The attorney for a developer who installed an extensive lawn irrigation system in a Sagaponack agricultural reserve that runs adjacent to three housing lots he intends to develop now says the land could be left as a fallow farm field, or become an apple orchard—or some combination of the two—if legal hurdles prevent it from being turned into a lush green lawn.
After sprinkler systems were installed on the 10.5-acre agricultural reserve on Parsonage Lane that abuts the housing lots owned by builder Jay Bialsky, sparking protests by real estate agents who think the easement area could be included as part of a sprawling landscape of a private compound, local residents and officials have been debating what the easement actually allows.
Some officials have stated that an expansive lawn does not qualify under the stipulations of the easement placed on the land; the treatment of other similar properties might suggest otherwise.
“It’s a hot-button issue,” Sagaponack Village Attorney Anthony Tohill said last week. “It seems to be evolving. On Monday, it was to be a mowed lawn. By Tuesday, it was a horse paddock. By Wednesday, it was a fallow farm field and by Thursday, it was an apple orchard. Today is Friday.”
The easement itself, issued by Southampton Town in 2002, when the property was subdivided by the family who formerly owned it, states that it must either be left fallow or farmed. The easement acknowledges that “farming” in New York State can mean a variety of things, from the traditional cultivation of produce and horticultural plants, to equestrian uses. State agriculture law does classify “lawn” grass as any variety of non-agricultural grasses.
According to Southampton Town Planning Director Dave Wilcox, agricultural easements in the town have historically not required that active farming, in whatever form, be required on agricultural preserves, only that non-agricultural uses be ruled out.
Some other open spaces that have been set aside from subdivision developments have been allowed to become broad lawns, with some hiding behind hedgerows. Horse farms, polo clubs and uncultivated meadows have also been common applications of those properties that have had their building rights expunged. Others have also remained, as apparently intended though not ordained, as working farmland.
“Our agricultural easements from subdivisions of property have not mandated that the property be farmed, but they have prohibited any use other than agriculture,” Mr. Wilcox said. “We’re starting to look at the code to see where we might make some changes there.”
Over the years the town has tweaked its easement language, adding certain provisions, such as required annual mowing of fallow meadows so they did not evolve into cedar fields. And the discussion of the future crafting of legal easements tied to subdivisions has recently turned to mimicking some steps that the Community Preservation Fund took for the first time earlier this year, requiring that preserved farmland be kept in active cultivation of food crops—meaning no horses, no landscaping materials and that they cannot be left fallow.
Those eventual changes will not apply to Mr. Bialsky, however. The developer’s attorney, Adam Miller, said that Mr. Bialsky will adhere to the requirements of the easement as it is written, though he did not offer a direct interpretation of what he felt the easement allowed his client to do or not do.
“Jay has always intended and fully intends to comply with the terms of the easement,” Mr. Miller said. “There’s no hidden agenda here. Jay is a developer and he is a steward of the land. He is not looking to skirt responsibility.
“It’s open space, that’s what we’re talking about here,” he continued. “Nobody can force him to farm it.”
As for the installation of irrigation, Mr. Miller said he has never been provided any legal evidence that doing so would violate the terms of the agricultural easement. Several of the options available to Mr. Bialsky, he said, could require irrigation.
Mr. Miller said both he and Mr. Bialsky have been working with Sagaponack Village to determine what the potential makeup of the reserve land may be.
There had been some question as to who, exactly, would be responsible for the enforcement of the easement should there be questions about its ultimate disposition. The easement was inked by Southampton Town prior to the incorporation of Sagaponack as a village.
Mr. Tohill said he thinks that despite its history, the easement and the legal authority to enforce its stipulations would now fall to the village.
“Certainly, nobody is going to say you can’t enforce the easement,” Mr. Tohill said. “The village can claim the authority to enforce as a successor to the town. And I’m sure the village would take that initiative.”