Public Land for Farming

First Roots FarmAccess to land is a top challenge for both new and established farmers. Government can play several important roles to address this challenge. One of these roles is as landlord: making public land available for farming.

Farmland is often expensive, tied up by established farms, marginal, or located in more remote areas with less access to markets and farm support services. More and more good land is being converted to non-farming uses. At the same time, more people want to start farming or scale up their operations. Citizens and public officials are engaged in “food systems” as never before. Towns seek to be “farm friendly.” Increasingly, governments recognize the multiple values of farming, including economic development, ecosystem management, community quality of life, and food security.

Why public land for farming?

Southbury Training School landGreater food self-reliance is a topic of discussion at all levels of government and society. Food Solutions New England, a regional multi-sector food systems network, produced a vision for the future in which 50% of the region’s food would be produced and consumed within the six New England states. In order for our region to achieve this vision—or any that aspires to greater regional food self-reliance—more land must be brought into production.

Who holds the land? Most farmland is in private ownership. This includes individuals, organizations, corporations and institutions. The majority of our farmers are owner-operators, meaning they own the land they farm. But nearly half rent some or all their land from other farmers or from non-farmers. In fact nearly 90% of farm landlords are not farmers. Tenancy is—and has always been—an important tenure option. Nowadays, renting land is often the best or only way for a farmer to start or grow an operation.

What about renting public land? It’s possible! Public land can be federal, state, county or municipal. In this article, the focus is mainly on state and mu-nicipal land for farming. But first a word about federal land. Out west, thousands of acres of federal land are leased, mostly for grazing. One of the most creative partnerships between the feds and farmers is at Cuyahoga National Park in Ohio. The Countryside Conservancy manages a farm leasing program by which several farmsteads on parkland are leased long-term. In our region, the federal government is not a big landholder. Closer to home, Minuteman National Historic Park in Concord, MA rents 4 acres of national parkland to First Roots Farm, a CSA.

State land

urban edge from KathyA study from 1988 showed that at least half of U.S. states make some state-owned land available for agriculture, ranging from a few hundred to many thousands of acres. But not all of this is available to private farmers; some goes to educational and research institutions. Recent research (2015) looked more closely at programs for renting state land in New England. There’s no standard approach. A few states have legislated authority to rent land for agriculture. A few have mandated an inventory of state-owned property, and several have policies and procedures for posting available land, soliciting bids, and selecting farmers; these programs tend to have application forms and lease agreement templates.

For example, Massachusetts has an Executive Order mandating identification of land suitable for farming, mandating inter-agency coordination, and en-couraging multi-year uses for agricultural production. The Massachusetts Department of Agricultural Resources manages over 1,500 acres under its state owned farmland licensing program.

New Hampshire commissioned a study to promote leasing state-owned land to beginning farmers. In Connecticut the Agriculture Commissioner is author-ized to develop a program to encourage the use of vacant [state-owned] land for agricultural purposes. To that end, s/he is mandated to “compile a list” of all vacant state land and to establish a permitting procedure.

Recently, Connecticut’s state legislature conveyed approximately 800 acres of farmland at the Southbury Training School to the Department of Agricul-ture. The bill protects the land for agricultural use and gives the Commissioner of Agriculture authority to lease parcels ranging between 3 and 70 acres for long-term farming.

In addition to leasing about 500 acres to three farmers, Rhode Island’s Department of Environmental Management (RIDEM, which houses the Division of Agriculture) has long-term leases with two nonprofit organization—one on state parkland—that in turn divide their leased parcel and sub-lease to start-up and other farmers. Several farmers rent land from Southside Community Land Trust which has a master long-term lease from RIDEM for the 50-acre Urban Edge Farm.

State land-renting programs are not without their challenges. Multiple agencies have control over parcels, with different missions and priorities. Coordi-nation among them is difficult. Inventories and assessments are resource-intensive and hard to update. Policy issues abound. Who should manage a land leasing program? What farmers are eligible? What is the application and bid procedure? How are parcels monitored?

Municipal land
Wentworth parcel in Amherst, MAAt the municipal level, towns have a lot of discretion about making town-owned land available for farming. Cities and towns own all kinds of open parcels, from abandoned lots to forests, and there’s often energetic debate over uses—recreation? Water supply? Conservation? Agriculture?

Most often, the agreements are relatively short-term—1-5 years—via a lease or license (see below). Farmland rental programs may be administered by various town boards (e.g., conservation commission, parks and recreation, agriculture commission, planning department, select board) with varying de-grees of formality.

