Section 22.10 - Transfer or Sale of an APR ParcelWhere the APR provides for a Right of First Refusal, an Option to Purchase Real Estate at Fair Market Agricultural Value, or a similar right at the time of sale held by the Department, unless otherwise provided by the specific terms of an APR, the following provisions shall apply, in addition to any Department guidelines for waivers approved by the ALPC and in effect at the time of the notification of sale:
(1)Proposed Sale or Conveyance of an APR Parcel. If an APR Parcel is subject to a Right of First Refusal or Option to Purchase Real Estate at Fair Market Agricultural Value, and the Owner receives an offer to purchase, the Owner shall notify the Department in writing. The written notice of intent to sell shall, at a minimum, include copies of the following: the offer to purchase; purchase and sale agreement and amendments; any appraisal prepared for proposed sale, and any appraisal prepared for sale at which Owner acquired the APR Parcel; other relevant documents pertaining to the proposed sale Notice shall include, if applicable, a letter from Owner requesting a waiver, and in the case of an Option to Purchase Real Estate at Fair Market Agricultural Value or Right of First Refusal, an offer to sell the APR Parcel to the Commonwealth pursuant to the terms of the Option to Purchase Real Estate at Fair Market Agricultural Value or Right of First Refusal.(2)Proposed Sale or Conveyance of Excluded Land. In the event that the proposed sale or conveyance contains agricultural or other land not subject to the APR, Owner shall also provide a written apportionment of values in the purchase and sale agreement, if relevant, as between the APR Parcel and the land/Structures not subject to the APR.(4)Automatic Waiver of Right to Purchase. The Department shall issue a Waiver upon finding all the criteria in 330 CMR 22.10(4)(a) through (e) has been met, however, if the criteria in 330 CMR 22.10(4)(a) through (e) has not been met, the Department may issue a discretionary waiver pursuant to 330 CMR 22.10(5): (a) The Owner has: 1. received a good faith offer;2. submitted to the Department a certified copy of an executed purchase and sale agreement for fixed consideration payable upon delivery of the deed for an APR Parcel;(b) The Potential Purchaser is a Farmer and has been a Farmer for a period of two years of the last five years immediately preceding the date of the notice of intent to sell;(c) The Potential Purchaser submits a Farm Business Plan which the Department determines is complete and presents a viable and achievable plan that is compatible with the APR and APR Parcel location;(d) If the Purchase Price is 20% or more than the Fair Market Agricultural Land Value, the Farm Business Plan must additionally include a written justification that the Department deems valid. Such valid justification for an increased purchase price may include valuation for Fair Market Agricultural Business Value and Fair Market Dwelling Value; If the Owner does not determine the Fair Market Agricultural Land Value, the Owner may be eligible for a discretionary waiver pursuant to 330 CMR 22.10(5); and
(e) The Potential Purchaser has no prior record of a violation of the written agreement or terms of any APR held by the Commonwealth. The Department may waive this requirement if the violation is deemed Minor.(5)Discretionary Waiver of Right to Purchase. The Department may issue a Waiver upon finding all the criteria in 330 CMR 22.10(5)(a) through (e) has been met: (a) The Potential Purchaser is a: 3 nonprofit corporation organized for the purposes of leasing land to one or multiple Farmer(s) or Beginning Farmer(s);(b) The Potential Purchaser provides a Farm Business Plan, which the Department determines is complete and presents a viable and achievable plan that is compatible with the APR and APR Parcel location. The Farm Business Plan must specifically include the following, if the Potential Purchaser is a: 1. Farmer, the Farm Business Plan must include the total acreage of the current farming operation and number of years in business;2. Beginning Farmer, the Farm Business Plan must list:a. other relevant professional experience, degrees, courses, workshops, education and training; andb. a Financial Plan must be provided.3. nonprofit corporation, the Farm Business Plan must be written by the Farmer(s) or Beginning Farmer(s) to whom the corporation intends to lease the APR Parcel and the purposes of the organization must be demonstrated by providing the Articles of Incorporation;(c) The Potential Purchaser has no prior record of a violation of the written agreement or terms of any APR held by the Commonwealth. The Department may waive this requirement if the violation is deemed Minor;(d) The Owner has complied with any specific terms enumerated in the applicable Right of First Refusal or Option to Purchase Real Estate at Fair Market Agricultural Value; and(e) If the APR requires a determination of Fair Market Agricultural Value and the Purchase Price is 20% or more than the Fair Market Agricultural Value, the Farm Business Plan must additionally include a written justification that the Department deems valid. Such valid justification for an increased purchase price may include proximity to other land owned or leased by the Potential Purchaser; unique characteristics of APR Parcel; and purchasing agricultural or other land not subject to the APR with the intention of operating the APR Parcel in conjunction with the other land as one Farm.(6)Exercise of Right to Purchase. If the Potential Purchaser does not qualify for an Automatic or Discretionary Waiver, the Department may seek to exercise its right to purchase and assign the right to purchase the APR Parcel. In the event the Department exercises its right to purchase, the Department shall send the Owner a notice of election to purchase not more than three business days after said decision is made. The notice of election to purchase shall be in writing and include, at a minimum, the procedural next steps with timeframes including when the land will be assigned.(7)Statement of Interest. Upon the Department exercising its right to purchase, the Department may then solicit from the public Statements of Interest from those persons or entities seeking to be assigned the right to purchase the APR Parcel. The Statements of Interest shall be posted on the Department's website (https://www.mass.gov/orgs/massachusetts-department-of-agricultural-resources and include an itemized list of the documents required. In some cases the APR document restricts who may be eligible to receive such assignment.(8)Assignment of Right to Purchase. In order for the Department to assign the right to purchase the APR Parcel, the Department must find all the below criteria have been met:(a) The Owner has not withdrawn their offer to sell pursuant to 330 CMR 22.10(9);(b) The Potential Assignee complied with the terms of the request for Statements of Interest;(c) The Potential Assignee satisfies the discretionary Waiver criteria in 330 CMR 22.10(5)(a) through (c); and(d) If there is more than one qualified Potential Assignee, the Owner shall select the Potential Assignee.(9)Right to Withdraw. An Owner shall have the right to withdraw the Owner's notice of intent to sell at any point prior to the Department's exercise or assignment of the Right of First Refusal or an Option to Purchase Real Estate at Fair Market Agricultural Value. An Owner's decision to withdraw a notice of intent to sell shall not affect an Owner's right or obligation to submit to the Department any future offer to purchase the APR Parcel.Amended by Mass Register Issue 1340, eff. 6/2/2017.Amended by Mass Register Issue 1396, eff. 7/26/2019.