MALPF Board Meeting minutes: November 22, 2005

MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

MINUTES

November 22, 2005

TRUSTEES PRESENT:

Daniel Colhoun, Chairman

Vera Mae Schultz, Vice Chairman

Jerry Klasmeier, representing Comptroller Schaefer

Judith C. Lynch

Dr. James Pelura

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:

Howard S. Freedlander, representing Treasurer Kopp

Patricia Langenfelder

Shirley W. Pilchard

OTHERS PRESENT:

Bill Amoss, Harford County, Program Administrator

Tammy Buckle, Caroline County, Program Administrator

Steve Cohoon, Deputy Director, Queen Anne’s County

James A. Conrad, MALPF Executive Director

Carol Council, MALPF Administrative Officer

Henry Daly, Landowner, Caroline County

Rama Dilip, MALPF Secretary

Lynda Eisenberg, Resource Conservation Planner, Maryland Department of Planning

Nancy Forrester, Assistant Attorney General, Department of General Services

Joy Levy, Howard County, Program Administrator

Jeanine Nutter, MALPF Staff

Barbara Polito, Anne Arundel County, Program Administrator

Charles Rice, Charles County, Program Administrator

Ralph Robertson, Carroll County, Program Administrator

Daniel Rosen, Planner, Maryland Department of Planning

Faith Elliott-Rossing, Planning Director, Queen Anne’s County

Martin Sokolich, Talbot County, Program Administrator

Elizabeth Weaver, MALPF Administrative Officer

Daniel Colhoun, Chairman, called the meeting to order at approximately 9:35 a.m., at the Maryland Department of Agriculture building, Annapolis, Maryland.

The Chair asked the guests to introduce themselves.

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

A. APPROVAL OF MINUTES OF THE REGULAR MEETING OF OCTOBER 25, 2005

Motion #1: To approve the minutes of October 25, 2005, with corrections.

Motion: Jerry Klasmeier Second: Vera Mae Schultz

Status: Approved

Ms. Jeanine Nutter, Foundation staff shared the proposed plan for Christmas lunch. Mr. Colhoun had suggested exploring the possibility of having an off-site lunch for Board members and the MALPF staff after the December Board meeting. Ms. Nutter suggested Bertucci’s located at Forest Drive near the intersection with Riva Road. The Restaurant can accommodate about 40 people and is located less than a mile from MDA. The lunch menu would include salad, bread sticks, choice of pasta dish, soups, etc. She would be working out the details and circulating the details to Board members and staff.

Mr. Colhoun invited the spouses of Board members and suggested including the ex-officio Board members from the State Agencies as well as their representatives.

C. ADDITION OR DELETION OF AGENDA ITEMS

The presentation on Queen Anne’s County’s re-certification was moved forward to accommodate the County staff to attend another scheduled meeting.

II.C. QUEEN ANNE’S COUNTY

1. 17-01-07 Dulin, John R. & Betty L. 145.825 acres

Withdrawn

Mr. James Conrad, Executive Director of the Foundation, had a few announcements to make. He announced the appointment of committee on districts, comprising of Mr. Howard Freedlander, Mr. Bill Powel, Mr. Ralph Robertson, Mr. Charles Rice, and Ms. Jenny Plummer-Welker. Ms. Carla Martin will also be invited to be part of this committee when she returns from vacation. Mr. Dan Colhoun will chair the committee. Mr. Conrad also shared with the Board members that shortly there will be another committee on general use issues, chaired by Ms. Vera Mae Schultz.

Mr. Conrad circulated the updated easement participation table for FY 2005. The total easements offered and accepted amount to 70 offers covering 8,842.3595 acres.

Mr. Conrad gave an update on one of the agenda item of the October Board meeting. Mr. Coleman, Cecil County, had accepted both the offers (07-04-03 and 07-04-04) with the understanding that, if either the “use issue” or “district” issue is not resolved by the Foundation at the time of settlement, he can withdraw his acceptance on one easement offer and move forward for the settlement of the other offer.

Mr. Colhoun shared with the Board members that he and Mr. Conrad met with Mr. Freedlander, the new Board member, and gave an introduction of the Board’s functioning, which he found very useful and informative. He also shared with the Board members about the presentation he made to the American Farmland Trust on MALPF and its functioning. He encouraged the Board members to speak about MALPF and its functions, if they get an opportunity.

V. INFORMATION AND DISCUSSION

B. Re-Certification of Queen Anne’s County – a presentation by Maryland Department of Planning

Dan Rosen, Maryland Department of Planning made a presentation to the Board members, followed by Queen Anne’s County’s Planning Director Faith Elliott-Rossing and Deputy Director Steve Cohoon.

Certification Status and Overview: The County’s last certification period ended on June 30, 2002. Until recently, the Department believed that Queen Anne’s County’s zoning and other land use tools were limiting residential development in areas around easements. Recent information indicates that a combination of provisions in County land use law and procedures, however, allow considerably more development than the Department understood (see background below). The magnitude of the problem is not clear, but may be compromising the effectiveness of the County program substantially, as defined for purposes of certification.

The Maryland Department of Planning would like to recertify the County program for the period July 1, 2005 through June 30, 2007, and require a number of specific items as part of the County Program Evaluation and Development Strategy. This information should be presented in the County’s final report of the certification period, which also serves as the request for recertification. Since we are well into the certification period, the Departments recommends that the County skip the interim report and submit just the recertification report, which is due on October 30, 2006.

Mr. Rosen also hoped that the certification period may be treated more as a period of dialogue rather than the County submitting their memoranda and the Department of Planning responding to them. The last certification report covered the years from 2001 to 2004 and, based on the experience, the Department of Planning recommends re-certification.

Background:

— In the four fiscal years covered by the report, MALPF acquired 35 easements and preserved 5,539 acres in Queen Anne’s County. The County saw the development of just 913.8 acres as rural lots. However, 3,071 acres were subject to agricultural land transfer tax, meaning they will not stay in farming.

