MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION
MINUTES
September 24, 2002
TRUSTEES
PRESENT:
Lloyd C. Jones, Jr., Acting Chairman
Allen H. Cohey
Mildred H. Darcey
Lewis Logan, representing Treasurer Kopp
Judith C. Lynch
Joseph K. Scott
Joseph F. Tassone, representing
Secretary of Maryland Department of Planning
Maurice L. Wiles
Douglas H. Wilson, representing Secretary of Maryland
Department of Agriculture
Robert E. Wolf
TRUSTEES
ABSENT:
Gerald Thorpe, representing Comptroller Schaefer
OTHERS PRESENT:
Howard Alderman, Attorney,
representing Wayne and Melissa Newsome (Covered Bridge Farms, LLC), Howard
County
James Conrad, MALPF Administrator
Jeffrey Everett, Howard County Program Administrator
Tom Filbert, Assistant Attorney General, Department of
Agriculture
Iva L. Frantz, MALPF Administrative
Officer
David Kelleher, Asst. Chief, Appraisal & Valuation,
Maryland Department of General Services
Bill Powel, Carroll County Program Administrator
Charles Rice, Charles County Program Administrator
Dan Rosen, Maryland Department of Planning
Tammy Scheidt, Caroline County
Program Administrator
Elizabeth Weaver, MALPF Administrative Officer
Lloyd C.
Jones, Jr., Acting Chairman, called the meeting to order at 9:15 a.m. at the
Maryland Department of Agriculture building, Annapolis, Maryland.
I. APPROVAL
OF MINUTES/ADDITION OR DELETION OF AGENDA ITEMS:
A. APPROVAL OF MINUTES ,
Motion
#1: To approve the minutes of the
August 27, 2002, Board meeting with the addition of Dorchester County to the
list of counties participating in the Local Matching Funds Program for FY 2003
(page 7, Section IV, item F).
Motion: Allen Cohey Second:
Mildred Darcey
Status: Approved
Motion
#2: To approve the minutes of the
August 27, 2002, Executive Session Board meeting.
Motion: Robert Wolf Second:
Maurice Wiles
Status: Approved
B. ADDITIONS
OR DELETIONS OF AGENDA ITEMS:
Jim Conrad, Administrator, noted three additions to made at the beginning of Section IV of the Agenda:
1. Joe
Tassone=s memo on a corn maze policy that the Board requested at
last month=s meeting.
2. Joe
Tassone=s memo with his ideas on wastewater spray irrigation policy
requested by the Board at last month=s meeting.
3. Bob
Wolf=s proposal on meeting dates.
Two other additions will be presented at the start of the
meeting today:
1. Update
on the Farmland Protection Program awards.
2. Update
on Tenant House policy.
1. UPDATE
ON THE FARMLAND PROTECTION PROGRAM AWARDS
Mr. Conrad stated that the Farmland Protection Program
awards were announced the previous week.
A spreadsheet has been distributed of how Maryland=s award was distributed. Maryland=s total award is $2,545,000 distributed among two or three
land trust applications, several independent county applications, and the
county participants in the Foundation=s comprehensive application.
The spreadsheet shows the grant awarded each applicant, ranging from
Carroll County receiving $146,000 to $82,535 for Worcester County. If land trust awards are included in county
totals, Carroll County received $276,420 and Baltimore County received
$398,980. Carroll, Montgomery, Anne
Arundel, and Harford Counties submitted independent applications; Harford also
participated in the MALPF application.
MALPF is still finalizing the Memorandum of Agreement with NRCS,
primarily waiting for word from the counties that applied independently if they
will ask for their award to be distributed through MALPF. MALPF will have a signed Agreement by the end
of the month.
A question was asked if Counties would be able to use their
FPP grant as their match to MALPF.
Doug Wilson, Acting Executive Director, noted that the last
offer cycle for which FPP awards were distributed, the FPP money was
distributed through the standard allocation process. In other words, in Round One, federal money
was used first, general allocation was used second,
then state funds, and then county money in making offers. Four years ago the money was doled out to the
counties who then used it as matching funds.
We felt that the more recent allocation was fair to everyone.
Mr. Conrad noted that the listing of properties on the
spreadsheet indicates the top two or three properties (or one in at least one
case) as ranked by the counties, and represents those to be funded by FPP
money. These properties can receive up
to 50% of the total offer on the property in FPP funds. The Foundation will be interested to see how
this ranking will work with MALPF=s ranking system, because FPP and MALPF ranking systems for
making offers are not the same.
Mr. Wilson notes that this is the complicating factor. If none of the properties selected for FPP
funding ranks with MALPF, you may not get to a FPP-eligible property to make an
offer. The Foundation will have to have
the federal authorities allow substitution of another farm in that
jurisdiction.
Mr. Conrad stated that this difference in ranking systems is
particularly noticeable when a county depends on discounting to rank properties. FPP ranks based on the
quality of the farm=s soils and a site analysis. These two systems really don=t work well together. Perhaps this issue can be examined between
now and next year by the counties in deciding whether it makes sense to add
FPP-funding eligibility to determine priorities for MALPF applicants to
guarantee that the two ranking systems work together. Currently program administrators may still be
able to substitute other properties with the permission from Tom Heisler of NRCS.
