Md. Code Regs. 15.15.01.03

Current through Register Vol. 51, No. 18, September 6, 2024

Section 15.15.01.03 - Agricultural Preservation Districts

A. Conditions for Establishment.

(1) To establish a district, a landowner shall:

(a) File a petition as provided under §B of this regulation; and

(b) If the petition is approved as provided under this regulation, execute a district agreement in the form prescribed by the Foundation, agreeing, among other things, that the following covenants, conditions, and restrictions contained in it run with the land covered by the agreement for so long as the agreement remains in effect:

(i) The landowner agrees to keep the land in agricultural use in a district for, except as otherwise permitted by law, a minimum period of 5 years from the date the district agreement is recorded in the land records of the county where the district is located,

(ii) The landowner agrees not to use the land for any commercial, industrial, or residential purpose, except as otherwise permitted by Agriculture Article, § 2-513, Annotated Code of Maryland,

(iii) The landowner agrees not to subdivide the land for any purpose unless the Foundation first has approved the proposed subdivision, and

(iv) The landowner agrees not to construct buildings or structures on the land that are not designed or intended to be used for agricultural purposes unless the Foundation first has approved the proposed construction.

(2) The Foundation may only purchase an easement on land in a district.

B. Petition for Establishment.

(1) One or more owners of land actively devoted to agricultural use within an eligible county may voluntarily file a petition with the county governing body requesting the establishment of an agricultural preservation district composed of the land owned by the petitioners.

(2) The petition shall include a general description of each land parcel including acreage and the current use of the land and shall be accompanied by a map or plat of each subject parcel at a scale no smaller than 1 inch equals 600 feet (copy of tax map will meet requirement).

(3) The petition also shall be accompanied by a district agreement for each subject parcel signed by the landowner or landowners.

(4) The petition and district agreement shall be submitted to the local governing body.

C. Agricultural Preservation District Establishment-Procedures.

(1) Referral of Petition.

(a) Upon receipt of a petition to establish an agricultural preservation district, the local governing body shall refer the petition and accompanying materials to both the agricultural preservation advisory board and to the county planning and zoning body.

(b) Within 60 days of the referral of a petition, the agricultural preservation advisory board shall inform the county governing body whether the land in the proposed district meets the qualifications established by the Foundation under §D of this regulation, and whether the advisory board recommends establishment of the district.

(c) Within 60 days of the referral of a petition, the county planning and zoning body shall inform the local governing body whether establishment of the district is compatible with existing and approved county plans, programs, and overall county policy, and whether the planning and zoning body recommends establishment of the district. In the process of review, the local planning and zoning body shall consider compatibility of district establishment with State and local plans and programs.

(2) If either the agricultural preservation advisory board or the planning and zoning body recommends approval, the county governing body shall hold a public hearing on the petition. Adequate notice of the hearing shall be given to all landowners in the proposed district, to landowners adjacent to the proposed district, as far as feasible, and to the Foundation. If neither body recommends approval of the petition, the local governing body shall deny the petition and notify the landowner or landowners and the Foundation stating the reasons for the denial.

(3) Approval of Petition.

(a) Within 120 days after the receipt of the petition, the county governing body shall render a decision on whether the petition shall be recommended to the Foundation for approval.

(b) If the county governing body decides to recommend approval of the petition, this body shall so notify the Foundation and forward to the Foundation the petition and all accompanying materials, including the recommendations of the advisory board and county planning and zoning body, and a composite property boundary map of the proposed district.

(c) If the county governing body recommends denial of the petition, it shall so inform the Foundation and the petitioner or petitioners, stating the reasons for this denial.

(4) The Foundation may approve a petition for the establishment of an agricultural preservation district only if:

(a) The land within the proposed district meets the qualifying criteria established under §D of this regulation;

(b) Approval of the petition has been recommended by the county governing body; and

(c) Establishment of the district is approved by a majority of the Foundation Board of Trustees at-large, by the Secretary, and by the State Treasurer.

(5) The Foundation shall render its decision on a petition to establish an agricultural preservation district within 60 days of the receipt of the petition, and shall inform the county governing body and the petitioner (or petitioners) of its decision.

(6) If the Foundation approves the petition, the agricultural preservation district shall be established by the county governing body. However, the establishment may not take effect until all parties have executed agricultural preservation district agreements and until these agreements have been recorded in the land records of the county. The Foundation shall do the recording. The Foundation shall notify the landowner and the local governing body of the effective date of district establishment.

