MINUTES
TRUSTEES PRESENT:
Daniel Colhoun, Chairman
Vera Mae Schultz, Vice
Chairman
Jerry Klasmeier,
representing Comptroller Schaefer
Pat Langenfelder
Judith C. Lynch
Dr. James Pelura
Shirley W. Pilchard
Robert F. Stahl, Jr.
Joe Tassone, representing
Secretary Scott, Maryland Department of Planning
Christopher H. Wilson
Doug Wilson,
representing Secretary Riley, Maryland Department of Agriculture
TRUSTEES
ABSENT:
Howard
S. Freedlander, representing Treasurer Kopp
OTHERS
PRESENT:
Bill Beach, Office of
Real Estate, Maryland Department of General Services
Joe Beuchert, Landowner,
Dave Bourdon,
Tammy Buckle,
Yates Clagett,
Bill Clark,
James A. Conrad, MALPF
Executive Director
Carol Council, MALPF
Administrative Officer
Rama Dilip, MALPF
Secretary
Mr. & Mrs. Donald
Gott, Landowners,
Jacquelyn Grillon,
Landowner,
Nancy Forrester,
Assistant Attorney General,
Rebecca Harman,
Landowner,
Mr. & Mrs. Donald
Johnson, Landowners,
Tim Lessner, Landowner,
Joy Levy,
Carla Martin,
Bill Powel,
Dennis Plutschak,
Landowner,
Charles Rice,
Daniel Rosen, Planner,
Maryland Department of Planning
Martin Sokolich,
Mr. & Mrs. Jerry
Stambaugh, Landowners,
Donna Landis-Smith,
Queen Anne’s County, Program Administrator
Elizabeth Weaver, MALPF
Administrative Officer
Jenny Plummer-Welker,
Susan Wilson, Landowner,
Daniel Colhoun, Chairman, called the
meeting to order at approximately
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
Motion #1: To approve the minutes of
Motion: Pat Langenfelder Second: Joe Tassone
Status: Approved
Mr.
Colhoun informed the Board members that he and the other Board members were
able to attend a few of the MALPF funding meetings in various counties. He appreciated the Board members taking time
out from their busy schedules. He stated
that the feedback of these meetings has been wonderful and there is a
possibility of going to a county more than once depending upon the situation.
James
Conrad, MALPF Executive Director, informed the Board members about the county
visits by the MALPF staff and the Board members. The meetings have already been
attended in Calvert, Queen Anne’s, Carroll, Anne Arundel,
Mr.
Conrad stated that this year has been a very busy year for legislation. A major bill has been on the Agricultural
Stewardship Act of 2006. There is a
department bill, HB 90, recommended by the Foundation on relocation of houses.
Maryland
State Tax Bill HB 236 allows the exclusion of the value of the family farms
with a permanent agricultural preservation easement from the calculation of
estate tax.
HB
459 would increase amount of funds available for each county from the Maryland
Agricultural Land Preservation Foundation for matching grants for land
preservation from $1 million to $2 million a year. This is in anticipation of substantial
increase in funding for FY 2007.
HB
460 deals with giving the Foundation a little more discretion in approving lots
larger than 1 acre, and up to 2 acres, based on issues that develop. Depending on the size of the parcel being
protected, owners of land under agricultural preservation easements can
repurchase the development restrictions on up to three lots of 1 acre or less
in size for the purpose of building a house for that landowner or one of his or
her children. HB 460 would allow a lot size
greater than 1 acre, up to 2 acres, with the approval of the county’s planning
and zoning commission and agricultural preservation advisory board.
HB
490 would repeal the five-year district agreement commitment that a landowner
must make to be eligible to sell an easement to the Maryland Agricultural Land
Preservation Program. Instead, counties
would be able to specify the length of time, between one year and ten years,
for a district agreement.
Mr.
Conrad informed the Board members that there will be more discussions on this
bill during the course of the meeting.
This bill will help in re-doing the way the district agreements are
currently handled by the Foundation, giving more flexibility to the County to
set the district agreement commitment between 1-10 years, rather than the
current 5 years.
HB 699 is not directly related to MALPF,
but it will have some impact on some MALPF landowners. This is a bill that would set up an
interagency committee for preserving historic structures. It would leverage federal funds with
potential state funding for the preservation of barns, etc.
HB 769 was developed by Delegate
Jennings. The bill is similar to HB 490
in that it addresses the district issue.
The bill allows someone who has rejected a full offer to reapply without
having to wait for a two year waiting period.
This bill also allows the Foundation to purchase an easement on prime
farmland where there may not be residential development rights.
HB 829 deals with release of lots. It allows family lots to be released in the
rate of 1 per 50 acres up to a total of 6 and those lots will be unrestricted
lots. The intent of the bill is to apply
retroactively to original grantors, though the language is not clear as it is
currently drafted. This bill is being
opposed by the Foundation.
HB 1254, HB 1268 and HB 1272 deal with
certain types of policies that are carried out in rural areas by the counties,
such as allowing bonus density based on the purchase of an easement or having
sending areas allowing TDRs to be received.
In either of these cases, the Foundation and Rural Legacy could not
purchase easements in any county zoning district that allows that kind of
policy to take place. HB 1272 is another
bill that sets up priority preservation areas as a stand alone certification
program. Priority Preservation Areas
would not be part of the comprehensive plan, so it differs from HB 2 and SB
5. The counties that have certified
Priority Preservation Areas would get additional funding from the general
allocation of this program; uncertified counties would have their general
allocation reduced. Basically, if you
are certified, you will get three times the general allocation funds as those
who are not certified.
HB 1275 deals with the way the property
tax is assessed on the land that has been permanently preserved. This bill is applicable to early Maryland
Environmental Trust easements. It has
potential to affect those with MALPF properties. Basically the bill says that if you have put
preservation on the property, your property’s future assessment will not be
greater than the highest agricultural assessment rate. This could affect MALPF landowners who do not
continue to farm and are susceptible to losing their agricultural assessment.
Mr. Conrad concluded his session and
stated that it has been a very busy legislative session and there is more to
come.
Mr. Conrad briefed the Board members
about the status of federal funds. MALPF
gets its federal funds by participating in the Farmland Ranch Protection
Program. MALPF gets more funds than any
other state in the country. Over the
last few years the state funding has diminished and to some extent has been
replaced by an increase in federal funds.
Every year there have been more conditions placed on our use of federal
money – more restrictions. For example,
earlier, MALPF monitored FRPP funded properties in conjunction with the
monitoring of MALPF properties, 10% per year, but now federal funded properties
have to be monitored every year. There
are impervious surface restrictions, changes in appraisal standards, and
changes in the language in the deeds of easement. There is a potential that all the properties
may require ALTA standard surveys which are very expensive. The boundary description is currently
required to get a proper calculation of acreage. When necessary MALPF asks the property owners
to fund a survey themselves; they usually pay for that survey from the proceeds
of the settlement. The ALTA standard
survey is substantially more expensive and requires survey of all overlay
easements. All the structures on the
property need to be identified, which can be relevant to the calculation of
impervious surfaces. The gain from using
federal funds is diminished, and MALPF hesitates to let the requirements of the
federal program determine the MALPF program.
MALPF had discussions last week with
local NRCS personnel and the federal people on a conference call. They are tightening up and seem to want to
micro-manage our deed of easement. Ms.
Forrester, Assistant Attorney General, Department of General Services, stated
that the NRCS and the federal people informed us of the language they wanted in
the deed of easement. Mr. Conrad
informed the Board members that the issue is really getting to a point where
MALPF is going to examine what impact the proposed changes will have on the
MALPF program between now and the next cycle.
Mr. Conrad wanted to inform the program administrators that MALPF may or
may not submit the FRPP application for the upcoming year depending on the
results of the discussions over the next month or so.
Mr. Doug Wilson, representing Secretary
Riley, Department of Agriculture, wanted to know the response from the state of
Mr. Conrad stated that he spoke to
representatives in
Mr. Doug Wilson remarked that it is
important to know that the federal government is not a party to our
easement. They have a contingent
interest in our easement, but the easement deed does not say that MDA is a
co-holder with the
Mr. Conrad stated that he was able to
speak to the Program officials at the State of
Mr. Doug Wilson stated that the big issue
is whether or not MALPF is putting in an application this year given the new
requirements. He wanted the program
administrators to be aware of the situation as they are also partners in this
application process. Time is also
critical. Normally spring is the time
when the application is put together.
The other concern is MALPF has a few easements ready to go to settlement
pending the signature of the federal representatives. Unless these are signed, they cannot be
settled. His priority is to get these
pending easements signed and then fight the other issues.
Ms. Forrester commented that she believes
this hold up is very unfair to the landowners who are getting their surveys
ready. In the middle of the contract,
the USDA is changing their requirements – USDA is violating its own contract.
Mr. Conrad stated that the Foundation has
a number of easements that have been approved by the Board of Public Works that
the USDA is now reviewing. Even though
MALPF has a cooperative agreement with NRCS, NRCS is asking for changes to
MALPF’s deed of easement for language not agreed to in the cooperative
agreement and changes which have nothing to do with the federal funding. For example, they don’t like the way MALPF
calculates the size of a tenant house, and they don’t like the MALPF policy of
what organic material is allowed to be dumped on a property for agricultural
purposes.
Mr. Colhoun wanted to know the estimated
amount of federal money from the cooperative agreement – last year versus this
year. Mr. Doug Wilson responded that it
was $5 million last year and we are expecting $5 million in the upcoming
year. MALPF has budgeted $6 million and
may get $5 million. The current
appropriation is for $5 million. When
MALPF only has a total of $10-11 million in State and local funding, $5-7
million in federal funding is a big deal; when we are expecting $84 million,
$4½ million in federal funding is not so significant. The issue has not been discussed with the Secretary
Riley or the Chief of the Staff or the Governor’s office about what they would
like to do. Mr. Doug Wilson stated that
his personal view would be to write to Secretary of Agriculture at the federal
level explaining the problem and asking also the State of
Mr. Jerry Klasmeier, representing
Comptroller Schaefer, informed Mr. Doug Wilson that the Secretary of DGS is
leaving DGS and is now going to work with the United States Department of
Agriculture.
Mr. Doug Wilson also informed the Board members
that the capital budget hearings have been held in both the House and the
Senate. There has been an interesting quirk that was recommended – one of the
components of the Southern Maryland Tri-county Council’s tobacco buy out is a
farmland preservation feature where they take some of the funding provided by
General Assembly (either through cigarette restitution or bonds) and provide it
to the participating counties for farmland preservation. The counties use that money in their own
easement programs, use it to fund MALPF easement purchases, and/or use it to
provide bonuses to tobacco buyout farmers who put their farms into
preservation. The legislative analyst
has recommended that $2.5 million of bond money for the Tri-county Council be
eliminated. The analyst has recommended that $2.5 million be taken from MALPF
and given as a grant to replace the lost bond money. The money from MALPF would still go for
farmland preservation. MALPF testified
in opposition to this request primarily on the basis that we did not feel it is
right to take dollars from 18 jurisdictions to benefit 5 others. The original commitments made by the General
Assembly to support its program with certain levels of dollars and bonds should
be upheld and MALPF’s regular process should not be affected. Maryland Department of Agriculture is
particularly concerned with the precedent that this transfer sets. Any jurisdiction can make an argument to take
MALPF funds to address problems in its jurisdiction. He believes the reason they are doing this is
our significant increase in funding. The
other thing which is clear is there is a ceiling of how many dollars the State
can borrow in bonds. This is an election
year – there are a significant local bond bills sponsored by local delegates. MALPF dollars are not bond dollars and are
direct tax dollars.
The decision meeting for this at the
Senate is on March 9 and on the House side it is later in the month. Along with this there will be a decision on
the bonds later in March (on both sides).
Mr. Doug Wilson stated that if the program administrators believe on
their local side that this is a bad idea, then they need to contact their
individual legislators and ask them to get in touch with their budget
committees. The program administrators
can get the names of various Delegates and Senators on the Appropriations
Committee from Mr. Conrad. The amount of
money is not significant, but it may have long term impact.
Mr. Robert F. Stahl, Jr, wanted to know
if the Maryland Department of Agriculture has taken any stand on any of the
bills. Mr. Conrad responded that MDA
proposed some amendments to the Ag Stewardship bill. On the Department’s bill on relocation, there
has been a minor amendment. For the
estate tax bill (HB 326), MDA has recommended support. DGS is opposing it, so
he is expecting instructions from the Governor’s office.
Mr. Stahl specifically wanted to know
about an applicant’s ability to keep reapplying. Mr. Conrad responded that the particular bill
he is referring to is HB 769 wherein the Department has submitted an amendment
that if the landowner rejects two years in a row then you lose the opportunity
to apply for two years. On the bill on
the preservation of historic agricultural structures, MDA has been told by the
Governor’s Office not to take any stand.
The Department is opposing HB 829.
Mr. Doug Wilson commented that the
Maryland Department of Agriculture is generally in support of all the concepts
embodied in HB 459, 460, 490 and 869.
The Department was interested in working with legislators to draft bills
that will benefit the Program.
Mr. Conrad thanked Mr. Stahl for his
suggestion of language for HB 769 which was very useful.
Mr. Colhoun encouraged the Board members
to attend the legislative sessions to understand the proceedings. Mr. Conrad stated that he is trying to update
the relevant information on the website.
Ms. Tammy Buckle, Program Administrator,
Caroline County had a question about HB 1272.
While speaking on the bill Mr. Conrad had mentioned “the certified
counties will get 3 to 1.” Ms. Buckle
wanted to know whether he was referring to “the Certified Program” or “the
Certified Priority Preservation Area.”
Mr. Conrad stated that the bill ties the certification of Priority
Preservation Areas directly to the distribution of the general allocation of
funds; certified PPA counties will receive three times more of this funding
than non-certified counties.
Mr. Conrad also commented that, with
reference to the Ag Stewardship Bill, the Department of Planning and MDA had
recommended changes in certification.
The two agencies have requested amendments that would collapse the new
Priority Preservation Area certification into the existing certification
program.
II. DISTRICT
/EASEMENT AMENDMENTS
A.
CARROLL COUNTY
1. 06-80-09e Grillon, George L. & Jacquelyn 99.6869 acres
Request to acknowledge a dwelling that existed
prior to easement sale
Dr. and Mrs. Grillon are the subsequent owners
of this easement property. Mrs. Margaret
Alexander, the original owner, was approved to exclude a 1.0 acre owner’s lot
(see explanation below) and a 1.0 acre child’s lot. At the time of easement sale, there were no
pre-existing dwellings on the property.
Dr. and Mrs. Grillon are the subsequent owners of one other district
property.
Background:
Sometime during 1987 or early 1988 Mrs.
Alexander’s son, Henry, “inquired about the ability of a subsequent owner to
construct a dwelling on the property after his mother’s death. The then MALPF
Executive Director told me to have Mrs. Alexander exclude an acre as an owner’s
lot for a subsequent owner to construct a dwelling. The acre was surveyed on
the boundary of the property rather than at or near the location of the
original dwelling. There was a payback
for the acre and a release was recorded in the Carroll County Land
Records. The released acre is not a
separate County lot.” The Foundation’s
Board of Trustees approved the 1.0 acre owner’s lot on May 24, 1988, and it was
released from the easement. Nothing in
the file indicates that the Board was aware that this lot was requested to be
utilized by a subsequent owner.
Mr. Conrad informed the Board members that in
the past the lot release was a one-stage process whereby the lot will be
released prior to obtaining a building permit.
Currently, the lot release is a two-stage process whereby the Foundation
requires a non-transferable building permit before the property owner gets his
final release.
When Dr. and Mrs. Grillon purchased the property
in 1989, they were informed by Henry Alexander that they could construct a
dwelling on the released 1.0 acre owner’s lot.
As the Grillons resided on another farm in the vicinity, they did not
immediately request a building permit.
Recently, the Grillons decided to pass this farm to one of their
children with a buildable lot. Their
original request was to relocate the approved owner’s lot to another
location. Mr. Powel discussed the
situation with staff, Dan Colhoun, and both Craig Nielsen and Nancy Forrester,
and it was decided that the Foundation would not pursue the request to relocate
an approved owner’s lot for the use of a subsequent owner.
Current request:
Prior to the establishment of the district, the
original dwelling was destroyed (either burned or collapsed). The application for district formation did
not mention that a home had existed, nor did it document its existence in a way
that would have allowed for reconstruction at a later time. As a result, the appraisal did not take this
dwelling into account.
As there is some physical evidence of the prior
existence of a dwelling, the Grillons are currently requesting approval
recognize a pre-existing dwelling and to construct a new home in its
vicinity. According to the landowner and
Carroll County, the area is accessed by an existing farm lane and is currently
not being farmed. The Grillons are
proposing to: 1) relinquish the right to
ever subdivide this dwelling if it is approved, and 2) to put the released 1.0
acre owner’s lot back under the easement.
The Carroll County Advisory Board recommends
approval of this request.
If this request is approved, the Grillons would
not have to reimburse the Foundation for the 1.0 acre, because Mrs. Alexander
reimbursed the Foundation for the 1.0 acre owner’s lot.
Foundation staff recommends approval of the
request with the condition that: 1) the
dwelling to be constructed in the vicinity of the destroyed house cannot be
subdivided from the farm, and 2) the 1.0 acre owner’s lot that was released
from the easement is put back under the easement.
Mrs. Jacquelyn Grillon and Mr. Bill Powel,
Preservation Technician, Carroll County, were available to answer any questions
from the Board.
Mr. Joe Tassone, representing Secretary Scott, Department
of Planning, wanted to know whether the Foundation is giving up two or one lots
– there is an excluded lot and a released lot.
Mrs. Grillon clarified that one lot is already
gone. Mr. Powel stated that the
particular release is not a lot – it is just a release from the easement of a
pre-existing dwelling for the purpose of rebuilding a dwelling. The former owner’s son, who was managing the
mother’s affairs, did the cheapest survey he could do. He did it at a corner of the driveway along
the boundary of the farm next to the lot he took as a son’s lot. He sold the farm under those conditions,
whereas any logical person would want to have the house in the vicinity of the
original farm house.
Mr. Conrad commented that, if the Grillons had
built the house on the site of the released acres, the request would not be
coming to the Board for approval. Since
the lot was released under the earlier procedure, Carroll County did not
require the construction of the house on the lot. The lot is being relocated to its original
site where the house was located before the easement was put on the property,
and that is the reason the request has come to the Foundation for approval.
Mr. Colhoun mentioned that it was important for
the Board members to note that the relocation of the old house is not
sub-dividable and stays with the farm.
Mr. Doug Wilson mentioned that the Grillons had
acted on county’s advice, and he saw no reason not to take the request as it
is. If the Grillons had done what we
told them to do, he did not see reason as to why, after 10-15 years, we come
back and say you should have put the house in a better place.
Mr. Conrad stated that, while the Foundation has
no evidence in its files, there are extensive notes in Mr. Powel’s files of the
conversation that took place in 1980s.
Mr. Tassone believed the Foundation staff’s
recommendation to be a carefully considered solution and does not affect either
the Foundation’s interest or the Grillons.
Motion
#2: To acknowledge a dwelling that
existed prior to easement sale.
Motion: Judith Lynch Second: Chris
Wilson
Status:
Approved
2. 06-89-28Ae Talbert, Harold T. 70.0
acres
Request to acknowledge a dwelling that existed
prior to easement sale
Mr. Talbert is the original owner of the easement
property. He has received approval for
three 1.0 acre child’s lots. Mr. Talbert
does not own any other district or easement properties. The current request is for acknowledgement of
a dwelling (a mobile home) that existed prior to the sale of the easement.
The Foundation’s records show that when the
District was established, the property description indicated there was one
pre-existing dwelling on the property as the number ‘2’ had been crossed out
and a ‘1’ was written. According to Bill
Powel, then Program Administrator, he mistakenly changed the number as there
was some confusion about an off-conveyed lot.
Since the Foundation’s records indicated there was only one pre-existing
dwelling, that was how DGS was instructed to appraise the property. According to Carroll County, had the
appraiser known of the second existing dwelling, the appraisal should not have
been affected because Carroll County regulations do not subtract mobile
dwellings from subdivision lot rights.
On January 11, 2005, the Foundation
administratively approved Mr. Talbert’s request to exclude his documented
pre-existing dwelling. On January 25,
2005, the Board approved the exclusion of two 1.0 acre child’s lots. Those lots have not yet been released from
the easement. If this request is
approved, Mr. Talbert may cancel the approval of one of these child’s lots (for
son, Michael).
If this request is approved, Mr. Talbert will be
required to reimburse the Foundation $1,500.00, the per acre amount he received
for the easement. The Carroll County
Advisory Board has approved this request.
Foundation staff recommends approval as it is felt that a mistake was
made at the time of district establishment.
Mr. and Mrs. Stambaugh (daughter and son-in-law
of Mr. Harold Talbert) and Mr. Bill Powel were available at the meeting. Mr. and Mrs. Stambaugh have a small easement
property adjacent to the farm. Mrs.
Stambaugh was representing her father because Mr. Harold Talbert was currently
in Florida.
Mr. Conrad informed the Board members that the
easement was sold in 1993. The original
district was created in 1989. Mr. Powel
stated that the property was under a district agreement in the early 1980s for
five years, and they withdrew it from the district. The district document, which was documented
by Mr. Powel, indicates an existing house and a mobile trailer. They withdrew the first district and a lot of
things happened – they transferred the property twice. Mrs. Talbert died. The County started an incentive program. Mr. Harold Talbert and his mother-in-law put
the farm in a district again. The farm
was appraised, and Mr. Powel’s documentation subtracted two houses. When the district was accepted, they sent the
material to the Foundation. Mr. Powel
stated that he is the guilty party; the easement sale application has his
handwriting, and he had changed the 2 dwellings to 1. Mr. Powel cannot recollect as to why he
changed 2 dwellings to 1 dwelling. Mr.
Talbert signed the easement application form.
The property has two transfer deeds – just before it came in and when it
came in as the second district. The
transfers fail to record 'the saving and excepting of a 1 acre child’s lot'
that had occurred while it was out of the district. It was not approved by the Foundation, and they
had taken a lot out (as it was not a MALPF district at that point in time).
The only explanation Mr. Powel could think of is
that when they checked the acreage with assessment and found something had been
conveyed out and the son had a house on that lot, he must have assumed that it
was one of the pre-existing houses, and he must have put 1 dwelling on the
easement sale application. It looks like
a house even though it is officially a mobile trailer sitting on the property
and has been there even before it came in as a district the first time. The family is ready to transfer the farm to
the next generation, and Mr. Harold Talbert, instead of taking an owner’s lot,
is taking the other house (which was actually a replacement for the house that
was burnt down when it was not a MALPF district), meaning that the mobile
trailer will be the only dwelling left with the farm itself.
Mr. Conrad wanted to know from Mrs. Stambaugh if
she has any update on whether or not her father still sees the request as a
request for a child’s lot (Michael) as opposed to a pre-existing dwelling. Is Mr. Talbert planning to re-designate the
pre-existing dwelling as a child’s lot?
Mrs. Stambaugh confirmed that it is not her father’s intention.
Mr. Conrad believed that a mobile home on a
Carroll County property would not be counted as using a dwelling right. The reason it is not counted as using up a
dwelling right is because it is considered as a tenant house. Mr. Conrad wanted to know from Mr. Powel if
that was the case. Mr. Powel commented
that in Carroll County regulations at the time of this easement, the lot rights
the property is entitled to are not based on a density standard. They are new lots. The number of lots that could come off this
farm was not affected by the number of dwellings that had already been
constructed. Still today a mobile
dwelling does not affect lot rights.
Mr. Conrad requested Mr. Bill Beach, Department
of General Services, to comment on the appraisal implications. Mr. Beach commented that, ordinarily when
there is a pre-existing dwelling regardless of the fact that it is a permanent
home or a mobile home, when the Foundation identifies to DGS that there is a
pre-existing dwelling, DGS excludes an acre in the development rights
associated with the property. The
rationale for that is ultimately that lot may be able to be transferred,
regardless of its status at the time of appraisal. In this particular instance, when there was a
mobile home which was not identified, DGS did not exclude an acre and DGS did
not exclude the development right. Had
DGS had been made aware of the mobile home, it would have excluded both, and it
would have had an impact on the appraised value of the farm.
Mr. Tassone commented that the current request
is for the acknowledgement of a dwelling that existed prior to the sale of the
easement. The request looks as if it is
to recognize it as a pre-existing dwelling that should have been dealt with
accordingly in the first place. There
seems to have been a mistake, and it needs to be fixed.
Mr. Doug Wilson agreed and stated that, if the
Board acknowledges the situation to be as the agenda item states and, according
to Mr. Beach, assuming that there were five development rights which the
Foundation has paid for, the Foundation should have paid only for four. One option is to acknowledge the mistake, fix
the mistake, and make an adjustment. The
second option will be to take this particular agenda item and change it to
child’s lot. Mr. Doug Wilson believed
the Foundation may have to look at its records, ascertain how much was paid for
the easement, the number of development rights, and make necessary financial
reconciliations. Mr. Talbert can
subdivide the pre-existing dwelling if he chooses to do so.
Ms. Forrester stated that the problem is that we
may have hundreds of landowners who may come back and claim that there has been
a mistake and that we should acknowledge their pre-existing dwelling, and the
Foundation may be faced with all kinds of appraisal issues. The easy solution is to take the trailer as a
child’s lot.
Mr. Colhoun wanted to know if Mr. Beach has read
the staff report stating “if this request is approved, Mr. Talbert may cancel
the approval of one of these child’s lots (for son Michael).” Mr. Beach acknowledged having read the staff
memo. Mrs. Stambaugh stated that Mr.
Talbert may cancel Michael’s lot. She
stated that there are six children in the family. Two children have taken their lots, she was
going to get her lot, and then there are also 3 others in the family.
Mr. Stambaugh added that the farm is being sold
to them. If the Foundation says that Mr.
Talbert will have to give away Michael’s lot once the farm is sold to them,
similar lots are going to be generated from the farm. Mr. Stambaugh stated that he believes the
lots are generated for the children, and not for financial gain. The purpose is to preserve the farmland. The family members have their farms in
Mr. Colhoun appreciated the Stambaughs attending
the meeting and clarifying the situation.
Mr. Conrad stated that, apart from the issue of
the owner’s intent, he was concerned about the implications of considering this
a pre-existing house, as opposed to a child’s lot. The farm has a total of 70 acres, and several
children’s lots have already been taken out.
They have been taken off at the ratio of
Mr. Doug Wilson recommended that the Foundation
staff and Ms. Nancy Forrester get together with landowners and Mr. Bill Powel
to draft a document outlining the agreement and come back to the Board for
approval in 30 days’ time.
Mr. Colhoun recommended that he did not want the
Stambaughs to make a family decision in a rush and suggested the item be
temporarily withdrawn and come back to the Foundation staff for further
action. The Board is sympathetic to the
situation and wants to work out a solution in the interest of the family and
the Foundation.
Ms. Judith Lynch, Board member, wanted to know
from Mr. Beach if, when the appraisals are done, do the appraisers go
physically to the farm, or are they only working with the documents. Mr. Beach responded that they have a specific
date of value. There are thousands of
easements. When the appraiser goes to
see the property, he has instances of easements withdrawn, excluded acreage
with houses on them, etc. Even though
DGS does not appraise the improvements themselves, he would like appraisers to
give some kind of brief description of the improvements which would help DGS in
its review process, but it is not uncommon at all to have improvements that
have not been included in the appraisal process.
Mr. Chris Wilson, Board
member wanted to know if this would become the principal residence of the farm. The Stambaughs confirmed that it would become
the principal residence of the farm.
Motion #3: Foundation staff, Ms. Nancy Forrester,
and Mr. Bill Powel to get together with landowners to draft a document
outlining the agreement and come back to the Board for approval in 30 days’
time.
Motion: Doug Wilson Second: Chris
Wilson
Status: Approved
B.
1. 21-91-21 Stone, Jr., Elmer A. 165.0
acres
Request for approval of a 9.16 acre partial
termination of district property
Mr. Stone is the original owner of the 165.0
acre district property. There are no
pre-existing dwellings, and there have been no requests for lot
exclusions. On
The current request is for approval to partially
terminate a 9.16 acre parcel to be conveyed separately to Mr. Stone’s grandson
to construct a dwelling. The proposed
parcel is located in an area that is currently cropland and will have direct
access onto
If this request is approved, the remainder of
the district (155.84 acres) will continue to meet the Foundation’s requirements
for district establishment as 124.87 acres (80%) are classified as USDA soils
classes I, II and III. The proposed
parcel to be terminated represents one (1) development right, at a zoning
density of
This request has been approved by the Washington
County Advisory Board. The request also
meets with all the Department of Planning and Zoning requirements. Staff
recommends approval as the area being withheld falls within the guidelines of
the Foundation’s withheld acreage policy.
Motion #4: To
approve the request to a 9.16 acre partial termination of the district
property.
Motion: Robert Stahl Second: Jerry
Klasmeier
Status: Approved
Ms. Schultz, Vice
Chairman, wanted to know about the zoning density of
Mr. Tassone commented
that in this particular property 9.16 acres represents one development
right. Ms. Council added that once that
particular parcel comes off it can only have one. It cannot have the exemption 3 or 5 for 150.
2. 21-00-04A Johnson, Donald H. & Carol G. 74.11 acres
Request for approval of a 10.0 acre partial
termination of district property
Mr. and Mrs. Johnson are the original owners of
this 74.11 acre district property. There
is one pre-existing dwelling, and there have been no requests for lot
exclusions. The Johnsons do not own any
other district or easement properties.
The current request is for approval to partially terminate a 10.0 acre
parcel to be conveyed separately. The
proposed parcel is located in an area that is currently pastureland and will
have right-of-way access to
If this request is approved, the remainder of
the district (64.11 acres) will continue to meet the Foundation’s requirements
for district establishment as 62.11 acres (97%) are classified as USDA soils
classes I, II and III. The proposed
parcel to be terminated represents one (1) development right at a zoning
density of
This request has been approved by the Washington
County Advisory Board. The request also
meets with all Planning and Zoning requirements. Staff
recommends approval as the area being withheld falls within the guidelines of
the Foundation’s withheld acreage policy.
Mr. and Mrs. Johnson
were available to answer any questions from the Board.
Mrs. Schultz wanted to
know about the difference in acres mentioned in the staff memo and the recent
property survey. The staff memo
indicated 74.11 acres, and the recent property survey revealed 66 acres. Mr. Johnson clarified that the original
property line has always been there. A
couple of years back when the survey was done, it was found out that the farm
acreage was 66 acres, and not 74.11.
However, the Johnsons have been paying taxes on 74.11 acres.
Motion #5: To approve the request of a 10.0 acre
partial termination of the district property.
Motion: Robert Stahl Second: Shirley
Pilchard
Status: Approved
Mr. Conrad suggested
Johnsons to submit their survey to verify the correct acreage.
C.
1. 05-98-01 Plutschak, Dennis T. & Kathy J. 103.96 acres
Request for the exclusion of up to 2 acres for a
child’s lot on easement property
Mr. and Mrs. Plutschak are the original grantors
of the easement. The current request is
for the release of up to two acres for a child’s lot for the personal use of
their son, Patrick Plutschak. There are
two pre-existing dwellings on the property.
No other lots have been requested for this property. The Plutschaks do not own any other district
or easement properties.
According to
The request was approved by the local advisory
board. The request conforms to local
zoning regulations. If approved, there
will be a required payback of $613.00 per acre to the Foundation. Staff recommends approval of the release of
one acre plus such minimum additional acreage if required by the County Health
Department, not to exceed 2 acres total 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. Plutschak and Ms.
Tammy Buckle, Program Administrator, were available at the Board meeting to
answer any questions from the Board. Ms.
Buckle reiterated that the request meets the proposed guidelines of MALPF.
Mr. Doug Wilson
commented that the request is a fine example of lot location that meets the
Board’s recommendation. Mr. Stahl stated
that ultimately the recommendations work well for the landowners, too.
Motion #6: To approve the exclusion of up to 2
acres for a child’s lot on easement property.
Motion: Joe Tassone Second: Pat
Langenfelder
Status: Approved
D.
1. 04-86-05 Gott, Donald T. 85.71
acres
Request for the exclusion of a one-acre child’s
lot on easement property
Mr. Gott is the original grantor of the
easement. The current request is for the
release of one acre for a child’s lot for the personal use of his son, Galen
Gott. There are no pre-existing
dwellings on the property. (Three lots
indicated on the aerial map were not included in the easement.) No other lots have been requested for this
property. Mr. Gott does not own any
other district or easement properties.
According to
The request was approved by the local advisory
board. The request conforms to local zoning regulations. If approved, there
will be a required payback of $2,078.78 per acre to the Foundation. 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. Gott and Ms. Jenny
Plummer-Welker, Program Administrator, were available at the meeting. Ms. Welker stated that the request is along
the county road. Mr. Gott located the
existing tenant house for Board members and confirmed that it is off the
easement property.
Motion #7: To approve the request for the exclusion
of a one-acre child’s lot on easement property.
Motion: Joe Tassone Second: James
Pelura
Status: Approved
III. AGRICULTURAL
PRESERVATION DISTRICT PETITIONS
Mr. Conrad presented the district petitions.
A.
1.
This is a 94.1052 acre parcel located west of
Staff recommends the landowner acquire a Forest
Stewardship Plan.
2.
This is a 102.2 acre parcel located west of
The members of Poplar Branch, LLC, Mr. Joe
Beuchert and Mr. Tim Lessner, were available at the meeting.
Staff recommends the landowner acquire a Forest
Stewardship Plan.
3.
This is a 17.923 acre parcel located in the
south of
Mr. Charles Rice, Program Administrator, was
available for any questions from the Board.
Mr. Colhoun commented that it was interesting to
note that Poplar Branch, LLC has withheld 7.55 acres for wetland mitigation
easement and the Board will also be discussing the Wetland Mitigation Easement
as part of this month’s agenda.
Motion #8: To approve the requests of Tyrol
Development, LLC, Poplar Branch, LLC, and Carl J. and Tammy M. Rodgers to establish
agricultural land preservation districts on their respective properties.
Motion: Doug Wilson Second: Shirley
Pilchard
Status: Approved
Ms. Schultz wanted to
know about the lot rights of the LLC.
Mr. Conrad stated that it depends on whether the LLC is owned by the
family. Ms. Forrester stated that the
members of the LLC need to clarify the nature of the LLC when they apply for an
easement.
B.
1.
This is a 101.069 acre parcel located west of Trappe. There is no dwelling. It has 52 cropland and 39 woodland
acres. The property is located adjacent
to proposed districts
Staff recommends the landowner acquire a Forest
Stewardship Plan.
2.
This is a 341.869 acre parcel located west of
Trappe. There is no dwelling. It has 225.5 cropland, 102.5 woodland acres,
and 14.0 wetland acres. The property is
located adjacent to proposed districts
Staff recommends the landowner acquire a Forest
Stewardship Plan.
3.
This is a 142.673 acre parcel located in the
west of Trappe. There is no dwelling. It has 67 acres cropland, 47 woodland acres,
and 28.7 wetland acres. The property is
located adjacent to proposed districts
Staff recommends the landowner acquire a Forest
Stewardship Plan.
Mr. Martin Sokolich, Program Administrator, was
available to answer any questions from the Board.
Motion #9: To approve the requests of Firth Trusts
to establish three agricultural lands preservation districts on their
respective properties.
Motion: Judith Lynch Second: Joe
Tassone
Status: Approved
IV. PROGRAM POLICY
A.
PROPOSED
The Proposed Lot Location Guidelines were
presented to the Board of Trustees at the
The copy of the Proposed Guidelines for Lot
Locations on MALPF District/Easement Properties was circulated for review by
the Committee. The Committee requests
Board of Trustees approval.
Ms. Council pointed out that if the proposed guidelines
are approved, MALPF staff and the Ad Hoc Committee will then work to update the
Application for Lot Exclusion to: 1)
notify landowners of the new guidelines, 2) ask the landowners if they have
considered the guidelines when choosing a lot location and, if the location
does not meet the preferred locations, and 3) provide space for them to explain
why not. This revised application will
then be presented to the Board, along with the recommendation of the local ag
advisory board and MALPF staff, to aid in its review of future requests for lot
locations on district and easement properties.
_______________________________________________________________________________
LOT LOCATION AD HOC
COMMITTEE
PROPOSED GUIDELINES FOR
ON MALPF DISTRICT/EASEMENT
PROPERTIES
The
Maryland Agricultural Land Preservation Foundation (MALPF) allows landowners to
apply for the release of an owner’s lot, child’s lot, or an unrestricted lot
under certain conditions.
An
application for the release of a lot is first made to the local agricultural advisory
board. If approved, the application is
submitted to the MALPF staff for review and recommendation to the MALPF Board
of Trustees.
When
applying for the release of a lot from a district or easement property, the
landowner should consider the following location criteria:
A. Impact on agriculture and forestry
operations:
1. Current – operations and designation
(both MALPF & County) of existing residential units;
2. Future – operations and residential
units.
B. Options for geographical location (in priority
order from most to least desirable):
1. Along public roadway and (if they
exist) clustered with other dwellings;
2. Along boundary lines, natural
boundaries, or the edge of tillable land, and clustered with other dwellings
(if they exist);
3. Clustered with farmstead dwellings and
buildings; or
4. Other.
C. Options for Access (in priority order
from most to least desirable):
1. Direct road frontage access from public
roadway;
2. Use of an existing access, e.g., farm
lane or right-of-way. If other dwellings
exist, access should be on a shared drive if feasible; or
3. Along property boundary lines, natural
boundaries, or the edge of tillable land. If other dwellings exist, access
should be on a shared drive if feasible.
If
the proposed location or access is not the most desirable option listed above
(see B and C), the landowner should explain how more desirable alternatives
were considered, and why they were not feasible:
When
reviewing a request to release a lot from a district/easement property, the
local Agricultural Advisory Board, MALPF staff, and the MALPF Board of Trustees
shall consider the following guidelines:
A.
Lots allowed under MALPF statute and regulations must be a maximum
of 1.0 acre unless county regulations or the Health Department requires
additional acreage. When this happens,
MALPF statute and regulations allow for the lot to be increased by such acreage
as is necessary, up to a maximum lot size of 2.0 acres, with appropriate documentation. Therefore, all requests for lot exclusions
should be for ‘up to 2.0 acres’
to minimize the possibility of the lot request coming back to the Board at a
later date to receive approval for an increase in size. After MALPF Board approval, the specific lot
size will be reflected in the legal description (if an easement property) that
is provided by the landowner to MALPF staff.
The legal description will be recorded with the preliminary release
document.
B.
Program Administrators are required to provide property outlines,
e.g., tax maps which show the location of the proposed lot and its access, and
are encouraged to provide documents that will identify the requested lot
location clearly (preferably color aerial maps that show the proposed lot location,
its access, the dimensions from property lines, and the location of failed perc
tests, if any). Photographs and site
plans (may be hand drawn) also help identify the lot location and should be
provided when available.
C.
When a lot is proposed to be located in an area that is not
optimal, but is the only place an acceptable perc can be located, the
application must be accompanied by a site plan (showing failed locations) from
the Health Department, a licensed sanitarian, or an engineer who is authorized
to conduct perc tests or site preparation for perc tests.
D.
If direct road frontage access to a public road is not possible,
the county should encourage right-of-way access unless the county has
regulations that require lots to have fee-simple access. [NOTE:
If fee simple access is required by County regulation, it must be
included in the allowable acreage of the lot.]
If access is to be in fee, and not along a property line, MALPF
will: 1) approve the lot only with the
condition that “the owner grants a right-of-way back to the farm over top of
the access to the lot,” and 2) list a requirement on the approval letter to the
landowner that the plat (survey or legal description) must include this
right-of-way before it can be recorded.
E.
If an approved lot area does not perc after MALPF Board approval,
as long as the new location overlaps the approved lot area, and the new
location will not significantly interfere with farming or forestry more than
the approved lot location, the new location can be reviewed and approved
administratively by MALPF staff after it receives local agricultural advisory
board approval. MALPF staff reserves the
right to refer any request to the Board of Trustees for their review.
F.
If, just prior to a MALPF Board of Trustees meeting, it is
determined that a lot location must be changed, the request will be withdrawn
from the agenda until such time as the local agricultural land preservation
advisory board and MALPF staff have had an opportunity to review the new
location.
G.
The MALPF Board of Trustees will not attempt to change the
location or review any request that changes the location of a lot during the
meeting. The application will be
withdrawn to allow the local agricultural advisory board and MALPF staff to
first review the new location. However,
the Board can make suggestions on where the lot should be located and the new
location must be resubmitted at a subsequent meeting. To avoid a resubmission, when initially
applying for a lot, a property owner may submit two locations for approval by
the local agricultural advisory board, MALPF staff, and the MALPF Board of
Trustees, designating one as the primary preference. Upon receiving a successful perc, the
landowner will notify MALPF staff of which location will be used.
H.
The landowner and Program Administrator are strongly encouraged to be present at the MALPF Board meeting
when the lot application is presented to answer any questions that may
arise. Both landowners and Program
Administrators must recognize that, if they are not present, circumstances
might arise that will require the request be tabled until they can be present.
_______________________________________________________________________________
Mr. Colhoun commented that the Committee had
worked on the issues and taken everyone’s feedback and opinion and is now
seeking approval. He encouraged the
Board members to ask questions if any.
Motion
#10: To approve the lot location
guidelines.
Motion: Vera Mae Schultz Second: Robert Stahl
Status: Approved
Mr. Tassone and Mr. Colhoun complimented the
good work of the Committee members. Ms.
Buckle who chaired the Committee stated that Ms. Council did all the paper work
and she did a super job of it.
B.
DISTRICT COMMITTEE – an update by Ms. Carol Council
The Foundation’s District Committee was
appointed to determine the feasibility of eliminating the MALPF District
Agreement. At its first meeting, the
Committee created a list of pros and cons of having districts and looked at
these three possibilities: 1) eliminate
districts, 2) alter the current procedures, including the term, or 3) continue
with the current procedure.
One of the biggest concerns identified by the
Committee was how to control what happens on a property between application to
sell an easement and settlement. This
concern was largely alleviated by Nancy Forrester, Assistant Attorney General,
who stated that: “The District Agreements are supposed to stabilize the status
of property while the acquisition process is occurring… The Application that landowners sign could
have an agreement with language much like the District that prohibits them from
development while the acquisition process is taking place. The only drawback to this is that third
parties do not have notice… If a lot
gets sold off, there is no way to catch it before it happens, unless it’s in a
county that does a good job of monitoring…
Foundation could develop as part of its policy that if a change in
property status occurs after the application is filed, Foundation has the option
to stop the process immediately.”
Delegate Stocksdale, Carroll County Delegation,
has introduced HB 490 that proposes to allow each county to establish the
length of time required for a district agreement. The bill states the time period of the district
agreement shall be from 1 to 10 years.
Foundation staff, along with Ralph Robertson and Vera Mae Schultz, met
with Delegate Stocksdale to discuss the bill and the following amendment, which
Del. Stocksdale proposes to add to her bill:
“On or before January 31, 2007 the Maryland
Agricultural Land Preservation Foundation shall provide to the General Assembly
a report outlining procedures and regulations that the Foundation shall adopt
to implement the elimination of agricultural districts from the program. The
report shall include: an implementation
timeline; statutory language for the repeal and re-enactment of §2-509 and
§2-510, including the removal of the requirement for districts from the
easement application process and the elimination of districts from the program;
a process for county and state approval of easement applications; a provision
for optional county districts; a provision that requires participating counties
to establish a right-to-farm ordinance; a provision that properties shall not be
developed or subdivided during the easement application process; and a
provision that allows for the continuation of tax credits for existing
districts.”
Ms. Council commented that the District
Committee is not asking the Board to approve the legislation. However, the District Committee is supporting
HB 490 and is asking the Board to approve the following recommendation:
1)
Transfer the district process to those counties that wish to have
districts. These districts would be
established using the same criteria that MALPF currently uses: size, soils, and location. This seems a reasonable alternative as
virtually all of the items listed in the pros and cons could be addressed at the
county level. Also, by administering
their own districts, counties would have a ‘pre-application’ process for
easement applicants. Those counties who
wish not to hold districts would still be responsible for the properties
meeting the pre-application criteria prior to easement application.
2)
To change the commitment time for MALPF districts from the current
5 years to 1-10 years (to be determined by each county) in order to give the
Foundation time to work out the process for moving the district process to the
counties.
Mr. Chris Wilson, Board Member, wanted to know if
the time period of 1-10 years will be determined by the County Administrator on
an individual basis or for all the districts in that County. Ms. Council confirmed that the County
governing body will determine the time period for all the districts in the
County.
Mr. Doug Wilson stated that currently we have a
piece of legislation that actually changes the length of the term allowing the
term to be determined by the Counties.
Then there will be uncodified language that will ask MALPF and others to
develop an analysis and come back with whatever legislation is required to
implement the concept of Districts being owned by local governments. We went to them and raised the issue that you
cannot just drop the districts with a two line piece of legislation. We have 85 pages of agricultural articles
that deal with districts and easements, and it is not possible to take
districts out of the process with just one simple change in legislative
language. If this legislation gets
passed, we will set up a group and start looking at what does a bill has to
have in it to remove districts from the process.
Mr. Colhoun stated that the Board now has a
Committee report which backs up Mr. Doug Wilson’s comments and suggested
support for this legislation. He wanted
the Board to consider the Committee’s report and make a decision on that. Mr. Doug Wilson’s explanation gives the Board
a perspective of some of the nuances and the details to get the job done in an
organized fashion.
Motion
#11: To adopt the Committee’s recommendations.
Motion: Vera Mae Schultz Second: Chris Wilson
Status: Approved
Mr. Doug Wilson wanted to know if any of the
Program Administrators have any issues with the issue of legislation sponsored
by Delegate Stocksdale that will change the term 1-10 to County’s
discretion. He specifically wanted to
know of any specific problem that MALPF is not aware of or anything that needs
to be taken care of.
Ms. Buckle wanted to know that, when the term
1-10 is referred, it refers to the new district. She wanted to know what will happen to the
old districts. Mr. Conrad stated that at
this point of time the legislation is not retroactive.
Ms. Buckle wanted to know that if somebody has
just got into the district, do we hold them for five years, and thenr MALPF will
inform them the next year that they cannot come out of the agreement. Mr. Doug Wilson agreed that it is a valid
point and MALPF would have to bring it up in their discussions with the
Delegate. He additionally stated that
there are many more pieces of law that will affect easements and many other
issues that are not retroactive.
Mr. Bill Powel commented that the County could
make their decision sometime between now and July 1, 2006 – whether they want
to change the term of 5 years. We can
keep all the districts from now until June 2006, and we can hold the recording
until after July 1, 2006. He stated that
the bill was intended to be prospective from July 1, 2006. The district clock always started on the
recording date, and not from the date of the approval by the MALPF Board. He felt that this should be able to take care
of the change and asked Mrs. Forrester for her opinion.
Mrs. Forrester commented that the Board needs to
make an approval subject to the passage of the bill. If the bill does not get passed, we cannot do
it. The approved district agreements can
be held up for recording until the effective date of the legislation. She stated that we have to consider the
instances of districts that have already been established less than 5
years. The agreements that were
established last year will have four more years to go and will have to adhere
to the time frame of 5 years.
Mr. Stahl stated that some counties may even
like to go in for longer term. Mr. Doug
Wilson commented that it is not possible to decide one way or the other. He was also concerned about all the
applications that have been approved, currently on a district status and are
older than one year. Thus, Mr. Doug
Wilson stated that, if the Foundation wants to make it retroactive, the Board
should include it as an amendment to the Committee report. Mr. Colhoun suggested meeting after the Board
meeting to work out the details.
Mr. Dave Bourdon, Program Administrator, Prince
George’s County, stated that they have district properties which are waiting to
complete four years before the sale of an easement. There are lots of issues during the easement
process, and they are looking at alternative preservation options. He felt that Mr. Doug Wilson’s assertion is
right that it is an issue and felt the Board should not pass guidelines without
considering all the applicants.
Ms. Weaver, MALPF staff, commented that Mr.
Bourdon is referring to a situation where the property came up for
appraisal. There were some issues with
access, development rights and there is a possibility of swap. However, it is a newer district, and they
cannot do a partial termination on it. Therefore, Mr. Bourdon is conveying that
if the district term was for one year, the property could have come out of the
district agreement and or done a partial termination.
Mr. Colhoun suggested working out the amendment
with specific reference to retroactive situations and bring back to the
Committee very quickly so that the Committee can work that out and come back
again.
Mr. Tassone suggested allowing the individual
counties to decide the time frame as well as whether they want the bill
retroactive or not.
Mr. Doug Wilson commented that during the
discussions we already have two counties having questions on retroactive effect
giving an impression that others don’t want it that way. He stated that there are significant issues
when we start developing policies and go retroactive. He cited the example of an unrestricted
lot. We allow the new easements to have
unrestricted lots and do not allow the old easements this option. In the case of districts we already have
people who have signed up for 5 year agreements. Now the Foundation is thinking of
liberalizing the policy. We have
thousands of people who have districts.
Half of them have already completed their term – so it is a non-issue
for them. It is an issue for others who
have signed up the agreement in the last four years.
Mr. Colhoun wanted to know if the Board would
feel comfortable to vote on the report as given and then add that the Committee
needs to quickly look at the issues that Mr. Doug Wilson and the Program
Administrators have brought up.
Mr. Chris Wilson wanted to know if the change in
term will have any effect on the appraisal process. Mr. Beach clarified that it will not as they
will only be considering the fair market value.
Mr. Colhoun wanted to know if Mr. Doug Wilson
would like to amend the Committee report to instruct the Committee to go back
and look at this issue. Mr. Doug Wilson
stated that we have identified one last issue and may make recommendations
about the language that could be offered to the Delegate. The Delegate may not like the idea or the
language. He felt doing things
retroactive is usually considered a bad thing because of the implications it
will have on all the people who had complied with the requirements.
Mr. Colhoun suggested having a telephone poll
immediately once the Committee has worked and brought back its recommendations.
Motion #12: To instruct
the Committee to go back and make recommendations on pending legislation.
Motion: Doug
Wilson Second: Joe Tassone
Status: Approved
Ms. Buckle wanted to know the effective date in
the proposed bill. Mr. Doug Wilson clarified
that the Foundation’s recommendation was to change it from October 2006 to June
2006. The October date meant that none
of the applicants who applied for the easement cycle FY 2007 would have the
benefit of the legislation. So the
Foundation asked the Delegate to move the date to June 1, 2006, which does not
require any special statutory emergency status and would eliminate all
ambiguity about the July 1, 2006 date.
The whole reason for this change is because the Foundation was told that
the 5 year commitment in some jurisdictions was an impediment to people
applying for easements. This legislation
would let counties where it is an impediment address the problem. Since MALPF has more funding this year, it is
doing all it can to remove such impediments.
Ms. Buckle wanted to confirm that all easement
applicants for FY 2007 will still be under a district agreement. The district agreement may not be for five
years, but for one year. Mr. Doug Wilson confirmed that she was right.
C.
WETLAND MITIGATION EASEMENTS AS OVERLAYS ON MALPF PROPERTIES: Request from Calvert County Soil Conservation
District
Calvert County Soil Conservation District
recently contacted the Foundation to inquire whether the Foundation would allow
the overlay of wetland mitigation easements (WME) on MALPF preserved
properties.
In a letter to the Foundation, William Clark,
District Manager, Calvert Soil Conservation District, states that activities
associated with WMEs include practices that are considered best management
practices in soil conservation and water quality plans. MALPF easement properties are required to
acquire and maintain current soil conservation and water quality plans. According to Mr. Clark, the soil conservation
district has been allowed to install best management practices on agricultural
preservation farms in the past. However,
he is requesting confirmation that wetlands and shallow water wildlife areas
may be installed on MALPF properties.
According to Mr. Clark, the practices associated
with the installation of wetlands and shallow water wildlife areas are used
only on marginal farmlands. For the
purposes of WMEs, marginal farmlands are defined as:
1.
Croplands that cannot be cultivated two out of every five years
due to wet conditions.
2.
Croplands that maintain standing water at least two weeks out of
the year.
3.
Croplands containing Fallsington, Elkton, or Othello soils that
have not been previously drained, or other prior converted wetlands.
4.
Croplands that may have inclusions of strongly contrasting
Nonclass I soils within the soils series.
The WMEs prohibit agricultural or forestry
activities within the WME area and within a 25-foot buffer of the site. The landowner may not change the hydrology of
the site. WMEs are perpetual
easements. According to Mr. Clark, most
WME sites range in size from two to four acres.
A WRE is required to offset disturbance of
wetlands for activities associated with development, road construction,
drainage, excavation, etc. The WME site
must be located within the same watershed as the disturbed area. The easement requires the landowner to grant
access to the site to Maryland Department of the Environment and the Army Corps
of Engineers.
The landowner receives compensation for the WME
by the owner or developer of the site where wetland disturbance has
occurred. A copy of a sample WME was
attached with the agenda item. In
addition, information regarding WMEs available at the NRCS website and MDE
website was also circulated with the agenda item.
Maryland Environmental Trust does not allow any
type of mitigation easement, including WMEs, on its preserved properties. The MET board took this policy position
because it does not want MET preserved land to be used to facilitate
development elsewhere.
The Foundation has approved other types of
overlay easements in the past, including septic reserve area easements and
utility easements, provided the proposed activity does not interfere with the
future agricultural use of the property.
(A copy of the Foundation’s Overlay Easement Policy was attached with
the agenda item.)
On December 17, 1996, the Board approved a
Wetland Reserve Program easement overlay on MALPF property. However, when the easement document was later
sent to the Foundation for signature, it was discovered that the deed of
easement contained language that was more restrictive than the Foundation staff
had initially believed it to be. The
issue was brought back to the Foundation’s Board for consideration three times
during the following year (February, May and November, 1997). Foundation staff requested that a clause be
inserted in the deed of easement to remove or limit some of the restrictions
(copy of deed of easement attached with the agenda item). The Foundation and NRCS could not come to
agreement on the language. On November
25, 1997 the Board voted to deny the request.
(MALPF Board meeting minutes was attached with the agenda item.)
Mr. Clark and Ms. Jenny Plummer-Welker, Program
Administrator were available at the Board meeting to discuss WMEs and to answer
questions from the Board.
At the outset Mr. Colhoun wanted to inform the
Board that the item is an informational presentation for the Board’s
consideration and the Board is not required to make a decision at this time.
Mr. Clark informed the Board that, in Calvert
County, they have been following best management practices in soil conservation
and water quality plans. They have
installed water ways and drop structures which control the quantity of water
flowing out, but not the quality of water flow.
On the Eastern Shore there is lot of installation of shallow water
wildlife farms and wetlands, but in Calvert County there are not many.
Wetlands are protected by federal law and are
one of the best things in the Chesapeake Bay for controlling the quality of
water that flows into it. In Calvert
County, they are trying to sell the creation of wetlands to the farmers. They have not been easy to sell because of the
costs involved. Installment of wetlands
is $30,000 to $50,000 per acre. So they
have not installed any. They have firms
like the Dominion LNG Plant and pipeline and their County local government with
road widening whose activities affect wetlands.
Federal law says that, if you affect a wetland or destroy an acre of
wetland, you have to create two acres of wetland as mitigation. The County along with these firms are looking
for places to create mitigated wetlands.
It brings an opportunity to the farmers to get the wetlands installed
without cost to the farmer. They will
pay the farmers to have them installed.
So they have started the program in the County to try to locate areas
where the County government and private firms can create wetlands and improve
water quality in Chesapeake Bay.
When this wetland is created, the landowner is
required to sign a paper promising to pay back if he destroys it. When a wetland is installed, there is an
easement that is attached to it. Mr.
Clark wanted to know if wetlands creation with an easement overlay will be
allowed on State agriculturally preserved land.
He has looked at MALPF policy, and the policy states that MALPF allows
wetland easements, but he wanted clarification from the MALPF Board that it
allows construction of wetlands before moving ahead with the wetlands program.
Mr. Doug Wilson pointed out to the Board members
that, under the current policy, MALPF allows installation of mitigation
easements – forestry and non-planting in those areas where the soil
conservation district says “best management practices” are appropriate in areas
where we will not traditionally allow a lot of agriculture to occur – steep
slopes, along stream beds, etc. We allow
farmers to sell forest mitigation easements – if you decide as the landowner
that you are going to tie up all your property and only grow trees and you are
going to get paid to do that. As long as
you are allowed to harvest the trees, we call it a crop and allow you to do
that. The Foundation does not allow
forest mitigation easements when a person is not allowed to harvest unless it
is in a "bmp" [best management practices] area where you would not
traditionally farm and harvest in any way.
We have paid an easement to the person to farm and now they are going to
take that land in perpetuity out of production for the benefit of someone who
usually wants to develop another property.
That is an issue for MALPF.
Mr. Doug Wilson stated that, in the staff
report, it is indicated that MET does not allow this statewide; he was not sure
about the Rural Legacy easements. If
someone came and requested a wetlands mitigation easement and the place they
were going to put mitigation is in a place where farmers already farm, it
should not be allowed. If the request is
to put it in the middle of the field in agricultural production and we have to
grant easement rights for the Corps of Engineers and Department of Environment,
it should not happen. This is on
easement property. This is the reason
Mr. Clark wants to have the guidelines from the Board.
Mr. Tassone had questions regarding the location
of the practice on marginal land, the fact that it functions as a bmp for soil
and water quality, and the scale and magnitude relative to the size of the
production operation. Mr. Tassone wanted
to know if “marginal land” means land that is not suitable for production. Mr. Clark responded that in most cases it is
not even being farmed, is part of land withheld from active agriculture, and is
maintained to be open.
Regarding the suitability of the location, Mr.
Tassone wanted to know if, generally speaking, the wetland mitigation practices
are only used where there was an appropriate need for soil and water quality
management. Mr. Clark responded in the
affirmative, and the wetland mitigation easements would only be approved by the
Soil Conservation District if there was in fact a need for a wetland or an
equivalent practice for conservation purposes.
Mr. Tassone commented that MALPF supports
production and wanted to know if the magnitude of the request can compromise
production significantly on a farm. Mr.
Clark responded that it is like putting in a grassed waterway. They put waterways on prime farmland. These would be designed size-wise to take
care of the quality of the water. The
only hitch that has come up in all the discussions is that they do not want to
tell the landowner to take their farm and create 50 acres worth of wetland and
as such start selling off the easements to the highest bidder. He suggested handling the issue on a case-by-case
basis.
Mr. Doug Wilson assumed the reason the
Foundation is being asked to do this is to aid some developer to build
additional houses. Mr. Clark commented
that this is not the case.
Mr. Stahl shared his experience when he was in
the sand and gravel business in Charles County.
They created 17 acres of wetlands.
They converted a large piece of prime cropland and sold 17 acres of
mitigation to Charles County for the mitigation that was required for building
roads. His concern is that, not only it
is possible, but it was approved by the Charles County Soil Conservation
District because they had to approve all the plans associated with it. So Mr. Stahl felt that such an approval
requirement does not necessarily result in the preferred outcome for the
Foundation. He believed that previous
mining can be a part of the creation of the wetland, but you need to be careful
that mining becomes a secondary issue relative to the creation of the wetland. The value of the wetland is huge. When Mr. Stahl sold wetlands mitigation
easements 10 or 15 years ago to Charles County, the price was $60,000 or $
70,000 an acre for the mitigated piece.
It was not cheap to put it in, but some of the alternative activities on
the properties can be secondary to the value of the mitigated piece. Mr. Stahl wanted the Board members to know
that wetland mitigation does not involve only marginal farmland.
Ms. Judith Lynch commented that Mr. Clark
mentioned that wetland mitigation is an accepted policy. One of the conditions in the Foundation
Policy mentions that the overlay easement shall not prohibit any agricultural
operation. An overlay easement should
have a minimum interference on the whole operation of the farm, and she
believed that the policy also says that there can be no farming or forestry if
there is wetland mitigation or overlay.
Mr. Clark stated that the policy has mentioned
that the overlay easements shall not prohibit any agricultural operation within
the proposed easement area, “unless otherwise approved by the Board.” If the Calvert Soil Conservation District
creates a wetland, it becomes a jurisdiction wetland in the United States. Once it is created, regardless of the
easement, it is a wetland protected by the United States Government.
Mr. Doug Wilson stated that MALPF’s current
policy allows some kinds of mitigation easements, but generally require them to
be located in areas not considered agricultural and farming. The request can be in the middle of the
field, might be 4 acres, but the land is taken out of production forever. That is where there is conflict. That is the reason Mr. Clark is here to get
clarification from the Board.
Mr. Clark commented that these are the best
management practices, and even the federal government authorizes shallow wildlife
areas as a bmp.
Mr. Conrad remarked that, when there is federal
money in the easement, the federal government will not allow wetland mitigation
properties on federally-funded properties.
So we will be creating two classes of easement grantors – those with
federal money and those without federal money.
Ms. Weaver pointed out that the installation of
wetlands and shallow water wildlife areas are considered best management
practices, but are not required on the properties. For the purposes of WMEs, marginal farmlands
are defined as:
1.
Croplands that cannot be cultivated two out of every five years
due to wet conditions.
2.
Croplands that maintain standing water at least two weeks out of
the year.
Regarding the overlay
easement policy, Ms. Weaver wanted to inform the Board members that, while the
Board approved the policy in March 1997, in November 1997, the Board actually
denied a request for a wetland reserve easement.
Mr. Colhoun asked if Mr. Clark has seen the
letter of Mr. Conrad to the Board members and wanted to know if the statement
“The WMEs prohibit agricultural or forestry activities within the WME area and
within a 25-foot buffer of the site” is correct.
Mr. Clark stated that it is required by the Maryland
Department of Environment to be construed as a mitigation area. The mitigation site and the 25-foot buffer
around that have to be left to grass.
This is required by the Maryland Department of Environment in order for
the site to be accepted for mitigation.
The site plan with the copy of the easement attached is the site and
sent to the Department of Environment which has to approve the easements.
Mr. Tassone wanted to know if the wetland
mitigation project costs $50,000, who is the person responsible for that
$50,000? Do they pay the landowner the
money in addition to that? Mr. Clark
said that they could certainly do that.
Mr. Clark would like to extend more opportunities to the farmers and
would like to keep them in business. He
saw this as an opportunity in which the farmers would not only get some
business but also would get some best practices installed free. In some cases they may pay the farmers some
additional money for that acreage. Mr.
Tassone wanted to know if the mitigants would be responsible for the
maintenance costs of the wetlands. Mr.
Clark confirmed that the mitigants will be responsible, though usually there is
not much maintenance.
Mr. Conrad stated that the Dominion LNG pipeline
is expected to have a substantial impact on mitigation needs in the
County. He wanted to know if: (1) Mr. Clark was aware of the expected
acreage that would need to be mitigated, and (2) is there an indication that it
will take place in Calvert County or could it be done anywhere in Maryland?
Mr. Clark clarified that the laws on mitigation
says that it has to occur within the same sub-watershed, but if you can’t put
under the same sub-watershed, it can put in the same watershed. But if you can’t put it under the same
watershed, it must be under the watershed that is close, but if you can’t put
it under the watershed that is close, you can put it anywhere you want. So one has to influence the MDE and the Army
Corps of Engineers to go through the process, this is the best place you can
find mitigation possibilities, and, in most cases, it is the only place you can
find such possibilities. The expected
acreage is 8 acres of wetland. MDE would
like to have it spread out, not concentrated in one place. They would like to put 2 acres in another county
and 6 acres in Calvert County.
Mr. Doug Wilson stated that the Board will
discuss the issue as a policy issue and come up with recommendations
later. Mr. Colhoun agreed and informed
Mr. Clark that if the Board needs more information, it will be in touch with
Mr. Clark. Mr. Clark agreed and
commented that if the Board would like him to come to the next Board meeting he
can certainly do that. Mr. Colhoun
thanked Mr. Clark for coming and sharing the information with the Board
members.
Mr. Chris Wilson wanted to emphasize Mr. Clark’s
statement that “in most cases it is the only place you can find.” Mr. Chris Wilson believed that statement
should allay some fears about destroying good cropland. Also, we are not talking about a lot of
acreage taken out of production.
Mr. Doug Wilson pointed out the earlier request
for wetlands mitigation that was turned down.
The landowner had 236.5300 acres, and there was a request to allow
mitigation on 80.851 acres of the property. Thus, he believed the cases have to
be reviewed on case-by-case basis.
V. INFORMATION AND
DISCUSSION
A. RE-CERTIFICATION
OF COUNTY PROGRAMS: TALBOT COUNTY
Talbot County has submitted an application for
Certification of a local Agricultural Land Preservation Program and is
requesting Foundation approval. Below are some highlights:
·
2,100 acres were preserved during the reporting period.
·
The County continues to commit funding for the MALPF matching
funds program.
·
The County has strengthened its commitment to directing growth to designated
growth areas through the designation of greenbelts around the incorporated
towns and emphasis on promoting infill and redevelopment.
·
The County is in the process of implementing the designation of
sending and receiving areas in its TDR program to encourage development in
growth areas (previously TDRs sending and receiving areas were limited to the
same election districts).
·
The County has included in its budget funding for a study for the
development of a PDR program.
·
The County has strengthened its zoning in certain sizable areas of
the County through the elimination of the past practice of allowing three
up-front lots and the elimination of bonus density.
In reviewing the recertification request report,
Foundation staff notes that zoning changes incorporated in the recent
Comprehensive Plan seem to reflect a stronger emphasis on the protection of
environmental resources and containment of sprawl than on the protection of
viable agricultural resources. The recent
zoning changes aim to curb sprawl through the creation of greenbelts, where
zoning is tighter, around the County’s five incorporated towns. Additionally, strengthened zoning in the
western half of the County, which contains the highest concentration of
environmentally sensitive areas, reflects a clear commitment to the protection
of environmental resources. Meanwhile,
zoning in the predominantly agricultural eastern half of the County remains
relatively weak, indicating a lower emphasis on the protection of agricultural
resources. Additionally, the
strengthening of the County’s TDR program, which acts to direct growth to
designated growth areas, has not occurred in the eastern predominantly
agricultural area of the County.
However, it is clear that the creation of mechanisms to reduce sprawl
has the effect of benefiting farmland preservation, even if it is a secondary
goal. Additionally, while the intention
to protect land in the western half of the county is clearly focused on
protection of environmental rather than agricultural resources, a significant
portion of the western half of the county includes farmland.
The staff’s review of Talbot County’s
re-certification request, addressing general operations of the program,
qualifying expenditures and program development strategies was provided to the
Board members. Foundation staff
recommends that Talbot County be re-certified as the County’s local program
continues to be successful in supporting viable agricultural operations and
preserving agricultural land in perpetuity.
Mr. Martin Sokolich,
Program Administrator, and Mr. Dan Rosen, Maryland Department of Planning, were
available at the Board meeting to answer any questions from the Board.
Mr. Rosen stated that
most of the points have been covered by Ms. Weaver, but wanted to highlight
that the Program Development Strategy contains some extraordinary elements that
are hardly ever seen, such as reducing the size of priority funding areas by
11,000 acres and turning them into green belts with improved zoning and
exclusive sending zone of the TDR. The
creation of the Western Rural Conservation Areas adjacent to the critical area
would result in 1:20 zoning densities without bonus density with the
elimination of three upfront lots and the TDR receiving zone. These are in planning stage and have not been
implemented yet.
Mr. Sokolich located the agricultural
preservation areas, easement areas, district area, and MET easements areas on
the map. The map also indicated the
areas held by Maryland Audubon Society, Maryland Archeological Society, and
Chesapeake Bay Foundation, etc. The
properties are agriculturally more viable properties with better soils.
Referring to zoning changes, Mr. Sokolich
commented that Farm Bureau may think differently as to whether or not the
zoning is less restrictive zoning. The
Government made a number of concessions 15-20 years back when they used the
basic 1:20 zoning. There are options to
propose requiring that all subdivisions be clustered. Subdivision is not allowed without
clustering. The TDR programs are
currently difficult and complicated to manage.
There is a lot of discussion as to whether or not it works. The other topic that came up has to do with
greenbelts. He located the hashed areas
on the map which would become part of the greenbelt area despite the zoning in
the area.
The idea is that, between the local voluntary
TDR Program, MALPF program and other easement programs, the County should be
able to prevent increasing sprawl. Mr.
Sokolich informed the Board that the County is working on the concept of a
greenbelt with the zoning code to be updated.
The County has a complete study of how a PDR Program, TDRs, etc., would
actually compensate people for not selling land for development.
Ms. Weaver commented that, in the annual report
of Talbot County, there is a mention of a greenbelt plan that recommended some
of the zoning changes. For example, in
the western half of the County, the zoning used to be 3 upfront lots in
addition to 1:20. That will be
gone. The eastern half of the County
will still have the 3 upfront lots. It
will not be 1:20, but actually is 1:20 + 3.
Mr. Sokolich stated that this is the way it was
discussed and recommended in the comprehensive plan. The County Planning Commission and others are
still in discussion, and there may be some strategies adopted like mandatory
clustering subdivision. It would prevent
fragmentation of smaller lots that are clustered together.
Ms. Weaver wanted to know if the eastern half
TDR receiving area will continue to be a receiving area. Mr. Sokolich stated that it might be a much
more complicated discussion. Annexations
and development in the town areas as well as across the state are getting much
larger than they used to be. By the time
we annex a piece of property there is already a developer who has a plan to
build on it. So there is no opportunity
to transfer any development rights to the town areas. There is a little bit of dilemma – we may try
to transfer some development rights into the town areas, and the other
alternative is to transfer them to the villages. But the villages do not have any public
infrastructure areas. So it has to be
decided whether the villages would like to put in a sewer system to serve
village development and add another cluster.
TDR programs are set up around the County
election districts. It was not very
practical to find a prospective buyer and seller for the TDR programs in the
same election district. There has been
one case on Route 50 – probably the first major utilization of TDRs in the
County. All these things are being
worked out with the County Planning Commission and the Planning Department.
Ms. Weaver commented that the County is moving
in a very good direction. She expressed
the Foundation’s concern was that the County is not placing a lot of emphasis
on agriculture. Mr. Sokolich stated that
the County recognizes a lot of places where the County could do a little
better.
Ms. Shultz stated that Talbot County requires
new residential lots to have a reference to the right-to-farm ordinance in the
deed. She wanted to know if this was the
case in any other jurisdiction.
Mr. Doug Wilson commented that it is required in
couple of counties, but is not pervasive.
It is an interesting concept to make people aware of what is happening
when they build in the agricultural areas.
Motion #13: To approve
the recertification of Talbot County.
Motion: Vera Mae
Schultz Second: Judith Lynch
Status: Approved
There
being no further business, Mr. Colhoun asked for a motion for adjournment of
the meeting.
Motion #14: To adjourn
regular session and go to executive session.
Motion: Joe
Tassone Second: Judith Lynch
Status: Approved
The regular session of
the Board meeting was adjourned at approximately 12:20 pm.
Respectfully Submitted:
_____________________________________
Rama Dilip, MALPF
Secretary
_________________________________
James A. Conrad,
Executive Director