter category of a farm operation’s acreage is defined as “land used for the production for sale of woodland products, including but not limited to logs, lumber, posts and firewood” (AML, § 301(3)).

Current AML, Article 25-AA, does not provide that a commercial farm may consider the same wooded land to be used to produce for sale crops, livestock or livestock products and farm woodland. For example, AML, § 301(3), provides that “[f]arm woodland shall not include land used to produce Christmas trees.” In addition, AML, § 304-a(3)(e), provides that “[t]he agricultural assessment value for farm woodland shall be the same as that calculated for mineral soil group seven.” No similar provision applies to the portion of a commercial farm’s land that is used to grow other types of trees, such as Christmas trees or fruit trees.

We respectfully disagree with the memorandum and believe that current AML, Article 25-AA, does not empower assessors to grant agricultural assessments to forested land used for silvopasture based on the characterization that such land is employed to produce livestock or livestock products for sale. Rather, we believe that such an expansion of the agricultural assessment program would require an amendment of AML, Article 25-AA, by the Legislature. Indeed, the memorandum itself shows how difficult it would be to integrate silvoculture into the existing program.

The memorandum assumes that local assessors would have to make several difficult administrative decisions when reviewing applications claiming certain wooded portions of a farm are devoted to silvopasture without any statutory or regulatory direction. For example, assessors might be required to decide whether (1) the purported silvopasture has grass and/or legumes that is “shade tolerant, perennial, durable, palatable, nutritious, and persistent;” (2) the trees and shrubs in this part of a commercial farm have been intentionally thinned “to manage the amount of sunlight reaching the woodland pasture forages during the growing season;” (3) this area’s fencing “is durable and effective for livestock, but not necessarily permanent;” (4) the livestock within this area are “rotated to avoid damaging behavior, optimize forage access, and allow rest periods to maintain vegetative health;” and (5) there is “a written plan outlining the intended sequence of forage establishment, vegetation removal, silivicultural interventions, and livestock production.”

It should go without saying that exemption statutes are strictly construed against an asserted exemption and that the legislative intent to exempt in a particular set of circumstances must be clear (see, City of Lackawanna v. SBEA, 16 N.Y.2d 222, 230, 264 N.Y.S.2d 528, 212 N.E.2d 42 (1965)). The memorandum supports extending an exemption without this clear legislative intent being present.

Finally, we believe that what has been the clear intention of the legislature is to differentiate between the protection of agricultural land and the protection of forested land. Farm woodland of up to fifty acres qualifies for the agricultural exemption (AML, § 301(4)(d)). Woodland of over fifty acres can be eligible for the exemption provided by section 480-a of the Real Property Tax Law. We reiterate the classifying farm woodland of over fifty acres as land in agricultural production based upon silvopasturing requires legislative action.

September 13, 2010

NOTE:   This Opinion was effectively overridden by Chapter 547 of the Laws of 2014.  That legislation added a new paragraph m to section 301(4) of the Agriculture and Markets Law which generally recognizes land used in silvopasturing as being in a separate category from farm woodland for purposes of the agricultural assessment program, subject to the specified acreage limits. 


{1}  AML, § 301(4)(d), provides that the phrase “land used in agricultural production” includes “[f]arm woodland which is part of land which is qualified for an agricultural assessment, provided, however, that such farm woodland attributable to any separately described and assessed parcel shall not exceed fifty acres.”

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