MINUTES
TRUSTEES
PRESENT:
Daniel Colhoun, Chairman
Vera Mae Schultz, Vice
Chairman
Jerry Klasmeier,
representing Comptroller Schaefer
Pat Langenfelder
Judith C. Lynch
Dr. James Pelura
Robert F. Stahl, Jr.
Joe Tassone, representing
Secretary Scott, Department of Planning
Christopher H. Wilson
Doug Wilson,
representing Secretary Riley, Department of Agriculture
TRUSTEES
ABSENT:
Howard
S. Freedlander, representing Treasurer Kopp
Shirley W. Pilchard
OTHERS
PRESENT:
Anne Bradley,
Bill Beach, Chief,
Valuation and Appraisal, Department of General Services, Office of Real Estate
Yates Clagett,
Tammy Buckle,
John Coleman, Landowner,
James A. Conrad, MALPF
Executive Director
Carol Council, MALPF
Administrative Officer
Rama Dilip, MALPF
Secretary
Sue du Pont, Public
Information Officer, Department of Agriculture
Ned & Carolyn
Hallein, Landowners,
Paige & Sharon
Johnson, Landowners, St. Mary's County
Michael H. Lewis,
Landowner,
Carla Martin,
Gary Miller,
LeRoy Myers, State
Delegate and Landowner,
Craig Nielsen, Assistant
Attorney General, Department of Agriculture
Charles Rice,
Daniel Rosen, Planner,
Maryland Department of Planning
Donna Sasscer, St.
Mary's County, Program Administrator
Eric Shertz,
Martin Sokolich,
Allen Swann, Landowner,
Joseph Jody Swann,
Landowner,
Donna K. Landis-Smith,
Queen Anne's County, Program Administrator
Jenny Plummer-Welker,
Elizabeth Weaver, MALPF
Administrative Officer
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: Chris Wilson
Status: Approved
B. ADDITIONS OR DELETIONS OF AGENDA ITEMS:
There were two
amendments of agenda items:
II.E.1 03-86-15 Tracey, Arthur S. & A. Richard Withdrawn
Request for a
right-of-way overlay Easement
VI.A Early
termination of a district Withdrawn
Due to severe economic
hardship
Mr. James Conrad, Executive Director of the
Foundation, passed around the Farmland Preservation Report. The lead article is on Federal Farm and Ranch
Lands Protection Program and the problems involving FRPP requirements faced not
only by the Foundation but by the States of Pennsylvania,
Mr. Conrad briefed the Board members
about the conference call the Foundation had with the American Farmland Trust
staff and other State program administrators in the Mid-Atlantic region. They discussed the possibility of working
with Democratic and Republican Senators to try and turn the program into a
grants program by legislation. There was
a suggestion of putting some conditions in the appropriations bill coming up in
fall.
In the meanwhile the Foundation has
submitted its application for FY 2006.
Seven counties are participating and the Foundation has applied for over
$20 million.
Mr. Conrad updated the Board members
about the status of Installment Purchase Agreement. The companies Evergreen Capital Advisors and
Public Resources Advisory Group (PRAG) have been chosen. The Foundation will have grants program for
counties that already have an IPA Program.
These counties will be provided an option – if the counties want to use
the county's IPA Program, the Foundation will talk to the local program
administrators about developing a memorandum of understanding. The responsibility for explaining the program
will be on the local program administrator, because each county's program is
unique. A MOU or a contract has to be
worked out on each transaction, and each county will be financially responsible
for settlement. The easement will have the Foundation as at least a co-holder.
If the Foundation is able to set up the
statewide Installment Purchase Agreement Program before properties go to
settlement, the Foundation will communicate to those with pending offers that
they have an option of settling with an Installment Purchase agreement. Mr. Conrad stated that, while the Foundation
may not be able to get the agreement ready for FY 2006 offers, the agreement
will be ready for FY 2007 offers.
Mr. Joe Tassone, representing Secretary
Scott, Department of Planning, wanted to know when a property settles using the
county IPA criteria, how the Foundation's money would be used.
Mr. Conrad responded that it will depend
on the program. For example, Mr. Conrad
stated that Carroll County has a self-funded IPA Program – it uses the full
offer amount to fund both zero coupon bonds that pay the lump sum settlement at
the end of the agreement and to invest to pay the interest during the period of
the agreement. So the Foundation would
grant the full amount of the offer that may or may not include county
money. If it is a county that is going
to accept responsibility for the debt service itself, for example through
general funds, the grant would depend on how the funding is actually done. If the county's grant does not go completely
to fund the IPA, leftover funds would have to be used for land preservation purposes,
and could not be used for matching funds purposes. All this has to be worked out;
county-by-county or even property-by- property.
II. DISTRICT
/EASEMENT AMENDMENTS
A.
1. 14-93-01 Miller, Frances B. 159.812
acres
Request for the exclusion
of one acre for a child's lot on district property
Mrs. Miller is the original owner of the
district property. The current request is for the release of one acre for a
dwelling for the personal use of her son, Gary L. Miller.
At the time of district establishment there were
four pre-existing dwellings on the property.
Two child's lots were released from the property for two sons of Mrs.
Miller. The sons for whom the lots were
released currently reside in the dwellings on those lots. Mrs. Miller does not own any other district
or easement properties.
According to
According to
The landowners intend to store the trailer and
may use it as a tenant dwelling at some point in the future. (The Millers currently operate a dairy on the
property.) The Millers understand that
the terms of the district require that the landowner first seek the approval of
the Foundation before establishing a tenant dwelling.
The location of the proposed lot follows the
guidelines of the Foundation's lot location policy. The lot is to be located along the road,
alongside developed parcels. The lot
will have direct access from the road.
The request was approved by the local advisory
board and conforms to local zoning regulations.
Foundation staff recommends approval based on Agricultural
Article, Section 2-513, Annotated Code of Maryland, which allows a minimum lot
size of up to 2.0 acres to be released, if the purpose for excluding the lot is
to construct a dwelling house intended for the owner or the owner's child(ren) and the regulations adopted by the Department of the
Environment require a minimum lot size of not less than 2.0 acres or the
regulations adopted by the county require the lot to be larger than 1.0 acre
but not to exceed 2.0 acres.
Mr. Gary Miller and Ms. Carla Martin, Program
Administrator, were available to answer any questions from the Board.
Motion # 2: To approve the request of Frances B.
Miller to exclude one acre for a child's lot on district property.
Motion: Chris
Wilson Second: Pat Langenfelder
Status: Approved
2. 14-92-05 Redman, William C. & Mary T. 207.23 acres
14-00-08 Dill, Franklin M., et al.
Request to amend a deed of easement to correct a
boundary line overlap.
Mr. and Mrs. Redman are the original grantors of
the easement. Mr. Dill, et al, are the original owners of the district property. The Redman property is adjacent to the Dill
property. The current request is to
amend the easement to reflect a boundary line correction of an overlap between
both properties.
According to
The request was approved by the local advisory
board.
Foundation staff recommends approval to amend
the deed of easement to correct the boundary line error in the property
description contained in the deed, subject to review and concurrence by Nancy
Forrester, Assistant Attorney General.
If approved, the request must be reviewed by the Board of Public
Works. The Redmans
will be required to reimburse the Foundation an amount of $640.00 for the
reduction in acreage (0.8 acres $800.00 per acre).
Note: The
Dills intend to apply to sell an easement to the Foundation. If the request is approved, the District
Agreement must be amended to reflect the boundary line correction.
Mr. Conrad informed that
there was a metes and bounds description to close the boundary line and get an
acreage calculation in the property description when the Redmans came into the
easement program. The survey clarified
what the issue was, and Ms. Nancy Forrester, Assistant Attorney General,
Department of General Services, noted that the surveyor had done good quality
work. She is confident that the survey
reflects the true property description.
Ms. Carla Martin informed the Board members that
the farm has been with the family for a long time. Redman and Dill are neighbors and do not have
an issue. They are correcting the
boundary line prior to easement application.
Mr. Doug Wilson, representing Secretary Riley,
Department of Agriculture, wanted to know if there were any other potential
boundary issues related to the farm. Ms.
Martin stated that the Dills had a complete survey of the property, and there
were no other boundary issues.
Motion # 3: To approve the request of Redman and
Dill to amend a deed of easement and a district agreement to correct a boundary
line overlap.
Motion: Pat Langenfelder Second: Chris Wilson
Status: Approved
B.
1. 10-87-10 Hallein, Ned E. & Carolyn E. 156.00 acres
Request to place a stockade, formerly used in a
documentary film, on easement property.
Mr. and Mrs. Hallein are the original grantors
of the easement. The current request is
to allow the placement of a log stockade, formerly used in a documentary film,
on easement property. (Note: This request was scheduled for the January,
2006, meeting, but was tabled because no landowner representatives were available
to answer questions from the Board.)
The stockade was constructed in
The Halleins own and
manage a beef cattle operation on their farm.
They propose to use the stockade as a corral for herd checks. The gates and fences currently used on the
farm for this purpose are in poor condition.
The stockade would be placed on an area of the farm currently kept in
pasture.
While there are no specific plans to use the
structure in films, the Halleins would like to have the ability to do so in the
future. The Halleins
intend to make the stockade available to Media Magic for use in future
documentary films. It is possible that,
if it is used for shooting a film, a small temporary cabin may be erected. The cabin would be removed at the end of the
filming.
The activity was approved by
Mr. Hallein informed
the county that the stockade structure is approximately 125'X125'.
The Foundation received correspondence (attached
with the staff memo) from Dean Considine, President,
Central Maryland Heritage League, encouraging the Foundation to approve the
request.
Foundation staff recommends approval because the
stockade will be used for agricultural purposes. However, the Board may want to consider
placing conditions on the approval, such as a condition that any
non-agricultural use of the stockade, including the use of the stockade for filming,
and/or the construction of a cabin, must first be reviewed by the
Foundation. (The Uses Committee has not
yet formulated a policy on the use of district or easement property for
filming.)
Mr. and Mrs. Hallein, and Mr. Brad Graham, Board
President, Historical Films. Inc., were present at the meeting to answer any
questions from the Board. Mr. Hallein
had brought along a tabletop model of the structure to the MALPF Board meeting. Mr. Hallein located
the approximate location of stockade on the easement property and stated that
he is proposing a location which is not productive farmland and will not impact
the farming operation.
Mr. Hallein displayed
the tabletop model of the structure for the benefit of Board members. The Halleins do not
have gates, and the stockade will provide a means of animal control which is
otherwise very expensive for the farmers.
Mr. Colhoun suggested
that the Uses Committee can study the request and give its recommendation to
the MALPF Board.
At Mr. Colhoun's request,
Mrs. Vera Mae Schultz, Vice Chairman, had visited the site. Ms. Schultz
suggested separating the two issues: the
placement of the stockade for their use in the cattle operation and the issue
of future filming. The Uses Committee
can deal with the subject of future filming and give its recommendation.
Dr. James Pelura, Board member, wanted to know
about the ability of cattle handlers to handle cattle.
Mr. Hallein stated
that they have iron gates. The cows are
big and jump up the iron gate. Dr. Pelura was concerned that the corners may
not be ideal for handling cattle. Mr. Hallein believed it was safe and made it lot easier to
handle the cattle.
Mr. Tassone wanted to know if the construction
could be dismantled. Mr. Graham stated
that, after the filming was over, the property owners required the stockade to
be dismantled. Historical Films, Inc., a
non-profit movie production company, offered to reconstruct it somewhere in the
future. At this moment the stockade is
being stored near
Mr. Craig Nielsen, Assistant Attorney General,
Department of Agriculture, commented that the deed of easement prohibits
non-agricultural use, even if it is temporary.
The deed of easement governs what a landowner can do on the farm and
allows the use of the farm only for agricultural purposes.
Mr. Conrad wanted to know if the stockade is
placed on the farm it may attract the tourists and related commercial
activities. Mr. Hallein
stated that he is not interested in development, values his privacy, and would
like to maintain a low profile. The
stockade would not be visible from the public highway. Mr. Hallein would
not encourage any type of visitation, except he may be willing to have an
educational tour by a group of school children.
Motion # 4: To approve the request by Ned and
Carolyn Hallein to place a stockade on
an easement property to be used for agricultural purposes and any
non-agricultural use to be reviewed by the Foundation.
Motion:
Vera Mae Schultz Second: Robert Stahl
Status: Approved
2. 10-82-03 Lewis, Michael H. & Sharon L. 276.00 acres
Request to operate a dog kennel on easement
property.
Mr. and Mrs. Lewis are subsequent owners of the
easement property. The current request
is for permission to operate a dog kennel on easement property.
Mr. Lewis proposes to operate a kennel in a
building which existed at the time of district establishment (sketch and photos
attached with the staff memo). Mr. Lewis
intends to renovate the barn, but does not intend to expand the building.
The Foundation has traditionally viewed dogs and
cats as non-agricultural animals and, therefore, has not allowed kennels on
district or easement property. However,
the MALPF Task Force draft guidelines recommend approval of home occupations
provided they are operated from buildings that existed at the time of district
establishment. Additionally, landowners
may operate home occupations from their residence, provided they are located
within the area (usually one acre, but may be up to two acres) surrounding the
existing dwelling released from the easement.
According to
Foundation staff has requested clarification of
the location of the run area. Staff is
concerned that it may not be possible to locate the entire kennel operation,
including parking, the run area, and possible expansion of sewage capacity
resulting from the kennel, within the barn and the area surrounding the
existing dwelling. Unless the landowner
can demonstrate that it is possible to locate the entire operation within the
barn and the area surrounding the existing dwelling, staff recommends the
request be assigned to the Uses Committee, which is currently reviewing similar
issues.
The request was reviewed by the local advisory
board on
Ms. Bradley informed the
Board members that the local advisory board met on May 22 and approved the recommendation
to exclude a 2 acre lot for the dog kennel.
The advisory board also conveyed that it supports kennels on easement
properties as a commercial support activity and believes that they are no less
agricultural than any other animal operations.
Mr. Lewis stated that he
bought the farm and is trying to make the best use of the property. Mr. Lewis and his father farm the land, and
the building is not now very suitable for animals.
Mr. Conrad wanted to
know if Ms. Bradley was commenting on the release of acreage around the
pre-existing house or to what specifically was she referring when she mentioned
the local advisory board's recommendation to "exclude a 2-acre
lot." Ms. Bradley stated that she
was referring to the pre-existing dwelling.
Ms. Bradley was not sure of the zoning requirements and believed the
local regulations required 1 - 2 acres.
Mr. Lewis believed that he will need 2 acres to accommodate septic
requirements.
Mr. Doug Wilson stated
that historically the Foundation has not allowed kennel operations on easement
property. Legislation was introduced in
recent years to allow kennel operations on agricultural easement property, and
the bill was not passed. Mr. Doug Wilson
believed the request should be reviewed by the Uses Committee. If the Uses Committee chooses to make
recommendations, the Foundation can submit them for legislation.
Mr. Doug Wilson asked
the program administrators if the kennel was allowed in their local easement
programs.
Ms. Jenny
Plummer-Welker, Program Administrator,
Mr. Doug Wilson and Mr.
Colhoun believed it would be appropriate for the issue to be passed on to Uses
Committee for it to study and make recommendations.
Mr. Conrad wanted to
make certain what exactly is being requested – is it to operate a dog kennel on
easement property or is it to exclude acreage around a pre-existing house. If the latter was the case, the landowner
does not need permission from the MALPF Board to operate a kennel on excluded
acreage. The release process would
actually be administrative and not require MALPF Board approval.
Ms. Judith Lynch, Board
member, stated that she visited the site and met Mr. and Mrs. Lewis. She stated that the barn is an old
building. There are several buildings on
the property that the landowner proposes to renovate and restore. Mr. Lewis has plans to have a kennel for 22
dogs. There is already an impervious
surface where parking could be accommodated.
Based on her visit, Ms. Lynch did not believe there would be any adverse
effect on the farming operations.
Responding to a question from the Board, Mr. Lewis stated that he plans
to have the kennel both for breeding and boarding.
Mr. Tassone stated that,
assuming that there is a pre-existing dwelling recognized at the time the
property came into the program that is close enough, this barn could be
included in a 1- or 2 acre lot exclusion around the pre-existing dwelling. Mr. Lewis commented that they have not
measured it, but felt the barn should be 83 feet long, 60 – 70 feet away from
the dwelling. The barn is closer to the
road than the house.
Mr. Tassone asked Mr.
Lewis if he wanted to exclude a residential lot other than to be able to
operate the kennel. Mr. Lewis agreed
that otherwise he would not exclude the lot.
Mr. Doug Wilson
suggested referring the issue of kennel on easement property to the Uses
Committee, because it would be helpful for the Foundation to be clear on its
policy.
Mr. Tassone believed
that it would be odd and counterproductive to the program if the Board's action
would result in having a 2-acre lot excluded from the portion of the property
so the landowner can have a kennel.
Dr. Pelura
was concerned about setting a precedent.
Mr. Conrad recommended
that Mr. Lewis talk with the County program administrator to move forward. He agreed with Mr. Tassone's
comments, but stated that it is a fact that anyone in the future could exclude
that lot. It is up to Mr. Lewis if he
would like to subdivide that acreage around the pre-existing house. Mr. Lewis can always choose to put a
restriction that would require that the lot has to be conveyed together with
the farm. As the landowner, Mr. Lewis
can decide whether he wants to do that or not.
If Mr. Lewis wants to
release the acreage around the house, and if it works with the county and the
Foundation, Mr. Lewis can move forward.
In the meanwhile, the Foundation would be reviewing the use issue. The lot issue would only require an administrative
procedure and would not have to come to the Board. If Mr. Lewis wants to wait for the Use
Committee's recommendation, he can do so.
Mr. Tassone wanted to
convey that there is not only one way to deal with this issue. The Board can exercise flexibility and
discretion to best serve the interest of the program.
Motion # 5: To table
the request by Michael and Sharon Lewis to operate a dog kennel on easement
property.
Motion: Doug Wilson Second: Chris
Wilson
Status: Approved
Mr. Conrad asked Mr. Lewis to be in touch with
the program administrator as to how he would like to proceed.
C.
1. 11-00-02 Custer, Leo P. & Janet L. 276.00 acres
Request for an agricultural subdivision of easement
property
Mr. and Mrs. Custer are the original grantors of
the easement. The current request is for
an agricultural subdivision of the farm.
According to
According to
Both parcels would continue to meet minimum
qualifying soils criteria. The portion
proposed to be subdivided contains 79% qualifying soils. The remaining parcel contains 66% qualifying
soils.
The request was approved by the local advisory
board and conforms to local zoning regulations.
Foundation staff recommends approval based on
meeting minimum size and soils criteria and the resulting parcels having the
ability to support viable agricultural operations.
The landowners and the program administrator
were not available. Mr. Conrad stated
that staff felt comfortable with the recommendation because the Board approved
a similar request almost a year ago.
Ms. Schultz stated that, if the subdivision is
approved, Mr. Custer's son, Paul, will not be able to establish any residences.
Mr. Conrad agreed and said that Paul could have a son's lot on the original
parcel but he could not get a lot on the subdivided parcel because the
ownership would have transferred. This would be explained to Paul.
Mr. Doug Wilson commented that MALPF staff
should communicate with the county program administrator. The landowners might like to look into a
child's lot on this particular parcel.
Mr. Conrad asked Ms. Elizabeth Weaver, MALPF
staff, if a lot has been taken off. Ms.
Weaver stated that she does not know but can check into it. Mr. Colhoun
commented that this is another good reason why he wants the program
administrator or landowner to be present at the Board meeting.
In defense of the program administrator, Ms.
Weaver stated that the program administrator, Mr. John Nelson, is also the
planning and zoning director. Attending
the Board meeting involved 4 hours of driving from
Mr. Tassone commented that he agrees with the
landowner's ability to subdivide the concerned property, but he is concerned
whether the request is consistent with the idea of an agricultural subdivision
which has been based on the intention to use the subdivided pieces for separate
agricultural operations. He did not
believe that was the intention in this case.
Mr. Conrad stated that, in this case, the son is
getting the primary part of the cattle operation. This may also be part of the transfer of
property over time to the son. It is
also logical that the landowners may not want to transfer the entire property in
one shot for a variety of reasons.
Motion # 6: To approve
the request of Mr. and Mrs. Leo Custer for an agricultural subdivision of
easement property.
Motion: Doug Wilson Second: Judith
Lynch
Opposed: Joe Tassone
Status: Approved
MALPF staff was advised to contact the
landowners to advise them of the implications of agricultural subdivision on
their rights for children.
D.
1. 04-82-04 Swann, J. Allen & Patricia B. 211.50 acres
Request to allow a wetland mitigation easement
as an overlay on MALPF easement property
Mr. and Mrs. Swann are the original grantors of
the easement. The current request is to
allow a wetland mitigation easement (WME) as an overlay easement on MALPF
easement property.
The Swanns intend to
place WMEs on three sites on their farm properties – one on the above
referenced MALPF easement property, one on a property under a county easement,
and one on land which is not under easement.
According to
According to
In a letter to the landowner (copy attached with
the staff memo), William Clark, District Manager, Calvert Soil Conservation
District, stated that the area to be considered contains soils that are
conducive to shallow water wildlife areas and wetland creation. He stated that the area proposed for wetland
mitigation that is under a MALPF easement floods during each storm event. He stated that using this area in combination
with the other wetland sites on the farm would increase the water quality
benefits of the entire wetland pool system by providing additional areas for
absorption of nutrients and reducing sedimentation into the pond.
Mr. Clark presented the concept of allowing
wetland mitigation easements on MALPF easement properties to the Board during
its February, 2006, meeting. During the
presentation to the Foundation, Mr. Clark stated 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 requested 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 farmland. For the
purposes of WMEs, marginal farmlands are defined as:
1.
Cropland that cannot be cultivated two out of every five years due
to wet conditions.
2.
Cropland that maintain standing water at least two weeks out of
the year.
3.
Cropland containing Fallsington, Elkton, or Othello soils that have
not been previously drained, or other prior converted wetlands.
4.
Cropland that may have inclusions of strongly contrasting Nonclass
I soils within the soils series.
During the February Board meeting, Foundation staff
reported that 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.
A WME is required to offset disturbance of
wetlands for activities associated with development, road construction,
drainage, excavation, etc. The WME site
must be located, if possible, 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.
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. Rural Legacy
currently does not have a policy on WMEs.
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 staff memo.)
On
During the
Because WMEs prohibit
agricultural or forestry activities within a 25-foot buffer of the site,
Foundation staff requested clarification of whether the 0.9-acre area includes
the 25-foot buffer area, and, if not, what is the total area within which
agricultural and forestry activities are prohibited. Mr. Clark stated that it depends on the
design of the wetland on the site. It
may be designed in such a way as to include the 25-foot buffer within the 0.9
acre area. In a conversation with the
Foundation, Mr. Swann stated that it is his understanding that the mitigation
areas include the 25-foot buffer. However, he stated that the design of the
mitigation sites is not yet complete and it is possible that the size may
increase slightly. He also stated that
he will attend the Board meeting to answer questions from the Board. He expects
to know the final size of the mitigation site on the MALPF property at that
time and will attempt to provide documentation.
Foundation staff recommends approval because the
Foundation allows overlay easements in certain situations where the
agricultural use of the property is not negatively impacted. In Mr. Swann's case, the mitigation easement
would have a beneficial impact because it would reduce erosion on the overall
farm. The area proposed for the WME site
is saturated much of the time, making it unsuitable for farming three out of
every four years: consequently, the negative impact on the farm operation is
minimal. On balance, the beneficial
impact on the overall farm outweighs the negative impact of taking the wet area
out of production.
A copy of a sample WME and the minutes from the
February, 2006 Board meeting were attached with the staff memo.
Mr. Swann and Ms. Plummer-Welker were available
to answer any questions from the Board.
Ms. Welker clarified that the sites not located on the MALPF property
cover 5.6 acres (one site covering .8 acres and another covering 4.8 acres),
and not 12.8 acres (one site covering 8 acres and another covering 4.8 acres)
as mentioned incorrectly in the staff memo.
Ms. Welker added that Mr. Swann has provided a copy of the easement that
would be signed and stated that the mitigation acreage includes the 25-foot
buffer.
Mr. Swann stated that the acreages mentioned are
approximations. The survey has been
completed, and he has not yet received the results.
Mr. Colhoun stated
that he had requested Mr. Stahl to visit the site and asked Mr. Stahl to brief
the Board members. Mr. Stahl stated that
he visited the site and believed it is a very good area, suited for wetland
mitigation, and following best management practices. The current request would help Mr. Swann in
the long run and work well in specific situation.
Mr. Stahl expected many more similar requests
from
Mr. Doug Wilson commented that, according to the
existing MALPF policy, if a landowner wants to mitigate in an area where soil
conservation district staff says mitigation would be a best management
practice, the Foundation would not want the landowner to farm. The landowner can go similarly for forest
mitigation. However, the Foundation buys
easements for continued production. Mr.
Doug Wilson is not sure what the standard should be, and there is a need to
discuss the issues with Resource Conservation and make recommendations to the
Board. In this particular situation,
wetland mitigation makes more sense in the overall management of the farm, and
MALPF Board should feel comfortable in approving the request. Things would be different if the acreage was
38 acres of mitigation. Mr. Doug Wilson
believed that the Foundation needs to have guidelines. Taking the land out of production forever is
an issue for the Foundation. In the
present request, it is less than an acre; but, in the bigger context, it might
pose some problems. Mr. Doug Wilson
recommended that the Board does not vote on this request.
Mr. Doug Wilson also felt the need to have
policy input from Resource Conservation and having their recommendation from
their perspective for water quality, soil quality, etc. He felt the need for having parameters
(acreage limitation on the percentage of the farm) so that nobody criticizes
the Foundation for buying an agricultural preservation easement and taking a
significant portion out of agricultural production.
Mr. Chris Wilson, Board member, believed that
the Board should not take a position opposing best management practices.
Mr. Stahl commented that, on the
There is no issue with the request for Mr.
Swann's 0.9 acres: Mr. Stahl was
convinced that the proposed wetlands conversion is consistent with best
management practices; but he is concerned about the precedent being set and how
the MALPF Board would justify not doing the same thing on an entire farm on the
Mr. Colhoun commented
that it is important for the MALPF Board to look at the policy, talk to the
experts in the Department of Agriculture, and establish clear policy.
Mr. Swann stated that most wetlands are already
protected under one or more preservation programs. He briefed the Board members about the
location and quality of his land. The request
satisfies best management practices – the farm he will be putting in wetland
mitigation will be an improved operation, and he is being compensated. As he is getting older, he wants to leave the
farm more productive and better than what it was when he got it.
Mr. Doug Wilson stated that, as mentioned in the
staff memo, State government has to be consistent in its approach. Mr. Doug Wilson believed that Maryland
Environmental Trust would not approve the request, and Rural Legacy, a sister
program, has many agricultural properties, but does not have a policy on
wetlands mitigation. If the Foundation
gets the experts' opinion that it is a good policy, the Foundation can
recommend to Rural Legacy that it should adopt the same policy so that two
neighbors in identical circumstance will be treated in a similar fashion by the
State government.
Mr. Tassone wanted to clarify whether the
purpose of referring the issue to the experts is to verify if the request for
the mitigation practices are good for soil and water quality management and are
justified as best management practices.
The Foundation could then take their recommendations and add its
evaluation of whether or not the practice will compromise the agricultural uses
of the property, rather than coming up with some set of rules that will govern
the Board's decision making process on all properties.
Mr. Chris Wilson believed that Soil Conservation
teams are experts. They have project
engineers, and the requests will be reviewed and approved by them. This happens in all jurisdictions. Mr. Chris Wilson is on the Soil Conservation
Supervisory Board of Anne Arundel County, and it goes over each and every one
of the proposed projects. Mr. Chris
Wilson believed that Soil Conservation teams are the experts, and the MALPF
Board should not stand in the way of the best management practices recommended
by Soil Conservation.
Mr. Tassone stated that the best management
practices in some cases could mean putting the whole farm in CREP, and
Foundation will not be able to say 'No' – that is not okay.
Mr. Colhoun agreed
with Mr. Doug Wilson's suggestion of having the opinion of experts in the
Department of Agriculture to create guidelines.
The guidelines give the Board discretion in the consideration of
requests, and it also gives the Board technical expertise to help make a
rational decision. Mr. Tassone stated
that personally he is not so interested in guidelines but rather wants to know
whether the requested practice makes sense on a particular property.
Jerry Klasmeier,
representing Comptroller Schaefer, quoted from the staff memo: "During the
Mr. Doug Wilson commented that, when the
decision was taken to review the requests on a case-by-case basis in
Mr. Klasmeier agreed
with Mr. Doug Wilson about his comments on the need for a policy. Since this particular case satisfies the
requirements, he recommended for approval.
Motion # 7: To approve
the request of Patricia and Allen Swann to allow a wetland mitigation easement
as an overlay on MALPF easement property.
Motion: Jerry Klasmeier Second: Chris Wilson
Status: Approved
In the absence of a broader policy (not yet
formulated) on wetland mitigation, Mr. Tassone suggested including the clause
"recognition by the board that the proposed litigation does not compromise
the use of the property for agricultural production and strikes a good balance
between preservation and production and resource conservation purposes" as
an attachment to the motion. Mr. Tassone suggested to include this to ensure that the
approval does not compromise MALPF's interest on the
property as a preserved for agricultural production.
Amended Motion # 7a: To approve the request of Patricia and Allen
Swann to allow a wetland mitigation easement as an overlay on MALPF easement
property; recognition by the Board that the proposed mitigation does not
compromise the use of the property for agricultural production and strikes a
good balance between preservation and production and resource conservation
purposes.
Motion:
Jerry Klasmeier Second: Chris Wilson
Opposed: Judy Lynch
Abstained: Vera Mae Schultz
Status: Approved
Ms. Buckle stated that she and her predecessor,
Ms. Elizabeth Krempasky, currently Director of
Caroline County Planning & Codes Administration, believed that as long as
whatever we are doing has been incorporated into Soil Conservation Plan, then
it can be allowed on the property. She
wanted to confirm her understanding.
Mr. Conrad stated that he and Mr. Doug Wilson
have discussed the issue, and they agree with Ms. Buckle. The question is whether the action is
incorporated into any type of plan – it is not clear from the documentation.
Mr. Stahl assured the Board members that Soil
Conservation has been involved in the design of this wetlands area and would
incorporate it into its best management practices – that is a formality, which,
if required, can happen tomorrow. This
is a clearly a best management practice for the farm. Reiterating his opinion, Mr. Stahl stated
that this is a wonderful thing for the farm and for Mr. Swann; Mr. Stahl
recommends it as a Board member. The
only thing Mr. Stahl is concerned about is the lack of a formal policy, because
similar requests are expected from
Mr. Colhoun commented
that he agrees with Mr. Doug Wilson and Mr. Stahl and believes in evaluating
each specific situation. He wanted to
caution the Board that it is setting a precedent. The Board is better off to have a policy and
guidelines with which one can truly work and stand behind.
Mr. Tassone stated that this will not be a
precedent because the motion has a clarification statement attached.
Mr. Doug Wilson commented that MALPF has a
sister program in the State of
Mr. Conrad highlighted the activities of putting
a pipeline project across
Mr. Klasmeier
commented that the pipeline will help address the natural energy crisis we
have.
Mr. Swann thanked the Board members and
guaranteed that the farms will be better and more productive.
F.
1. 21-99-07e Myers, Jr., Leroy E.
Request to exclude 2.0 acres for a child's lot
from easement property.
Mr. Myers is the original grantor of the
easement. The current request is for the
exclusion of 2.0 acres from the easement for the purpose of constructing a
dwelling for his daughter's, Jennifer Myers Hilliard's, personal use.
There is one pre-existing dwelling on the
property. Two child's lots have been
approved on the property for his sons, Ryan (
According to
The request was approved by the local
agricultural advisory board and conforms to local zoning regulations.
If the request is approved, there will be a
required payback to the Foundation of $4,057.06 at $2,028.53 per acre, which is
the per acre amount the Foundation paid for the easement. Attached is a letter from the Health
Department requiring the lot be 2.0 acres in size.
This request conforms to the Foundation's Lot
Location Guidelines because it has direct access to a county road and is
clustered with previously approved dwellings; however, staff has some concern
about the 'orphaned' 1.5± acre parcel.
Staff recommends approval of the release of 2.0
acres, based on the provisions of the deed of easement and in accordance with
Agricultural Article, Section 2-513(b), Annotated Code
of Maryland, which grants an allowance of a maximum lot size of up to 2 acres
if required by regulations adopted by the Department of the Environment or the
county.
Delegate Myers was present to answer any
questions from the Board.
Mr. Tassone wanted to know who will own the land
consisting of rock. Delegate Myers
clarified that it is going to be part of the 148.08 acres. Mr. Myers also stated that
Motion # 8: To approve
the request of Leroy Myers for the exclusion of two acres for a child's lot for
Jennifer Myers Hilliard.
Motion: Joe Tassone Second: Pat Langenfelder
Status:
Approved
G. ST. MARY'S COUNTY
1. 18-00-14e Johnson, Paige & Sharon 100.00
acres
Request for overlay telephone easement
Mr. and Mrs. Johnson are the original owners of
this easement property. The property has
one pre-existing dwelling, and there have been no requests for lot
exclusions. Prior to purchase of the
MALPF easement, an AT&T (now Verizon) prescriptive
easement existed (but was not recorded in the land records) to provide for
telephone service to the Johnson farm and to developed lots located adjacent to
the subject property.
The current request (as identified on the map attached
with the staff memo) is for:
A)
approval of a Verizon telephone easement
along the border of MALPF easement property which will serve a new farm office
owned by the Johnsons (located outside of the MALPF
easement);
B)
abandonment of a portion of the existing overhead telephone
easement which currently impacts the crop operation on the MALPF easement;
C)
relocation of the proposed abandoned telephone easement (poles
which currently run through a crop field) to an underground telephone easement
within the existing road right-of-way along the border of the MALPF easement
property; and
D)
recordation of a Telecommunications Right-of-Way
Easement Agreement (Agreement),copy attached with the staff memo.
According to St. Mary's County, to understand
this request, the St. Mary's Agricultural Advisory Board visited the Johnson
farm on
Approval of this request will not require an
alteration to the Deed of Easement which was recorded in the land records of
St. Mary's County for this property.
However, an Agreement would be recorded to recognize the portion of the overlay
easement that will affect the MALPF easement property. Nancy Forrester, Assistant Attorney General,
Department of General Services, has reviewed the Agreement and finds that a few
changes must be made for the document to be legally sufficient (copy of changes
attached). Ms. Forrester stated that the
Foundation took exception to the AT&T prescriptive easement as it existed
prior to the MALPF easement, even though the prescriptive easement was not
recorded in the land records.
Foundation staff recommends approval of the
request for an overlay telephone easement subject to final approval of language
in the Agreement as recommended by the Assistant Attorney General.
Mr. and Mrs. Johnson and Ms. Donna Sasscer,
Program Administrator, were available to answer questions from the Board.
Motion # 9: To approve
the request of Paige and Sharon Johnson for an overlay telephone easement.
Motion: Robert
Stahl Second: Jerry Klasmeier
Status: Approved
III. AGRICULTURAL
PRESERVATION DISTRICT PETITIONS
Mr. Conrad presented the district petitions.
A. QUEEN ANNE'S COUNTY
1.
This is a 28.857 acre
parcel located near the town of
2.
This is a 39.537 acre
parcel located near the town of
3.
This is a 149.03 acre
parcel located in the
Staff recommends the
landowner acquire a forest stewardship plan on this property.
4.
This is a 201.50 acres parcel located in the
Staff recommends the
landowners acquire a Forest Stewardship Plan on this property.
5.
This is a 59.427 acres parcel located in the
east of Centreville and Ruthsburg. The property is contiguous to two proposed
districts. There is 1 dwelling. It has 57.227 acres of cropland. The primary farming operation is grain. It is not owner operated and is part of a
larger operation. It has 97% qualifying
soils.
Motion
# 10: To approve the requests of
William and Alice Elborn, Charles and Jody Story,
Andrew and Bradley McLean and Andrew and Kellee
McLean to establish agricultural land preservation districts on their
respective properties with appropriate recommendations.
Motion: Vera Mae
Schultz Second: Chris Wilson
Status: Approved
B.
1.
This is a 367.00 acres parcel located in the community
of
2.
This is a 119.04 acres
parcel located in the community of Ridgely. The property is contiguous to an easement
property. There is one dwelling. It has 105.04 acres of cropland. The primary farming operation is small
grain. It is owner operated and is not
part of a larger operation. It has 100%
qualifying soils.
3.
This is a 433.64 acres parcel located in the
community of Harmony. The property is
contiguous to an existing district and a proposed district property. There is no dwelling. It has 421.64 acres of cropland. The primary farming operation is small grain
and produce. It is owner operated and is
part of a larger operation. It has 100%
qualifying soils.
15 acres are being withheld for family lots. 6
development rights are associated with this.
Bell Creek Farms, LLC, are also putting an adjacent parcel of 154.85
acres into a district. Mr. Conrad stated
that if we look at one parcel, it does not qualify for this much withheld
acreage; but, if you consider both parcels totaling 588.49 acres, it does
qualify and satisfy the Foundation's withheld policy.
Ms. Buckle stated that the firm is a corporation
of father and three sons. Each son has
three children. The reason they want to
withhold 15 acres is that any of the 9 children may want to come back and live
on the property. The withheld acreage is in the corner, and there is a large
irrigation system on the property which this location avoids.
4.
This is a 154.85 acres parcel located in the
community of Harmony. The property is
contiguous with a proposed district property.
There is no dwelling. It has 150.85
acres of cropland and 4 acres of woodland.
The primary farming operation is small grain. It is owner operated and is part of a larger
operation. It has 100% qualifying soils.
Ms. Schultz wanted to know if the owners are
entitled to children's lots on this property.
Mr. Conrad stated that the owners are eligible for children's lots on
both the parcels based on the way they have been set up. Ms. Buckle stated that, during the
subdivision review process, it was determined that the minor subdivision rights
on the 154.85 acre property had been used, and the County does not allow major
subdivision in the R-Rural sending area.
Therefore Ms. Buckle confirmed that there would not be any request for
children's lots on this parcel.
Mr. Conrad wanted to know about the development
rights that are available. Ms. Buckle
clarified that they have density rights but they have to transfer all of them
off the property so that development can be put in the receiving area of the
County. The County is not allowing any
more major development.
Briefing the Board members about the county
zoning density, Ms. Buckle stated that the County approved new transfer of
development rights and regulations. It
has been a three year public process between staff, public, and a 12 member ad
hoc committee whereby farmers from the community reviewed what they want to do.
The farmers expressed that they would like to
work with the County to change the system because they didn't like the existing
system. So the County has found receiving
areas in the County where it is more appropriate for development, and the
County allows the first four lots as a give back (1972). The maximum lots one can have is four. The
remaining development rights exist as equity in the property – they have value,
but they cannot be developed on site.
The development rights can be transferred to the receiving area of the
County.
Mr. Tassone wanted to
know, given the conditions illustrated by Ms. Buckle, how withholding 15 acres can accommodate 6
lots – that is more than 4. Ms. Buckle
stated that in
5.
This is a 107.13 acre parcel located in the
community of Federalsburg. The property
is contiguous to a proposed district property.
There is no dwelling. It has 56
acres of cropland and 51.13 acres of woodland.
The primary farming operation is corn and soybeans. It is owner operated and is part of a larger
operation. It has 100% qualifying soils.
6.
This is a 71.66 acres parcel located in the community
of Federalsburg. The property is
contiguous to a proposed district property.
There is no dwelling. It has 40.4
acres of cropland and 22.164 acres of woodland.
The primary farming operation is corn, wheat and soybeans. It is owner operated and is part of a larger
operation. It has 100% qualifying soils.
7.
This is a 200.63 acres parcel located in the
community of Federalsburg. The property
is contiguous to a proposed district property.
There is one dwelling. It has
118.63 acres of cropland and 80 acres of woodland. The primary farming operation is corn, beans
and wheat. It is owner operated and is
part of a larger operation. It has 100%
qualifying soils.
8.
This is a 61.50-acre parcel located in the
community of American Corner. There is
no dwelling. It has 22 acres of cropland
and 37.95 acres of woodland. The primary
farming operation is corn, barley, and wheat.
It is not owner operated and is not part of a larger operation. It has 99% qualifying soils.
9.
This is a 111.14-acre parcel located in the
community of Federalsburg. The property
is contiguous to an easement property.
There is no dwelling. It has 40
acres of cropland and 41.14 acres of woodland.
The primary farming operation is small grain. It is not owner operated and is not part of a
larger operation. It has 99% qualifying
soils.
Staff recommends the landowner
acquire a forest stewardship plan on the property.
10.
This is a 221.74-acre parcel located in the
community of
Staff recommends the
landowner acquire a forest stewardship plan on the property.
Motion
# 11: To approve the request of John
Hammer, Daniel and Jana Hutchison, Bell Creek (154.85 acres), Donald Leishear, Donald Leishear and
Robin Zimmerman, Laura and Ronald Rogola, Linda and
Ronald Christopher, and Joyce and Lawrence Harris to establish agricultural
land preservation districts on their respective properties with appropriate
recommendations.
Motion: Chris
Wilson Second: Robert Stahl
Status:
Approved
Motion
# 12: To approve the request of Bell
Creek (433.64 acres) to establish an agricultural land preservation district
basis Board Member's belief that it is consistent with Foundation's withheld
acreage policy and County zoning subdivision rules.
Motion: Joe Tassone Second: Judith Lynch
Status: Approved
Ms. Buckle stated that
there seems to be some misunderstanding and stated that the 154.85 parcel has
no minor subdivision rights left on it.
Mr. Tassone stated that he is moving approval
for 433.64 acres; with the 15 acres that would accommodate 6 lots to be
approved on the withheld acreage because it is adjacent to another large
preservation parcel. Ms. Buckle stated
that, on 433.64 acres, the owners will still have development rights on the
property if they choose not to use them in the corners and subdivide them
separately. If they do not use the
development rights on the withheld acreage, they can still use it elsewhere on
the property. Ms. Buckle stated that, if
Mr. Tassone wanted that to part of the Board's approval, and the landowner would
agree it, that she would not have a problem with that.
Mr. Tassone stated that
he remains in agreement with his motion; otherwise, the Board will be approving
something that is inconsistent with the Foundation's withheld acreage policy.
Ms. Buckle agreed that
the landowners cannot have both lots on and off the preserved parcels, but she
did not want the landowner to be put in a situation where he could not have
child's or owner's lots if the acreage doesn't perc
on the withheld acreage. Ms. Buckle stated
that the landowner wants the lots on the acreage that is being withheld because
that is the area the irrigation does not cover.
Amended
Motion #12b: To approve the request of
Bell Creek (433.64 acres) to establish an agricultural land preservation district
with withheld acreage based on Board members' belief that the children's lots
will be placed on the withheld acreage.
If the owner has problems with perc tests, the
owner can talk to the Foundation (amendment #1).
Motion: Joe Tassone Second: Chris Wilson
Status:
Approved
Mr. Pelura
wanted to know if the owner is doing something out of ordinary by withholding
the lots. Mr. Tassone
stated that the owner is asking to withhold acreage that will accommodate six
lots. The Foundation has a policy where
the Board does not approve withheld acreage accommodating more than three lots.
Mr. Conrad wanted to
know who the designated owner of the property is. Ms. Buckle stated that she is not aware, and,
judging by the family situation, she did not believe that they will request for
an owner's lot. She wanted to know if
one of the sons requested an owner's lot, will only his children be allowed to
build houses?
Mr. Conrad responded that
all the children would be eligible within the density limitations, but only one
brother would be given an owner's lot.
Ms. Buckle stated that the landowners are not interested in an owner's
lot, and the landowners are already aware that there is only one owner's lot
per district.
Amended
Motion #12c: To approve the request of
Bell Creek (433.64 acres) to establish an agricultural land preservation
district because it does not violate the Foundation's withheld acreage policy,
with the understanding that, if there are problems with perking, the landowners
can talk to the Foundation (amendment #2).
Motion: Joe Tassone Second: Robert Stahl
Status: Approved
Ms. Weaver wanted a
clarification if the motion indicated that the landowners will not be allowed
to take family lots. Mr. Tassone responded in negative and clarified that the motion
is with the understanding that the owners will use the withheld acreage for
children's lots unless they don't perc or there is
some other reason they can't accommodate 6 lots on the withheld acreage, in
which case the Board will consider other options. For the purpose of option contracts, Ms.
Weaver wanted to confirm if the motion is putting a stipulation on the owner's
right to family lots. Mr. Tassone
clarified that the stipulation is on the children's lots.
The Board is not saying
that they can't have children's lots. If
the withheld acreage cannot perc or there is some other reason they can't get 6
lots on the withheld acreage, then the Board will consider other options.
B.
1.
This is a 68.169 acres parcel located in the
town of Newburg. There is no dwelling.
It has 68.169 acres of woodland.
The primary farming is forestry. It
is an owner operated farm and is not part of a larger operation. It has 100% qualifying soils. The landowner is withholding 1 acre for the
construction of a dwelling.
Charles Rice, Program Administrator, was
available to answer questions from the Board.
An existing gravel road provides access to the withheld acre, and the
landowner has a right-of-way easement to the withheld acre.
Motion
# 13: To approve the request of Susan
and Robert Boarman to establish an agricultural land
preservation district on their property.
Motion: Judith
Lynch Second: Chris Wilson
Status: Approved
IV. PROGRAM POLICY
A. Contract Purchasers
The Foundation has recently learned that the
legislative provisions that allowed contract purchasers to submit easement sale
applications for consideration by MALPF expired on
Pending changes to MALPF
that will likely be adopted in the 2007 legislative session may eliminate
difficulties with purchasing easements through a contract purchase by
eliminating the State requirement for an established district as an eligibility
requirement to sell an easement to the Foundation. However, the Foundation has had four requests
(two from
HB 699 (attached with the staff memo) provided
the following:
·
A landowner may file a petition on behalf of a contract purchaser
of the land with the County governing body requesting the establishment of an
agricultural district.
·
A contract purchaser of a property located in an agricultural
district established under this subtitle may offer by written application and
with written approval of the landowner to sell an easement to the Foundation on
that entire contiguous property.
While this bill provided
explicit authorization to facilitate contract purchase transactions
incorporating a sale of easement to the Foundation to help finance the
purchase, statutory language allows the Foundation to facilitate the contract
purchase incorporating easement sale.
The key is Foundation policy that currently requires easement applicants
to be in a district prior to the July 1 application deadline. This is not a requirement of statute, but a
policy adopted by the Foundation to guarantee that easement applicants (1) are
eligible, and (2) are applying to sell an easement on
the entire district. In other words, the
requirement compels applicants to resolve potential issues before application
by going through the district petition procedure.
The sole legal requirement
relating districts to the sale of easements in terms of the timing of district
establishment is that the district is in effect at the time of settlement. This has allowed the Foundation to delay
district establishment (that is, when district agreements go to recordation)
from time-to-time in response to legislative change. The Foundation did this in 2004 and is
currently doing it in response to HB 769 which allows counties to change the
term of district commitment. It also has
allowed the Foundation to amend district agreements before settlement for
compelling reasons. Finally, it allowed
the Foundation to facilitate contract purchases by delaying district
recordation until immediately before settlement.
If the Foundation wishes
to continue to facilitate contract purchases of properties using MALPF
easements, it will require a policy change to allow a separate class of
applicants (contract purchasers) to be treated differently in the application
process.
The potential benefits
include the following.
·
It will facilitate preservation of properties that otherwise would
likely not be preserved.
·
It will facilitate the continued operation of the Carroll County
Critical Farms Program that depends in part on MALPF's
contract purchase process to help young farmers purchase available farms by
using MALPF easement sales to help finance the purchase.
·
It will allow the Foundation to make the transition smoothly from
the current process of easement establishment to the expected change which
eliminates the requirement for district establishment.
The potential costs
include the following.
·
It creates two classes of applicants who are treated differently.
o
One class of applicants owns its properties and is required to make
the district commitment in advance of MALPF accepting applications.
o
The second class of applicants does not own its properties, but
have a contract of sale on the property to be preserved. While this class of applicants must go
through the standard district petition procedure, it only records that district
agreement during the settlement process.
·
Thus, equity issues have been raised concerning differential
treatment of applicants.
·
HB 699 provided explicit authorization of the contract purchase
process. The expiration of HB 699 does
not make the contract purchase impossible, but it does suggest that it is no
longer the express intent of the General Assembly that the contract purchase of
a property using MALPF easement sales to finance the purchase be allowed.
MALPF staff requests a
decision by the Board of Trustees if it wishes to adopt the policy of
facilitating the contract purchase of properties using MALPF easements to help
finance that purchase during the transition time from the explicit authority
granted by the General Assembly to the expected elimination of districts as an
eligibility requirement for easement application. MALPF staff feels that the benefits of
facilitating this process outweigh the costs.
The contract purchase nature of the transaction creates the requirement
for separate classes of applicants who can be treated differently in the
application process.
Mr. Colhoun commented
that this helps the young farmer or the person who wants to buy a piece of land
to put it under easement and to use the easement money as a down payment or to
pay down under debt.
Mr. Tassone wanted to know if the Foundation has
unknowingly taken any action after
Ms. Weaver stated that the Foundation staff
realized this only when one program administrator had a question about a
specific issue. Ms. Weaver tried looking
at the statute and codes. Since she was
aware that Mr. Bill Powel uses these statutes, she asked Mr. Powel as to where
she could find them in the statute. Mr.
Powel faxed the relevant sheets, and Ms. Weaver realized the statute had
disappeared. Ms. Weaver got in touch
with Ms. Forrester. Ms. Forrester looked
into it and informed her that the statute had a sunset provision. The Foundation did not do anything knowingly,
and there has not been a major demand for the requests.
Mr. Klasmeier wanted
to know from Mr. Nielsen that, if the Foundation continued with the practice,
will it be acting outside the law.
Mr. Nielsen stated that it is an issue of
interpretation. He and Mr. Conrad have
been discussing this issue for quite some time and have spoken to Ms. Forrester
about it. Mr. Nielsen believed that the
bill HB 699 was introduced to clarify the Foundation's existing authority
allowing the Foundation to exercise discretion on this matter. Manry bills gets introduced where legislation is unnecessary
because the authority already exists. If
the Foundation wants a clarification of the existing authority, it can put
forward legislation. Alternatively, if
the Board wants contract purchasing to continue, it can interpret to allow
acquiring easements through the contract purchase process.
Mr. Klasmeier was
concerned about the 5-year sunset provision in the legislation. Mr. Nielsen stated that there is a strong
presumption that if a statute expires, the authority does not continue. If we go to the court, the judge will sustain
it. The Board has the right to decide
which way it would like to proceed.
Mr. Beach has stated in the recent cycle he has
come across a property in
Mr. Tassone stated that the action supports the
intent and purpose of the program, and it is not precluded in the enabling
legislation.
Mr. Doug Wilson stated that there might be a
reason for the bill to have had a 5-year sunset provision, but there is no
documentation explaining the legislative action. However, in the recent past, there have been
a variety of statutes passed encouraging the Foundation to create incentives
for critical farms, next generation farms, young farmers, and so on. With this perspective, he found it reasonable
to move forward in this easement cycle.
This move will allow more flexibility to purchasers of farmland. If the Foundation did not do this, the
purchaser will not be able to get owners' lot rights (as they will be
subsequent purchasers).
Mr. Klasmeier
suggested passing this to the legislative policy committee, explaining the
circumstances. The policy committee is a
group that one can approach in between sessions of General Assembly. That way the Foundation can have the
preliminary sanction, and next year the Foundation can get a legislative
sanction.
Mr. Doug Wilson agreed, but stated the only
issue will be the Foundation has to wait until July or August to meet
legislative policy committee. The
original landowner will have to file his district or easement application
before
Mr. Klasmeier was
concerned about the sunset provision and believed, if the request is approved,
the Board is committing itself to a course that is irreversible in terms of
consequences.
Mr. Doug Wilson stated that the State has also
moved a bill to do away with districts, and that is the guiding principle. If this legislation had become effective
Motion
# 14: To approve the request to allow
the staff to utilize contract purchases for FY 07 cycle given the fact that the
general assembly has expressed intent for the Foundation to create programs
that allow new and young people to enter MALPF Program.
Motion:
Doug Wilson Second: Chris Wilson
Opposed: Jerry Klasmeier
Status: Approved
C.
Regulation – Transfer of a
TITLE 15
DEPARTMENT OF
AGRICULTURE
Subtitle 15
PRESERVATION FOUNDATION
Chapter 04 Transfer of a
Preservation Easement
for a Landowner or Child
Authority: Agriculture
Article, ''2-504 and 2-513,
Annotated Code of
.01 Scope.
This chapter explains when a lot, originally released by
the Foundation to a landowner or landowner's child for their use and occupancy
on a farm, may be transferred to another person under
the Maryland Agricultural Land Preservation Program. The lots permitted to be released from the
Deed of Easement under this chapter are restricted under the terms of each
agricultural land preservation easement; they are intended only for the limited
purpose of constructing a dwelling for the landowner who transferred an
easement to the Foundation or for the landowner's child, thereby allowing that
landowner=s immediate family to
live on the farm. Except
as provided by this chapter, these dwellings or lots may not be transferred to
any other person.
.02 Definition.
A. In this chapter, the following term has
the meaning indicated.
B. Term Defined.
(1) "Child" means the child of the
landowner who sold or transferred an agricultural land preservation easement to
the Foundation.
(2)
"Dwelling" means the dwelling house, including lot
acreage, allowed to be released under '2-513 of the Agriculture Article and under the
terms of an agricultural land preservation easement, for the use and occupancy
of a landowner or landowner=s child on the farm.
(3)
"Landowner" means the landowner who sold or transferred
an agricultural land preservation easement to the Foundation.
(4) "Farm" means the land
encumbered by the agricultural land preservation easement.
.03
Upon approval and release by the Foundation,
only a landowner who sold or transferred an easement to the Foundation has the
right to construct a dwelling on a lot on the farm for the bona fide use and
occupancy of the landowner or a child.
.04
A. The Foundation may not approve a
landowner=s request for the
release of a lot for the construction of a dwelling unless the landowner
complies with the requirements of COMAR 15.15.01.17C that include the
submission of a declaration to the Foundation that the dwelling to be
constructed (or in the case of a pre-existing dwelling, already constructed)
will be occupied by the landowner, in the case of landowner=s lot, or by a child, in
the case of a child's lot.
B. After Foundation approval, the release
of the lot shall consist of two parts, a preliminary release and a final
release, as specified in Agriculture Article 2-513, Annotated Code of Maryland.
.05
A. A landowner or child who has a lot
released under the terms of the easement shall occupy the dwelling constructed
thereon and may not transfer or lease the lot to any person, except:
1. After 5 years
from the date of the Foundation=s final release for the lot;
2. Upon notice to
the Foundation of a transfer pursuant to a bona fide foreclosure of a mortgage
a deed of trust or to a deed in lieu of foreclosure;
3. Upon the death
of the landowner or child;
4.
Upon a decree of divorce where the landowner or child is ordered
to sell or transfer the lot as part of a bona fide property settlement;
5.
Upon a change of employment location of the landowner or child
where the Foundation determines that it would be impractical for the landowner
or child to commute to the new work location; or
6.
Upon any other circumstance, as determined by the Foundation,
where it would be impossible for the landowner or child to occupy the dwelling.
B. A landowner or child who has a lot
released under the terms of the easement may not transfer or lease the lot if a
dwelling has never been constructed thereon.
.06 Easement Violation.
A person who transfers a lot in violation of
this chapter is in violation of the agricultural land preservation easement
applicable to the farm.
Board members discussed
the issue of the proposed regulations on the transfer of released lots and
suggested few corrections.
Motion #15: To approve the regulations subject to
minor edits.
Motion: Doug Wilson Second: Joe
Tassone
Status: Approved
There being no further business, Mr. Colhoun asked for a motion for adjournment of the meeting.
Motion #16: To adjourn regular session.
Motion: Joe Tassone Second: Chris Wilson
Status: Approved
The regular session of the Board meeting was
adjourned at approximately
Respectfully
Submitted:
_____________________________________
Rama Dilip, MALPF Secretary
_____________________________________
James
A. Conrad, Executive Director