Farmland: Our land, your land?
By LOUISE S. GREENFIELD

Prime agricultural land is one of our nation's and our state's most valuable resources, but much of it has been thoughtlessly squandered or rendered unproductive. Only recently has government begun to develop policies and programs to protect farmland

Photos courtesty of the Illinois Farm Bureau

ACROSS the United States and around the world, from Bloomington to Bangla Desh, agricultural acres are succumbing to a variety of non-rural pressures. Much of the world's most fertile and most easily cultivated land is being transformed into sites for housing, transportation, recreation and commercial development.

But after centuries of plunder and thoughtless waste, we are beginning to accept that the earth's bounties are finite and to recognize that we must use them wisely or risk unimaginable calamity. The second half of the 20th century may well come to be recognized as the era in which we regained respect for our natural resources.

Ironically, recognition of the earth itself as a resource to be protected has come later than concern for the animals, vegetables and minerals that are found on and in the land. But the need to preserve our land resources — agricultural land in particular — will certainly prove to have the broadest social, political and economic implications.

The National Agricultural Lands Study (NALS) estimates that in the past decade the U.S. has annually lost three million acres of farmland — including one million acres of prime farmland. Ranked third nationally in prime acres, Illinois is estimated to be losing farmland to nonfarm uses at the rate of 100,000 acres per year. The U.S. has 2.3 billion acres of land, of which 363 million are now used for crops and an additional 24 million could immediately be used for tillage; at the present rate of conversion, all of that will be in production by the end of the decade in order to make up for the loss of farmland to development.

These figures tell only part of the story. The NALS suggests that an additional three million acres per year are isolated and made nonproductive by scattered "leapfrog" development, and still another three million acres are lost annually to erosion. Both phenomena are caused in part by the development of farmland.

The energy crunch is also having an effect on farmland. One report claims that strip mining of coal could cost Illinois 2.5 million acres of farmland. Some other energy sources would

18/November 1980/Illinois Issues

require a great amount of acreage for generating plants.

Some implications go beyond actual land loss. All too often, new development represents lost opportunities to rehabilitate areas already developed or to fill in the vacant and underused areas within older developments. And, as agriculture retreats further from major urban areas, transportation costs go up to transport food, and cities become more vulnerable to far-away decisions and conditions.

Away from the cities, tenant farmers and agricultural support services can be detrimentally affected by farmland conversion. Tenant farmers have been forced to leave their farms to make way for development, and ag-related businesses go under when farmers leave the area.

Pressures on farmland come from many directions. Farmland is usually less expensive to acquire than urban land, and some of the factors that make prime farmland the easiest to cultivate — good drainage and level terrain — also make it the most desirable for construction. Many farmers are leaving farming for personal, social and financial reasons, and developers will often pay more for their land than other farmers; to a developer, land in a "fringe area" between open and developed land may be worth five times its value as farmland. Much land has thoughtlessly been converted by government projects such as roads and airports and by governmentally approved private projects.

Some commentators, acknowleging all of these trends, observe that new land can still be brought into production and that agricultural technology has improved yields. But when less-than-prime land is used, more resources are needed, yields are smaller, and the land is more vulnerable to damage from erosion and overuse. Major new technological advances are not expected, and the impact of past advances may be waning; there is growing public resistance to pesticides and other chemicals, and exponential production increases brought by fertilizers cannot continue indefinitely.

Whether or not a crisis is imminent, it seems foolish to risk America's agricultural greatness when food

November 1980/Illinois Issues/19

A creative state initiative Our future needs include small cars and big fields. The Illinois Department of Transportation has shown initiative in making new policies — and new roads — aimed at farmland preservation ROAD construction is widely acknowledged as a major cause of farmland loss: there is a direct loss of acres covered by the rights-of-way and, often, additional loss to new development along new roadways, especially at interstate access points. In the past decade, the Illinois Department of Transportation (IDOT) has become increasingly aware of its responsibility to curtail unnecessary farmland loss and has lately shown initiative lacking in most other Illinois agencies and in other states' transportation authorities. IDOT has learned its lesson the hard way. The best example is its experience in the planning of a new 4-lane highway (Supplemental Freeway 406) between Lincoln and Peoria, parallel to the existing 2-lane blacktop (Route 121). First announced over a decade ago, the project was challenged in federal court by a nearby landowner, who claimed it would take more than 700 acres of farmland out of production. The appellate court halted the project, pending a full study of its environmental impact. The study was completed in late 1979, but additional evaluation of a variety of alternatives is now proceeding, and the upgrading of 121 — at least along a good part of the stretch — is a strong alternative to the construction of 406. The challenge is to identify the best location for a 4-lane road; a completely new road would consume more farmland and sever more existing farms, while upgrading the old road would disrupt existing residences and businesses. The 121-406 experience is resulting in more than just saving land between Lincoln and Peoria. IDOT has lately reworked some of its basic road design components: 88-feet medians are being cut to 54 feet (so a 4-lane highway will need about 200 feet of right-of-way), and interchanges have been redesigned to reduce the land required from 50 to 25 acres. Also, road improvement projects will be designed to serve Toyotas going 55 mph instead of Cadillacs going 70 mph, with greater tolerance for curves and hills resulting in lesser demands on surrounding land. To its credit, the department has become — at least in its official policies — both energetic and responsible in its attention to farmland loss. It has assessed potential loss in its environmental impact process since 1975, predating similar efforts by the feds. The assessment is done early in the planning process and considers both actual land loss and estimated productivity loss. In addition, in April the department revised its procedure to include assessment of indirect effects on farmland, including any likely development within a one-half mile radius around interchanges. The fact is that the highway boom days of the 1960's are past and that land already lost to road projects cannot be retrieved. In the 1980's, the only major projects are the north-south freeway between Rockford and Decatur (only 2-lane Route 51 now connects them) and the Illinois segment of the Chicago-Kansas City Interstate (including one of Gov. Thompson's priorities, the Peoria-Quincy stretch). Both projects will inevitably affect valuable farmland, but if IDOT enforces its present policies, these roads will be built so that no such land will be unnecessarily lost to roads and the development which new roads encourage.

exports comprise a large portion of our balance of payments (1980 exports are expected to exceed $38 billion), and when 15,000 human beings starve to death daily. In addition, agricultural land holds promise in answering domestic energy needs by such alternative sources as gasohol, wood and other plant products.

Recent years have marked a growing awareness of the problem of farmland lost to development, but only now are widespread and intensive efforts being made to identify workable solutions. On the federal level, bills that failed to pass for years have gradually become less ambitious; most calls for a comprehensive national land use policy have given way to proposals for federal assistance to state and local efforts. Most recently, H.R. 2551, which would require a study of the problem by the U.S. Department of Agriculture and provide funds for state and local demonstration programs, was recommended for passage by the House Agriculture Committee. It was debated by the House; the demonstration programs were deleted, and the bill was finally defeated on the House floor.

Federal action

The executive branch has been more progressive. In 1976, the Council on Environmental Quality in the Executive Office of the President issued a memorandum to heads of federal agencies interpreting the National Environmental Policy Act to include preservation and maintenance of "highly productive farmland." The memo mandated efforts "to assure that such farmlands are not irreversibly converted by federal authorities to other uses unless other national interests override the importance of preservation or otherwise outweigh the environmental benefits to be derived from their protection." Both the Department of Agriculture and the Environmental Protection Agency have formally complied in their internal policies (see FmHA p. 19).

Another area of federal activity is the National Agricultural Lands Study, in which 12 federal agencies are cooperating to examine both the nature of the problem and the feasibility of

20/November 1980/Illinois Issues

various solutions. The study's scheduled 1981 report is expected to analyze programs now operating on the state and local levels.

The greatest source of opposition to federal involvement in the preservation of farmland is the widespread belief that the federal government has no business interfering with private ownership of land and that land policy is best determined by powers that are closer to the affected land. Whether state and local governments are willing and able to assess their alternatives in a regional, national or global context remains to be seen.

State policies can also influence private decisions to develop farmland. The most common mechanism for accomplishing this is the granting of tax advantages to farmers

In Illinois, an increasing number of state and local authorities are beginning to act. Perhaps influenced by the number of task forces and study commissions which have recognized the farmland conversion problem, the state legislative response lately has been more encouraging than that in Washington. Overriding fierce resistance to state-level planning, the General Assembly passed the Agricultural Areas Conservation and Protection Act in 1979, which authorizes farmers to voluntarily create — with county authorization — "agricultural areas" of 500 or more acres for 10-year initial and 8-year subsequent periods. Under the act, local governments cannot unreasonably restrict or regulate farming practices or impose special assessments on agricultural areas, and state agency regulations and procedures are supposed to encourage farming in these designated areas. But there are no incentives for creating an area and no penalties for leaving one. And Gov. James R. Thompson, by amendatory veto, eliminated language in the bill which would have flatly prohibited use of such designated land for any purpose other than agricultural production. Thus, the act is weaker in guaranteeing protection of such agricultural areas.

The General Assembly also established in 1979 the Land Resources Management Study Commission, which will seek rational methods for making decisions about land use. But work by the commission was stalled when Thompson vetoed its first year of funding. Commission chairman, Rep. Richard A. Mugalian, however, has determined that farmland preservation will be among the commission's priorities. Most recently, the General Assembly created a Joint House-Senate Committee to study all aspects of the property tax on farmland.

