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Volume 7 - Opinions of Counsel SBEA No. 11

Opinions of Counsel index

Farm structures and buildings exemption (agricultural use) (Christmas tree plantation); Agricultural exemption (agricultural production requirement) (Christmas tree plantation) - Agriculture and Markets Law, § 301; Real Property Tax Law, § 483:

A building constructed in connection with a Christmas tree plantation is not eligible for the partial exemption authorized by Real Property Tax Law, section 483.

A Christmas tree plantation as a sole operation is not entitled to the exemption provided by Article 25AA of the Agriculture and Markets Law. However, where land used for Christmas tree production is part of and contiguous with land otherwise used in agricultural production, it may qualify for an agricultural value assessment us woodland.

We have been asked (1) whether a building constructed in connection with a Christmas tree plantation may qualify for the partial exemption authorized under Real Property Tax Law, section 483 and (2) whether a Christmas tree plantation, as a sole enterprise, is eligible for an agricultural value assessment under Article 25AA of the Agriculture and Markets Law.

The land in question contains mature trees which may be either in natural stands or planted and which are marketed by being removed from the stump as a cut product. The land is not used to produce nursery stock, ornamental shrubs or ornamental trees such as in a nursery where the stock is immature and marketed as a dug product, with the intent of replanting either as ornamental or forest growing stock.

It is our opinion that the subject properties would not be eligible for exemption under either statute.

Real Property Tax Law, § 483

Section 483 provides for a ten year exemption to the extent of any increase in assessed value for newly constructed or reconstructed buildings or structures essential to the operation of agricultural and horticultural lands. Webster’s New International Dictionary of the English Language, Second Edition, Unabridged (1958), defines “agriculture” as:

The art or science of cultivating the ground, and raising and harvesting crops, often including also the feeding, breeding and management of livestock; tillage; husbandry; farming; in a broader sense, the science and art of the production of plants and animals useful to man, including to a variable extent the preparation of these products for man’s use and their disposal by marketing or otherwise. In this broad use it includes farming, horticulture, forestry, dairying, sugar making, etc.

The same source defines “horticulture” as “The cultivation of a garden or orchard; the science and art of growing fruits, vegetable and flowers or ornamental plants.”

The type of operation in question, however, appears to fall within a third category, namely that of “Silviculture”, which has been defined as “the art of producing and caring for a forest”. In other words, silviculture is the art of producing and caring for mature trees on a somewhat substantial scale.

Section 483 specifies the terms “agricultural” and “horticultural”. Since the law uses both terms, it is our opinion that the term “agricultural” should not be construed in its broadest sense, that is, as including “horticulture, forestry,” etc.

Shortly after the statute’s enactment, we stated that a “stallion breeding barn” was not entitled to the exemption provided by this law (1 Op.Counsel SBEA No. 17) on the ground that exemption statutes must be strictly and narrowly construed. In 1977, however, the statute was amended to expressly provide that the term “agricultural and horticultural” includes the activity of raising and breeding horses (L.1977, c.267, §20). In our opinion, if section 483 is to be extended to structures used in conjunction with a Christmas tree plantation, further amendatory language would be required either by general reference to a silvicultural operation or by expressly naming the activity.

Article 25AA

Article 25AA of the Agriculture and Markets Law authorizes a partial exemption from taxation for eligible agricultural land used to produce agricultural products for sale. Section 301 of this Article provides that “Crops, livestock and livestock products” include “Horticultural specialities, including nursery stock, ornamental shrubs, ornamental trees and flowers” (emphasis added).

There are unreported cases construing the language of this statute. For example, in Briggs v. Jahrling, index no. 4298/78, Sullivan, J. (S.Ct., Orange Co., 3/5/80), the court concluded that the raising of game birds and the maintenance of a shooting preserve did not constitute an “agricultural use”, citing 3 Op.Counsel SBEA No. 116. In Fraad v. Assessors, Town of Rochester, Williams, J. (S.Ct., Ulster Co., 10/3/79), the court held that production of beef cattle for research purposes was not an “agricultural use” because section 301(3) requires the agricultural production to be for commercial purposes, which the court found not to be consistent with the basic research purpose.

While the language of Article 25AA would appear somewhat broader than that contained in the Real Property Tax Law, section 483, a 1978 amendment to section 301 of the Agriculture and Markets Law explicitly provides that the exemption available to property qualified for agricultural value assessments may be extended in a limited sense to land used for the production of mature trees. Chapter 241 of the Laws of 1978 added a new paragraph “f” to subdivision 4 of section 301, to include “woodland products” within the term “crops, livestock and livestock products” as follows:

Woodland products, including logs, lumber, posts, firewood, and maple syrup, if such products are produced on property otherwise used for agricultural production. For purposes of computing total agricultural production under sections three hundred five and three hundred six of this article, the sale of woodland products may be included up to a maximum annual amount of two thousand dollars (emphasis added).

The State Board’s administrative rules incorporate the provisions of this 1978 amendment. Subdivision (h) of section 194.1 of Part 194 of 9 NYCRR defines “farm woodland” to mean:

. . .land used primarily for the production for sale of woodland products, where such land is part of and contiguous with land used in agricultural production, exclusive of the production of woodland products. Lands divided by State, county or town roads, energy transmission corridors and similar facilities will be considered contiguous. Farm woodland which may be eligible for an agricultural value assessment may not exceed the total acreage of land used in agricultural production exclusive of the production of woodland products.

Accordingly, it is our opinion that under Article 25AA of the Agriculture and Markets Law, a Christmas tree plantation, by itself, does not represent land used in “agricultural production”. However, it may qualify as land used for the production of woodland products if it is part of and contiguous with land otherwise used in agricultural production.

October 8, 1980

NOTE: Revised to incorporate amendment to rule definition of “woodland”.

Updated: