MINUTES
TRUSTEES PRESENT:
Daniel W. Colhoun, Chair
Vera Mae E. Schultz,
Vice-Chair
Jerry Klasmeier,
representing Comptroller William Donald Schaefer
Patricia A. Langenfelder
Lewis Logan, representing
Treasurer Nancy K. Kopp
Judith C. Lynch
James Pelura
III, D.V.M.
Shirley W. Pilchard
Audrey E. Scott, Secretary,
Maryland Department of Planning
Robert F. Stahl, Jr.
Joseph Tassone,
representing the Secretary, Maryland Department of Planning
Christopher H. Wilson
Douglas H. Wilson,
representing the Secretary, Maryland Department of Agriculture
TRUSTEES ABSENT:
None
OTHERS PRESENT:
Tim Blaser,
Joe Brown III,
Tammy Buckle,
James A. Conrad, Executive
Director
Elisa Deflaux,
Talbot County Department of Planning
Nancy Forrester, Assistant
Attorney General
Elaine J. D. Hottel,
Sonja Ingram, Frederick County
Department of Planning
Ann Jones,
Philip Jones, Howard County
Farm Bureau and landowner
Joy Levy, Howard
Wally Lippincott,
Carla
Marsha McLaughlin, Howard
County Department of Planning
Ginger Myers, Howard County
Department of Economic Development
Craig Nielsen, Assistant
Attorney General
Lisa O’Brien,
Barbara Polito,
Tom Poss,
Amber Rhodes, Cecil
Charles Rice, Charles
Radhika Sakhamuri, Queen
Anne’s County Program Administrator
Donna Sasscer, St. Mary’s County
Program Administrator
Elizabeth Weaver,
Administrative Officer
Susan Wilson,
Daniel Colhoun, Chair, called the meeting to order
at approximately
I. APPROVAL
OF MINUTES/ADDITION OR DELETION OF AGENDA ITEMS:
A. APPROVAL OF MINUTES,
Motion #1: To approve the minutes of
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
B. APPROVAL OF EXECUTIVE SESSION MINUTES,
Motion #2: To approve the Executive Session
minutes of
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
Mr. Colhoun solicited a motion to recognize and to thank
the departing Board members: L.C. Jones,
the former Chair of the Board, and Allen Cohey.
Mr. Colhoun noted that he is just now starting to understand how hard
Mr. Jones had worked as Chair. Joe
Tassone, representing the Secretary of Planning, moved to recognize their
service. He noted that they served the
Board considerably longer than their designated time and, in their own way,
they each did something different and unique and provided valuable contributions
to the Foundation. Douglas Wilson, representing
the Secretary of Agriculture, amended the motion to include Mildred Darcey,
whose Board service also ended recently.
Motion #3: To recognize the service and thank the
recently departing members of the Foundation’s Board of Trustees: L.C. Jones, Jr., Allen Cohey, and Mildred
Darcey.
Motion: Joe Tassone Second: Vera Mae Schultz
Status: Approved
C.
ADDITION OR DELETION OF AGENDA ITEMS:
Mr. Colhoun asked if there were any additions or
deletions to the agenda. James Conrad,
Executive Director, responded that two deletions are being made: the Anne Arundel and
Mr. Colhoun said that the Board will start off this
meeting changing the format a bit. His
understanding is that, in past, certification applications have not been
discussed in a larger forum but have been primarily an administrative
procedure. This time the Board is
inviting a county,
Before starting the
Mr. D. Wilson mentioned that Mr. Conrad is
restructuring the program’s staff responsibilities. Previously, Ms. Frantz handled primarily
easement issues, and Ms. Weaver handled primarily district issues. Now both primary administrators will be
handling both of these issues; how the responsibilities will be distributed
remains to be worked out. That will help
the Foundation avoid the situation to which it is vulnerable today with a
knowledge vacuum when a long-time staff member leaves. The Foundation has too small of a staff to
absorb that easily. The Foundation is
also in the process of hiring a replacement secretary that will improve our
ability to be responsive on issues.
Tomorrow [Wednesday, October 27], the Department is
appearing in front of the Joint Program Open Space and Agricultural Land
Preservation Subcommittee which is chaired by both a member of the House and
the Senate, mainly updating them on the Governor’s comprehensive land
preservation strategy. This will be a
combined report of the Department of Planning, the Department of Natural Resources,
and MALPF which is primarily an update on how the Foundation is doing, where its going, and the impact of the loss of real estate
transfer tax dollars on easement applications, etc. The Foundation has a similar report in
November in front of Delegate Franchot’s House
Subcommittee of the Transportation and the Environment that it reports to. The Task Force Report is going to be out very
soon with its recommendations. Everyone
is interested in those recommendations.
Keep your eyes and ears on the newspapers, tv, and the radio, because MALPF is going to be
mentioned prominently over the next six months.
Mr. Wilson noted that MALPF is the granddaddy of
agricultural land preservation in the country.
V.
INFORMATION AND DISCUSSION
B.
Recertification of county program:
3.
The Certification/Recertification
Process:
Mr. Colhoun announced that the recertification agenda
item will be moved to the first item addressed by the Board. He has asked Joe Tassone of the Department of
Planning to present a guideline to Board members to understand what the
certification law and program is. And
then he will ask the representatives of
The importance of this matter is highlighted by the presence
of the Secretary of the Office of Planning, Audrey Scott, along with Mr.
Tassone. Mr. Colhoun introduced Joe
Tassone to the Board, noting that he will be wearing his “Department of
Planning hat” for this presentation, as opposed to his normal role as a member
of the Foundation’s Board.
Mr. Tassone noted that he had handed out two papers. The first is a one-page primer for the
agricultural certification program, as noted at the top of the handout. Then there is another stapled set of pages
with very small print headed “Maryland Annotated Code; Title V, State Planning;
Subtitle IV, Government Coordination, Cooperation, and Assistance in
Planning.” That is the law enabling the
certification program and it is then followed on subsequent pages by the
regulations governing the operation of the program. Board members will not need to refer to the
second stapled set of papers now, but this will make for very interesting
reading at their leisure. Mr. Tassone
will try to synopsize what that is about in as simple of terms as possible.
The agricultural certification program was established by
the legislature in the Department of Planning in 1989 or 1990. It is a program for the certification of
affected county agricultural land preservation programs. The Department of Planning and the Maryland
Agricultural Land Preservation Foundation jointly administer the program. The purpose and goals of the program are
pretty simple.
·
Maintain the contributions of farming to the
economy and a quality environment
·
Encourage county programs that complement
MALPF to preserve viable land, manage growth, and preserve environmental
quality
·
Ensure that increased county expenditures of
agricultural land transfer tax revenues are cost effective
The
agricultural land transfer tax is collected whenever agriculturally-assessed
land is sold for development. Counties
that are not certified keep roughly 33% of these tax revenues. 67% of it comes to this Foundation to spend
on easements. The share that counties
retain is also used for land preservation. Certified counties keep 75% of the
agricultural land transfer tax collected in their county; 25% of it goes to the
Foundation. The additional funds that
counties keep are called “certification funds” in the law and regulations. A certification period lasts two years. Counties must be recertified by both the
Department and the Foundation to continue.
To be initially certified, a county has to have goals that are
established in the comprehensive plan to preserve the land and the agricultural
industry that complement the Foundation’s four primary goals: providing sources of food and fiber for the
citizens of Maryland; controlling the urban expansion which is consuming
agricultural land and woodland; curbing the threat of urban blight and
deterioration from development; and protecting agricultural land and woodland
as open space.
The
county also has to have what is called in the regulation an “implementation
program” to achieve these goals. These
will include three major elements:
zoning and land-use management tools to protect agricultural land from
subdivision and development; programs to purchase development rights and
permanently preserve land; and economic assistance activities that support
productive agriculture and the industry.
A
county must also conduct a program evaluation to identify weaknesses in the
ability of the program to achieve the goals.
Program evaluation and development strategies allow a county to progress
towards its goals. The county must also
spend certification funds, the extra money they get from being certified, and
they must also spend something called “county qualifying funds” on easements
and related financial enhancements.
County qualifying funds are basically county money that counties must
put up and spend to be eligible for certification.
So,
there is a set of requirements: what are
the goals? what
is the plan to implement them? what are the elements of the plan? and then, how does
the program evaluate itself? what is the strategy to move forward? and, what is the
spending element? During the application
review process, the Department of Planning and the Foundation must agree that
the county meets the requirements for the county to be certified.
A
county has to be recertified every two years to continue. For recertification, a county must
demonstrate effectiveness in each of the three major elements; the Department
and the Foundation must agree that the program is effective; and the Department
must approve the county’s updated program development strategy to correct
weaknesses.
How
does the certification process itself work?
The program is designed to achieve its goals by helping counties
identify and overcome shortcomings in the ability of their implementation
programs to achieve the State and county preservation goals. Certification requirements are difficult for
most counties to meet. First,
subdivision and development are difficult to control effectively. Development pressures change with time as do
land values, easement prices, and landowner attitudes. All of these factors can make it difficult to
cost effectively achieve conservation goals within a county or in some parts of
the State. In recognition of these
difficulties, the bottom line for the certification program and the recertification
process is for counties to take the steps necessary to make it possible to
achieve goals cost effectively in the long term. That’s the purpose of the program evaluation
and the program development strategy required of each county: to create a dialogue between the State and
the county in which shortcomings and the ability of the county program are
identified and then corrected over time.
That’s the forward motion required.
Each
time a county is certified and recertified, the State reviews the county’s
program evaluation and its program development strategy and communicates its
understanding of the priority steps that should be taken to improve the program
during the next certification period. In
other words, we look at what they provide us and send back something that says,
“yes, you’re recertified or certified for this period, and here is how we see
the important things that have to be done to move your program along, and that
becomes part of the expectations for the next certification period of the next
two years.” Taking those steps in the
program development strategy is an important factor in the next certification
review. If the county is not correcting
shortcomings, recertification can be denied.
Thus far, each certified county has been willing and able to improve
upon shortcomings to satisfy requirements.
That is a conceptual synopsis of the certification program and process.
Mr.
Tassone was asked how many counties are currently certified. Mr. Tassone replied that 16 are currently
certified. Mr. Conrad noted that some of
the counties which are not certified have chosen not to seek certification
because the additional money they would be able to keep does not justify the
effort they would have to go through to meet certification requirements. These are counties that do not have much land
converted from agricultural to other uses.
Mr. Tassone was asked if any of the counties which were certified had
failed to be recertified. Mr. Tassone
responded: “no.”
Mr.
Christopher Wilson, Trustee, asked for clarification as to the role of the
Foundation’s Board in the certification process. Mr. Tassone responded that the “Department”
refers to the Maryland Department of Planning, and the “Foundation” refers to
the Board of Trustees as its decision-maker.
Audrey Scott, Secretary of Planning, wished to clarify that, for
recertification, the Department and the Foundation must agree that a program is
effective. What isn’t said is that if
the Department and the Foundation don’t agree, then recertification or
certification is not approved. So there
must be agreement by the MALPF Board and the Planning Department. Mr. D. Wilson noted that it is a joint
process where there are two different bodies of government reviewing different
aspects of what is going on coming to what is hopefully a common conclusion
that the jurisdiction is doing what is necessary to make agriculture feasible.
Mr.
Colhoun welcomed the participants from
Joy Levy, Howard County
Program Administrator, thanked the Board for allowing
Ms. Levy stated that
The County utilized over the years what has been
called a toolbox approach to preservation.
There are three different purchase of
development rights programs.
Lastly, one of the things recognized by the County
is that there is a broad range of agricultural activities taking place in the
County that should be recognized and allowed on County easements. The County made recent changes to its zoning
regulations that actually support the business of agriculture to allow
value-added processing, direct farm marketing, and agri-tourism. The Board will hear more about this from
Ginger Myers. MALPF is also looking to
expand allowable uses on easement properties.
In short,
Ms. Levy presented the map of land preservation in
There are two different zoning districts in the
Rural West: the rural conservation or
the RC, and the rural residential or the RR.
The RR area runs through the center of the map, with a little bit of RC
to the east. Most of the RC is in the
far west. The RC zoning district is the
targeted area for preservation. That is
the density sending area. A landowner
has to be in the RC area to be able to send density. The RR area is the area that is pretty much
the area targeted for residential growth because it already had quite a bit of
it when the zoning classification came into being. That’s the priority zoning classification for
receiving density.
The recertification report covers fiscal years
2002, 2003, and 2004. During that time
period, there were a total of 20 new easements encompassing 770 acres. In FY 2005, not covered in the report, there
have been two density sending properties, one of which was 125 acres. Fairly large parcels are coming in.
Concerning future strategy, everyone recognizes
that
The County has seen an increasing importance in the
density sending parcels; they do protect the whole farm, even if the landowner
is only sending one or two density units.
The County requires, when an easement is placed on a property from the
DEO, the restriction is on the entire property.
Another advantage to this mechanism is that developers are paying for
preservation; no public funds are used.
Ms. Levy introduced Ginger Myers, agricultural
marketing specialist, to talk about the business of farming in
She works with existing enterprises and markets, but
also tries to give birth to some new enterprises, such as the very popular
produce subscription service and agri-tourism
enterprises, and a number of new farming enterprises that were grown through a
program she does with County extension:
the beginning farmers series. She has had those classes three times in the
County and they have been booked solid.
She is scheduled to do the beginning farmers series again in the fall. There is a continued interest in
She also works to develop and implement programs
that help forge and strengthen the link between the rural and urban
communities. Some of that has been a
local branding program, “
It may seem to be a paradox that she is before the
Board to tell it that agriculture not only survives in
According to a county-to-county economic impact
estimates study of resource-based industries in the State of
She collected some new incomplete data this year on
the impact of the farmers’ markets in
Marsha McLaughlin, Director of the Howard County
Department of Planning, presented material on growth management as an important
component of how one deals with land preservation goals and development
pressures – a difficult issue because Maryland is a very small state. There is no place in the State that is not
subject to some degree of development pressures – development pressure is
increasing everywhere.
The green areas on the map are the preservation
areas of the County. They need to be
updated because there are some additional areas. One of the issues
One of the factors promoting
People move to
Ms. McLaughlin concluded by focusing on the idea
that farming is alive and well in
Ms. McLaughlin notes that it is still important to
be recertified even though
Mr. Colhoun noted that two people in the audience
are part of the agricultural industry in
Mr. Philip Jones, Howard County Farm Bureau, noted
that he didn’t want to drive all the way down on such a pretty day without
saying something. He stated that many in
Mr. Colhoun asked the Board if any members had any
questions for the
Secretary Scott thanked the
Secretary Scott continued, seeking to clarify that
the County would not be recruiting any new MALPF easements. Ms. McLaughlin responded that what Ms. Levy
said is that, when people come to the office seeking information about
preservation options or ask specifically about MALPF, complete information will
be provided about MALPF as an option.
However, the intent is not to actively seek new MALPF easements because
of the concern expressed over the high acquisition costs. The County will not be actively seeking to
secure its MALPF allocation. Secretary
Scott stated that there is no intent on the part of anyone at the Department of
Planning to limit the MALPF program and the active encouragement pursuing the
decision by farmers to enter the program.
Secretary Scott asked if anyone on the
Secretary Scott asked about what other alternative
enterprises other than retail stands are the farmers being encouraged to
develop. Ms. Myers responded that many
have on-farm marketing, mixed marketing with farm stands plus
community-supported agriculture where farmers sell shares to consumers. A group that delivers fresh produce to the
County offices was recognized as one of the winning entrepreneurs for a State
award. Also, the County encourages more
on-farm value-added processing activities such as jams, cheeses, etc. Of course the equine industry is developing;
the American Olympics dressage team trains in
Secretary Scott asked if the County sponsored any
programs on County-owned properties for stands or other marketing
activities. Ms. Myers responded that two
of the three farmers’ markets are hosted by the County library system. The only new farmers’ market to start this year
is located at Glenwood Library and is a Saturday market. Library patrons and farmers’ markets patrons
create a good blend. The third farmers’
market is on a church parking lot. So
much of this is community development work.
Secretary Scott addressed Ms. McLaughlin about the
issue of the position of elected officials and down zoning, noting that Ms.
McLaughlin had said that this was being addressed through the TDRs and the limit on the number of permits per year. But 250 new lots per year in a rural area
eventually are only delaying the inevitable, and don’t really eliminate sprawl
or development. It is not a preservation
tactic. Secretary Scott says she
understands that this may be one approach when faced with difficulty in down
zoning and appreciates the effort, but she wants to put a reality check on this
approach. It is only a short- term
solution.
Ms. McLaughlin responded that she certainly
understands this perspective. She thinks
that the County’s focus is that by reducing the number of allocations,
developers are not always very patient.
They can get a green light to build if they go back to the Rte. 1
corridor. With a “go-slow” light in the
rural area, the builders’ energy will deflect into areas where development is
made easier. Also, it means that what
they are willing to pay people who are interested in selling will be less or
that sellers will not get the money now, and won’t be paid anything more than
option money until the proposed development passed the public utilities test
and receives the allocation. If the
County or the State can write a check or use the installment purchase program
today, while the developer won’t write a check for three or four years, it
levels the playing field in terms of having a fair shot at getting an
easement. The County’s installment purchase
program worked terrifically in the initial years because interest rates were
high and capital gains were a real threat.
As capital gains impact has been reduced and interest rates have gone
down, it’s not been as competitive as it once was compared to a developer
writing a check. But if the developer is
delayed in writing a check for several years, that
delay can help the County compete.
In referring to the material passed out to the
Board, Bob Stahl, Trustee, noted that the western rural area comprises about
90,000 acres. Of this, 33,000 acres have
been preserved. 9,500 acres were
uncommitted of parcels of 20 acres or larger.
If one takes that parcel size up to 50 acres, the minimum size
requirement for the program for standalone parcels, the number of uncommitted
acreage shrinks dramatically, and in terms of eligibility for this program,
that is a very insignificant number of acres remaining. Ms. McLaughlin responded that the number
would be about 4,500 acres of land in parcels of 50 acres or greater. Mr. Stahl observed that this is less than 5%
of the total acreage. Mr. Stahl noted
that, according to the chart, the MALPF program went away for
Mr. Colhoun
asked Mr. Conrad to give the Foundation staff comments and recommendations to
the
·
Since the 1990 General Plan, the overall preservation goal has been
30,000 acres, comprised of agricultural, environmental, and other easements.
·
The General Plan 2000 reconfirmed the 30,000-acre total, but added that
25,000 acres of that would be agricultural easements.
·
The County is now saying that it will achieve over 20,000 acres in agricultural
easements, but not to expect to reach 25,000 acres. The overall preservation goal of 30,000 acres
is still in place.
Given the
change shown on the chart of the land that has been preserved and how much is
left to be preserved, it makes sense to shift to emphasize the economic
development activities in the agricultural sector to guarantee that the land
that has been preserved remains economically viable. Because of the change in local conditions and
the shifting emphasis of the County’s
efforts towards economic support of the agricultural sector, staff is not
making a recommendation to recertify or not to recertify. Foundation staff does not have the expertise
to make judgments about planning; that will be Mr. Tassone’s
part of the evaluation. Staff is
focusing on the question of whether it is an effective program from the
agricultural preservation perspective, or not.
From that perspective, it comes down to a question of current conditions
and whether it makes sense at this point to shift efforts to support the
economic viability of the properties, because changing the zoning or increasing
funding will not make much of a difference.
The County has pretty much reached its acreage goals for farmland preservation. Realistically, there is not going to be a
substantial increase in easement acquisitions in the future. The recommendation to the Board, then, is
that the Board will have to decide subjectively is there something that can be
called an effective program here? Every
county will eventually reach the point where they will only have a limited
number of acres left to protect. Is that
justifiable cause not to recertify a county?
At that point, how does a county meet the requirement of running an
effective program?
Lewis Logan, representing the State
Treasurer, asked about the likely effect denying recertification might have on
the County and how it might be viewed in the farm community. Mr. Conrad responded by saying that Ms.
McLaughlin has a point that there may be a negative impact on how the 25-year
termination clause is viewed. In terms
of the monetary impact, it won’t have a major impact. The County has the resources to service the
debt; it is not a large amount of money for
Secretary Scott stated that it is critical
to understand how the County got into this situation where there is no land
left to be preserved. That is something
that needs to be taken into consideration.
This is not something new, but is something the Department of Planning
had been dealing with long before she arrived, and the Department’s
recertification recommendation is not a new one. Mr. Conrad noted that he does not have the
historical involvement with
Mr. Colhoun asked Mr. Tassone to present
the Department of Planning’s evaluation of
The status of
The graph that was handed out shows two
different situations. On the right side
of the orange line in both of the images is the County development district –
priority funding area. On the left side
is the conservation district. The number
of dots in the rural zoning district to the left side of the line is just the
indicator of the degree to which residential development and population are
intruding into the agricultural areas.
This should give the Board a frame of reference when talking about
fragmentation of rural areas by development and consumption of land by
development. It has to do with how many
of these residential lots are there.
This also reduces the potential for contiguity of rural land in the
agricultural zoning districts on the remaining uncommitted land. This is expressed in terms of what percentage
of what is left consists of parcels greater than 20 acres in size. This is just confirmation of what has already
been said about how much acreage is left in 20 or 50 acre parcels.
The first two graphs give a cumulative
picture or status over time of what is happening. The third graph shows what is going on
recently. This graph shows what has been
going on in the 1990s, and shows what percentage of the land in the
agricultural zoning district has been developed with residential development in
that decade. That is done by taking the
acreage of parcels on which development has taken place and which are 20 acres
or less in size to see what percentage that is.
The Board can, thus, see on these three measures – fragmentation,
contiguity potential, and recent development – the differences between the
three metropolitan counties of Howard, Montgomery, and Baltimore.
Graph four shows what percentage of the
land has been preserved in the agricultural zoning district. These three counties were among the top four
in the State, along with Calvert, when this graph was done. Montgomery and Howard are still the first
two, followed by
Graph five shows the per acre easement
costs in agricultural zoning districts based on the Foundation’s annual reports
of 2001, 2002, and 2003. It shows the
per acre values in Howard versus
Between
Mr. Logan asked Mr. Tassone if alternative
policies were suggested to
The problem is that the County has not
addressed or corrected the fundamental weaknesses that, in the Department’s
view, make it infeasible to cost-effectively achieve the goals of the
Foundation and the certification program.
As noted in a
The program would have been denied
recertification in 2001 had the former Governor’s Office not halted the
recertification process in response to an appeal from the Howard County
Executive. This occurred after the
Department made a specific recommendation about a different way to subdivide
parcels for cluster subdivisions, whether they are on density exchange option
land or clustered land, that would substantially reduce build-out in the rural
west (that means the number of lots that will ultimately go there) without down
zoning. It was after the Department made
that suggestion that the
The decision to certify or deny
recertification is not a judgment about what
The decision is about protecting the
investment in the goals of this program which was looked at when the Board went
over the primer. The question is whether
it is feasible for a statewide program with limited funds to accomplish its own
goals to contribute cost effectively to preservation in a metropolitan county
that has taken the strategic approach that
Mr. Conrad stated that Mr. Tassone has
unfortunately misunderstood what he had said about “every county will end up
here.” He was not saying that they were
going to end up being fragmented. He was
not saying that they are going to end up with a lack of contiguity. He was saying that counties are going to
reach a point that they will be approaching the goals that they set. So he takes exception to Mr. Tassone’s characterization of what he said. Also the idea that it is ludicrous to say
that down zoning won’t make a difference is not what he was saying. He did not say this explicitly, but the
implication of what he said is that, even if
Mr. Colhoun asked for any questions from
the Board. Mr. Logan asked the
Mr. Logan followed up by asking what the
response was from the County in 2001.
Mr. Tassone answered that the response from the County was a
communication from the
Mr. Colhoun solicited any final questions
on this issue to the Department of Planning or
Mr. C. Wilson noted that
Mr. Stahl asked Mr. Tassone if the
recommendation of the Department of Planning is the denial of
recertification. Mr. Tassone responded
that, since recertification is a joint and dual process, meaning that the
Foundation has a responsibility to make a decision and the Department also has
a responsibility to make a decision, he has always followed the practice of not
recommending to the Board what it should and should not do. In this case, the Department has clearly laid
out the values and the process it has used to get to where it is. Mr. Stahl sought to clarify the relationship
between the Board’s decision and the decision of the Department of Planning. While Planning is not making a recommendation
to the Board, is Maryland Office of Planning’s position that they will deny
certification on Planning’s side? Mr.
Tassone responded that the Department of Planning is waiting for the
Foundation’s decision.
Secretary Scott noted that she inherited this
issue. She feels strongly that the
Department of Planning has the obligation to review the facts and base its
position on factual information and the law.
That is what she has charged Mr. Tassone to do. She has confirmed that this has been
done. It is a pretty straightforward
factual case. Planning does that in
every recertification and does it every two years. The Board should note that
this started back in 1996 with the first letter to
When she became Secretary, she sat down
with the key Departmental people and asked about pending issues. This was number one on the list of issues that
needed to be addressed because recertifications need
to be addressed every two years. There
had been quite a hiatus for
Secretary Scott asked the representatives
from
Secretary Scott noted that the Department
of Planning also expected the acquisition of easements
to continue at that rate, and that this is part of the issue. Ms. McLaughlin responded that the point had
already been made by Mr. Conrad and by the
Mr. Colhoun noted that no one on the Board
is trying to say that. The Board has
heard a lot today on this issue to be considered. He would like to recognize Ann Jones who
wishes to speak. Then the Board can let the
matter rest for the time being and let the Board digest everything and come
back with questions or additional comments before the decision is made.
Ann Jones, Howard County landowner, stated
that she is talking today without any of her professional “hats” on, but as an
owner of a 320-acre farm that has been in the family for more than 200
years. It is very important that MALPF
easements stay permanent. It is very
important that the program is protected.
She agrees with Mr. Tassone that the issue at stake is determining what is the best way to ensure that the program remains strong;
what is the best way to guarantee that the easements stay strong. She thinks what is evident is a difference of
opinion about the best way to keep the program strong. Should it be to meet the rather squishy
statutory requirements or to look at a farming population where some have said
what is being done with agriculture in
Tammy Buckle, Program Administrator for
Mr. Colhoun thanked the representatives
from
II. DISTRICT/EASEMENT
AMENDMENTS
G.
1. 10-84-05 HOTTEL, Elaine J. 312.85
acres
Request for an agricultural subdivision of easement property.
Mr.
Conrad presented this agenda item. This
is a 312.85 acre parcel. This is a
request for an agricultural subdivision of the farm. Ms. Hottel is a
subsequent owner of the easement property.
The proposed subdivision would create one approximately 50-60 acre
parcel and a second parcel, approximately 252-262 acres. Both resulting parcels will continue to
qualify for participation in the program based on the quality of their
soils. Ms. Hottel
has tried to sell the property for some time as one parcel. However, a large (12,000 square feet)
historic pre-Civil War era house makes the price of the farm unaffordable to
most farmers. She is proposing to divide
the property to sell it to two prospective buyers. The prospective buyer of the smaller parcel,
which contains the house and farm buildings, would use the property for a horse
operation. The buyer of the larger
parcel, which is primarily cropland, would use it as a dairy operation. The buyer, who is a local farmer, intends to
construct a modern dairy facility on the larger parcel.
Ms.
Hottel has recently discovered that two small parcels
that are part of the farm property are not covered by the easement (this has
been verified by AAG Nancy Forrester).
In 1900 the two small tracts (approximately four acres) that contained
whiskey-making buildings were divided off from the property. Ms. Hottel is
proposing to add the small tracts to the easement property in return for the
approval of the subdivision.
This
request was approved by the local advisory board and conforms to local zoning
regulations. The staff recommends
approval of this request because it meets minimum qualifications for
agricultural subdivision and both parcels can support viable farming
operations. Also, staff feels that the
addition of the two parcels to the easement will help protect the farm from
additional development in the future.
Tim
Blaser, Program Administrator for Frederick County, introduced those with him
available to answer questions on this request:
Joe Brown, a local surveyor and member of the Frederick County Planning
Commission; Elaine Hottel, the current landowner; and
Tom Poss, the original landowner who put the property
in an agricultural district (also the realtor involved in the sale).
Mr.
Blaser noted that this was one of the first farms that went into preservation
and is located within the largest preservation area in the County. This was one of the first agricultural
subdivision requests coming to the County, so the County has taken a very hard
look at the request and whether it should be approved. However, because of the house, the large
barn, and the lots found on this property that could be developed, the County
felt that there were unique circumstances that argued in favor of
approval. An issue that has come up is
whether a house could be constructed on the 260-acre division. The current and
prospective landowners have been advised that what they would be allowed to do
is to have a tenant house for those actively engaged in the agricultural
operation. However, they would like to
address this. He notes that no house has
been approved at the local level. This
was not asked for or reviewed by the local advisory board, though he would
anticipate that such a request may be made in the future. The landowners can address whether there can
be a house for someone other than a tenant.
Mr.
Brown addressed the Board, stating that this farm lies in the Burkettsville area which is in the southwestern corner of
Elaine
Hottel, current landowner, noted that anyone with a
dairy operation wants more than a tenant on the property because he or she
needs to be on the property to oversee it.
Dairy operations require on-site attention. Being a 260-acre parcel, it is a good size
parcel. In this area, people do embryo
transplants and other high-tech activity for dairy. Also, this farm had almost all Class I and
Class II soils, so instead of requiring more land to do the operation they
want, they can do a good operation on a smaller sized acreage. She lives on the farm now. A normal farmer doesn’t want or have to live
in a 12,000 square foot house. That’s
why the smaller parcel with the large house lends itself to a horse operation.
Mr.
D. Wilson stated that he really doesn’t have any problem with the agricultural
subdivision request. The Board has
allowed similar requests. There are
certain operational issues here. The
preference is to keep farms as large as possible, but the resulting parcels
will still be in preservation, and not just a 20-acre subdivision. His issue is with these two additional lots
and the question of building a house on the proposed dairy farm. The Board has no latitude to allow the new
owner, as a subsequent owner, to build a house.
That’s no reflection on the owner and what she is trying to do; it’s
just not something that is allowed under the statute. The tenant house solution is not necessarily
a good solution. While the buyer would
be fully engaged in the operation of the farm, the guidelines are that a
subsequent owner cannot be a tenant. A
definition of tenant is ‘someone other than an owner.’ That puts Ms. Hottel
between a rock and a hard spot in how she can configure her property sale
without a house on it. He is trying to
set out very starkly the parameters that the Board must operate under. In the way it’s configured, the owner needs
to be aware that, if new owners came to the Foundation to request a lot to
build a house or a tenant house in which they planned to live, the Foundation
would have to tell them “no.” The Board
does not want to put its landowners in a situation where they make a decision
based on bad information.
The
only other solution he sees is with these two other parcels not contained in
the easement. The owner has proposed to
put them under the Foundation’s easement.
This doesn’t necessarily have to be done if, under
Mr.
D. Wilson was asked by Mr. Brown if a tenant house were built on the 260-acre
part of the parcel now before the subdivision and sale occurs, would that be in
conflict with what he is talking about.
Mr. Colhoun redirected the question to Craig Nielsen, the Assistant
Attorney General. Mr. Nielsen noted that
the tenant house issue is addressed in statute and regulation. A landowner needs a full 100 acres per tenant
house; the tenant must be fully engaged in the operation of the farm; and the
tenant house cannot be separately subdivided from the farm. The tenant cannot be the owner. The purpose of the tenant house is for bona fide tenants working on the
farm. It cannot be for Aunt Tilly or become a carriage house. Also, there are size restrictions by local
zoning and State review. Within those
parameters, the Foundation wants to know that the construction of a tenant
house is justified so people don’t try to do end runs around the program,
building a ‘McMansion’ and calling it a tenant house.
Mr.
Blaser asked if there is a way to transfer the existing rights on those two
lots that could have houses to construct a house on the 260-acre parcel. If there is a way for that to happen, that is
all that ultimately they need. They are
offering to give up those two lots so they can have one lot on the larger
parcel. Mr. Nielsen replied that
subsequent owners have no rights to build a house, except a tenant house if the
property and the operation qualify. The
Foundation is required to adhere to those rules.
Mr.
Stahl stated as a question to Mr. Nielsen for comment, that it seems that there
was one time the ability to transfer a property to a corporation and then the
corporate entity could then have a tenant house for an employee of that
corporation who could theoretically also be an owner of the corporation. Mr. Nielsen responded that specific
regulation has been adopted to preclude that scenario because people were
coming up with all kinds of dodges.
Mr.
Conrad asked Mr. Nielsen if this could be subject to a land swap whereby they
request moving a parcel elsewhere on the property in return for giving up the
development rights on the other parcel.
Mr. Nielsen responded that a land swap sometimes has been used to settle
certain issues to make sure that the State at least gets equal value if not
more in the deal. Mr. Conrad noted that
when such requests go before the Board of Public Works, the standard question
that is addressed is whether the State is getting more than it is giving up in
terms of value. Such a request must be
approved by the Governor, Treasurer, and Comptroller.
Mr.
Tassone asked if there are development rights on the small parcels. Mr. Blaser responded, “yes.” Mr. Tassone asked, “would
the two small parcels be joined because of their location to the 50-60 acre
parcel?” Mr. Blaser stated that that was
the intent. Mr. Tassone then stated
that, for the State to get its value out of this, these two development rights
under easement would be swapped from the one parcel for the right to build (an unsubdividable house?) on the other easement parcel. Mr. Conrad said that one cannot talk about
the right to build, but rather moving the lot itself.
Mr.
Poss stated that he thinks the subdivision is a very
viable alternative; the objective of the subdivision is to continue a viable
agricultural area by allowing a person to buy a parcel such as this with 92%
Class I soil enabling a dairy farmer to raise all of his own crops. The first year he was there he had 210 dry
bushels to the acre which is phenomenal in that area (without irrigation). It would make a great operation. The house on the property is just overwhelming
to the production farmers who look to buy the property. People in the horse industry can make use of
the large house. He doesn’t think a new
house on the dairy parcel would hamper the goals of the agricultural
preservation program, but only enhance the agricultural industry by allowing a
viable dairy operation. Given the cost
of the property (millions of dollars), someone buying it to farm has to be able
to live on the property. It won’t be an
obnoxious 15,000 square foot house, but something within reason. He thinks that a deal is being discussed here
to swap out parcels to make the subdivision request work.
Mr.
Conrad pointed out that such a request is not what is being discussed and on
the table here before the Board. The
local board has not reviewed such a request.
Mr. Logan suggested that perhaps this should go back to the local board
before it comes to the State Board.
Wally
Lippincott, Program Administrator for
Ms.
Forrester responded that this case is different, because this would be an
actual swap of land, not a transfer of development or density rights. This concerns swapping about four acres for
one acre. Mr. Lippincott responded that
these are parallel issues; the land swap is being done to bring a density unit
onto an easement property. The result is
the same, though the terminology is different.
From the standpoint of the program, the issue is the same in the
perceptions that result and pose the same issue of the division of farms into
smaller parcels as well.
Mr.
Stahl stated that the land swap has to occur first or there is a perception
issue. If the landowners came to the
Board with a land swap proposal on the entire 312-acre parcel, he thinks at
that point, it would be a good deal for the Foundation and not create a two
farmsteads issue where there is a farmstead without a house site. It would make more sense if the land swap is
done first, and then they came back and subdivided the parcel. Procedurally, they should want to deal first
with the supposed transfer of lots issue first before dealing with agricultural
subdivision that is on the table today.
Ms.
Forrester noted that this has been done before.
However, the landowners involved here should want more assurances first
because there are locational issues, etc. Mr. D. Wilson noted that the local government
approval is not yet in place. Ms.
Forrester suggested that the item should be tabled today. This should be worked out locally and brought
back after review by the local advisory board.
This is all premature. There are
also questions about the plat that was submitted because it appears that there
are road widening issues at stake as well.
Everyone needs to keep in mind that it ultimately must go to the Board
of Public Works which may or may not approve it.
Mr.
Colhoun asked for a motion to table this item.
He noted that these kinds of issues are likely to happen more often in
the future as larger tracts may seek to be divided for many different reasons. The precedents the Board sets now will be
important. The Board will accommodate
the landowners the best it can, but such decisions must be made carefully.
Motion #4: To table this agenda item to let staff work with the County
and the landowners to come up with a viable solution.
Motion: Joe Tassone Second: Chris Wilson
Status: Approved
Mr. Tassone asked the
Ms. Buckle cautioned the Board that when
looking at land swaps, the Board may see two parcels of record, each with a
development right. But the Board should
also be aware that they may or may not be developable, depending on perc tests. It would
be nice to know if a house can actually be built on the two parcels before
actually agreeing to such a swap. Only
then will the Foundation know if it’s getting a good deal or not. Mr. Blaser stated that this is an area that
would perc because of the quality of the farmland.
Mr. C. Wilson asked how this gentleman
was going to start a model dairy operation under current market
conditions. He suggested that the
gentleman must have outside income. But
then the question is whether he is in his right mind….
A.
1. 13-82-06e FLEMING, Donald E. & Shirley L. 176.41 acres
Request
for the exclusion of a one-acre child’s lot from easement property.
Mr.
Conrad presented this agenda item. This
is a 176.41 acre parcel. Mr. and Mrs.
Fleming 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 son, Scott. There
are two pre-existing dwellings on the property (one of the dwellings is a
historic building in a dilapidated state; the other dwelling is a mobile home
that is currently occupied by Scott and his wife). They have excluded the lot surrounding their
personal dwelling at the time of district establishment. No other lots have been excluded from the
property since district establishment.
They do not own any other district or easement property.
According
to
Mr.
Colhoun stressed the need to better see the access and lot location than the
material provided.
Mr.
D. Wilson asked what will happen to the trailer lot; has it been excluded? Ms. Levy responded that they live in a trailer
that is on the farm, and not on a separate lot.
Only the parents live in a house that is on a separate lot. Mr. Conrad asked if the County considers the
trailer location to be a buildable lot, i.e., a
pre-existing dwelling that could be subdivided and sold separately from the
property. Ms. Levy responded that she
did not think so. Mr. D. Wilson stated
that the question is being asked because the agenda material refers to two
pre-existing dwellings – one is the old dilapidated house and the other is the
mobile home currently occupied by Scott and his wife. So the question is, can the mobile home lot
be excluded from the property, or is this just the nomenclature in the agenda
memo? Ms. Levy responded that, while
this may be a pre-existing dwelling as far as the program goes, as far as the
County goes, it wouldn’t have a lot created around a trailer house. Mr. Conrad asked if the trailer is considered
a tenant house for the County. Ms. Levy
responded, “yes.”
Mr.
D. Wilson asked if the family intends to remove the trailer. Ms. Levy responded that she assumes so. Mr. Conrad asked what the County would
require. Would the County allow the
trailer to stay there? Ms. Levy doesn’t
know. Ms. McLaughlin said that for the
trailer to stay, the Flemings would have to justify it.
Mr.
D. Wilson moved to approve the child’s lot with the provision that it will
extinguish the ability for the pre-existing area where the trailer is located
to be subdivided. Mr. Stahl stated that
he would like to see the trailer removed.
Mr. D. Wilson amended his motion to specify that the trailer be removed
from the property. Mr. Tassone seconded
the amendment. The amendment passed
unanimously.
Mr.
D. Wilson wanted to be sure that the County knows where the Board is coming
from, that the County does not consider this to be a pre-existing dwelling that
can be subdivided from the farm. If it
is in fact a pre-existing dwelling and is recognized and treated as such by the
County, these are rights that should be able to be exercised as the owner sees
fit. In this case, the son lives in the
trailer. At this point, it may really be
transferring the trailer to the new lot location and then asking for that
pre-existing dwelling status to be moved.
If those two actions are combined, it will preserve a future development
right from being taken from the farm which they would otherwise still have.
Ms.
Levy responded that she doesn’t think the Flemings would have any problem with
that, because he was living in the trailer and will now be building his house.
Mr.
Colhoun wanted to further reinforce the need for program administrators to
provide usable and understandable maps providing lot locations and access
clearly marked. He also wants to stress
the need to have members of the family here for their agenda item to be heard,
preferably the child who would receive the child’s lot to be here to answer the
questions of the Board so the program administrator is not put in a position
where an answer cannot be provided. This
will be required in writing soon.
Motion #5: To approve a child’s lot on the
easement property owned by Donald and Shirley Fleming for their son Scott, with
the provision that it will extinguish the ability for the pre-existing area
where the trailer is to be subdivided and the trailer will be removed.
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
B.
1. 09-90-07e HARDING, Howard C. & Betty L. 101.12 acres
Request for the exclusion of a one-acre owner’s lot
from easement property.
Mr.
Conrad presented this agenda item. This
is a 101.12 acre parcel in
Motion #6: To approve the exclusion of a one-acre
owner’s lot for Benjamin and Marta Harding from easement property.
Motion: Lewis Logan Second: Bob Stahl
Status: Approved
C.
1. 20-96-12 HOLLINGSWORTH,
Joyce A. & James C. Andrew 166.50
acres
Request to
rescind an approval of an owner’s lot which was requested in error.
Mr.
Conrad presented this agenda item. This request
comes from
Ms.
Forrester asked Ms. Deflaux if a preliminary release
has been recorded for the property. Ms. Deflaux responded that it has not. She apologized for the mistake which was made
by County staff.
Motion #7: To rescind the approval of an owner’s
lot requested in error.
Motion: Doug Wilson Second: Joe Tassone
Status: Approved
D.
1. 06-81-13e DOODY, Jr., Paul L. 130.00
acres
Request for an exclusion of a one-acre child’s lot from easement
property.
Mr.
Conrad presented this agenda item. This is
a request from Paul Doody to exclude a one-acre
child’s lot from easement property. This
is a 130 acre parcel. He is the original
owner of the easement property. He will
construct a dwelling for the personal use of his son, Jeffrey. There are two pre-existing dwellings on the
property. No other family lots have been
requested on the property. He does not
own any other district or easement property.
The proposed lot is located 1,200 feet from the road. The lot will be accessed by an existing farm lane. Disruption to the agricultural operation will
be minimal. The request was approved by
the local agricultural advisory board and conforms to local zoning regulations. If approved, there will be a required
payback. Foundation staff recommends
approval. The location of the lot is
shown on the map included with the agenda material.
Mr.
Colhoun stressed that he would like to see a detailed blow-up, particularly of
the area where the lot will be located and how it relates to the rest of the
farming operation. What he sees here is
a
Motion #8: To approve the exclusion of a one-acre
child’s lot for Paul Doody, Jr., from easement
property for the use of his son, Jeffrey.
Motion: Vera Mae Schultz Second: Patricia Langenfelder
Status: Approved
E.
1. 02-84-03e SHEPHERD, Margaret G. (deceased) 121.68 acres
Request for the exclusion of up to two acres for a child’s lot on
easement property.
Mr.
Conrad presented this agenda item. Based
on written documentation from 1996 of the intent of Ms. Margaret Shepherd (now
deceased) for her son, Edward, to have a child’s lot for his personal use on
her easement property, Edward Shepherd is requesting an exclusion of up to two
acres for his child’s lot on that easement property, a 121.68 acre parcel. Ms. Shepherd was the original owner of the
easement property. In 1996, Ms. Shepherd
documented her intent to create lots for her children in the event that they
should decide to construct a home on the property at some point in the
future. There are no pre-existing
dwellings on the property. There have
been no other lot requests on the property.
According to
Mr.
Tassone noted that it would be a good idea to develop specific criteria on how
map material for location and access is presented to the Board and communicate
that to program administrators. He noted
that this doesn’t necessarily need to be high-tech, but could include better
labeling.
Motion #9: To approve the exclusion of a child’s
lot up to two acres in size for Margaret Shepherd (deceased) from easement
property for the use of her son, Edward.
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
Mr. D. Wilson asked Barbara
Polito, Program Administrator for
Elizabeth Weaver, MALPF
Administrative Officer, noted that this has been clarified in a document
produced by the Foundation on the retention of lot rights that it is not sufficient
just to document intent, but to follow through by placing this intention in the
will. Program administrators have been
counseled to recommend this course of action to program participants.
F.
1. 21-91-40e LOUDENSLAGER, Larry L., et al. 144.04 acres
Request for the exclusion of a one-acre child’s lot from easement
property.
Mr.
Conrad presented this agenda item. This
is a 144.04 acre parcel owned by Larry Loudenslager,
et al., in
Vera Mae
Schultz, Trustee, asked about the wording of this request for a one-acre lot
versus the previous agenda item that requested “up to two acres” to avoid
having to bring this item back to the Board if the Health Department requires
more for septic reasons. Should the
wording be changed? Ms. Weaver responded
that this question is explicitly asked of program administrators. In some cases, program administrators are
certain that only one acre will be required.
Staff uses the former wording when a program administrator is not sure
if only one acre will be required. This
does not mean that in some cases an item may have to return if there are perc issues.
Counties in some cases do not want to approve more than one acre, and if
the person requesting the lot has to come back, then he or she will have to
come back.
Motion #10: To approve the exclusion of a one-acre
child’s lot for Larry Loudenslager, et al., from
easement property for the use of his son, Michael.
Motion: Bob Stahl Second: Doug Wilson
Status: Approved
2. 21-91-21 STONE, Jr., Elmer A. 165.00
acres
Request for a tenant house on district property.
Mr. Conrad
presented this agenda item. This request
is from Elmer Stone for a 165-acre parcel, also in
Motion #11: To approve the construction of a tenant
house for Elmer Stone on district property, located as presented to the Board.
Motion: Patricia Langenfelder Second: Joe Tassone
Status: Approved
H.
1. WilTel
Communications and KCW Engineering Technologies
Request to allow
overlay easements for the installation of fiber cable on district and easement
properties.
Mr.
Conrad presented this agenda item. WilTel Communications and KCW Engineering Technologies are
requesting right-of-way overlay easements for the installation of fiber cable
on district and easement properties in
Ms.
Forrester reviewed the proposed easements and locational
maps of the proposed installation and reported on her findings. She noted that some of the easements have
already been paid for. This is rather
uncharted waters. The County has
condemnation authority if it wanted to come in under section 2-515. While this is a private concern, the County
could use this authority if it determines the project to be an official public
purpose. The County could not grant the company this right. The Foundation’s position is to try to
cooperate with these types of easements.
She is working on a broader memo on these kinds of issues, but hasn’t
had time to include all of the other factors involved here.
Laying
this cable probably is not going to have a farming impact, though she will
leave that judgment up to the farmers present.
She has not determined if Board of Public Works approval would be
required for this project if the MALPF Board approves it. The lines will go under the pavement, which
means no one is likely to have a problem with this. When that is not possible, the lines will be
close to the pavement or as close to the property line as possible. A plat has
been provided showing that some extend into the property quite a few feet. However, the cable location is pretty much
non-invasive.
When
WilTel is here, it can explain to the Board what it
is that happens. The Board should also
want to know the purpose of this cable, the potential benefit to any of the
farms that this cable goes through, and the likelihood that they will permit
another entity to use this easement. The
easement is drawn up very broadly, saying that the easement can be assigned to
anyone. Ms. Forrester would object to
assignment right. She is also concerned
that some landowners have signed these already.
The Foundation needs to put the brakes on.
Mr.
Lippincott, Program Administrator for
There
are a number of easements, including Maryland Environmental Trust easements,
MALPF easements, and Rural Legacy easements along the way. What he expects, though he doesn’t excuse it,
is that some land trusts have been aggressive and out in front to negotiate on
behalf of their landowners the best deal they can so this line will be as
unobtrusive as possible, which is why much of it is directed under the road so
there is absolutely no impact on the adjacent properties. In communication with the County, WilTel so far had proposed cutting across a field which the
local Board absolutely is not willing to approve. The approval that the Board has made and is
being transmitted to the MALPF Board is that the line will go within 3 to 5
feet of road and no further out. The
proof, however, is in the installation – how can the Board and the County
control that the installer performs to this requirement.
Mr.
D. Wilson noted that the distance requirement needs to be in the document
itself to be enforceable. Mr. LIppincott agreed and continued. The local Board specified that its approval
was restricted to these specifications.
The cable will not be in areas that would cause the loss of any
agricultural production in the future.
Because of the way the cable is installed, the soils will not be disturbed.
Ms.
Forrester asked if WilTel had negotiated with
utilities that already have easements out there, such as BG&E, Verizon, etc. All of
those people have electricity…. Why
hasn’t WilTel sought to share an existing easement,
rather than creating a new one? The
Foundation has not heard from WilTel what the efforts
have been to share easements. She
doesn’t see that WilTel has tried very hard.
Mr.Stahl
noted that the issue for him is that this, as it is proposed, is a broader
utility easement rather than being restricted to cable. Today it may be fiber optic, but if the
company were to be sold in the future to a natural gas concern, before you know
it, you’re dealing with a natural gas pipeline going through the same
easement. The request has to be much
better defined before the Board can review the request. It’s a much broader issue than what the Board
is dealing with today.
Mr.
D. Wilson stated that he thought that is where Ms. Forrester was headed with
this. The Board needs to make sure that
the easement documents are narrowly defined to apply to fiber optic cables. The sticking point for that would be that
there are already documents signed and paid for by landowners. The Board would have to say that those
agreements can’t be enforced, which may result in money being repaid. That’s the problem. Ms. Forrester said that she has already told
the landowners who signed that they may have to be taken to court over this,
and it won’t be pleasant for anyone.
Mr.
D. Wilson stated that WilTel knew the Board had
authority in this area. There is no way
that the company didn’t know when they went to search the land records for
their route that MALPF didn’t have a pre-existing easement and that WilTel needed to be before the Board up front. Mr. Wilson’s other issue is that, given that
there are so many easements in that area of the County, he is interested in the
Rural Legacy side.
He is assuming in a similar set of circumstances that a Rural Legacy
easement would be allowing this both from the State
and County side as partners. He doesn’t
want the Foundation saying “yes” to this, even as narrowly as Ms. Forrester has
suggested, and then have Rural Legacy or MET turn around and say “no.” From a public use easement point-of-view,
there should be consistency between Rural Legacy, MET, and MALPF, as well as
with
Mr.
Stahl suggested that this request be withdrawn until further
clarification. This is a broader issue
than just MALPF.
Ms.
Weaver stated that if the Board slows this down, the Board needs to be aware
that this will have a major impact.
Mr.
D. Wilson stated that, if this is for a broad public purpose, local, state, or
the federal government could come in and condemn the property, which he doesn’t
think they want to do. On this issue,
there are three MALPF farms along the road of the route they are taking. So this company has to negotiate with three
people and exercise some kind of easement on top of the Foundation’s, no matter
how narrowly or broadly that easement may be.
On the opposite side of the road is the typical set up of 65 houses that
have been earlier subdivided. The only
reason they are on the Foundation’s side of the road is because there are three
rather than 65 people. The Foundation
could say just as easily, go negotiate with the 65 other people and pay each of
them $3,000 for easements. So they are
taking the path of least resistance, the fewest people, which may be perfectly
okay, but the issue is that the company knew about our situation, had an
obligation to come to the Board and present the problem and the public good and
put the case in front of the Board, but instead this request is coming this way
primarily because a good program administrator brought it to the attention of
the Foundation and had it put on the agenda.
It’s pretty late in the game. At
least in
Mr.
Colhoun stated that he has another problem with this because questions come up
that Mr. Lippincott certainly cannot answer.
The firm that is doing all this has decided that there is something more
important to do than to come to this meeting.
This is very inappropriate for a number of reasons. The Board doesn’t need to be pushed into a
rush to make a decision that could be precedent setting. They are putting administrators on the
spot. He doesn’t think that is correct
or fair.
Ms.
Weaver pointed out that the Board approved in 1997 an overlay easement policy that
clearly sets out, as shown in the agenda, and the conditions say that overlay
easements shall not interfere with any agricultural operation and shall have
minimum interference in the overall operation of the farm. This proposed overlay easement does meet
these minimum conditions. She is not
saying that the Board should approve it today, but that is the condition that
must be fulfilled for an overlay easement to be approved.
Mr.
D. Wilson said that anyone who comes to the Board and says, “I have an easement
issue. I’m a utility. I’m a private concern. What I want to do is on this easement
property. Do you have a policy?” Staff
could photocopy this policy for them and say this is the general policy the
Foundation has for reviewing these requests.
A case in point, the language that Ms. Forrester has reviewed, while
this might be Board policy and it might approve the request based on this
policy, the language of the easement has not incorporated the words of this
policy. They could then put a natural
gas line across this easement at some point in the future because the easement
language does not restrict it to this very specific purpose presented in the
agenda item. And it’s tying all of these
bows together that makes a coherent decision for this Board. Location is one item and use is the
second. Therefore, he moves that this
request be tabled.
Ms.
Weaver noted that she told these people that the Board would probably be
modifying the language.
Mr.
Colhoun noted that there is a motion on the floor that had not yet been
seconded. Ms. Langenfelder,
Trustee, seconded the motion. Mr.
Colhoun opened the floor for discussion.
Mr.
Conrad noted that he learned from Barbara Levin of Maryland Environmental Trust
when MALPF was dealing with the
Motion #12: To table the request for an overlay
easement for the installation of fiber optic cable on district and easement
properties in
Motion: Doug Wilson Second: Patricia Langenfelder
Status: Approved
Mr. Tassone
asked if this item was on the agenda because Mr. Lippincott asked for it to be
on the agenda, and not the company. Ms.
Weaver noted that the request came from
I. ST. MARY’S COUNTY
1. 18-98-02Ae SPENCE, Jr., James W. 48.43
acres
Request for resolving a right of way issue with a neighboring
property.
Mr.
Conrad presented the next agenda item.
This is a request from James Spence, Jr., from St. Mary’s County on a
48.43 acre property; it’s a request to resolve a right of way issue with a
neighboring property. Mr. Spence is the
original owner of this 48.43 acre easement property. He is requesting Board approval of a proposed
resolution of a right of way issue with one of his neighbors. This property is located in Bushwood and sold its easement in 1999. Mr. Spence and the St. Mary’s County
Agricultural Land Preservation Advisory Board discussed this issue with
guidance from Mr. Nielsen and Foundation staff (Mr. Conrad and Ms. Weaver).
Along
Mr. Spence’s property’s boundary line, there is a right-of-way owned by the
owner of lot 8 giving him access to that lot which is currently
undeveloped. This owner now wants to
create the access along the existing right of way so he can develop this parcel. The Board can see that this is not a
contiguous parcel, but the right of way also goes across another intervening
property. To take advantage of the
existing right of way, the owner of lot 8 would have to remove the existing
tree line buffering the Spence farm from contiguous lots along
The County’s Advisory Board has recommended approval
of this request because it will minimize the impact on the Spence farm of
constructing access to lot 8 that the owner already has a right to
construct. The Foundation’s staff agrees
and recommends approval. Staff further
recommends that the existing 20-foot right of way be extinguished in return for
an equivalent right of way across the Spence property on the existing farm lane
with the stipulation that it be limited to serve the one residence permitted
under County zoning on lot 8. Mr. Conrad
clarified the exact route of the existing right of way and the proposed right
of way by reference to the map provided to the Board.
Mr. C. Wilson
asked for clarification of which lot is involved and whether it has access to
Mr. D. Wilson
said that the bottom line is that the owner of lot 8 can’t have access to
Mr. C. Wilson asked
for clarification: this is an existing
lane, but it is not an existing driveway.
Ms. Sasscer confirmed this, with the exception of a short little loop
that would need to be constructed to connect the proposed right of way.
Mr. Tassone
asked if Ms. Sasscer had looked at this situation on the ground. Ms. Sasscer said that she was on this
property a couple of years ago for an easement inspection, but has not been on
the property recently. The property is
scheduled for inspection soon this year when Iva
Frantz, Foundation staff, will be in the County for inspections. There is also a question about a shed in the
right of way that needs to be resolved.
Also, this property was protected in part with federal funds which
requires more regular inspections than does MALPF.
Mr. Tassone
stated that his question is that, conceptually, in addition to the issue of
retaining a buffer between the farm and residential lots, what is being
proposed is a good alternative. On the
ground, is this a reality? Ms. Sasscer
responded, “yes.”
She said that in particular the buffer here makes a big difference for
the property.
Mr. Tassone
asked if MALPF needs federal approval for this request. Ms. Forrester stated that MALPF is not
modifying the easement document, so it can be done administratively. She says that in this situation moving the
right of way to the existing farm lane makes a lot of sense. The blue line on the map is a paper right of
way; there is nothing on the ground.
Mr. Colhoun
asked if language could be put into the agreement that would keep the treeline from being removed. Ms. Forrester responded that the Foundation
needs to see the agreement between Mr. Spence and the owner of lot 8. She asked Ms. Sasscer to clarify who will
draft the document extinguishing the right of way and reestablishing the right
of way over the farm lane.
Motion #13: To approve the request by James W.
Spence, Jr., to resolve a right-of-way issue with a neighboring property by
moving the right of way to the farm lane, subject to an agreement removing the
existing right of way, and that the attorney of lot 8 provide a draft of the
document reestablishing the right of way and provide a metes and bounds
description of the change to the Foundation to review.
Motion: Robert Stahl Second: Christopher Wilson
Status: Approved
IV. PROGRAM POLICY
A.
Rankings Guidelines for the FY 2005 Easement Offer Cycle
Mr. Conrad
presented this agenda item. The program
policy item is on the rankings guidelines for the FY 2005 easement offer cycle.
A copy of the revised version of the
ranking guidelines resulting from the meeting with program administrators has
been provided to Board members. If Board
members have any serious concerns, they need to be brought to staff’s attention
as soon as possible. The Board needs to
approve these guidelines so program administrators can get their counties’
specific implementation of these guidelines developed and approved before the
easement offers can be made this offer cycle.
This document will also be provided by email to program administrators
to verify that this revision indeed represents and incorporates the comments
made at the meeting between Foundation staff and program administrators this
past summer. A request for approval of
these guidelines will be made at the next Board meeting.
V. INFORMATION AND
DISCUSSION
A Matching Funds
Participation for FY 2005 Easement Offer Cycle
Mr. Conrad
presented this agenda item. This is a
request to approve the list included in the agenda material of counties who
will be participating in the matching funds component of the FY 2005 easement
offer cycle. This is a pro forma agenda item. Staff has now contacted all of the county
program administrators and has confirmed the list of counties committing to
participation:
Caroline
Carroll
Cecil
Charles
Garrett
Harford
Howard
Queen Anne’s
St. Mary’s
Talbot
Wicomico
Their
participation needs to be approved by the Board according to statute. Foundation staff recommends approval.
Mr. C. Wilson
asked if
Motion #14: To approve the request for the list of
county participants in the matching funds program as presented.
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
Mr. Conrad noted that there is
one very quick agenda item for an Executive Session meeting.
Motion #15: To
adjourn regular session and go to executive session.
Motion: Doug Wilson Second: Lewis Logan
Status: Approved
The regular session Board meeting was
adjourned at approximately
Respectfully
Submitted:
_____________________________________
James A.
Conrad, Executive Director
_____________________________________
Elizabeth
Weaver, Administrative Officer