HOUSE BILL NO. 200
AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2, 4 AND 5
AN ACT TO AMEND CHAPTER 9, TITLE 3, OF THE DELAWARE CODE TO PROVIDE FOR A COMPREHENSIVE PROGRAM FOR AGRICULTURAL LAND PRESERVATION
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 9, Title 3 of the Delaware Code by repealing in their entirety §§901 through 905 inclusive, and renumbering §906 as §931 under the following Section 2 of this Act, and further amending subsection (a) of such renumbered section by deleting the language which appears after the word "established" in such subsection (a) and inserting in lieu thereof the
"under this Chapter."
The remainder of the renumbered section shall remain unchanged.
Section 2. Amend Chapter 9, Title 3 of the Delaware Code by creating a new Chapter 9 to read as follows:
Delaware Agricultural Lands Preservation Act
SUBCHAPTER I. Establishment of Foundation, Advisory Boards and Fund. §901. Purpose, Policy and Intent.
It is the declared policy of the State to conserve, protect and encourage improvement of agricultural lands within the State for the production of food and other agricultural products. It is also the declared policy of the State to encourage, promote and protect farming as a valued occupation. Preservation of the State's farmlands and forestlands is considered essential to maintaining agriculture as a viable industry and important contributor to Delaware's economy. It is a finding of this legislature that valuable and irreplaceable farmlands and forestlands are being lost due to nonagricultural development pressures and that, to insure the long-term utilization of the State's most viable agricultural lands, it is necessary to adopt and implement an effective program and infrastructure for permanent agricultural land preservation. To the maximum extent possible, State agency action, particularly action involving the exercise of powers of eminent domain, which has an adverse impact on viable agricultural lands, should be avoided or minimized. It is further recognized that a need exists to create sufficient economic incentives and benefits to encourage agricultural landowners to voluntarily place viable agricultural lands under protective restrictions through the creation of and participation in agricultural preservation districts and the sale of development rights. It is the purpose and intent of this legislature to provide for the creation of permanent agricultural areas comprised of viable farmlands and forestlands to serve the long-term needs of the agricultural community and the citizens-of the State.
The following terms shall have the meanings ascribed to them in this Chapter:
(1) "Advisory Board" or "Advisory Boards" means the Farmland Preservation Advisory Boards established and appointed by the respective legislative bodies of each County.
(1) "Agricultural lands" means farmlands and forestlands.
(2) "Agricultural use" means all forms of farming, including agriculture, horticulture, aquaculture, silviculture, and activities devoted to the production for sale of food and other products useful to man which are grown, raise or harvested on lands and waters.
"Agricultural value" means the value of the land when subject to the District restrictions set forth in §909 hereof and the requirements imposed under §914(a)(2) hereof.
(4) "County" means New Castle County, Kent County and Sussex County as referenced.
(1) "Foundation" means the Delaware Agricultural Lands
(1) "Fund" means the Delaware Farmland Preservation Fund.
(2) "LESA" means the Land Evaluation and Site Assessment system adopted by the Department of Agriculture to determine the quality of farmland and forestland and the long-term agricultural viability of such lands.
(3) "Owner" or "Owners" means the person or persons holding fee simple title to farmlands and/or forestlands.
(4) "Person" or "Persons" means any individual or individuals, partnership, joint venture, corporation, association, trust,
Institution, cooperative enterprise, or duly established legal entity capable of holding title to real property in the State.
(1) "Preservation easement" means perpetual agricultural land preservation easements acquired by the Foundation.
(2) "Unimproved land" means the open space, the area of land under structures used for agricultural purposes, and the land under lakes, dams, ponds, streams, and irrigation ditches, but shall not Include the land used for dwelling housing
(1) "Usable" means available and capable of being used for agricultural, horticultural, aquacultural and forestry production activities.
§903. Delaware Agricultural Lands Preservation Foundation.
(a) There is hereby established and created a statewide agricultural lands preservation foundation, a body politic and corporate constituting a public instrumentality of the State established and created for the performance of an essential public and governmental function, to be known as the Delaware Agricultural Lands Preservation Foundation. The Foundation shall be comprised of nine (9) Trustees, all of whom shall be residents of and qualified to vote in the State. The Governor shall appoint the Trustees and shall designate one (1) Trustee as Chairman, which Trustee shall serve at the pleasure of the Governor and be confirmed with the advice and consent of the Senate. The composition of the Board of Trustees of the Foundation shall be as follows:
(1) The Secretary of the Department of Agriculture or authorized designee to serve an indefinite term.
(2) The Secretary of the Department of Natural Resources and Environmental Control or authorized designee to serve an indefinite term.
(3) The State Treasurer or authorized designee to serve an indefinite term.
(4) A member and representative of Delaware Farm Bureau, to be selected from a list of three (3) nominees submitted by the Delaware Farm Bureau, who shall serve an initial term of two (2) years
(5) A member and representative of the Delaware State Grange, to be selected from a list of three (3) nominees submitted by the Delaware State Grange, who shall serve an initial term of three (3) years.
(6) An individual actively engaged in farming or some other form of agribusiness who is a resident of New Castle County and who shall serve for an initial term of three (3) years.
(7) An individual actively engaged in farming or some other form of agribusiness who is a resident of Kent County and who shall serve for an initial term of three (3) years.
(8) An individual actively engaged in farming or some other form of agribusiness who is a resident of Sussex County and who shall serve for an initial term of three (3) years.
(9) An individual who is a resident of the State who is designated as Chairman.
(b) Upon the expiration of the terms of the original Trustees having designated terms, the terms of such Trustee positions thereafter shall be (3) years. For the four (4) Trustees appointed to the positions indicated in subparagraphs (6), (7), (8), and (9) under subsection (a) above, Trustees registered in either major political party shall not exceed the other major political party by more than one (1).
(c) In the event of death, permanent disability, resignation, or failure to perform duties of a Trustee, the Governor shall appoint an Interim Trustee to serve the unexpired term of the departing Trustee, or in the case of the Chairman, an interim term not to exceed six (6) months, unless the Chairman is confirmed with the advice and consent of the Senate.
(d) For purposes of conducting business of the Foundation, five (5) Trustees shall constitute a quorum. A majority vote of members
constituting the quorum shall be required for action on any matter before the Foundation. All votes on matters before the Foundation shall be
conducted at meetings open to the public, and such meetings shall be timely noticed. Nothing shall prevent the Trustees of the Foundation from meeting at executive sessions which are closed to the public for purposes of discussing Foundation matters.
(e) The Trustees shall not be entitled to compensation for the services they provide to the Foundation; however, each Trustee shall be entitled to reimbursement for actual and necessary expenses incurred to enable the performance of official duties.
(f) No Trustee shall be entitled to vote on any matter before the Foundation if such Trustee knowingly has a financial interest in the outcome of such matter. In the event a Trustee knowingly has a financial interest,such Trustee shall indicate to the Chairman the nature of the interest and the Chairman shall note for the record that the Trustee did not vote by reason of conflict of interest. In situations in which a
Trustee or Trustees do not vote by reason of conflict of interest, the matter pending before the Foundation shall be decided on the basis of a majority vote of the remaining Trustees present who do not have a conflict of interest. A Trustee or Trustees having a conflict of interest as set forth herein shall be counted for purposes of establishing a quorum provided such Trustee or Trustees are present at the meeting. The fact
that a Trustee or Trustees have not voted by reason of conflict of interest shall in no way affect the validity of an act or actions taken regarding the matter before the Foundation.
(g) The Foundation shall continue until its existence shall be terminated by law. Upon termination of the existence of the Foundation, all of its rights, properties and liabilities shall pass to and be assumed by the State.
§904. Duties and Authority of Foundation.
(a) The Foundation shall be responsible for the following:
(1) The adoption, after public hearing, of criteria for
establishment and maintenance of Agricultural Preservation Districts, which criteria shall supplement and be consistent with the standards set forth in this Chapter, The adoption, after public hearing, of criteria for the purchase of agricultural lands preservation easements, which criteria shall supplement and be consistent with the standards set forth in this Chapter;
(1) The adoption, after public hearing and consultation with the Department of Agriculture, the Department of Natural Resources and Environmental Control, and the Farmland Preservation Advisory Boards and Planning and Zoning Commissions of each County, of a statewide agricultural lands preservation strategy which specifically identifies the areas of the State in which valuable productive agricultural lands are located and which are considered best suited for long-term preservation;
(1) The administration, operation and supervision of the Delaware Farmland Preservation Fund;
(2) The monitoring and enforcement of the requirements and restrictions imposed by and under the provisions of this Chapter, any duly adopted regulations, and legally binding instruments;
(1) The establishment of a program of cooperation and coordination with the governing bodies of the Counties, municipalities and other units of general government below the State level and with private non-profit or public organizations to assist in the preservation of agricultural lands for agricultural purposes;
(1) The acquisition of available federal funding, including application for eligible loans under the Farms for the Future Act of 1990 (7 U.S.C. §4201 et. seq.) and for undertaking all other necessary actions required for receipt of such funding, and deposit of any such monies received into the Delaware Farmland Preservation Fund;
(2) The performance of an annual audit of the Foundation's accounts, prepared by an independent certified public accountant qualified to perform such an audit, which annual audit shall be part of the Foundation's Annual Report;
(3) The preparation of an Annual Report of the Foundation's proceedings and activities for the annual period ending September 30, which report shall include the annual audit, an inventory of farmlands and forestlands located in agricultural preservation districts, an inventory of preservation easements acquired during the period, the status of the Fund, and such other information deemed appropriate, which Annual Report shall be submitted to the Governor and the General Assembly of the State;
(4) The establishment of a program of education and promotion of agricultural lands preservation; and
(5) The development of an effective program to fully implement the provisions of this Chapter.
(b) The Foundation shall have the authority to do the following:
(1) Adopt an organizational structure to implement this Chapter;
(2) Employ a staff subject to the availability of funding;
(3) Establish an office in the State;
(4) Retain by contract, auditors, accountants, appraisers, legal counsel, surveyors, private consultants, financial advisors, or other contractual services required by the Foundation;
(5) Sue and be sued;
(6) Utilize a seal;
(7) Conduct such hearings, examinations and investigations as may be necessary and appropriate to the conduct of its operations and the fulfillment of its responsibilities,
(8) To procure and keep in force adequate insurance or otherwise provide for the adequate protection of its property, as well as to indemnify and save itself harmless and its officers, agents or employees against loss or liability with respect to any risk to which It or they may be exposed in carrying out any function of the Foundation;
(1) To purchase, sell, manage, lease or rent such real and personal property for use of the Foundation as deemed necessary, convenient or desirable;
(1) To act on and approve applications for the establishment of Agricultural Preservation Districts consistent with the provisions of this Chapter and duly adopted regulations;
(1) To acquire by gift or purchase agricultural land preservation easements;
(1) To seek, obtain and utilize federal and private funding for the purposes of this Chapter;
(1) To make short and long-range plans for the protection and preservation of agricultural lands;
(1) To enter upon lands as may be necessary to perform surveys, appraisals, and investigations to accomplish the purposes of this Chapter;
(1) To accept gifts, grants or loans of funds, property or service from any source, public or private, and comply, subject to this Chapter, with the terms and conditions of any agreements entered and related thereto;
(1) To receive funds from the sale of general bonds, revenue bonds or other obligations of the State or under the name of the Foundation;
(1) To recover reasonable costs for service provided;
(1) To delegate to one (1) or more of its Trustees, its Executive Director, or its agents, such powers and duties as it may deem necessary and proper for the conduct of its authorized business;
(1) To select an Executive Director, who shall be a member and chief executive officer of the staff of the Foundation, subject to the availability of funding for such position, and provided further that the Executive Director shall be a resident of the State, have an undergraduate degree from an accredited institution of higher learning and possess at least five (5) years experience in the administration of agricultural programs, land use planning, or agribusiness
(1) Adopt procedural rules to govern the manner in which internal affairs of the Foundation are conducted; and
(1) Adopt, after notice and public hearing, rules and regulations to fulfill the Foundation's responsibilities and fully effectuate the authority, purposes, intent and activities contemplated under this. Chapter.
(c) The members of the staff of the Foundation shall be afforded protections comparable to those provided under the State Merit System and shall be included under and subject to Chapter 55 of Title 29.
§905. Delaware Farmland Preservation Fund.
(a) The Delaware Farmland Preservation Fund is created and shall be maintained, administered, operated and supervised by the Foundation to implement the provisions of this Chapter.
(b) All monies received by the Foundation or designated for deposit into the Fund shall be placed in such accounts established by and for the use of the Foundation. To the extent monies in the Fund are not needed on a current basis, the Foundation shall be entitled to invest such monies on a long-term or short-term basis; provided however, that the policies governing any such investment of monies by the Foundation shall be subject to the approval of the Cash Management Policy Board.
(c) All banks, bankers, trust companies, savings banks and other persons carrying on a banking business under the laws of the State are authorized to do business with the Foundation and to give security for the safekeeping and prompt payment of monies of the Foundation deposited by it with them. The Foundation shall be entitled to establish such accounts as deemed appropriate for the conduct of its business.
§906. Farmland Preservation Advisory Boards.
(a) Each County legislative body shall establish a Farmland
Preservation Advisory Board which shall consist of four (4) active farmers or agribusinessmen residing within the County and one (1) member of the County legislative body, who shall serve as the Chairman of the Board. The members of such Board shall be appointed by the County legislative body. The members shall serve without salary, but the County legislative body may entitle each such member to reimbursement of his actual and necessary expenses incurred in the performance of official duties. A quorum of the Board for conducting business shall be three (3) members and a majority vote of the quorum shall be necessary to take action on matters before the Board.
(a) The Chairman of the Board shall serve for an indefinite term and the four (4) other members shall serve for terms of four (4) years each, provided further that Board members registered in either major political party shall not exceed the other major political party by more than one (1). Any member of the Board may be reappointed for a succeeding term
without limitations as to the number of terms served.
(a) The Board shall advise the Foundation in relation to any regulations proposed for adoption by the Foundation The Foundation shall
provide a draft of proposed regulations to the Board at least sixty (60) days in advance of the time that proposed regulations are released for public notice in order to allow for comment of the Board and possible amendment. The Board may request the Foundation to review any adopted
regulation which the Board identifies as having an adverse affect on the furtherance of the purpose and intent of this Chapter. Upon receipt of any such request, the Foundation shall submit in writing to the Board a response indicating the Foundation's position on the matter and the action, if any, which is contemplated in response to the request.
(a) Whenever an application for establishment of an Agricultural Preservation District is received by the Foundation and the Foundation determines that the eligibility criteria have been satisfied, the
Foundation shall submit the application to the Board for the County in which the proposed District is located for a recommendation. The Board
shall act on an application by recommending in favor or against approval within sixty (60) days of receipt of the application, and the Board may Include reasons for its decisions. In the event that the Board fails to
make its recommendation within the specified sixty (60) day period, or if the Board is not duly established or constituted, the decision required of the Board under the agricultural preservation district application process as specified hereunder shall be deemed an approval.
SUBCHAPTER II. Agricultural Preservation Districts. §907. Establishment of Agricultural Preservation Districts.
(a) Any Owner or Owners of contiguous farmland and/or forestland containing at least two hundred (200) usable acres of such lands located in the State, may submit on a voluntary basis, on such forms as the Foundation prescribes, an application for establishment of an Agricultural
Preservation District. Upon receipt of a completed application, the
Foundation shall review within forty-five (45) days the application to
determine if it satisfies the criteria for eligibility established under
§908 hereof and any regulations adopted and related thereto. The
Foundation shall, following its review to determine eligibility, notify the applicant of its findings. The Foundation shall be entitled to provide assistance to potential applicants regarding the completion of necessary application forms.
(b) If an application for establishment of an Agricultural,
Preservation District satisfies the criteria for eligibility, the Foundation shall submit the application to the Board and Planning and Zoning Commission for the County in which the farmlands and/or forestlands are located for purposes of obtaining a recommendation. The application shall be reviewed by the Board in accordance with the procedures set forth under §906(d) hereof. The Planning and Zoning Commission, upon receipt of an application from the Foundation, shall timely notice consideration of the application at its next regularly scheduled meeting, and shall recommend in favor or against approval, and include any reasons for its decision. If the Planning and Zoning Commission fails to render a decision on an application within ninety (90) days of receipt, the application shall be deemed approved.
The Foundation shall consider applications for establishment of
Agricultural Preservation Districts at its next noticed regularly scheduled
meeting after the review process has been completed at the Board and
Planning and Zoning Commission levels.
The Foundation shall render a
decision in favor or against approval of the application. An Agricultural Preservation District shall be established if the application is approved by any two (2) of the three (3) entities which considered the application, namely: the Foundation, the Board, and the Planning and Zoning Commission.
An owner of farmland and/or forestland consisting of less than two
hundred (200) acres in the State may submit on a voluntary basis, on such forms as the Foundation prescribes, an application for expansion of an
established Agricultural Preservation District if the application satisfies
the criteria for eligibility established under §908 hereunder and any
regulations adopted thereunder, as determined by the Foundation, and the farmland and/or forestland is either (1) contiguous to the established
Agricultural Preservation District, or (2) located in whole or part within
a one (1) mile radius of an established Agricultural Preservation
The Foundation shall render decisions in favor or against
applications for expansions of Agricultural Preservation Districts at noticed regularly scheduled meetings.
Upon the establishment of an Agricultural Preservation District or
the expansion of an Agricultural Preservation District the Foundation shall provide appropriate notice and a description of the established or expanded
District to the Planning and Zoning Commission and Board of Assessment for
the County in which such District is located.
Upon receipt of such
Information from the Foundation, the Planning and Zoning Commission and the Board of Assessment shall provide appropriate reference in their real property records and notations on maps which are utilized and maintained that the subject farmlands and/or forestlands are included in an Agricultural Preservation District.
§908. Criteria for Eligibility and Review.
(a) In order to be considered eligible for inclusion in an Agricultural Preservation District, an application which qualifies under the requirements of §907(a) or (d) shall satisfy the following criteria:
(1) The Owner or Owners seeking inclusion of real property in the District shall hold fee simple title to such property;
(2) The real property proposed for inclusion in the District shall have an agricultural zoning designation and shall not be subject to any major subdivision plan;
(3) The real property shall contain of viable and productive farmlands and/or
(4) forestlands which meet the minimum LESA scoring requirements for eligibility established by the Foundation through adopted regulations; and
(4) The Owner or Owners of the real property proposed for inclusion in the District execute a declaration in recordable form committing to the District restrictions set forth in §909 hereof.
(b) In reviewing applications for establishment of an Agricultural Preservation District the Foundation, the Board, and the Planning and Zoning Commission shall consider the following factors:
(1) The viability and productivity of the farmlands and/or forestlands based on the LESA scoring system;
(1) The extent to which the farmlands and/or forestlands are being actively utilized for agricultural purposes;
(2) The extent to which the long-term preservation of the farmlands and/or forestlands would be consistent with land use plans adopted after public hearing at State and County levels;
(1) The potential for expansion of the District if established and compatibility with surrounding land uses;
(2) The ancillary benefit of creating additional open space adjacent to existing established and protected open space;
(3) The potential for acquisition of agricultural preservation easements under rating or ranking systems that may be adopted through regulations of the Foundation; and
(1) The socio-economic benefits derived from an agricultural and historic perspective as a result of inclusion of the farmlands and/or forestlands in an Agricultural Preservation District.
(1) Consistency with the statewide agricultural lands preservation strategy adopted pursuant to §904(a)(3) hereof.