(7) Ordinance.

(a) Each county shall establish an ordinance relative to all agricultural preservation districts.

(b) The ordinance shall provide that, within the district:

(i) Any farm use of land is permitted;

(ii) Operation at any time of machinery used in farm production or the primary processing of agricultural products is permitted; and

(iii) Normal agricultural operations performed in accordance with good husbandry practices, which do not cause bodily injury or directly endanger human health, are permitted, including the sale of farm products produced on the farm where the sales are made.

(8) Local governments are encouraged to minimize regulatory requirements for non-residential farm structures and related agricultural improvements.

(9) The establishment of a district does not grant the public any right of access or right of use of subject properties.

D. Agricultural Preservation Districts-Qualifying Criteria.

(1) Productive Capability Criteria.

(a) Agricultural preservation districts shall consist of land which is either used primarily for the production of food or fiber or is of such open space character and productive capability that continued agricultural production is feasible.

(b) Soils Criteria.

(i) The majority of the land of any district shall consist of U.S.D.A. Soil Capability Classes I, II, and III;

(ii) The majority of the land area of any district shall consist of U.S.D.A. Woodland Groups 1 and 2 which are applied to wooded areas only;

(iii) The majority of the land area of any district less the acreage contained within the 100-year floodplain as delineated on Flood Hazard Boundary Maps produced by the Federal Emergency Management Administration and State or federal designated wetlands shall consist of U.S.D.A. Soil Capability Classes I, II, and III on cropland and pasture or Woodland Groups 1 and 2 on wooded areas only;

(iv) A minimum of 60 percent of the land area of any district shall consist of U.S.D.A. Soil Capability Classes I, II, and III on cropland and pasture and Woodland Groups 1 and 2 on woodland areas; or

(v) A minimum of 60 percent of the land area of any district less the acreage contained within the 100-year floodplain and State or federal wetlands shall consist of U.S.D.A. Soil Capability Classes I, II, and III on cropland and pasture and Woodland Groups 1 and 2 on wooded areas.

(c) Exceptions to §D(1)(b)(i)-(v) of this regulation may include land areas of lower soil capabilities, but with a rating similar to Classes I, II, and III on cropland and pasture and Woodland Groups I and II on woodland areas. Land with lower soil capabilities may qualify to be in a district if the soils on the applicant's farm otherwise comply with all the requirements of this section and the applicant submits to the Foundation a letter from the appropriate U.S. Department of Agriculture district conservationist that states that the soils on the applicant's farm have a cropland or pasture rating similar to Classes I, II, and III, or Woodland Groups I and II. Farm areas with extensive specialized production, including but not limited to dairying livestock, poultry, fruit, or berry production may also be considered by the Foundation to be included in a district.

(2) District Size Criteria.

(a) An agricultural preservation district shall be 100 contiguous acres. However, a parcel of less than 100 acres may qualify as a district if:

(i) It adjoins a 100-acre parcel which has been approved by the Foundation as an agricultural preservation district;

(ii) It is added to one or more adjoining parcels which together have been approved by the Foundation as agricultural preservation districts;

(iii) The land has extraordinary agricultural capability as provided by §D(5) of this regulation and is of significant size; or

(iv) It adjoins land subject to a recorded instrument which permits agricultural activities and contains restrictions that are the same as or more stringent than those found in the Foundation's deed of easement, and the collective mass of these lands total at least 100 acres.

(b) The Foundation may not purchase an agricultural preservation easement from a landowner of a district of less than 100 acres unless:

(i) It is contiguous to a district or districts on which a 100-acre easement has been purchased;

(ii) The landowners in the adjoining districts which are each less than 100 acres but total at least 100 acres accept the Foundation's offer to purchase an easement;

(iii) The land has extraordinary agricultural capability as provided by §D(5) of this regulation and is of significant size; or

(3) Locational Criteria. Land within the boundaries of a 10-year water and sewerage service district may be included in an agricultural preservation district only if that land is outstanding in productivity and is of significant size. Note: Refer to County Water and Sewerage Plan.

