MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

MINUTES

November 25, 2003

TRUSTEES PRESENT: Lloyd C. Jones, Jr., Acting Chairman

Allen H. Cohey

Jerry Klasmeier, representing Comptroller Schaefer

Lewis Logan, representing Treasurer Kopp

Judith C. Lynch

James Pelura, D.V.M.

Joseph K. Scott

Maurice L. Wiles

Douglas H. Wilson, representing Secretary Riley, Dept. of Agriculture

Robert E. Wolf

TRUSTEES ABSENT: Mildred H. Darcey

Joseph F. Tassone, representing Secretary Scott, Dept. of Planning

OTHERS PRESENT: Erik Balsley, Maryland Dept. of Planning

Tammy Buckle, Caroline County Program Administrator

James A. Conrad, MALPF Executive Director

Tom Filbert, Assistant Attorney General, Dept. of Agriculture

Nancy Forrester, Assistant Attorney General, Dept. of General Services

Iva L. Frantz, MALPF Administrative Officer

Marian Honeczy, Maryland Forest Service (DNR)

Joy Levy, Howard County Program Administrator

Carla Martin, Kent County Program Administrator

Bill Powel, Carroll County Program Administrator

Donald Reuwer, Howard County landowner

Charles Rice, Charles County Program Administrator

Radhika Sakhamuri, Queen Anne's County Program Administrator

Chad Shrodes, Maryland Department of Planning

Elizabeth Weaver, MALPF Administrative Officer

Lloyd C. Jones, Jr., Acting Chairman, called the meeting to order at 9:40 a.m. at the Maryland Department of Agriculture building, Annapolis, Maryland. Mr. Jones asked guests to introduce themselves.

I. APPROVAL OF MINUTES/ADDITION OR DELETION OF AGENDA ITEMS

A. APPROVAL OF MINUTES, October 28, 2003:

Motion #1: To approve the minutes of the October 28, 2003, Board meeting.

Motion: Allen Cohey Second: Judith Lynch

Status: Approved

Motion #2: To approve the minutes of the October 28, 2003, Executive Session Board meeting.

Motion: Douglas Wilson Second: Maurice Wiles

Status: Approved

B. ADDITIONS OR DELETIONS OF AGENDA ITEMS:

James Conrad, Executive Director, stated that two items are to be added to the agenda and there is one deletion. A request for an easement amendment from Worcester County and a request for an easement amendment from Dorchester County will be added to the agenda. The Fry District (Item III.A.2) application will be deleted.

Mr. Conrad announced that staff is ready to make additional Round 2 offers with leftover money, but is waiting on an announcement of the Governor’s Land Preservation policy before moving forward. The offers may come to the Foundation Board in December, if the policy is announced by that time. Additionally, the staff has received the rankings of the GreenPrint properties and may bring those to the Board in December.

II. DISTRICT /EASEMENT AMENDMENTS

A. HOWARD COUNTY

1. 13-04-79-05Ces1 REUWER, Donald R. 213.14 acres

Request for a tenant house on easement property

Mr. Conrad presented the request of Donald. R. Reuwer for a tenant house for the use of a tenant fully engaged in the operation of the farm. Mr. Reuwer is a subsequent owner of the easement property. He is requesting the tenant house for Dale Proctor, who is currently employed as a farm manager of his horse operation. The operation, which has three full-time employees and several part-time employees, boards, breeds and races thoroughbred race horses, hunters and jumpers. Ms. Proctor’s duties include foaling, handling early morning feedings, and providing full time care for the horses.

The Foundation approved a tenant house on Mr. Reuwer’s property in January 1997. However, the house was not constructed. A relocation of that tenant house is not appropriate as the property at that time had a different configuration, as it contained only 100 acres. Mr. Reuwer has since acquired an additional 113.14 acres. According to Howard County, the current proposed tenant house will be clustered with existing farm buildings. Access will be through an existing farm lane. The request was approved by the local advisory board and conforms to local zoning regulations. The advisory board recommended that MALPF rescind the original tenant house approval.

While doing the research for this request, Howard County staff discovered that a different ownership configuration exists on the property than was indicated in the County Agricultural Land Preservation Program’s files. An agricultural subdivision of 100 acres was approved by MALPF on the property in 1995. The property was subdivided subsequent to the approval in accordance with the approval, i.e. into two parcels of 100 acres and 195 acres. However, the property was further subdivided in October, 1998 through an adjoinder deed transfer. Foundation approval was not sought for a subdivision of the property. 113.14 acres were transferred from the 195 acre parcel, reducing that parcel to 81.86 acres. The 100-acre parcel increased in size to 213.14 acres. The proposed tenant house is located on the 113.14 acres that were transferred to Mr. Reuwer in 1998. According to Howard County, the transfer did not go through the formal subdivision approval process because at that time the County allowed a change in a boundary line through an adjoinder deed transfer, which did not involve the Planning & Zoning Department. The County no longer allows property to be transferred in this manner. In the future, when boundary lines are to be adjusted to facilitate a transfer of ownership, a formal subdivision of the property must be completed. An exception could be made only if the property owner sought a waiver, in which case the request would be reviewed by Planning & Zoning to determine if a waiver was appropriate.

Foundation staff recommends approval of the tenant house based on the terms and conditions of the regulations governing tenant houses: The grantors have the right to construct, subject to the approval of the Foundation, houses for tenants fully engaged in the agricultural operation of the farm, provided such construction does not exceed one tenant house per each full 100 acres. Staff further recommends that the Foundation rescind the approval of the tenant house which was approved in January, 1997, but not constructed. Mr. Reuwer’s request does not indicate a need for two tenant houses at this time. Additionally, staff recommends that the Attorney General’s Office investigate the transfer of 113.14 acres of easement property by adjoinder deed transfer from Alston Specht (Long Valley Farms, Inc.) to Donald R. Reuwer, to determine if the subdivision, which was not approved by the Foundation, violates the terms of the easement and recommend appropriate action.

Mr. Cohey asked if the Board could defer taking action on the approval of the tenant house until the Attorney General’s Office looks into the matter of the illegal subdivision. Mr. Conrad stated that in discussing the matter with Nancy Forrester, Assistant Attorney General for the Department of General Services, it is clear that these are two separate issues and that the landowner clearly has adequate acreage to meet the requirements to request a tenant house. The issue of the agricultural subdivision is a separate issue and it was the former owner, Mr. Specht, who was the landowner at the time of the illegal subdivision.

Ms. Forrester stated that Mr. Reuwer has sufficient acreage to apply for the tenant house and that there is not any basis to deny the request. Mr. Cohey asked about the purpose of investigating the illegal subdivision if the Board was going to approve the request for the tenant house. Ms. Forrester stated that the Foundation does not yet have all the facts of the transfer of the property, and this is a separate issue anyway. The tenant house request is still a valid request. Mr. Cohey stated that he did not see the point if the Board was going to approve the request.

Mr. Wilson, representing Secretary Riley, Dept. of Agriculture, asked if the illegal subdivision would invalidate the easement. Ms. Forrester stated that it would not. The easement would still be in place. Dr. Pelura asked if this would be a high priority for the Attorney General’s Office. Ms. Forrester stated that once she receives the title work, she will be able to see what happened and go from there.

Mr. Wilson stated that the issue that must be resolved is whether the terms of the easement were violated. Tom Filbert, Assistant Attorney General, Maryland Department of Agriculture, stated that if it is found that there were no negative effects to the agricultural use of the property as a result of the agricultural division, the Board may simply have to ratify the subdivision. Mr. Conrad stated that he wished to remind the Board that Howard County has taken steps to ensure that this type of transfer of property is no longer allowed. Landowners will no longer be able to subdivide their property without going through the County and the Foundation.

Joy Levy, MALPF Program Administrator for Howard County, stated that Mr. Reuwer is in attendance and is available for questions. Mr. Reuwer introduced himself to the Board. He stated that when he purchased the property from Mr. Specht it was in a state of disrepair. He has since invested in the property, and it is in much better shape today than when he purchased it from Mr. Specht. Mr. Reuwer stated that he has a very successful horse operation on the property and that, especially because of the foaling, he needs to have someone on the property around the clock.

Mr. Wilson asked what type of farming operation is taking place on the adjoining property. Mr. Reuwer stated that he leases the property and uses it for hay and straw for his operation.

Motion #3: To approve the request of Donald R. Reuwer for a tenant house on easement property.

Motion: Douglas Wilson Second: Joseph Scott

Status: Approved

Motion #4: To rescind the original approval of a tenant house that was approved in January, 1997.

Motion: Judith Lynch Second: Maurice Wiles

Status: Approved

Motion #5: To direct the staff to work with the Attorney General’s Office to investigate the illegal subdivision of the easement property and come back to the Board with a recommendation.

Motion: Douglas Wilson Second: Allen Cohey

Status: Approved

B. HARFORD COUNTY

1. 12-04-90-11A SHIPLEY, Mark and Nancy 87.00 acres

Request to relocate a pre-existing dwelling on easement property

Mr. Conrad presented the request of Mark and Nancy Shipley to relocate a dwelling on easement property. Mr. and Mrs. Shipley are subsequent owners of the easement property. The current request is for the relocation of a pre-existing dwelling.

There is one additional pre-existing dwelling on the property. According to Harford County, the proposed lot location is in woodland. Access will be through an existing farm lane. The relocation request was approved by the local Agricultural Advisory Board as the Board found that the new location would have a minimal impact on the agricultural operation of the farm. The new location is consistent with local zoning regulations.

Staff recommends approval as the new location will have minimal impact on the operation of the farm. The relocation should be granted conditional upon the original site being demolished and the area being returned to agriculture.

Motion #6: To approve the request of and Nancy Shipley to relocate a dwelling on easement property.

Motion: Joseph Scott Second: Lewis Logan

Status: Approved

2. 12-05-90-04 NIMMO, Thomas G. & Isobel F. 186.53 acres

Request for a 2-acre child’s lot on easement property

Mr. Conrad presented the request of for a 2-acre child’s lot from Thomas G. & Isobel F. Nimmo. Mr. and Mrs. Nimmo are the original owners of the easement property. The current request is for a 2-acre child’s lot for the personal use of their daughter, Frances. According to Harford County, the proposed lot is to be located in a corner of the farm, along the property line. The lot will be accessed directly from the road. Two acres are required to satisfy county zoning regulations.

The request was approved by the local advisory board and conforms to local zoning regulations. If approved, there will be a required payback to the Foundation of $3,400.00 (2 acres @ $1,700.00), which is the per acre amount which the landowner received for the easement. Staff recommends approval.

Motion #7: To approve the request of Thomas G. & Isobel F. Nimmo for a 2-acre child’s lot for the personal use of their daughter, Frances, as presented.

Motion: Allen Cohey Second: Judith Lynch

Status: Approved

C. CAROLINE COUNTY

1. 05-05-87-34 THOMAS, Theodore D. & Mary L. 133.00 acres

Request to swap district acreage for acreage excluded at district establishment

Mr. Conrad presented the request of Theodore D. & Mary L. Thomas to swap district acreage for non-district acreage. Mr. Thomas and Katherine R. Quillen, Mr. Thomas’s mother, were the original owners of the district property. Mrs. Quillen transferred full ownership to her son. Currently, the property is owned by Mr. Thomas and his wife, Mary L. Thomas. The current request is to swap two previously excluded areas, comprising 11 acres for an 11-acre portion of the property that is currently under a district agreement.

At the time of district establishment, two tracts of land were excluded from the district, one for a future home for Mr. Thomas and one for a future home for Ms. Quillen. No homes were built on these sites. Additionally, 16 acres of marshland located across the road from the main parcel, was excluded from the district. The current request is to consolidate the 11 acres into one tract for a future home site for Mr. and Mrs. Thomas. The 16 acres of marshland will continue to be excluded.

According to Caroline County, the area to be swapped out of the district and the area to be swapped in are comprised of Class I and Class III soils. The original district comprised 100% prime soils. The proposed amended district would also contain 100% prime soils. The acreage swap was approved by the local agricultural advisory board and is compatible with local zoning regulations.

Foundation staff recommends approval because the area to be added to the district contains similar soils and the proposed swap would improve the agricultural operation of the farm as the proposed configuration would consolidate the area to be excluded.

Mr. Wilson asked when the district was established. Tammy Buckle, Program Administrator for Caroline County, stated that it was established in 1987. Mr. Wilson stated that it is therefore possible for the owners to terminate their district and come in under another district with a different configuration. Ms. Buckle stated that the County does not like to force the landowners to do that unless it is absolutely necessary. Ms. Buckle stated that not all of the 11 acres would be new to the district. In fact three of the 11 acres would remain in the district; it is more of a boundary line adjustment. Judith Lynch asked how many houses could be built on the excluded acreage. Ms. Buckle stated that four houses could be built. Mr. Conrad asked if four houses could have been built on the 11 acres in the original configuration. Ms. Buckle stated that four houses could have been built in the original configuration.

Motion #8: To approve the request of Theodore D. & Mary L. Thomas to swap district acreage for acreage excluded at district establishment.

Motion: Douglas Wilson Second: Maurice Wiles

Status: Approved

D. FREDERICK COUNTY

1. 10-17-88-02 FREE, Joseph C. & Eleanor H. 147.87 acres

Request for the exclusion of a 1-acre child’s lot from easement property

Mr. Conrad presented the request of Joseph C. & Eleanor H. Free. Mr. and Mrs. Free are the original owners of the easement property. The current request is for the exclusion of a 1-acre lot from the easement for the purpose of constructing a dwelling for the personal use of their daughter, Nancy C. Free. According to Frederick County, the proposed child’s lot is to be located in a corner of the property that is wooded. Access will be directly from the road.

The request was approved by the local agricultural advisory board and conforms to local zoning regulations. If the request is approved, there will be a required payback amount of $1,075.00. Foundation staff recommends approval.

Motion #9: To approve the request of Joseph C. & Eleanor H. Free for the exclusion of a 1-acre child’s lot from easement property for the use of their daughter, Nancy, as presented.

Motion: Lewis Logan Second: Judith Lynch

Status: Approved

E. CARROLL COUNTY

1. 06-06-79-06 DELL, Roger A. & Gregory W. 63.18 acres

Request for an owner’s dwelling under terms of HB131

Mr. Conrad presented the request of Roger A. and Gregory W. Dell for a 1-acre exclusion of from the easement under the terms of HB131. Mr. Conrad stated that this is the first request for an exclusion under the terms of HB131 that has come before the Board. Messrs. Dell are the original owners of the easement property. They are requesting a 1-acre exclusion for an owner’s dwelling for the use of a subsequent owner, under the terms of House Bill 131. Under the provisions of HB 131, which became effective October 1, 2003, a landowner who originally sold an easement may apply for an exclusion from the easement of one acre for an owner’s dwelling for the use of a subsequent owner. The excluded area may not be subdivided from the easement. Properties applying for an exclusion under the terms of this bill must meet the following requirements:

(i) a dwelling house did not exist on the property covered by the easement at the time of the sale of the easement;

(ii) the easement was purchased by the foundation prior to January 1, 1990;

(iii) the property covered by the easement contains 50 acres or more;

(iv) the property covered by the easement contains all of the land described in the deed or deeds of record at the time of the sale of the easement;

(v) the landowner who originally sold the easement has not exercised the right to 1 acre for the construction of a dwelling house pursuant to paragraph (2) of this subsection;

(vi) prior to the release, the landowner shall pay the State for 1 acre at the price per acre that the state paid for the easement; and

(vii) the property is located in Carroll County.

The Carroll County Advisory Board approved the request. The request conforms to local Planning and Zoning regulations. If approved, there will be a required payback to the Foundation of $965.45, which is the per acre amount the landowner received for the easement. Foundation staff recommends approval of the request based on meeting the terms of House Bill 131.

Judith Lynch asked why the acre to be excluded was located at the rear of the property. Bill Powel, Carroll County Program Administrator, started that the owner would have difficulty getting a perk along the front of the property, as it is a low-lying area with a stream running through it. Additionally, the owners wanted to place the access to the lot along the perimeter of the property.

Motion #10: To approve the request of Roger A. & Gregory W. Dell for a 1-acre exclusion for a dwelling for a subsequent owner under the terms of HB131.

Motion: Joseph Scott Second: Robert Wolf

Status: Approved

F. CHARLES COUNTY

1. 08-05-00-07C CHARLESTON PARTNERSHIP 244.06 acres

Request to allow forest conservation easement overlays on MALPF easement property

Charleston Partnership is the original owner of the easement property. The current request is to allow an overlay of forest conservation easements on MALPF easement property.

When the property entered the Program as a district, it was comprised of 318.38 acres. During a title search of the property, prior to easement settlement, it was discovered that 72.53 acres were under a forest conservation easement. Because the land under the forest conservation easement is preserved in perpetuity, MALPF reduced the acreage on which it would pay for the easement by 72.53 acres. Charleston Partnership wants to be able to continue to sell forest conservation easements on appropriate areas of the remaining 245.85 acres now under MALPF easement.

The Maryland Forest Conservation Act was adopted in 1991, with the intent to minimize the loss of forest land to development. Developers whose development disturbs forestland must offset the removal of the forest by either planting forest on the development site or by purchasing forest conservation easements from landowners elsewhere in the county in which the development takes place.

According to Charles County, this is one of the areas approved to be used as a forest conservation bank for future forest conservation easement sale. The request was approved by the local advisory board and is consistent with planning and zoning regulations.

Charles Rice, Charles County MALPF Program Administrator, in a letter to the Foundation, stated that in his opinion, “allowing the overlay easement will not adversely impact the MALPF easement. In fact, forest conservation easements will strengthen the properties protection because they are perpetual.”

MALPF staff contacted Marian Honeczy, State Forest Conservation Program Coordinator, Maryland Department of Natural Resources-Forest Service, to ask if the Forest Service accepted forest conservation easements on MALPF easement properties to meet the requirements of the Forest Conservation Act. Ms. Honeczy is checking with Dept. of Natural Resources legal counsel, and will communicate the outcome to MALPF once that determination is made.

After discussing this issue with legal counsel, the MALPF Director recommends approval of this request based on the following:

· The requirements of this forest conservation easement are consistent with the MALPF easement, continuing to allow harvesting of timber from the area under the forest conservation easement.

· This easement request is consistent with the policy adopted by the Board of Trustees on overlay easements allowing forest conservation easements over agricultural conservation easements as a management decision by the landowner with approval by the Foundation, and consistent with past forest conservation easement requests approved by the Board.

· Whether such an easement fulfills the requirements for mitigation under the Forest Conservation Act is a decision of individual counties and the Department of Natural Resources.

A further recommendation is that the Board direct MALPF staff to make official inquiry with the Department of Natural Resources, in the spirit of mutual cooperation, either directly or through the Department of Planning, as to the appropriateness of using forest conservation easements on MALPF properties to meet the requirements of the Forest Conservation Act. Although this particular issue is outside the regulatory purview of the Department of Agriculture, staff believes it should be discussed for a better understanding of how such easements can and should work together to increase the public good, and further the interests of the State in land conservation.

Mr. Conrad stated that it was not relevant to the Board’s decision whether or not the property meets the requirements of the Department of Natural Resources (DNR). Rather, the Board should concern itself with whether or not the request is consistent with the terms of the MALPF easement, which in this case it is. Mr. Conrad asked Ms. Honeczy asked if the property met DNR’s requirements for mitigation. Ms. Honeczy stated that she has several questions that she wished to present to the DNR legal staff but she had not yet been able to meet with them because the appropriate legal staff has been in court for the past two weeks.

Ms. Honeczy stated that it is unclear to her how the MALPF easements would work with the forest conservation easements. Mr. Wilson stated that the Foundation is concerned about overlay easements that would restrict the ability to timber the forest. Mr. Conrad stated that the landowner is allowed to timber the forest under the terms of the forest conservation easement. Ms. Honeczy stated one difference between MALPF’s easement and the DNR easement is that the forest conservation easement is perpetual. Mr. Wilson stated that DNR could ask the landowner to change the terms of the MALPF easement to make it a perpetual easement. Charles Rice, Charles County Program Administrator, stated that because the forest conservation easement is perpetual, it is not necessary to change the MALPF easement.

Ms. Honeczy stated that one question that is going to come up is whether MALPF will allow the planting of forest on MALPF property that is not currently in forest. She asked if the Board would consider this to be taking land out of productive agriculture because once it is planted, it has to remain in forest in perpetuity. Mr. Wilson stated that it is a crop and the Foundation is not going to tell the farmer he can or cannot grow certain commodities. While the Board may not consider this to be a wise decision, that is a management decision and the Board does not get involved in the management decisions of the farmer. Ms. Weaver, MALPF staff, stated that this is different than a normal farm management decision because, under the terms of a forest conservation easement, this land is restricted to forestry in perpetuity.

Mr. Wolf stated that he did not understand why this is a concern because MALPF does not prevent a farmer from converting cropland to forest or forest to cropland.

