NON-DISCLOSURE AGREEMENT?
Who are they really helping?
While New York State only discloses that living in an Agricultural District may expose residents to “activities that cause noise, dust and odors,” the United States Court of Appeals for the Second Circuit has expressed the opinion that laws in an Agricultural District “may be inadequate for ensuring the safety of our environment and for protecting citizens from serious injury.”
The current New York Agricultural District Disclosure Form and Notice helps the rural real estate market and preserves higher assessments for taxing authorities, but it also encourages prospective buyers to assume a risk of “serious injury” for themselves and their families without being made aware that this risk even exists.
New York State needs to take reasonable steps to ensure that prospective buyers understand the financial and health risks of living in an Agricultural District so that they are in a position to make an informed decision.
Updating New York’s Agricultural District Disclosure Form and Notice is an important first step.
The following is text from the cover letter FedExed to the NYS Attorney General, the NYS Dept. of Health, a NYS Senator, a NYS Assemblywoman, and the County Health Dept.:
“I am writing you to request that you update the New York State Agricultural District Disclosure Form and Notice to ensure that prospective buyers understand the financial and health risks of living in an Agricultural District so that they are in a position to make an informed decision.
From the NYS Agricultural District Disclosure Form and Notice:
‘This disclosure notice is to inform prospective residents that the property they are about to acquire lies partially or wholly within an agricultural district and that farming activities occur within the district. Such farming activities may include, but not limited to, activities that cause noise, dust and odors.’
The United States Court of Appeals for the Second Circuit [Mather v. Willet Dairy] in finding against plaintiffs suffering from the effects of manure off-gassing that included brain damage in one child and the surgical removal of eyelids in an adult commented:
‘We recognize that limiting citizen suits in this respect can cause serious injury to persons living near environmental dangers if the DEC and other environmental regulatory agencies are unable to monitor and sanction polluters effectively before compliance deadlines. Given that Willet Dairy had more than seven years before it was required to comply fully with its permit, that means no citizen could have brought a suit over that entire time for CWA violations. Such regulatory agencies may be unable to ensure that polluters are acting in accordance with their compliance schedules, given the numerous violations likely to occur. Consequently, limiting the ability of ‘private attorneys general’ to bring suit until after compliance deadlines may be inadequate for ensuring the safety of our environment and for protecting citizens from serious injury. But that is the remedy that Congress has provided and to which we are bound.’
Manure lagoons have been shown to harbor and emit over 400 VOCs and toxic gases [including Hydrogen Sulfide and Methane], more than 150 dangerous pathogens [including E. coli, Cryptosporidium and Anthrax], growth hormones, heavy metals, antimicrobials and antibiotics.
Particulate matter from agricultural sources contains up to 100 times the amount of bacteria and fungi as normal air.
CDC Centers for Disease Control and Prevention cites the threat of antibiotic resistance:
‘When animals are given antibiotics for growth promotion or increased feed efficiency, bacteria are exposed to low doses of these drugs over a long period of time. This is inappropriate antibiotic use and can lead to the development of resistant bacteria.’
‘Resistant germs from the animal gut can also get into the environment, like water and soil, from animal manure.’
Although decades of scientific reports have expressed concern for the health of neighbors impacted by agricultural activities and cited the need for further investigation, no comprehensive or long-term studies have ever been made.
Many Agricultural District wells have been polluted through manure spills and other agricultural activities. Buyers need to be informed that well owners are solely responsible for the safety and quality of their well water [and that remedies, such as reverse osmosis and drinking bottled water are very expensive.]
Prospective buyers need also to be made aware that ‘satellite’ lagoons containing millions of gallons of liquid manure may be constructed next to rural residences on any land owned or bought by a farm and at the sole discretion of the farmer.
And that in an Agricultural District the ‘right of use and enjoyment’ of the buyer’s property will be effectively subordinated to any agricultural activity designated as a ‘sound agricultural practice’ by the New York Commissioner of Agriculture and Markets.
From the NYS Agricultural District Disclosure Form and Notice:
‘Prospective purchasers are urged to contact the New York State Department of Agriculture and Markets to obtain additional information or clarification regarding their rights and obligations under Article 25-AA of the Agricultural and Markets Law.’
Looking for clarification of risks associated with living in an Agricultural District, I called the number listed on the Ag and Markets webpage. I was answered by an operator at the NYS Dept. of Ag and Markets Call Center. The operator was surprised and said she didn’t get calls about this. After a couple of minutes of research, she forwarded me to Land and Water Resources where someone there put me through to another party to answer my questions. He stated it was a ‘complicated law’ and spoke of ‘farmers seeking protection’ from towns and neighbors and restrictive laws.
When I pressed him about the health risks, he stated everything was on a ‘case by case’ basis, and if I identified the parcel there might be some hazardous material sheets, but I should really get in touch with the Agricultural District Coordinator from Cornell Cooperative Extension. Recognizing the name of the Coordinator, and having had issues with that person’s assertion that nobody but farmers deserved to live in North Lansing, I stopped the bureaucratic handoff at this point.
According to real estate professionals; this disclosure notice is not presented to a prospective buyer until the time the contract for the offer is being drawn up.
Given the late timing of its presentation, the lack of meaningful disclosure within the Notice itself, and my inability to ‘obtain additional information or clarification regarding their rights and obligations’ — the NYS Agricultural District Disclosure Form and Notice is a document whose purpose is to limit the warranty of prospective buyers without their knowledge.
If this is an oversight, it can be fixed. If it’s deliberate, it’s an unconscionable contract.
Please let me know what steps you plan to take to correct this.”
The County and State Health Departments refused involvement. None of the others even acknowledged the receipt of the letter.
Non-disclosure Agreement? – Part 2
Three months later on August 25, 2019, I emailed the text of the same letter [with copies of that letter and the Agricultural Disclosure form attached] to the members of the County Legislature.
After an initial positive response and an indication of willingness to at least add a supplemental County disclosure statement, everything went silent.
On November 19, 2019, I received an email stating that the matter had been handed over to the local Board of Realtors and the county’s Ag and Farm Protection Committee, and that they had “passed on” my “concerns and suggestions.” It referred to those parties as the “stakeholders.”
Just as in the Deadly Drift herbicide complaint, the decision to take any action was left to the same people who were accused of the misconduct; and had the most to lose if any action on the complaint was taken. No “conflict of interest” concerns were ever expressed by any County Legislator.
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By this second letter, I’m a known “troublemaker.” Faced with documented health issues from agricultural activities; authorities stonewalled with silence.
The injuries to neighbors cited included brain damage in one child and the surgical removal of eyelids in an adult.
The farm was protected from this “nuisance suit” by a NYSDEC “shield” and Agricultural Law.
When I put the issue up to the County Legislators; they handed it over to the local Board of Realtors and the county’s Ag and Farm Protection Committee: and referred to those parties as the “stakeholders.”
Once again the decision to take any action was left to the same people who were accused of the misconduct; and had the most to lose if any action on the complaint was taken. No “conflict of interest” concerns were ever expressed by any County Legislator.
The health and well-being of rural families was never mentioned: We don’t matter.
