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Aquebogue, NY 11931
The Honorable Andrew M. Cuomo
Governor of New York State
NYS State Capitol Building
Albany, NY 12224 7/25/14
Dear Governor Cuomo—
I write as a director of a grass-roots, non-profit group comprised of 300-plus citizens of Suffolk County
Agricultural District 7. Our organization is known as “Save Main Road” because we’re dedicated to
preserving the historic agricultural nature of the principal artery linking our North Fork communities. A
slogan we often use is “we have the right to remain rural,” & a core focus for us is to make sure that
protective zoning enacted a decade ago is observed & enforced. While there are other groups that
advocate for farms & farmers, we think our credentials in this area are solid.
That’s why we’re outraged at recent actions of the Department of Agriculture & Markets. This agency
has worked aggressively to subvert local laws designed to restrict & guide development, on behalf of a
large, retail gourmet food shop. A&M has taken the position that this store—which sells almost
exclusively packaged goods & luxury items that did not originate locally…or on a farm anywhere—is a
“farm stand.” We believe the agency is ignoring indisputable facts which indicate otherwise &, in the
process, setting aside both its own guidelines & common sense.
The violations of town code in this matter are sufficiently egregious that Riverhead has sued the farmer.
Rather than working with both parties in an effort to find a reasonable solution, A&M is strong-arming
town government, threatening to file its own action in state Supreme Court. Reviewing the agency's
arguments, we believe a farmer could be selling sporting goods and lingerie and A&M would still attack
town efforts to enforce code as “obstructing farm operations."
The attached brief highlights pertinent facts, & proposes a mediated solution. We ask that you consider
the facts, talk to Department leaders, & ensure that they conduct a fresh, objective review. Thank you
in advance for your time; please advise if we may be of assistance.
for Save Main Road
cc: Sean Walter, Riverhead Town Supervisor
Bob Kozakiewicz, Riverhead Town Attorney
Michael Latham, A&M—Director, Division of Land & Water Resources
Bob Somers, A&M—Manager, Agricultural Protection Unit
Save Main Road brief re: the Glass Greenhouse Farm Market p.1
At the precise moment that the near-legendary “Main Road,” which has linked North Fork communities
for centuries, is on the verge of being designated an historic corridor & listed on State & National
Registers, a state agency & our town have locked horns regarding a new business located on that very
route. Save Main Road is troubled to see local & state government at odds, & concerned about the
impact fallout from this dispute will have…not just on the landmarking process, but on the character of
the thoroughfare & our community.
Having reviewed hundreds of pages of correspondence & documentation from all parties involved,
having talked extensively with nearby, affected business owners & with many area residents, & having
visited the market in question on multiple occasions, our position is simple:
1. The parties—the market owner, the town, & Agriculture & Markets—have reached a stalemate,
with one lawsuit underway & another threatened. It appears unlikely the parties will come to an
agreement or settlement among themselves.
2. Both sides have engaged in posturing & hyperbole, when what’s needed most is a presentation
3. A&M, in its eagerness to advocate for its client, has failed to examine—& failed to measure—the
operations of the new business sufficiently to properly take a position on its compliance, either
with local laws, or with the Department’s own guidelines.
4. An unbiased retail industry expert should be employed to conduct that examination & take those
measurements. Using the Department’s definition of what constitutes farm products, & the
Town’s definition of local content, the expert must determine:
a. total merchandising area of the business.
b. percent of that area used to display produce, whether grown on-farm or on other local farms.
c. percent of site-processed food which is grown on-farm.
d. what qualifies as “farm supporting products” (confining the opinion to NY State).
e. whether the market description in applications for building permits, & for §305-a review,
accurately describes the market as-built.
5. When the expert’s report is complete, the parties should commence mediation & attempt to craft
a solution. If unsuccessful, their respective remedies at law remain available.
Save Main Road believes this approach is necessary & desirable not just to firmly & amicably resolve
the issue at hand, but to arrive at important definitions & conclusions which will serve as precedent
throughout the town.
background & status
An established grower in Jamesport has, for over a decade, successfully operated a greenhouse, open
to retail consumers & known as the Glass Greenhouse. By the grower’s own assessment in late 2013,
88% of sales (in dollars) consisted of products grown on site, & the remaining 12% consisted of “related
accessory products” sourced from outside vendors.
Save Main Road brief re: the Glass Greenhouse Farm Market p.2
In or about January 2007, the farmer began talking with Riverhead town officials about adding a “farm
market.” According to A&M correspondence with the town, the farmer’s stated purpose for this new
building was “to sell onsite greenhouse & orchard grown produce & fruit” in a cooler, dryer environment
than the greenhouse. Additionally, the farmer would “retail market produce grown in the production
houses in the off season as well as free range chickens, eggs & fresh honey.”
And, as the farmer told A&M when he later enlisted their support in the approvals process via Section
305-a review, “We are involved in horticulture & greenhouse vegetables… The farm market is to
be used to sell our products.”
In May 2009, the Department wrote to the Riverhead supervisor, saying it had been: “asked to review
the Town of Riverhead’s Zoning Code as it pertains to the direct marketing of horticultural products
grown on his farm operation.”
Among other things, the Department argued that the farmer should be granted a building permit without
site plan review, from which process it held the farm operation was exempt. While reaching this
conclusion, the Department wrote to the Riverhead town supervisor in November 2011:
“…the greenhouse that he is currently using for retail gets too hot & humid to effectively
market produce. Further, in the new building he can retail market produce grown in the
production houses in the off season as well as free range chickens, eggs & fresh honey.”
In January 2012, A&M asked the town to “confirm within 20 days that it will not continue to impose such
[site plan] requirements & will allow the farm operation to begin constructing the farm market.” The
town responded that its contemplated review of a new retail operation, focusing on such things as traffic
safety, was legitimate, & in accord with A&M guidelines.
Ultimately, the town conducted an “expedited” site plan review & issued a building permit. The farmer
proceeded to erect a 4,500 square foot “market” building of two stories, including a passenger elevator
& a large commercial kitchen/bakery. The “Glass Greenhouse Farm Market” opened for retail business
in or about October 2013, with a temporary Certificate of Occupancy.
On opening, most of the market’s selling floor featured a mix of pre-packaged food products & non-food
manufactured goods; almost none of these items originated locally, or in New York State. The market
also featured refrigerator & freezer cases filled with bottled & canned beverages & other non-farm
packaged foodstuffs, as well as extensive displays for bakery goods produced on site, & for cheese &
gelato serving bars.
Shortly thereafter, the town objected to the nature of the enterprise, asserting that the new market was
an upscale retail grocery & boutique—not a farm stand—& hence not allowed as an accessory (or
other) use under applicable Rural Corridor zoning. Both the farmer & A&M disputed this
characterization, & much correspondence ensued.
In January 2014, the town brought suit against the farmer, seeking to compel compliance with local
codes. That suit, & the underlying matter, are unresolved.
A&M has consistently accused the town of “restricting farm operations,” & pressured regulators to back
off & allow subject market to operate without interference. Further action by A&M, under the authority
of §305-a, has been threatened.
Save Main Road brief re: the Glass Greenhouse Farm Market p.3
intent vs. actual
The italicized statements above are a shortcut to the heart of the issue. Whether viewed individually or
together, these statements give the unmistakable impression that the planned farm market would sell
horticultural products plus chicken, eggs & honey.
The farmer further told the town planning director in 2011 that he: “proposed to use our greenhouses
that were empty 7 months of the year, toward production of food stuffs to be sold in the market.”
And in late 2013, shortly after the retail store opened, & in response to the town’s complaint, the farmer
said: “We are opening up good wholesome organic food to sell directly to the consumers, grown
right here on the farm.”
If all these statements accurately reflected the intended purpose of the Glass Greenhouse market, we
firmly believe that the town, other local merchants, & community residents would have no objections to
its presence or continued operation.
However, we believe the actual purpose of the market is revealed by its floor plan & selection of
merchandise, & that purpose is radically different, in both character & scope, from the image drawn by
the farmer & by A&M.
To paint a clearer picture, here’s a partial list of what we found dominating market shelf space on a visit
this week. Because town code measures local content based solely on percent of merchandising area,
we attempted to focus on the most prominent & voluminous displays:
non-food items origin notes
Kringle candles Bernardston MA display 16' long x 7' high
Bambeco glassware Mexico 6' wide by 7' high
Terra Chips Boulder CO
Dean’s Beans coffee Orange MA 3' x 3' island display
Green Mountain Gringo Salsa Winston-Salem, NC
African Market baskets & hats Ghana two 8' high racks
packaged foods origin notes
DeCecco Pasta Italy 12' shelf space
fridge & freezer cases various 24’ long, 6’ tall; 50% bottled &
canned beverages, balance mixed
McCann’s Irish Oatmeal Ireland
Stonewall Kitchen—various York ME many items throughout the store,
including island displays
Wolfgang Puck Soups Camden NJ made by Campbell
Nature’s Path Granola Blaine WA
Bar Harbor Clam Chowder Whiting ME “Fresh Off the Docks of Maine”
Pacific Vegetable Broth Tualatin OR
Save Main Road brief re: the Glass Greenhouse Farm Market p.4
produce origin notes
Organic watermelon Bakersfield CA 2 types, 2 bins
Earthbound Farm salads San Juan Bautista CA
Driscoll strawberries Watsonville CA
Mother Earth mushrooms Landenberg PA
SpringThyme Herbs Hockessin DE 6 varieties
Separate from the items listed above, the market also features (by our estimate): 8 linear feet of gelato
bar, 6 linear feet of cheese bar, & nearly 20 linear feet of bakery display cases, housing site-produced
cookies & pastries. Based on what we know of local sources, it seems unlikely that the contents of any
of these displays are comprised of ingredients that are 51% or more farm-grown. (Some varieties of
cheese may well be local, but probably represent a small fraction of the cheeses available for sale.)
We do not know what percent of the unlabeled produce on display was grown locally, either on- or off-
farm. However, we estimate that the entire produce display room comprises less than 20% of the
merchandising floor area, & an even smaller portion of the total market square footage. Thus, if all
Glass Greenhouse produce were grown on site, the market would still fall far short of meeting local
One thing on which all parties agree is that town code dictates—& is allowed to dictate—a required
percentage of local content. In zones where farm stands are allowed as accessory use, including
§108-282 (Rural Corridor) & §108-22 (Agricultural Protection), Riverhead town code says this
[throughout this section, emphasis is added through italics & boldface]:
The sale at retail of homegrown or homemade products, provided that all retail uses shall be
subject to site plan approval pursuant to Article XXVI of the Riverhead Town Code and the
provisions of Chapter 108. The farmer may sell supporting farm products and farm
products not grown by the farmer provided that the area devoted to the sale of said
products at no time exceeds 40% of the total merchandising area.
As for the Department, A&M says in “Guidelines for Review of Local Laws Affecting Direct Farm
Marketing Activities” Rev. 9/1/2010:
…re “Product Origin”
Some farmers import produce from other farms to sell at their stands to increase the
diversity of products offered or to bridge periods of low supply of commodities produced
on-farm. Product diversity may attract potential customers to a roadside stand or farm market.
The Department believes the sale of some agricultural products grown off the farm
should be allowed, but has not established a percentage of on-farm versus off-farm products
for that purpose. The Department considers the facts of a particular case in making a
Save Main Road brief re: the Glass Greenhouse Farm Market p.5
determination whether a local law is unreasonably restrictive, but generally would view
requiring a predominance of on-farm products as reasonable. The needs of “start-up” farm
operations should also be considered. These farms often start out selling a large percentage of
agricultural products grown off the farm in order to develop a customer base and maintain
income while their farms are growing. If a percentage of on-farm products were required by a
locality, allowing such farms a reasonable period of time to meet the percentage would be
…re “On-farm preparation of processed foods:”
Some of the larger farm markets may have facilities for the on-site preparation of processed
foods (e.g. a kitchen, bakeshop, etc.), as well as facilities for consumption of foods (e.g., a
café). The Department considers these practices as part of the farm operation as long as
the products that are prepared are composed primarily of ingredients produced on the
farm. It would not be unreasonable to have a farmer provide the municipality with proof that
their facilities are in compliance with local Health Department and/or Federal, State or local law
And, as A&M staff wrote to the Glass Greenhouse owner in November 2013 [underlining is original]:
“Under the section entitled “Product Origin,” farmers may import produce from other farms to sell at
their market to increase the diversity of products sold. The Department believes the sale of some
agricultural products grown off the farm should be allowed. The Department states that a
predominance of on-farm produced agricultural products sold at a farm market/farmstand is
reasonable, but some towns have established percentages for on-farm vs. off-farm produced
If processed foods are sold at the market, the Department protects the sale of such products if they
are composed primarily of ingredients produced on the farm (i.e., more than 51% of the ingredients
must be produced on the farm).”
The Director of A&M Division of Land & Water Resources wrote to the Town Supervisor on January 23,
2014 that “merchandising area [is] not defined,” & “It is unclear…what is considered part of the
merchandising area without such definitions.”
