Neighboring Landowners Object As Sagaponack Farm Proposes Deer Fence

Farmer Marilee Foster addresses the Sagaponack Village Board at a land planning work session on November 12. Her brother, Dean Foster, sits to her right. BRENDAN J. O'REILLY

The Fosters say the deer population has grown to the point that they have no other choice but to erect 8-foot-tall deer fencing around their family farm in Sagaponack to protect their crops and livelihood.

Sagaponack Village allows such fences on agricultural land if farmers can prove a need. But questions concerning setbacks remain — and neighbors, some of whom have enlisted attorneys, are raising objections.

Among the further complications that arose at a Sagaponack Village Board work session on Tuesday, November 12, are a trail easement that runs through the southern portion of the land that the Fosters are seeking to enclose, and the prospect of an eventual neighboring subdivision with a new road.

Any approved deer fence must be see-through and cannot be screened with privet or other vegetation.

Owners of neighboring land were concerned about the appearance of the proposed fence and the precedent it would set in the village if the fence were to be approved.
The farmland is south of Montauk Highway and to the east of Sagaponack Main Street. The field is approximately 100 acres, and the majority is permanently protected from development.

Debra Simon, who owns the 3.4-acre property at 53 Sagaponack Main Street, abutting the farm, noted at the work session that she lives on a farm field in Noyac and urged alternatives to deer fence.

“I have a real aversion to what the deer fencing looks like, like many others. It looks like barbed wire in Nazi Germany to me,” Ms. Simon said. “I think it’s a very — I just hate the way it looks. That said, I get that they have a right, and they are going to put fences up.”
Ms. Simon suggested that a 4-foot fence should be tried before installing an 8-foot fence and said her existing 4-foot fence bordering the Foster Farm could save the Fosters the expense of installing a fence along that portion of the farm.

“It would make me incredibly happy to not look at that big barbed wire fence,” she said. “It would save them money if that part would be considered a link.”

Sagaponack Village Mayor Donald Louchheim at the November 12 meeting. BRENDAN J. O’REILLY

Mayor Donald Louchheim, who noted that the proposed deer fence would not be made with barbed wire, said that while a 4-foot or 6-foot fence may work for a while, farmers feel that the only sure protection for them is 8-foot fencing.

“They have a huge investment, one, just in building a fence, and, two, in terms of the crops in the ground,” the mayor said.

He pointed out that experimenting with shorter fence could be costly. “If deer get in there, they are going to do damage,” Mr. Louchheim said to Ms. Simon. “And who’s going to compensate the farmer for it? You?”

Though the mayor came to the defense of the Fosters’ position at times, he also held firm that the proposed fence could not cross a trail easement. “The easement document that you presented to us creates an easement over a strip of land on the southern border that is 30 feet wide,” he told the Fosters.

However, Marilee Foster said she did not agree that the easement necessitates a fence setback. If they left that portion out of the fenced-in area, she said, “we would be not licensing a small portion of our farm for trail use — we would be essentially forfeiting ownership of our farmland.”

Ms. Foster explained that they would lose crop space if the fence is set back, because they need to leave headland to turn tractors around. Presently, the farm and the trail share the same right-of-way, she said: “There hasn’t been any waste of farmland.”

Mr. Louchheim said the village has a responsibility to enforce any easements, and this trail easement does not permit a fence that precludes access.

The Fosters said the proposed fence will have gates so hikers and horse-riders will still have the access.

“Why is it so difficult to open and close the fence?” said Dean Foster, Marilee’s brother. “That’s what I don’t understand. Because that’s really, legitimately, on the trail side of things, the only thing that will be required. Just like you’re going into your house at night: You open your door, and you shut it behind you. It’s not a big deal.”

The easement is the result of a 2016 agreement to move an earlier easement that cut through the Foster Farm rather than running along an edge.

“When we came to that agreement with Southampton Town, we brought up the possibility of us needing a deer fence there, and no way were we led to believe that that licensing agreement would have precluded our ability to put up a deer fence,” Ms. Foster said. “So that’s something I want to really investigate much further, because that matters a lot.”

A strip on the northern portion of the property along Montauk Highway is treed now and not in agricultural use, Mr. Louchheim pointed out. However, Ms. Foster said that could change and did not see its present state as a reason to leave it outside the fence. “There’d be no reason that I can see taking that our of our farmable envelope,” she said.

