MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

MINUTES

 

March 22, 2005

 

 

TRUSTEES PRESENT:

 

Daniel Colhoun, Chairman

Vera Mae Schultz, Vice Chairman

Jerry Klasmeier, representing Comptroller Schaefer

Lewis R. Riley, Secretary, Dept. of Agriculture

Audrey Scott, Secretary, Dept. of Planning

Joe Tassone, representing Secretary Scott, Dept. of Planning

Patricia Langenfelder

Robert F. Stahl, Jr.

Judith C. Lynch

Shirley Pilchard

Chris Wilson

James Pelura, D.V.M.

 

TRUSTEES ABSENT:

 

Lewis Logan, representing Treasurer Kopp

 

OTHERS PRESENT:

 

James A. Conrad, MALPF Executive Director

Carol Council, MALPF Administrative Officer

Elizabeth Weaver, MALPF Administrative Officer

Craig Nielsen, Assistant Attorney General, Dept. of Agriculture

Barbara Polito, Anne Arundel County Program Administrator

William Powel III, Carroll County Program Administrator

Charles Rice, Charles County Program Administrator

William Amoss, Harford County Program Administrator

Radhika Sakhamuri, Queen Anne's County Program Administrator

Donna Sasscer, St. Mary’s County Program Administrator

Tammy Buckle, Caroline County Program Administrator

Joy Levy, Howard County Program Administrator

David Black, Cecil County Program Administrator

Martin Sokolich, Talbot County Program Administrator

Eric Siefarth, Washington County Program Administrator

Daniel Rosen, Maryland Dept. of Planning

Chuck Gates, Maryland Dept. of Planning

Tom Rimrodt, Assistant Secretary, Maryland Dept. of Planning

Bettie Dixon, Anne Arundel County Land Use

Mina Hilsenrath, Howard County Dept. of Planning & Zoning

Gilbert Bowling, Jr., Charles County Landowner

Rodney Stambaugh, Carroll County Landowner

Melanie Stambaugh, Carroll County Landowner

Steve Osborne, Carroll County Landowner

Kathleen Bikle, Carroll County Landowner

Charles Getscher, Harford County Landowner

Trueman Montfort, St. Mary’s Landowner

Tammy Montfort, St. Mary’s Landowner

Tim Wheeler, Baltimore Sun

 

 

Daniel Colhoun, Chairman, called the meeting to order at approximately 9:30 a.m. at the Maryland Department of Agriculture building, Annapolis, Maryland.

 

 

 

 

Mr. Colhoun asked if there were any additions or corrections to the February 22, 2005 minutes.

 

Motion #1:        To approve the February 22, 2005 Regular Session.

 

Motion:    Vera Mae Schultz                    Second: Patricia Langenfelder

 

 

                       Mr. Colhoun asked if there were any additions or corrections to the minutes.

 

Motion #2:        To approve the February 22, 2005 Executive Session minutes.

 

Motion:            Joe Tassone                                     Second: Vera Mae Schultz

 

C.        ADDITIONS OR DELETIONS OF AGENDA ITEMS:

 

There was one deletion of agenda items: II.B.2, Mudd.

 

The request for recertification for Howard County was moved ahead on the agenda (see Item V.B.1 for Motion #3).

 

 

II.        DISTRICT /EASEMENT AMENDMENTS

 

 

1.        18-00-12Ae       Montfort, Jr., Trueman C.S.                                       57.54 acres

 

Request to exclude a 1.0 acre owner’s lot from easement property

 

Mr. Conrad introduced this item. As Mr. Montfort was present, Mr. Conrad informed him that if he has anything to add, he should feel free. Mr. Montfort is the original owner of the 57.54 acre easement property. He does not own any other district or easement properties. There have been no previous requests for lot exclusions on this property and there are no pre-existing dwellings.

 

The proposed 1.0 acre owner’s lot will be located in what is currently woodland. The lot will have access to Montfort Road via an existing right-of-way. The western border of the lot is along Whites Neck Creek.

 

This request has been approved by the local Advisory Board and conforms with local zoning regulations. If the request is approved, there will be a required payback to the Foundation of the per acre amount of $4,274.25, which the landowner received for the easement.

 

Foundation staff recommends approval based on the landowner’s rights contained in the deed of easement’s covenants, conditions, limitations and restrictions, Section A (1)(b) “...the Grantee, on written application from the Grantor, shall release free of restrictions only for the Grantor who originally sold this easement, 1.0 acre or less for the purpose of constructing a dwelling for the use only of that Grantor or the Grantor’s child...”

 

Mr. Conrad pointed out that staff wanted the Board to be aware that Nancy Forrester, Assistant Attorney General, Department of General Services, is concerned that the lot is located in such a way that the right of way access to the lot cuts off a small corner of the property. She and staff would like for Mr. Montfort to consider one of two options: 1) to have the lot convey with the remainder of the farm in the future, or 2) or to put into the land records a provision that if the two should go under separate ownership, whoever owns the farm parcel would maintain a right-of-way across the access to the lot.

 

Mr. Montfort stated that he has a right-of-way across his cousin’s property which allows him to get to the proposed lot. Mr. Conrad stated that in the future, the lot could be sold separately. Mr. Montfort stated that he would pass the right-of-way on to a subsequent owner if he were ever to convey the lot. He had assumed that to be the case but now understands that there should be some language to that effect.

 

Mr. Conrad asked if he would consider having the two parcels conveyed together? Mr. Montfort stated that it never really dawned on him and his wife to sell the lot separately. They had planned on this being their final home. The only consideration that he has for the future of the property is the possibility of a child’s lot.

 

Mr. Colhoun asked if he would like to take more time to consider the right-of-way issue. Mr. Montfort answered that no, he was ready today. He stated that he would not want to obligate himself to having to keep the two parcels as one. Mr. Conrad explained that it would not be a condition of approval.

 

Mr. Stahl stated that the one condition he would like to see would be to have the right-of-way across the access. He felt that this would be a minimum, or otherwise we would be creating two lots.

 

Motion #4:        To approve the request of Trueman C.S. Montfort, Jr. to exclude a 1.0 acre owner’s lot from his easement property with the condition that the owner grants the easement over top of the right-of-way access to the lot.

 

Motion:            Robert Stahl                                             Second: Chris Wilson

Status:             Approved

 

2.        18-00-01           Watson, Alva J.                                                      254.89 acres

 

Retraction of motion approved during the February Board meeting

 

Mr. Conrad introduced this item. Mr. Watson is the original owner of the easement property. The current request is to retract a motion approved at the February 22, 2005, Board meeting.

 

During February’s meeting, the Board heard a request for a 2-acre owner’s lot for Mr. Watson’s use. During ensuing conversation, Donna Sasscer, St. Mary’s County Program Administrator, stated that the request for an owner’s lot was made in error. She stated that she did not realize the error until she read the staff report that indicated that a pre-existing dwelling was located on the property. She stated that she believed that the request should have been for an extra acre around a pre-existing dwelling site. A Board member asked if this request was for the same lot. Ms. Sasscer stated that she believed it was. During further discussion, a Board member asked if the area was withheld from the district and easement. Ms. Sasscer stated that she was not sure if the area was withheld. She stated that, during district establishment, the landowner had acquired a successful perk on the site and was in the beginning phase of building a home. She was not sure how it was handled by the Foundation and that it may have been excluded. Foundation staff stated that MALPF’s database and files indicated one pre-existing dwelling on the easement property.

 

A Board member asked Ms. Sasscer what the landowner was requesting. Was the landowner requesting a 2-acre owner’s lot or an extra acre around the area that may have been excluded? Ms. Sasscer stated that she believed it was the latter. The Board approved the request for the extra acre, with the condition that the owner’s lot right be waived.

 

Following staff research for the processing of the Board’s motion, Foundation staff found that it could not proceed with the Board’s approval as the area was not withheld from the district or easement. The area was treated as a pre-existing dwelling, as the documentation supplied by the County indicated one pre-existing dwelling on the property. The property was appraised as having one pre-existing dwelling. Staff consulted with Craig Nielsen, Assistant Attorney General, Department of Agriculture, and Nancy Forrester, Assistant Attorney General, Department of General Services, to determine how to proceed with the request and the Board’s motion. Mr. Nielsen and Ms. Forrester advised the staff that the Board did not have the authority to place conditions on lots surrounding pre-existing dwellings. They recommended that, because the Board’s actions were based on incorrect information, the motion should be retracted.