Mr. Wilson noted that there are a number of variables where
FPP money can=t be matched with local money, and
the FPP money may be transferred to a different jurisdiction than where it was
originally allocated. But maybe things
will all work out without any problems.
2. UPDATE
ON TENANT HOUSE POLICY
Mr. Conrad said that the other update is concerning the
tenant house policy approved at the last Board meeting. The part of the tenant house policy that
could be adopted without any change in legislation has been submitted to go
into regulations. It is not yet in
regulation, but will be soon. The part
that requires legislative change has had legislation drafted to allow its
adoption, and that legislation will go forward with other departmental
sponsored legislation for consideration at the next legislative session. Mr. Wilson noted that it has been submitted
to the Executive Department for final drafting.
II. AGRICULTURAL
PRESERVATION DISTRICT PETITIONS
NO ITEMS THIS MONTH.
III. DISTRICT/EASEMENT
AMENDMENTS
A. HOWARD
COUNTY
1. 13-04-80-06Ce NEWSOME, Wayne & Melissa 131.347
(Covered
Bridge Farms, LLC)
Review of previous approval to construct a tenant house on
easement property
Mr. Conrad stated that, last February, the Board of Trustees
gave conditional approval to the Newsomes= request to construct a tenant house
on their easement property in Howard County.
Mr. Newsome is a subsequent owner of this property. There is already a primary house on this property. Mr. Newsome said at that Board meeting that his
intention was to construct a tenant house related to the fact that he has some
physical restrictions that make it difficult for him to do heavy farm
work. He intended to expand the farming
operation and needed a tenant living on the property to help him do so.
The Board approval was contingent on working with Howard
County Planning and Zoning to satisfy local requirements and providing written
certification that the occupant of the approved tenant house would be the
tenant or tenants fully engaged in the operation of the farm. This was sent to the Newsomes
in a letter dated March 1, 2002.
To date, the opinion of the staff is that neither condition
has been satisfactorily fulfilled. In
the case of the first condition, the Foundation has been informed by local
Planning and Zoning [clarification: the Foundation was informed by the Howard
County Office of Law through Assistant Attorney General Craig Nielsen, not by
the Department of Planning and Zoning] that the size of the structure does not
meet local requirements for a tenant house.
In the case of the second condition, the Foundation received the
certification it requested, but it was quite ambiguously worded to state that the tenant house would
be occupied by Asomeone@ fully engaged in the agricultural operation of the
farm. Foundation staff wrote a letter
back to clarify the statutory intent and the easement language to prevent any
misunderstandings concerning the approval of the construction of the tenant house
on the property.
The Newsomes applied for a
building permit from Howard County in July for this tenant house. Based on the building permit application,
first of all, the size for the house is over 9,000 square feet of living space,
or almost 15,000 square feet if you include the unfinished basement, and also
based on the estimated construction cost of $500,000, and a very ambiguously
worded certification concerning the intended occupancy of this tenant house,
the staff believes that this house is not really a tenant house but that the Newsomes intend to occupy it as the property=s principal residence.
The Foundation requested Howard County to hold the pending
building permit until the issues that were raised by this information were
resolved. In August, the Foundation
suspended the approval in a letter to Mr. Rutter who
is the Director of Howard County=s Department of Planning and Zoning pending the resolution
of the issues that were raised. The
staff was going to bring this back to the Board last month, but Howard
Alderman, the Newsomes= attorney who is at the Board
meeting today, requested that the Foundation delay this issue for a month
because he was not able to attend. So,
the Foundation staff encouraged them to attend today. Mr. Conrad asked if Mr. Newsome was going to
be here today. Mr. Alderman responded
that Mr. Newsome was not going to be at the meeting today.
Jim Conrad noted that Mr. Alderman would represent the Newsomes at this meeting.
He also noted that the relevant documentation is included in the agenda
material. Mr. Conrad asked Jeff Everett,
Howard County Program Administrator, if he wished to clarify how this issue
came about and answer any questions that Board members
might have on the matter.
Mr. Alderman asked the Board for a point of clarification,
stating that he had looked at the agenda and could not determine when the
hearing on this issue would begin. Mr.
Jones stated that the Foundation is having its Board meeting today. Mr. Alderman quoted a letter dated August 30,
2002, signed by L. C. Jones, said that a hearing on the tenant house was
scheduled before the Foundation on September 24, 2002, and all parties have
been notified. Mr. Jones responded that
the Ahearing@ is the Board meeting. Mr. Alderman said that he did not want to step
out of line. Mr. Jones reassured him
that Mr. Alderman was free to do anything or say anything.... Mr. Alderman noted that this reassurance was scarey.