To put in a fence that would exclude that area for now, and leaving open the possibility of moving the fence later if the use of that strip of land changes, was not accepted as a viable option.

“To put up that fence is a substantial expense,” Ms. Foster said. “So to cut off part of our property from what is very likely an evolving agricultural use would be a waste of time and land for us.”

There will have to be some setback for utility poles and electrical lines, she acknowledged.

“Believe me, we’ve lived here a long time too,” she went on to say. “None of us love the way deer fences look. But one of the things we do enjoy and need for our livelihood is reasonable access and use of our property. Which, I point out again, we removed as a bargain sale to the Town of Southampton — to the benefit of everyone here, I believe — the development rights from that property. It allowed us continued access to that farmland, and it’s a precious resource that we own and share with many people — but we do own it.”

The Fosters cited a number of reasons for why the deer pressure on the farm has gotten so severe, including development elsewhere — where municipalities allow homeowners to install deer fence, driving out the deer population toward areas like Sagaponack — and inadequate management of the population by the State Department of Environmental Conservation

Mr. Foster acknowledged not being a fan of deer fence either but said they could not wait any longer. “We’ve been holding out on this,” he said, “because we’ve been hoping, maybe, they would change the hunt and maybe something would change — who knows? — and maybe the deer population would evaporate.”

Mr. Foster said that Foster Farm also grows crops on leased land where the landowners have not put up deer fence, but the farm cannot continue to do so.

“This year and last year, we are giving up the larger parcels that we have been farming, because we can’t farm them anymore,” he said. “We have that much deer pressure on these other parcels that have no deer fence on them, we are actually pulling out of those, because they are unfarmable.”

Neighbor Jody Martini and her attorney, Eric Bregman, questioned why the entirety of the property needs to be fenced in, when portions of the property bordering her home are not actively being used for crops.

Mr. Bregman suggested that the Fosters do not need to put a fence up along the northern property line of Ms. Martini’s property to secure an area that has not been farmed in, as far as they know, 13 years. He noted that the village’s deer fence law requires that a startup farm explore alternatives to an 8-foot fence for two years before applying for a deer fence permit.

He said the Fosters should consider alternatives, such as different fence or different setbacks, and said perhaps crops that deer don’t eat, such as potatoes, could be grown on the outside of the fenced-in area. To that, the Fosters replied that deer certainly will eat potatoes.

“They move readily into a potato field,” Ms. Foster said, adding that she throws out potatoes with deer bites in them as she sorts her harvest.

Still, Mr. Bregman posed a question: “Is there a way to deal with this that addresses concerns of the look and feel of the village and the openness, and is fair to the Fosters?”
Ms. Martini said she can sympathize.

“I wake up and my backyard is covered in deer,” she said. “They’ve eaten everything that we have, and we lost our dog because of the deer. So we’re very much under pressure because of the deer — not in the same way as the Fosters are, and I respect what you guys are trying to do. I’m very sympathetic to what you’re trying to do.

“We love living next to the farm, and we want it to be there forever. It’s one of the reasons that we live where we live. We love farm-adjacent living.”

But Ms. Martini added that the deeded trail easement should be available to everyone in Sagaponack to use unimpeded. She said that the trail currently has a “keep out, no trespassing” sign; however, the Fosters said that is to keep out motorists, not hikers.
There were other wrinkles as well.

Attorney Alice Cooley, representing the Schwenk Family Unlimited Partnership, told the board that the Schwenk family, which owns neighboring land to the east, is planning a subdivision, and while the Schwenks do not oppose the fence application, they would like a 50-foot setback for a road proposed as part of the subdivision.

Attorney Katerina Grinko was at the meeting on behalf of Alan Stillman, who she said does not own land bordering the Foster Farm. Ms. Grinko told the board that Mr. Stillman is concerned about the precedent approving the deer fence will have for the character of the village and whether it will open doors to other deer fencing.

“Many people get confused between a farm field and a scenic vista, but this is a farm field, and we need access to it as farmland,” Ms. Foster said during a phone interview last week. “And, unfortunately, you ask any farmer on the East End: A deer fence is now a piece of equipment as important as a tractor. It’s a nonstarter without them. And that’s because the deer population, thanks to many of the rules surrounding deer hunting and how the DEC is taking care of the herd, is out of control. It’s just out of control.”

The deer fence proposal has been adjourned to the board’s Monday, December 9, meeting at Sagaponack Village Hall.