This year, there has been increased gubernatorial sensitivity towards the issue. Thompson's Executive Order No. 4, announced in July at his Conference on the Preservation of Agricultural Lands, recognizes the effect which state agency decisions can have on the conversion process and it requires that the nine agencies most directly involved establish internal policies to mitigate agency influence on farmland loss. The order is expected to add impetus to the efforts already initiated by some agencies, including the Departments of Agriculture and Transportation (see IDOT p. 20).

State policies can also influence private decisions to develop farmland. The most common mechanism for such influence is tax law; like 47 other states, Illinois has provisions granting tax advantages to farmers. The underlying theory is that tax advantages help to relieve the financial pressure to sell to developers.

State legislation

Among these 48 states, tax advantages come in three varieties: preferential assessment, deferred taxation and restrictive agreements. In the first, agricultural land is assessed at its current use value (its value as farmland) rather than its market value (the price at which it could be sold to developers and others on the open market). Use value assessment is also an element of the other two methods. In deferred taxation, back taxes must be paid if the land is later converted, and in restrictive agreements, the tax benefit is granted in exchange for an agreement not to develop for a particular number of years.

Illinois now assesses farmland for taxes on the basis of productivity and since 1970 has offered a voluntary deferred taxation program open to owners of 10 or more acres. Under this program the owner is liable for three years of back taxes, plus interest, if farmland owned by a participant is converted to some other use.

November 1980/Illinois Issues/21

Preferential taxation has some problems which inherently limit its effectiveness. The most obvious question is whether the tax savings realized through participation in a program will offset the potential profits from selling. And there may be financial pressures which are simply not offset by tax benefits; equipment and energy costs and unstable farm prices have driven many farmers to give up farming and sell to the highest bidder. Yet many factors affecting a farmer's decision to sell have nothing to do with financial considerations; roughly half of all farm sales occur in connection with estate settlements. A retiring farmer who has no children interested in farming may have to sell. Or conflicts between exurbanites and fringe area farmers over traffic, smells and noise may drive farming away from a developing area.

Evaluations of present programs suggest that preferrential assessment by itself is not an effective control to protect farmland, especially in fringe areas where pressures to sell to developers may prove irresistable to the farmer. Ironically, many of these laws benefit developers who already own farmland and are leasing it to tenant farmers while preliminary development plans are pending.

If there is to be direct government control over land use decisions, most prefer that the power be given to local government. The most common and the most direct method for controlling development of farmland is zoning. Through zoning, development can be prohibited in particular areas and permitted or even encouraged in others. Many commentators believe that zoning is the only effective control in the fringe areas near cities and suburbs.

Unfortunately, zoning is inherently suspect constitutionally, and it is often politically unpopular. The Constitutions of the United States and Illinois prohibit the taking of private property without due process and just compensation. Almost inevitably, when any parcel of land is at issue, one side argues that zoning constitutes an unconstitutional "taking" and the other argues that the taking is for the public good. An even more basic problem is that Americans, and the increasingly militant farm community in particular, hate to be told what they can and cannot do, especially with respect to their private property.

Some ag-land zoning schemes include escape valves to make zoning more palatable to the zoned or to fine-tune the zoning plan to allow for variations in circumstances. Sometimes there is authorization for housing for farm families; sometimes the owner is allowed to use a certain proportion of the land for any purpose at all.

Most analysts agree that the popular acceptance of a zoning plan is best assured by maximizing public input at all stages. But the impact of any zoning plan is dependent upon how diligently it is administered and enforced; a plan has little effect if it is not adhered to (see DeKalb County p. 23).

The newest — and least tested — methods of stemming farmland conversion are based on the concept of development rights, which separates the right to develop from all other features of the land. In this sense, development rights are parallel to mineral rights, which is a concept already well-established in property law. Thus, the owner of land may sell the development rights for the land but may retain title to the land itself as well as the right to use the land for any purpose except development. Farmers end up with new capital to invest in the agricultural use of their land.

The newest — and least tested — methods of stemming farmland conversion are based on the concept of developmental rights

The purest use of this concept separates the right to develop from any particular parcel of land. For example, a person who owns 80 acres of land could be denied the right to develop his or her land, but would be assigned 80 units of development rights, to be applied to other land on which development is authorized. These rights could be sold on an open market. Under this concept, each original land owner would be guaranteed the ability to profit from development, and the zoning dilemma which creates windfalls for some owners and wipeouts for others would be eliminated.

