MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION

MINUTES

September 26, 2006

TRUSTEES PRESENT:

Daniel Colhoun, Chairman

Vera Mae Schultz, Vice Chairman

Howard S. Freedlander, representing Treasurer Kopp

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:

Shirley W. Pilchard

OTHERS PRESENT:

Anne Bradley, Frederick County, Agricultural Preservation Planner

Tammy Buckle, Caroline County, Program Administrator

Yates Clagett, Prince George’s County, Program Administrator

Carol Council, MALPF Administrative Officer

Rama Dilip, MALPF Secretary

Sherrie Doody, Landowner, Frederick County

Dwayne Embert, Landowner’s representative, Queen Anne’s County

Nancy Forrester, Assistant Attorney General, Department of General Services

Kathy Gordon, Landowner, Frederick County

Carmela Iacovelli, Baltimore County, Natural Resource Specialist

Susan P. Kelley, Landowner, Frederick, County

Charles Rice, Charles County, Program Administrator

Daniel Rosen, Planner, Maryland Department of Planning

Eric Seifarth, Washington County, Program Administrator

Donna K. Landis-Smith, Queen Anne’s County, Program Administrator

Holly Thibault, Washington County, Land Preservation Planner

Elizabeth Weaver, MALPF Administrative Officer

Jenny Plummer-Welker, Calvert County, Program Administrator

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

The Chair asked the guests to introduce themselves.

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

A. APPROVAL OF MINUTES OF THE REGULAR MEETING OF AUGUST 22, 2006

Motion #1: To approve the minutes of August 22, 2006 with amendments.

Motion: Joe Tassone Second: Vera Mae Schultz

Status: Approved

B. ADDITIONS OR DELETIONS OF AGENDA ITEMS:

03-90-15Ae Lucas, Dale Added

Previously Approved Child’s Lot – Modifications: Violations on Easement Property (For Informational Purposes Only – No Board Action Necessary)

Item II.D.1. 03-02-10 Elseroad, Samuel G. & Ruth L. Pulled

Item IV. Wetland Mitigation Easements – Added

an update by Mr. Joe Tassone

Mr. Colhoun stated that at the conclusion of the regular agenda items, interim reports of the Working Committees would be shared by the respective Committee Chairmen. Mr. Colhoun hoped the final reports would be available beginning in October and would be helpful in establishing guidelines for MALPF. Subsequent to this, the MALPF Board will undertake their review, and it is expected that the Board should be able to take an appropriate action by January 2007.

II. DISTRICT /EASEMENT AMENDMENTS

A. FREDERICK COUNTY

1. 10-82-12 Poole, Dan, et al. 240.05 acres

Request for the relocation of two child’s lots

Dan Poole and others are the original grantors of the easement. The current request is to relocate two previously approved child’s lots.

In 1998, the Foundation approved five child’s lots on the property while it was under district status. The approved lots were located immediately adjacent to one another along the northern edge of the property. The landowners wish to relocate two of the lots to a location on the southern edge of the property (see map attached with agenda memo).

According to Frederick County, the proposed lots will be accessed directly from the road. The proposed locations follow the Foundation’s lot location guidelines: they are clustered with an existing dwelling and are located along the road.

The request was approved by the local advisory board and conforms to local planning and zoning regulations. The local advisory board’s recommendation for approval was subject to the condition that the three remaining child’s lots be clustered with an existing lot located along the road on the northern end of the property.

Foundation staff recommends the relocation of the lots because the new locations follow the Foundation’s lot location guidelines. The Foundation’s approval should follow the recommendation of the local advisory board; i.e., the approval should be conditional upon the subsequent clustering of the remaining lots with the existing dwelling along the northern edge of the property.

Kathy Gordon and Susan P. Kelley, representatives of the landowners, and Anne Bradley, Frederick County, Agricultural Preservation Planner, were present at the meeting to answer questions from the Board.

Ms. Kelley introduced herself as the oldest daughter of Mr. Dan Poole. Her sister, Patricia Ground, is one of the children to be the recipient of one of the two lots requested. Ms. Kelley’s sister lives in Missouri. The family is trying to get the lot relocated next to the residence on the farm that is still Mr. Poole’s residence. The plan is that Ms. Kelley’s sister can spend half of the year helping Ms. Kelley to meet the health care of their father.

The dwelling adjoins one of the two lots requested. As a family, they are trying to work through the finalization of a family farm operation, allowing Mr. Poole’s house to eventually be pulled off the farm on two acres and deeded to Ms. Kelley and her sister. The two sisters will then own the two adjoining properties. The original child’s lot location was located in highly productive acreage. In 1972, Ms. Kelley was deeded the building lot off the farm.

Ms. Kelley stated that the family felt that the acreage it is proposing for the relocation of the two lots is using up probably not the most productive land on the farm. It is at the end of the farm, separated by Mr. Poole’s residence, and it is very difficult to move large equipment in the area.

This proposal helps the family by eliminating areas difficult to maintain, and it facilitates the needs of Ms. Kelley and her sister. Ms. Kathy Gordon’s brother, Joe, is thinking of taking one of these lots, and Ms. Kelley’s sister is to get the other lot. Ms. Kelley stated that Mr. Poole and Ms. Gordon’s mother are siblings and both of them are the original owners of the farm.