The farmer, however, wrote to A&M on October 21, 2013: “THE MARKET CONSISTS OF 4,000
SQUARE FEET OF MARKET SPACE, THE BAKED GOODS DISPLAY ONLY OCCUPIES 76
SQUARE FEET OF THE WHOLE BUILDING.” [emphasis original]
There’s no mystery here. Like any retailer, the farmer knows his space. And if he’s aware that his
display of baked goods occupies 76 s.f., it’s likely he also knows how the rest of his 4,000 square feet is
allocated to other departments & categories of goods.
These allocation figures have not been shared, either with the Department or with the Town.
We believe the fact that A&M emphasized to the farmer that the 40% imported content law is intended
to accommodate “produce” & “agricultural products grown off the farm” is of pivotal importance.
This must be viewed together with A&M failure to comment on the overwhelming predominance of non-
agricultural, manufactured products in the market during their visits.
Save Main Road brief re: the Glass Greenhouse Farm Market p.6
One possible explanation is that the Department is willfully ignoring what they see when they visit this
retail operation & are confronted by racks full of candles, brand-name canned foods from out of state,
glassware from Mexico, hats & baskets from Africa, & so forth.
We believe an ordinary reasonable person would quickly & decisively conclude that all things farm-
grown or agriculture-related, taken together, occupy only a small fraction of this market’s
absence of quantitative analysis
At this point, Save Main Road takes extreme issue with A&M. We’re dealing here with concrete things
which can be objectively measured. Yet—in hundreds of pages of correspondence & documentation &
arguments—neither the Department, nor the farmer whose interests they represent, has ever cited
actual figures in support of their shared position that the Glass Greenhouse is a legitimate farm stand in
compliance with code in terms of local content (inclusive of “start-up” allowances; see below).
In January 2014, Director Latham of A&M wrote to the Riverhead Town Supervisor. In five dense
paragraphs, he described an October 2013 site visit to the “farm market” in question, conducted by the
manager of the Department’s Agricultural Protection Unit. The Director proceeded to list:
• the variety of herbs the farm planned to grow;
• how many laying chickens were on site, & how many on order;
• what vegetables will be blanched & frozen for soup;
• how many fruit trees were being fed & pruned;
• what kind of honey bee hives will be moved to the orchard, & when;
& so on, in voluminous detail. Yet, the extensive details on the range of crops, livestock, & processed
products currently offered or planned by the farmer are wholly irrelevant.
The regulations are as blind to the diversity of merchandise sold as they are to its relative value. The
only thing that matters is shelf space, or “merchandising area.”
“The farmer may sell supporting farm products and farm products not grown by the farmer
provided that the area devoted to the sale of said products at no time exceeds 40% of the
total merchandising area.”
If the Glass Greenhouse fills 60% of its retail floor area with corn grown on-farm, & 40% with a
neighboring farm’s pumpkins, the standard is met & it’s a legitimate, allowed farm stand. And if some—
or even all—of that corn must initially be sourced from other local farms, no problem; that’s covered by
A&M Law, & we strongly suspect the town wouldn’t object.
As noted above, however, we think even a casual observer can readily gauge that the percentage of
farm product here—including “start-up” produce from other local growers—doesn’t approach that
standard. Even if all goods for sale in the market which are not “farm products” could legitimately be
classified as “supporting farm products” (which we believe is not the case), the market is still miles
away from meeting its local content obligations.
Save Main Road brief re: the Glass Greenhouse Farm Market p.7
All retailers, whether big chains or mom & pop stores, have planograms. They may be sophisticated,
computer-generated constructs, or scratched on a cocktail napkin, but every store has one. One
definition: “The planogram is a visual diagram, or drawing, that provides in detail where every
product in a retail store should be placed.”
It’s unthinkable that an operation as large, sophisticated, & well-planned as the 4,500 square foot Glass
Greenhouse Farm Market exists without a schematic showing both the placement of categories of
product within the store (produce, baked goods, gelato bar, etc.), & the amount of shelf space devoted
to each brand (suppliers typically give deals to retailers—including display “packages” such as the 16
lineal feet of Kringle candle racks here—which may be contingent on specific placement).
Save Main Road cannot fathom why no such evidence has been given to the town in this matter, in
support of the market’s claims to be in compliance with local content code.
We believe it’s incumbent on A&M, before they take up the cause of a farmer looking to short-circuit
local laws, to perform at least a rudimentary analysis to ensure the farmer is, or will be, in compliance
as he claims. From their correspondence & files, the Department has made no such efforts.
Again judging by their correspondence & files, neither has the Department required the farmer in this
matter to prepare & present such analysis for their review.
Given the history & status of this matter, we believe the Department must not only obtain those plans
which show how market retail space is allocated, but also visit the site—accompanied by town
representatives—to verify that the plans accurately represent Glass Greenhouse merchandising.