— The County met the requirement for qualifying expenditures, though the report was not entirely clear that the funds were spent.

— The County Commissioners created the Preservation Task Force in August 2003 to make recommendations on preserving farmland and scenic vistas. The Task Force recommended a County PDR program (including an increase in the County recordation tax rate to generate millions of dollars per year for easement purchases), an agricultural economic development program to bolster the local farm economy, and agricultural tax credits, among other things.

· Queen Anne’s County’s goal is to preserve 30,000 acres by 2010 and 50,000 by 2030. The County has already surpassed its 2010 goal (however, see the concern about preserved County open space, below). More than 35,336 acres have been preserved through a combination of MALPF (21,604 acres), Rural Legacy, MET, and through the efforts of local land trusts, including the Eastern Shore Land Conservancy.

· During the reporting period 2001-2004, 55.4% of the new building lots approved were located outside of designated growth areas.

· The number of applicants for the MALPF program for FY 2005 decreased considerably (five applicants in FY 2005, as compared with 25 applicants in FY 2003 – no program in 2004). The total farmland acres preserved for FY 2005 through the MALPF program is anticipated to be 390 acres. SDAT indicates a conversion rate of 683 acres for FY 2005. The negative trend does not improve for FY 2006. Only one applicant, for a total of 114.3 acres, has applied for the MALPF FY 2006 easement application program.

· Rural zoning seems moderately protective: 1:20, 1:8 for cluster subdivisions that preserve 85% of the site. However, a number of development options increase development densities.

§ The sliding scale option allows one extra unit per 100 acres.

§ More important, the non-contiguous cluster subdivision allows non-contiguous parcels to file a development plan as if they were one parcel. The development potential is consolidated onto one parcel, where the open space requirement is reduced to 50%. The 85% open space requirement is maintained overall on the total acreage of the participating parcels. However, the developed portion of the receiving parcel can be developed at a high density, apparently as high as well, septic, and environmental restrictions will allow. In addition, rights that cannot be developed on sending parcels can nevertheless be transferred. The County’s most recent recertification report states that such requests are “getting popular over time.”

§ Open space remainders from cluster subdivisions are not necessarily permanent. Some of them become receiving sites for non-contiguous transfers even though they are currently mapped as preserved open space.

§ As the attached map shows, the Chino Farms Rural Legacy area, which the State paid $8,000,000 to protect, is becoming a magnet for development, rather than a nucleus for a larger preserved area. It appears that this can happen anywhere in the agricultural zone, and the Department does not know the extent to which it is occurring.

The Department acknowledged that the preservation of a farm without public funds, which the non-contiguous transfer achieves, is a good thing. However, the transfer of those rights to another part of the rural zone, and the large number of houses that are built as a result, are detrimental to an effective agricultural land preservation program. The suburban intrusion affects farmers' ability to farm, undermines the supporting agricultural infrastructure, raises land prices beyond the reach of farmers, and undermines the County’s own plans and goals for land preservation.

Conclusion: Overall, it appears that demand for the type of development allowed by County zoning and land use tools may be resulting in increasingly widespread development that is incompatible with the goals for the Foundation and the certification program. Land values for development appear to be rising drastically, making it difficult or impossible for preservation to compete with development of prime farmland, in parts of the County designated for preservation.

In their next certification report, the Maryland Department of Planning would like to require that the County does the following:

· Provide a thorough evaluation of the degree to which its land use tools are allowing development that is compromising State preservation investment, as described above and otherwise.

· Specifically consider, in the evaluation, provisions for clustering; non-contiguous transfer; sliding scale development rights; transferable development rights from parcels lacking corresponding development capacity; impermanence of County open space; and the cumulative effect of all provisions.

· Include the following data in the report:

§ The number of parcels on which non-contiguous transfer has occurred, their location on a map, the number of units on them, and the acreage that remains permanently open as a result of the non-contiguous transfer remainder.

§ The number, location, and acreage of open space parcels that exist as a result of the cluster option and that can be used as a non-contiguous receiving area.

§ The number, location, and acreage of open space parcels that have been built on as a result of the non-contiguous cluster option.

§ Clarification of County laws and procedures regarding County open space parcels: how much land must be preserved and is it permanently preserved or not.

The report should include the steps the County is taking to correct shortcomings in the ability of the program to manage subdivision and development, consistent with the intent of the MALPF and certification programs.

Mr. Rosen pointed to the map and illustrated an example of the amount of development that is going in around preserved land in the Rural Legacy Areas. He located on the map the two parcels purchased for development and understands from the County that there has not yet been a development proposal for the parcels (305 acres). He would like to point out the amount of money paid being $ 13,150 per acre.

Mr. Colhoun wanted to know what the Board can do to support the County and invited the County staff to make their presentation.

Ms. Faith Elliott-Rossing, Planning Director, Queen Anne’s County, thanked the Board and the Foundation for the opportunity to be present at the Board meeting and advancing the agenda item enabling them to attend to their other business as well.

Ms. Rossing commented that the re-certification request was hand delivered to the Foundation Board in February 2005. She felt, if the issue was contemplated prior to now, it is possible that some of the discussions they are having now could have been had in the context of a more general policy with Maryland Department of Planning and MALPF Board rather than project specific information. There have been a few significant changes in the map circulated by the Maryland Department of Planning – such as, the Eastern Shore Conservancy is no longer listed as one of the entities from whom the information was received, more specifically as to who purchased the development parcels or who purchased the adjacent property.

Ms. Rossing displayed the map prepared by the County and explained that the map actually mirrors the staff report that the Board has received from the Maryland Department of Planning, but more specifically highlights the Chino Farms. The Maryland Department of Planning spoke to the County regarding the proposed sub-division adjacent to the Chino Farms Rural Legacy Area. She wanted to counter the perception that the County is not doing a good job of protecting rural land or easements whether from MALPF or Rural Legacy. She clarified that, although property owners make a conscious and voluntary choice of participating in the MALPF program or negotiating an easement through Rural Legacy, it does not imply the adjacent property owners lose their developmental potential as a result of another property owner's decision to participate in a voluntary program.

