MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

MINUTES

 

April 26, 2005

TRUSTEES PRESENT:

 

Daniel Colhoun, Chairman

Vera Mae Schultz, Vice Chairman

Jerry Klasmeier, representing Comptroller Schaefer

Patricia Langenfelder

Lewis Logan, representing Treasurer Kopp

Judith C. Lynch

James Pelura, D.V.M.

Robert F. Stahl, Jr.

Joe Tassone, representing Secretary Scott, Department of Planning

 

TRUSTEES ABSENT:

 

Shirley Pilchard

Chris Wilson

 

OTHERS PRESENT:

 

David R. Black, Office of Planning & Zoning, Cecil County

Robert Bryan, Landowner, Kent County

Tammy Buckle, Caroline County Program Administrator

Hamilton Chaney, Landowner, Anne Arundel County

James A. Conrad, MALPF Executive Director

Carol Council, MALPF Administrative Officer

Rama Dilip, MALPF Secretary

Allen L. Dutterer, Carroll County, Landowner

Charles Ensor, Baltimore County, Landowner

Nancy Forrester, Assistant Attorney General, Department of General Services

John H. Hull Jr. “Jay”, representative of Mr. Allen L. Dutterer, Carroll County, Landowner

Sonja Ingram, Frederick County Asst. Program Administrator

Ron Johnson, Engineer, Anne Arundel County

David Kelleher, Department of General Services

Don Lewis, State Chemist, Maryland Department of Agriculture

Wally Lippincott, Baltimore County Program Administrator

Carla Martin, Kent County Program Administrator

Tobin McNatt, Caroline County, Landowner

Will McNatt, Caroline County, Landowner

Bill Middleton, Chairman Board of Trustees, Zion Methodist Church, Wicomico County

R. Moser, Landowner, Carroll County

William Powel III, Carroll County Program Administrator

Charles Rice, Charles County Program Administrator

Daniel Rosen, Planner, Maryland Department of Planning

Donna Sasscer, St. Mary’s County Program Administrator

Eric Shertz, Cecil County Program Administrator

Gloria Smith, Wicomico County Program Administrator

Debbie Vaughan, Anne Arundel County Agricultural Planner

Elizabeth Weaver, MALPF Administrative Officer

Susan Wilson, Frederick County, Landowner

 

The Board met in open meeting at 9:00 a.m., at the Maryland Department of Agriculture, Annapolis, Maryland, as recommended by the Chair, Daniel Colhoun, and as agreed by the Board of Trustees. The Board will meet at 9:00 a.m. through the summer months. The Board will discuss policy issues between 9:00 a.m. and 9:30 a.m., at which time the regular business meeting will begin. This month the Board took up the subject of the relocation of existing dwellings on the Foundation’s easement properties.

 

Nancy Forrester, Assistant Attorney General, Department of General Services, presented proposed regulations for the relocation of existing dwellings:

 

_________________________________________

 

Title 15

DEPARTMENT OF AGRICULTURE

Subtitle 15

MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

 

Chapter 04      Relocation of the Site of an Existing Dwelling on a Farm Subject to an

Agricultural Land Preservation Easement

 

Authority: Agriculture Article, Sections 2-504 and 2-513, Annotated Code of Maryland

 

.01 Scope.

This chapter establishes the criteria and eligibility for the approval of the relocation of the site of an existing dwelling on a farm subject to an agricultural land preservation easement held by the Maryland Agricultural Land Preservation Foundation.

 

.02 Definition.

A.  In this chapter, the following terms have the meanings indicated.

B.  Terms Defined.

(1)  “Existing dwelling” means a building, structure, trailer, or mobile home that was recognized by the Foundation as an existing dwelling at the time of the sale of the Agricultural Preservation Easement, whether or not the dwelling was occupied at the time of the sale.

(2)  “Farm” means any land subject to an agricultural land preservation easement.

(3)  “Foundation” means the Maryland Agricultural Land Preservation Foundation.

(4)  “Restoration to agricultural use” means to alter the land to open space so that it may produce a crop or be used for livestock. The term does not include altering an existing dwelling to another use as an accessory farm building.

.03 Eligibility.

A.  The approval to relocate the one acre site of any dwelling by the Foundation is not an absolute right of a landowner, and requests shall be reviewed on a case-by-case basis, and approved consistent with the guidelines established by this chapter. Each request shall be reviewed to determine if the proposed new site for any new dwelling will adversely affect farming operations, and whether the site where the dwelling exists at the time of the request may be restored to agricultural use.

B.  Dwelling Relocation Criteria.

(1) A request to relocate the site of an existing dwelling on a farm may not be approved by the Foundation if it increases the residential development or the number of dwellings on the farm.

(4) A request to relocate the one acre site of any proposed new dwelling may not be approved unless the landowner can demonstrate to the Foundation that the existing dwelling site can be restored to agricultural use.

 

.04 Application Procedure.

A.  A written application for the relocation of a dwelling shall be submitted to the Foundation which has been completed and signed by all titled landowners. The application shall include an aerial map with the following:

(1) Property boundaries of the easement property;

(2) Location of, and proposed access to the new site of the proposed dwelling;

(3) Location of and access to the existing dwelling;

(5) A detailed description showing how the landowner proposes to restore the site of the existing dwelling to agricultural use;

B.  Written verification from the county program administrator describing:

(1) The current overall farm operation; and

(2) The need for the relocation of the site for a dwelling;

D.  A letter of recommendation from the local agricultural land preservation advisory board;

 

_________________________________________

 

 

Dr. James Pelura, Board member, questioned the need for regulations concerning the relocation of dwellings on easement properties. He observed that Board members are appointed by the Governor and that the Board and its decisions are inherently political. Policies and decisions of any one Board can be changed by future Boards as new appointments are made by subsequent governors. He expressed concerns at limiting the scope of the decisions that the Board can make.

 

Ms. Forrester responded that it is of critical importance to maintain consistency in decision-making. Policies are not unchangeable, but to properly implement policy and changes in policy, policy must be put into regulation. At the previous Board meeting, the Board made a decision about the relocation of a dwelling that is inconsistent with all of the decisions that the Board had made to that date. The Board risks being sued if it is not consistent in its decisions.

 

Robert Stahl, Board member, expressed concern at the loss of flexibility for Board decisions that might result from adopting regulations on this issue. As more issues are covered by regulations, Board members may be reduced to decisions that are just “approve” or “not approve.”

 

Douglas Wilson, Board member representing Secretary of Agriculture, Lewis Riley, pointed out that regulations are absolutely necessary for the functioning of the Foundation. Regulations are necessary both to interpret and implement legislation and to implement Foundation policy. The Board of Trustees has substantial decision-making flexibility to create, modify, and adopt policy and to interpret legislation; however, the Foundation cannot ensure the enforceability of its policies or decisions unless regulations are created. Having Board policies put into regulation is State law. The Foundation has no leeway on this issue.

 

James Conrad, Executive Director of the Foundation, pointed out that this discussion should not be misunderstood as the staff presenting a “take-it-or-leave-it” proposal for relocation regulations. Rather, the proposed regulations are the starting point for a discussion of this issue to develop regulations on this issue consistent with statute. The Board is not expected to make a decision today on these proposed regulations. Indeed, an alternative proposal for relocation regulations has been made by Joe Tassone, who took the proposed regulations that were presented by Ms. Forrester and modified them to achieve a somewhat different outcome.

 

Joe Tassone, Board member representing the Secretary of Planning, Audrey Scott, presented an alternative proposal for regulations addressing the relocation of existing dwellings. He suggested that, in considering relocation requests, the Board approve them only if they will enhance the Foundation’s interests in the property. This means that the agreement with the landowner would reduce the amount of development and/or subdivision possible on the property, and/or would improve the ability of the farm in the long run to support a range of profitable farming and/or forestry activities. More generally, the approach would be to determine if the Board could accommodate the landowner’s objectives while enhancing the Foundation’s interest in the property, or at a minimum without compromising the Foundation’s interest in any way, including:

 

 

If the request would do any of these things, the Foundation would, through dialogue with the landowner, determine if the landowner would agree to other restrictions or conditions in the easement that would enhance the Foundation’s interests in a way that would counter-balance the negative impacts. If so, the Board would approve the request. If not, the Board would deny the request.

 

Mr. Tassone’s revisions to the proposed regulations are as follows:

_________________________________________

 

Title 15

DEPARTMENT OF AGRICULTURE

Subtitle 15

MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

 

Chapter 04      Relocation of the Site of an Existing Dwelling on a Farm Subject to an

Agricultural Land Preservation Easement

 

Authority: Agriculture Article, Sections 2-504 and 2-513, Annotated Code of Maryland

 

.01 Scope.

This chapter establishes the criteria and eligibility for the approval of the relocation of the site of an existing dwelling on a farm subject to an agricultural land preservation easement held by the Maryland Agricultural Land Preservation Foundation.

 

.02 Definition.

A.  In this chapter, the following terms have the meanings indicated.

B.  Terms Defined.

(1) “Existing dwelling” means a building, structure, trailer, or mobile home that was recognized by the Foundation as an existing dwelling at the time of the sale of the Agricultural Preservation Easement, whether or not the dwelling was occupied at the time of the sale.

(2) “Farm” means any land subject to an agricultural land preservation easement.

(3) “Foundation” means the Maryland Agricultural Land Preservation Foundation.

 

.03 Eligibility.

 

A.  The approval to relocate the one acre site of any dwelling by the Foundation is not an absolute right of a landowner, and requests shall be reviewed on a case-by-case basis, and approved consistent with the guidelines established by this chapter. Each request shall be reviewed to determine if the proposed new site for any new dwelling will adversely affect farming operations, and whether the site where the dwelling exists at the time of the request may be restored to agricultural use.

B.  Dwelling Relocation Criteria.

(4) A request to relocate the one acre site of any proposed new dwelling may not be approved unless the landowner can demonstrate to the Foundation that the existing dwelling site can be restored to agricultural use.

 

[He did not review or attempt to modify Section .04 to reflect the preceding changes.]

 

.04 Application Procedure.

Before the Foundation may consider and approve a landowner’s request to relocate the site of an existing dwelling, all of the following shall apply:

A.  A written application for the relocation of a dwelling shall be submitted to the Foundation which has been completed and signed by all titled landowners. The application shall include a map with the following:

(1) Property boundaries of the easement property;

(2) Location of, and proposed access to the new site of the proposed dwelling;

(3) Location of and access to the existing dwelling;

(4) A written statement from the landowner, that the existing dwelling shall be demolished and removed at the landowner’s expense and the existing dwelling site restored to agricultural use within 60 days after a use and occupancy permit is issued for the new dwelling, subject to the Foundation’s inspection; and

(5) A detailed description showing how the landowner proposes to restore the site of the existing dwelling to agricultural use;

B.  Written verification from the county program administrator describing:

(1) The current overall farm operation; and

(2) The need for the relocation of the site for a dwelling;

C.  A letter from the local soil conservation district on the feasibility of the landowner’s plan to restore the one acre site to agricultural use;

D.  A letter of recommendation from the local agricultural land preservation advisory board;

E.  A written statement from the local planning and zoning office or the county program administrator stating that the landowner’s proposal to tear down a dwelling in exchange for a new dwelling on the one acre construction site is allowed under local regulations; and

F.  The landowner shall sign a written agreement, to be recorded among the county land records, with the Foundation that describes the terms and conditions of the Foundation’s approval for the site for the relocation of the dwelling.

 

_________________________________________

 

 

Mr. Conrad summarized the discussion and stated that the material provided should be reviewed and considered by Board members and program administrators between this presentation and the next Board meeting. Staff hopes that the Board will be able to make a decision on this increasingly important issue at the next meeting. In referring to his cover memo that was provided to the Board, Mr. Conrad restated that relocation decisions must be justifiable and defensible in terms of the interest of the Foundation in agricultural land preservation and the State in protecting the value of its investment.

 

Relocation approvals for dwellings where the associated lot has already been taken out of the easement will require the approval of the Board of Public Works because, in effect, such a relocation is a “swap” of non-easement for easement property. He believes that Board members will agree that certain requests for the relocation of a dwelling can result in improving the farming operation. However, the Board of Public Works will look beyond that issue to ensure that the State is getting more value than it is giving up. Such a judgment may require that the Foundation seeks a determination of this value question from the Office of Real Estate at the Department of General Services. Mr. Conrad believes that all relocation requests should be held to this standard, not just those that must go to the Board of Public Works.

 

Mr. Conrad stated that he believes that the Foundation should have an explicit policy in place on relocation requests rather than letting the random requests that come before the Board create undesirable precedents for future approvals. The policy should be a product of a systematic discussion of the statutory goals and interests of the Foundation and how they are affected by the relocation of dwellings on Foundation easement properties.

 

Mr. Conrad encouraged Board members and program administrators to review the proposals on the table and to feel free to make any comments or suggestions to be taken into consideration at the next Board meeting.

 

Mr. Colhoun convened the regular Board meeting to conduct the Foundation’s business at approximately 9:30 a.m. The Chair asked guests to introduce themselves.

 

 

 

 

Mr. Colhoun asked if there were any additions or corrections to the March 22, 2005 minutes. Board members pointed out a few typographical errors which were noted by Foundation staff.

 

Motion #1:       To approve the March 22, 2005, regular session minutes with corrections.

 

Motion:            James Pelura                                        Second: Joe Tassone

 

Mr. D. Wilson distributed two handouts – one from the Department of Natural Resources and another summarizing the State fund allocation for FY 2005 easement offers. The State fund allocation was a draft based on the best available information as of the date of the Board meeting. These figures will be finalized before the allocation and offers are made for the next Board meeting. The allocation figures were presented as follows:

 

 

2003 Available Bond Funds             $1,737,000                              $0

2004 Bond Authorization                  5,000,000                              $0

Estimated State Transfer Taxes FY               0                  20,500,000

Estimated Ag Transfer Tax               7,000,000                   7,000,000

Misc. Revenues                                   15,000                        90,000

 

Total State Revenues                   $ 13,752,000                $ 27,590,000

 

Expenses:

Operating Expenses                      $ 1,065,000                 $ 1,440,000

Total Expenses                             $ 1,215,000                 $ 1,615,000

 

State Funding

 

Federal Funds                              $ 5,000,000                 $ 5,000,000

Local Matching                              12,750,000                   13,000,000

 

TOTAL EASEMENT FUNDING      $30,287,000                 $43,975,000

 

 

B.        ADDITIONS OR DELETIONS OF AGENDA ITEMS:

 

There were three amendments of agenda items:

 

Item No. II C.1  - Withdrawn

 

Item No. IV A – Proposed regulations concerning the relocation of an existing dwelling

was discussed in the session from 09:00 to 09:30 am.

 

 

 

 

II.        DISTRICT /EASEMENT AMENDMENTS

 

 

1.        06-89-05e         Dutterer, Allen L. et al                                         113.43 ACRES

 

Request to relocate a lot surrounding a pre-existing dwelling

 

Mr. Dutterer, et al, are subsequent owners of the easement property. The current request is to allow the relocation of an existing dwelling on easement property.

 

According to Carroll County, the property is for sale and the current landowners are making the request on behalf of the prospective buyers, David and Debbie Reuter.

 

The existing dwelling is located in the valley, in close proximity to the farm buildings. According to a letter from Mr. and Mrs. Reuter (copy attached), they are requesting the relocation of the house from the current location which is in the valley, to the hill “to take advantage of the wonderful views.” The Reuters have indicated on the attached map their three choices in order of preference, with location “1” being their first choice.

 

The request was approved by the local advisory board and conforms to local zoning regulations. MALPF staff requested that Mr. Dutterer and the Reuters attend the Board meeting to answer questions from the Board members.

 

Foundation staff recommends that the Board ask the landowners (and prospective purchasers) to consider an alternate location, closer to the existing structures on the farm, or along a wood line, and close to an existing farm lane, where there is less disruption of the agricultural use of the land. Alternatively, if limited to the choices offered by the landowners, the dwelling should not be located as far back from the access road as the requested locations appear to be. Also, it is unclear that the land surrounding the existing dwelling can be returned to agriculture, resulting in a possible net loss of farmland under easement.

 

Foundation staff recommends approval of the request to relocate the lot surrounding the pre-existing dwelling contingent upon: 1) the total tear down and removal of the existing dwelling within 180 days from the issuance of a Use and Occupancy Permit by the County for the newly constructed dwelling; and 2) the return of the 1.0 acre surrounding the existing dwelling to agricultural use.

 

The meeting was attended by Allen Dutterer, landowner; Mr. John H. Hull, Realtor for Mr.Dutterer; and William Powel, Program Administrator.

 

Mr. Tassone wanted to know if the existing dwelling being moved is the farm house. The answer is yes. There are no other dwellings on the property.

 

Mr. Wilson asked if there is access to the farmland. Mr. Dutterer confirmed the presence of a field road. Mr. Conrad asked if the larger house will fit into one acre. Mr. Dutterer confirmed that his plans will not exceed one acre.

 

Mr. Tassone asked Mr. Powel if the accessibility is acceptable to the county. Mr. Hull clarified that access is a county road, but it is unpaved.

 

Lewis Logan, representing Treasurer Kopp, asked about the impact the new lot will have on farming operations. Mr. Dutterer stated that in his opinion, it would not have any impact on the operation of the farm. He further confirmed that there will be no subdivision.

 

The Board members wanted to know why the new owner wants to relocate. Mr. Hull replied that they wanted to take advantage of the better view, a much newer house, and to enhance the farm operation.

 

Mr. Tassone reminded the Board members that the Board has to conform to the points suggested by the Attorney General’s office and that the Board cannot accept “better view” as the reason for relocation.

 

Motion #3:       To approve the request to relocate the lot surrounding a pre-existing dwelling with the condition that the relocated lot cannot be subdivided from the farm, will be located as near as possible to a farm lane. The final location will be approved by MALPF staff. The approval includes demolition of the existing house and restoration of the original 1.0 acre.

 

Motion:            Doug Wilson                                      Second: Vera Mae Schultz

 

2.        06-81-07e         Smith, Charles H. & Alberta C.                              101.925 acres

 

Request for the exclusion of a 1 – 2 acre owner’s lot from easement property

 

Mr. Conrad introduced this item. Mr. and Mrs. Smith are the original owners of this easement property. The property has one pre-existing dwelling. Two 1.0 acre child’s lots have been approved and released from the easement. The landowners do not own any other MALPF district or easement properties.

 

The current request is to exclude a 1 to 2 acre lot for their personal use.  According to Carroll County, the proposed lot will be located in an area that is currently crop land. The lot will have direct access to Brown Road. This request has been approved by the Carroll County Advisory Board and meets local zoning regulations. Impact to the overall farm operation is minimal.

 

If the request is approved, there will be a required payback to the Foundation of $490.56 per acre.

 

Staff recommends approval of the release of one acre plus such minimum additional acreage as required by the County Health Department, not to exceed 2.0 acres total, 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 #4: To approve the release of one acre owner’s lot from easement property.

 

Motion:            Doug Wilson                                        Second: Judith C. Lynch

 

3.        06-86-15e         Grimes-Rhodes, Linda                                          161.876 acres

 

Request for 1) the exclusion of a 1.0 acre child’s lot for son, Mark L. Rhodes, from easement property and 2) approval to relocate a pre-existing dwelling to an area to be determined in the future

 

Ms. Grimes-Rhodes is the original owner of this easement property. There have been no previous requests for lot exclusions. Ms. Grimes-Rhodes does not own any other MALPF district or easement property. The property has one pre-existing dwelling. The pre-existing dwelling’s 1.0 acre lot is the subject of this request.

 

The current request is to 1) exclude a 1.0 acre lot for her son, Mark’s, personal use in the area of the current pre-existing dwelling; and 2) to obtain approval to relocate and rebuild the pre-existing dwelling in an area that will be determined some time in the future (and possibly by a subsequent landowner). The proposed child’s lot will have access to the county road via an existing farm lane. Both requests have been approved by the Carroll County Advisory Board with the condition that a future request for a replacement dwelling would require the approval of both the Advisory Board and the Foundation for the location of the replacement dwelling on the farm. This request meets local zoning regulations. Impact to the overall farm operation is minimal.

 

If the request is approved, there will be a required payback to the Foundation (for the 1.0 acre child’s lot) of $981.20, which is the per acre value the Foundation paid for this easement.

 

Please note: On February 3, 2005 Foundation staff gave administrative approval to demolish and rebuild the pre-existing dwelling in the same location. That approval will be superceded if the Board approves the current requests.

 

Foundation staff recommends approval of the 1.0 acre child’s lot 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...”

 

Foundation staff also recommends approval of the request to relocate and rebuild the pre-existing dwelling in an area that will be determined some time in the future with the condition that a future request for a replacement dwelling would require the approval of both the Advisory Board and the Foundation for the location of the replacement dwelling on the farm and that the request be subject to any new relocation regulations that are in effect at the time the request is made. This request meets local zoning regulations.

 

Vera Mae Schultz, Vice Chairman, pointed out that she has concerns that son’s lot should not be subdivided. The future relocation should not be in the middle of the farm as it will affect the agricultural use.

 

Motion #5: To approve the exclusion of a 1.0 acre child’s lot for son Mark, and to approve the relocation of a pre-existing dwelling to an area to be determined in the future, subject to final approval of the location by MALPF staff.

 

Motion:            Doug Wilson                                            Second: Joe Tassone

 

4.        06-83-04Ce       Moser, Richard L.                                              49.5055 ACRES

 

Request for the exclusion of a 1.0 acre owner’s lot from easement property to correct a violation

 

Mr. Moser is the original owner of this easement property. When the easement was purchased, there were no pre-existing dwellings. A 1.0 acre child’s lot has been approved and released from the easement. Mr. Moser does not own any other MALPF district or easement properties.

 

The current request is to exclude a 1.0 acre lot for the landowner’s personal use. During an easement inspection, the Program Administrator noticed the existence of a mobile home on the property. Upon investigation, it was brought to his attention that Mr. Moser had used the trailer to house a tenant who originally worked on the farm. Mr. Moser was not aware that this was a violation of his easement. As Mr. Moser currently resides in the mobile home, he is asking to locate his owner’s lot around the mobile home in order to correct the violation. If approved, Mr. Moser does not intend to subdivide the 1.0 acre lot from the farm, thereby creating a home that also cannot be subdivided by subsequent owners.

 

According to Carroll County, the proposed lot has access via a right-of-way over the existing farm lane. This request has been approved by the Carroll County Advisory Board and it meets local zoning regulations. Impact to the overall farm operation is minimal.

 

If the request is approved, there will be a required payback to the Foundation of $750.08, which is the per acre value the Foundation paid for this 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...”

 

The owner Richard L. Moser was present. Ms. Schultz asked Mr. Moser if there is a residence located on the farm, Mr. Moser confirmed that a child’s lot has been released and is located under the trees.

 

Motion #6: To approve the exclusion of a 1.0 acre owner’s lot from easement property with the condition that the lot will not be subdivided from the farm.

 

Motion:            Joe Tassone                                    Second: Robert F. Stahl, Jr.

 

B.         KENT COUNTY

 

1.         14-02-01            BRYAN, Robert L. et al                                       126.60 ACRES

 

Request to allow a utility easement to provide electricity to a neighboring property

 

The Bryans are the original owners of the district property. The current request is to allow a utility easement to provide electricity to an adjacent property.

 

According to Kent County, the electric line will be underground and located primarily within a 50’ private right-of-way that provides access to the adjacent property. The proposed utility easement may extend slightly outside the right-of-way in one location in order to provide adequate distance around a culvert pipe.

 

There is a pending MALPF easement on this (Bryan) property. Complications involving the owners of the neighboring property have prevented the easement from moving forward towards settlement. At the November 26, 2002, Board meeting, Mr. Bryan requested that the Foundation allow an agricultural subdivision to allow him to convey 2.133 acres to the owners of the adjacent property, Gregg and Christine Asplundh. The request was denied because it did not meet the Foundation’s agricultural subdivision requirements. Additionally, the Foundation has a long-standing policy of not allowing alterations to properties with pending easements. At the January 28, 2003, meeting the Foundation approved a request to allow the agricultural subdivision of the 2.133 acres subject to the condition that the 2.133 acres be added to an MET easement on the Asplundh property; and the land may be conveyed to the Asplundhs only after the settlement of the MALPF easement.

 

Because the Asplundhs have the right of first refusal on the entire Bryan property, they must consent to the MALPF easement, further complicating the pending easement process. They have thus far not consented to the easement.

 

The request was approved by the local advisory board and conforms to Kent County zoning regulations.

 

Foundation staff recommends approval of the overlay utility easement subject to the condition that the Asplundhs consent to the MALPF easement.  The option contract does not allow overlay easements until the Foundation’s easement settles. This request is being reviewed by the Board as a courtesy to the Asplundhs so that they can move ahead with utility placement as soon as the MALPF easement settlement occurs.

 

Robert L. Bryan, co-owner of the property, was present at the meeting to discuss the issue with the Board. He stated that the staff memo provided the details of the situation.The Asplundhs want to be able to supply electricity to their future dwelling but were unable to keep the necessary work within the utility easement area. Ms. Forrester stated that Mr. Bryan is ready to go to settlement but the Asplundhs, who have the right of first refusal on the Bryan property, have not consented to the MALPF easement. Various Board members expressed that they were sympathetic to Mr. Bryan’s situation. A Board member asked Mr. Bryan if he thought the Asplundhs would consent to the easement if the Board granted his request. Mr.Bryan replied that he did not know if they would or not. Mr. Doug Wilson stated that he was not sure it made sense for the Foundation to be involved as a third party in the situation. Mr. Wilson further stated that he did not want Mr. Bryan to be injured in any way.

 

Motion #7:       To approve the request of Robert L. Bryan Jr. for an overlay utility easement conditional upon the prior settlement of the pending MALPF easement.

 

Motion:            Robert Stahl                                 Second: Patricia Langenfelder

 

C          FREDERICK COUNTY

 

1.        10-83-05e         Moxley, Fred H. Sr. & Marguerite                      127.784 ACRES

 

 

2.        10-83-02e         Hipkins, Elwood W.                                             378.79 ACRES

 

Request to store raw material for mulch production on easement property

 

Mr. Conrad introduced the item. Mr. Hipkins is the original grantor of the easement. The current request is to allow the storage of raw materials for mulch production on easement property.

 

According to Mr. Hipkins, the raw wood material (trees, tree branches, stumps, etc.) would be brought onto his property to be stored on approximately three to five acres. Between 50 to 100 cubic yards of raw material would be transported daily by one to three dump trucks or a walking floor trailer. The material would be stored for approximately three months in “windrows” approximately 50’ wide by 10’ high. The finished product would be shipped out on trucks as orders are received.

 

According to Mr.Hipkins, the operation is limited to the storage of the mulch. There will be no grinding of the material. He will be required to monitor the mulch, especially when it gets hot. He may have to turn it if it gets too hot.

 

Mr. Hipkins states that the proposed operation would not interfere with his dairy operation. If the venture does not work out as planned, he would return the land to agriculture.

 

Frederick County’s local advisory board reviewed the request but did not make a recommendation because it believes that this is an issue that should be decided by the Foundation.

 

Foundation staff and counsel share the following concerns: 1) the proposed operation is a commercial non-agricultural use of the property, which is not allowed under the terms of the easement; 2) the raw material is not produced on the farm, which is a condition for which MALPF allows the majority of non-traditional agricultural uses (e.g. for nursery goods, 50% of the material must be produced on the farm); and 3) it is unclear that the operation will not have a long term negative impact on the agricultural use of the land, due to concerns about soil compaction, etc.

 

Foundation staff worked in co-operation with other divisions of MDA to determine if the proposed operation could be considered an agricultural activity. MDA regulates manure composting but does not regulate wood mulch at this point.

 

Sonja Ingram, Frederick County Assistant Program Administrator, confirmed that Mr. Hipkins does not need a county permit.

 

Ms. Ingram stated that Mr. Hipkins could not be personally present in the meeting and gave more details about Mr. Hipkins’ present request. Mr. Hipkins intends to enter into a business partnership in which he would be providing the storage facilities.

 

Mr. Wilson asked if this is going to be a recurring issue or a one-time instance. Ms. Ingram responded that it would be an on-going operation if it proved successful.

 

Ms. Patricia Langenfelder , Board member, remarked that looking at the map, there are two locations indicated and wanted to know where the mulch would be stored. Ms. Ingram stated that the final location has yet to be determined.

 

Mr. Conrad asked if any fire control arrangement has been made or being worked out and whether Mr. Hipkins would like to have a retail or wholesale business.

 

Ms. Ingram replied that the particulars have not been worked out. Mr. Hipkins wanted to obtain Board approval before commencing the operation. She had urged Mr.Hipkins to attend the Board meeting to personally answer the questions, but he could not attend the meeting at the last minute.

 

Several Board members expressed concern that the owner would be using the land for non‑agricultural commercial use.

 

Don Lewis, representing the State Chemist, stated that mulch in a raw state is an agricultural product. He commented further that, in his opinion, Mr. Hipkins is trying to set up a wood disposal facility, which is regulated by Maryland Department of the Environment. The storage of mulch requires fire prevention apparatus to be installed. There are other concerns including the presence of hazardous materials resulting from the storage of wood of unknown origins. Among other contaminants, alcohol could leach into the soil.

 

Mr. Lewis suggested that Mr. Hipkins could consider producing compost using the manure from his dairy operation combined with wood products from the trees on his farm. Manure compost is an agricultural product. He stated that he is aware of at least one farmer in Frederick County who is making a good profit from the sale of compost. There certainly is a market for it.

 

Mr. Conrad asked if windrows intended to be created by Mr. Hipkins would disturb the soil. Mr. Lewis responded that, since he is not a soil expert, he could not comment on that issue. Mr. Stahl stated that he believes that the construction of windrows would require significant disturbance of the soil.

 

Motion #2: To deny the request of Mr. Hipkins to store raw material for mulch production on easement property.

 

Motion:            Dr. Pelura                                        Second: Robert F. Stahl, Jr.

 

D.         BALTIMORE COUNTY

 

1.        03-97-11Ae       Ensor, Charles                                                       82.6 ACRES

 

Amend easement to exclude acreage not intended to be under easement

 

Mr. Conrad introduced the item. Mr. Ensor is a subsequent owner of the easement property. The current request is to amend an easement to exclude a 1-acre area that was intended not to be under easement.

 

When the district was established, a 1-acre area was excluded from the district agreement at the request of the landowners, Benson Yeoho Farms, Inc. The landowners subsequently applied to sell an easement to the Foundation. The acre to be excluded was noted on the option contract (copy attached). Due to miscommunications during the settlement process, the 1-acre area was inadvertently included in the area covered by the easement, which settled on December 18, 1998. Subsequently, Mr. Ensor purchased the property from Benson Yeoho Farms, Inc., the members of which informed him that a 1-acre area was excluded from the easement. When Mr. Ensor began the process of transferring the 1-acre area to his daughter for a dwelling for her use, Baltimore County staff discovered that the 1-acre area was under easement.

 

Foundation staff recommends approval of the request to amend the deed of easement to release the 1-acre area, which was intended to be withheld from the easement, based on the concurrence of Foundation staff and counsel, Department Of General Services attorneys involved in the settlement, and Baltimore County staff, that miscommunications that occurred during the settlement process resulted in the 1-acre area being inadvertently covered by the easement.

 

Motion #8:       To approve the request to amend the deed of easement to exclude acreage not intended to be under easement in order to rectify the earlier error.

 

Motion:            Robert F. Stahl, Jr.                        Second: Patricia Langenfelder

 

E.         WICOMICO COUNTY

 

1.        22-90-25e         Cooper, William H.                                              117.17 ACRES

 

Request for the exclusion of an owner’s lot from easement property

 

Mr. Cooper was the original grantor of the easement. The current request is for the exclusion of a 1-acre owner’s lot for the purpose of constructing a dwelling for his personal use.

 

There are no pre-existing dwellings on the property. No other lots have been excluded from this property or the two additional easement properties owned by Mr. Cooper.

 

According to Wicomico County, the proposed owner’s lot is to be located along the road and will be accessed directly from the road. Note: The two lots shown on the aerial map were subdivided prior to district establishment.

 

The request was approved by the local agricultural advisory board and conforms to local zoning regulations. If the request is approved, there will be a required payback amount of $651.05.

 

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. Tassone asked for clarification regarding the choice of the lot location. Ms. Smith clarified that the lot is located along the road.

 

Motion #9:       To approve the request for exclusion of an owner’s lot from the easement property.

 

Motion:            Robert F. Stahl, Jr.                                Second: Judith C. Lynch

 

2.        22-89-05           Agnew, Louise M.                                               100.49 ACRES

 

Request to exchange 3 acres of easement property for 3 acres of non-easement (reconsideration)

 

Ms. Agnew is the original owner of the easement property. The current request is a reconsideration of an approval to swap three acres of easement property for three acres of non-easement property to accommodate a church parking lot.

 

Ms. Agnew’s property is adjacent to Zion Methodist Church in Salisbury. The Church has experienced significant growth in recent years and plans to expand the parking area to accommodate the additional parking needs of its members. The trustees of the church discussed the issue with adjoining property owners. Ms.Agnew was the only property owner who agreed to accommodate the parking area.

 

The trustees of the church contacted MALPF to determine if the Foundation would allow the donation of the land to the church. Foundation staff informed the trustees that, while sympathetic to the Church’s parking dilemma, the terms of the easement do not permit the donation of property for such use. Staff informed the trustees that an acreage swap of easement land for non-easement land may be considered by the Foundation’s Board of Trustees. In order to accommodate the request, Ms. Agnew would be required to add three acres of contiguous land to her easement property to compensate for the three acres that would be removed.

 

Ms. Agnew’s neighbors, William H. and Doris A. Mariner, in a letter to the Foundation, proposed placing under easement three acres of their land adjacent to the Agnew property. However, the Mariners would retain ownership of the property. Foundation staff explained to the trustees and the Mariners that it is unlikely that the Board would approve a land swap where the land proposed to be added to the easement is separately owned. Mr. Mariner agreed to transfer ownership of three acres of his property to Ms. Agnew to accommodate his request.

 

On October 28, 2003, the Foundation’s Board of Trustees approved the exchange of three acres of easement property for three acres of non-easement property subject to the condition that the ownership of the three acres currently owned by Mr. Mariner be transferred to Ms. Agnew and added to her easement (minutes attached).

 

Subsequent to the approval of the acreage exchange, Mr. Mariner has changed the location and configuration of the area to be conveyed to Ms. Agnew and added to the easement. The area previously approved by the Board was along the north border of the property and would have resulted in a relatively straight property line (see attached map). Mr. Mariner now proposes to add an area in the north-east corner of the property. The proposed configuration would present an awkward property configuration.

 

The land proposed to be removed from the easement is adjacent to the road. The land to be added to the easement lies to the north of the property, away from the road.

 

According to Wicomico County, the area to be removed from the easement consists of Class III soils. The land area to be added to the easement consists of similar woodlands or cutover timberland of similar soils. (The area previously approved by the Board was also woodland.)

 

The recent request, with the revised configuration, was approved by the local advisory board because the board determined that the exchange would not affect the farming operation since both the area to be added and the area to be removed from the easement was woodland rather than cropland.

 

Foundation staff recommends that, if the request is approved by the Board of Trustees, the Board should request that a deed restriction be placed on the three acres to be removed, and that, should the Church move or cease to exist, the area shall be rejoined to the easement property and not be used for future residential or commercial purposes. Staff has requested a review from the Office of Real Estate prior to the Board meeting. Foundation staff has pointed out to the County, that, even if the Foundation approves the request, the Board of Public Works may question if the Foundation is not giving up more that it is getting.

 

Ms. Elizabeth Weaver, Foundation staff, summarized the report received from Maryland Department of General Services confirming that the contributory value of the three acre parcel remains the same and the unit value of the 102.49 acre easement area is not negatively affected.

 

Mr. Doug Wilson asked the Trustee of the Church, Bill Middleton, who was present at the meeting, for the Church’s reaction to Foundation staff’s suggestion.

 

Mr. Middleton stated that attending the Board meeting itself was a real education for him. Regarding the staff’s suggestion he stated that church properties are seldom redeveloped for other purposes.

 

He stated that the Board of Trustees of the Church is contemplating staying with the original agreement, which has already been approved by the Board. He stated that he will discuss the issue with Mrs. Mariner.

 

Motion #10:       To table the item pending further information from Zion Church

 

Motion:            Judith C. Lynch                            Second: Patricia Langenfelder

 

F.         CAROLINE COUNTY

 

1.        05-85-10e         McNatt, Tobin R.                                                 322.77 ACRES

 

Request for an agricultural subdivision of easement property

 

Mr. McNatt is the original grantor of the easement. The current request is for an agricultural subdivision of 70 acres.

 

According to Caroline County, Mr. McNatt plans to enter the poultry business in partnership with his son, Will McNatt. He has developed plans to construct a set of four poultry houses on the subdivided parcel. The partnership will provide a progressive transfer of the parcel and poultry houses to Will, along with the responsibilities of the day-to-day operation.

 

The farm is comprised of 570 contiguous acres, 540 acres of which are under easement. Of the entire farm, 470 acres are tillable. The 70-acre area proposed to be subdivided is comprised of 46.5 acres of cropland and 23.5 acres of woodland. Mr. McNatt intends to locate the poultry houses in the woodland area. The portion proposed to be subdivided contains 100% qualifying soils. The remaining 252.77- acre parcel also contains 100% qualifying soils.

 

The request was approved by the local advisory board and conforms to local zoning regulations.

 

Foundation staff recommends approval based on 1) meeting minimum size and soils criteria; 2) the request is based on a sound farm plan; and 3) the resulting parcels have the ability to support viable agricultural operations.

 

Tammy Buckle, Caroline County, Program Administrator gave a summary of the case. Tobin R. McNatt and his son, Will McNatt, were present.

 

Mr. McNatt described his plan for the farm. Board members asked about the parcel configuration of the farm. Ms. Buckle explained that two areas were excluded at district establishment. The remainder of the farm is under easement.

 

Ms. Forrester commented that the two deeds may have to be amended to avoid any overlap. Board members raised the issue of child’s lots on the portion to be subdivided and cautioned Mr. McNatt to be careful and think through his options before moving forward on the subdivision.

 

Motion #11:       To approve the agricultural subdivision of easement property

 

Motion:             Robert F. Stahl                             Second : Patricia Langenfelder

 

 

1.         18-01-01           Rowland, Lawrence & Sheiloh                              203.00 ACRES

 

Request for the exclusion of a 1.0 acre owner’s lot from district property

 

Mr. and Mrs. Rowland are the original owners of this district property. The property has no pre-existing dwellings, and there have been no previous requests for lot exclusions. The landowners do not own any other MALPF district or easement properties.

 

The current request is to exclude a 1.0 acre lot for their personal use. According to St. Mary’s County, the proposed lot will be located in an area that is currently woodland. The lot will have access to Beam Lane by improving an existing logging trail. This request has been approved by the St. Mary’s Advisory Board and the request is pending local Planning & Zoning approval. Impact to the overall farm operation is minimal.

 

If the request is approved, there will be no required payback to the Foundation as this is a district property.

 

Foundation staff recommends approval based on COMAR 12.15.01.03F(1) which states, “A landowner may request to have excluded from a district certain portions of the owner’s property constituting lots of either 1 acre or less … if the purpose for excluding the property is to construct a dwelling house for the owner or the owner’s children.”

 

Motion #12: To approve the exclusion of a 1.0 acre owner’s lot from district property.

 

Motion:            Robert F. Stahl                                          Second : Lewis Logan

 

2.        18-00-13A        Moore, James & Mary                                       63.7027 ACRES

 

Request for the exclusion of a 1.0 acre child’s lot for their son, David James Moore, from easement property

 

Mr. and Mrs. Moore are the original owners of this easement property. The property has one pre-existing dwelling and there have been no previous requests for lot exclusions. The landowners do not own any other MALPF district or easement properties.

 

The current request is to exclude a 1.0 acre lot for their son, David’s, personal use. According to St. Mary’s County, the proposed lot will be located in an area that is currently pasture land. The lot will have access to Colton Point Road via an existing driveway. This request has been approved by the St. Mary’s Advisory Board and the request is pending local Planning and Zoning approval. Impact to the overall farm operation is minimal.

 

Please note: If this request is approved, the landowners will re-locate the pre-existing dwelling, a brick home, to this 1.0 acre child’s lot. The landowners will then construct a new dwelling in the footprint of the pre-existing dwelling lot. The landowners are not requesting to exclude the 1.0 acre surrounding the pre-existing dwelling at this time.

 

If the request is approved, there will be a required payback to the Foundation of $2,971.53, which is the per acre value the Foundation paid for this 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 #13:   To approve the request for exclusion of a 1.0 acre child’s lot from easement property

 

Motion:            Judith C. Lynch                                          Second: Lewis Logan

 

 

1.        07-90-04e         Davis, Jr., David P. & Mae C.                           187.8655 ACRES

 

Request for the exclusion of a 1.0 acre child’s lot for daughter, Linda Davis Harris, from easement property

 

Mr. and Mrs. Davis are the original owners of this easement property. The property has three pre-existing dwellings, and there have been no previous requests for lot exclusions. The landowners own one other MALPF easement property, contiguous easement 07-90-03e, from which there have been no requests for lot exclusions.

 

The current request is to exclude a 1.0 acre lot for their daughter, Linda’s, personal use. According to Cecil County, the proposed lot will be located in an area that is currently crop land. The lot will have direct access to Crystal Beach Road. The landowners have already performed a successful perc test on the proposed lot. This request has been approved by the Cecil County Advisory Board and it meets local zoning regulations. Impact to the overall farm operation is minimal.

 

If the request is approved, there will be a required payback to the Foundation of $1,220.35, which is the per acre value the Foundation paid for this 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 #14:     Approve the request for exclusion of a 1.0 acre child’s lot from easement property

 

Motion:            Doug Wilson                                 Second : Patricia Langenfelder

 

 

1.        02-79-01Ee       Chaney, E. Steuart & Dorothy                              81.421 ACRES

 

Request for the exclusion of a 1.0 acre child’s lot for their daughter, Anna M. Chaney Willman, from easement property

 

Mr. and Mrs. Chaney are the original owners of this easement property. The property has three (3) pre-existing dwellings (see note below), and there have been no previous requests for lot exclusions. The landowners do not own any other MALPF district or easement properties.

 

The current request is to exclude a 1.0 acre lot for their daughter, Anna’s, personal use.  According to Anne Arundel County, the proposed lot will be located in an area that is currently wood land. The lot will have direct access to Greenock Road via a private right-of-way (existing farm road). This request has been approved by the Anne Arundel County Advisory Board and the local Planning & Zoning Office. Impact to the overall farm operation is minimal. A perc test has been approved for the proposed location.

 

If the request is approved, there will be a required payback to the Foundation of $1,606.71, which is the per acre value the Foundation paid for this easement.

 

Please note: The map submitted show that this property is disconnected. As the property contains less than 100 acres, the landowners cannot request an agricultural subdivision (criteria states the property must contain at least 100 acres and each subdivided parcel must be at least 50 acres in size).

 

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...”

 

NOTE: The landowners have made simultaneous requests for 1.0 acre child’s lots for their children: Elizabeth (Lot 1), Amber (Lot 2), Anna (Lot 3), and Steuart (Lot 4). As Lots 1 and 2 are pre-existing dwellings, Foundation staff will administratively approve these two requests, for the exclusive use of Elizabeth and Amber. While the easement entitles him to request five lot exclusions, the County counts the pre-existing dwellings among the five.

 

 

2.        02-79-01Ee       Chaney, E. Steuart & Dorothy                              81.421 ACRES

 

Request for the exclusion of a 1.0 acre child’s lot for their son, Steuart Hamilton Chaney, from easement property

 

Mr. and Mrs. Chaney are the original owners of this easement property. The property has three (3) pre-existing dwellings (see note below), and there have been no previous requests for lot exclusions. The landowners do not own any other MALPF district or easement properties.

 

The current request is to exclude a 1.0 acre lot for their son, Steuart’s, personal use. According to Anne Arundel County, the proposed lot will be located in an area that is currently woodland and grass. The lot will have direct access to Greenock Road. This request has been approved by the Anne Arundel County Advisory Board and the local Planning & Zoning Office. Impact to the overall farm operation is minimal. A perc test has been approved for the proposed location.

 

If the request is approved, there will be a required payback to the Foundation of $1,606.71, which is the per acre value the Foundation paid for this easement.

 

Please note: The map submitted show that this property is disconnected. As the property contains less than 100 acres, the landowners cannot request an agricultural subdivision (criteria states the property must contain at least 100 acres and each subdivided parcel must be at least 50 acres in size).

 

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...”

 

NOTE: The landowners have made simultaneous requests for 1.0 acre child’s lots for their children: Elizabeth (Lot 1), Amber (Lot 2), Anna (Lot 3), and Steuart (Lot 4). As Lots 1 and 2 are pre-existing dwellings, Foundation staff will administratively approve these two requests, for the exclusive use of Elizabeth and Amber. While the easement entitles him to request five lot exclusions, the County counts the pre-existing dwellings among the five.

 

Motion #15:       To approve the request for exclusion of two 1.0 acre lots from easement property

 

Motion:             Doug Wilson                                         Second: Robert F. Stahl

 

 

III.       AGRICULTURAL PRESERVATION DISTRICT PETITIONS

 

 

1.        07-05-02           CRAIG, Samuel P.                                              145.0092 acres

 

 

Ms. Schultz recommended that the landowner obtains Forest Stewardship Plan.

 

Motion #16:       To approve the request to establish a district and to encourage the landowner to obtain a forest stewardship plan.

 

Motion:             Joe Tassone                                         Second: Robert F. Stahl

 

 

 

Discussed by Board members in the Preliminary meeting from 09:00to 09:30 am.

 

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

 

Motion #17:       To adjourn the meeting.

 

Motion:            Robert F. Stahl                                          Second: Joe Tassone

 

The regular session Board meeting was adjourned at approximately 12:30 pm.

 

 

Respectfully Submitted:

 

 

 

_____________________________________

James A. Conrad, Executive Director

 

 

_____________________________________

Rama Dilip, MALPF Secretary