MINUTES
TRUSTEES
PRESENT:
Lloyd C. Jones, Jr., Acting Chairman
Allen H. Cohey
Mildred H. Darcey
Lewis Logan, representing Treasurer Dixon
Judith C. Lynch
Dan Rosen, representing Secretary, Maryland
Department of Planning
Joseph K. Scott
Gerald Thorpe, representing Comptroller Schaefer
Maurice L. Wiles
Douglas H. Wilson, representing Secretary, Maryland
Department of Agriculture
Robert E. Wolf
TRUSTEES
ABSENT:
None.
OTHERS
PRESENT:
Bill Amoss, Harford
Bill Beach, Chief, Appraisal & Valuation,
Department of General Services
Carol S. Council, Administrative Specialist
Thomas F. Filbert, Assistant Attorney General
Iva L. Frantz, Administrative
Officer
Frank Hall, Talbot
Virginia Hanahoe, Office
of the Comptroller
Karen Houtman,
Dave Kelleher, Asst. Chief, Appraisal &
Valuation, Department of General Services
Joy Levy, Queen Anne=s
Carla
Hillary Morrison, VoiceStream
Bill Powel, Carroll
Paul W. Scheidt,
Executive Director
Tammy Scheidt,
Maureen Smith, VoiceStream
John Zawitoski,
Lloyd C. Jones, Jr., Acting Chairman, called the
meeting to order at
I. APPROVAL
OF MINUTES/ADDITION OR DELETION OF AGENDA ITEMS:
A. APPROVAL OF MINUTES OF:
Motion #1: To approve the minutes of
Motion: Joseph Scott Second: Robert Wolf
Status: Approved
B. APPROVAL OF MINUTES OF EXECUTIVE SESSION:
Motion #2: To approve the minutes of Executive
Session,
Motion: Mildred Darcey Second: Robert Wolf
Status: Approved
C. ADDITION OR DELETION OF AGENDA ITEMS:
II.D.1 SUTTON, James L. & Marian B.
Paul Scheidt stated that
due to mechanical failure, this information was not included in the
packets. Handouts were given to the
Board members.
IV.B Review of the FY 2001 Allocation of Funds
II. AGRICULTURAL PRESERVATION DISTRICT PETITIONS
A. QUEEN
ANNE’S COUNTY
1. 17-07-01-04 LEAGER,
Sr., Thomas R. & Betsy R. 203.0000
acres
2. 17-06-01-05 EATON,
Harry A. & Sharon 187.0000
acres
Foundation staff recommended approval based on
meeting minimum district size and soil productive capability criteria.
Motion #3: To approve the request of Thomas R.
& Betsy R. Leager, Sr., and Harry A. & Sharon
Eaton to establish an agricultural land preservation district on their
properties.
Motion: Joseph Scott Second: Maurice Wiles
Status: Approved
B.
1. 21-07-01-01 CLAGETT,
John B., et al 186.8100
acres
Foundation staff recommended approval based on
meeting minimum district size and soil productive capability criteria.
Motion #4: To approve the request of John B. Clagett, et al to establish an
agricultural land preservation district on his property.
Motion: Joseph Scott Second: Judy Lynch
Status: Approved
2. 21-14-01-02A HUNTER,
Samuel C. 68.6200
acres
Approval based on COMAR 15.15.01.03D(2)(a)(i) which states, A...a parcel of less than 100 acres may qualify as a
district if it adjoins a 100 acre parcel which has been approved by the
Foundation as an agricultural land preservation district@ and meeting soil
productive capability criteria.
Motion #5: To approve the request of Samuel C.
Hunter to establish an agricultural land preservation district on his property.
Motion: Joseph Scott Second: Lewis Logan
Status: Approved
C.
1. 12-04-01-01 GOMPF,
Arthur P. 163.6400
acres
Foundation staff recommended approval based on
meeting minimum district size and soil productive capability criteria.
Mr. Scheidt stated that
the landowner is withholding 1.0 acre for a for an existing construction
business.
Dan Rosen, representing the Secretary of Maryland
Department of Planning, asked if the two properties owned by Mr. Gompf, could come into the program as one district.
Mr. Scheidt stated that
the landowner could request that both parcels come in as one district. However, this is not what the landowner is
requesting.
Mr. Rosen stated that on the smaller parcel the
landowner is withholding two 2.0 acre parcels.
Does this also entitle the landowner to two owner’s lots?
Doug Wilson, representing the Secretary of Agriculture,
stated that if the landowner would request an owner’s lot on both the Board
would not approve them.
Bill Amoss, Harford
County Program Administrator, stated that the landowner wanted to be able to,
if necessary, sell two farms under easement.
Considering the situation concerning agricultural subdivisions, if the
Board could assure the landowner that in the future he would be able to divide
the district for sale, he would put it in as one.
Motion #6: To approve the request of Arthur P. Gompf to establish an agricultural land preservation
district on his property.
Motion: Lewis Logan Second: Judy Lynch
Status: Approved
2. 12-04-01-02A GOMPF,
Arthur P. 85.0200
acres
Foundation staff recommended approval based on
COMAR 15.15.01.03D(2)(a)(ii) which states, A...a parcel of less than 100 acres may qualify as a
district if it is added to one or more adjoining parcels which together have
been approved by the Foundation as agricultural land preservation districts and
meeting soil productive capability criteria.
Motion #7: To approve the request of Arthur P. Gompf to establish an agricultural land preservation
district on his property.
Motion: Doug Wilson Second: Maurice Wiles
Status: Approved
3. 12-04-01-03A FLETCHER,
Gerald A. & Edith L. 76.0566
acres
Foundation staff recommended approval based on
COMAR 15.15.01.03D(2)(a)(ii) which states, A...a parcel of less than 100 acres may qualify as a
district if it is added to one or more adjoining parcels which together have
been approved by the Foundation as agricultural land preservation districts and
meeting soil productive capability criteria.
Mr. Wilson asked Mr. Amoss
if all of the land surrounding this parcel, aside from the Gompf
parcels, were in being farmed or in conservation programs.
Mr. Amoss
stated that he is actively campaigning to have these parcels put into
agricultural preservation.
Motion #8: To approve the request of Gerald A.
& Edith L. Fletcher to establish an agricultural land preservation district
on their property.
Motion: Doug Wilson Second: Maurice Wiles
Status: Approved
D.
1. 14-02-01-01 SUTTON,
James L. & Marian B. 158.3400
acres
2. 14-02-01-02 GUTHRIE,
Thomas W. & Deborah B. 106.0000
acres
3. 14-01-01-03 OWINGS
& SONS, INC., Preston Farm 124.8700
acres
4. 14-07-01-04 JOINER,
Emily D. 123.3400
acres
Foundation staff recommended approval based on
meeting minimum district size and soil productive capability criteria.
Motion #9: To approve the request of James L.
& Marian B. Sutton, Thomas W. & Deborah B. Guthrie, Owings & Sons,
Inc., and Emily D. Joiner to establish an agricultural land preservation
district on their properties.
Motion: Allen Cohey Second: Mildred Darcey
Status: Approved
E.
1. 10-17-01-01 FLICKINGER,
D. Richard & Diane 164.7500
acres
2. 10-17-01-02 THOMPSON,
Franklin & Pamela 140.7600
acres
3. 10-08-01-03 NORRIS,
Sr., Richard & Mary Jane 100.6300
acres
4. 10-15-01-04 BROWN,
Elizabeth A., et al 115.2700
acres
5. 10-15-01-05 SEXTON,
Norman & Barbara 204.8100
acres
6. 10-19-01-06 ZIMMERMAN,
Charles H. & Mildred I. 152.5000
acres
7. 10-05-01-07 BRADLEY,
Vaughn F. & Edythe M. 145.6125 acres
8. 10-01-01-08 STUP,
9. 10-11-01-09 TROUT,
Richard H. & Kathleen 213.7309
acres
10. 10-11-01-10 HILDEBRAND,
Roger L. & Ellen V. 221.5000
acres
Foundation staff recommended approval based on
meeting minimum district size and soil productive capability criteria.
Allen Cohey, Board
member, asked if the county road passed through the Norris property and if the
machine shop is a commercial operation.
Carol Council, Foundation staff, stated that it was
not clear if this road passes through the property. However, the 3.0 acres being withheld has
direct access to
Motion #10: To approve the request of D. Richard
& Diane Flickinger, Franklin & Pamela
Thompson, Richard & Mary Jane Norris, Sr., Elizabeth A. Brown, et al,
Norman & Barbara Sexton, Charles H. & Mildred I. Zimmerman, Vaughn F.
& Edythe M. Bradley, Marietta and Carole Stup, Richard H. & Kathleen Trout, and Roger L. &
Ellen V. Hildebrand to establish an agricultural land preservation district on
their properties.
Motion: Doug Wilson Second: Maurice Wiles
Status: Approved
F.
1. 08-08-01-09A HOGUE,
Gaylord & Bobby Coe
2. 08-08-01-10A HOGUE,
Gaylord & Bobby Coe
Follow-up to
At the
The contiguous properties were 08-08-01-09A, 94.033
acres and 08-08-01-10A, 38.8 acres.
Although these two parcels are separately deeded and described, the
Board of Trustees voted to table action on the requests in order to ask the
landowner to resubmit them as one 132.833 acre district because of the
possibility of requests for multiple lots in the future.
Charles Rice, Charles County Program Administrator,
spoke with Mr. & Mrs. Hogue and rather than combine the properties, they
have opted to withdraw their petitions for agricultural land preservation
establishment in order to pursue an easement with the Rural Legacy Program.
Mr. Scheidt stated that
if the landowner had chosen to put in 94.0 acres into the program this month and
chosen to place the other 38.8 acres at a later date, this may not have been an
issue.
Robert Wolf, Board member, asked what
are the implications of taking the Rural Legacy program over this program.
Mr. Scheidt stated that
the State is trying to preserve the land, whether it be
with MALPF or the Rural Legacy program.
The landowner is the one that makes the decision.
Mr. Wolf asked if the landowner has more flexibility
under Rural Legacy.
Mr. Scheidt stated that
Rural Legacy tends to be stricter with the land use than MALPF.
John Zawitoski,
Montgomery County Program Administrator, stated that the only time a landowner
gets an additional level of protection is if the landowner is willing to grant
a limited public access to the property.
Tammy Scheidt, Caroline
County Program Administrator, stated that Department of Natural Resources has a
table that indicates, in some counties, Rural Legacy landowners are being
compensated less than what they are for MALPF easements.
Mr. Wolf asked if we are having applications
withdrawn.
Mr. Wilson stated that there are applicants in both
program and a small minority that come through from both Rural Legacy and MALPF
and receive offers. These people can
then make their choices. However, this
does not happen frequently, thereby eliminating the landowner from going back
and forth between the two programs, scrutinizing the appraisals in order to see
which will offer the better money.
Gerald Thorpe, representing Comptroller Schaefer,
asked if the 25-year clause allows landowners the opportunity to go from one
program to the other.
Mr. Scheidt stated that
there were two bills introduced last legislative session, one would eliminate
the termination 25-year clause altogether, and the other bill would allow the
landowner to terminate the easement any time after the easement was sold.
III. DISTRICT/EASEMENT AMENDMENTS
A.
1. 05-07-87-40 EDWARDS,
Richard & Janice 250.2780
acres
05-07-97-07A YOUSE, Scott & Jill 65.7894 acres
Request to amend the districts to correct a
violation.
Mr. & Mrs. Edwards are the original owners of
district 97-07A and the subsequent owners of adjoining district 87-40.
As district 97-07A is divided by
When the Edwards transferred the 55.2343 acres of
district 97-07A which is located on the west side of the road to their daughter
and son-in-law, Jill and Scott Youse, they were not
aware that this resulted in a violation of the district agreement by
subdividing the property.
In order to correct the violation and to allow both
the Edwards and Youses to apply for the sale of an
agricultural land preservation easement in the FY 2002 cycle, they are
requesting approval to amend both district agreements in order to:
1) Remove 10.5557 acres from district 97-07A, resulting in a
55.2343 acre district owned by Scott & Jill Youse,
and;
2) Add 10.5557 acres to district 87-40, resulting in a 260.8337
acre district owned by Richard & Janice Edwards.
If this request is approved, both districts will
continue to meet the minimum qualifying criteria for district establishment as
both properties consist of 100% U.S.D.A. Soils Classes I, II, and III soils.
There are two pre-existing dwellings on district
87-40. District 97-07A has one
pre-existing dwelling which has been transferred to the Youse=s as part of the 55.2343
acre parcel located on the west side of
Foundation staff recommended approval as it will
correct a violation of district 97-07A and will result in two districts that
are separately owned and operated.
Motion #11: To approve the requests of Richard & Janice
Edwards and Scott & Jill Youse to amend the
districts to correct a violation.
Motion: Doug Wilson Second: Allen Cohey
Status: Approved
B.
1. 12-04-92-01A ALMONY,
Edgar S. & Patricia A. 83.0000
acres
Request for approval to construct
a tenant house on district property.
Mr. & Mrs. Almony are
the original owners of the 83.0 acre district property. Their current request is for approval to
place a mobile home on their district property to be used as a tenant house.
According to
There is one pre-existing dwelling on the district
property and there have been no requests for owner=s or children=s lot exclusions.
Foundation staff recommended approval as it does
not exceed the limitation outlined in the district agreement which states, ANo more than 1 tenant house
per 100 acres may be constructed on the land...@ for tenants fully engaged
in the agricultural operation of the farm.
Mr. Cohey asked if the
tenant house is for full time employees.
Mr. Scheidt stated that a
tenant house is intended for employees fully engaged in the activities of the
farm and receive 50% of their income from the farming operation.
Mr. Thorpe asked if this would be a full time or
part time position.
Mr. Amoss stated that it
would be a part time position.
Motion #12: To approve the request of Edgar S. &
Patricia A. Almony to construct a tenant house on
district property.
Motion: Gerald Thorpe Second:
Robert Wolf
Opposed: Allen Cohey
Status: Approved
2. 12-04-89-02e McELWAIN, Sr., Allen S. & Margaret 165.0500 acres
Re-review of request for approval to place a
cellular phone antenna on an existing silo located on easement property.
On the
The Foundation has received written advice from
Craig Nielsen, Assistant Attorney General, in which he states, Athe Foundation has the
authority to allow non-farm commercial uses, such as cellular antenna and
equipment, provided they do not interfere with the agricultural land
preservation goals established by the Legislature.@
The Foundation has also received a memorandum from
Nancy Girono, Senior Attorney for the Harford County
Government, Department of Law, in which she states, AIt has been determined that
communication cell towers [antennas] are permitted on easement properties,
subject to the Board of Appeals process and the County=s Zoning Code requirements
. . . as long as they are accessory to the principal use of the property and
the farming operation remains the primary use of the property.@
In addition, the MALPF Task Force Subcommittee on Allowed
and Restricted Uses has reviewed this issue and plans to recommend allowance of
the placement of antennas on existing structures as long as the support
structures are contained within existing buildings.
Foundation staff points out that the Policy Review
Committee has not yet reviewed the issue of land use, which will include
discussion on communication towers and antennas.
Craig Nielsen, Assistant Attorney General, had been
requested to submit a legal opinion to the Board concerning placing towers on
properties and commercial uses of easement properties, which is as follows:
It is Mr. Nielsen=s opinion that the
Foundation has the discretionary authority to allow, under limited certain
circumstances, antennae and communication equipment on such land. The following is quoted from Mr. Nielsen=s memo to Mr. Scheidt:
ASince the Foundation first purchased easements in
1979, its policy has been to generally prohibit any commercial activity unrelated
to farming on land subject to easement restrictions. The need for commercial restrictions is
obviously necessary to preserve the open space character and agricultural use
of the land, and is echoed in Md. Agric. Code '2-513(b), which provides
that Aa landowner whose land is
subject to an easement [agricultural preservation] may not use the land for any
commercial, industrial or residential purpose.@ See also the Foundation=s uniform deed covenants,
expressly providing that any farm subject to easement restrictions “shall be
preserved solely for agricultural use.”
AIdeally, of course, the Foundation should only have
to approve and monitor uses directly related to farming. With limited staff and over one thousand
easements, this relieves the Foundation of the responsibility of approving and
monitoring commercial uses unrelated to farming. However, because landowners ask to use their
land for purposes other than farming, the Foundation has adopted regulation COMAR
15.15.01.17(G)(3), that lists four factors that the Foundation considers when
determining whether any use, including a commercial one, is Ainconsistent with or
contrary to the preservation easement.@ These
factors are:
(a) Whether it [the use] is a commercial, industrial, or
residential use;
(b) Whether it will likely have a negative impact on the
agricultural operation of the farm on which it is to be implemented;
(c) Whether it has an historical relationship to farming (for
example, goose hunting); and
(d) Whether it is temporal, seasonal, or permanent in nature.@
ASee e.g., Christ by Christ v. Maryland Dept.
of Natural Resources, 335 Md. 427, 435-439 (1994) (recognizing an
administrative agency=s broad authority to adopt
reasonable regulations to carry out the legislative purpose); Comptroller v.
Rockhill, Inc., 205 Md. 226 (1954) (Ait would be impossible for
the Legislature to deal directly with the multitude of details in the complex
conditions upon which it legislates@).@
ACOMAR 15.15.01.17(G)(3)
does not say with clarity how the Foundation weighs the four factors when it
approves or disapproves any use. It has
approved nonfarm commercial uses; it has allowed
commercial mining subject to land restoration requirements. See COMAR 15.15.01.12; it has also
allowed the commercial use of a farm for hunting, skeet shooting, and horseback
riding. However, such activities as
paintball, music festivals, and the use of the farm for a cell phone tower have
been disallowed because they are commercial activities that had no Ahistorical relationship to
farming.@ The other factors apparently were not given
any weight, and it is not clear when they would be given consideration. For example, would the Foundation approve a
commercial use unrelated to farming if it could be demonstrated that it would have
no impact, or only a temporary impact, on the agricultural use of the farm?@
AAlthough it could be argued that nonfarm commercial uses are banned, it is my opinion that
the Foundation has the authority to allow them as long as none frustrate the
legislative intent of the state agricultural land program described under Md.
Agric. Code, '2-501, A. . . to preserve
agricultural land and woodland in order to: provide sources of agricultural
products within the State for the citizens of the State; control the urban
expansion which is consuming the agricultural land and woodland of the State;
curb the spread of urban blight and deterioration; and protect agricultural
land and woodland as open-space land.@ See also
Md. Agric. Code, '2-504, that gives the Foundation
broad authority to determine what easement restrictions are appropriate to A. . . maintain the
character of the land as agricultural land . . . .@
ABased on the above, it is my view that the
Foundation has the authority to allow nonfarm commercial
uses that have no effect on the farm=s open-space land or its ability to produce
agricultural products. This allows the
Foundation to approve commercial uses of the farm unrelated to farming for such
activities as concerts, games, weddings, historic house tours, hay wagon rides,
and other types of social gatherings that have no effect on the farm. Of course, this would require the Foundation
to closely monitor these activities and maybe have written agreements with
landowners to prevent approved nonfarm commercial
uses from expanding into activities that would frustrate the goals of the land
preservation program. A
@The question of the commercial use of a farm for
cellular phone antennae and equipment, it is my opinion that this use could be
allowed if the Foundation determines that this use would not violate the
preservation values described in '2-501 of the Agriculture Article. When approving this, the Foundation should
insure that the antennae or equipment does not occupy a farm field or in any
way interfere with the agricultural operation of the farm. Antennae could be located on existing farm
buildings, and supporting equipment could be located off farm fields in
discrete areas away from agricultural operations. It would be important also to have a written
agreement between the Foundation, the landowner, and the cellular phone company
describing the location and the use of all equipment.
@In summary, it is my opinion that the Foundation
has the authority to allow nonfarm commercial uses,
such as cellular antennae and equipment, provided they do not interfere with
the agricultural land preservation goals established by the Legislature.@
A1/ Under the Rural Legacy program, cellular phone antennae
would not be allowed (conversation with Pam Bush). A
Mr. Scheidt stated that
the MALPF Task Force has also studied the use of the land and they will be making
a recommendation. From information he
has received, Mr. Scheidt stated that it appears that
the Task Force is of the opinion that antennas on existing structures could be
permitted as long as the support structures are contained within an existing
structure.
Mr. Scheidt stated that
Review Committee was going to review this; however,
they are waiting for the recommendation from the Task Force before acting on
this.
Mr. Wilson asked it the type of antenna is the
smaller ones that were located on the top of the farm structures.
Mr. Scheidt stated that
they were the smaller ones that only go a few feet above the structures.
Maureen Smith, VoiceStream,
stated that they would like the Board to consider the mini towers on top of
existing structures or structures that are acceptably built to confine the
equipment within the character of the current use. In