By Dwight Haggard III

Kentucky ranks 37 out of 50 in measured land, with a total of 25,861,773 acres in the United States.[i] Being ranked 37th may make Kentuckians feel less than adequate, but it is truly nothing of which to be ashamed. What should make Kentuckians feel ashamed is how high our cities rank among our peers in households living in food deserts; Louisville in particular, ranks 10th among larger cities for households living in a food desert.[ii] Typically, food deserts are areas that lack fresh fruit and vegetables and are located in impoverished communities.[iii] A household is in a food desert whenever it is located in a low-income census tract, lacks transportation, and is farther than a mile away from a supermarket.[iv] The issue arises from the lack of grocery stores, farmers’ markets, and healthy food providers in certain areas.[v] The biggest predicament surrounding communities lacking fresh food is what replaces whole food providers.[vi] Communities suffering from food deserts are overrun with local “quickie” marts that provide a plethora of processed sugar and fatty foods, which contribute greatly to obesity throughout Kentucky and all across the United States.[vii]

Permanent conservation easements are a valuable solution and could curtail the issue of natural food shortages in Kentucky. Such easements are deemed profitable for landowners when combined with the federal tax deductions that were incentivized and passed by Congress in 2015.[i] Permanent conservation easements are private and voluntary forms of land use-zoning.[ii] These legally binding agreements prohibit certain uses like developing the land for commercial use, but the owner of the land can still sell or devise the land to future generations for thousands of years.[iii]

The great state of Kentucky is known for its agriculture and natural resources; some refer to it as the Bluegrass State, but it is also known as the “Hemp State” and “Tobacco State,” because both are essential crops which have boosted Kentucky’s economy.[iv] The soil in Kentucky is prime for farming and agriculture. Organizations like American Farmland Trust (“AFT”) realize the importance of farming and have created the national movement No Farms No Food.[v] AFT seeks to protect farms from real estate development with permanent conservation easements.[vi] From 1992 to 2012, Kentucky lost over 800,000 acres of farmland to real estate and is ranked in the top 20 states in the U.S. for loss of farmland.[vii] Agriculture in Kentucky generates $17 billion annually and employs more than 400,000 people.[viii]

Lexington is not immune to growing populations suffering from food deserts. The U.S. Department of Agriculture’s website titled Food Access Research Atlas displays the East End, North Lexington, and the Versailles Road corridor as food deserts.[ix] The National Bureau of Economic Research has found that there is little correlation between equal access to groceries and combating hunger and deprived nutrition.[x] Therefore, utilizing permanent easements in communities that suffer from malnutrition can help curtail the lack of fresh food and vegetables while making healthy food the obligatory option for citizens instead of the alternative.

One dilemma comes from critics who argue that easements reward wealthy landowners who seek to utilize “dead hand control” which is also known as an attempt to keep property in the control of chosen family members or organizations that continue to vest far into the future.[xi] While it is true that centuries of common law discouraged perpetual constraints on land use by implementing the rule against perpetuities, our communities are suffering from the lack of availability in fresh food sources.[xii] Incentivizing landowners to preserve land for farming would be a simple solution to curtail food shortages across Kentucky.

There was once a time in America when farming, agriculture, and trading were the only methods in which citizens could access food to survive.[xiii] While it is not necessary to go back in time, looking forward should thwart Americans from allowing corporations unfettered power to control where fresh food will be offered. Citizens should be permitted to choose healthy alternatives to processed foods; creating permanent conservation easements and partnering with organizations like AFT can put an end to food deserts.[xiv]

[i] Jacob C. Walbourn, Considering A Conservation Easement? Here’s What You Should Know, McBrayer (Oct. 25, 2018), https://www.mcbrayerfirm.com/blogs-Real-Estate-Law-Blog,considering-a-conservation-easement-heres-what-you.

[ii] Dominic Parker, The Conservation-Easement Conundrum, PERC (Feb. 12, 2019), https://www.perc.org/2019/02/12/the-conservation-easement-conundrum/#_ftn1.

[iii] Walbourn, supra note 8.

[iv] Lisa Lakey, Kentucky: The Bluegrass State, Porter Briggs (2015), http://porterbriggs.com/kentucky-the-bluegrass-state/.

[v] Roy Paulick, Preserving ‘Kentucky’s Rural Heritage’: Hermitage Farm Joins Permanent Conservation Easement, Press Release (Oct. 08, 2019), https://www.paulickreport.com/news/the-biz/preserving-kentuckys-rural-heritage-hermitage-farm-joins-permanent-conservation-easement/.

[vi] Id.

[vii] Id.

[viii] Hannah Patterson, Kentucky Agriculture Overview, Farm Flavor (Dec. 11, 2013), https://www.farmflavor.com/kentucky/kentucky-agribusiness/kentucky-agriculture/.

[ix] Carson Benn, Lexington needs a strategy to tackle its food-desert problem, Lexington Herald (Nov. 28, 2018), https://www.kentucky.com/opinion/op-ed/article222338515.html.

[x] Id.

[xi] Parker, supra note 9.

[xii] Id.

[xiii] Tim Saenger, Colonial Farming and Food: Famine to Prosperity, NCPEDIA (2013), https://ncpedia.org/colonial-farming-and-food-famine.

[xiv] Paulick, supra note 11.

[i] Rob Cook, Ranking of States By Total Acres, Beef 2 Live (Oct. 28, 2019), https://beef2live.com/story-ranking-states-total-acres-0-108930.

[ii] Tyrone Turner, Food Deserts, Greater Louisville Project (2016), https://greaterlouisvilleproject.org/factors/food-desert/.

[iii] Id.

[iv] Id.

[v] Mari Gallagher, USDA Defines Food Deserts, American Nutrition Association (Oct. 12, 2011), http://americannutritionassociation.org/newsletter/usda-defines-food-deserts.

[vi] Id.

[vii] Id.