Mr. Everett retraced the history of the tenant house
application with the County. The Howard
County Agricultural Land Preservation Advisory Board had recommended denying
the Newsomes= request for a tenant house based on the impact that the
location of the structure would have on the farming operation. The MALPF Board approved the request based on
its own judgment. Mr. Everett reviews
building permits that come to him on properties in agricultural preservation to
verify that they have the necessary approvals in place. When this building permit was reviewed, the
size of the structure sent up a red flag.
He brought it to the attention of MALPF.
Mr. Tassone asked what it was
about the house that did not meet local requirements for a tenant house to get
a building permit. Mr. Everett responded
that he could not comment on whether or not the proposed tenant house met the
zoning ordinance requirements since that was not his area of authority. He recommended MALPF consult with the Howard
County Office of Law and Department of Planning and Zoning.
Someone asked how many tenants one could get in a 9,000 square
foot living area. Mr. Jones responded
that, under federal regulations, you could get 10-15 tenants in a tenant house
of that size. Mr. Wilson noted that this
addresses the guts of the issue: is what Mr. Newsome wishes to construct at
this location on his property a tenant house or not? Mr. Newsome is not entitled to an owner=s lot under the Foundation=s rules and regulations because he
is a subsequent owner. He came to the
Foundation and asked to construct a tenant house. His farm is eligible under the size
requirement. He indicated what his
intent was. The Foundation approved a
tenant house. After that, the Foundation
started to hear things and the Board has come back to discuss them. This is the issue now before the
Foundation: is this really a tenant
house? Looking at language, we all play
with words. But, we want to be clear and
make sure that we did not create a situation where our client, Mr. Newsome, who
owns this easement property, isn=t in a situation where we start
bantering words back and forth a year from now.
We want to be sure that all the parties are completely clear about they
are allowed to do and not allowed to do.
We don=t want to be in court and all that
kind of stuff. When we see size issues
like this... this would be the largest property we've ever seen as a tenant
house. We need to be sure about who is
occupying it. It wasn't as explicit as
we had thought we would get. So that is
why we are here. We want to hear issues
from our easement holder about what their intention is.
Robert Wolf, Board member, stated that he would like to hear
what Mr. Alderman has to say.
Howard Alderman, Wayne and Melissa Newsome=s attorney,
introduced himself. He stated that he
was at the meeting to represent the Covered Bridge Farms, LLC, owner of the
easement which was recorded on January 4, 1984 B a key date B recorded in the land records of
Howard County liber 1225 - 743. He wanted to state for the record that he
came to this meeting with the understanding that this was a hearing. As a former land use planner, now as a
lawyer, the phrase "hearing" has a very definite meaning for
him. Learning that this is merely a
meeting, he will adjust his presentation accordingly.
Mr. Alderman stated that Jeff Everett indicated that under
local ordinance, this was presented to the local board regarding a locational analysis.
Mr. Alderman encouraged this board and Mr. Everett to reexamine Howard
County code section 15.501 that says the provisions of the local board are not
applicable to easements granted prior to May 1st, 1993. Therefore, the processes (?) and meetings of
the board locally only apply to easements granted prior to 1993 [sic]. So he asked the MALPF Board to disregard any
comments that were made relative to what that local board found.
Mr. Alderman continued that, secondly, size is of concern,
or the old phrase, "size matters."
There have been suggestions here and also in a letter which I saw for
the first time today in the Board's hand-outs, that the building
permit as submitted, the structure does not meet local requirements
primarily because of size. He intends to
address that.
In talking with MALPF's legal
counsel, Mr. Alderman stated that he was advised that absolutely no facts are
in dispute. It is application of the law. The MALPF Board is governed by the
Administrative Procedure Act. It is a
unit of State government. As such it has
rule-making authority, specifically granted to it by the Agricultural
Article. Under the Administrative
Procedure Act, once the Board has rule-making authority, the Board also has a
mandate, not permission, but an absolute mandate to adopt additional
regulations governing declaratory findings.
When an issue of law comes up, this Board has to have regulations in
place to permit a landowner to petition for a declaratory finding with no
question of fact. This has never been
done. Mr. Alderman stated that he found
himself sitting at this Board meeting with no guidance as required by State law
to address solely an issue of law. He
states that he will do his best. The
Board has not done what it was mandated to do as a unit of State government.
According to Mr. Alderman, the Board, at present, has no
statutory or regulatory authority to approve a tenant house. It is only if it is included in the easement
document. In this particular case, it
is, at page 746. The Board's review has
to be guided then by that. Since it has
no rules, standards, policies, or guidelines adopted regarding size, location,
or anything else, it has to apply the statutes and regulations in effect at the
time of the consideration for approval.
And what are those statutes, rules, and regulations? One, the tenant house has to be located on a
farm greater than 100 acres. Mr.
Alderman thought no one in the room would deny that Covered Bridge Farm meets
this requirement. Secondly, pursuant to the existing statute and the existing
regulation, the tenant house must be occupied by a tenant fully engaged in the
operation of the farm. No requirement
for this Board or any other can condition approval on a signed certification
that it is going to be occupied by a tenant farmer. What it says is that, as a matter of law, any
tenant house constructed has to be occupied by a tenant fully engaged in the
operation of the farm, and the tenant house cannot be separated from the
easement. He stated that there are no
other standards that the MALPF Board can apply.