“supporting farm products”
We concur with the A&M Director that, referencing Riverhead Town Code §108(22)(C)(2), “terms used
need to be clarified (i.e., merchandising area, supporting farm products, etc.).” However, we note that
while the Department presumably encounters these terms in districts around the state, it has not
suggested preferred interpretations here.
The Director did acknowledge that “pre-packaged, highly processed products/food” sold at the market
“are not imported from other farms nor could they be produced from product grown on the farm.” We
believe his meaning is that these things could not be made from products grown on any farm:
Save Main Road brief re: the Glass Greenhouse Farm Market p.8
Whether such goods can be categorized as “supporting farm products” is an interesting question. We
think it useful & relevant to reference the A&M guide "Local Laws and Agricultural Districts: How Do
They Relate?", in which the Department asks:
“Does the regulated activity encompass farm operations?”
The pamphlet provides an answer:
“Section 301(11) of the Agriculture and Markets Law defines ‘Farm Operation’ as meaning:
‘...land and on-farm buildings, equipment, manure processing and handling facilities, and
practices which contribute to the production, preparation and marketing of crops, livestock and
livestock products as a commercial enterprise.’”
“Only farm operations are protected by Section 305-a.”
The pamphlet also provides a complete definition of “crops, livestock and livestock products,” as found
in A&M Law:
"Crops, livestock and livestock products" shall include but not be limited to the following:
a. Field crops, including corn, wheat, oats, rye, barley, hay, potatoes and dry beans.
b. Fruits, including apples, peaches, grapes, cherries and berries.
c. Vegetables, including tomatoes, snap beans, cabbage, carrots, beets and onions.
d. Horticultural specialties, including nursery stock, ornamental shrubs, ornamental trees and
e. Livestock and livestock products, including cattle, sheep, hogs, goats, horses, poultry, ratites,
such as ostriches, emus, rheas and kiwis, farmed deer, farmed buffalo, fur bearing animals,
milk, eggs and furs.
f. Maple sap.
g. Christmas trees derived from a managed Christmas tree operation whether dug for
transplanting or cut from the stump.
h. Aquaculture products, including fish, fish products, water plants and shellfish.
i. Woody biomass, which means short rotation woody crops raised for bioenergy, and shall not
include farm woodland.
j. Apiary products, including honey, beeswax, royal jelly, bee pollen propolis, package bees,
nucs and queens. For the purposes of this paragraph, "nucs" shall mean small honey bee
colonies created from larger colonies including the nuc box, which is a smaller version of a
beehive, designed to hold up to five frames from an existing colony.
We think the meaning is clear. Though “not limited” to the listed items, it seems inconceivable that
processed foods, packaged goods, or any non-food items could be recognized as “crops, livestock, &
livestock products.” That means these things are protected only if, & to the extent that, they
“contribute to the production, preparation and marketing of crops, livestock and livestock
Save Main Road brief re: the Glass Greenhouse Farm Market p.9
In a September 2010 letter to the Riverhead town supervisor, the A&M Director of the Division of
Agricultural Protection wrote of the Glass Greenhouse nursery operation, explaining that pots, soil,
fertilizer, birdhouses & “other items commonly found at nurseries” are for sale, because they
complement the sale of plant stock produced & sold by the nursery.” We think these items are
obviously “supporting farm products,” & are confident town officials would agree.
The idea that all (or any) of the long list of manufactured items found recently on Glass Greenhouse
Farm Market shelves—only some of which are listed above—are similarly “supporting farm products”
seems highly dubious. Most appear to have no connection whatsoever to the production, preparation,
or marketing of farm products.
Even if they were, however, this market would have a problem, as the supporting products could in the
aggregate total a maximum of 40% of the merchandising area, & they actually comprise a far higher
percentage today. Based on the design & size of this market, we’ve challenged the idea that it could
ever be sustained if 60% of the merchandising area were truly dedicated to farm products.
Finally, we note that an A&M Director wrote to the Riverhead Town Supervisor on January 23, 2014,
pointing out that the farmer who owns the Glass Greenhouse Farm Market “will have to demonstrate
to the Town of Riverhead & to the Department that he intends to develop the property in such a
way as to meet the [local content] predominance standard.”
We know from review of FOIL production, both by A&M & by the Town, that no such demonstration has
We think processed foods prepared in the market (or elsewhere on the farm) fit the description of
“supporting farm products” well, as they contribute to the marketing of the farm’s crops & livestock
products. Of course, as A&M guidebooks say: “The Department considers these practices as part of
the farm operation as long as the products that are prepared are composed primarily of ingredients
produced on the farm.”