A number of local governments on the east coast have experimented with direct purchase of development rights; the best known system is in Suffolk County on New York's Long Island. The county, seeking to preserve its agricultural base in the face of rampant development of much of the Island in the last 25 years, sold bonds to fund

22/November 1980/Illinois Issues

An energetic local response DeKalb County's comprehensive land use plan provides that residential development can take place only within designated growth zones DESPITE a consensus that the basic responsibility for land use decisions should be left to the counties, only about one-fourth of Illinois' 102 counties have directly confronted the farmland conversion problem with official action. Among these counties, the DeKalb County experience is one of the best documented, providing a good illustration of the dynamics and limitations of zoning as a farmland preservation device. DeKalb County adopted a comprehensive land use plan in 1972. A key feature provides that residential development can take place only within designated growth areas; these areas comprise about 15 percent of the county's 400,000 acres, and include all 12 of the county's municipalities plus generous buffer zones which in some instances connect otherwise distinct municipal areas. An additional 2 percent of the county's area is zoned for commercial and industrial development. To develop land outside of these zones, rezoning petitions must be approved by the county board. Professor J. Dixon Esseks of Northern Illinois University's Center for Governmental Studies has scrutinized all 56 of the requests for residential rezoning processed in the county between March 1972 and December 1978. He reports that 24 of 25 rezonings within the development areas were approved, and that while 9 of 31 within protected areas were rejected, 22 were approved. Esseks reports that the county board considered the suitability of the soil in each case; unsuitability was the reason for the one denial of a rezoning within a development area. Overall suitability of the land for farming — shape, size and drainage as well as soil quality — was found lacking in 19 of the successful petitions for development outside the development areas. Other justifications for approval of development in protected areas were the existence of substantial development or a trend towards development, and location of the land on the border of a growth zone. In the 10 cases where rezoning was denied, Esseks considers the board's findings on conformity to the comprehensive plan and soil suitability to be well-based, but he identifies a level of vagueness or subjectivity in determining farmability, development trends and remoteness from services and roads. If denials are to withstand appeal, precision and documentation of the reasons for denial are crucial, he notes. Although the plan has not worked as an absolute bar to development outside of the designated growth zones, it has succeeded in preventing a number of farmland conversions and it has set a precedent for future board decisions. Esseks credits this success to "an energetic and politically adroit planning department" and to a relatively high level of support from the farming community, including the county's farm bureau. Much of this support is due to the county's willingness to rezone poor farmland which lies in the preservation zone, according to Esseks. This signifies a common sense approach rather than any inherent weakness in the plan or its enforcement. But Esseks describes the plan's effectiveness in curbing sprawl as "a double-edged sword. While it helped to block development outside the growth zone, it legitimized sprawl within the 10 percent of the county designated for development." He theorizes that overgenerous estimates of population increases led to overly large growth zones. Recent actions of the planning commission back up Esseks' assessment of the plan. The plan is being revised this year to cut the residential growth zones by about 56 percent, and a new enforcement guideline encourages development adjacent to existing municipalities with established community facilities. While zoning efforts in one modest-growth county like DeKalb may only protect a few hundred acres per year, Esseks notes that simultaneous efforts in many of these counties would have a significant nationwide effect to preserve prime farmland.

the purchase of development rights from farmers who voluntarily submitted bids. Rights are valued at the difference between the land's value for development purposes and its value for farming. After the first few years of the program, the high cost of acquiring rights has forced the county to cut back some of the funding and examine alternative means of protecting farmland.

Wisconsin's plan

The most common application of the development rights concept has been in programs wherein landowners forfeit their development rights for a predetermined period in exchange for tax benefits. The state of Wisconsin has taken this idea a step further, basing the exact level of the tax benefits available in any particular county on the county's progress in formulating a state-approved zoning ordinance or comprehensive plan. After the first five years, tax benefits will be available only in those counties which actually adopt a plan or ordinance; theoretically, this will encourage counties to address the issue of farmland preservation. Often described as the most innovative program now in operation, the Wisconsin law has yet to definitively prove itself. Participation has been encouraging, but few authorities expect the program to completely solve the farmland conversion problem.

The 1970's marked the first widespread recognition of the need to preserve our agricultural resources, and saw experimentation with a wide variety of methods for doing so. Illinois has not been at the forefront of experimentation, but it has been highly perceptive in recognizing the problem. The rest of the century must see more action at the state and local levels if Illinois is to maintain its position in American and world agriculture. If Illinois and other states fail to develop effective means to control the problem, the federal government will inevitably get involved with basic issues affecting individual ownership rights.

Louise S. Greenfield is an attorney on the Illinois House of Representatives' Democratic staff and helps farm .0011 acres in Skokie, Illinois.

November 1980/Illinois Issues/23