Those are the adopted standards by the legislature and by the MALPF
Board.
The size of the tenant house, contrary to what was heard
today, does not matter, whether it is a 50 square foot house or a 10,000 square
foot house. There is nothing in law or
regulation that governs that. Mr.
Alderman noted that he had the unenviable task of questioning the authority of
the MALPF Board. The Board does not have
the authority to govern the size. Mr.
Alderman stated that apparently Mr. Everett has opined that this application
does not meet local requirements because of the size. In law, he calls this a Chinese Wall.
Mr. Alderman stated that apparently neither Mr. Everett nor
his Board is aware of a letter from Joseph Rutter,
dated August 28, 2002, addressed to Wayne Newsome, one of the members of
Covered Bridge, LLC, pertaining to the local requirements under existing
regulations for tenant houses. Mr.
Alderman read the letter into the record [available in the agenda
documentation].
Mr. Alderman continued.
Mr. Alderman took issue with the assertion that anyone could get a 9,000
square foot house for $500,000. It was
noted by Tom Filbert, Assistant Attorney General, that all of the figures,
including size and cost, that were provided to the Board were taken directly
from the building permit application, and were not assertions by the
Foundation. Robert Wolf, Board member, stated
that he would be willing to stipulate that the house is worth a lot more than
$500,000. Mr. Jones noted that the cost
of construction of the house is not at issue.
Mr. Alderman noted that the size of the house is not at issue
either. Mr. Conrad noted that size was
only an issue because of what it suggests about the likely occupant of the
house.
Mr. Alderman reasserted the position that, as a matter of
law, the only issues are: (1) Is it on a farm greater than 100 acres? (2) Will it be occupied by a tenant or
tenants fully engaged in the operation of the farm? and
(3) Can it be separated from the easement?
If any one of those three things fails to occur, there is a remedy. And that is, it is in violation of the law. And then the Department of Agriculture
certainly has every right to prove its case.
But until that time, you have all three conditions met. You have Covered Bridge Farms, LLC, saying
that a tenant farmer will be someone engaged.... We don't know who yet. We don't have a tenant farmer yet. Is it going to be someone? Yes.
Will they be fully engaged? Yes.
Mr. Conrad asked if Mr. Newsome is willing to state that it
will be a tenant farmer who is fully engaged in the operation of the
farm. Mr. Alderman responded that there
will be a tenant farmer.
Mr. Wilson asked if it was going to be Mr. Newsome. Mr. Alderman responded that Mr. Newsome is
not the tenant. Mr. Wilson asked if Mr.
Newsome would not live or reside in the house.
Mr. Alderman responded that Mr. Newsome would not be the tenant
farmer. [Laughter] Mr. Wilson stated that this is the
issue: Mr. Newsome is not entitled to a
residence under the Foundation's rules.
Mr. Alderman responded that Mr. Newsome already has a residence.
Mr. Wilson said that the letter he would be willing to write
would say that the tenant house seems like it fits and all; there are concerns
about the size, but the letter would have to say that Mr. Newsome will not live
or reside in this house because to do otherwise, in Mr. Wilson's judgment, would
mean that any subsequent owner in the MALPF program could come in to the Board
and say "I'm going to build a tenant house," and then go live in the
house.
Mr. Alderman stated that this would be a violation of the
law. Mr. Wilson responded then that Mr.
Newsome should write us a letter that he will not reside in this house and
admit that he understands that condition.
Mr. Alderman stated that Mr. Newsome, Covered Bridge Farm, LLC, will
comply with the law. Unless the Board
can show its authority to demand anything beyond what is required by law, it
won't happen.
Mr. Jones stated that it is required by law that a tenant
has to live in the house. Mr. Alderman
responded that a tenant would live in the house. Mr. Jones asked who the tenant is. Mr. Alderman stated that there is no tenant
yet; there is no house yet.
Mr. Wolf stated that the Board should just turn this request
down. If Mr. Newsome wants to go to
court, let him go. Mr. Jones stated that
Mr. Alderman is entitled to address the Board.
Mr. Alderman stated that back in March the Board gave
approval. Mr. Jones noted the approval
was conditional. Mr. Alderman stated
that both conditions were met, even though the Board had no right to condition
the approval as a matter of law, it did.
Mr. Jones responded that the Board can condition its approval to protect
the easement value and the easement itself.
Mr. Alderman states that he can find no authority for that. Mr. Jones responded that he thinks that the
Foundation could go to court and prove it.