Ms. Kelley has one sister, and Ms. Kathy Gordon has three brothers and sisters; between the two families, six children are involved. Mr. Dan Poole had wanted them to work together as a family to maintain good family relationships and farm operations. The two families have worked together and it is beneficial for them to move forward with this request.

Ms. Kelley and Ms. Gordon knew that the lots have been designated for the children, but were not aware which lot was designated for which child. Mr. Dan Poole had put the land under preservation, and now the next generation is trying to live with what has been done and are trying to make it workable for the family.

Doug Wilson, representing Secretary Riley, Department of Agriculture, suggested approval and recommended that the staff and the family get together to reconfigure the remaining lots adjacent to the existing lot that was excluded originally.

Motion #2: To approve the request of Mr. Dan Poole, et al., to relocate two child’s lots with a recommendation that the staff and the family get together to reconfigure the remaining lots adjacent to the existing lot that was excluded originally.

Motion: Doug Wilson Second: Howard Freedlander

Status: Approved

Mr. Wilson pointed out the need to update the easement records indicating who currently owns the easement. Ms. Kelley stated that the farm was deeded to the Gordon family around 7 to 8 years ago. Mr. Wilson stated that under normal circumstances, when the settlement is done, information about the transaction should have been communicated to the Foundation by the local Government.

2. 10-97-01 Doody, Robert A. & Sherri 93.00 acres

Request for the exclusion of two child’s lots on easement property

Mr. and Mrs. Doody are the original grantors of the easement. The current request is for the release of up to two acres each for two child’s lots for the personal use of their sons, Robert and Kenneth.

There is one pre-existing dwelling on the property. No other lots were approved on this property. At the August, 2006, Board meeting, a tenant house was approved by the Foundation. The Doodys do not own any additional district or easement properties. An owner’s lot is also being requested at this meeting.

The lot locations follow the Foundation’s lot location guidelines. According to Frederick County, the proposed lots are to be located in a corner along the road, with direct access to the road. The lots are adjacent to an existing subdivided lot.

The request was approved by the local advisory board and conforms to local zoning regulations. If approved, there will be a required payback of $1,695.00 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.

Mrs. Doody and Anne Bradley, Agricultural Preservation Planner, were present at the meeting to answer questions from the Board.

Mrs. Doody stated that her husband’s health is not too good. They are requesting a lot to put up a house that could be handicapped accessible. Her children are aged 21 and 31. The children did not want to farm when they were younger, but now they want to be closer to the farm, and, therefore, the Doodys are making the current request.

The house in which the Doodys are currently living is the farmstead and will remain part of the farm. Robert Stahl, Board member, was concerned about subdivision. Mrs. Doody confirmed that a subdivision is not planned.

Mr. Doug Wilson stated that the owner’s lot is a separate request to be heard later in the agenda.

Mr. Doug Wilson stated that if the owners want to subdivide the existing dwelling, it could still be done. The only way to preclude that is to request that there would be no other subdivisions for the pre-existing dwelling. Mr. Doug Wilson stated that the owners have a right to subdivide. There is a pre-existing dwelling with a right of being subdivided from the farm.

The current instance is a case of an older easement. On older easements, the owners can come the next day and express their desire to subdivide the pre-existing dwelling and x number of acres around it off the farm. The Foundation would like this not to happen so that there is an ownership interest with the rest of the farm for farmstead type of arrangements, but this is not a requirement of the Foundation’s older easements.

Ms. Weaver clarified that an owner can exclude an existing dwelling on the new easements, but the owner must use a lot right to exercise that option, either as an unrestricted lot or as a family lot. (The Foundation refers to easements approved by Board of Public Works after October 1, 2003 as new easements.)

Motion #3: To approve the request of Mr. and Mrs. Robert Doody for the exclusion of two child’s lot on easement property.

Motion: Doug Wilson Second: Pat Langenfelder

Status: Approved

3. 10-97-01 Doody, Robert A. & Sherri 93.00 acres

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

Mr. and Mrs. Doody are the original grantors of the easement. The current request is for the release of up to two acres for an owner’s lot for a dwelling for their personal use.

There is one pre-existing dwelling on the property. No other lots were approved on this property. At the August, 2006 Board meeting, a tenant house was approved by the Foundation. The Doodys do not own any additional district or easement properties. Two child’s lots are also being requested at this meeting.

The lot location follows the Foundation’s lot location guidelines. According to Frederick County, the proposed lot is located along the road, adjacent to an existing subdivided lot with direct access to the road.

The request was approved by the local advisory board and conforms to local zoning regulations. If approved, there will be a required payback of $1,695.00 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.

Mrs. Doody and Anne Bradley, Agricultural Preservation Planner, were present at the meeting to answer questions from the Board.

Mrs. Doody stated that they had a pre-perc, and it perced conventionally and, therefore, were confident that they would not need more than an acre.

Motion #4: To approve the request of Mr. and Mrs. Robert Doody to exclude an owner’s lot on easement property.