She pointed out the Rural Legacy Area of Chino Farms on the map and commented that $8 million dollars was paid for the 5,000 acres that were preserved. There were lots created around the 10 existing parcels and the right to build on 22 additional lots that were created throughout the Rural Legacy Areas. There were also existing lots immediately adjacent to the Rural Legacy Areas that existed prior to its creation. In Chester Harbor, there are 880 lots and 440 houses. The sub-division in this area has been questioned. In the particular property she located, there are currently 50 lots. They are anticipating using the non-contiguous sub-division technique to this end. Ms. Rossing also clarified that the non-contiguous sub-division technique has been available in their zoning regulations as an option since 1987. At the same time, the County was down-zoned from 1:1 (1 dwelling per one acre) to 1:8 (1 dwelling per 8 acres) with the clustering provision, which requires that 85% of the land be placed in deed-restricted open space. Since 1987, the non-contiguous technique has been available as an option, as a TDR-like program in the County. The TDR Program has not been very successful – the County has preserved 2,400 acres from TDRs and 5,000 acres have been preserved using non-contiguous development. The non-contiguous technique has been tweaked over time and essentially has the same requirement as MALPF(50 acre minimum lot for district, recordation, minimum lot size for non-contiguous is 40 acres or could be half of the original parcel size which allows some landowners with smaller size properties to participate, soil requirement of 50%, Class I, II or III. Their language and zoning mirrors that. The open space land the County is protecting does not have public money invested.) There are concerns whether or not the County is tracking these restrictions adequately.

Ms. Rossing explained that the map was actually created to display where the development is going and where the preserved lands are coming from. The developed parcels can reduce its open space requirement to 50% on site. There is still a requirement of 85% overall throughout the County, which may not be immediately adjacent to the developed parcel. The map shows the location of the developed parcels and the deed-restricted lands supporting the development.

Ms. Rossing commented that they wanted to present to the Board the County’s potential strengths. The County is aware that its program is under lot of criticism; but, at the same time, she wanted to inform the Board about the County’s efforts to move forward with its preservation efforts and re-certification.

Regarding the land preservation task force report mentioned by Mr. Rosen, Ms. Rossing commented that there were four more recommendations. One of them was a PDR Program, which will allow the County to purchase development rights with a formula-based program. The County is looking at the possibility of using the recertification money to partially fund a PDR Program. In addition, the County Commissioners have put $100,000 for the last two years in the capital funds budget for land preservation. So the County is hoping to supplement the certification money with that.

She added that landowners in the County are realizing higher market values for their properties and are now choosing not to participate in the State program when they see how much money they could be leaving on the table.

Ms. Rossing concluded her presentation by saying that, at this point in time, the County Commissioners have held a meeting with the Farm Bureau, with probably 150 landowners joining the meeting and had discussions about the options that can be used in the Agriculture Zoning District. She noted that some of the comments made at that meeting and the letter from MDP presented to the November Planning Commission have raised some concerns of the County Commissioners. Two of them are meeting with Secretary Scott.

Responding to a question from Mr. Conrad, Ms. Rossing clarified that the map is extracted from the conservation lands map. Sometimes people have difficulty in understanding non-contiguous transfers and how they work, and the map helps in understanding this. Non-contiguous transfers do work to create larger contiguous block of easement lands whether using Rural Legacy or districts or TDR Open Space. At this point of time, non-contiguous transfers are not a requirement for prioritization, so that you do get more credit for being immediately adjacent, but it seems to be naturally occurring. She further stated that at this point of time, there have only been 20 projects that have used the non-contiguous sub-division technique in the County. There are concerns that the densities could far exceed anything except for restrictions that relate to natural resources or other plat constraints. The reality is that, because they have to preserve 85% of the overall acreage, they are still not achieving 1 unit per acre, which is permitted by right by using the non-contiguous technique. The map shows that there are 20 projects that have preserved 5,388 acres; there are some pending or proposed projects that would protect another 1,595 acres. The TDR Program has been inactive for several years. The County TDR Program requires that lands be preserved in rural areas of the County by directing development towards the growth area. The requirement is to have 3½ dwelling units per acre to meet priority funding area requirements. That becomes problematic as the County’s growth areas are not receptive to receiving growth at that density. So there was no need to purchase a development right if you can’t build with the TDR. They have had discussions with MDP on the options to enhance their TDR program.

Queen Anne’s County is in the process of updating their master water and sewage plan and are also in the process of increasing the gallons going through the waste water treatment process from 2 million to 3 million gallons to bring on board an Enhanced Nutrient Removal (ENR) wastewater treatment plant. The ENR plant is expected to be ready by 2007. The County Commissioners have taken steps to adopt an allocation policy for the additional million gallons to come on line. The Commissioners were concerned about the potential for increased residential growth associated with increased capacity. They adopted a resolution that essentially said that 500,000 gallons must be used for the potentially failing septic system. 200,000 gallons will be used towards new commercial growth, and an additional 300,000 gallons will be used for residential growth off Kent Island.

On the subject of permanent open space, Ms. Rossing stated that their open space has been a requirement since 1987. The County participated in the Eastern Shore 2010, proposed by the Eastern Shore Land Conservancy. The County looks at deed-restricted open space as permanently protected.

Between 1987 and 1994 there were two ways to sub-divide an agricultural land. There was an option of creating a 20-acre parcel or a cluster sub-division at 1 per 8. At that point of time, the intent was for the remainder of the land to be continued to be farmed. When it was realized, as a part of sub-division process, that to delineate the open space you needed to identify the restricted area on the property with a metes and bounds description of that area for recordation. There was a policy decision made that, if somebody subdivided off a lot or created a lot for their child, then the rest of the farm would go into open space recognizing that as another lot was created for another child or a sub-division was created, the open space requirement would change. All the numbers presented on the map are made on that assumption of the 85% open space restrictions. The Open Space created when residential lots are developed on a property is now recorded on a plat. Open Space does not mean all of the land is restricted when one lot is developed; rather, in Queen Anne’s County, there is an expectation that you can continue to have agricultural uses that is defined by County ordinance on those lands, but some development potential may remain. Now the requirement has been revised to update the ordinance that says that you have to go and spend the money, if you are going to create additional residences, then you have to spend the money to identify by metes and bounds only those open space areas which are required to support the development that you are doing. This eliminates the potential conflict between the landowners and the other residents in the area.

Mr. Cohoon, Deputy Director, clarified that owners may have 95% of their farm in open space; zoning ordinance requires 85%. Now there are two options to use non-contiguous development – you can reduce on site to 50%, but support off-site development by other lands that maintain the 85% – that land is deed-restricted off-site, and there is no future development on it. It meets MALPF requirements as far as soil is concerned and is 40-acre in size. Ms. Rossing also stated that what happens normally is that landowners come in with 40 acres and then do 40 more acres. It comes in pieces and is not a commitment of the entire farm at one time. The Farm Bureau and the agricultural community feel that this provides the farmers with a little more flexibility and more money than MALPF (more immediate return on money rather than the 2-year wait).

Robert Stahl, Board member, remarked that he is part of both Rural Legacy and the MALPF Board. He found it interesting that Chino Farms under Rural Legacy was limited to the land under Rural Legacy and there was no overall arching preservation area that was continuously worked on to get more and more preservation within that area. What happened was that there was a natural attraction to develop next to a preserved area on the water. Mr. Stahl commented that he shares the concerns with Planning that the State has made large investment in the Chino Farms Rural Legacy area, but there isn’t the overarching area that has been committed to preservation around it.

Board members shared their concerns about the development pressure around the preserved areas, whether it is the Rural Legacy Program or MALPF.

Mr. Stahl commented that, in Queen Anne’s County, part of the problem with the non-contiguous situation that, while it is putting a lot of land in preservation, the preserved parcels are all over the place. There is not one area of the County that is a designated preservation area, and it creates a potential problem. It is not that the County is not getting preserved land, but there are no clear demarcations for designated growth areas or designated preservation areas.

Ms. Rossing stated that the County recognizes this. While the preserved lands seem scattered over the rural area, the County is seeing the filling in of some of the scattered areas creating larger contiguous blocs of preserved acreage. There is also the recognition that more concentrated development results in fewer school bus trips and stops, fewer trash pick ups and other economies of scale are created.

Mr. Colhoun thanked Ms. Rossing for the comprehensive presentation and asked if the County feels comfortable with the recommendations suggested by Maryland Department of Planning.

Ms. Rossing agreed and stated the County will work with Maryland Department of Planning and the Foundation staff to address their concerns.

Dr. Pelura, Board member, wanted to know if there had been a wastewater treatment plant failure in the County. Ms. Rossing clarified that the County has only one wastewater treatment and was not aware of any failure. The County has two other incorporated towns with which the County has joint agreements, and the two towns have their own wastewater treatment plants. The County is in the process of initiating a new community planning area plan around the Chesapeake College that may result in additional capacity being created.

Motion # 2: To approve the recertification of Queen Anne’s County.

Motion: Doug Wilson Second: Robert Stahl

Status: Approved

Mr. Tassone informed the Board members that Mr. Rosen has also prepared a primer on re-certification that had been distributed to the Board. As always, once the decision of the Board has been made, the Department will put together the Board’s and its concerns and will communicate them to the County in a letter.

Ms. Rossing added that currently the County is working with the legal counsel to develop an easement document that will be consistent with the PDR Program. It is their intention to complete this document as quickly as possible.

II. DISTRICT /EASEMENT AMENDMENTS

A. HOWARD COUNTY

1. 13-02-01e DALY, Henry and Betty 23.125 acres

Request to exclude a 1.0 acre child’s lot for their daughter, Terry Daly Radue, from easement

Henry and Betty Daly are the original owners of this easement property. The current request is for the release of a 1.0 acre lot for their daughter, Terry.

The property has one pre-existing dwelling. There was a 1.0 acre child’s lot released from the property for their daughter, Barbara Ann Floyd, while the property was in District status. The Daly’s do not own any other district or easement properties.

The landowners have located the lot adjacent to the previously released child’s lot. According to Howard County, the proposed lot will be located in what is currently woodland and will share right-of-way access. The request has been approved by the Howard County Agricultural Land Preservation Advisory Board and meets local zoning requirements.

If the request is approved, there will be a required payback of $15,000.00. Also, if this request is approved, there can be no more lot requests made on this 23.125 acre property.

Staff points out that this request is consistent with the recently approved Guidelines for Lot Exclusions. 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...”

Mr. Daly and Ms. Joy Levy, Program Administrator, were available at the meeting. There was a minor adjustment of the proposed lot from the aerial map provided with the agenda material.

Mr. Conrad wanted to know about the access to the woodland behind the two lots, and Mr. Daly explained this to him.

Motion # 3: To approve the request to exclude a 1.0 acre child’s lot for their daughter, Terry Daly Radue, from easement.

Motion: Joe Tassone Second: Judith Lynch

Status: Approved

B. CARROLL COUNTY

1. 06-82-13As4e LIPPY BROTHERS, INC. 211.486 acres

Request to exclude up to 2.0 acres for a child’s lot for daughter, Kandi Jo Lippy from easement

Lippy Brothers, Inc. is the original owner of this easement property. The family corporation consists of three brothers. This request is for the exclusion of up to 2.0 acres for the child of one of the brothers, H. Joseph Lippy (deceased). Lippy Brothers, Inc., owns a total of eight (8) easements and one (1) district property in Carroll County. In addition, the Lippy family owns five (5) additional easements in the County. Together, these properties equal over 2,128 acres. There have not been any previous requests for owner’s or children’s lot exclusions on any of these properties. The property has no pre-existing dwellings.

According to Carroll County, the proposed lot will be located along Old Fridinger Mill Road and will have direct access. The location of the lot will cause minimum impact on the farm operation. The Program Administrator has stated that the lot could not be located closer to an existing (separately owned) lot on Old Fridinger Mill Road because the area between the lots has steep slopes and two waterways. However, the lot will be located adjacent to the requested lot for a son, Joseph Craig Lippy (see agenda item II.B.2). The local Advisory Board has approved this request, and it conforms to the county's planning and zoning regulations. Approval of this request will require a payback of $3,400.00 per acre.

Staff recommends approval of the release of one acre plus such minimum additional acreage as required by the County Health Department or other county regulation, 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 2.0 acres if required by regulations adopted by the Department of the Environment or the county.

2. 06-82-13As4e LIPPY BROTHERS, INC. 211.486 acres

Request to exclude up to 2.0 acres for a child’s lot for son, Joseph Craig Lippy, from easement

According to Carroll County, the proposed lot will be located along Old Fridinger Mill Road and will have direct access. The location of the lot will cause minimum impact on the farm operation. The Program Administrator has stated that the lot could not be located closer to an existing (separately owned) lot on Old Fridinger Mill Road as the area between the lots has steep slopes and two waterways. However, the lot will be located adjacent to the requested lot for a daughter, Kandi Jo Lippy (see agenda item II.B.1). The local Advisory Board has approved this request, and it conforms to the counties planning and zoning regulations. Approval of this request will require a payback of $3,400.00 per acre.

Mr. Ralph Robertson, Program Administrator, was available to answer any questions from the Board.

Mr. Conrad remarked that this is an interesting case as this is a family corporation, the request is being made by the two remaining members of the corporation for the children of the deceased brothers.

Mr. Doug Wilson, representing Secretary Riley, Department of Agriculture wanted to know if the applicants are qualified under the rules of the Foundation.

Nancy Forrester, Assistant Attorney General, Department of General Services, clarified that the children of the three shareholders are qualified under the easement, and, in this case, the Corporation is the owner.

Ms. Forrester further explained that the three brothers were shareholders of the Lippy Brothers Corporation. When the easement was settled, all the three brothers were still alive. For the purpose of the lots, the three brothers and their children are eligible.

Mr. Bill Amoss, Program Administrator, Harford County, wanted to know if the owners had informed MALPF of their intent.

Ms. Forrester reiterated that in this case the Corporation is the legal owner. The facts of this particular case are much different than most, and, if there are any specific issues, Ms. Forrester advised the program administrators to speak to her on those specific issues. Ms. Schultz wanted to know that, if approved, these requests will eliminate children’s lots from any other easements owned by the Corporation. Ms. Forrester clarified that it will not.

Motion # 4: To approve the two requests to exclude up to 2.0 acres for a child’s lot for their daughter, Kandi Jo Lippy, and their son, Joseph Craig Lippy, from easement.

Motion: Robert Stahl Second: James Pelura

Status: Approved

Mr. Amoss wanted to know if the parents are deceased, can any other children have lots. Ms. Forrester clarified that the Corporation owns the property. If the parents had owned the property, they could not apply. If the deceased parents owned the property, the children could not apply. The only reason the children are getting the lots is because the property was owned by the Corporation, and the Corporation still exists. If the Corporation was not owned by the original shareholders, it could not elect to have child’s lots. If the Corporation had decided to form a different Corporation, none of the children would be eligible for child’s lots, as they will be the subsequent owners.

Ms. Tammy Buckle, Program Administrator, Caroline County, wanted to confirm that when lots are requested in the case of a Corporation, the corporate veil is lifted to make sure that it is family owned and, if the Corporation was not family owned, there would be no child’s lots. They will be allowed only one owner’s lots. Mr. Conrad confirmed that it was true.

3. 06-02-11e STAIR, Charles 101.678 acres

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

Mr. Stair is the original owner of this easement property. There is one (1) pre-existing dwelling on the property. There have been no previous requests for lot exclusions. Mr. Stair does not own any additional district or easement properties.

According to Carroll County, the proposed lot will be located along Jennaaron Drive and will have right-of-way access. The lot will be adjacent to a separately owned, existing lot and in the vicinity of a small subdivision. The request has been approved by the Carroll County Agricultural Land Preservation Advisory Committee and meets the counties zoning regulations. If the request is approved, payback for the 1.0 acre lot will be $3,500.00.

Staff recommends approval of the 1.0 acre 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...”

Mr. Robertson informed the Board that as can be seen from the tax map, the requested lot is clustered very close to a sub-division. The proposed lot is in the corner of the field, and the location is right along Jennaaron Drive.

Mr. Conrad wanted to know if the request is for 1.0 acre or up to 2.0 acres. Mr. Robertson informed the Board that there has been some engineering work done and the engineer is confident of a 1.0 acre lot.

Mr. Colhoun enquired about the unavailability of Mr. Stair at the meeting. Mr. Robertson stated that Mr. Stair’s health did not permit him to attend the meeting. Mr. Colhoun asked Mr. Robertson if he thought Mr. Stair would survive for five years. Mr. Robertson responded that he was not sure. Mr. Stair is currently living on another farm with his mother. Mr. Stair needed a house to suit his needs.

Mr. Robertson also informed the Board that anyone who comes to the County for preserving the farm are briefed about the 5-year policy of the MALPF and are informed that they are required to build a house on the property for their personal use only.

Ms. Forrester commented that she closed the easement on property and has had several discussions with Mr. Stair. She wanted to make sure that Mr. Stair understood about the 5-year policy, because Mr. Stair had questions about what he could do with the lot.

Motion # 5: To approve the request to exclude a 1.0 acre owner’s lot from easement with the condition that the Staff confirms the personal use requirement about such lots with Mr. Stair.

Motion: Doug Wilson Second: Robert Stahl

Status: Approved

Ms. Schultz wanted to know whether the area between the lot and the Jennaaron Drive will still be farmable. Mr. Robertson commented that it probably may not be farmable.

4. 06-96-02e PETERSON, Stuart and Sandra 113.36 acres

Request for an overlay easement for septic purposes on easement property

Mr. and Mrs. Peterson are the original owners of this easement property. The property has one (1) pre-existing dwelling. They have no previous requests made for this easement property. The Petersons own three other easement properties in Carroll County.

The current request is for the approval of an overlay easement for septic purposes. The Petersons own a 21,918 square foot dwelling lot that is located adjacent to the easement property. This dwelling lot is served by a septic area that was located in a corner of the subject property prior to the easement being purchased. The Petersons are currently considering the sale of the dwelling lot to a third party and are requesting approval of the overlay septic easement so that the lot can continue to be served by the septic area. The current size of the septic area is 100 X 50 feet (5,000 square feet). The Petersons pursued the purchase of land from an adjoining landowner so that the septic could be located on non-easement property, but they were not successful.

According to Carroll County, the 5,000 square foot area is currently, and will continue to be, cropland. The overlay easement will be located in a corner of the property. Any future need to access the septic area will cause minimal disturbance to the remainder of the farm. The request has been approved by the local advisory Board.

If this request is approved, a survey will be required. This survey will be recorded in the land records of Carroll County.

Staff recommends approval based on past Board approvals and because the septic area pre-dated the easement.

Mr. Robertson informed the Board members that when the easement was purchased, the Foundation was not aware that the septic system existed. If it was known, the easement could have been purchased subject to the septic field. The septic system was pre-existing, and they were using the easement land prior to the easement on it. It was not disclosed in the land records, and there was no formal agreement. Ms. Forrester reminded the Board that this was a pre-existing dwelling.

Mr. Robertson stated that Mr. and Mrs. Peterson tried to buy some property adjacent to the house they owned for the purpose of putting up some septic system. The landowners did not want to sell the land.

Motion # 6: To approve the request for an overlay easement for septic purposes on easement property subject to the actual language of the easement checked by the Assistant Attorney General at the Department of General Services.

Motion: Joe Tassone Second: Judith C. Lynch

Status: Approved

III. AGRICULTURAL PRESERVATION DISTRICT PETITIONS

Mr. Conrad presented the district petitions.

A. CHARLES COUNTY

1. 08-06-04 DEMARR, Ella Mae 165.285 acres

This is a 165.285 acre parcel located on Wilkerson Road in Brandywine, Maryland. There is a dwelling. The property is located within one mile of a 67-acre District property. It has 45.785 acres of cropland and 119.5 acres of woodland. The primary farming operation is forestry, grain and hay. nIt has 80% qualifying soils. The property has a Soil Conservation Plan. It is not part of a larger operation and is owner operated. Staff recommends that the landowners acquire a Forest Stewardship Plan on the property and recommends approval of the district petition.

Mr. Conrad mentioned the tax map shows 180 acres and staff report shows 165.285 acres. Mr. Rice agreed and stated that when Mr. DeMarr will apply for the easement, he will need a boundary survey with different descriptions on the deed. Mr. Rice has not suggested a survey so far.

Motion # 7: To approve the request of Ella Mae DeMarr to establish an agricultural land preservation district on his property of 165.285 acres.

Motion: Doug Wilson Second: Vera Mae Schultz

Status: Approved

Mr. Doug Wilson wanted to know when the tax map shows 180 acres and the assessment shows 165.285 acres, is it the State’s responsibility or the County’s responsibility to reconcile the acreage. Mr. Rice stated that it is the State Assessment Office’s responsibility based on the records it has in its Office. Mr. Rice was advised to have the correct acreage as the County would be requiring it to rank the properties when the landowners apply for the sale of an easement.

2. 08-06-05 HILL, James E. 113.28 acres

This is a 113.28 acre parcel located on Ripley Road in Ripley in Maryland. There is no dwelling. There are no other district or easement properties in the vicinity. It has 113.28 acres of woodland. The primary farming operation is forestry. It has 100% qualifying soils. The property has a Forest Stewardship Plan and does not have a Soil Conservation Plan. It has withheld acreage of 9.0 acres for stump grinding and composting yard. It is not part of larger operation and is owner operated. Staff recommends approval.

Mr. Tassone, representing Secretary Scott, Department of Planning wanted to know why there was a withheld acreage of 9.0 acres for stump grinding and composting yard. Mr. Rice stated as per MALPF policy, there can be a maximum of 9.0 acres of withheld acreage. In this case, Mr. Rice had also advised specifically to withhold 9.0 acres because of the potential nature of the use of stump grinding and composting yard. Mr. Hill also plans to import wood material from off-site.

Mr. Tassone wanted to know if they have an easement over this property. Mr. Rice was not aware of any. Mr. Rice also informed the Board that Mr. Hill has an access road on Ripley Road, which is a County maintained road along the withheld acreage area. He did not know whether the utility easement is an electric or gas line. Mr. Rice was not sure if the landowner has legally recorded easement or not across the utility line. The landowner wants to establish the district to participate in the County’s TDR Program.

Motion # 8: To approve the request of James E. Hill to establish an agricultural land preservation district on his property.

Motion: Doug Wilson Second: James Pelura

Status: Approved

3. 08-06-06 LLOYD, Clarence B. and Nancy D. 50.87 acres

This is a 50.87 acre parcel located on Lloyd Point Road in Newburg, Maryland. There is no dwelling. The property is contiguous to a 113-acre district property. It has 50.87 acres of cropland. The primary farming operation is grain. It has 100% qualifying soils. The property has a Soil Conservation Plan and does not have a Forest Stewardship Plan. It has withheld acreage of 9.0 acres. It is not part of larger operation and is owner operated. Staff recommends approval.

Motion # 9: To approve the request of Clarence B. and Nancy D. Lloyd to establish an agricultural land preservation district on their property.

Motion: Doug Wilson Second: James Pelura

Status: Approved

IV. PROGRAM POLICY

A. Water Recharge Easement Overlays – an update by Elizabeth Weaver, Foundation Staff

Issue: Will allowing water recharge easement overlays on MALPF properties reduce sprawl?

To address this issue the committee asked three of its members who are MALPF Program Administrators for counties located in the Piedmont region, the area directly affected by the WRE issue, to discuss the subject with their counties’ planning offices. Ralph Robertson of Carroll County and Bill Amoss of Harford County were present at the meeting and shared their views from their County’s perspective.

Mr. Tim Blaser of Frederick County is working on the County’s IPA Program and, therefore, was not able to attend the Board meeting. However, he sent his inputs and responded that in his opinion to a certain extent Mr. Tassone’s contention is right that WRE's will not necessarily reduce sprawl. However, he is still awaiting response from his colleagues at the Frederick County Planning Department. Ms. Weaver commented that Frederick County’s full perspective will be shared in the next month’s Board meeting.

Mr. Bill Amoss, Harford County, shared with the Board members that he was able to discuss the issue with his senior staff at planning and zoning of Harford County. Their general response to the question whether allowing water recharge easement overlays on MALPF properties will reduce sprawl was "no." They understand that timing certainly does delay sprawl in rural areas, but in the long run it will not stop sprawl. In a way they agree with Mr. Tassone’s comments. They advised him to ask Carroll and Frederick as to why they would even consider water recharge easements over MALPF easements, because it is a good supplementary preservation tool. By giving up a good preservation tool, they feel that they will not able to preserve as much acreage. Mr. Amoss was also able to discuss these easements in general, and the senior County staff had the perspective that MALPF should be against the use of wastewater spray irrigation easement overlays on MALPF properties as well as water recharge easements.

They wanted Mr. Amoss to share their views about how County’s smart growth principles are being used in Union Bridge. If MALPF could link smart growth with the TDR Program on surrounding farmland besides water recharge areas, we would be allowing density to increase in that particular growth area. The other issue in Harford County is encouraging people to enroll in the MALPF Program. One of the reasons MALPF has declined in attractiveness to landowners is the limited uses that are allowable under MALPF easements. The County recommends MALPF coming up with a complete list of allowable uses at the earliest opportunity. The list should indicate what is accepted under MALPF easements. The County staff would also like to recommend doing away with the requirement of districts for coming into the Program. Harford County does not require districts for coming into the County’s easement program. The third recommendation from the County staff was to have faster administrative approvals on issues like child’s lots, etc. They were concerned about the 5-year lot limitation on the sale of lots.

Mr. Doug Wilson requested Mr. Amoss to send his response in writing. Mr. Chris Wilson, Board member, commented that the gist of Mr. Amoss’s comments were that the County wanted definite uses spelled out, what can be done and not done, but have not included the water rights or wastewater disposal systems.

Mr. Colhoun stated that MALPF is going to have several use committees. The water recharge issue is certainly a use issue, yet different from other use issues. (The water resources committee and uses committee can talk together.)

Mr. Doug Wilson suggested getting an inventory of all the local land preservation programs as to what kinds of things are allowable in their easement program, so that MALPF can have a look at them and try to make its use policy more consistent with local policy. Mr. Colhoun asked Mr. Amoss to send his comments in writing to Mr. Conrad which can then be disseminated to the committee members.

Mr. Chris Wilson commented that if there is some way settlements on properties could be made faster, it would be a tremendous boost to purchasers. Mr. Doug Wilson wanted to clarify to the Board members and the local administrators as to what has happened to settlement dates. He felt that there is currently a misconception about how long it takes the Foundation to go to settlement, and he will provide some data on this issue at the next Board meeting. He remarked that, from the point an offer is approved by the Board of Public Works (or when the Foundation makes an offer to the landowners in earlier days), it used to take 13 – 18 months to go to settlement. But now, an extraordinary percentage of offers are actually settled within 90 days. The ones that are not are cases where there are deed issues or title issues over which the Foundation has no control. For example on the closings as of FY 2005, excluding the 70 offers just made this year, the Foundation only had 7 easements that had not been settled from 2001 to 2004.

Mr. Ralph Robertson, Carroll County, shared with the Board members that he was able to discuss the issue with the Chief Development Reviewer in Carroll County, and Tom Devilbiss, the County's hydro-geologist. Their response was "no." He felt that the question may not be answerable – he didn’t feel that allowing water recharge easements is going to push development in one way or the other. In Carroll County, they have a unique situation in that Westminster, Union Bridge, Taneytown and New Windsor all have easements virtually surrounding a part of them. So there is a real concern whether water recharge easements should be allowed or not. Mr. Robertson has spoken to the people in the County and has come to the conclusion that, because they have adequate facilities, because of the pressure Maryland Department of Environment has put on these communities to provide water, and the formula they have worked on as to how much water is needed per house, water recharge easements have the potential to discourage sprawl. It is the County’s contention and belief that this Program has a two-fold approach of preserving the farmland and controlling lot numbers. Mr. Robertson believed that, if we allow water recharge areas on farms that are in proximity of the appropriate towns, there is a tendency to give the impression to the landowner that we are willing to work with them. He felt it is very important to have the program viable in different ways to meet different circumstances and requirements, and the program needs support from these incorporated towns.

During this meeting, a question was raised that if the landowner is not under easement but sells water recharge easement on his properties, would we not take that farm into the program. He commented that if the State will not accept it, he will persuade the County to put it under the County Program. Mr. Robertson also felt that it will be another tool for the landowner that would give him a little bit more satisfaction knowing that he still retains value in his land being adjacent to an incorporated town.

On a local level, if the property owners would come to him and had already sold their water recharge easements and there is still enough water recharge area to allow future development, Mr. Robertson would be happy to accommodate their participation in the Program. He felt the water recharge easement overlays on MALPF properties can be used as a tool to make communities better.

Ms. Weaver commented that the Water Recharge Committee was hoping that it will have a clear indication from the Counties as to whether allowing water recharge easement overlays on MALPF properties would reduce sprawl or not. But from today’s session, it is clear that we still don’t have a clear answer. She felt that probably the Committee would work with Environmental Public Planning and try to get a clearer answer. The Committee began its work with the belief that the Water Recharge easement overlays on MALPF properties would reduce sprawl and that was one of the reasons the Committee requested the Board to approve the water recharge easements. Ms. Weaver stated that she would like to take the inputs back to the Committee to decide how it would like to address the issue. One other positive outcome of this issue is that such easements would increase the income for the landowners.

Mr. Tassone commented that when he questioned the premise, he was not questioning the concept of considering water recharge easements. He was only questioning using the statement that allowing water recharge easement overlays on MALPF properties would reduce sprawl. He did not want the Foundation to perpetuate what he thought was an unfounded statement.

Mr. Stahl commented that he found it very interesting that what water recharge easement overlays allow is to build inside a priority funding area. One can argue whether building more housing units in a priority funding area would somehow reduce sprawl. His personal conclusion is what is being done is pushing the concept that we are trying to increase the ability to use smart growth principles.

Issue: How much water is necessary for future viability of agriculture?

Ms. Weaver stated that the Committee’s strategy was to have the Board approve the concept of water recharge easements and, once it is approved, have the Board nominate the Committee members for the follow-up committee. The current committee does not have the appropriate technical expertise to adequately address this question. The Committee has determined that this issue should be addressed by a follow-up committee comprised of experts with technical knowledge in areas such as hydrogeology, climatology and agricultural trend projections, etc.

The members of the follow-up committee should include representatives from the following: Cooperative Extension, NRCS, Resource Conservation (MDA), MDE, MDP, DNR, Carroll County's Agricultural Land Preservation Advisory Board, Frederick County Agricultural Land Preservation Advisory Board, a hydro-geologist, Maryland Farm Bureau, the Maryland Agriculture Commission, MALPF Board member(s), and an Assistant Attorney General(s). The guidelines should include methods to determine how much water or what percentage of water should be retained by a farmer to ensure the future viability of the agricultural use of the land.

Ms. Weaver suggested setting up a follow-up committee to arrive at the percentage based on science, rather than just picking a number as 50%, 40%, and 30% and so on. Whenever the question is asked in the University of Maryland Extension as to how much water is necessary to maintain a viable operation, their answer is “it depends on weather, crop type, soil type, etc.” It is a very complicated question, and there is a need to have a committee of members who study these areas to come up with either a formula or a guideline.

Mr. Colhoun commented that the Board would like the committee to collect this information and come back to the Board. Ms. Weaver wanted to know what exactly the Board would like the committee to address. The premise of allowing water recharge easement overlays on MALPF properties would reduce sprawl was one of the main arguments in the committee’s recommending water recharge easements. Mr. Tassone commented whether water recharges easements reduce sprawl or not, it supports concentration of developments in priority funding areas.

Mr. Doug Wilson commented that one of the reasons to support water recharge easements is it is a strategy from State government to help local government accomplish the goal of smart growth by encouraging development in a priority funding area. It helps in focusing the resources of local government and provides income opportunities for the landowners.

Ms. Weaver asked the Board members if they had any other question or issues they would like the committee to address.

Mr. Tassone agreed with Mr. Amoss’s inputs regarding the Harford County Planning and Zoning senior staff’s comments that there are certain restrictions they felt should not be put on a MALPF easement property because those restrictions themselves should be used as additional preservation tools, such as putting a water recharge easement on a farm. He believed it to be a valid consideration from the County’s perspective, keeping in mind that they are trying to bring all the resources to a place where it can result in more widespread preservation. Ms. Weaver stated that the reason why the developers will not pursue water recharge easements on non-MALPF or other land is because they are too expensive. Instead of having the water recharge area set aside for growth in priority funding areas, it is cheaper for the developer to put it in rural areas, particularly on already preserved land.

Mr. Robertson stated that the developers can pursue water recharge requirements on non-easement properties, and the landowners still has the right to develop the property. There is no requirement that they buy 100% of the water recharge volume.

Mr. Colhoun commented that he would like to have these comments included in the committee report.

V. INFORMATION AND DISCUSSION

A. Elimination of Multiple Signatures for Preliminary Release Documents – an update by Elizabeth Weaver, Foundation Staff

Ms. Weaver informed the Board members that the issue of elimination of multiple signatures for preliminary release documents was earlier discussed in FY 2004. The process for approval and release of lots involves several steps and paperwork. Once a lot has been approved by the Foundation, a Preliminary Release document is prepared and is circulated to several signatories, including the Chairman of the Board of Trustees (and notary), the State Treasurer (and notary), the Secretary of Agriculture (and notary), the Assistant Attorney General, and the Executive Director of MALPF. Once the Preliminary Release document is recorded, the landowner submits a copy of the building permit to the Foundation. A Final release document is then prepared and sent to the landowner for signature. The Final Release document is again circulated to the same signatories for signature.

The Foundation staff had asked the Board to eliminate the multiple signatures under the preliminary release and, instead, to substitute the Executive Director’s signature on behalf of the Board, because the lots have already been approved by the Board. This issue was checked with Mr. Craig Nielsen, Assistant Attorney General, and Ms. Nancy Forrester, Assistant Attorney General, Department of General Services, and both have concurred. At the time, it was suggested by Mr. Doug Wilson to contact the signatories to ensure that they do not have any objection to their name being removed. The Foundation has now received the letter from the Treasurer’s Office and is awaiting the letter from the Secretary of Agriculture’s Office.

The Board had already approved the Foundation’s proposal to reduce the number of signatures on the preliminary release and is now awaiting the concurrence of the signatories.

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

Motion #10: To adjourn regular session and go to executive session.

Motion: Joe Tassone Second: Doug Wilson

Status: Approved

The regular session Board meeting was adjourned at approximately 12:20 pm.

Respectfully Submitted:

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Rama Dilip, MALPF Secretary

_____________________________________

James A. Conrad, Executive Director