Mr. Alderman continued that as a result of that approval and
complying with those conditions, Mr. Newsome, Covered Bridge Farms, LLC, acted
in reliance on that approval. It has now
been more than 30 days since the date of that approval. That approval has become final. He has spent funds on application fees, land
preparation, etc. Mr. Alderman can find
no authority whatsoever for the MALPF Board to reconsider a prior decision. There is no statutory nor
regulatory authority for the MALPF Board to reconsider a prior decision. For all of these reasons, to do so would be
arbitrary and capricious, certainly potentially detrimental to my client,
depending on what the Board decides, given my client has acted in reliance on
the Board. Therefore, Mr. Alderman asks
the Board to immediately take this item off the agenda and rely on its own
approval, unless someone can show Mr. Alderman (and he noted that he is proven
wrong regularly) the statutory and regulatory authority for the Board, first to
even approve the tenant house (but he can see that it's in the easement
document), but then to revisit that approval after it became final after thirty
days, he would love to hear it.
Mr. Alderman, responding to a question from Mr. Cohey, stated that the Board does not have the authority to
impose conditions, it says that the Board shall
approve. The Board is a creature of
statute. Outside the specific authority
given to it by the Legislature, it doesn't have any authority.
Joe Tassone, representing the
Secretary of Planning on the Board of Trustees, asked if the language
"shall approve" implies discretion, or does it mean the Board is just
a machine so, when it gets a request, it just approves it. Mr. Alderman responded that it means that, if
a request complies with the statute, there is no discretion.
Mr. Tassone noted that that is
precisely the issue. The statutory
element of interest is the intention to build a tenant house for a tenant or to
live in by the owner. Mr. Alderman
responded that the owner has said that the law will be complied with. That is all an owner has to show or assert,
and if he doesn't, shame on him and take enforcement action. Mr. Conrad asked when Mr. Newsome said that
he had no intention to live in the house and that the law would be complied
with. He cannot find it in the
documentation. Mr. Alderman repeated
that Mr. Newsome would comply with the law.
Whether Mr. Newsome says it or not, he has got to comply with the law.
Mr. Conrad stated that it is possible that someone asks for
an approval based on false pretenses.
Mr. Alderman interjected that was a leap he was not willing to
make. Mr. Conrad continued that this is
precisely what the Board needs to decide:
if the request was based on information that was not fully revealed or
stated or whatever.
Mr. Wilson restated Mr. Alderman's statement that his client
would fully comply with the law. He then
asked if Mr. Alderman would contend that Mr. Newsome can live in the house or
cannot live in the house. Mr. Alderman
stated that it was not up to him. He
will respond with the same answer that Mr. Nielsen gave him in a little
different fashion. If the Board wishes,
he will go out to his car and get a retainer agreement, and then he will be
happy to advise the Board. He is not in
the business of providing legal advice to the Board. The Board's counsel is. His client will comply with the law. He doesn't mean to be adversarial, but it is
adversarial.
Mr. Wilson responded that the role of the Board is to try to
make sure that the Board's client, who is Mr. Newsome, fully understands what
the Board's position is, such that the Board is not in the position to have to
take enforcement action due to a misunderstanding. The Board does this every month. People come and ask for all kinds of
things. The Board's goal is to try to
comply with their request within the Board's authority, but at the same time to
try to avoid anything that creates ill will between the Board and its clients. The Board's client is Mr. Newsome. The Board does not want to be in an adverse
situation with someone, so when they come and ask the Board for something, the
Board tries to the best of its ability to comply with the request but make sure
they understand the parameters of the decision.
There should be a clear understanding between both parties as to what is
expected. That is what he finds to be
the trouble: he doesn't want to find the
Foundation in a courtroom or feeling that Mr. Newsome has to get out of a
particular house because he has a legal contention about what is in the law
that is different from what the Board's is.
The Board has had all kinds of clients sign documents about lot rights
and all kinds of situations. And his
only goal is to make sure that both parties understand. He is not yet comfortable that Mr. Alderman's
client understands what the Board's position would be here, and arguing later
when he is in the house that he thought he had the legal right to live
there. This puts the Board in a very
difficult position. Mr. Newsome has gone
out and expended $500,000 to $900,000 and built a nice house, and the
Foundation is going to go to a judge and tell him to tear the house down? The Board doesn't want to be in that
position.
Mr. Wolf stated that he would like it if every farmer had a
9,000 square foot house for his tenant, but he doesn't think it=s in the cards, given the
agricultural business as he understands it.
It seems the Board should just turn down this request and let this man
go to court. If he has a great legal
case, let him win it there. Mr. Wolf
doesn't think the Board should screw up the tenant house policy by allowing
someone to build a house that might cost $1,000,000, find out he is in
violation of the law, and then have to go after him over it. The Board is saving him a lot of grief, and
he'd better spend his money on his lawyer before he spends all his money on a
house. Mr. Wolf moved that the Board
turns down the tenant house request and go on from there.
Mr. Alderman stated that there is no tenant house policy in
effect today, other than the adopted regulation. In the Administrative Procedure Act, any
policy, standard, or guideline must be stated in regulation duly adopted or
presented to the ALR. The Board's tenant
house policy in draft form, or submitted for potential consideration, or by
statutory introduction for the 2003 General Assembly, is all well and good, but
what applies is what the law is today.