And, A&M staff wrote to the Glass Greenhouse owner in November 2013, highlighting this guidebook
excerpt: “If processed foods are sold at the market, the Department protects the sale of such products
if they are composed primarily of ingredients produced on the farm (i.e., more than 51% of the
ingredients must be produced on the farm).”
We know from the farmer’s statements that he does not grow wheat, oats, sugar beets or cane. We
therefore assume that most or all of the flour & sugar, along with various other ingredients, used in the
Glass Greenhouse Farm Market’s breads, cakes & cookies—which occupy the bulk of their bakery
display cases—are sourced off-farm.
We concur with A&M that the market owner must either demonstrate, for each category of item sold,
that on-farm content is at least 51%, or else not count the shelf space for that category of item toward
the 60% on-farm minimum.
We know from review of A&M FOIL production that no such analysis of processed food content has
been performed…or at least that it hasn’t been shared with the Department.
Save Main Road brief re: the Glass Greenhouse Farm Market p.10
A&M has declared that the Department views this farm market as a “start-up farm operation,” an
assessment with which we concur. They also said: “The Department allows startups additional time,
based on the type of agricultural product to be produced, to meet a predominance standard.” Again,
we take no issue with this policy, which is consistent with all Department writings we’ve seen.
While the letter & spirit of A&M Law grants the farmer time to ramp up production until all of the
products the farm will eventually offer can be supplied in sufficient quantity to populate market shelves,
we insist that two rules must logically hold in every instance:
1. The time allowed to complete start-up operations & attain both production goals & local
content code requirements cannot be infinite.
Even if their judgments are subjective, experienced A&M staff must be able to look at an
operation & project a timeframe within which start-up will conclude & routine operations will be
That hasn’t happened here. We find it both shocking & revealing that the Department, having
reviewed Glass Greenhouse market plans in depth—over an extended period—& having visited
the retail operation since its opening, has never even hinted at a deadline by which the farmer
must be able to meet this objective & rule. Neither has the Department offered any anecdotal
examples or suggestions in this regard.
We further observe that planning for this particular “farm market” commenced 5 years ago,
construction began 2 years ago, & it opened for retail business nearly 1 year ago. In December
2011, the farmer wrote to the Town Attorney pressing for a building permit, saying “we have to
get the farm market up now as we are already planning the spring produce crop. I don’t want to
have to sell them out under a tent.” And, in A&M’s January 2014 letter, the Department told the
Town Supervisor that the farmer’s goal was “to produce 90 percent of the product sold in the
market by the middle of 2014.”
We suggest that, by any reasonable measure, the “start-up” period must be deemed over, or
2. The use of off-farm products to “fill in” niches during start-up must necessarily be
limited to those categories of product which will eventually be produced on-farm.
While “supporting farm products” may fill 40% of the merchandising area both during & after
start-up, they may not—at any time—comprise any portion of the 60% dedicated to “farm
products.” In other words, the rule:
• allows that 40% of the merchandising area may include both farm products & supporting
farm products, sourced on-farm or off-farm, in any combination or ratio.
• requires that 60% of the merchandising area be farm products only, inclusive of products
grown off-farm during start-up, but exclusively on-farm after start-up.
No matter how generous or loose the definition of “supporting farm products” may be, 60% of
the merchandising area—at all times—must consist of farm products. Reliance on other types
of goods would mean the market is not a farm stand.
Save Main Road brief re: the Glass Greenhouse Farm Market p.11
We’ve observed that the Glass Greenhouse Farm Market is not functioning as a farm stand today,
inasmuch as most goods being sold are not agricultural products, regardless of their source. We
respectfully suggest that this retail operation cannot sustainably operate as a farm stand once its start-
up period—however long that may last—is over.
farm market v. farm stand
Last year, Save Main Road set out to ascertain what constitutes a “farm stand;” a universally accepted
definition proved elusive. Defining “farm market” was easy. According to A&M, a farm market in New
York showcases and sells goods from two or more farmers. Such a market is also typically located on
municipal land. When a dozen growers gather in the parking lot along the river in downtown Riverhead
to sell their produce to the public, that’s a “farm market.” The Glass Greenhouse retail store, in our
opinion, was & is not.
About “farm stands,” however, A&M has literally nothing to say. The Department has no policy and no
rules that define or govern retail operations conducted by a single farm on its own land. When I spoke
to an A&M official to confirm this conclusion, she did so, & said A&M defers to town code on this issue.
The A&M requirement that produce from multiple New York farms be presented is absolute. No
customer walking into this retail shop would mistake it for a “farm market” as defined by A&M.
A&M, in its extensive correspondence with the town on this matter, alternates between calling the new
Glass Greenhouse operation a “farm stand” and a “farm market” in ways we think facile and
inappropriate. The Department shouldn’t say it’s a farm market when, by their own definition, it’s not.
direct farm marketing
With regard to direct marketing of farm products, we again find ourselves in agreement with A&M
policy, as promulgated in its “Guidelines for Review of Local Laws Affecting Direct Farm Marketing
Activities” Rev 9/1/2010 [emphasis added]:
“Direct farm marketing should be allowed in all areas within a county-adopted, State certified
agricultural district. The degree of regulation of the various forms of direct farm marketing
that is considered unreasonable, however, depends on the nature of the proposed
activities and the size and complexity of the proposed structure. A requirement to apply
for a permit is generally not unreasonable. Depending upon the size and scope of the retail
facility or activity, greater regulation, such as site plan review, may be reasonable. The
Department urges local governments to take into account the size and nature of the particular
farm market or activity when setting and administering such requirements. For example, to
require a small farm market, which sells only a minimal amount of off-farm product, to
obtain site plan approval may be unreasonably restrictive.”
The Glass Greenhouse Farm Market is at the extreme, opposite end of the scale from the cited “small
farm market…which sells only a minimal amount of off-farm product.” There can be no question that
the former requires the most regulation & scrutiny, including site plan review.
Still, last December, the farmer-owner wrote to A&M: “Being in Agricultural District #7 they are
violating my rights as a farmer under A&M law to direct market.” [emphasis added]
Save Main Road brief re: the Glass Greenhouse Farm Market p.12
A&M Law § 282 says:
"’Direct marketing’ means the sale of farm & food products directly from producers to consumers
and food buyers.”
It goes on to define “farm & food product” as:
"any agricultural, horticultural, forest, or other product of the soil or water that has been grown,
harvested, or produced wholly within the state of New York. Such products shall include but not
be limited to: fruits, vegetables, eggs, dairy products, meat and meat products, poultry and
poultry products, fish and fish products, grain and grain products, honey, nuts, preserves, maple
sap products, apple cider, fruit juice, ornamental or vegetable plants, nursery products, flowers,
firewood, fermented agricultural products, and Christmas trees.”
No one has suggested that the farmer who owns this market should be restrained from marketing
anything & everything that he produces on-farm, including processed foods made from ingredients
The problem is that the farmer has built a facility which cannot be supported solely by his own products,
or even with 40% off-farm products. The objections that have been raised by the town, & by the
community, are based on the preponderance of goods which simply don’t belong, as they originate not
on his farm, nor on a farm anywhere.
Because these goods are not produced by the farmer, his marketing of them is not “direct.” He is,
rather, a simple merchant, buying goods at wholesale & selling at retail.
We contend that nothing in A&M Law entitles or protects the farmer with regard to conventional retail
sale of non-agricultural products.
A&M publishes a guidebook: “Local Laws and Agricultural Districts: How Do They Relate?” In the
edition reprinted May 2013, the Department addresses, via one of the four case studies included, the
question of whether a municipality may regulate farm stand size [underlining added]:
Issue: Whether a proposed ordinance which would limit the size of a roadside stand to 150 square
feet, require that agricultural commodities sold be limited to products raised solely on the premises
and limit the zones in which roadside stands are permitted unreasonably restricts farm buildings.
Facts: The Department of Agriculture and Markets received a request from a farmer to review a
proposed zoning law which impacts on agriculture by restricting roadside stands.
Department of Agriculture and Markets’s Response: The Department did not find the proposed
restrictions to be per se violative of Section 305-a and roadside stands are not exempt from local
regulation. However, 150 square feet for a roadside stand may not be sufficient to meet the needs
of existing and/or future farm operations; the zones in which stands are allowed may not encompass
all of the land within the agricultural district; and some farmers need to import produce from other
farms to sell at their stand to increase diversity of products offered to bridge periods of low supply of
commodities produced on-farm. Application of the ordinance to particular roadside stands is critical
in determining whether or not it is unduly restrictive.
Of particular note is that the example cited is 150 square feet—as in a 10’ x 15’ shack, like most of the
farm stands dotting the roads of rural Long Island.
