MINUTES
TRUSTEES PRESENT:
Daniel Colhoun, Chairman
Vera Mae
Schultz, Vice Chairman
Patricia Langenfelder
Lewis
Logan, representing Treasurer Kopp
Judith C. Lynch
James Pelura, D.V.M.
Shirley W.
Pilchard
Robert F. Stahl,
Jr.
Joe Tassone, representing Secretary Scott, Department of
Planning
Christopher H.
Wilson
Douglas Wilson, representing
Secretary Riley, Department of Agriculture
TRUSTEES ABSENT:
Jerry Klasmeier, representing Comptroller Schaefer
OTHERS PRESENT:
Charlie Abell, Airport Manager,
Bill Amoss,
Anne Arnold,
Landowner,
Edward Boyce,
Landowner,
Tammy Buckle,
James A. Conrad,
MALPF, Executive Director
Carol Council,
MALPF, Administrative Officer
Tim Davis,
Planner,
Rama Dilip, MALPF, Secretary
Barbara Warfield
Ehlers, Landowner,
Theresa Brophy, Marketing Specialist, Marketing Services,
Department of Agriculture
L. Dean Guy,
Landowner,
John Hayes, Queen Anne’s County,
Land Use Planner
Sonja Ingram,
Louise Lawrence,
Chief, Resource Conservation, Department of Agriculture
Wally Lippincott,
Joy Levy,
Carla Martin,
Cora Morrison,
MALPF, Intern
Katherine
Munson,
Leroy E. Myers,
Landowner,
Craig
Nielsen, Assistant Attorney General, Department of Agriculture
Bill
Powel III,
Joann
Ptack, Landowner,
Charles Rice,
Daniel Rosen,
Planner, Maryland Department of Planning
Donna Sasscer, St. Mary’s County, Program Administrator
Martin Sokolich,
Brad and Karen
Schott, Landowner,
Gloria Smith,
Robert Warfield,
Landowner,
Elizabeth Weaver, MALPF,
Administrative Officer
Susan
Wilson, Landowner,
John
Zawitoski,
The Board met in an open informational meeting at
Mr. Nielsen shared with the members that the
Foundation has completed 25 years since its inception. The Foundation had worked hard to put
together this program and the program is a national model for other
States. Recently the Foundation and the
attorneys have been working on the issue of "25 Year Easement Termination
Requests." The Foundation staff and
the attorneys have outlined the draft regulations and would like to get the
approval of the Board for the regulations to be compiled and put in the
Maryland Register for public comment.
Until recently, an easement had a provision for a
possible termination after 25 years of its creation. The focus of the regulations is to make it
very difficult for a landowner to get out of the easement, except under
extraordinary circumstances. Easement
termination requires county approval; as per the law, the State cannot act
without county approval. This mirrors
the county approval of the creation of the district and sale of the easement.
The first request for an easement termination could
come as early as October 2005. Mr.Nielsen encouraged the Program Administrators, county
attorneys, and all concerned to review suggestions and comments.
Once the landowner makes a written request, the
Foundation has 180 days to conduct an inquiry to determine whether profitable
farming is feasible on the land and issue a decision on the landowners’ request
for termination.
The county’s role is to verify the feasibility of the
request in the light of the current land regulations, local comprehensive
planning, and any local priorities for the preservation of agricultural land.
The Foundation’s role is to determine whether profitable
farming is feasible on the land under easement or not. This is an executive decision, delegated by
Legislation to the Board, and the courts will not interfere with the Board’s
determination, if it is reasonable and within the Board’s prerogative.
To help the Board in this process, Mr.Nielsen has suggested a narrow definition of “profitable
farming.” If the land is no longer
capable of producing an agricultural product and the nature of the land has
changed, the land should be released from the preservation program. “Profitable farming is feasible on the land”
means that an agricultural product can be produced on the land that can be sold
to realize an excess of return over expenditures, excluding the cost of
constructing farm structures, the cost of acquisition of the land itself, and
the debt service relative to the financing of the acquisition of the land.
As a part of the termination process, the Foundation
is required to conduct an on-site inspection of the subject land; and a public
hearing within the 180 days time frame.
The county governing body shall
notify the Foundation of its decision within 90 days after the Foundation’s
public hearing. Upon receipt of a
landowner’s request for review to terminate an easement from the Foundation,
the county governing body shall notify and ask for the recommendation of the
county agricultural preservation advisory board or any other appropriate county
agency or board. The advisory board or
other county agency shall recommend to the County governing body the approval
or disapproval of the termination of the easement based on current land
regulations, local comprehensive planning, and any local priorities for the
preservation of agricultural land to the county governing body.
If either the Foundation or the
county fails to approve the request for termination, an easement may not be
terminated. The landowner has the right
to challenge the Foundation’s decision.
To determine whether the land is profitable or not, it is
proposed to hire an expert, who will visit the farm to determine whether
profitable farming is possible taking into account various factors such as soil
types, etc.
If the landowner’s request for an easement termination is
granted, the landowner has to repay the value, not as originally paid for the
easement, but the current value. If there is no agriculture value, the fair
market value would be the repayment amount. If the request for termination is
denied, or if the landowner fails to repurchase the easement within 180 days of
the date of the completion of the appraisal, the landowner may not again
request termination of the easement until five years after the last request for
termination.
Douglas Wilson, representing Secretary Riley,
Department of Agriculture, asked if there is any formal procedure laid out for
the Secretary of Agriculture and the State Treasurer to approve or disapprove,
when the request is forwarded to them for signature by the Foundation. Mr. Nielsen clarified that there are no separate
formal procedures. There may be some
instances when either the Foundation or the Secretary of Agriculture may not
agree on a decision or the Secretary and the State Treasurer may not agree, but
the decisions are always backed by reason and logic. Both the Secretary and the State Treasurer
have independent authority.
James Pelura, Board Member wanted
to know whether the landowner was aware of the termination process when the
agreement was made originally 25 years ago. Mr. Nielsen clarified that the
Department of Agriculture has the legal authority to define the procedure. However, it cannot change the contract
rights.
Mr. Nielsen summed up the session by sharing with the Board
members that the proposed draft regulations will be put in the Maryland
Register and will be open to the public for comments and suggestions.
Mr. Colhoun concluded the session
by saying that as can be seen from the discussions, a 25-year termination
request is a long drawn out procedure involving some critical issues and
decision making.
Mr. Colhoun convened the
regular Board meeting to conduct the Foundation’s business at approximately
I.
APPROVAL OF MINUTES/ADDITION OR
DELETION OF AGENDA ITEMS:
A.
APPROVAL
OF MINUTES OF THE REGULAR MEETING OF
Mr. Colhoun asked if there were
any additions or corrections to the
Motion #1: To approve the
Motion: Robert F. Stahl Second: Patricia Langenfelder
Status: Approved
Mr. Colhoun
expressed the desire to have a local workshop session in September 2005. He is looking for comments from the Board on
which items they would like to discuss.
Carroll or
He encouraged the Board members to
suggest a convenient time and suggest an agenda for the Workshop session planned
in September 2005.
B. ADDITIONS OR
DELETIONS OF AGENDA ITEMS:
There were a few changes in agenda
items:
II B.1 10-83-05e Moxley, Fred H., Sr. &
Marguerite Withdrawn
II.B.2 12-90-31e Ehlers,
Barbara W. A
II B.3 10-00-04 Wannuck, Irwin J. & Barbara A. Withdrawn
II.F.1 03-86-15 Tracey,
Arthur S. and A. Richard Withdrawn
II.E.1. 06-03-08e Schott,
Brad and Karen Withdrawn
earlier but now back on Agenda
III. G.7. Richardson, John R.
& Billie J. Withdrawn
IV.
PROGRAM POLICY
A. Nutrient Management Plans as a
Condition for MALPF Easement Purchases
James Conrad, Executive Director of the MALPF Program,
introduced the item. Assistant Secretary Douglas Scott of the Resource
Conservation Office of the Maryland Department of Agriculture has requested the
Foundation to consider making new easement settlements contingent on compliance
with the Water Quality Improvement Act. In other words, the Foundation should
treat having a Nutrient Management Plan on a property in the same way that the
Foundation treats the requirement for a current Soil Conservation and Water
Quality Plan.
A landowner must have a current Soil Conservation Plan on
the property to be eligible to offer an easement for sale to the Foundation. A
landowner must also have a Forest Stewardship Plan on the property before
settlement if the property contains 25 or more of contiguous forested acres. This means the following:
1.
A
landowner must have a Soil Conservation Plan for the property which:
·
has
been approved by the local soil conservation district;
·
has
been made or revised within the last ten years;
·
lists
all soil conservation and water quality practices needed to correct existing
problems on the property; and,
·
contains a schedule of implementation which indicates when the soil
conservation and water quality practices will be installed.
2.
If
the proposed easement property has 25 acres or more of contiguous forested
land, a landowner must provide a Forest Stewardship Plan to the Foundation
prior to settlement on the easement.
The Forest Stewardship Plan requirement is being implemented
in the FY 2006 easement acquisition cycle.
The requirement was included in the easement application form for FY
2006 and will be developed into regulation.
Staff recommends adoption of the Nutrient Management Plan
requirement based on stewardship expectations on State-funded easement
properties. The requirement is State law
already. However, the requirement should
not be implemented until it has been incorporated into the easement application
process, put into the regulations, and has been publicized. The requirement would apply to the
applications being submitted in July 2006 for the FY 2007 easement acquisition
cycle. This is consistent with the
implementation schedule of the Forest Stewardship Plan requirement recently
adopted by the Foundation. Further,
staff recommends that the Board of Trustees solicit the input of program
administrators before finalizing the adoption of this requirement. Program administrators should both be
informed of this possible change, and they should have input concerning the
adoption and implementation of this requirement.
Louise Lawrence, Office of Resource Conservation was
available to answer any questions Board members may have concerning this
request. Ms. Lawrence introduced herself
and shared Resource Conservation’s interest to make sure that all of the
Department’s programs are in sync so that people who benefit financially from
some of them are in compliance with State legal requirements. She suggested at the application stage to
inform people that they need to comply with the nutrient management
requirements.
Robert F. Stahl, Board member,
expressed that this would become an interesting requirement, because there are
two different people – the landowners and the farmers – because they are
affected by different requirements. The
Nutrient Management Plan is a requirement on the farmers, not necessarily a
requirement for the landowners. The
farmer is not involved in the easement application stage, and a landowner may
not necessarily know about operational issues on his farm, the responsibility
of the farmer.
Ms. Lawrence suggested that the
landowner would assure that the property under easement has met the
requirements of compliance with Water Quality Improvement Act.
Board members discussed the subject
in detail and concluded that the landowners can be encouraged to have a
Nutrient Management Plan as a condition while applying for an easement, but the
Foundation cannot be responsible for ensuring that the farmers are complying
with it or not.
Mr. John Zawitoski,
Program Administrator,
Motion #2: To table the request to adopt the Nutrient Management Plan
requirement on easement property until more details are worked out.
Motion: Shirley W. Pilchard Second: Chris Wilson
Status: Approved
II. DISTRICT
/EASEMENT AMENDMENTS
A.
1.
Request to separate the district into three separate
districts to facilitate sale of an easement
This item was tabled at the
Mr. and Mrs. Ptack are the
original owners of this district property. There is one pre-existing dwelling,
and there have been no requests for lot exclusions. The Ptacks do not
own any other district or easement properties.
The current request is to divide the property into three
separate districts. As the property consists of three separately deeded
parcels, the Ptacks are requesting the separation be
made along these existing boundary lines as shown on the tax map. It is the landowners’ desire to apply for
sale of an easement on one of the parcels and to transfer development rights
from one of the parcels using the County’s TDR Program.
If this request is approved, it will result in the following
three districts:
A = 67.28 acres (75% soils classes I, II and III);
B = 55.89 acres (80% soils class II); and
C = 20.00 acres (60% soils class II with one pre-existing
dwelling).
The farm operation on all three parcels is grain and
forestry. All three of the parcels have current forestry management plans.
The local Advisory Board has approved this request as in its
opinion the parcels meet the Foundations requirements for district
establishment.
Foundation staff recommends approval as each parcel meets
the minimum size and soils criteria for district establishment.
Mrs. Ptack and Mr. Charles Rice,
Program Administrator, were present at this meeting. Mr.Colhoun thanked
Mrs. Ptack for attending the meeting, as it helps the
Board members to directly ask questions to Mrs. Ptack
and take a decision on the item.
Mrs. Ptack informed the Board
members that the request is to facilitate their participating in the easement
and TDR programs of the County. She shared with the Board members that they
initially bought the 20 acre farm and over the years had managed to consolidate
the farm by picking up individual parcels as they came up for sale from the
family. At this point in time, they would like to preserve initially the 20
acre lot, with the TDR program to help pay for work needed on the historic
house. Their primary goal is the preservation of the whole farm.
Mr. Tassone asked Mrs.
Ptack is she had intended to preserve all three
pieces. Mrs. Ptack confirmed that ultimately, it was
their intention. Though initially they plan to preserve the 20-acre parcel,
their ultimate intention is to preserve all the three pieces.
Mr. Tassone explained
that if the Ptacks were just coming into the Program
and wanted to withhold the 55 acre piece, it would be inconsistent with the
Board’s policy. The reason is that the Foundation would be obligated to buy an
easement on the other pieces, while the Ptacks could
sub-divide the 55 acres into more than 3 residential lots next to the easement
property.
Mr. Tassone also noted
that, if the Ptacks were already in the Program and
wanted to sub-divide, the Board would require
that they demonstrate that there is an agricultural purpose for the
sub-division.
Thus, Mr. Tassone said
that, under normal circumstances, the Board should not approve a request to
subdivide a district unless it satisfies the terms for acreage withheld from
farms entering the Program, or the terms for agricultural subdivisions.
Otherwise, the decision would be inconsistent with the intent of Foundation
policies.
These policies are intended to protect the
Foundation’s interests, without having to rely on statements of intent from
landowners. In this case, he understands Mrs. Ptack’s
request, and that the Ptack’s intend to preserve all
three parcels through either the State Program or the County TDR Program.
Mrs. Ptack admitted
that it was a bit of shortcoming on her part in not understanding the process
because they initially applied for one district instead of applying for three
separate districts.
Mr. Tassone said that,
in this case, if the Board was asked to vote, it is likely everybody
would trust Mrs. Ptack and vote yes. In another case
the Board may say `yes’ or `no’. However,
relying on Board members’ judgment of applicants
trustworthiness is not a desirable way to do the Foundation’s business.
Mr. Tassone wondered
if the Board could, for example, approve the request but modify the district
agreement to reserve the option to not make an offer to buy an easement on any
of the parcels if the intent of the landowner to preserve all three parcels
changes.
Mr. Robert Stahl remarked that Mrs. Ptack is attending the meeting and if the application had
come as a request for three separate districts, the Board would not be
questioning it.
Dr. Pelura also felt
that sometimes we have to take people at their word.
Mr. Conrad remarked that the MALPF has it
recorded in the minutes that it is Mrs. Ptack’s
intention to protect the whole property and if between now and the time of
easement, she decides to put one of the parcels under easement and she puts 50
houses on the other parcel, the Foundation certainly has the ability to not to
make an offer in the future.
Motion #3: To approve
the request to separate the district into three separate districts to facilitate
sale of an easement.
Motion: Lewis
Logan Second: Vera Mae Schultz
Abstained: Robert
Stahl
Status: Approved
Mr.
Tassone responded to Mr. Stahl’s comments that the
long-standing tradition of the Program is to preserve farms in their entirety,
not just part of the farm. There are
many different mechanisms that work to ensure that we don’t sub-divide farms
for non-agricultural reasons. So the
Board had questioned in the past when properties came in as separate districts
and have approved them on the basis of whether the property as a whole is too
large to grant an easement offer. Thus,
contrary to Mr. Stahl’s assertion, Mr. Tassone would
have questioned a request from the Ptacks to enroll a
large property as separate, contiguous parcels.
Mr. Stahl commented that
had Mrs. Ptack done one parcel one month, another
parcel the next month, and one more parcel the following month, the Board would
have complimented the efforts of Mrs. Ptack that she
is working for the preservation for the whole piece. On behalf of the County, he commented that it
has many many small parcels – the County doesn’t have
large tracts of land. They are doing everything in
Mr. Colhoun
commented that after listening to the Board members, that this shows everyone
the value of a landowner coming and talking to the Board and the Board getting
the feel of the landowner’s intention.
He thanked Mrs. Ptack for coming because it
helps the Board in its decision making.
A.
2. 12-90-31e Ehlers, Barbara W. 99.83
acres
Request to relocate a previously approved child’s lot on
easement property
Ms. Ehlers is the original grantor
of the easement property. The current
request is for the relocation of a previously approved child’s lot.
On
According to
The new location (indicated as “A”
on aerial) was suggested by the Health Department as it avoids the septic
problems associated with the previously approved lot. The new location is consistent with local
zoning regulations and was approved by the local advisory board.
Foundation staff discussed possible alternate locations with
Mr. Warfield. Staff expressed concern
that the proposed location protrudes measurably into the field. Mr. Warfield stated that alternate locations
suggested by staff were unsuitable. The
location to the east (indicated as “D” on the aerial) of the originally
approved location was deemed unsuitable for septic reasons as it is
bottomland. The location to the west
(indicated as “E” on the aerial) is not preferred as it requires a very long
driveway – approximately 800 feet and would result in a larger lot size.
Foundation staff recommends approval of the location
because, due to perking and access issues, there does not appear to be a better
location.
NOTE: The location
indicated as “C” on the aerial is the lot approved for David’s brother, Robert.
Mrs. Barbara Warfield Ehlers, Mr. Robert Warfield and Mr.
Bill Amoss, Program Administrator, were available at
the meeting to address questions raised by the Board.
Motion
#4: To approve the request to
relocate a previously approved child’s lot on easement property.
Motion:
Joe Tassone Second: Lewis Logan
Status:
Approved
C.
1. 05-94-02A Robinson,
Request for the exclusion of a 1-acre child’s lot from
easement property
Mr. and Mrs. Robinson are the original grantors of the
easement. The current request is for the
exclusion of a 1-acre lot from the easement for the purpose of constructing a
dwelling for the personal use of their son, David.
There are no pre-existing dwellings on the property. No other family lots have been requested on
the property. Mr. and Mrs. Robinson own
additional properties in the Program; however, no lots have been requested on
those properties.
According to
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
$450.00.
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...”
Ms. Tammy Buckle, Program Administrator, was present. Mr. Robinson had conveyed his apology for not
being able to attend the Board meeting due to a surgery scheduled on the same
day. However, Ms.Buckle
was able to visit Mr. Robinson personally and talk to him at length.
Ms. Buckle shared with the members that the farm is a wheat
farm. There is no homestead on the
property at this time. There was an
existing homestead which was subdivided from the property before Mr. Robinson
went in a district for the use of his daughter-in-law and grandchildren.
Motion
#5: To approve the request for the
exclusion of a 1-acre child’s lot from easement property.
Motion:
Patricia Langenfelder Second: Judith Lynch
Status:
Approved
D.
1. 21-99-07e Myers, Jr., Leroy E. 150.0845
acres
Request for the exclusion of a
2-acre child’s lot from easement property.
Mr. Myers is the original grantor of the easement
property. The current request is for the
exclusion of a 2-acre lot from the easement for the purpose of constructing a
dwelling for the personal use of his son, Ryan A. Myers.
There is one pre-existing dwelling on the property. Mr.
Myers received approval on
According to
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
$4,057.06 @ $2,028.53/acre.
Staff recommends approval of the release of 2.0 acres, based
on the provisions of the deed of easement and in accordance with Agricultural
Article, Section 2-513(b), 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.
Mr. Myers was present at the Board meeting and explained the
location of the requested lot to the Board members.
Mr. Myers further wanted to express
his views on the Agenda Item “Nutrient Management Plans as a Condition for
MALPF Easement Purchases”, earlier discussed in the meeting. He felt that the landowner does have the
responsibility as suggested by Mr. John Zawitoski,
Motion #6: To approve the request for the exclusion of a 2-acre child’s
lot from the easement property.
Motion:
Douglas Wilson Second: Patricia Langenfelder
Status:
Approved
E.
1. 06-03-08e Schott, Brad & Karen 105.1286
acres
Request for 1) reclassification of a
pre-existing dwelling as a farm office and 2) approval to construct a
replacement for the pre-existing dwelling in another location.
Mr. and Mrs. Schott are the subsequent owners of the
easement property. Mr. Schott’s mother, Cordelia Schott, was the original owner of the
property. The property has two
pre-existing dwellings that are located in close proximity to each other. One is the subject dwelling; the other is a
tenant trailer which will be replaced by an updated tenant trailer for a
general manager to oversee the nursery operation. There is one unrestricted lot available on
the property.
According to