While there’s no formal database of municipal land for farming, there are a lot of examples. Amherst, MA has been renting land to farmers for over 30 years, and recently created a formal licensing process. Agreements are from 3-10 years on about 60 acres. The conservation commission maintains a web-site to inform the public on the farmland licensing process. Concord, MA rents 16 properties for farming, mostly under three-year low-fee licenses. Lin-coln, MA has a nine-page farm policy for land renting that mandates a farm plan, and conducts a formal RFP process for licensee selection.

In 2009, Norwell, MA Town Meeting voted to fund the startup of a Community Supported Agriculture program (CSA) on town land. The town selected about 7 acres of a town-owned historic farmstead for the CSA farm under a 3-year renewable license.
In 2004 Deerfield Farm began renting 60 acres of land and a dairy barn owned by the town of Durham, CT. According to Deerfield Farm, which processes its milk onsite, “without the ability to lease the land from Durham, we would not have been able to buy land and grow this farm business; the land is cru-cial to our farm’s viability.”

Wallingford, CT leases a total of 385 acres on 35 fields through a Farmland Lease Program Committee, a subcommittee of the Conservation Commission, whose duties include recommendations on land use and evaluation of bids for leasing. Certain farming practices are required. Glastonbury’s Office of Parks and Recreation leases 180 acres on six fields. The town posts an RFP to lease farmland, and a site visit is scheduled for interested parties to inspect the premises prior to submitting a proposal.

The City of Providence, RI merits special recognition for its Lots of Hope urban agriculture initiative which “transforms unused city property into pro-ductive urban farms for use by limited resource and socially disadvantaged urban farmers. Lots of Hope seeks to improve access to locally grown produce in Providence markets, expand the City’s portfolio of green space, and contribute to improvements in air quality, public health, and local property val-ues.”

Providence undertook a comprehensive inventory and assessment of vacant city-owned property that might be used for agriculture. City staff and partners developed criteria to identify and evaluate properties, and a process to promote agriculture on suitable parcels. A detailed report shows the results, broken out by neighborhoods. To date, the City has 5-year leases with nonprofits that are required to sublease to urban farmers at a low cost.

Practicalities of farming on public land
Farming on public land is not for everyone. But for farmers who want the flexibility and affordability of renting land, see value in community relations that farming on public land can offer, and have adequate patience and interpersonal skills to navigate more bureaucracy than would be involved with private leasing, public land can be a great deal. What to consider and what to look out for? Here are some tips that generally apply to state, county and municipal properties.

What’s the agreement?
Public land is let out via a lease or a license. A lease is an actual legal interest in land. A license is permission to use the land. The difference is not insignifi-cant. Many public entities use licenses because they do not confer an interest in real estate that is owned by the government. They are easier to revoke, too. The actual provisions in a lease or license are similar.

Who’s the landlord?
Usually, the landlord is a government entity. It could be an agency within state government. Sometimes one agency might have care and control of a property, but another agency has authority to run a leasing program for that parcel. At the local level, the legal party could be a town board, or the Board of Selectmen, or another unit of government.

Sometimes the public entity leases to an organization which in turn sub-leases to private farmers or community gardeners. In Rhode Island, Southside Community Land Trust (above) is an example. The New England Small Farm Institute is a nonprofit organization that has a long-term lease from the Commonwealth of Massachusetts for 416 acres of a former institutional farmstead. In turn, it rents parcels and buildings to small-scale farmers. Any sub-lease from an organization must be consistent with the master lease with the landholding entity. So, for example, if the master lease is for a 5-year term, a sublease could not be for a term longer than that. And if you came onto the property in Year 3, you might only be guaranteed two more years. So it’s cru-cial to inspect all pertaining legal documents.

What’s the process?
Government entities must be rigorous about uses of public property. Fairness in the selection process is one of the challenges that officials cite. Often, the authority will release a Request for Proposals (or equivalent term). It should spell out what is being offered and the process and basis for selection. Some-times a site visit is scheduled; it’s always a good idea to see the property and meet the responsible party. The RFP should guide your application. Using government land requires more formality than agreements with private landowners. Transparency is key.

There can be snags. An established farmer leasing land for 20 years from the town of Pomfret, CT lost his lease to another farmer when his lease expired. According to the farmer, this was unexpected.

The premises, practices and uses
As with all farm leases, both parties need to be very clear about what is being rented. Where are the boundaries? Is there any infrastructure? What is the “baseline condition” of the parcel? What are any use restrictions or requirements? For example, public access is sometimes required, but not typically. Farming on public land does not automatically mean the public can go onto your rented land. Are there historic or conservation values that must be considered? Is visual appearance a factor?

Sometimes specific practices or production regimes are specified or preferred. Organic and “sustainable” are most frequently cited; make sure that both parties are clear about what these terms mean. Is signage allowed? Parking? Storing machinery? Does the town or state reserve any rights?