 

Elizabeth Weaver, Foundation staff, clarified that the previous motion was to approve the exclusion of an additional acre, subject to the condition that the landowner waives his right to an owner’s lot. That motion was made because there was confusion about whether it was withheld acreage or a pre-existing dwelling.

 

Mr. Colhoun asked Mr. Nielsen if a motion is needed to settle this matter. Mr. Nielsen replied that he does not feel a motion is necessary as long as the record is clear.

 

Motion #5:        To rescind the previous motion to approve the exclusion of an additional acre subject to the condition that the landowner waives his right to an owner’s lot.

 

Motion:            Joe Tassone                                            Second: Chris Wilson

Status:             Approved

 

 

1.        08-02-02           Bowling, Sr., Gilbert                                                 113.5 acres

 

Request to swap 4.9 acres of district property for 4.9 acres of non-district property

 

Carol Council, Foundation staff, introduced the item. Mr. Bowling is the original owner of this district property. There are no pre-existing dwellings on the property and Mr. Bowling has not requested any lot exclusions. Mr. Bowling also owns contiguous 128.0 acre district 08-02-07.

 

When Mr. Bowling placed district 08-02-07 into the program, he withheld 32.0 acres in order to provide a future homesite for his grandson. Recently, Mr. Bowling decided that he would rather have his grandson’s lot located on the other side of Bowling Alley Road on district 08-02-02 (on which a perc site has been located). In order to accomplish this, he is requesting that 4.9 acres of the 32.0 acre parcel withheld from 08-02-07 be exchanged for 4.9 acres of 08-02-02. Mr. Bowling’s grandson manages a small beef cattle operation on the farm. Approval of this request would result in no net loss of district acreage.

 

Foundation staff points out that 1) it is not clear if Mr. Bowling has attempted to locate an acceptable perc site on the 32.0 acres that were withheld from district 08-02-07, 2) it is unclear what Mr. Bowling’s intentions are for the 27.1 acres that would remain outside of the district, 3) if this request is approved, the 4.9 acres that would be added into district 08-02-02 is located in an area that is separated not only by Bowling Alley Road but also by a 50’ right-of-way which accesses a separate lot, and 4) Mr. Bowling would not be eligible to do a partial termination of the 4.9 acre portion of district 08-02-02 until July 24, 2007.

 

According to Charles County the soils on both 4.9 acre parcels are 100% class II soils and the current land use is cropland. The local Advisory Board has approved this request.

 

 

Gilbert Bowling, Jr. addressed the Board, representing his father, Gilbert Bowling, Sr. He stated that one of the questions was why was the 32 acres originally excluded from the district on the west side of Bowling Drive. His father has five (5) other grandchildren that have expressed an interest in building homes on the farm. Testing was done in the excluded area and a mound system may have to be installed if the other grandchildren wish to construct dwellings in the future. If asked why the grandson in question requested a lot on the east side of Bowling Drive, the answer is that the he and his wife have agreed on this location.

 

Motion #6:        To approve the request of Gilbert Bowling, Sr. to remove 4.9 acres from district 08-02-02 with the condition that 4.9 acres that were previously withheld from district 08-02-07 be added to that district.

 

Motion:            Joe Tassone                                            Second: Chris Wilson

Abstain:           Robert Stahl

 

Status:             Approved

 

 

1.        06-80-18e         Osborne, Steven and Bikle, Kathleen                        79.192acres

 

Request to re-designate a pre-existing dwelling that was approved for relocation and demolition

 

Ms. Council introduced this item. Mr. Osborne and Ms. Bikle are the subsequent owners of the easement property. Roland & Kathleen Mann were the original owners of this easement property. While Mr. & Mrs. Mann owned the property, they received the following approvals from the Foundation:

 

 

While Mr. Osborne and Ms. Bikle were the contract purchasers of the property, the Foundation approved:

 

 

Since purchasing the property, Mr. Osborne and Ms. Bikle have constructed the replacement dwelling on the property. However, they have not yet demolished the original pre-existing dwelling. Their current request is for the Foundation to allow them to keep the original dwelling and have it reclassified as a farm office and storage facility.

 

According to the landowners, they run a hog farm operation and need a place to complete paperwork, store medications (refrigeration is needed), wash clothes used in the operation, and have a bathroom dedicated to clean up of farm employees, including themselves.

 

The request was approved by the local advisory board and conforms to local zoning regulations. Attached for your review are county approval letters, the landowner’s letter and a location map.

 

Foundation staff points out that as more of these requests are presented to the Board for their consideration, a pattern is developing. If the Board were to approve requests to change the use of pre-existing dwellings, it will create problems with monitoring in the future. The Foundation does not have the right to inspect the interior of dwellings and, therefore, we would be unable to verify the future use of these dwellings. Also, as each county treats the designation of a dwelling differently, it would be difficult to formalize one policy that would work for all 23 jurisdictions.

 

As a result, Foundation staff continues to recommend denial of the request to re-designate the pre-existing dwelling, based on precedent of prior Board decisions. The Foundation has a policy of not allowing re-designation of lots because of the potential to encourage more development on a property than would normally be allowed under the terms of an easement. On April 22, 2003, the Board denied a request to re-designate a pre-existing dwelling as an agricultural support building. On October 28, 2003, the Board denied a request to re-designate the original area of a relocated pre-existing dwelling lot as a tenant house. On May 25, 2004, the Board denied a request to re-designate a pre-existing dwelling as a tenant house.

 

William Powel, Carroll County Program Administrator, stated that as far as he can see the information has been presented accurately. He did comment that the county does have a process that recognizes this type of re-designation and it consists of permanently removing the kitchen from the facility.

 

Mr. Osborne, landowner, addressed the Board. He noted that in reading the agenda item, all of the prior decisions were based on re-designation to tenant houses, there were none being reclassified as farm buildings. Ms. Council corrected that the first item was a request to be re-designated as an agricultural support building. Ms. Bikle stated that when she read further into the item, it stated that the actual use was to be a tenant house. Mr. Conrad clarified that the request was to turn the structure into a community supported agricultural building for the contracted delivery of vegetables. The landowner wanted to reserve the right to use it as a tenant house in the future.

 

Mr. Colhoun asked the landowners to describe the farm operation and explain how this building fits into it.

 

Mr. Osborne asked if the Board members had a chance to read his letter. He explained that the new dwelling, which is not yet completed, is approximately 400 yards from the pre-existing dwelling. They have two hog barns with approximately 2500 hogs. They finish about 7,000 a year. It is extremely important to them that they have a dedicated place for their paperwork, medicines and syringes. There are hazardous things that they do not want to have laying around where grandchildren can get to them. They need a place to shower and change before going into the new home. The block building is used for the storage of equipment. They have no place with restroom facilities. It is cost prohibitive to modify the barns. It is his understanding that they can have a farm office on the property. To tear down this existing building just to build a new one tomorrow doesn’t make sense to him. The area cannot be reclaimed for agriculture. It is the perfect place for a farm building.

 

Dr. Pelura asked how far it is from the pre-existing dwelling to the hog barn. Ms. Bikle replied that you can walk. It is approximately 150 feet. (Staff member subsequently visited the property and feel that it is 500 feet).

 

Mr. Tassone asked if Mr. Osborne and Ms. Bikle own all three of the agriculturally subdivided parcels. Ms. Bikle answered that they have one tract of land that is approximately 79 acres (parcels B and C). The original landowner took everything else on the left side of Indian Valley Trail (parcel A). Mr. Tassone asked Mr. Powel if when the Ag Advisory Board approved the request they recognized this as a legitimate need for a farm use building. Mr. Powel replied that yes, they did. Mr. Tassone stated that he understands staff’s recommendation of not getting into the issue of approving re-designations and moving them, but sometimes there are legitimate needs, such as this one seems to be. The other problem that staff has pointed out is the issue of monitoring the structures. How do they insure that the use that we approve is continued? Mr. Powel has stated that the county requires removal of the kitchen facilities to help insure the use. Is there a way for us to do this that is reasonable so that we don’t do something like Mr. Osborne suggested, which is to deny the request and require the removal of the building and then he builds a new farm building in the same place. He would have gone to a lot of expense. We need to think this through to see if there is a way we can address this.

 

Mr. Colhoun asked if this is the original building on the farm. Mr. Osborne said that yes, it is. Mr. Colhoun asked if it is historical. Mr. Osborne replied that it is over 120 years old but it is not classified as historical. Mr. Colhoun asked if they operated the farm operation together and do they have employees and a tenant. Mr. Osborne answered that it is just the two of them and his father, who lives in the approved tenant house. In the future, if the operation grows, they may have to bring in more employees.

 

Mr. Conrad asked if any of the other farm buildings have electricity and are they hooked up to a water source. Mr. Osborne answered that they all have electricity but only the hog barns have water. Mr. Conrad asked if there was anything at the county level that would prevent them from creating space in one of the other structures that would be an area they could plug in a refrigerator and take a shower. Mr. Powel replied that he feels certain that the county would allow a farm office to also have shower facilities. Mr. Osborne replied that the problem they would have is with modifying the existing buildings. They would have to 1) add to the building and 2) destroy some cropland to put in a septic system. When they constructed the new home, it required a sand mound which is close to the house. They actually did 25 percs to find an acceptable location. There is cropland all around the hog buildings. Ms. Bikle stated that the other problem is that the other buildings that are located in the lower valley with the farm house have not been very well kept. It would first require major repairs to those structures. They are in the process of deciding whether to just take them down. To rebuild would cost a lot of money. Financially, it would make much more sense to keep what they have and reuse it.

 

 

Mr. Stahl stated that he has heard that we would allow them to build a farm office. How is it that we would allow them to do that and yet not allow them to change a structure to an office? Mr. Nielsen restated that the problem here is being consistent. He would like to report to the Board on the consequences of this action. The Board is about to set a precedent. We have been involved in litigation on this issue. For the Foundation to allow this and allow landowners to get more development on their farm is going to be problem. That is a real issue – how many houses are here, not what is the use. The fact is that when the Osbornes bought the farm, it had a dwelling. They wanted to move it and this Foundation approved their request, consistent with the history of the program, by stating that in return for constructing a new dwelling, they had to tear down this one and put the acre back into ag use. The legislation does not allow this.

 

Dr. Pelura stated that while he understands what Mr. Nielsen is saying, not only does this request make sense, but as someone who has done quite a bit of work with a hog operation of this size, he thinks the request is essential to this size operation. He feels they need something like this. To ask them to tear it down and build something else, or to ask them to expand a hog barn to include a washroom and storage room, is ludicrous. He feels this is part of preserving this operation and a reasonable request. Mr. Nielsen stated that he feels that this will cause problems down the line. What you have to do, then, is to distinguish this request from the other cases where you have denied this situation. This isn’t allowed. It is forbidden. What is the mechanism that you allowed that? The only way it is allowed, is to tear down the existing house and turn the acre back into ag use. You are allowing the landowners to develop the farm in a way that is inconsistent with the statute. Dr. Pelura asked if he is saying that we don’t have jurisdiction over this? Mr. Nielsen clarified that we have developed an administrative process that requires the landowner to reclaim the original acre.

 

Judy Lynch, Board member, asked Mr. Osborne if when he was granted the right to build the new house, didn’t he have the understanding that the old one would have to be torn down? Mr. Osborne answered yes, he did understand that. At the time, he was under contract to purchase the farm, it was contingent upon them being able to build the new house. At that time, they had no intention of being hog farmers. Ms. Bikle explained that once they decided to keep the hogs, it became evident that they needed a place to administer the business. Ms. Lynch stated that while she understands, they received permission to build the new home in exchange for tearing the old one down. Otherwise, they wouldn’t have been able to have a house.

 

Patricia Langenfelder, Board member, stated that the landowners do have options because they have other buildings. But she has a hog operation also and they shower at her house. They use a building closer to the barns for storage and the refrigerator, so they would probably have to insulate. But showering and bathroom facilities could be placed in one of their outer buildings. She agrees with Mr. Nielsen and others that they were fully aware, going into this, that the house would have to be torn down. If you have a contract or an agreement, you have to honor it.

 

Mr. Tassone stated that in relationship to Ms. Langenfelder’s concerns, Mr. Nielsen articulated the issue quite well. Mr. Tassone asked Mr. Nielsen if we have developed a procedure by which we will allow people to take pre-existing dwellings and move their locations, with the understanding that the place they previously occupied was returned to agriculture. Mr. Nielsen answered yes. Mr. Tassone asked if there is a question of whether or not this proposed use constitutes being returned to agricultural use. Mr. Nielsen stated that the acre is supposed to be returned to open space. The expense of constructing another building is irrelevant. The fact is that to receive one chip, to move the house, they have to give up another.

 

Mr. Tassone stated that the issue isn’t about buildings, but about dwellings. If this was a dwelling and it will stop being a dwelling that will then serve as agricultural use, we don’t create any precedent to allow additional dwellings on the property.

 

Chris Wilson, Board member, stated that we keep referring to the old dwelling as a house. If we require them to remove the kitchen, it will no longer be a house, it will be a farm office used for agricultural purposes. That’s the principle.

 

Ms. Weaver directed her comment to Mr. Nielsen. She stated that when they looked at a similar request from Baltimore County, his opinion at the time was that the Foundation does not have the authority to approve a request to relocate a pre-existing dwelling and then change the status of the dwelling. Is that still the case? Mr. Nielsen replied that he was talking about the consequences of approving it. The Foundation does not have the authority to grant a subsequent owner the right to build a dwelling. However, we have come up with a theory that if the other dwelling is removed, not converted into something else, it is okay. The purpose of this program is to preserve open space and farmland.

 

Mr. C. Wilson stated that ‘to preserve farmland’ is a good point. This is a classic case of someone going into farming and we have to do everything in our power to not place obstacles in their way, but to help make that farm productive and viable as farmland.

 

Mr. Riley stated that if they tear the building down, they have open space, but he is allowed to build a structure to do the job he wants to do anyway. It takes farm buildings to provide for productive agriculture. Sometimes we have to think about agricultural production as much as we do land protection. They go together. He stated that he is concerned about the fact that the local board recommended this. Having been in local government for 12 years, he has lot of respect for what the officials feel should be done in their jurisdiction.

 

Mr. Conrad stated that he feels the reason for the staff’s concerns with this issue is the loss of control over what happens on the property. As an example, he has had an experience that may help in this situation. If you were building a structure that contained what you propose to do with this house, it certainly wouldn’t be the size of this existing house. Even after using the refrigerator, laundry and restroom facilities, there will be a lot of unused space. This is where his personal history comes in. He spent much of his young life living in chicken houses. If we had to monitor our farms to see if someone is living in the upstairs of those houses, we couldn’t do it. We cannot go into structures, we don’t have the investigative staff to do it, nor do we have an interest in invading people’s personal space. Part of his concern has to do with the loss of control. We have no control over where the structure is located (because it is a ‘farm building’), we have no control over the size of it, and we ultimately have no control over what kind of use it has. For this house, there may be a temptation, maybe by some other subsequent owner, to use it as a house because that’s what it is.

 

Mr. Colhoun offered a suggestion for the landowner to consider. What if they come back to the Board with a true, drawn-out plan of their intention of converting the dwelling to a farm structure. This would clearly show what they are suggesting. His feeling is that the Board might be more comfortable. Although a motion is on the table, he gave the landowners an opportunity to withdraw the request and come back at a later date.

 

Mr. Osborne stated that the only problem he foresees with postponing the issue is that the new house should be completed in the next few days. Once it’s done, the clock starts ticking for when they are supposed to remove the existing dwelling, as the Health Department requires. Mr. Powel stated that he waited for them to bring the issue up because he didn’t know how close they were to completion. A county clock starts running in the Permits Office for the older house to come down. He thinks it is a 30 or 60 day clock once they get a Use and Occupancy Permit. However, if the kitchen is to be removed, it would not require demolition. Mr. Powel felt it would not be a problem to get an extension of the time period if the issue were to come back to the Board.

 

Mr. Colhoun stated that he is offering the landowners an opportunity to regroup before the Board votes. Mr. Osborne stated that they would like to take their chances today.

 

Ms. Langenfelder asked Mr. Powel to define what is meant by ‘removing a kitchen.’ If the landowners are going to retain a refrigerator and a stove, that is part of a kitchen. Ms. Bikle stated that the stove would have to come out.

 

Ms. Weaver stated that as a staff member, she feels compelled to say that once we approve this request, we will have a flood of other similar requests. If we say that this house can stay, who will have the incentive to tear down a house? In the future, we will have more requests of this nature. We have to look at the program as a whole and we are tasked with the integrity of this program.

 

Dr. Pelura replied that the integrity of the program is the same as the integrity of farming. We are either here to help the farmer or we’re not. We have a decent farmer who says he needs this facility.

 

Mr. Nielsen stated that we are mixing apples and oranges. The first issue is, how do you give a subsequent owner the power to build a house? You allow them to remove an existing house and build a new one somewhere else. He agrees with Ms. Weaver that this will set a precedent and create a problem for the Board.

 

Dr. Pelura contends that at some point this Board had to give them permission to build this new house. They said we’ll let you do this if you tear down this building and put this back into agriculture. If you look at it, that’s kind of an unreasonable request. You can’t make ag land out of this little spot. I contend that the reason why Boards change is because thinking changes. The thinking back then was flawed. Mr. Conrad responded that in that case, we can’t approve the construction of the new house.

 

Mr. Tassone stated that the real issue seems to be the approval of moving the pre-existing lot. We will have to require some justifiable reason that protects the investment in the farm. But, in this case, we have to deal with the follow-up question.

 

Mr. Colhoun called for the vote.

 

Motion #7:        To approve the request of Steven Osborne and Kathleen Bikle to not have to raze the pre-existing dwelling but to re-designate it as a farm building with the condition that the kitchen be removed.

 

           Motion:            Chris Wilson                                             Second: Robert Stahl

           Opposed:         Patricia Langenfelder, Judy Lynch, Vera Mae Schultz

           Status:             Approved

 

2.        06-96-01Ae       Stambaugh, Rodney & Melanie                               85.762 acres

 

Request to exclude a 1.0 acre child’s lot for son, Cody Allen Stambaugh

 

Mr. Conrad introduced the item. Mr. & Mrs. Stambaugh are the original owners of this easement property. Previous approvals have included 1.0 acre children’s lots for their daughters, Samantha and Jennifer, on May 26, 1998. These lots have not yet been released from the easement. The Stambaugh’s were also approved on May 26, 1998 for an 11.00 acre agricultural subdivision which has never been completed.

 

The current request is to exclude a 1.0 acre lot for their son, Cody. According to Carroll County, the proposed lot will be located in an area that is currently woodland and clustered adjacent to the previously approved child’s lots. Access to Clear Ridge Road will be by right-of-way over a lot that was approved as a child’s lot for Rodney & Melanie on an adjoining easement that was owned by Rodney’s mother.

 

This request has been approved by the Carroll County Advisory Board and it conforms with local zoning regulations. If the request is approved, there will be a required payback to the Foundation of the per acre amount of $1,500.00, which the landowner received for the easement.

 

Foundation staff recommends approval based on the landowner’s rights contained in the deed of easement’s covenants, conditions, limitations and restrictions, Section A (1)(b) “...the Grantee, on written application from the Grantor, shall release free of restrictions only for the Grantor who originally sold this easement, 1.0 acre or less for the purpose of constructing a dwelling for the use only of that Grantor or the Grantor’s child...”

 

Motion #8:        To approve the request of Rodney and Melanie Stambaugh to exclude a 1.0 acre child’s lot for their son, Cody, from easement property.

 

           Motion:            Judy Lynch                                          Second: Shirley Pilchard

Status:             Approved

 

3.        06-96-01Ae       Stambaugh, Rodney & Melanie                               85.762 acres

 

Request to relocate and enlarge an approved child’s lot.

 

Mr. & Mrs. Stambaugh are the original owners of this easement property. Adjoining this easement is a property that was originally owned by Mr. Stambaugh’s mother, Rosalie Stambaugh (06-89-17Ae). MALPF approval and activity on easement 06-89-17Ae have been as follows:

 

 

As a perc test failed on the approved 1.0 acre child’s lot, the landowners were required to find another location. Once an acceptable alternate location was found (still within the 8.23 acres), the lot had to be configured in a way that meets with the county’s zoning code. To meet these requirements and to incorporate the well, septic area, and access, the lot had to be enlarged to 1.63 acres.

 

This request has been approved by the Carroll County Advisory Board and it conforms with local zoning regulations. If the request is approved, there will be a required payback to the Foundation of the per acre amount of $1,069.84 @ $1,500.00 per acre, which the landowner received for the easement.

 

Staff recommends approval of this request based on the provisions of the deed of easement and in accordance with Agricultural Article, Section 2-513(b)(3), Annotated Code of Maryland, which grants an allowance of a maximum lot size of up to 2 acres if required by regulations adopted by the Department of the Environment or the county.

 

Motion #9:        To approve the request of Rodney and Melanie to relocate and enlarge an approved child’s lot for Rodney Stambaugh on easement property.

 

Motion:            Chris Wilson                                              Second: Judy Lynch

Status:             Approved

 

 

 

1.        12-98-16           Getscher, Jr., Charles J.                                           66.47 acres

 

Re-review of a request to relocate a lot surrounding a pre-existing dwelling and to re-designate the pre-existing dwelling as a farm building

 

Mr. Conrad introduced the item. Mr. Getscher is the original grantor of the easement (as beneficiary under his uncle’s estate). During the February meeting, the Board heard a request from Mr. Getscher to relocate the lot surrounding the pre-existing dwelling to another location on the farm, for the construction of a home and to re-designate the pre-existing dwelling as a farm building to be used for the storage of hay.

 

During the meeting, Mr. Getscher explained that it was his intent to dismantle the apartment in the pre-existing dwelling and to use the building for hay storage. The Board reviewed photos of the pre-existing dwelling.

 

The proposed location of the new dwelling is within the current homestead area and would be accessed through an existing farm lane.

 

The request was approved by the local advisory board and conforms to local zoning regulations. Attached for your review are county approval letters, the landowner’s letter and a location map.

 

During the February Board meeting, Foundation staff and counsel recommended denial of the request to re-designate the pre-existing dwelling, based on precedent of prior Board decisions. The Foundation has a policy of not allowing re-designation of lots because of the potential to encourage more development on a property than would normally be allowed under the terms of an easement. On April 22, 2003, the Board denied a request to re-designate a pre-existing dwelling as an agricultural support building. On October 28, 2003, the Board denied a request to re-designate the original area of a relocated pre-existing dwelling lot as a tenant house. On May 25, 2004, the Board denied a request to re-designate a pre-existing dwelling as a tenant house.

 

While sympathetic to Mr. Getscher’s predicament, Foundation staff believes that approving the request will set an undesirable precedent for the Foundation. If the Foundation approves this request, there will undoubtedly be an increase in requests to allow re-designation of pre-existing dwellings. The easement does not grant the right to relocate dwellings on properties. The Foundation has accommodated requests for relocation in the past, with the condition that existing dwellings be demolished, thereby ensuring that no additional development will take place on the property.

 

Foundation staff has concerns about the complications involved in monitoring activities in re-designated pre-existing dwellings. The Foundation does not have the authority to enter buildings on easement properties to ensure compliance.

 

Further, if the Board approves this request on the basis that the building will be used for agricultural uses, an argument could be made in the future that a tenant house is an agricultural use of a building. There may be unforeseen additional arguments or scenarios in the future that could use the precedent of approval of this request with undesirable consequences.

 

In this instance, Mr. Getscher would like to keep his barn and build a new dwelling. This can be accomplished by requesting an owner’s lot and using the pre-existing dwelling for hay storage (and retain an existing dwelling right on the property). According to Mr. Getscher, he is requesting the relocation of the pre-existing dwelling rather than an owner’s lot because Harford County places requirements on the subdivision of lots, causing the owner to incur additional expense. Perhaps the Foundation could ask the County to consider waiving the requirements in Mr. Getscher’s case, or re-designate the new dwelling, in such a way, if allowable under County Code, as to accommodate Mr. Getscher’s need to build a new dwelling, without having to incur the additional expense.

 

Following last month’s meeting, two Board members, Dan Calhoun and Joe Tassone, visited the site to make an assessment of the subject pre-existing dwelling. Mr. Colhoun and Mr. Tassone will present their findings to the Board during the meeting. Attached (to the agenda item) is a letter of opinion to Jim Conrad from Nancy Forrester, Assistant Attorney General, Department of General Services.

 

Mr. Conrad pointed out that if it were the owner’s desire just to build a house, he wouldn’t have to ask for the re-designation. He would just ask for an owner’s lot. Then this would stay as a pre-existing dwelling. Staff’s recommendation is to ask the Board to grant an owner’s lot, rather than dealing with the issue of re-locating this lot.

 

Mr. Getscher asked if to request an owner’s lot would enable him to cut the parcel off from the farm and sell it. He stated that although he has no desire to sell the lot with an owner’s dwelling, a subsequent owner could. He is trying to avoid that situation. He wants to keep the parcel as a whole. Mr. Conrad stated that he could put in a deed restriction, where the property conveys as one piece. He asked if he could still receive agricultural taxes if he did not cut the parcel off. He doesn’t want to exercise the owner’s lot. He just wants to take the pre-existing lot and move it then restore the original acre back to agricultural use.

 

Mr. Conrad pointed out that a subsequent owner could still subdivide the (new) house. It would still be a pre-existing dwelling lot.

 

Mr. Nielsen reiterated that he thinks allowing re-designation is contrary to the program. Even though this gentleman is the original owner of the farm, if he converts one house into a barn, gets the development right somewhere else, then gets another development right, that gives him two development rights when he is only entitled to one.

 

Mr. Tassone stated that right now the owner has these development rights: 1) he can get an owner’s lot that can be subdivided, 2) he can exclude a lot around the pre-existing dwelling. That’s two (2) subdividable lots from the farm. What is being proposed here is: let me move one of those subdividable rights, build a house that I’ll make non-subdividable, and then I’ll also give up the right to another future lot. Then there will only be one house on the property. We will reduce the subdividable lot rights by two (2) and create a farm house that will stay with the property. The structure that is there now, is not a house. It is a barn with an apartment. It was a mistake to count this as a dwelling when he first came into the program. When Mr. Tassone and Mr. Colhoun visited the farm, they climbed around in the structure. It is definitely a barn.

 

William Amoss, Harford County Program Administrator, stated that there are a lot of Board members present who don’t totally understand the situation and he asked Mr. Tassone and Mr. Colhoun to take the time to explain that they visited the property and that this is a real barn. Mr. Getscher (the original owner) wanted to preserve this property. He had placed a small apartment in the top of the barn because his home was in Baltimore City. That ‘right’ was reserved out of the easement. It is a very small apartment. All he wants to do is to clean that apartment up so that he can have more hay storage in the barn, then go within 100 feet to construct a real house for his family and his children. Mr. Amoss stated that he feels the landowner has the right to do that. The Board just approved a house being converted into an office. This is a real barn and all he wants to do is build a real house. If he chooses to create an owner’s lot at some point in the future, he’ll have the right to do that.

 

Mr. Colhoun stated that he and Mr. Tassone understand the dilemma. He stated that what Mr. Amoss described is what they saw and he feels this request is legitimate. Mr. Tassone added that when the easement was purchased, it was recognized as a pre-existing dwelling. He does not know who made that decision.

 

Ms. Pilchard asked how the building was assessed for tax purposes. Mr. Amoss answered that it was assessed as a farm building for tax purposes, but it was labeled as a residential area for this program.

 

Mr. Tassone stated that he understands that the intention here was for the owner to give up his owner’s lot right. Mr. Getscher stated that it really depends on what the Board says. He doesn’t really want an owner’s lot, or children’s lots, because that would create problems in the family. He wanted it to remain as a farm with one house. Mr. Tassone stated that the reason he raises that issue is that for the Board to have a good basis for anyone to move lots around pre-existing dwellings, we need to be very careful and judicious about insuring that when we do allow it, it is being done for a good reason and it protects and enhances the State’s interest in the property. He stated that he is in favor of granting the request with the condition that the owner’s lot right is waived.

 

Mr. Nielsen asked that the record reflect the fact that in this particular case, there was a mistake made in recognizing the barn as a pre-existing dwelling. Mr. Tassone agreed that both he and Mr. Colhoun, who both visited the farm, feel that a mistake was made and that this is clearly a barn, not a residence.

 

Motion #10:      To approve the request of Charles J. Getscher, Jr., subject to the conditions that 1) he waive his owner’s lot and 2) he amends the Deed of Easement to say the relocated pre-existing dwelling lot will not be subdivided from the easement.

 

Motion:            Joe Tassone                                            Second: Chris Wilson

Status:             Approved

 

Amended Motion #10: To also have the record show that it is Joe Tassone’s and Dan Colhoun’s opinion that a mistake was made in classifying the structure as a pre-existing dwelling. They both visited the farm and feel it is definitely a barn.

 

Motion:            Joe Tassone                                            Second: Chris Wilson

Status:             Approved

 

 

1.        05-87-02As       Hubbard, Frederick D. & Janet B.                              59.20 acres

 

Amend easement to exclude acreage intended not to be under easement

 

Ms. Weaver introduced this item. Mr. and Mrs. Hubbard are the original grantors of the easement. The current request is to amend an easement to exclude a 1.809-acre area that was not intended to be placed under easement.

 

On April 26, 1988, the Foundation’s Board of Trustees approved an offer to purchase an easement on this property. An option contract was sent to the landowner, which was signed and returned to the Foundation on May 13, 1988.

 

On June 23, 1988, the Foundation received notification from the County that a survey revealed that a 1.809-acre area of the district was part of a 5.092-acre area that was withheld from an adjoining district for an existing cell tower. When excluding acreage from the district, neither the landowners nor the County realized that the cell tower area straddled both parcels. Only 3.283 acres of the 5.092-acre area requested to be withheld was part of the adjoining property. The remainder (1.809-acres) was part of this district/easement. There does not appear to have been any follow-up by the Foundation or the County on the complications caused by the boundary-line issue. There is no indication of a request for a boundary line adjustment. Settlement of this 5.092-acre parcel took place on December 15, 1988. The 1.809-acre area was not excluded from the easement. The 5.092-acres were subsequently sold to a communications company on March 2, 1989. The 3.283-acre area was excluded from the easement on the adjoining parcel, which settled on November 6, 1989.

 

It is apparent that at the time of settlement of the adjoining property that the error had been discovered because the settlement (same landowner) amount was reduced by 1.809 acres (a letter from Department of General Services, dated June 28, 1989, indicated that the per acre amount for both properties was $600.00). However, the recorded deed of easement was not amended. The issue was discovered recently when the County received an application for approval from the communications company for further construction with updated equipment on the 5.092-acre property.

 

Foundation staff recommends approval of the request to amend the deed of easement, releasing the 1.809-acre area, which was intended to be withheld from the district/easement.

 

Mr. Conrad stated that this item will have to go to the Board of Public Works.

 

Motion #11:      To approve the request of Frederick D. and Janet B. Hubbard to amend the Deed of Easement to exclude acreage intended not to be under easement.

 

Motion:            Shirley Pilchard                                        Second: Robert Stahl

Status:             Approved

 

 

III.       AGRICULTURAL PRESERVATION DISTRICT PETITIONS

 

 

1.         21-05-01           Barr, Phyllis J.                                                         90.14 acres

 

Ms. Schultz asked that the recommendation include the encouragement of the landowner to get a forest stewardship plan.

 

Motion #12:      To approve the request to establish an agricultural land preservation district, and to encourage the landowner to get a forest stewardship plan.

 

           Motion:            Shirley Pilchard                                        Second: Robert Stahl

           Status:             Approved

 

 

1.         07-05-01           Stoltzfus, Amos F. & Sarah G.                                  62.81 acres

 

Mr. Tassone asked if the six (6) acres being withheld would only allow for two (2) development rights. David Black, Cecil County Acting Program Administrator, replied yes, there are only two (2) development rights associated with the six (6) acres. Mr. Tassone asked if those two (2) development rights would be recognized in an appraisal for the easement so that we don’t pay for them. Mr. Conrad concurred.

 

Mr. Tassone then wanted to be assured that no more than two (2) development rights will ever be allowed on the withheld acreage as we will have paid the landowner for the rest of the development rights. Mr. Black replied that barring any extreme rezoning, there will always be only two (2) development rights available.

 

Mr. Conrad noted that the Amish do not usually participate in this program.  However, having nine (9) children and the last name of Stoltzfus lead him to believe that this landowner is Amish. Mr. Black acknowledged that yes, Mr. Stoltzfus is an old-order Amish gentleman. The reason he has applied for this program is that when he purchased the property from Ken Marshall the condition of the sale was that the ‘owner’ attempt to place the property into a preservation program. This is Mr. Stoltzfus’ attempt to do that. Mr. Conrad asked if Mr. Stoltzfus will apply to sell an easement to the Foundation. Mr. Black responded that he would not apply for an easement. Simply having the district on the property fulfills the landowner’s obligation.

 

Mr. Tassone stated that he is not sure that the Foundation has dealt with the issue of working out an arrangement with each county as to how they would assure excluded acreage doesn’t ever get any more development rights than what is agreed to at the time of district approval. For instance, in Carroll County, they keep their records in such a way that it is taken care of. Although he doesn’t feel it is an issue on this particular property, he would like the Board to go back and revisit the issue.

 

Motion #13:      To approve the request to establish an agricultural land preservation district.

 

Motion:            Joe Tassone                                        Second: Jerry Klasmeier

Status:             Approved

 

 

1.         20-05-01            Elben, Michael W., et al                                         250.00 acres

 

 

Martin Sokolich, Talbot County Program Administrator, stated that Mr. Elben could not be present at the meeting for personal reasons, but he is excited about the opportunity to be in the program. This will eventually be one of the largest easements in the county.

 

Ms. Langenfelder stated that since the landowner is withholding five (5) acres surrounding the pre-existing dwelling, it creates a large farm with no dwelling. We should consider the fact that a subsequent owner will not have the ability to live on the farm.

 

Mr. Tassone replied that the Foundation tried to address this issue legislatively in the past and there wasn’t a clear consensus as to whether or not acreage without a dwelling is a good or a bad thing from a farmland preservation perspective. In some areas, it’s a good thing because it provides cheap, rentable land for large producers, while in other areas it was a bad thing because no individual could purchase the farm with the idea of living on it. We couldn’t find the balance. Mr. Tassone asked Mr. Sokolich if it is correct that the landowner has agreed to a deed restriction on the larger excluded portion.

 

Mr. Sokolich replied that yes, there is a letter from the landowner agreeing to restrict the property to three (3) development rights.

 

Mr. Conrad asked why the landowner wants to exclude the farmstead from the property. Does he plan a bed and breakfast or some other venture? Mr. Sokolich replied that the property is in joint ownership with his mother and his wife. The mother is living in the home (pre-existing dwelling) now. Mr. Elben is just trying to maintain some flexibility for the future. He doesn’t want to break up the farm any further.

 

Motion #14:      To approve the request to establish an agricultural land preservation district with the understanding that the landowner has agreed to placing a deed restriction on the 25 acres to restrict it to a maximum of three (3) development rights, and to encourage the landowner to acquire a forest stewardship plan.

 

Motion:            Joe Tassone                                        Second: Jerry Klasmeier

Status:             Approved

 

 

IV.       PROGRAM POLICY

 

           None

 

 

 V.      INFORMATION AND DISCUSSION

 

           (NOTE: THESE ITEMS WERE TAKEN OUT OF ORDER)

 

 

Ms. Weaver introduced this item. Legislation was enacted in October, 2003 that gave the Foundation the authority to develop a ranking system. Up until now, our properties have been ranked according to the discount formula. The new ranking system that was enabled by the legislation places emphasis on protecting larger farms with better soils that are better protected in their surrounding areas by large contiguous blocks of preserved farmland. Staff has divided the ranking into three different categories: The first category is counties that have no applications for FY 2005. The second category is those that have been administratively approved using either LESA or the ranking guidelines that were approved by the Board in October, 2004. The third category are those that are pending Board approval. In the case of Caroline and Washington counties, they diverge from the approved ranking guidelines. That does not mean that they can’t be approved, they just have to be review by the Board.

 

Ms. Council introduced the Washington County ranking. Ms. Council stated that their ranking formula is one that they have used before. They have 17 easement applications for FY 2005. In reviewing their ranking, although they didn’t use MALPF’s criteria, most of the categories were addressed. There is one item missing that needs to be addressed :item P2, the distance from a Priority Funding Area (PFA). Ms. Council’s recommendation is that Washington County address that one issue and that the County re-work their point value so that it is more in line with the point value approved by the Foundation. Eric Seifarth, Washington County, spoke with Ms. Council prior to the meeting and explained that if the County has to re-do their ranking at this time, it will create a problem by changing the order of their landowners, who have already been ranked and approved by the County.

 

Mr. Seifarth addressed the Board and stated that the County will be complying with MALPF’s request, they are just asking for an extension to the summer. They had their public hearing with the County Commissioners and a week later got notification from MALPF that they needed to address the new criteria. For this year it would be very difficult to go back to the property owners and tell them that although they were first or second (at the public hearing), it didn’t count and they are now lower on the list and may not receive an offer. They are asking to use the existing criteria for this year. They are working with soil conservation to implement the LESA system for next year. They have been working very hard to cluster their easements. This is working so well that landowners who are not contiguous to large blocks are complaining to the County Commissioners because they are not being selected. They have 18,000+ acres under permanent easements.

 

Mr. Conrad stated that he would not have a problem with them using their system this year. Mr. Conrad asked if there were any PFA’s in Washington County. Mr. Tassone replied that there are some but he doesn’t feel it’s an issue for this year. They (the county) are working hard to get it done.

 

Mr. Seifarth added that the County is starting an IPA (installment purchase program) this summer that is based on their ranking.

 

Motion #17:      To approve the waiver of MALPF’s requirement that the county use its approved ranking system for FY 2005.

 

Motion:            Vera Mae Schultz                                       Second: Judy Lunch

Status:             Approved

 

Ms. Weaver stated that for Caroline County, the same criteria needs to be addressed. Obviously Caroline County does not have a lot of development. It is predominantly rural, with the exception of Denton. We recommend approval because the County is placing 25% of its total points in the preservation of surrounding areas, exceeding the minimum level of 20%, subject to the condition that Caroline County agrees that they shall include this element into the FY 2006 ranking system.

 

Mr. Conrad asked if Caroline County had already ranked their properties and if so, would it be affected if they had to change their ranking method at this time. Ms. Buckle replied that they have already ranked their properties and that changing may affect their priority listing. Their properties were ranked in the Fall. However, the real issue for them is that the County is working very closely with their municipalities on an inter-governmental agreement with purchasing TDRs from the county in order to be able to develop within the county. In order to do that and to get the Council on board, they did not want to put the PFAs into this ranking system. They will certainly use the LESA system next year.

 

Foundation staff’s recommendation is to have them use their current ranking system for FY 2005 and to use the LESA system for FY 2006.

 

Motion #18:      To approve the waiver of MALPF’s requirement that the county use its approved ranking system for FY 2005.

 

Motion:            Joe Tassone                                 Second: Patricia Langenfelder

Status:             Approved

 

 

 

Mr. Colhoun introduced this item first on the agenda. He asked that any representatives from Howard County who may have comments or remarks on the item to feel free to speak up. As the Board had previously heard testimony on the item, he asked the guests to be as brief as possible today. Joy Levy, Howard County Program Administrator, and Mina Hilsenrath, Howard County Department of Planning and Zoning, were present and addressed the Board

 

Ms. Levy stated that the most recent correspondence from Marsha McLaughlin, Director of Howard County Planning and Zoning, summarized their accomplishments in land preservation and outlined some of the changes that they might be able to offer as a means of retaining their certification, which is very important to them. Two things that Ms. McLaughlin’s letter mentioned were 1) changes to their zoning regulations that would reduce the development potential in the rural west, and 2) a proposal to change the Adequate Public Facilities Ordinance legislation to enable reduction in the pace of development in the rural conservation area from 250 units a year to 150. That is something that Ms. McLaughlin feels can be accomplished in fairly short order. Ms. Levy restated that the retention of their certification is very important to them.

 

Ms. Hilsenrath stated that she is here primarily to answer any questions about land management in the county and to reiterate that they very much believe in the certification process, they believe in their program and they sincerely hope MALPF will vote to recertify their program.

 

Mr. Colhoun asked if the Board members had any other questions they would like to ask Howard County. Audrey Scott, Secretary, Maryland Department of Planning, asked if there has been any discussion with the Council on this issue, as far as modifications or changes to the zoning laws.

 

Ms. Hilsenrath replied that yes, there have. They have met both with the County Executive and the members of the County Council, briefing them on what’s going on with the certification process and on a number of different scenarios that might need to be place before them to try and strengthen the program and reduce the development pressure in the west so that they would have a better opportunity to continue their accomplishment of land preservation.

 

Ms. Scott asked if any of the discussions centered around the 1:4 zoning. Ms. Hilsenrath answered that they talked about two things. One was the potential for downzoning and the other was the potential for reducing development and for reducing the actual build-out in terms of density sending versus density receiving. In general, the consensus was that the County Council would find any proposal to downzone very difficult to represent to their constituents. There have been repeated attempts by the Department of Planning & Zoning in the past to propose downzoning. It has been very vocally and visibly fought by the farmers. The possibility of downzoning is something that they do not envision being successful in the county at this point.

 

Dr. Pelura asked how long the Department has been dealing with the recertification of Howard County.  Mr. Tassone responded that the issue started being raised as one of considerable concern in 1998/99. Dr. Pelura asked if the last decision was made to not recertify them. Mr. Tassone responded that no actual, official decision was made because it was precluded by the Governor.  Mr.Conrad stated that it was before the Foundation in 2001 but was not resolved.

 

Dr. Pelura stated that given this, Howard County has been aware of problems for a while. Mr. Tassone responded that the County has been aware of, and has been trying to deal with the problems before 1998. Ms. Hilsenrath stated in her comments that the County Council has tried to address their zoning difficulties. She also stated that in Howard County, the biggest change occurred in 1993, as a result of the 1990 General Plan. There had been downzoning proposals before then, but the 1990 General Plan wanted to do something about the 1:3 zoning in the west to really reduce development pressure and to bring forward a cluster ordinance, an ordinance that would allow transfer of density. The Rural West Commission had met for at least a year. It had representatives of all different constituents in the rural west to look at what would be an appropriate zoning. The Commission’s recommendation went before the County Council and that’s when they designated the R district (Route 32/216 corridor) as the priority area for density receiving because it was significantly built out at that time. That’s also when the compromise was made to put the density at 1:4.25. At that time, they also looked at density transfer to the east, which was rejected by the citizens. So in 1993 they put in place the zoning that’s there now. By 1997 when they started the communication with the State, that zoning hadn’t been in place very long. What they tried to do from 1997 to the 2000 General Plan was to make some minor adjustments. To go back and do rezoning after the comprehensive rezoning that had a solid constituent base didn’t seem like something that could be accomplished by 1997.

 

Dr. Pelura asked if the constituents in Howard County are satisfied with the zoning situation now. Ms. Hilsenrath answered that she believes that they are.  Especially as this relates to the rural west.

 

Ms. Schultz passed out a motion to each Board member for their review. Mr. Colhoun asked that she read the motion.

 

Motion #3: “I move the Board of Trustees will grant conditional recertification to Howard County’s Agricultural Land Preservation Program (ALPP) for the two-year period starting July 1, 2005. This recertification is conditioned on Howard County’s adoption and implementation of legislation to increase the protection of farmland by reducing the potential for non-agricultural development in the Rural West prior to the next recertification request. The County will adopt and implement three types of revisions:

 

 

Documentation of the County’s success in implementing these improvements must be submitted to the Maryland Agricultural Land Preservation Foundation by July 1, 2006. If this deadline is not met, the distribution of the agricultural transfer tax revenues will revert to the non-certified allocation of 33% retained by the County and the balance forwarded to the State, and any agricultural transfer tax revenues collected after July 1, 2005, will be distributed based on the non-certified formula until a non-conditional certification or recertification is approved.

 

This general motion and its specific implementation will be subject to a memorandum of understanding or contract to be agreed to by the governing authority of Howard County, the Maryland Agricultural Land Preservation Foundation, and the Maryland Department of Planning by June 30, 2005.”

 

 

Mr. Tassone stated that he feels there are serious questions about the ability of these three actions (as listed in the Motion) to do what it says in the heading of the motion, that is to ‘reduce the potential for non-agricultural development in the rural west’. He doesn’t feel that these things can accomplish that. One thing that might be changed to increase the chances of success would be if #2 said “Zoning regulation changes that would decrease the amount of rural development by revising the eligibility criteria…” He feels that the motion, as stated, is certainly a good effort to come up with something that will work but this is a complicated undertaking. It is not a simple set of changes that will be easy to observe.

 

Mr. Riley stated that he feels this effort gives the county an opportunity to make it work. He feels that the county deserves the chance in order to keep their preservation program promoted. It’s a good start.

 

Ms. Scott agreed and commended Howard County for coming forward with recommendations and changes and for addressing a serious issue in their county, for recognizing that the intent and goal of the MALPF program has not been met and needs to be met. She is pleased that there has been a lot of conversation and real efforts of Howard County with the MALPF Board. She looks forward to working with Howard County to resolve the problems and to hopefully address the issue in a meaningful way. She agrees with Mr. Tassone. When she looks at the language, there needs to be some reference to decreasing the amount of development, not just slowing it down.  Slowing it down means that the ultimate will still be wall-to-wall development at 1:4 throughout the entire county. It could ultimately mean that there won’t be any farmland anywhere in Howard County. There has to be an attempt to somehow decrease the amount of future development. She asks that those words be incorporated into the motion.

 

Mr. Stahl stated that he needs some clarification. Number 1 talks about ‘adequate public facilities regulations’. APF regulations are so varied that he wants to know what modifications are going to be acceptable? Is there some level of acceptability? Mr. Conrad asked that the last paragraph be read. It states that a memorandum of understanding will be drafted and must be approved by MALPF, Howard County and the Dept. of Planning. It will then come back to the Board (or the implementation of the MOU could be delegated to staff). Mr. Stahl was satisfied with the response.

 

Amended Motion #3: Number 2 of the original motion be changed to read: “Zoning regulation changes that would decrease the amount of rural development by revising the eligibility criteria…”

 

Amended Motion: Joe Tassone                             Second: Patricia Langenfelder

Opposed:         Lewis Riley, Shirley Pilchard

Status:             Approved

 

Jerry Klasmeier, representing Comptroller Schaeffer, stated that this is the first time he has been on the Board to discuss recertification. The agenda material states the Board will grant additional recertification. He asked if it is the Board’s responsibility or is it our responsibility to make a recommendation to the Maryland Departments of Planning and Agriculture. Mr. Colhoun answered that it is his understanding that this Board makes its decision and stands alone on the issue. The Planning Department makes its decision and also stands alone. The two departments are independent. They (Dept. of Planning representative) do sit at this Board and they have a vote, which is recognized.

 

Mr. Klasmeier noted that this Board could recommend recertification and the Dept. of Planning could recommend denial. What then? Mr. Nielsen stated that the Statute states that recertification has to be jointly approved. If either Department does not approve recertification, it will not be approved. Dr. Pelura asked if this Board then acts for The Dept. of Agriculture or are we making a recommendation to the Department, leaving it to Mr. Riley’s discretion. Mr. Nielsen stated that the Foundation is the one to make the decision. As such, the Foundation makes the stand-alone decision (for the Dept. of Agriculture) and the Dept. of Planning makes their own independent decision. If they happen to agree, recertification is granted.

 

Dr. Pelura stated that he understands the desire to recertify Howard County. However, a couple of things are bothering him. #1 It seems that we are trying to bend the MALPF criteria to fit their situation. Either we have a set of criteria that we follow or we don’t. #2 Howard County has had plenty of time. #3 Based on their history and their comments today, the citizens like the status quo. The amendments are nice, but are they realistic?

 

Mr. C. Wilson stated that while those are good points, he feels that the conditional recertification is pretty clear and it allows for us to revisit the issue. He feels that’s the strength in the motion.

 

Dr. Pelura asked what is meant by the ‘governing authority of Howard County.’ Is it the County Council or the County Executive, or both. How do they express its concurrence in the MOU, by resolution of the County Council? He is making the distinction because there are arguments over who the governing authority is. Mr. Neilsen stated that he will contact the County Solicitor’s office and address the issue with her. Ms. Scott replied that in Prince George’s County, the County Executive has no land use authority, it all rests with the Council. She would anticipate that it is the same in Howard County.

 

Ms. Scott asked when was the last time that Howard County actually purchased any agricultural easements through the MALPF program. Ms. Levy responded that there have been three (3) within the last three (3) years.

 

Shirley Pilchard, Board member, stated that in reading the letters we received from the county her concern is there will be lots of properties reaching 25 years of easement status. How much land in the County does that include? Ms. Levy responded that Howard County currently has over 19,000 acres protected, 4,000 of those acres are MALPF easements that have the 25 year provision. Howard County’s easements are perpetual.

 

Ms. Pilchard then stated that what concerns her is that if we don’t support this motion and recertify Howard County, we are sending a message that we may not be concerned with whether those 4,000 acres of MALPF easements are important.

 

Mr. Stahl wanted clarification. He had understood that the 25 year issue didn’t have anything to do with certification. His understanding was that the easements are perpetual, but after 25 years the landowners had the right to appeal to remove their property from the program but there was nothing that we had to do. Mr. Nielsen stated that he is correct; there is no relationship between the 25 year clause and recertification. These are two separate issues.

 

Mr. Conrad further clarified that the easements are, indeed, perpetual and the landowners may request to be released. The basis for release would be that they do not have any feasible farming potential on the land.

 

Motion #3:        Vera Mae Schultz                                     Second: Chris Wilson

Opposed:         Dr. James Pelura

Abstained:        Joe Tassone

Status:             Approved

 

 

Daniel Rosen, Maryland Department of Planning, handed out a summary and some graphs to the Board members.

 

Barbara Polito, Anne Arundel County Program Administrator and Betty Dixon, Land Use and Environment Officer, were present to address the Board and answer any questions.

 

Mr. Conrad reviewed Anne Arundel County’s application.

 

The County has a specific goal to preserve 20,000 acres by 2010. As of the end of FY 2004, they have entered over 10,033 acres into permanent agricultural preservation easements. The largest share of permanent easements are county held. The County consistently participates in the MALPF matching funds program and provide a 100% tax credit on land up to $250,000 of the assessed value of structures for 10-year district agreements and easement properties. Current zoning is one dwelling unit per twenty acres (1:20). The county meets all of the certification requirements for qualifying expenditures and use of certification funds and has provided a record of revenues and expenditures.

 

In FY 2003 although no MALPF easements were purchased, the County PDR program purchased six (6) easements, covering 476 acres. In FY 2004, there were two (2) MALPF easements (263 acres) and three (3) County PDR program (267 acres) purchased. The County Executive appointed a group of local farmers and other interested parties to a committee to review and evaluate for recommendations the current Agricultural and Woodland Preservation Program. This committee made recommendations for amending the then proposed family conveyance policy and changes to the easement document to reflect farming changes since the tobacco buyout. The committee has completed its report and made its recommendations to the County Council. Chris Wilson, Board member, served on that committee. During the reporting period 2003-2004, while 685 acres were converted, 1,621 acres were preserved.

 

The RA-zoned area of the County continued to experience fragmentation due, at least to some degree, to the family conveyance policy and easement costs continue to increase. Ms. Dixon replied that a new family conveyance policy was voted on and passed on March 21. The content of the policy is that there is no family conveyance. The minor subdivision ability is still there, but it is now done at a density of 1:20 acres.

 

Ms. Dixon added that the new regulations and changes to the County code have been drafted and they would be discussing them with the Agricultural Land Preservation Board to get their recommendations. They are looking forward to getting them passed by the County Council.

 

Mr. C. Wilson added that the County program operates at the pleasure and insistence of the County Executive. The program has been revitalized in recent years and the County Executive is to be commended.

 

Foundation staff recommend approval of recertification for another two (2) year period.

 

Motion #15:      To approve Anne Arundel County’s request for recertification.

 

Motion:            Robert Stahl                                         Second: Jerry Klasmeier

Abstained:        Joe Tassone

Status:             Approved

 

3.         Cecil County

 

Mr. Conrad introduced this item. David Black, Cecil County Acting Program Administrator, was present to address the Board and to answer any questions. Mr. Rosen passed out several handouts and asked to address the Board.

 

Mr. Rosen stated that in their review of Cecil County’s request for recertification, they wanted to talk to them about their recent rejection of a proposal to tighten up their zoning in the agricultural areas, even though they are greatly increasing the money they want to spend on easements. MDP wanted to demonstrate a situation where they can spend a lot of money buying easements and yet the zoning would still allow a lot of houses amongst the easement properties, as has happened in other places.

 

Mr. Conrad stated that Cecil County’s goal is to preserve 30,000 acres in the Resource Protection District Area (RPD) and 25,000 acres in the Rural Conservation District (RCD) area by 2025. Over 18,000 acres have been preserved by a combination of MALPF, Rural Legacy, MET, and through the efforts of local land trusts. As of June 30, 2004, the County had preserved 12,188 acres through permanent MALPF easements. The county contains two (2) Rural Legacy Areas.

 

The local program proposed a County PDR program to purchase easements independently of MALPF and it is under consideration by the County Board of Commissioners.

 

The County meets the certification requirements for qualifying expenditures and use of certification funds and has provided a record of revenues and expenditures. In FY 2003 five (5) MALPF easements were purchased (435 acres) and four (4) MALPF districts were established (259 acres). In FY 2004 eleven MALPF easements were purchased (913 acres) and four (4) MALPF districts were established (378 acres).

 

Program strengths include an ongoing strong financial commitment to easement purchases and movement towards establishing a County PDR program with dedicated funding. A County TDR program is in the process of implementation, and the County employs an agricultural coordinator to promote the agricultural economic development of the agricultural sector. Support activities include two farmers’ markets operating in the County.

 

Weaknesses include fragmentation which continues to occur due at least in part to high zoning densities in the RPD and RCD areas. The County considered amendments to the zoning ordinance that would have changed density in the RPD area from 1:5 to 1:20 and from 1:8 to 1:30 in the RCD area. However, the Commissioners did not approve the amendments.

 

The County program continues to appear to be highly likely to succeed in supporting viable agricultural operations and preserving agricultural land in perpetuity.

 

Foundation staff recommends recertification for another two-year period starting July 1, 2005.

 

Motion #16:      To approve Cecil County’s request for recertification.

 

Motion:            Chris Wilson                                Second: Patricia Langenfelder

Abstained:        Joe Tassone

Status:             Approved

 

Ms. Schultz reported that cost sharing is now available for the preparation of Forest Stewardship Plans under the Federal FLEP (Forestland Enhancement Program). Up to 75% (based on a formula) of the cost of preparing a plan now qualifies for cost sharing. This is a change in the Federal budget, last year no money was available for this but tree farmers and other farmers across the country got active and got it restored into the current budget.

 

Ms. Buckle asked who a landowner would contact in order to take advantage of the program. Ms. Schultz replied that the county forester or farm services agency would have information.

 

Mr. Colhoun stated that beginning during the summer months, the Board would convene at 9:00 a.m. to spend ½ hour dealing with one issue at a time from our workshop/retreat. The regular Board meeting would convene at 9:30. Mr. Colhoun asked if the Board had any objections to beginning the 9:00 meetings during the summer months.

 

 

There being no further business, Mr. Colhoun asked for a motion for adjournment of the meeting

 

Motion #17:      To adjourn the meeting.

 

Motion:            Joe Tassone                                  Second: Patricia Langenfelder

Status:             Approved

 

 

 

The regular session Board meeting was adjourned at approximately 1:00 pm.

 

 

 

Respectfully Submitted:

 

 

 

_____________________________________

James A. Conrad, Executive Director

 

 

_____________________________________

Carol S. Council, Administrative Officer