(4) Agricultural land which is otherwise qualified for district establishment and is comprised predominantly of land of lower general capability also may meet minimum qualifying criteria if the following conditions are met to the satisfaction of the Foundation:

(a) The agricultural preservation advisory board of the county in which the land is located shall obtain general information from the Agricultural Extension Agent and specific written information from the soil conservation district in the county, and such other sources as might be applicable, addressing the long-term productivity of the land and farm management practices, and shall forward this documentation to both the local governing body and to the Foundation; and

(b) The agricultural preservation advisory board shall state in its recommendations, with the advice of the applicable soil conservation district, that an approved soil conservation plan is being implemented.

(5) For the purpose of this chapter, land has "extraordinary agricultural capability" if it:

(a) Has a soil conservation plan approved by a local soil conservation district, fully implemented according to a schedule in the plan;

(b) Is located in an area designated by a county for agricultural preservation;

(c) Is recommended by the majority of the Foundation's Board of Trustees after an on-site inspection is conducted by one or more members of the Foundation; and

(d) Meets either of the following:

(i) Has at least 60 percent of the land area consisting of U.S.D.A. Soil Capability Classes I, II, and III, or U.S.D.A. Woodland Groups 1 and 2 which are applied to wooded areas only, or

(ii) Has a minimum of 72 percent of the land area less any acreage included within the 100-year floodplain and less any acreage included in State or federal wetlands consisting of a combination of U.S.D.A. Soils, Class I, II, and III on cropland and pasture and Woodland Groups 1 and 2 on wooded areas.

E. Additions to Existing Districts. The procedures for adding land to existing districts shall be the same as for the initial establishment of districts. There is no minimum size criteria for the addition of land parcels contiguous to an agricultural preservation district.

F. Exclusion of Lots in Districts.

(1) A landowner may request to have excluded from a district certain portions of the owner's property, constituting lots of either 1 acre or less, or, when permitted by Agriculture Article, § 2-513, Annotated Code of Maryland, 2 acres or less, if the purpose for excluding the property is to construct a dwelling house for the owner or the owner's children.

(2) In making this request, the landowner shall follow the procedures described in Regulation .16 of this chapter.

(3) In reviewing the landowner's request, the Foundation shall examine the:

(a) Location of the lot to be excluded;

(b) Potential impact the lot's exclusion may have on the agricultural use of the remaining property; and

(c) Owner's future right, if not already forfeited under §F(4) of this regulation, to have lots released from the Foundation's easement, should an easement be subsequently acquired by the Foundation.

(4) Lots Released from Foundation's Easement.

(a) Lots excluded under this section from property an owner has placed in a district affects the owner's future right under Agriculture Article, § 2-513(b), Annotated Code of Maryland, to have lots released from the Foundation's easement, should the Foundation subsequently acquire an easement in that property.

(b) For each lot excluded from a district under this section, the number of lots a landowner would otherwise be entitled to have released, should the Foundation acquire the easement, will be reduced by one.

(c) As a precondition to releasing a lot from a district under this section, the owner shall sign a statement agreeing to and acknowledging the forfeiture of the owner's right as described in this subsection, to have lots released from the Foundation's easement, should the Foundation acquire an easement.

G. Continuation of Districts. Agricultural districts shall continue in effect indefinitely unless terminated in accord with any of the procedures provided in Regulation .04 of this chapter.

H. Access. In determining questions about easements, rights-of-way, licenses, and other similar servitudes in land subject to a district agreement, the Foundation shall follow the same rules that are applicable to the establishment of these servitudes in land subject to a preservation easement set forth under Regulation .17F of this chapter.

Md. Code Regs. 15.15.01.03

Regulation .03 amended effective July 27, 1987 (14:15 Md. R. 1662)
Regulation .03C amended effective June 4, 1984 (11:11 Md. R. 963); August 27, 1984 (11:17 Md. R. 1493); March 25, 1985 (12:6 Md. R. 597)
Regulation .03 amended effective April 15, 1991 (18:7 Md. R. 773)
Regulation .03D amended as an emergency provision effective July 1, 1992 (19:15 Md. R. 1386); emergency status extended at 19:23 Md. R. 2038; amended permanently effective December 21, 1992 (19:25 Md. R. 2207)
Regulation .03H adopted effective April 15, 1991 (18:7 Md. R. 773)
Regulation .03C amended effective January 19, 2004 (31:1 Md. R. 31)
Regulation .03D amended effective September 8, 1997 (24:18 Md. R. 1296)