Save Main Road brief re: the Glass Greenhouse Farm Market p.13
The farm stand in question, however, is not twice as large, or 3 times as large, but 30 times the size of
the example cited by A&M, at 4,500 square feet, with a 2
story & a passenger elevator.
It strikes us as not just wrong, but unseemly, for the Department to advocate for an enterprise of this
size using rules clearly designed for operations that are smaller by an order of magnitude.
A point made repeatedly by the farmer is that the new market & the preexisting retail greenhouse are
“one entity” & must be evaluated as a unit.
Writing to A&M staff on January 2, 2014, the farmer said:
In that same message, the farmer elaborated on his idea of how local content should be measured:
As he indicated previously, the farmer’s percentage calculations are based on sales in dollars, not
merchandising area as dictated by code.
And with just 492 square feet of the greenhouse dedicated to retail sales, it’s silly to think that over
100,000 square feet of growing area could be weighed against the new market to make its 4,000
square feet of merchandising area look small.
We don’t dispute that the land on which this market is built is part of the farm operation, & that the new
market would also be part of the farm operation if 60% or more of its area were given to products grown
on the farm.
However, we reject the notion that anything built by the farmer on this land automatically becomes part
of the “farm operation,” or that it necessarily “supports the farm operation,” except, of course, by
generating revenue for the farmer.
If the farmer were to construct a bowling alley, car wash, or cinema, no reasonable person would
consider that building or its sales part of the farm operation. It follows that if the farmer constructs a
retail store which sells predominantly manufactured goods which did not originate on this—or any
other—farm, that store is not properly subject to §305-a review or protection.
Save Main Road brief re: the Glass Greenhouse Farm Market p.14
We also reject the idea of combining the merchandising areas of the preexisting greenhouse & the new
market before applying the local content standard. We don’t believe it’s the intent of A&M Law to allow
or facilitate the construction of a 2-story, 4,500 square foot elevator-equipped building that sells no
produce, but is classified as a “farm stand.” Yet, if you apply the farmer’s logic & allow local content
rules to be applied to multiple discrete buildings, that’s where you end up.
More importantly, A&M has already rejected that logic & approach. In his Jan 23 2014 letter, the
Director of the Division of Land & Water Resources wrote:
Notably, A&M does not combine the greenhouse & market to calculate local content. The market is
properly categorized as a “start-up” operation, & will clearly be evaluated, on its own.
In September 2013, because it agreed with the State that it’s “a most important policy to conserve &
protect viable farmlands & to encourage the improvement of such lands both for the production of food
& for the preservation of such lands as valued natural & ecological resources,” Suffolk County adopted
Local Law 44-2013, amending its Chapter 8, “Development Rights of Agricultural Lands.”
We think it of paramount importance that this recently-enacted law was drafted with the involvement of,
& with extensive input from, many members of the farming community, including the Farmland
Committee, the Long Island Farm Bureau, & representatives from A&M.
In this code, “farm stand” was defined as follows [underlined phrases in code excerpts denote language
The code section dealing with farm stands is similar to Riverhead code, in that it restricts content based
on display area square footage, limiting off-farm content to 40%
The new county code is more restrictive, however, in describing the off-farm content allowed. Fully
90% of the display area must be “agricultural products or processed agricultural products derived from
locally grown agricultural products.”
Other products may be sold, but they must be “agriculture-related,” defined as clothing or souvenir &
farm promotional items, but these may total a maximum of just 10% of the display area.
Save Main Road brief re: the Glass Greenhouse Farm Market p.15
With regard to the structure itself, the permitted size of a farm stand—inclusive of food processing
facilities—was doubled with the new law, to 1,000 square feet (additional awning & deck areas are
And, structures may be one story only:
The Glass Greenhouse Farm Market, at 4,500 square feet, is 450% of the newly expanded county limit,
and two stories.
With regard to local laws, this section needs no comment:
Save Main Road brief re: the Glass Greenhouse Farm Market p.16
Finally, we note that even the origin of off-farm produce is more stringently controlled in the new county
code, & limited to farm sources within a very small radius:
Produce sold at the Glass Greenhouse Farm Market originates in many states, as distant as California.
We realize that the farm market in question is on private land, & not subject to county regulations. We
nonetheless find it profoundly significant & relevant that the newest, most comprehensive farming code
on Long Island—researched, drafted & enacted with the involvement & support of many in the farming
community, including A&M—would not allow anything approaching a market of this size to be
constructed, or to operate with this merchandise content, on any parcels where the county owns either
the land or the development rights.
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Aquebogue NY 11931
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