Motion: Pat Langenfelder Second: Joe Tassone

Status: Approved

4. 10-93-03 Smith, Walter, et al. 95.9 acres

Request for the exclusion of up to 2 acres for a child’s lot on easement property

Mr. Smith, et al., 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 Thomas H. Smith, Jr., child of an owner.

There is one pre-existing dwelling on the property. The Smiths do not own any additional district or easement properties.

The lot location is consistent with the Foundation’s lot location guidelines. According to Frederick County, the proposed lot is to be located along the road, in a corner of the property with direct access to the road. While the lot is not clustered with existing dwellings, it is located across the road from several subdivided residential lots.

The request was approved by the local advisory board and conforms to local zoning regulations. If approved, there will be a required payback of $2,723.00 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.

Ms. Bradley, Agricultural Preservation Planner, was present at the meeting to answer questions from the Board. Ms. Bradley stated that Mr. Smith wanted to attend the Board meeting, but since he was away on a planned family vacation, he could not be present.

Joe Tassone, representing Secretary Scott, Department of Planning, wanted to know about the rules governing children’s lots when there is more than one owner.

Carol Council, MALPF Staff, clarified that, on older easements, any of the owners’ children are eligible for a lot to a maximum of 1 per 20 acre with a maximum of 10 lots. If there are two owners and five children all five children will be entitled, but there will be only one owner’s lot.

Motion #5: To approve the request of Walter Smith et al. to exclude up to 2 acres for a child’s lot on easement property.

Motion: Doug Wilson Second: Jerry Klasmeier

Status: Approved

B. QUEEN ANNE’S COUNTY

1. 17-00-04 Kinnamon, Dale P. & Gayle A. 126.386 acres

Request for the exclusion of up to 2 acres for a child’s lot on easement property

Mr. and Mrs. Kinnamon 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 daughter, Kelly M. Embert.

There is one pre-existing dwelling on the property. A child’s lot was approved for another daughter, Robin Parker, when the property was under district status. The Kinnamons do not own any other district or easement properties.

While the proposed lot is to be located along the road, it does not follow the Foundation’s lot location guidelines. The lot is not located in a corner of the property nor is it clustered with existing dwellings or previously approved lots. According to Queen Anne’s County, the county’s subdivision regulations will not allow another lot to share the access currently used by the pre-existing dwelling, Robin’s lot and an adjoining subdivided lot. The lot was not located in the corner of the property because the soils in that area are not expected to perc. The proposed lot would be accessed by a 300’ in-fee driveway. Kelly Embert has young children and wants a long driveway because of safety concerns.

The request was approved by the local advisory board and conforms to local zoning regulations. If approved, there will be a required payback of $1,002.62 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. Foundation staff has advised the County Program Administrator that it is possible that the Foundation may not approve the requested location. If approved, the Foundation should request that the deed include an easement granting the farmer of the main property the right to cross the access driveway for agricultural purposes.

Donna Landis-Smith, Program Administrator was present at the meeting to answer any questions from the Board. The landowners were not present, but Dwayne Embert, Mr. Kinnamon’s son–in–law, and Mrs. Kelly Embert’s husband, was available at the meeting. Mr. Embert came in the morning and was told about the need to have an alternative location.

Mr. Embert is also considering a lot on the fields that are directly behind the designated lot, but there are certain soil issues. The corners of the fields (as displayed in the map) have wet areas and therefore will not perc. The County has already spoken to Mr. Embert about the existing land that goes up to Mr. and Mrs. Kinnamon’s and Ms. Robin’s home, and the front lot that was excluded on the previous subdivision. So there are already three homes that are using the driveway, and the County will not allow an additional lot to use the existing lane.

Mr. Embert stated the area on the right of the house on the road did not perc.

Mr. Doug Wilson wanted to know about the statement that the County would not allow another driveway off the main drive. He wanted to know if it is a subdivision rule or a policy decision of the County.

Mr. Embert stated that his father-in-law told him about this. T he driveway is L-shaped. One side of the driveway comes out to the main driveway. The County counts it as an access from the driveway.

Mr. Doug Wilson commented that it looked like a rule and not a policy decision.

Mr. Colhoun commented that this rule does not preclude the owners from building a new driveway. If the owners chose to, they can build a driveway parallel to the existing driveway. Mr. Embert stated that the left of the driveway had perc issues.

Ms. Landis-Smith located Frances’ house alongside the existing lane that goes back to the farm house. That was part of the subdivision of the older son. Ms. Landis-Smith was not sure if it would be feasible to go through the left of the driveway (left of Frances’s lot). The area is very wet; and may involve a lot of work to put a driveway that will drain properly. Locating a lot to the right of Frances’s lot might be a possibility. Directly back in the corner is a second choice. To access the lot at the back there would need to be a driveway. Directly behind, in the field, is another option.

Mr. Embert stated that, for safety reasons, he would not like to consider the option in the field. It is a very crowded road and prone to accidents. The location is 15 – 17 miles from Delaware.

Mr. Tassone stated that, based on the Foundation’s lot guidelines, the location of the lot to the right of Frances’s lot will be the one that is best suited.

Mr. Embert commented that he understands Mr. Tassone’s perspective, but is concerned about the safety of his four-year-old daughter.

Mr. Colhoun commented that the MALPF Board has formulated lot location guidelines. If the lot is to be located at an alternative location, the Board needs the proposed drawing and time to properly react to the alternative location.

Motion #6: To table the request of Mr. and Mrs. Dale Kinnamon for the exclusion of up to 2 acres until the landowner can consider other possibilities.

Motion: Vera Mae Schultz Second: Howard Freedlander

Status: Approved

Mr. Colhoun suggested that Mr. Embert should get together with MALPF Staff to understand the guidelines and move forward.

Mr. Doug Wilson asked Ms. Landis-Smith to find out at the County level if there is a possibility for the current landowner to ask for an exemption from their rule about the number of lots on the driveways.

C. GARRETT COUNTY

1. 11-91-02 Wilhelm, Gilbert, Sr. & Mary A. 270.49 acres

Request to exchange equal area of easement property for non-easement property

Mr. and Mrs. Wilhelm are the original grantors of the easement. The current request is for approval to exchange 4 acres of easement property for 4 acres of non-easement property.

The Wilhelms withheld three areas comprising 36.175 acres from the district/easement. The areas included a 4-acre parcel, an 8-acre parcel and a 24.175–acre parcel. Mr. and Mrs. Wilhelm are requesting approval to remove 4 acres surrounding barns and a riding arena from the easement. In exchange, they propose to add a 4-acre parcel (half of the 8-acre parcel withheld from the easement) to the easement.

Mr. and Mrs. Wilhelm are making the request because they are experiencing financial hardship due to heavy capital investment in the barn and arena. They are unable to pay the mortgage.

According to Garrett County, both the area to be removed and the area to be added contain Class III soils. The area proposed to be added to the easement is woodland.

Mr. Wilhelm has not yet disclosed his proposed use of the 4-acre area that would be removed from the easement. He has disclosed only that the use will be non-agricultural. Foundation staff has requested that Mr. Wilhelm inform the Foundation of his plans for the area. It is possible that, if disclosed, the Foundation would find his intended use not objectionable. At the Foundation staff’s request, John Nelson, Garrett County Program Administrator, has informed Mr. Wilhelm that the Foundation’s Board will likely table the request if he does not disclose his intended use of the property. Mr. Nelson also informed Mr. Wilhelm that it would be advisable for him to attend the meeting to answer questions from the Board.

The acreage exchange was approved by the local advisory board and is consistent with local zoning regulations. A minority of the advisory board recommended that Mr. Wilhelm should add 6 acres to the easement.

Staff recommends that the Board request that Mr. Wilhelm disclose his planned use of the 4-acre parcel to be removed from the easement prior to voting on the request. The 4-acre area that would be removed is located in the center of the property; an undesirable use may negatively impact the future agricultural use of the easement property. Additionally, if approved, Foundation approval should be contingent upon a satisfactory review by the Office of Real Estate, Department of General Services, for a determination of the impact of the proposed exchange on the value of the easement.

Motion #7: To table the request of Mr. and Mrs. Gilbert Wilhelm for an exchange of an equal area of easement property for non-easement property.

Motion: Chris Wilson Second: Pat Langenfelder

Status: Approved

Mr. Stahl pointed out that Mr. Wilhelm has excluded 36 acres (24.175 + 4 + 8 acres excluded). Mr. Stahl recommended that MALPF staff should speak to Mr. Wilhelm and suggest that he exclude acreage in such a way that it involves an area along the edge of the property rather than the area in the middle of the property. Mr. Wilhelm should not be allowed to take out 4 acres right in the middle of the property. Mr. Stahl also believed that there should be some way to provide access to the road.

Ms. Weaver stated that the reason that Mr. Wilhelm chose the area is because of the location of the barn and the arena. Mr. Wilhelm has invested heavily in that area. Mr. Stahl reiterated that Mr. Wilhelm should be encouraged to exclude enough acreage to be able to take it up to the edge of the property rather than in the middle of the property.

Jerry Klasmeier, representing Comptroller Schaefer, wondered if the landowner would be informed of the Board’s decision and the reasons for tabling the request.

Mr. Colhoun agreed and commented that the MALPF Executive Director will write a letter stating the information required by the MALPF Board and the need for Mr. Wilhelm to be present at the meeting to answer the Board’s questions. Mr. Colhoun suggested the letter should also include Mr. Stahl’s suggestion on total acreage of the swap and configuration.

D. BALTIMORE COUNTY

1. 03-04-02 Hayden, David & Joann 72.00 acres

Request for a tenant house on district property

Mr. and Mrs. Hayden are the original owners of the district property. The current request is for a tenant house for the use of tenants fully engaged in the operation of the thoroughbred breeding operation.

The proposed tenant house would be occupied by Richard Payne and his wife. Mr. Payne would manage the weaning, yearling and sales operation and supervise nine employees, including Mrs. Payne. The operation includes 78 horses and covers three farms with a total acreage of 185 acres. According to Mr. Hayden, both Mr. and Mrs. Payne will derive 100% of their income from the horse operation.

According to Baltimore County, the proposed tenant house would be located at the rear of the farm in a wooded area, adjacent to a pasture. Access would be from an existing farm lane.

The Baltimore County advisory board visited the site and interviewed the landowner. The local board voted to recommend the request. The request conforms to local zoning regulations.

Staff recommends approval in accordance with Agricultural Article, Section 2-513(b)(4), Annotated Code of Maryland, which provides for an exception to the one tenant house per 100 acres restriction at the discretion of the Foundation’s Board of Trustees, when a landowner can demonstrate a compelling need. The Haydens’ operation appears to meet the criteria because the operation requires several full-time employees.

Mr. David Hayden and Carmela Iacovelli, Baltimore County, Natural Resource Specialist, were present at the meeting to answer questions from the Board. Mr. Hayden briefed the Board members about his operations. Howard S. Freedlander, representing Treasurer Kopp, informed the Board members that he visited the farm and found the farm operations to be very impressive.

Tammy Buckle, Program Administrator, Caroline County, asked if there were size restrictions on tenant houses. Ms. Weaver stated that the regulations do not provide specific size restrictions. Ms. Weaver stated that she would get back to Ms. Buckle with more information about tenant house restrictions.

Motion #8: To approve the request by Mr. and Mrs. David Hayden for a tenant house on district property.

Motion: Robert Stahl Second: Pat Langenfelder

Status: Approved

E. WASHINGTON COUNTY

1. 21-98-10A Martin, John & Jeanne 54.66 acres

Request for a partial termination of district property

Mr. and Mrs. Martin are the original owners of the district property. There is one pre-existing dwelling, and the landowners have not requested any lot exclusions. On December 4, 2001 the Foundation approved the exclusion of a 1.0-acre lot around a second pre-existing dwelling. A 1.79-acre building lot was withheld from the district because it was not contiguous to the remainder of the farm. The current request is for the partial termination of 16.7926 acres of district property.

According to Washington County, the landowner is having health problems and wishes to downsize the size of his orchard. If the request is approved, no more than three (3) development rights may be associated with the 16.7926-acre parcel. The remaining 37.8674 acres will consist of 80% soils classes II and III.

This request has been approved by the local advisory board and meets all Planning and Zoning requirements.

Foundation staff recommends approval of the partial termination as it consistent with the Foundation’s policy on withheld acreage/partial termination (copy attached with staff memo) and the property will continue to meet the Foundation’s size requirement because it is located adjacent to another MALPF district.

Eric Seifarth, Program Administrator and Holly Thibault, County Land Preservation Planner, were present at the Board meeting to answer any questions from the Board.

Mr. Doug Wilson wanted to know if this district was established more than 5 years ago. Mr. Seifarth confirmed and stated that the district was established in 1998.

Ms. Council informed the Board members that historically both Washington County and Anne Arundel County have asked landowners to sign, not a 5-year, but a 10-year district commitment. However, the MALPF Board has historically allowed Washington and Anne Arundel County landowners to terminate their districts once they met the Foundation’s requirements of 5 years. Ms. Council stated that the Martins have not met the County’s 10-year commitment, but have met the Foundation’s 5-year commitment.

Mr. Seifarth stated that the landowner is trying to sell to the highest bidder. The landowner has informed the County of his intention to allow only one house. When Mr. Seifarth spoke to the planners, he was told that the Martins could get as many as 3 houses.

Motion #9: To approve the request of Mr. and Mrs. John Martin for a partial termination of district property with a condition that the staff write a letter to the landowner indicating a loss of development rights and the impact it will have on the potential future easement sale.

Motion: Doug Wilson Second: Jerry Klasmeier

Status: Approved

Mr. Colhoun wanted to know what development rights would remain on the remaining 37.86 acres. Mr. Seifarth stated that, in Washington County, it is 1 house per 5 acres. Additionally there will be three bonus lots. There would be 10 lots on the original parcel.

At 10:35 a.m., Mr. Colhoun had to attend another meeting in Washington, DC. Vera Mae Schultz, Vice Chairman, took over as Chair. Mr. Colhoun was attending the meeting at Representative Bartlett’s Office on the FRPP Program. Mr. Colhoun and Mr. James Conrad, MALPF Executive Director, would be representing MALPF in this meeting.

2. 21-91-14 Howell, William J. 146.81 acres

Request for a partial termination of district property

Mr. Howell is the subsequent owner of the district property. There are three pre-existing dwellings and no lot exclusions have been taken by the original owners. A 3.0-acre parcel was withheld from the district. The current request is for the partial termination of 5.0 acres of district property.

According to Washington County, the landowner wishes to convey the 5.0-acre parcel to an adjoining landowner to be added to his residential lot and used for agricultural purposes. If the request is approved, no development rights will be associated with the 5.0-acre parcel. The remaining 141.81 acres will consist of 64% class III soils.

This request has been approved by the local advisory board and meets all Planning and Zoning requirements.

Foundation staff recommends approval of the partial termination because it consistent with the Foundation’s policy on withheld acreage/partial termination (copy attached with staff memo).

Eric Seifarth, Program Administrator was available at the meeting to answer questions from the Board. Mr. Seifarth informed the Board members that the owner’s neighbor wants to put up a barn for the agricultural use assessment and that is the main purpose of this request. Mr. Howell is selling the 5.0-acre parcel to the neighbor. Mr. Howell has been in the program for sixteen years.

Motion #10: To approve the request of Mr. William Howell for a partial termination of district property.

Motion: Chris Wilson Second: Howard Freedlander

Status: Approved

Mr. Doug Wilson wanted to know why there is no lot right associated with the 5.0-acre parcel. Mr. Seifarth stated that the County Planning and Zoning Department wants this to be attached to the residential property. Once this lot is created, there is one house on the property. There will be a total of 6.2 acres, and the County needs 10 acres to get additional rights.

Mr. Doug Wilson advised MALPF Staff to make sure that the landowners understand that, if they apply for an easement in the future, this transaction would cost them one development right. Mr. Tassone remarked that the landowner also loses points under the priority easement ranking system if they have subdivided or developed any property.

IV. PROGRAM POLICY

Wetland Mitigation Easements – an update by Mr. Joe Tassone, Chair, Wetland Mitigation Committee

Mr. Tassone informed the Board about the progress made by the Wetland Mitigation Committee and summarized its recommendations:

Likely Recommendations

Adopt a policy that the Foundation generally discourages wetland mitigation on MALPF easements and districts, but will consider wetland mitigation proposals from landowners on a case-by-case basis.

Evaluate proposals that would

· Allow mitigation affecting limited acreage on a farm,

· Achieve legitimate resource conservation purposes, and

· Ensure that mitigation does not compromise a farm’s production potential for agriculture or forestry.

Use a two-step procedure to accomplish this:

· Screen applications by requiring that they pass several tests before the Board of Trustees will consider them for approval or rejection.

· Make final decisions based on Board judgment in combination with a set of appropriate criteria.

Emphasize three fundamental criteria, and support both steps in the procedure through collaboration with sister agencies.

· Legitimate resource conservation purpose. Verification by sister agencies that the stated resource

· Conservation purposes of the wetland mitigation project are legitimately served by the proposal submitted, followed by determination by the Board that those resource conservation purposes complement the Foundation’s interest in the property as a farm capable of supporting profitable production under sound resource stewardship.

· Appropriate size, extent, and effects on production potential. Verification by sister agencies that the size, extent of land, and soils affected by the proposed project are appropriate for the stated resource conservation purposes, and determination by the Board that the project will not remove an amount of land from production that might compromise the Foundation’s interests in the property.

· Appropriate development enabled by mitigation. Verification by sister agencies that the development project facilitated by the proposed mitigation is approved by local government and is consistent with state and local plans, policies, and programs, and subsequent determination by the Board that the project is not in conflict with the Foundation’s goals and objectives.

We make specific recommendations to show how these criteria can be used in both steps of the process.

When projects meet the above criteria and are to be approved by the Foundation, we recommend that the Foundation allow

· Overlay wetland mitigation easements on approved acreage, and

· Overlay easement payments (i.e., the amount of money paid to the landowner for overlay easements) to be determined by the market, i.e., landowners and developers.

Unresolved Issues

A. The Committee has not yet reached a conclusion about two closely related issues that must be decided: whether or not to require payback from landowners for land removed permanently from production, and whether or not to release said land from the Foundation’s easement as part of the transaction.

Alternative points of view:

· Payback is justified for wetland mitigation as it is for children's lots. Both take land out of production, and both create income potential for doing so.

· Payback almost unavoidably means releasing the mitigation land from the Foundation’s easement, and that means that MALPF loses all rights to influence what happens on the land, which is an integral part of the farm landscape, forever. In addition, the Committee’s proposed guidelines for mitigation approval will guarantee that almost all the land used will have limited or no production potential, so little productive land will really be taken out of production. The recommended procedure will also ensure that most, if not all approved wetland mitigation will, in fact, enhance resource conservation on the farm and therefore advance the Foundation's goals, which are not just about the number of acres in production.

B. Some Committee members are not comfortable with the recommended policy to generally “discourage wetland mitigation on MALPF easements and districts.” Further discussion may be needed.

C. One aspect of our recommendations will be to establish absolute limits on the amount of acreage that can be used for a mitigation easement. But there is not final complete agreement on how to compute those limits, and if limits should be looser if the mitigation is taking place on non-qualifying soils. Discussion pending.

D. Possible unresolved issues regarding the type of development enabled by mitigation, and how to handle the subject. Discussion pending, probably okay.

E. Possible concerns remain about State easements being used to provide a land base for developers’ mitigation projects. Discussion pending.

F. Other possible concerns. All Committee members have not commented on the 9/13/06 revised draft of the final report, and may have other concerns.

Mr. Stahl commented that one of the on-going concerns for the MALPF Board is the creation of an incentive for development on one side using preserved land, and how that counteracts with progress towards land preservation on the other. Mr. Stahl believed that one of the unresolved issues is the problem that the MALPF Board is going to face. Maryland continues to grow at a rapid rate. The successful programs in Maryland are based on TDR or PDR programs that facilitate an income. One of the challenges is to constantly look at that in the future; development in some ways pays for preservation.

Mr. Stahl stated that the focus has been on whether mitigation facilitates development. He stated that surely it does. However, in some instances, like the successful TDR programs in Montgomery or Howard County, they are successful in doing similar types of things. It is development process that is helping the success of TDR programs. Mr. Stahl believes that as long as it is not something that affects the agricultural viability of the farm, it is acceptable.

Uses Committee – an update by Mrs. Schultz, Chair, Uses Committee

Mrs. Schultz informed the Board about the progress made by the Uses Committee and stated that the Committee is very close to getting ready to submit a report to the MALPF Board. She thanked the members of the Committee and MALPF Staff for their contributions.

Equine Committee – an update by Mr. Howard Freedlander, Chair, Equine Committee

Mr. Freedlander informed the Board members about his visit to the horse farm and stated that it was a very meaningful visit. The Committee is discussing the uses that are allowed in terms of agricultural uses. The Committee has members from the Horse industry participating in the discussions and will be meeting again soon.

Mr. Doug Wilson stated that the Maryland Department of Agriculture has always considered equine operations as part of agriculture.

V. INFORMATION AND DISCUSSION

03-90-15Ae Lucas, Dale 84.50 acres

Previously Approved Child’s Lot – Modification; Violations on Easement Property

(For Informational Purposes Only - No Board Action Necessary)

At its November 25, 1997, meeting, the Foundation’s Board of Trustees reviewed the following three items pertaining to the Edgar M. Lucas property:

1. Request for a 1.0 acre child’s lot exclusion for son, Dale Lucas (this item was pulled from agenda due to lack of information).

2. Request to exclude 1.0 acre lot surrounding a pre-existing dwelling, that being, the main residence (this item was approved).

3. Request to exclude four 1.0 acres lots surrounding four pre-existing dwellings and to relocate and add them to the 1.0 acre lot surrounding the main residence, creating a 5.0 acre lot (over staff and counsel’s objection, this item was approved, conditioned upon the four pre-existing dwellings becoming tenant houses, running with the land, and no more building units being allowed on the property. Note: The Baltimore County Agricultural Land Preservation Advisory Board (“BCALPAB”) had recommended approval conditioned upon: (a) the 1.0 acre child’s lot not being subdivided from the remainder of the easement in order to function as the main house for the farm; and (b) a restriction being placed in the release for the four acres, providing that this acreage can never be further subdivided and must remain attached to the 1.0 acre lot surrounding the pre-existing dwelling).

At its January 26, 1998 meeting, the Foundation’s Board of Trustees revisited two of these items. They were:

1. The Board’s decision to approve the landowner’s request to exclude four 1.0 acres lots surrounding four pre-existing dwellings and to relocate and add them to the 1.0 acre lot surrounding the main residence, creating a 5.0 acre lot (Secretary Riley voiced concerns over this decision and requested counsel’s advice on whether the Foundation had the authority to take this action. Counsel indicated that it did not. After discussing this matter, the Board voted to reconsider its November 25, 1997 motion approving this request.) In a subsequent motion, the Board directed staff to “pull a working group together to see what is possible, or not possible, and to bring the issue back before the Board at a later date.”

2. Request for a 1.0 acre child’s lot exclusion for son, Dale Lucas (this item was approved, but conditioned, apparently, upon BCALPAB’s earlier recommendation that the child’s lot not be subdivided from the remainder of the easement; it is not clear from the minutes why the Board voted to place this condition on the child’s lot, particularly given the Board’s other vote that day, reconsidering its November 25, 1997 decision to approve the creation of a 5.0 acre lot).

Following the Board’s January 26, 1998, meeting, a working group was formed, as the Board had directed, to see what is possible, or not possible, and to bring this issue back to the Board. On November 24, 1998, the Board heard Mr. Lucas’ request for a 20-acre agricultural subdivision of the property (which area included the main dwelling). In a letter to the Foundation accompanying Mr. Lucas’ request, the BCALPAB recommended denial of the request, stating that the 20-acre proposed subdivision would not be able to sustain a viable agricultural operation because a large portion of the land consisted of the main dwelling and the surrounding structures. The advisory board stated that the original request made more sense from an agricultural standpoint. Foundation staff recommended approval of the agricultural subdivision. The MALPF Board denied the request for the 20-acre subdivision.

The main dwelling was released from the easement in June, 1999. A 2-acre lot size was necessary to meet septic requirements.

Recently, Mr. Lucas requested final action on the release of the previously approved child’s lot. Concern was expressed over the Foundation’s original approval, which included the condition that the lot not be subdivided from the main property. Foundation staff requested that Baltimore County review the request in light of the changed circumstances. In a letter to the Foundation, dated August 14, 2006, John Beverungen, Baltimore County Attorney, states:

[T]he statement of conditions attached to the original proposal and agreed to by the BCALPAB and the Lucas family was specific to that proposal and cannot be construed to pertain to the configuration that was eventually approved, as it is in fact substantially different from the configuration intended by the parties who discussed the conditions. In summary, it is the position of Baltimore County in response to your request, that the BCALPAB has not recommended any condition with regard to the Helmore Farm (Lucas) easement or any release from the easement that creates a legal requirement……County regulations already allowed the landowner to exclude the existing dwelling and the child’s lot. As such, no County enforcement action is necessary at this time…..It is not apparent to the County that the BCALPAB needs to play any further role or review any written requests for conditional stipulation.

In a letter to the Foundation, dated September 14, 2006, Wally Lippincott, Baltimore County Program Administrator, states that the BCALPAB “saw no reason to re-open this issue and to make any recommendations regarding this matter. The Board believes that the original decision was a sound one and that the issue shouldn’t be revisited. The Board has requested that the State make a determination for the child’s lot.”

Foundation staff requested advice of counsel on this matter, who have noted that the condition imposed on the release of the child’s lot appears to be related to BCALPAB’s recommendation concerning Mr. Lucas’ other request to exclude and transfer the acreage from the four pre-existing dwellings to the main dwelling (which request, as noted, ultimately was not approved by the Board). Counsel further noted that this condition was not placed in the preliminary release for the child’s lot. Finally, counsel noted Agriculture Article, Section 2-513(b)(2)(viii), Annotated Code of Maryland, which states: “The Foundation may not restrict the ability of a landowner who originally sold an easement to acquire a release under this paragraph beyond the requirements provided in this section.” For these reasons (and particularly given that this condition was not made a part of the preliminary release), counsel has advised that the Final Release for the child’s lot be processed.

Additionally, staff wishes to inform the Board that it is currently investigating possible violations of the agricultural preservation easement covering the Lucas property. One area of concern pertains to a scenic easement over a portion of the farm that was created when Mr. Lucas transferred the main residence to Henry and Joanne Cole, the current owners of the dwelling. (Among other things, the scenic easement grants to Mr. and Mrs. Cole the right to construct a garage in the Scenic Easement area.) The granting of such rights, without the written permission of the Foundation, would be a violation of the MALPF easement. According to Mr. Lucas, Paul Scheidt, former MALPF Executive Director, approved the scenic easement. The Foundation, however, does not have evidence that any such approval was granted. Additionally, under the Foundation’s overlay easement policy, only the Foundation’s Board of Trustees may grant approval of overlay easements. The Foundation has requested a copy of any written approval granted to Mr. Lucas.

The land records also reveal that two blanket utility easements were granted to Comcast Cablevision. The utility easements, which cover the entire MALPF easement property, grants to the utility company certain rights, including the right to extend lines to other properties and the right to excavate. The granting of said easements also is a violation of Section A(1)(g) of the MALPF Deed of Easement. Foundation staff has requested a meeting with Mr. Lucas to address the violations. Comcast Cablevision has requested that a representative from the company attend the meeting.

Mr. Doug Wilson asked if there was a controversy in Baltimore County because of what is currently happening and is about to be approved. He also wanted to know if the controversy is from the landowners around the Helmore Farm or from the County.

Ms. Weaver confirmed that there is a controversy generated primarily from surrounding landowners and the Valleys Planning Council. The Valleys Planning Council has contacted the Foundation several times through its attorneys.

Ms. Schultz reminded the Board members that the agenda item is informational only and the Board will be hearing more on the item.

Mr. Doug Wilson commented that there is significant federal legislation that deals with tax advantages for donating easements. This is in addition to what the State of Maryland offers. Mr. Doug Wilson wanted to be sure that the Board members and program administrators are aware of this and inform the agricultural communities of the advantages of donating agricultural land.

Mr. Tassone commented that there was a piece of legislation that was passed last session. He believed that the Foundation was to have legislative language to do away with districts in the next legislative session. He asked for a status on this.

Ms. Weaver stated that MALPF Staff has not had an opportunity to address the issue. The issue involves dissecting the statute and removing all the language pertaining to districts, and inserting new language, which is a major task.

Mr. Doug Wilson agreed and commented that the Foundation may not be able to meet the target.

Mr. Tassone wanted to know if it would be appropriate to ask the Department of Legislative Services for help.

Mr. Doug Wilson commented that it might be an appropriate thing to do at the right time, but currently it is not the right time. The Foundation should be able to do it; it may involve a team to work on it for a couple of weeks.

Tammy Buckle, Program Administrator, Caroline County, wanted to know if it is possible to have the projected budget for the next year. This report was available last year around this time and such reports help in generating new districts at the local level.

Mr. Doug Wilson agreed and commented that he will be providing DLS and DBM revenue projections for the transfer tax and the Department’s projections for Agricultural Transfer Tax.

With no further business, Ms. Schultz asked for a motion for adjournment of the meeting.

Motion #11: To adjourn regular session.

Motion: Chris Wilson Second: Joe Tassone

Status: Approved

The regular session of the Board meeting was adjourned at approximately 11:15 a.m.

Respectfully Submitted:

_____________________________________

Rama Dilip, MALPF Secretary

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Elizabeth Weaver, Administrative Officer