One of the biggest considerations for a farmer on public land is around improvements. But this can be an issue on rented private land, too. Typically, there are few if any structures on rented public land because governments are reluctant to deal with them. It’s not typical for a state or municipality to permit the installation of permanent improvements on their land. So you might be limited to moveable structures. Some towns will invest in a property, so don’t rule it out!
The term
Most leases or licenses on public land are short-term—one to five years. Some states have statutory limitations on the length of an agreement, and proce-dures for renewal. For example, a license can be for five years with the option to renew for another five years. After that it must go out to bid again, but that doesn’t mean that the same farmer is prohibited from re-bidding the parcel. There are instances of long-term agreements on public land where regu-lations do not prohibit them. Ask to see the rules or guidelines, or check with a legal expert to clarify what’s possible.

Rent and other fees for public farmland range widely from nominal to market rates for comparable parcels. States and towns consider many factors in determining the “consideration.” Governments are rightfully sensitive about fairness. They want to avoid any appearance of favoritism. This can be an issue if it looks like farmers on public land are getting a “better deal” or when the selection process appears to favor certain producers. On the other hand, a few public entities expressly intend to give preferential opportunities to new farmers or immigrant farmers, for example.

Sometimes farmers can pay non-cash consideration. For example, providing a service such as maintaining open or riparian areas, or trails. A frequent in kind fee is leaving a portion of the harvest for wildlife. While attracting wildlife onto farmland is not for every circumstance, conservation agency land-lords are particularly interested in this kind of exchange.

Everyone is concerned about liability. Farming on public land might seem like an especially risky endeavor. But the risk management strategies are not very different whether you are renting from a public or private entity. Most landlords, including states and municipalities require their farming tenants to carry liability insurance and to name the landlord as additional insured. Public entities will likely require the tenant to indemnify them as landlord. State governments are typically self-insured.
Monitoring and communications
When you rent from the government, you can’t knock on your landlord’s back door to check in or ask a question. Communications with government landlords are more formal and time-consuming. Officials cite lack of time to manage leasing programs as a major challenge. There’s staff turnover. Some-times permissions have to wend their way through multiple entities or levels. Anticipate this in your planning so you won’t get frustrated if the turnaround takes longer than you’d like.

You can expect periodic monitoring, but how that monitoring is implemented varies greatly. State-level personnel might not be in touch very often, while at the town level, local officials might drive by frequently. You have a right to “quiet enjoyment” on your rented parcel, but you should also be comforta-ble with the reality that you are on public land.

Communications are important in any user-owner relationship. Be clear about what needs to be in writing, and what you need to submit as a report or annual plan. In fact, annual plans—whether required or not—are an excellent tool to connect with your government landlord.

To learn more about farming on public land, or about leasing farmland in general, check these resources:

• Land For Good’s handbook on leasing land to farmers for New England land trusts, municipalities and institutions at: http://landforgood.org/wp-content/uploads/LFG-Leasing-Land-To-Farmers-For-Land-Trusts-Municipalities-Handbook.pdf

• Elements of a Good Farm Lease, a Land For Good fact sheet at: http://landforgood.org/wp-content/uploads/LFG-Elements-of-a-Good-Farm-Lease.pdf

• Minuteman Area Comprehensive Agricultural Planning Program report at: <http://www.mapc.org/sites/default/files/MAGIC_ag_report_1-21-14.pdf> details work with 13 eastern Massachusetts communities to increase the viability of farming. It includes chapters on land tenure and access, farm succes-sion and transfer, and leasing land for farming with best practices and recommendations.

• Farmland ConneCTions: A guide at <http://www.extension.uconn.edu/documents/CT_Farmland_Connections_FINAL.pdf> for Connecticut Towns, In-stitutions and Land Trusts Using or Leasing Farmland

• A report on state-owned land for farming at: http://LFG-State-Owned-Land-For-Farming-Report.pdf

• Check State department of agriculture websites, and websites of cities and towns. At the local level, ask Town planning departments, assessors, agricul-ture commissions and/or conservation commissions about leasing farmland.

• Land For Good <http://LandforGood.org> works with farm seekers, transitioning farmers and landowners of all kinds around land access. LFG Field Agents serve every New England state.

Farming on public land isn’t for everyone. But don’t rule it out if you think it might meet your needs. If you’re a start-up farmer looking for affordable land, flexibility and community connections, municipal land could be for you. If you need more land to grow your business, town or state land could work for your operation. As with all land transactions, seek advice from service providers, wisdom from farmers who have walked this path, and legal counsel. Keep in mind that governments make land available for farming because they want to, and they want to do it well.