Mr. Conrad asked Ms. Honeczy how properties meet the requirements of the forest conservation easement and the Forest Conservation Act (FCA). Ms. Honeczy stated that it is the county who determines if the property meets the terms of the Forest Conservation Act. DNR reviews the county’s criteria and DNR approves its criteria. Mr. Conrad asked if any county does not allow the use of easement property to meet the requirements of the FCA. Ms. Weaver stated that Howard County does not allow the use of MALPF land or farmland preserved under the County Program to be used to meet the FCA requirements. It is allowed only on steep slopes or land that is similarly unsuited to productive agriculture. Ms. Honeczy stated that it is her understanding that Montgomery has similar restrictions in its easement program.

Eric Balsley, Maryland Department of Planning asked how much of the property would be covered by the overlay easement. Mr. Rice stated that all of the property would be covered by the easement. Mr. Rice stated that the County felt that because the forest conservation easement is perpetual, the County would benefit from the overlay easement. Additionally, due to the location of the property, it was a priority for forest conservation.

Mr. Balsley asked if the Foundation should consider discussing whether using MALPF properties for meeting the requirements of the Forest Conservation Act made sense. Mr. Conrad stated that it would be appropriate to discuss this, but in another venue.

Tom Filbert, Assistant Attorney General for Maryland Department of Agriculture, stated that Charles County needs to know that MALPF easements are perpetual and the argument that this provides greater protection is a false argument. The forest conservation easement does not provide any greater protection; all that it does is restrict the land to forest in perpetuity.

Mr. Wolf asked if the government was paying the landowner twice for the same land. Mr. Wilson stated that the State is not paying twice. Developers who wish to develop elsewhere in the county pay landowners for forest conservation easements to meet State requirements. Joseph Scott asked if the Board had just voted to allow double-dipping. Mr. Wilson stated that it may be seen as such, but it is no different than the policy that allows landowners to use MALPF properties for CREP contracts.

Mr. Wolf stated that he believed that the State should have only one easement on a property and he does not see the benefit of overlapping easements. Mr. Wilson stated the various departments have different goals and their requirements are different.

Motion #11: To approve the request of Charleston Partnership to allow forest conservation easement overlays on MALPF easement property.

Motion: Douglas Wilson Second: Maurice Wiles

Status: Approved

G. WORCESTER COUNTY

1. 23-04-02-03 HUDSON, Roger A. 60.20 acres

Request to amend a district to exclude acreage that was intended to be excluded at district establishment

Mr. Conrad presented the request of Roger A. Hudson to exclude district acreage that was intended to be excluded at district establishment. Mr. Hudson is the original owner of the district property. The current request is to amend a district to exclude an 8.66-acre area that was intended to be excluded at district establishment.

According to Worcester County, when the district application was submitted, an error was made in the District Agreement form and the Property Description form. The tax map which accompanied the application indicates an area that is cut off from the main parcel. The landowner intended to exclude this area from the district. No more than three lots can be created in the excluded area. The landowner has been informed that, should he apply to sell an easement to the Foundation in the future, the development potential of the excluded acreage will decrease the appraised value of the easement.

The district was approved by the Foundation on June 25, 2002. The proposed district amendment is intended to correct the administrative error. Foundation staff recommends approval of the district amendment, excluding an 8.66-acre area from the district agreement, as this was the intention of the landowner when he applied for the district, and this was verified by Worcester County staff.

Mr. Wilson asked if the Foundation staff was convinced that this was an administrative error on the part of the County. Ms. Weaver stated that staff had verified that this is indeed what had happened. This had happened when the staff at Worcester County was in transition and this detail was missed. It is apparent from the tax map which was submitted with the district application that an area had been cut off from the main parcel but it has not been labeled.

Motion #12: To approve the request of Roger A. Hudson to amend a district to exclude 8.66 acres that was intended to be excluded at district establishment.

Motion: Douglas Wilson Second: Maurice Wiles

Status: Approved

H. DORCESTER COUNTY

1. 09-01-90-08 LUTHY, John, F., III 220.79 acres

Request to swap easement property for non-easement property to allow a septic mound on a neighbor’s property

Mr. Conrad presented the request of John F. Luthy to swap easement property for non-easement property. This request was brought to the Board last month and is being brought back to the Board this month. Mr. Luthy is the original owner of the easement property. The current request is to allow a swap of 1,000 square feet of easement property for 1,000 square feet of non-easement property to allow the installation of a septic mound system on a neighbor’s property. The Foundation considered a request last month for this property. The request at that time was to allow the installation of a septic mound on easement property.

Mr. Luthy’s neighbors, Harold and Naomi Phillips, who have lived in their home for 18 years, were informed by the Health Department, that due to a high water table condition, they must install a septic mound system. The Phillips’ back yard is not of adequate size to accommodate the 10,000 sq. feet mound system. To allow sufficient area, a portion of the mound, 3,000 sq. feet, would need to be placed on Mr. Luthy’s property. The 3,000 sq. feet area is currently not being farmed by Mr. Luthy. According to Dorchester County, the Phillips have adequate space to fit the mound system in their front yard but for aesthetic reasons, they do not want to place it there.

At the October Board meetings, the Foundation’s Board of Trustees were informed by MALPF legal counsel that, although the Foundation has a policy to allow certain types of overlay easements, in this case because the land would be permanently removed from agriculture, granting the request would not be consistent with the purpose of the Program and Foundation policy. MALPF staff and legal counsel advised that a swap of land would be consistent with Foundation policy and there is precedence for the Board allowing acreage swaps of district and easement property under certain circumstances. The Board directed MALPF staff to work with Dorchester County staff to devise a way to allow the septic mound to be installed without compromising the goals of the Program.

The local advisory board asked County staff to determine a solution that would allow the installation of the septic mound but voted to forward the request to the Foundation without a recommendation. The proposed septic mound system is consistent with current zoning regulations.

Foundation staff has worked with Karen Houtman, Dorchester County Program Administrator, and Dorchester County Health Department to determine which areas of the Luthy and Phillips properties would best meet the needs of the Phillips without compromising the agricultural use of the Luthy property. The Health Department has agreed to vary the well setback to allow the swap to occur. Foundation staff recommends that the Board approve the acreage swap as there is precedence for the approval of such requests by the Foundation.

Motion #13: To approve the request of John F. Luthy, III, to swap easement property for non-easement property to allow a septic mound on a neighbor’s property as presented.

Motion: Douglas Wilson Second: Allen Cohey

Status: Approved

III. AGRICULTURAL PRESERVATION DISTRICT PETITIONS

Mr. Conrad presented the petitions to establish agricultural preservation districts.

A. KENT COUNTY

1. 04-03-04-03 GORDON W. & LEONE R. EATON REVOCABLE TRUST 209.00 acres

This property has 60.3% qualifying soils, two dwellings on the property; the property is primarily in woodland which is under a forest management plan. No acreage is being withheld. Staff recommends approval.

Dr. Pelura asked if a forest conservation easement could be sold on the property. Mr. Conrad asked Carla Martin, Kent County Program Administrator, if forest conservation easements could be sold on the property. Ms. Martin stated that she did not know. Dr. Pelura asked if Ms. Martin could find out. Ms. Martin stated that she would do so.

Motion #14: To approve the request of the Gordon W. & Leone R. Eaton Revocable Trust to establish an agricultural land preservation district.

Motion: Maurice Wiles Second: Lewis Logan

Status: Approved

IV. PROGRAM POLICY

A. Withheld Acreage

Mr. Conrad presented the guidelines for withheld acreage proposed by the MALPF Task Force. The MALPF Task Force’s “Interim Report for the 2003 Legislative Session” (January 2003) recommended that the Foundation’s Board of Trustees clarify its policy on landowners establishing districts excluding some of the acreage from the district. The Task Force recommended that the Board establish and begin using appropriate guidelines to address this issue, recognizing both that there are legitimate reasons to exclude land from a district and that the potential exists for commercial, industrial, or residential development to take place on excluded acreage that could diminish the state’s investment in the remaining acreage. No guidelines currently exist to guide the Board’s decisions when land is requested to be withheld from a district petition.

Because of the new lot exclusion policy adopted on the recommendation of the Task Force in the 2003 Legislative Session, the need for a clear policy on withheld acreage during district establishment is even more compelling. The maximum number of lots that can be excluded from an easement property has been reduced from ten to three. Landowners who do not need family lots will likely choose the unrestricted lot option, even more restrictive of development. Further, landowners with pre-existing houses on their potential district property will have a strong incentive to exclude them at district establishment or risk not being able to subdivide them in the future (or only being able t