Joe Tassone noted that he did not
want to interfere with Mr. Wolf=s motion, but asked if the Board is
being asked to make a decision today.
Mr. Jones responded that yes the Board should make a decision. Mr. Wilson stated that, he thinks he=s right, the Board wrote a letter
and withdrew its approval. The reason it=s on the agenda is because these
people want to go forward and move to the next stage which is approval by
Howard County. Howard County wants the
MALPF Board to rule first. If we rule
no, they don=t have an issue about the second
issue Mr. Alderman raised. Mr. Wilson
would like to have Howard County go first and make the decision about whether
Mr. Newsome has followed Howard County=s rules or not. That=s why one of the options we have is
to defer this decision and go see Howard County and see if we can come up with
something jointly at the same time so these people can get a decision one way
or the other and can move forward.
Mr. Tassone noted that was what he
was saying. Have the Board listen to
what everyone is saying today and then allow the administrative staff and legal
counsel to confer with their counterparts in Howard County. Mr. Wilson stated that was what staff had
recommended, but that Mr. Wolf has a right to make a motion and that is what is
being discussed.
Mr. Scott seconded Mr. Wolf=s motion. Mr. Jones restated Mr. Wolf=s motion as to totally reject the
earlier approval of the request by the Newsomes, and
if they go to court, fine. Mr. Jones
asked for a vote.
Mr. Filbert interrupted the taking of the vote by addressing
Mr. Alderman. There were some questions
that the Foundation asked Mr. Alderman that were not addressed. Mr. Alderman should have an opportunity to
respond, though he may refuse to respond.
Historically, when the Foundation reviews these matters, it makes an
assessment as to whether or not the tenant house will actually be occupied by a
tenant, that there is no subterfuge of the intent of the Program. And the intent of the Program obviously is to
preserve agricultural land. MALPF has
historically reviewed requests, whether an owner=s lot, or a children=s lot, or a tenant house. The Foundation has historically reviewed
these matters, just as it has in this case.
And the information that the Board is trying to glean from your client
is information that the Board needs to know to make an intelligent assessment. Mr. Alderman is arguing that the Board is
being arbitrary and capricious. Mr.
Filbert has no question that the only question the Board has asked is if this
tenant house, this house that Mr. Alderman has described, is going to be
occupied by a tenant, period.
Mr. Alderman responded that Aa tenant will be in the house, a
tenant fully engaged in the operation of the farm meeting the statutory and
regulatory authority will live in that house.@
Mr. Conrad asked, A...and
who is also not an owner of Covered Bridge?@ Mr. Alderman responded, A...and
who is also not an owner of Covered Bridge.@
Mr. Jones inquired if Mr. Newsome would be living in the
front owner=s house. Mr. Alderman responded that he doesn=t know where Mr. Newsome is going to
live. Mr. Jones reiterated his question
if Mr. Newsome would live in the owner=s house and the tenant would live in the tenant house.
Mr. Filbert stated that he is looking at the permit. The permit calls for a four-bedroom
house. It calls for six full baths,
three half baths, and a three-car garage.
This is a red flag, as Howard County aptly described to the Foundation,
as to whether or not this is truly a tenant house, as opposed to something
other than a tenant house. The Board is
trying to make an assessment if this is truly a tenant house that will be
occupied by a tenant; not storing any personal vehicles of Mr. Newsome in the
three-car garage; not being occupied by Mr. Newsome or any member of his
immediate family. That=s what the Foundation is trying to
make an assessment of. And the
Foundation is not getting that information from Mr. Alderman.
Mr. Alderman stated that he wanted to review the rules that
apply. He referred to section 15-01(17)(d). Covered Bridge
Farms, LLC, in its application will ensure that the construction of a tenant
house on the farm will not exceed one tenant house per 100 acres. And the land on which the tenant house is
constructed will not be subdivided or conveyed to an individual and will not be
conveyed separately from the original parcel, and it will be housing for
tenants fully engaged in the operation of the farm. Covered Bridge Farms, LLC, will comply with
the law and regulations, and that what must be said here today. That=s
the standard, and that=s
the only standard. Now the Board can
wish, and it can to talk about location, it can wish about something else, but
it doesn=t have the authority.
Mr. Conrad asked Mr. Alderman if the way that he defines a Atenant@ would include or exclude Mr.
Newsome in this situation. Mr. Alderman
responded that he does not believe, though the Board can certainly correct him, that Mr. Newsome and his wife qualify as tenants fully
engaged in the operation of the farm.
Mr. Conrad asked Mr. Alderman if, then, the Newsomes
will not live there. Mr. Alderman
responded that he had answered the question.
Mildred Darcey, Board member,
asked Mr. Alderman that, given that Mr. Newsome states that he fully agrees
that he will abide by the law, why won=t he give us a letter stating that he will not live in the
house? Mr. Alderman responded that he
would prefer to turn the answer around and ask her to show him the law that
requires it. Ms. Darcey
restated that she still does not understand why he is unwilling to provide that
letter.
Mr. Cohey noted that this is the
first time that the Board has been refused to provide such a letter in support
of a request for tenant house approval.
He wants to know if Mr. Newsome understands the policy of the Board that
he cannot live in the house.
Mr. Alderman answered that he, Covered Bridge Farm, LLC,
understands it. However, this is not a
policy because it has never been adopted as part of the Code of Maryland
regulations. Anyway, the Board can=t act because thirty days have
expired since approval. But this request
meets the statutory standard without further written indication. Whether it is Covered Bridge Farm, Millinex, you pick a name C Clark.... I don=t care who it is. If anybody violates the standards of the
easement or the standards of state law and regulation applicable to an
easement, they=ve got a long row to hoe.
Mr. Conrad stated that an alternative to Mr. Wolf's motion
that the Foundation just turn this request down would be to allow the
Foundation staff to discuss an agreed upon approach to this issue with Howard
County.
Mr. Alderman stated that he was surprised that the Board did
not have the August 28th letter from Mr. Rutter. Mr. Conrad responded that Mr. Rutter chose not to send it to the Board. Mr. Conrad added that he thought that no one
was cc'ed on the letter. Mr. Alderman stated that the Board has before
it a representative of Howard County Planning and Zoning on this very
issue. Mr. Jones responded that Mr.
Alderman would have to address his questions to Mr. Rutter. Mr. Alderman stated that he already has to
deal with Mr. Rutter on too many other things.
Lewis Logan, representing the Treasurer of Maryland, asked
Mr. Wolf if he would be willing to amend his motion to allow the staff to
interface with Howard County. This will
give them an opportunity to try to work it out.
Mr. Wolf responded that he was agreeable if the staff brings
back a recommendation based on what Howard County is doing and what the law
permits the Board to do. Mr. Cohey stated that he was also in favor of doing this and
then bring it back for a final vote.
Mr. Wilson stated that in effect that the Board would not at
this moment actually be rejecting the Newsomes= application. It would probably then be cleaner if Mr. Wolf
would withdraw the motion and then just do a motion for the staff to try to
work with Howard County and bring back whatever information they have to the
next meeting and then deal with the issue.
If they have to bring it back, and not just move forward once they find
something, there are any number of points that may
impact the Board's decision about how the Board would respond.
Mr. Conrad said he thought it would be awkward to say that,
if the staff cannot work out a satisfactory solution to reject the application,
because it leaves it up to the staff to decide what a "satisfactory"
solution is. That should be a Board
decision.
Mr. Wolf said that he didn't think the staff should make the
decision. What the Board needs to wind
up with is a decision that, what we do in this case is applicable in every
tenant house situation. If the Board is
going to approve tenant housing with six bedrooms, the Board needs to know that
is the way it's going.
Mr. Jones sought to clarify that the Board is back to
approval of staff recommendations to go back to Howard County. Mr. Wolf agreed to withdraw his motion.
Mr. Logan moved that the Board allow the staff to attempt to
work with Howard County to attempt to resolve this dilemma and bring that
information back to the Board. Mr. Cohey seconded the motion.
Mr. Tassone noted that he had been
going to make this same motion but he was also going to say that the Board
reiterate to Mr. Newsome a more explicit request of what the State is looking
for from him which we've managed in this last communication to somehow either
not communicate specifically enough or he answered in such a way that didn't
respond the way the Board wanted. The
Board needs to say, "Please sign a statement that says that you and/or your
wife will not live in this house."
Mr. Wolf stated that the Board should make sure that Mr.
Alderman understands that Mr. Newsome is not to move ahead with construction of
anything. Mr. Tassone
stated that Mr. Alderman doesn't feel that the Board has the authority to be
saying that. Mr. Wolf stated that if Mr.
Alderman thinks that he should move ahead, the Board is just wasting its
time. He can't move ahead if he's not
authorized to do so.
Mr. Tassone asked Mr. Wolf what he
suggests they should do then. Mr. Wolf
responded that he thinks Mr. Newsome should wait a month before he does
anything about any contract or doing anything to move towards the construction
of anything.
Mr. Tassone asked what suggestion
should be made to Mr. Alderman.
Mr. Filbert said that what Mr. Wolf is trying to indicate is
that there was a statement made by Mr. Alderman about his client taking some
action based on reliance of a previous Board option gaining approval. The Board would like to put on the record at
this point that the Board has taken a contrary position.
Mr. Alderman stated that the judgment has already
occurred. Mr. Filbert responded that
there is a further judgment.
Mr. Jones stated that the motion is to use the staff
recommendation.
Motion
#3: To approve the staff
recommendation that the Board allow the staff to work with Howard County to
attempt to resolve this dilemma and bring that information back to the Board.
Motion: Lewis Logan Second: Allen Cohey
Status: Approved
2. 13-04-02-01 DALY, Henry K. and Betty A. 24.29 acres
Mr. Cohey asked if there is not an
issue in excluding a child's lot at this point, given this district is in the
process of applying to sell an easement to the State and the appraisal
contracts have already gone out. Excluding a child's lot at this point affects
the appraisal value.
Mr. Conrad pointed out that this particular property was
delayed establishing a district through no fault of the landowner because of
questions concerning its size and contiguity to preserved property. Craig Nielsen, the Assistant Attorney
General, has stated that, to meet legislative requirements, a district
agreement only has to be recorded before the easement on the property is
settled.
Mr. Wilson noted that this depends on how far along the
appraisal has progressed. If the
appraisal is completed, then the Foundation may recommend to the Daly's not to
complete any exclusion of acreage from the district until the easement offer
process is complete. The Foundation
should try to let the appraiser know of this transaction to take it into
account.
Mr. Kelleher noted that this kind of action having to
contact the appraiser during the appraisal process tends to discredit the
State's reputation with appraisers who are already far down the road producing
their appraisals. Mr. Kelleher also said
that he thinks that the appraisers in this case may still be at a point that
they can be contacted legitimately to take this into account.
Motion
#4: To approve the request of
Henry and Betty Daly to exclude a one-acre child's lot from their district
property to construct a dwelling for their daughter, Barbara Ann Daly Floyd.
Motion: Judith Lynch Second: Joe Tassone
Status: Approved
Mr. Wilson noted that the Foundation will need to be more
careful about accommodating landowners' desires to change things that have an
impact on the value of the property and the appraisal process. There should be fixed deadlines that are
respected. Landowners should be informed
that after a certain point they cannot make changes to the status of their
property during the easement application process. Such a change could have an enormous impact
on some properties' values, such as in Baltimore County.
B. FREDERICK
COUNTY
1. 10-05-97-06 VALENTINE, Michael R. & Denise J. 214.41 acres
Motion
#5: To approve the request of
Michael and Denise Valentine to exclude a one-acre child's lot from their
easement property to construct a dwelling for their daughter, Amanda Rae
Valentine.
Motion: Joseph Scott Second: Allen Cohey
Status: Approved
C. GARRETT
COUNTY
1. 11-01-85-02 CUSTER, Melvin H. 383.37 acres
Motion
#6: To approve the request of
Melvin Custer to increase the size by .38 acres of a previously approved lot to
satisfy local septic requirements.
Motion: Robert Wolf Second: Allen Cohey
Status: Approved
. WASHINGTON
COUNTY
1. 21-04-90-06e HARP, James T. 157.34 acres
Mr. Wilson clarified that this is not a tenant house
request. He further noted that, even if
the Board wanted to grant this request, it does not have the statutory
authority to do so.
Mr. Scott spoke in support of this request, noting the
connection of the farm worker's connection to the property and to Mr. Harp and
the current financial situation of Mr. Harp that keeps him from being able to
finance the construction of a tenant house for the worker. Mr. Scott feels that approving this request
would not set a precedent for others to make requests, because he is donating
the lot to allow his worker to seek independent construction financing.
Mr. Wilson stated that the only lot that can be released
from the farm is one for the owner or his or her child. If it was a tenant house, that would be one
thing, but it is not. Mr. Wilson noted
that Mr. Harp also owns an adjacent property under county easement. He does not understand why Mr. Harp is not
seeking to donate a lot from this other property.
Elizabeth Weaver, MALPF administrative officer, stated that
there is an access issue that keeps Mr. Harp from donating a lot on this county
easement property.
Mr. Filbert confirmed that the Foundation does not have the
authority to grant this request.
Mr. Wilson noted that giving lots away from an easement
property could result in significant development on easement properties. This is not what the program should
allow. While Mr. Harp is being very
generous and helpful to his tenant, it simply can't be done.
Mr. Wilson noted that Frederick County could approve the
release of a lot from its own easement property across the street. The Foundation has had conversations with the
County, and the County understands that the Foundation simply cannot release a
lot for this purpose.
Mr. Jones noted that the Foundation Board is sympathetic to
Mr. Harp and would like to figure a way out for him, but it can't.
Motion
#7: To deny the request of
James Harp to donate an owner's lot to a farm worker.
Motion: Maurice Wiles Second: Joe Tassone
Status: Approved
2. 21-20-94-02 AUSHERMAN, Curtis W. & Francis J. 176.00 acres
Mr. Wilson confirmed that this request is to the benefit of
the Foundation because the landowners already have the right to exclude one
acre around each pre-existing house.
County septic requirements allow them to exclude an additional acre
around each dwelling. Thus, they already
have a right to exclude four acres. In
reality, then, they are only taking out two additional acres in exchange for
placing six acres into the district.
Further, the soils on the included acreage are better than the soils on
the excluded acreage.
Motion
#8: To approve the request of
Curtis and Francis Ausherman to exchange six acres of
district property for six acres of excluded land to meet local requirements of
a three acre lot size surrounding two pre-existing dwellings.
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
E. CECIL
COUNTY
1. 07-09-91-03 HILL, William D. & Janet E. 76.786 acres
Mr. Tassone noted that this
relocation is a good deal for the Foundation because it is a location with less
of an impact on the farming operation than the previous location.
Motion #9: