MINUTES
TRUSTEES
PRESENT:
Daniel Colhoun, Chairman
Vera Mae Schultz, Vice
Chairman
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
Jerry Klasmeier,
representing Comptroller Schaefer
Shirley W. Pilchard
OTHERS
PRESENT:
Bill Amoss,
Steven Basht, Landowner,
Tammy Buckle,
Alan & Sarah
Burkhard, Landowners,
Bill Clark, District
Manager, Calvert Soil Conservation District
James A. Conrad, MALPF
Executive Director
Carol Council, MALPF
Administrator
William Doane, Jr.,
Franklin Dill,
Rama Dilip, MALPF Secretary
Barry Ebersole,
Nancy Forrester,
Assistant Attorney General, Department of General Services
Mark Gredell, Gas
Storage Engineer/Spectra, Representing
Diane Hruska, Right of
Way Representative, Representing
John Kahl, Landowner,
Carla Martin,
Wayne L. Morris,
Director, Kent County Department of Water and Wastewater Services
Barbara Polito,
Charles Rice,
Daniel Rosen, Planner,
Maryland Department of Planning
Donna Sasscer, St.
Mary's County, Program Administrator
Eric Shertz,
Donna K. Landis-Smith,
Queen Anne's County, Program Administrator
Dr. Tien, Division
Chief, Water Management Administration, Wastewater Permits Program, State
Groundwater Discharge Permits Division, Maryland Department of the Environment
Elizabeth Weaver, MALPF
Administrator
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 MEETINGS
Motion #1: To approve the minutes of
Motion: Pat Langenfelder Second: Doug Wilson
Status: Approved
B. ADDITIONS OR DELETIONS OF AGENDA ITEMS:
II.C
04-86-05 Gott,
Donald T. Withdrawn
IV. Program
Policy
IV.C. Proposed Cooperative
Agreement with Added
MARBIDCO (the
V. Information
and Discussion
Proposed Bill for the
2007 Legislative Session Added
concerning MALPF Grants to
Counties
Mr.
Conrad stated that a brief Executive Session is scheduled at the end of the
regular Board meeting and requested Board members to stay for a short time.
Doug Wilson, representing Secretary
Riley, Department of Agriculture, circulated material highlighting the FY 2008
Budget of Maryland Department of Agriculture.
Mr. Doug Wilson commented that there are an additional $2 million the
Administration has provided to change the MARBIDCO's
budget from $1 million to $3 million. $1
million are added to the funds MDA allocates to Soil Conservation District
Operations. There are 12 new positions
in Soil Conservation and dollars are available to support those positions,
primarily implementing and replacing positions lost over last seven or eight
years.
MALPF funding has been affected by the
current estimates of state transfer tax revenues. Transfer tax revenues are going down. Our allocations from the summer went from
about $44 million to $30 million (a reduction of $14 million).
The agricultural transfer tax is
estimated to bring in about $8 million this year. Last year it was about $8.3 million, but
current revenues are not tracking very well against the number from last
year. An amount of $18 million is
estimated from matching funds. For FY
2008 the overall budget for easements will be about $70 million ($44 million
state transfer tax, $6 million for easements from agricultural transfer tax,
$18 million from local government, and $2 million from federal). $44 million in State funds include $13
million in "over-attainment funds" raised from FY 2006. There wasn't discussion about moving that
money to FY 2009 because the revenues continue to drop. The new Administration was thinking about
trying to flatten the curve from falling revenues. However, in a press article Governor O'Malley
has mentioned that he is not going to adjust the formula for funding land
preservation programs. So the
Administration has decided not to adjust the formulas. That gives MALPF $10 million or $14 million
more dollars to fund FY 2008 easements.
The budget hearings at the Senate are in mid February, 2007.
James
Conrad, Executive Director of the Foundation, informed the Board members that
the regular Board meeting will continue to start at
Mr.
Conrad informed the Board that the interviews for the new hire at MALPF are
scheduled for the first week of February, and it is expected the new person to
be in place by end of February, 2007.
Mr.
Conrad reminded the program administrators that the Foundation needs to have
the matching funds commitment by
The appraisals are available for three or
four counties, and the remaining appraisals are expected shortly. Once the land rentals report from the
agricultural statistics staff is received, MALPF can start making offers in
February or March, 2007, to the counties for which the appraisals are ready.
Mr.
Conrad stated that MALPF office will soon be having a new copier that will help
to produce the agenda more quickly.
Mr.
Colhoun commented that he and Mr. Conrad would like to arrange visits to the
counties similar to the past when we promoted the funding available. He requested the administrators notify the
MALPF staff about the local agricultural Board meeting schedules. The Foundation would like to attend the
meetings with one MALPF staff and, if possible, at least one Board member. Mr. Colhoun
believed this exchange is very helpful to all concerned and hoped the visits
will commence as the legislative session winds down. Mr. Conrad will soon be sending a
communication on this.
II. DISTRICT
/EASEMENT AMENDMENTS
A.
1.
Request to allow the exercise of natural gas
rights on property with a pending easement
Kahl Farm, LLC, a
family-owned limited liability company, is the original owner of the
district. The Foundation is ready to go
to settlement on the easement, pending the outcome of this request. The current request is to allow the exercise
of the natural gas rights on the property.
Under most circumstances, the Foundation requires
that an owner or lessees of mineral rights subordinate its interest to the
interests of the Foundation for the sale of an easement. However, legislation passed in the 2003
legislative session (HB 91, copy attached) provides that the Foundation "may
not require, in Garrett County or Allegany County, a natural gas rights owner
or lessee to subordinate its interests to the Foundation's interest if the
Foundation determines that exercise of the natural gas rights will not
interfere with an agricultural operation conducted on land in the agricultural
district" (§ 2-509 (c) Annotated
Code of Maryland).
Currently, the gas rights on the Kahl property are owned and operated by Texas Eastern
Transmission LP ("Texas Eastern"), a subsidiary of Duke Energy Gas
Transmission. The property is part of
the Accident underground natural gas storage field. The storage field is a natural geological
reservoir which is a depleted gas field.
The reservoir is sealed on top by impermeable cap rock. The sandstone reservoir is approximately
7,000 feet deep. Texas Eastern injects
and withdraws natural gas from the reservoir.
The compressor station is located approximately four miles from the Kahl property. The
gas is injected into the wells over the summer months and withdrawn during the
colder winter months to meet peak demands.
According to Garrett County's local advisory
board, the exercise of the gas rights on the Kahl
farm would have a very minimal impact on the farming practices and surface
usage of the land because the Accident gas field is used primarily for the
storage of natural gas. The advisory
board stated that the storage of gas "would have no impact on agricultural
practices whatsoever." The
correspondence from John Nelson, Program Administrator, on behalf of the
advisory board, stated that "even if a gas well was to be drilled on the Kahl property, it would be a temporary surface disturbance
and after drilling is completed, the only surface impact would be a wellhead
which would be no different than plowing around a tree stump." The advisory board unanimously agreed that
exercise of the gas rights would have no adverse impacts on the farming
operation and recommended approval of the easement acquisition.
According to correspondence from Texas Eastern,
the impact of the storage field on farming activity is minimal. The letter states that "provided there
is no deep chisel plowing or removal of cover, normal farming operations are
not a concern." Currently, there
are two wells on the site. While the
company has no plans to construct a third well, it is possible that additional
wells could be drilled in the future.
According to Texas Eastern, a typical well site is approximately 20' X
50' with a perimeter fence. Farming
along and over pipelines is restricted only during construction.
Foundation staff recommends approval because the
request is consistent with statute which states that the Foundation may allow
the exercise of natural gas rights when it does not interfere with an
agricultural operation (§ 2-509 (c)
Annotated Code of Maryland). The Kahls run a beef cattle and hay operation. The interference to the overall farm
operation appears to be not significant.
Mark Gredell, Gas
Storage Engineer, Spectra, and Diane Hruska, Right of
Way Representative, Texas Eastern, were in attendance at the meeting to address
questions from Board members.
Additionally, John Kahl, landowner of the
property was also available at the meeting.
Mr. Kahl stated Texas
Eastern operated the gas storage fields since 1962 and has co-existed well with
agricultural operations.
Pat Langenfelder,
Board member, stated that in the correspondence that was circulated to the
Board members, it was mentioned that "provided there is no deep chisel
plowing or removal of cover, normal farming operations are not a
concern." She understands that Mr. Kahl farms cattle and hay, and that involves normal
plowing. She asked about the reference
to "deep chisel plowing".
Ms. Hruska stated that
the farms with gas wells can grow corn or other kinds of normal crops. Planting and growing large trees for sale may
be a problem.
Mr. Gredell stated
that the company has two wells on the Kahl Farms and
located them on the map.
Mr. Conrad asked if there are any agricultural
activities or practices in
Judith Lynch, Board member, stated that at one
place the agenda memo indicates "…the impact would be no different than
plowing around a tree stump." In
the next paragraph it is mentioned that "a typical well site is
approximately 20' x 50' with a perimeter fence." The pamphlet circulated with the agenda item
states that "…
Ms. Hruska stated that
what is mentioned in the pamphlet is the work load area. Texas Eastern does not allow any permanent
structure within the 250 foot radius in those instances. This does not mean one cannot drill. The farmers grow hay right up to it.
Mr. Colhoun asked if
Texas Eastern predicted additional well heads to utilize the underground
storage in the future. Mr. Gredell stated that at this point in time they do not have
any plans for additional well heads on the Kahl
farms.
Mr. Tassone wanted to
know about the reference made to the 20' x 50' area with a perimeter fence
referred in the agenda memo. Mr. Gredell believed the reference was misleading. It does not indicate the perimeter fence
around the area but refers to some other equipment.
Mr. Tassone commented
that if the Foundation approves the request it will mean Texas Eastern will
exercise its gas rights on the property.
He wanted to know the scope of the possible things that could be done on
the property, with the right, for example, to put in another well.
Mr. Gredell commented
that another well is a possibility, but it is a very low probability.
Mr. Doug Wilson commented that the whole issue
is about the subordination of Texas Eastern's
rights. The Foundation spent years
working out this particular piece of legislation that gives the Foundation
statutory authority. On the overlay
easements, the Foundation has control over what the easement holders can do or
cannot do. In
Mr. Colhoun asked
Nancy Forrester, Assistant Attorney General, Department of General Services, as
to whether the owner of the property needs to come back to the Foundation at a
future date to request more well heads or additional commercial activity or
does the Foundation need to give that away.
Ms. Forrester stated that the energy company
clearly has the right to come and do anything that is permitted under its
lease. If it needs to put in 20 well heads,
it can do so, though this may not happen.
The legislature has given the authority to the MALPF Board to allow
it. Ms. Forrester wanted to know if an
existing well could be returned to agriculture.
Mr. Gredell commented
that it is possible and stated that it is not likely to have 20 more well
heads.
Mrs. Schultz, Vice Chairman, wanted to know the
ramifications, and also if it is possible to exclude the acreage from the
easement.
Mr. Doug Wilson commented that there is no
reason to do that. He stated that what
we are talking about is a tenth of an acre.
Unless the Foundation excludes all the pipelines, just excluding the
acreage around the well head does not make sense. In the past, the Foundation submitted this
issue to the General Assembly. In this
particular region of the State, subordination was a major impediment to the
farmers' participation in our program.
Many of the farmers had wells on their property for decades, but could
not participate in the MALPF program because of the subordination issue. The General Assembly decided to take that
requirement out and said it was okay to let the farmers not subordinate with
this particular utility because of the way it operates. The General Assembly has given the Foundation
a lot of freedom, and clearly if the energy utility started changing the way
the dynamics worked, the Foundation could approach the General Assembly and
request that the provision be removed.
Robert Stahl, Board member, wanted to know how
many cubic feet of storage is possible.
Mr. Gredell estimated the storage capacity to
be approximately 15.3 million cubic feet.
Mr. Stahl wanted to know if the pipelines are
currently in place to provide for future demands, or if the possibility exists
of adding several more natural gas pipelines into the region.
Mr. Gredell stated
that there might be a need to redesign, and in some cases, there might be a
need to replace a pipeline. Other than
that, he did not foresee adding more pipelines.
If there is an increase in demand in winter months, they will drill
larger wells on the second site or increase the size of the pipeline on the
already existing right of way.
Mr. Stahl asked if it is cheaper to drill a new
well or re-bore an existing pipeline.
Mr. Gredell stated that it is cheaper to re-bore
an existing pipeline.
Mr. Colhoun commented
that it is obvious Mr. Kahl wants to preserve his
farm for agricultural purposes. He asked
Mr. Kahl if he farms the land or rents it out.
Mr. Kahl stated that
he is not a hi-tech farmer. The farm is operated
by his family. They farm cattle, hay,
etc. His great-grandparents bought the
farm in 1895. They also plan to timber
part of the farm, and in a couple of years they will be ready to harvest one
section of it. Mr. Kahl's
family also plans to plant more crops.
Mr. Colhoun wanted to
know, at some point in time, if the gas company decides it needs additional
wells, if the decision is Mr. Kahl's or if the
decision is controlled by the gas company.
Mr. Kahl stated that
in the end, it is the decision of the gas company. The gas company has been very good to work
with and has accommodated the farming of the property.
Mr. Doug Wilson added that the gas company owns
the right to put in what they feel is necessary for the operation. MALPF offers
the landowner an easement, and it is subordinate in this situation to the
interests of the gas company. The General Assembly has given the authority to
MALPF to do so, as long as the Board review indicates that, in the big picture,
the farming could proceed. MALPF still restricts development on the farm. Obviously, the farmer cannot have 47 housing
units on the farm and so on.
Chris Wilson, Board member, asked if there is
any financial incentive for the farmer.
Ms. Hruska commented
that there is no financial incentive, but a small check for a fixed amount is
given to the farmer every year for rental of the storage provided. No royalties are paid. The reason the farmer is paid a rental is
because the gas company owned the mineral rights at the time of purchase. When the gas agency buys the production
fields, they also buy the mineral rights, but still pay them a storage rental
fee.
Mr. Tassone commented
that he understands that probably what the gas company has to do for its
purposes is not likely to interfere with the agricultural use of the land, and
the interest of MALPF is not compromised.
However, he was concerned about the subordination issue, and he wanted
to determine if there was anything MALPF could do to retain control over what
the gas company could do.
Mr. Doug Wilson stated that this is the reason
the General Assembly gave MALPF the authority and allowed MALPF to monitor the
situation. The State may very well
invest some money in some properties which did not turn out to be a good deal
at the end of the day. If the situation
got out of hand, MALPF could go back to the General Assembly and let it know
that it is not working out the way it was originally envisioned, and request a
re-review.
Mr. Stahl added that this is a regulated
industry, through Maryland Department of the Environment, under mining. Ultimately, the State controls the activity,
and this is not an unregulated situation.
Elizabeth Weaver, MALPF staff, commented that
Texas Eastern was not required to come to the Board meeting because it already
has the right to do whatever it wants on the property. The representatives are present because they
want to support the preservation of the farm because it's in the company's best
interest. The company has an incentive
to foster a good relationship with the Foundation because it wants to keep
these farms in agriculture. It would
like to see more farms in the area enter the MALPF program.
Motion #2: To approve the request of Kahl Farm, LLC, to allow the exercise of natural gas rights
on property with pending easement.
Motion: Chris Wilson Second:
James Pelura
Abstained: Joe Tassone
Status: Approved
Mr. Tassone read from HB 91. "Subordinate its interest to the
Foundation's interests if the Foundation determines that exercise of the
natural gas rights will not interfere with an agricultural operation conducted
on land in the agricultural district."
Mr. Tassone stated that he believes this
requires limits, and he did not see the reason as to why the Foundation could
not come up with something other than totally subordinating the Foundation's
interests.
Mr. Doug Wilson stated that he remembered the discussions that took place
on this issue ten years ago. When the
issue of limitations was brought up, the utility said that it could not tell
the Foundation what would and would not be done in x number of years in the
future. Therefore it would not agree to
subordinate its control. The
agricultural community came to the General Assembly and asked it to intervene
because the landowners who have leased gas rights on their properties are
precluded from entering our program. The
utility will not subordinate any of its operating interests which is why the legislation was passed. Mr. Doug Wilson reiterated that the General
Assembly's intent was to allow the subordination to occur and, if it starts to
get out of hand, the Foundation will go back to the General Assembly and let it
know that it is not working.
Mr. Conrad commented that last year he had visited
Mr. Kahl commented that the land prices are
increasing in
Mr. Colhoun asked Ms. Forrester if there is any
room for having conditions placed on the approval.
Ms. Forrester stated that the request is for approval. The energy company is present at the meeting
to cooperate, but it is not going to give up the rights granted under the terms
of the lease. She did not believe it is
going to put 20 wells on the property.
Mr. Tassone said that he was not involved in
the deliberations and drafting the piece of legislation, so he did not know the
full scope of what was possible.
Answering a question related to past well activity on the property, Ms. Hruska stated that well #1 was
installed in 1965. Well #2 was put
installed in 2006. She did not foresee
the chances of 20 additional wells on the property.
Mr. Gredell
also added that it is customary for the Federal Energy Regulatory Commission to
regulate the activity. If any additional
wells need to be placed on the property, there is a long process to apply for
approval. There is a very clear
regulatory process that Texas Eastern must follow.
B.
1. 14-86-03 Dill, Franklin M. 194.626
acres
Request to allow wastewater spray irrigation on
easement property
Mr. Dill is the original grantor of the
easement. The current request is for
approval to allow the application of treated wastewater from Worton's wastewater treatment plant.
The Foundation approved a policy on wastewater
spray irrigation (Attachment A) on
MALPF staff coordinated with Maryland Department
of the Environment (MDE), Maryland Department of Planning (MDP), and
Engineers from
MDE requires a minimum buffer zone of 200 feet
between the wetted perimeter of spray irrigation areas and property lines,
waterways, roads, etc. The buffer area
is the unwetted area around the perimeter of the
spray area that separates the spray area from surrounding uses. However, there are no limitations on crops
grown in the buffer area. Additionally,
MDE requires a reserve area that is suitable for application of wastewater that
is held in reserve should a problem develop on a portion of the initial
81.14-acre spray area. Wastewater will
not be applied to the reserve area unless a problem develops in the initial
81.14 acres. Should a problem occur,
wastewater will be applied to an acre of the reserve area for each acre taken
out of the initial wastewater application area.
In a letter to the Foundation (Attachment C),
Mr. Dill states that the application of the wastewater will increase the
productivity of the land. Mr. Dill
wanted to install an irrigation system (standard, non-waste water) when he
acquired the property in 1983; however, tests revealed that the aquifers are
incapable of producing the required quantity of water. Mr. Dill's letter states that he will be
restricted from growing vegetables.
However, Foundation staff's research indicated that the spraying of the
wastewater will prohibit growing crops that are not processed prior to human
consumption. Mr. Dill currently grows
corn, wheat and soybeans on the farm, which he can continue to grow after the
application of wastewater.
Dr. Tien, Division
Chief, Water Management Administration, Wastewater Permits Program, State Groundwater
Discharge Permits Division, Maryland Department of the Environment (MDE), has
analyzed the results of the test of the town's treated wastewater for the
presence of heavy metals or other elements that could have a negative impact on
the soil. Dr. Tien
found that the application of the wastewater will not have a long term negative
impact on the soils of the property (Attachment D). However, Dr. Tien
recommended that the sodium concentration in the treated wastewater be reduced
to less than 69 mg. of sodium per liter of water to reduce the specific ion
toxicity to field crops. Dr. Tien further recommended that any future industrial
discharge to the system should be reported to the Foundation and an impact
analysis completed prior to acceptance of the industrial wastewater. (Currently, there is no industrial discharge
to the wastewater system.)
Maryland Department of Planning (MDP) has
reviewed the application and determined that the Worton
request will not promote development in a way that is inconsistent with the
State's Smart Growth objectives. In
correspondence to the Foundation, MDP states that the Department's research
shows that the Worton Sewerage Service Area, existing
and planned, lies entirely within a Kent County Priority Funding Area (PFA). Therefore MDP supports the proposed
wastewater spray irrigation project because it will support growth in the PFA
(Attachment E).
Foundation staff finds that, with the exception
of the location of the lagoon on the easement property, the request conforms to
the Foundation's policy. (Note: The application form and relevant maps, etc.
can be found under Attachment F.) The
Foundation does not have a precedent for location of a wastewater storage
lagoon on the property. Staff recommends
that the Board of Trustees assign the request to a policy committee for
resolution because the Wastewater Spray Irrigation Committee did not consider
the issue of lagoons during the development of the policy. The original request (Cecilton)
did not include a lagoon. Should the
Foundation approve the request, approval should be contingent upon the
following:
1.
MALPF shall be a party to the agreement between the landowner and
the County.
2.
Any future industrial discharge to the system shall be reported to
the Foundation and an impact analysis completed prior to acceptance of the
industrial wastewater.
3.
The sodium concentration in the treated wastewater shall be
reduced to less than 69 mg of sodium per liter of water to reduce the specific
ion toxicity to field crops.
4.
If it becomes necessary to use the reserve area,
5.
The agreement shall have a provision for renewal as part of the
MDE permitting process, which is conducted every five years. The renewal will be reviewed by MALPF
staff. Any modifications to the
agreement must be agreed to by the Board of Trustees. Should the County or the landowner be found
to be in breach of the agreement, MALPF may terminate the agreement.
6.
A statement in the agreement which addresses repair of any damage
to the soils as a result of an accident or malfunction or other circumstances
related to the application of the wastewater.
7.
A statement in the agreement that the application of the
wastewater shall be conducted in such a manner as to prevent bodily injury or
endangerment to human health.
8.
Adoption of a Water and Sewer Plan by
Franklin Dill,
landowner, Dr. Tien, Division Chief, Water Management
Administration, Wastewater Permits Program, State Groundwater Discharge Permits
Division, Maryland Department of the Environment, Wayne Morris, Director, Kent
County Department of Water and Wastewater Services, Barry Ebersole,
Civil Engineer, Kent County, and Carla Martin, Kent County Program
Administrator, were available at the Board meeting to answer questions from the
Board.
Ms. Martin stated that the Kent County
Agricultural Land Preservation Advisory Board reviewed the application of
Franklin Dill and recommended approval by the Board of Trustees. The Board based its decision on the
following:
1.
It is a good opportunity for Mr. Dill because he cannot utilize a traditional
irrigation system.
2.
The proposed lagoon does not take away productive land and will
not interfere with the operation of the farm.
3.
It will allow growth to occur in a designated growth area where
the County would like to see future development.
4.
It helps promote agricultural production.
Mr. Dill stated that he
always wanted to put irrigation on the farm.
He even tried using the stream or building a pond. The fields get dry. There are several farms in
Mr. Dill handed out
photographs of his farm to the Board members.
Mr. Colhoun
stated that from the aerials and photographs provided he saw where the existing
pond is, and believed the new storage area would be built in the area that is
just downstream from the dam. They would
then need to clear some of the trees to accommodate the lagoon. Mr. Dill confirmed that Mr. Colhoun was correct.
Mr. Dill stated that he wanted to provide illustrations because he
wanted to make sure that everybody could see the exact area.
Mr. Stahl asked about
the type of irrigation that would be used on the farm. Mr. Ebersole stated
that they are meeting with the irrigation people in the forthcoming week to
work out the details.
Mr. Stahl asked if it is
possible for the lagoon to be excluded from the easement property.
Mr. Doug Wilson stated
that the MALPF Board approved, as a general agricultural practice, the use of
wastewater spray irrigation. If we
remove the concept of wastewater, and if the farmer wanted to use a farm pond
in the course of his operations, the Foundation will be fine with it. We would not get into it at all. The reason it is called a lagoon is because
of the wastewater issue, but it is being used for irrigation. Mr. Wilson believes the Foundation should
treat it as an agricultural operation for holding the water for pressure, etc. He did not see on what basis the Foundation
would exclude two acres from the easement.
The Foundation would never exclude any other pond operation. Mr. Wilson did not feel the request was any
different from any other request to provide normal irrigation on a farm. It was recognized as an acceptable practice
by Maryland Department of the Environment and Maryland Department of
Planning. That is the reason the MALPF
Board approved the policy as an acceptable practice.
Mr. Stahl asked, if it were sludge, would Mr. Doug Wilson feel the same
way. Mr. Wilson stated that the
Foundation allows farmers to apply sludge on their farms. The Foundation allows the farmers to store
any number of other manures on their farms.
Mr. Stahl stated that he
believes that this is not farm-generated wastewater, or a farm-generated
situation. This is wastewater generated
in the priority funding area. Using the
water for irrigation is clearly an agricultural use. However, storage of such water is
different. Mr. Stahl stated that,
although he understands the rationale for having capacity issues for the
irrigation, he is concerned that, while it benefits the agricultural site, it
also benefits the ability to store wastewater during times when you cannot
spray, for example in a very rainy weather.
Mr. Colhoun
reminded the Board members that the MALPF Board has already agreed with the
principle of allowing wastewater spray irrigation on MALPF land. Unless the Board wants to reverse its
decision, he did not see the reason for further discussions on the
principle. He does not want to take a
lot of time dwelling on that issue. He
stated that he believed the real issue is about the storage area for this
operation.
Mr. Conrad commented
that there is no legal mechanism to exclude land from an easement property once
an easement is placed on the property.
Mr. Doug Wilson
commented that, if Mr. Dill had a stream next to him and if he wanted to pump
water into a pond and use it as needed, the Board would not even be discussing
the issue. Mr. Dill found a place as a resource
and he is using it for the agricultural operation. The reason Mr. Dill is storing it is to have
the capacity to pump water onto his farm as there is no other way to do it.
Mr. Colhoun
wanted to ask the opinion of the technical experts present at the meeting as to
why they felt it necessary to have the storage facility on the farm rather than
at some other place which is not in agricultural use or under an easement.
Mr. Morris stated that,
although it is called a storage lagoon, it is actually a reservoir for the
irrigation system. When they first
discussed it they realized there has to be some type of device to provide
pressure for irrigation. From the
beginning of the project, they included Mr. Dill in the project and worked
together through the various scenarios.
It is an agricultural use, and it would be used for the existing
agricultural farm.
Mr. Colhoun
asked whether Mr. Dill would be irrigating through the dry periods because Mr.
Morris is calling it a reservoir. Mr.
Morris stated that he would. Mr. Colhoun asked Ms. Langenfelder if
she wanted to provide comments regarding her visit to the farm.
Ms. Langenfelder
stated that she did apprise Mr. Dill that allowing storage on the farm might be
an issue. She added that Mr. Dill's site
for the lagoon seemed perfect to her because it is not used for
agriculture. They are preparing to
divert the water away from the proposed lagoon.
The County does not have enough water underground in that area for
irrigation. What Mr. Dill is trying to
achieve will enhance his operation. Ms. Langenfelder understands that the Board may have a problem
in allowing a reservoir, but the Foundation does have farms bringing chicken
manure onto MALPF property. That is also
storage of something produced somewhere else.
Mr. Conrad asked Mr.
Dill if on-site storage as compared to off-site storage would make a difference
in the flexibility that would be available to Mr. Dill. Mr. Dill stated that he believed that an
on-site storage facility would provide more flexibility.
Mr. Stahl stated that he
was concerned about the long term precedent issue. There might be issues when a request comes up
for sludge.
Mr. Colhoun
wanted to know about the location of the pipeline. He wanted to know if there are other areas
along the pipeline route that can act as reservoirs. He understands that they are trying to have a
volume of water within a reasonable distance from where it is going to be
used. Mr. Colhoun
wanted to know if there is an opportunity to store somewhere else along the
pipeline and achieve the same purpose in the end.
Mr. Ebersole
commented that there is a storage facility already existing at the plant. He located it on the map. As they were developing the design of this
project, they were thinking that they could transfer thousands of gallons at
high pressure the whole way or they could transfer over 24 hours a day small
volumes at pressure uninterrupted off-site.
What they are looking at currently is a kind of buffer.
Mr. Colhoun
asked about the capacity and if, for their purposes, two acres of storage is
necessary versus a smaller amount. Mr. Ebersole responded that they worked on designing the site
before they came up with a number. The
number is somewhere between one and two million gallons. They took an operational number that provides
flexibility to them on the treatment side.
Mr. Stahl stated that he
was concerned how the MALPF Board could reasonably turn someone down without
having a criterion. He wondered what
will happen if the next person from a similar situation comes to the Foundation
with a request to spray irrigation sludge.
Mr. Tassone
commented that the rationale for a storage lagoon is for it to operate as a
reservoir. It would provide water when
it is not otherwise available, allowing the landowner to irrigate at will. Mr. Tassone
wondered if it would be a good idea to approve the request with an explicit
recognition that there has to be a legitimate purpose for a lagoon.
Mr. Colhoun
reminded the Board members about the recommendation from the MALPF staff. MALPF staff has recommended that the Board of
Trustees assign the request to a policy committee for resolution because the
Wastewater Spray Irrigation Committee did not consider the issue of lagoons
during the development of the policy.
Mr. Colhoun asked Ms. Weaver if she would like
to offer any comments on the agenda item as she had worked on the item.
Ms. Weaver stated that,
as she had mentioned in the memo and as pointed out by Mr. Stahl, the Board
would be setting a precedent if it approves the request and should therefore be
cautious.
Mr. Colhoun
stated that he believed the committee should be formed quickly and should
attempt to answer all the questions including the question of setting up a
precedent. The committee can come back
to the Board, and the Board would feel more comfortable in making a decision.
Ms. Martin stated that
the
Chris Wilson, Board
member, was concerned about the nutrients available in the wastewater. Mr. Morris stated that the nutrient plan will
treat the wastewater to ensure the quality of water on Mr. Dill's farm is as
required by MDE's regulations and MALPF's
requirements under its policy. Mr.
Morris stated that most of the nutrients will be taken out during the treatment
process.
Mr. Wilson stated that
most of the nutrients will be beneficial to the soil, such as nitrogen and
phosphorous, but there will also be nutrients like sodium and iron, which are
not. Mr. Wilson wanted to know if the
sodium and iron will be treated.
Dr. Tien
stated that sodium and iron are in high concentrations before being
treated. They will be required to be
lowered to an acceptable level to where they would not harm the soil.
Mr. Conrad stated that,
after listening to all the practices that are adopted (lagoon, irrigation
systems etc.), he wanted to know who derives the benefit from having the pond
storage on site? Does it result in more
flexibility by the landowner in deciding when to irrigate, or does it result in
more flexibility to the county in when to pump wastewater to the pond? Who controls the withdrawals?
Mr. Ebersole
stated that they are negotiating the contract.
Mr. Conrad wanted to
know if there are access issues, if it is explicit as to how they will come on
and off the property. Mr. Ebersole stated that the access will be maintained through
the road that already exists on the property.
Mr. Colhoun
commented that he understands that there are some particles, maybe 10% or so,
which will percolate to the bottom. He
wanted to know if there is some arrangement to deal with silting. Although there is a high amount of liquid,
over a period of time there is settlement that takes up storage over a period
of time. There will be a need for
maintenance.
Mr. Ebersole
commented that it has not been addressed.
He believes the amount of solids being put into the lagoon are a bare minimum.
Mrs. Schultz wanted to
know, if the Board accepts the staff's recommendation to assign the request to
a policy committee for resolution, if it will affect the time table.
Mr. Dill commented that
he would like to have the facility available as early as possible. Mr. Morris commented that they will advertise
and coordinate all the plans, and the goal is to have the plans in place by
September, 2007.
James Pelura, Board member, commented that irrigation is an
agricultural process. He wanted to know
if there are any restrictions on what is possible. He wanted to know if the water is potable.
Mr. Morris commented
that some people say that they would drink it, but that he wouldn't drink it.
Mrs. Schultz stated
that, considering that the request is a potential precedent, she would move to
accept staff's recommendation to pass the request to a policy committee to
study.
Motion #3: To approve the request of the staff to
assign the request to a policy committee for resolution.
Motion: Vera Mae Schultz Second: Robert Stahl
Opposed: James Pelura,
Pat Langenfelder
Status: Approved
Ms. Langenfelder wanted to know if there would
be a time frame for the committee to review the request and recommendations.
Mr. Colhoun stated that he would like to have
the review immediately. The committee
should review the status and report back at the next Board meeting.
D.
1. 07-93-01e Burkhard, Alan and Sarah 124.684
acres
Request to relocate a pre-existing dwelling on easement
property
Mr. and Mrs. Burkhard are the subsequent owners
of the easement property. There have
been no requests for lot exclusions. The
property has two pre-existing dwellings.
The current request is to relocate one of the two pre-existing dwellings.
According to the landowners' attorney, one of
the two pre-existing dwellings is an apartment that is located above a
barn. The landowners have used this
apartment as a tenant house to serve their thoroughbred horse operation. The property consists of two separate parcels
of record, Parcel 25 which contains the two pre-existing dwellings (main house
and apartment), and Parcel 116 which currently has no dwellings. This request proposes to remove the apartment
from Parcel 25 and construct the new, replacement dwelling on Parcel 116. The proposed relocation area is cropland (not
currently being farmed) and is located in an area that will be bordered on
three sides by woods, a crop field, and a pond.
Access will be via an existing 11' wide access lane.
According to
Foundation staff wishes to point out the
following. 1) It appears that the
landowners are preparing to convey these two parcels separately; each with a
dwelling. If so, the landowners must
seek approval from the Foundation for an agricultural subdivision prior to
conveyance. 2) Although the plat
indicates a "proposed 1.0 acre exemption" surrounding the proposed
relocated pre-existing dwelling, the landowners are not currently asking to
exclude the 1.0 acre. 3) Relocation of a
pre-existing dwelling usually requires demolition and removal of the existing
structure. In this case, the barn will
remain standing and only the area currently used as an apartment will be
altered so that it cannot be inhabited in the future.
In conforming to the Foundation's Lot Location
Policy, the physical location of the relocated lot should be (in priority order
from most to least desirable):
1.
Along public roadway and (if they exist) clustered with other
dwellings;
2.
Along boundary lines, natural boundaries, or the edge of tillable
land, and clustered with other dwellings (if they exist);
3.
Clustered with farmstead dwellings and buildings; and/or
4.
Other.
From the aerial that was provided, it appears
the lot meets the policy guideline #2, because it will be located along a
natural boundary (woodsline) and on the edge of tillable land.
Foundation staff recommends approval with the
condition that the original dwelling be removed by a method that is acceptable
to the Foundation within 180 days from the issuance of a use and occupancy
permit for the replacement dwelling.
If the Foundation approves the request, Mr. and Mrs.
Burkhard must enter into a written agreement with the Foundation (copy attached
with staff memo), to be recorded among the county land records, describing the
terms and conditions of the Foundation's approval. The agreement will run with the land and bind
all future landowners.
Mr. and Mrs. Burkhard and Eric Shertz, Program
Administrator, were available at the meeting to answer questions from the Board
members.
Mr. Burkhard stated that, in late 1990s when they invested in the
property, they had a goal of horse farming.
He was involved with race horses.
A couple of years later he had health issues which lead to several
surgeries. Mr. Burkhard
and his wife decided to downsize the farm.
Their home has several stories and lots of stairways. When the property was sold to them, it was
two separate parcels that were combined.
The price of parcel 116 was significant enough that Mr. Burkhard assumed
that the value would allow him to build on it.
They also received several offers to buy that particular lot. This was the time they contacted Mr. Shertz.
Mr. Burkhard stated that he has no problem in
signing the agreement, and his daughter can stay somewhere else. The relocated lot is right along the
woodland. The house will be built in front
of the woods. There is a pond. Mr. Burkhard stated
that lot 116 has its own entrance, and the Burkhards are using an existing
lane. Mr. Burkhard
believed his request meets with most of the Foundation's policy.
Mr. Doug Wilson stated that when the Foundation originally purchased the
easement, the details indicate that the property had two pre-existing
dwellings. The staff report describes
one of them as an apartment in a barn.
The County calls it a tenant house.
MALPF's original easement states that there
were two pre-existing dwellings, and the appraisals probably dealt with this
barn/apartment as a pre-existing dwelling.
Mr. Doug Wilson believed that there are two issues: the landowner is asking for the relocation of
a pre-existing dwelling and, then, the non-demolition of the barn. Mr. Doug Wilson wanted to know, when the
landowner moves to a new place, will the property with a house that Mr.
Burkhard will be building be sub-dividable from the farm property?
Mr. Shertz confirmed this and stated that the County recognizes parcel
116 as a building lot; it is already approved for subdivision.
Mr. Doug Wilson stated that the Foundation will have the same number of
pre-existing dwellings. The landowner
will have two independent parcels which could be subdivided for agricultural
purposes if the landowners came back and requested for it. The Foundation will have a farm that has a
dwelling on it and that cannot be subdivided.
Mr. Doug Wilson suggested making a conditional motion to that
effect. The Foundation will make sure
that the landowners do not have another tenant operation even if it was
eligible for a tenant house. Under the
Foundation's policy for tenant houses the Foundation would prefer Mr. Burkhard
to go back and use a loft in the barn than to build another structure.
Mr. Shertz added that the County favors a lot with a minimum of 100 acres
and, therefore, the County will not allow it.
Mr. Colhoun wanted to have Ms. Forrester's opinion about Mr. Doug
Wilson's recommendation on having a conditional approval.
Ms. Forrester suggested mentioning that the relocated house not be
sub-dividable and that this provision needed to be added to the standard
agreement. The two parcels are of same
size and are approximately 62.5 each.
Motion #4: To approve the request of Alan and
Sarah Burkhard to relocate a pre-existing dwelling on easement property with a
condition that Foundation amends the standard approval to require the landowner
to agree not to subdivide the house from the farm parcel.
Motion: Doug Wilson Second:
Judith Lynch
Status: Approved
Mr. Burkhard wanted a clarification of the motion.
Mr. Doug Wilson stated that let's assume Mr. Burkhard
goes back to the County and builds a house.
Typically in a pre-existing dwelling, Foundation allows an acre around
all pre-existing dwellings to be excluded from the easement because the
easement is on the farmland, not the dwelling.
Landowners who have a pre-existing dwelling have the right to subdivide
that 1.0 acre from the farm to sell it to someone else.
Motion #4a: To approve the request of Alan and Sarah
Burkhard to relocate a pre-existing dwelling on easement property with a
condition that Foundation amends the standard approval to require the landowner
to agree not to subdivide the house from the farm parcel. The landowner agrees to restore the barn to
be only a barn. The conditions outlined
in the staff report about the conversion of apartment into barn must be
complied with.
Motion: Doug Wilson Second:
Joe Tassone
Status: Approved
2. 07-86-02es Basht, Steven and Sabrina 50.00
acres
Request to swap 1.5 acre of easement property
for 1.5 acre of non-easement property
Mr. and Mrs. Basht are the subsequent owners of
this easement property, which on
The easement contains 1.5 acre that encompasses
several farm buildings that are not currently being used as part of the overall
farm operation. In addition to the
easement, the landowners also own an adjoining parcel of 3.179 acres that
contains a dwelling and 1.5 acres of active cropland. The landowners are proposing to exchange the
two 1.5 acre parcels. The result of the
swap will be that the easement will be 100% cropland and pasture, and the
adjoining parcel will contain the entire farmstead.
According to the landowners, they wish to use
the farm buildings, now located on the easement property, for a commercial
venture that may be a violation of the MALPF easement. Reconfiguring the parcels will avoid this
potential conflict, while enlarging the overall farm operation and not reducing
the number of acres within the easement.
According to
Foundation staff recommends approval of the
request as it will improve the overall farm operation. If approved, Foundation approval should be
contingent on 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.
Mr. Conrad added that if the request is approved,
the landowner will be responsible for the expenses incurred as a result of the
request.
Eric Shertz, Program Administrator, was
available at the Board meeting to answer questions from the Board members. Mr. Basht was not
able to attend the meeting.
Mrs. Schultz commented that the resulting
easement property will have no dwelling, but that currently the property also
has no dwelling.
Mr. Shertz stated that the home is currently on
a separate 3-acre parcel not currently covered by the easement. Mr. Shertz located the cropland on the color
map and stated that the area is not covered by the easement. Mr. Basht trains
retrievers on a recreational basis and wants to extend the operations knowing
that it is a use that is currently not allowed by the MALPF Board. He does not want to put his plans into action
till a decision is made.
Motion #5: To approve the request of Steven and
Sabrina Basht to swap 1.5 acre of easement property for 1.5 acre of
non-easement property. The approval is
contingent on a satisfactory review by the Office of Real Estate, Department of
General Services.
Motion: Doug Wilson Second:
James Pelura
Status: Approved
Ms. Forrester informed Mr. Shertz that the landowner needs to be aware
that the swapping of the property is not a fast process. It is a low priority item, and the request
needs to go through the Board of Public Works review for approval. The request is also required to be reviewed
by the Department of General Services.
Ms. Forrester wanted to make sure that the landowner is aware of this.
E.
1. 21-91-14 Howell, William J. 141.81
acres
Request for partial termination of 3.0 acres of
district property
Mr. Howell is the subsequent owner of the
district property. There are three pre-existing
dwellings, and no lot exclusions were taken by the original owners. A 3.0-acre parcel was withheld from the
district. On
According to
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 is consistent with the Foundation's policy on
withheld acreage/partial termination (copy attached with staff memo).
Carol Council, MALPF staff, informed the Board members that the program
administrator was not able to attend the Board meeting.
Ms. Council commented that the landowner is asking that the parcel of
2.01 acres also be terminated. Those
2.01 acres are actually part of the 5.0 acres that have already been
terminated, so that request does not need to be addressed.
Mr. Conrad asked if Ms. Council was aware if there has been perc test on
the land. Ms. Council was not aware of
the perc test being done.
Mr. Conrad asked how many lots are likely to remain on the property. Ms. Council stated that the landowner has not
taken any lot and the property is currently a district property.
Mr. Conrad asked if the Foundation were to purchase an easement on the
property, how many development rights would remain. Ms. Council stated that
Motion #6: To approve the request of William J.
Howell for partial termination of 3.0 acres of district property and require
staff to inform the landowner that this action may have an impact on the number
of development rights in case the landowner chooses to sell an easement in the
future.
Motion: Doug Wilson Second:
Chris Wilson
Status: Approved
Mr. Doug Wilson stated that it is an old
district and the landowner may terminate the district at any time. He wanted the landowner to be aware of the
impact of his action.
Ms. Forrester wondered about the development
rights associated with the 3.0 acre parcel.
Ms. Council stated that the 5.0-acre parcel that
was terminated previously was going to be added to another parcel that already
has a dwelling on it. So there would be
no development rights associated with it. It would only be creating a larger lot. However, the 3.0 acres that were withheld
from the district in the beginning already had a dwelling on it. Ms. Council believed that the reason Eric
Seifarth, the Program Administrator, informed the Foundation that there are no
associated development rights is because the dwelling is already in use and is
on the 3.0 acre parcel.
Mr. Tassone stated that it would be advisable to
ascertain how many development rights could be associated with the acreage
excluded in the first place, the partial termination that has taken place since
then, with this partial termination, and the remaining development rights left
on the property. Mr. Tassone
believed it will be important to know how much acreage has been excluded over
time and whether the acreage exclusions are in line with the withheld acreage
policy.
Ms. Council stated that she already addressed
this issue because she was concerned with the three different parcels coming
out; according to Mr. Seifarth, there is one
development right associated with three areas that have been taken out.
III. AGRICULTURAL
PRESERVATION DISTRICT PETITIONS
A.
1.
This is a 124.65-acre parcel located north east
of Rosemont. It is contiguous to one
easement property. There is one
dwelling. The farm has 40 acres of
pasture and 83 acres of woodland. The
primary farming operation is rented pasture. It has 52.9% qualifying soils. It is part of a larger operation and is not
owner operated. The property has a
forest stewardship plan.
2.
This is a 26.77-acre parcel located in the
community of Emmitsburg. It is contiguous with several easement
properties. There is one dwelling. The farm has 18.4 acres of cropland, 3.97
acres of pasture, and 3.4 acres of woodland. The primary farming operation is hay. It has 93% qualifying soils. It is not part of a larger operation and is
owner operated.
Motion #7: To approve the request of Marian Smith
and Suzanne and Shannon Bohrer to establish
agricultural land preservation districts on their respective properties.
Motion: Doug Wilson Second: Vera Mae Schultz
Status: Approved
B.
1.
This is a 151.97-acre parcel located north of
2.
This is a 161.00-acre parcel located north of
3.
This is a 108.373-acre parcel located south of
4.
This is an 80.114-acre parcel located west of
Little Elk Creek Road in the town of
5.
This is a 239.7-acre parcel located north of
Staff recommends the landowners acquire a forest
stewardship plan.
6.
This is a 27.221-acre parcel located north of
7.
This is a 48.213-acre parcel located south of
8.
This is a 45.927-acre parcel located south of
Staff recommends
approval with appropriate recommendations.
Eric Shertz, Program
Administrator, was present at the meeting.
Motion #8: To approve the item 1 through 7 of
Motion: Doug Wilson Second: Pat Langenfelder
Status: Approved
Board members wondered about Mr. Birney's plan
for the 10.0 acres withheld. Mr. Shertz
commented that the landowner wants to create a lot first. He understands that he cannot exclude the
acreage after the district is established. The majority of the 10.0 acres will have road
frontage. He does not want to sell
himself short by saying that he wants one acre and then finds out that he needs
more acreage. The landowner intends to
create lots first and then to establish the boundaries and subdivide the
remaining lands to be added to the district or easement. The landowner perceives a time frame of 6 – 7 months
for creation of the lots.
Mr. Tassone asked if the landowner intends to sell an easement quickly.
Mr. Shertz confirmed this. The
landowner feels he may require more than 2 acres for the lot to accommodate
access and that is the reason he is withholding 10 acres. Mr. Birney wants to make sure that his nephew
is well covered. The question of
potential development came up at the County local meeting with the County
Agricultural Development and Planning Commission.
Mr. Doug Wilson stated that he was concerned that the landowner should
not hurt himself in his easement application. He wanted to make sure that the landowner
understands that the approach he is using to achieve his goals may
significantly impact any easement application he might submit.
Mr. Tassone commented that the Board will be approving an excluded
acreage that can accommodate perhaps more than three lots. He was concerned because this is beyond the
MALPF policy guidelines.
Bill Amoss, Program Administrator,
Mr. Conrad commented that if the landowner takes any discount at all on
the property that he puts under an easement, the IRS will look into the
adjacent property that he owns and chances are good that the landowner will
lose at least some portion of that discount.
Mr. Colhoun asked Mr. Shertz if it would help to discuss the issues with
Mr. Birney before proceeding further.
Mr. Shertz stated that he understands the issue, but Mr. Birney is more
comfortable to have the district created as requested. Mr. Shertz perceived
that Mr. Birney wants to participate in the MALPF Program because of the location,
size, etc., of this property.
Mr. Doug Wilson commented that MALPF's current
policy will allow only subdivision to support three development rights. In a normal situation the request would be
turned down because it would support ten development rights.
Mr. Tassone explored the possibility of approving the request, but with
the condition that the County and the landowner ascertain what would support
the three development rights, and MALPF Board would approve the exclusion of
that number of development rights.
Tammy Buckle, Program Administrator,
Mr. Shertz commented that if the Board approves the request with that
additional requirement, that the landowner would need to sign the agreement anyway,
so would understand the condition. He
can check with the landowner.
Motion #9: To approve the request of Lawrence J. Birney to establish an agricultural land preservation
district on his property with the condition that the landowner would acknowledge
that the excluded acreage would support no more than three development rights.
Motion: Doug Wilson Second: Joe Tassone
Status: Approved
Mr. Conrad commented that Ms. Forrester and Ms. Council will draft the
text of what they would like to have and send it to the landowner with copies
to the Program Administrator.
C.
1.
This is a 192.418-acre parcel located in west of
2.
This is a 74-acre parcel located north of
Charles Rice, Program Administrator, was available to answer questions
from the Board members.
Motion #10: To approve the request of Constrander, LLC, to establish agricultural land
preservation districts on their properties.
Motion: Doug Wilson Second: Robert Stahl
Status: Approved
3.
This is a 60.42-acre parcel located southwest of
The landowner plans to sell Charles County TDRs
and will not pursue a MALPF easement on this property.
Staff recommends approval subject to amending
the District Agreement to state that an easement will not be bought on this
property.
Motion #11: To approve the request of David H. Posey
to establish an agricultural land preservation district on his property subject
to amending the District Agreement to state that the Foundation will not buy an
easement on the property.
Motion: Joe Tassone Second: Judith Lynch
Status: Approved
IV. PROGRAM POLICY
A.
Wetland Mitigation Easement Policy – an update by Mr. Joe Tassone
Mr. Conrad reminded the Board
about the additional handout circulated at the meeting. It contained comments from Mr. Wally
Lippincott, Program Administrator,
Mr. Tassone circulated a
one page summary of the Wetland Mitigation Committee.
__________________________________________
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. Use a 2-step process.
Step 1: Staff
and sister agencies would screen applications and provide opinions to the Board
accordingly, after determining if the proposed mitigation would:
·
Achieve legitimate resource conservation purposes consistent with
NRCS guidelines.
·
Affect limited acreage on a farm, commensurate with both the
resource conservation purpose and the Foundation's interest in the production
potential of the farm, and
·
Facilitate development that is consistent with state and local
plans and policies and the Foundation's goals and objectives.
Step 2: The
Board would consider proposals based on the judgment of staff, based on the
results of the screening information.
When projects meet the above criteria and are
approved by the Board, the Committee recommends that the Foundation allow
·
Overlay wetland mitigation easements on approved acreage, which
would remain under the terms of the Foundation's easement, which would be
adjusted to accommodate mitigation, 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.
Decision Points: Issues not completely Resolved by the
Committee
I.
Some Committee members are not comfortable with the
recommended policy to generally "discourage wetland mitigation on MALPF
easements and districts." See
report for details attached with staff memo.
II.
Consideration of the development enabled by proposed
mitigation. Not all Committee members feel this should be a criterion for
review and approval. See report for
details (attached with staff memo), and issue IV for another point of view.
III. Some Committee members have concerns about State easements
being used to provide a land base for developers' mitigation projects. See report for details (attached with staff
memo).
IV. Concerns/ suggestions from Program Administrators; concern: use of mitigation to increase lot yields (in
rural areas?). Suggestion: with regards to development purpose, simply
require landowner to demonstrate substantial public benefits; provide a
framework for acceptable types of development, per the Uses Committee's
guidelines for allowed uses.
__________________________________________
Mr. Colhoun
encouraged everyone to read the report and offer their comments.
Mr. Tassone stated that
one of the decision points about requiring a payback from the landowner is no longer
presented in the summary because Craig Nielsen, Assistant Attorney General,
Department of Agriculture, felt it to be illegal.
Mr. Stahl commented that
it is important to focus on whether or not the creation of wetlands is
beneficial to the farm and believed the Board's decision has to be whether or
not the creation of the wetland on the farm is beneficial to the farm and
beneficial to the area. Philosophically,
he differed from Mr. Lippincott's suggestion on the
way the criterion of facilitating development is treated. Theoretically, we are preserving the farm area,
but we are also creating an opportunity for additional development in other
areas.
Mr. Stahl stated that he
does not disagree with the comments of Baltimore County Agricultural Land
Preservation Advisory Board, "Broadly speaking, we recommend that the
Foundation generally discourages wetland mitigation on MALPF easements and
districts, but consider wetland mitigation proposals from landowners on a
case-by-case basis." But he disagrees
with the statement that "The Baltimore County Advisory Board has a
philosophical problem with the purchase of easements to eliminate or discourage
development and then if its possible uses permit
developers to get more lots or greater yield through mitigation projects on
easements." Mr. Stahl believed
theoretically that is the definition of a TDR Program.
Mr. Tassone stated that
assuming that someone is requesting mitigation on their easement and the
development project for which it is required is a residential subdivision on
rural land, the developer can get additional lots if they mitigate for the
wetlands. Mr. Tassone
believed that
To help the Board
members, Mr. Colhoun stated that in the RC 4 zone of
Baltimore County, 70% of the tract must be preserved and only 30% developed. No agricultural easement land can be used to
comply with the 70% preserved land requirements. Therefore, development mitigation will not be
allowed on easement land.
Mr. Tassone thanked Mr.
Colhoun for the clarification. Mr. Tassone believed that, if the Board followed the
Committee's recommendations for types of development, the Board would not
support that.
Barbara Polito, Program
Administrator,
Mr. Tassone stated that
Wetland Mitigation banks are reserved land which can be used to meet wetlands
mitigation requirement for development.
Mr. Stahl commented that
theoretically "if the landowner knew to whom he was selling in advance,"
it is called a Wetland Mitigation Bank. If
you are creating a bank with the 2 acres and you had 2 acres worth of
mitigation, theoretically the landowner will come to the Board and inform that
he wants to create wetland mitigation because it is good for the farms. He would say that he wants to do that, but he
wants to bank the mitigation credits. He
does not know where the development is.
Ms. Polito wanted to
know how to deal with such situations.
Mr. Tassone
stated that it is not something that the Committee discussed. He was not sure whether the Committee would
want to include the evaluation of the development that results as a
pre-condition for approving or not approving the Committee's recommendations. Intuitively his inclination was if somebody
wants to do that and they meet all the other criteria, that is
fine, but we have to agree on the kinds of development projects for which the
credits can be used.
Mr. Colhoun stated that
approving mitigation on MALPF land should be reviewed by Maryland Department of
Planning. The report contains checks and
balances and, based on that, the Board can decide whether to approve or not
approve a bank.
Ms. Buckle stated that
she is a little confused because it looked as if the Committee was focusing
more on projects at hand and off site. Ms.
Buckle thought the Committee would focus more on the easement property itself;
how many acres are going to be used, where it is going to be placed on the
property, is there going to be Soil Conservation Plan, is it going to be in the
best interest of the farming operation.
Mr. Colhoun believed Mr.
Tassone has addressed those checks and balances in his report. The report gives the Board members and
landowners a set of rules. Mr. Tassone commented that majority of the report addresses the
issues raised by Ms. Buckle.
Mr. Stahl commented that
he has the ultimate respect for what Mr. Tassone has presented in his report. Mr. Tassone is a
planner representing State Planning and has to look at those issues. As a member of the MALPF Board, Mr. Stahl felt
that the Board is trying to encourage agricultural land preservation and MALPF
is concerned about the preservation of the farmland. Now the Board is required to reflect and look
at external developments to the mitigation site and whether or not that
development project is worthy of mitigation. This requirement is totally different from
what the MALPF Board is charged to do by the State laws.
Mr. Stahl strongly
believed that the MALPF Board needs to focus on preservation on a case-by-case
basis and not to discuss the development implications of mitigation. This will require lot of Board's time and take
it into a different realm.
Mr. Tassone commented
that he and the other Committee members do recognize the point, and that is the
reason they have formulated the recommendation so that the Board won't have to
do any of that. The Board just needs to
get an opinion from the Department of Planning and information from the County.
Mr. Colhoun stated that he
has read the report and Mr. Tassone has clearly outlined the functions of each
agency. The different agencies have to
provide the technical information to the MALPF Board, and the Board can decide
what it needs to do with the information.
Ms. Weaver believed that
the recommendations of the Wetland Mitigation Committee are consistent with the
recommendations of the policy of Wastewater Spray Irrigation and Water Recharge
Committee that resulting growth should take place in the designated growth
areas.
Ms. Buckle wondered what
review criteria would be used and, if a County does not have proper regulations
in place, will the State seek to change county zoning, etc., to influence the
outcomes.
Mr. Tassone responded in
the negative and stated that the review process simply represents an opinion
from the State. The decision making
process at MALPF Board meeting will have no effect on what the County does. The Board would like to know what the County
is doing so that the Foundation can consider it relative to its own interests.
Ms. Buckle wanted to
know what the Foundation would do if it did not like what the County is doing.
Mr. Tassone said that
the MALPF Board would not necessarily turn down any request. The MALPF Board would seek an opinion which
would say that it is or is not consistent with the Foundation's interest or
State's Planning Policy, and the MALPF Board would explain its conclusions. It will be just like the situation where MALPF
Board looks at Soil Conservation District's recommendations about acreage and
resource conservation purposes. The
Board will state that it looks it is well supported and recommend approval. According to the Committee recommendations,
the sister agencies have no approval or disapproval authority. It simply presents the information to the
Board, and it is ultimately the Board's responsibility to decide.
Mr. Stahl stated that
this policy would put a tremendous onus on the landowners. If he was an easement property owner and
concerned about a wetland mitigation project, he will have to worry about the
developer he is selling to and figure out the whole project. It is a totally separate issue. Illustrating an example, Mr. Stahl stated the
Board can ask Mr. Posey (Charles County District applicant) to indicate to the
MALPF Board where he intends to put his TDRs in
Mr. Colhoun believed
that this is a well thought out report and encouraged Board members and program
administrators to study the report carefully.
Bill Amoss, Program
Administrator,
At Mr. Colhoun's request, Mr. Amoss has
put these concerns in an
e-mail that is attached to these minutes.
Ms. Buckle commented
that she has to remind herself that MALPF is preserving the land. She was involved with Land Uses Committee, and
the Committee tried to change the uses to allow farmers to continue to farm. Policies like Wetland Mitigation, Wastewater
Spray Irrigation, Water Recharge, Forest Mitigation, etc., help the farmers to
pass the property on to the next generation. So it is not necessary always a bad thing, but
she does see the need for a review process.
Mr. Colhoun commented
that all the MALPF Board's policies are to develop good solid information to
help the Board make good decisions.
Mr. Stahl stated that
larger projects tend to do more off-site mitigation. Most types of residential development usually
do mitigation on site, projects such as gas pipelines do not have the ability
to set aside land where mitigation can be done.
Mrs. Schultz remarked
that she was glad to hear Mr. Amoss' comments on the
Mr. Tassone commented
that he understands and has some sympathies for that perspective. In broad terms the way we define criteria for
this process says that what the landowners will be getting paid for is a
conservation practice that is consistent with good soil conservation and water
quality purposes; in fact, it is a best management practice and is both
desirable and appropriate for the farm.
Mr. Colhoun asked the
Board members and the program administrators to go through the report and mark
the comments as to what exactly they feel, like, don't like, and forward to Mr.
Tassone. Mr. Tassone
can put it together, and the Committee members can work with this revised
document.
Mr. Tassone wanted to
comment on Mr. Lippincott's recommendation on
reviewing the development project enabled by the wetland mitigation. Mr. Lippincott is
recommending putting the onus on the landowner to prove that substantial public
benefit will result from the development project. Part of Mr. Lippincott's
idea is appealing to Mr. Tassone, but he did not feel
it is a reasonable thing to ask the landowner.
B.
Recertification Request from St. Mary's County
St. Mary's County has submitted an application
for Certification of a local Agricultural Land Preservation Program and is
requesting Foundation approval. Below are some highlights:
·
The County continues to commit funding for the Agricultural
Preservation Program, allowing the County to participate in matching funds
programs including MALPF and Federal Farmland Protection.
·
During the reporting period, the County preserved 5,631 acres of
agricultural land and woodlands through the MALPF program.
·
More than 10,509 acres have been preserved through a combination
of MALPF, Rural Legacy, MET, Maryland Historical Trust, and other easement
programs.
·
The County continues to demonstrate a very strong commitment to
preserving its agricultural lands.
The staff's review of St. Mary's County's
re-certification request, addressing general operations of the program,
qualifying expenditures and program development strategies was sent with staff
memo.
The Foundation staff recommends that St. Mary's
County be recertified as the County's local program continues to be successful
in supporting viable agricultural operations and preserving agricultural land
in perpetuity.
Donna Sasscer, Program
Administrator, and Dan Rosen, Planner, Department of Planning, were available
at the meeting.
Mr. Rosen stated that
the Department of Planning recommends recertification. The County has preserved 9,700 acres in eight
years through a combination of MALPF, Rural Legacy, and MET. During that time, the County spent on
easements almost $3.5 million of county funds other than agricultural transfer
tax. Mr. Rosen stated the County, in its
Land Preservation, Parks, and Recreation Plan (LPPRP), did a thorough job
evaluating their program strengths, weaknesses and steps to be taken in future.
Mr. Rosen stated that
even though the County says preserved 9,713 acres in the eight years, 10,556
were converted to development. The
conversion figure for the "average"
During the 15-year
period from 1990 to 2004, there were eight years when more than half of the
lots created in the County were in the rural preservation district. The County has recommended changes such as
creating a
Mr. Rosen mentioned that
down zoning in the County did take place, from 1:3 to 1:5. The County's report said that it "had
virtually no effect on the pattern of substantial percentages of new lots being
created in the rural zone."
Mr. Rosen quoted from
the County's report that "at current rates of development and easement
purchase, the County will, by 2013, have lost even a pool of farmland
sufficient to meet its 60,000-acre goal."
Mr. Tassone
informed the Board members about the provision in HB 2. As per HB 2, as of
Mr. Conrad believed that
there was an agreement by the Board of County Commissioners to downzone the
area that was included in the new approved Rural Legacy area. Mr. Conrad wanted to know if it has been done.
Ms. Sasscer stated that
the previous Board of Commissioners did adjust the TDR program in the new Rural
Legacy Area. Zoning allows just one
dwelling per five acres, and there is no ability to do one dwelling per three
acres using TDRs. The proposal on downzoning
was on the table of the previous Board of Commissioners, but then the elections
came up.
Mr. Conrad asked if it
would be helpful if the recertification letter is sent quickly to the County. Ms. Sasscer
confirmed this.
Motion #12: To approve the recertification request
from St. Mary's County.
Motion: Chris Wilson Second: Robert Stahl
Status: Approved
C. MARBIDCO COOPERATIVE AGREEMENT
Proposed Cooperative
Agreement with MARBIDCO (the
Mr. Conrad circulated an updated version of the
proposed Cooperative Agreement between MALPF and MARBIDCO intended to define
the relationship between the organizations in the development and
implementation of the installment purchase agreement (IPA) program. Since he handed out an earlier version at the
December meeting for comments, he has incorporated a number of suggestions and
comments from various sources. With one
exception, the changes have been for purposes of clarification and
organization. Some items have been
removed as being more appropriately placed in the contract between the IPA
Counsel and MARBIDCO. Some items have
been added to clarify the responsibilities of the two organizations. The one substantive change is that the final
provision (G) has been broadened to include a joint examination of all of the
statutory requirements and provisions of the MALPF Program and whether any may
adversely affect the tax status of IPAs.
If any problems are identified, MALPF and MARBIDCO will work together to
find ways to resolve the problems.
The MARBIDCO Board of Trustees has given
tentative approval to an earlier version of this document. The Request for Proposals to hire the IPA
Counsel through MARBIDCO has not yet been released, but is expected to be
issued any day. The Cooperative
Agreement needs to be finalized before a contract is signed with the IPA
counsel. If it is at all possible, Mr.
Conrad would like to have the IPA option in place for participants in the 2007
easement acquisition cycle.
Mr. Conrad would like the MALPF Board of
Trustees to approve this Cooperative Agreement subject to final review by the
Office of the Attorney General and the staff and Board of Trustees of MARBIDCO
and addressing any concerns that may be raised.
If this review produces substantive change in the text of the Cooperative
Agreement, MALPF staff will bring this document back for a final review and
approval before it is signed.
Motion #13: To approve the proposed Cooperative
Agreement with MARBIDCO (the Maryland Agricultural and Resource Based Industry
Development Corporation).
Motion: Doug Wilson Second: Robert Stahl
Status: Approved
V. INFORMATION AND
DISCUSSION
A.
Proposed Bill for the 2007 Legislative Session concerning MALPF
Grants to Counties
Delegate David Rudolph,
Mr. Conrad stated that this is an informational
item.
Delegate David Rudolph from
One possible issue created by this legislation
is that any county choosing to issue bonds to purchase in one or a few number
of years more MALPF easements than it would be able to obtain through the
general allocation and the matching funds program would probably not be able to
take advantage of leveraging state matching funds in the years that it is not
purchasing easements, but rather using its MALPF allocation to service debt. A similar situation exists now (and will
continue to exist, assuming no changes) when counties choose to commit 100%
county funds to MALPF offers beyond that available through that year's general
allocation and matching funds program:
there is no provision that allows a county willing to commit additional
money in one year to use that additional commitment in years when matching fund
commitments are not made.
There are several possible strategies that Delegate
Rudolph is considering for this proposed language. One is to roll it into the Critical Farms
Program legislation that will be provided to the General Assembly as soon as it
is reviewed by the Governor's Office.
This strategy could make sense because of the language in the proposed
Critical Farms legislation requires changes in the same section of the Code. It could also be introduced as standalone
legislation, or incorporated into a departmental bill that proposes to alter
language in this subtitle and section of the Code. How he chooses to approach the legislation
will depend in part on any suggestions and/or comments that may come from the
MALPF Board and from the review of the Critical Farms Program Report by the
Governor's Office.
In addition to a review of this legislation by
the Board, any comments or suggestions from county program administrators
and/or members of the Advisory Boards would also be welcomed. Comments or suggestions outside of the Board
meeting should be directed to Mr. Conrad.
Mr. Doug Wilson commented that when MALPF was
created it was the only program of its kind. MALPF had a formula on how to allocate money,
and the County had few extra dollars. The County committed those extra dollars as
matching funds and leveraged additional state funds to purchase easements. The Counties had the ability to use the
agricultural transfer tax revenues either as matching funds or to fund any
other agricultural land preservation program they wanted to. Most of them utilized the agricultural transfer
tax to create their own local program to complement the State program.
Lately MALPF has had many jurisdictions
providing millions of dollars to the Foundation, either as matching funds or as
100% county-funded offers. If a county
had its own program, it could use the same dollars and buy easements for its
own program. Every year MALPF has a
couple of jurisdictions that don't bring anything to the table in matching
funds. The county brings only one or two
applicants forward to utilize the round one money of the Foundation. Some counties even forgo their general
allocation money.
Mr. Doug Wilson stated that, instead of the
counties giving money to the Foundation to make 100% county-funded offers, the
Foundation is giving the county money to make 100% State-funded offers. This bill really talks about MALPF giving
State funds to the county to fund its own program. Some people may argue that, if everybody does
that, there is no reason for the Foundation to run a State program.
Mr. Doug Wilson commented that, while it sounds
nice on its surface, what the proposed bill actually does is it displaces what
the counties had to do previously: generate
their own revenue, find a way to service their own debts, come
up with their own general fund allocation. The Foundation becomes the grantor of the
money. He believed the bill's use is
strictly limited to grants. The
Foundation becomes a grantor of local government programs.
Mr. Conrad noted that the proposed bill states
"the purchase of agricultural land preservation easements that meet the
requirements of this subtitle" which means that counties are purchasing
easements through the Foundation. They
want the ability to service their debt. The
bonds would have to be general obligation bonds against their overall revenues
in the counties. They just want an
ability to get their general allocation for the years they are not spending
their money on MALPF easements.
Mr. Doug Wilson commented that they can say this
year they have tight general funds in their county,
they don't want to take revenues that were originally pledged to service debts.
They would say that they plan to put the
dollars in their general funds for social welfare, and they would ask the
Foundation for $500,000 (that is what their allocation would be). Mr. Doug Wilson believed every year this might
be an issue as long as MALPF gets funding.
Mr. Stahl asked whether this is specifically applicable
to County's portion of agricultural transfer taxes. Mr. Doug Wilson answered in negative and stated
that it covers everything.
Mr. Stahl was concerned that it makes the Board
similar to Rural Legacy Advisory Board, which is just giving out grants.
Mr. Conrad stated that the easements are still
purchased by the Foundation. The bond
money actually does come to the Foundation, but the Foundation could be asked
for grants of a county's general allocation to service that bond debt in the
years when the county has no new applications.
Mr. Doug Wilson commented that the Foundation's
role is to preserve farmland, and this bill facilitates preservation of more
land more quickly. On the other hand,
the bill has certain repercussions. Mr.
Doug Wilson was concerned that five years in the future the Foundation's main
role may become giving away funds to fifteen counties of the twenty three counties.
Mr. Conrad asked Mr. Shertz about the status of
discussion about developing a local program and dedicated funding in
Mr. Shertz stated that this is the first time he
has heard about this particular bill. He
was aware that the Delegate was working on something, but he was not aware of
the scope of the bill.
Mr. Stahl was concerned that the proposal is
coming from one of the smaller, rural and poorer counties. He can understand if it came from
Mr. Conrad commented that the original language
the Delegate had drafted focused narrowly on the bonds. Mr. Conrad and Ms.
Forrester had worked to develop the language of the present proposed bill.
Mr. Colhoun recommended Mr. Conrad and Ms.
Forrester to work on the proposed bill and did not feel it necessary for the
Board to take any action at the moment.
James Pelura, Board member, saw the proposed bill
as an attempt to use MALPF as a funding mechanism.
There
being no further business, Mr. Colhoun asked for a motion for adjournment of
the meeting.
Motion #14: To adjourn regular session.
Motion: Joe Tassone Second: Robert Stahl
Status: Approved
The
regular session of the Board meeting was adjourned at approximately
Respectfully
Submitted:
_____________________________________
Rama
Dilip, MALPF Secretary
__________________________________
James
A. Conrad, Executive Director