§909. District Restrictions.
(a) The farmlands and forestlands included in an Agricultural Preservation District shall be subject to the following restrictions:
(1) No rezoning or major subdivision of the real property shall be allowed;
(2) Activities conducted on the real property shall be limited to agricultural and related uses, and residential use of the real property shall be limited to dwelling housing for the Owner, relatives of the Owner, and persons providing permanent and seasonal farm labor services, provided however, that any such dwelling housing shall be limited to usage of no more than one (1) acre of land for each twenty (20) acres of usable land owned in the district, with a maximum of ten (10) acres of land being allowed for dwelling housing on an owner's land within a district; and
(3) The restrictions shall be deemed covenants which run with and bind the lands in the district for a period of ten (10) years or any extended period from the date of placement of the lands in the district.
(b) Farmlands and/or forestlands included in an Agricultural
Preservation District shall be released from such District at the expiration of ten (10) years from the date such lands are initially placed in the District if the Owner of the farmlands and/or forestlands provides written notification to the Foundation of intent to withdraw such lands from the District at least six (6) months prior to the expiration of the referenced ten (10) years period; otherwise, such lands shall remain in the District for additional five (5) year periods until such time that the Owner provides prior to the expiration date of any such additional period at least six (6) months prior written notice to the Foundation of intent to withdraw the lands from the District.
(a) In the event of a purchase of an agricultural lands preservation easement by the Foundation the restrictions set forth in subsection (a) above shall become permanent and subject to release only under the provisions of §917 hereof.
§910. Agricultural Use Protections.
(a) Normal agricultural uses and activities conducted in a lawful manner are preferred and priority uses and activities in Agriculture Preservation Districts. In order to establish and maintain a preference and priority for such normal agricultural uses and activities and avert and negate complaints arising from normal noise, dust, manure and other odors, the use of agricultural chemicals and nighttime farm operations, land use adjacent to Agricultural Preservation Districts shall be subject to the following restrictions:
(1) For any new subdivision development located in whole or in part within three hundred (300) feet of the boundary of an Agricultural Preservation District, the owner of the development shall provide in the deed restrictions and any leases or agreements of sale for any residential lot or dwelling unit the following notice:
"AGRICULTURAL PRESERVATION DISTRICT
This property is located in the vicinity of an established Agricultural Preservation District in which normal agricultural uses and activities have been afforded the highest priority use status. It can be anticipated that such agricultural uses and activities may now or in the future involve noise, dust, manure and other odors, the use of agricultural chemicals and nighttime farm operations. The use and enjoyment of this property is expressly conditioned on acceptance of any annoyance or inconvenience which may result from such normal agricultural uses and activities."
(2) For any new subdivision development located in whole or in part within fifty (50) feet of the boundary of an Agricultural Preservation District no improvement requiring an occupancy approval shall be constructed within fifty (50) feet of the boundary of the Agricultural Preservation District.
(b) Normal agricultural uses and activities conducted in accordance with good husbandry and best management practices in Agricultural Preservation Districts shall be deemed protected actions and not subject to any claim or complaint of nuisance, including any such claims under any existing or future County or municipal code or ordinance. In the event a formal complaint alleging nuisance related to normal agricultural uses and activities is filed against an Owner of lands located in an Agricultural Preservation District, such Owner, upon prevailing in any such action, shall be entitled to recover reasonably incurred costs and expenses related to the defense of any such action, including reasonable attorney's fees.
§911. District Benefits.
(a) Owners of real property located in an Agricultural Preservation District shall, with respect to such real property, be entitled to the following benefits:
(1) All unimproved land shall be exempt from:
(i) taxation otherwise imposed under the provisions of 9 Del. C., Chapter 83 and 14 Del. C., Chapter 19, provided however, that the amount of tax relief shall nonetheless be determined for the unimproved lands under established valuation and assessment procedures and taxation related to tax ditches under 7 Del. C., Chapter 41 shall in no way be affected;
(i) taxation otherwise imposed under the provisions of 30 Del. C., Chapter 54, and any County or Municipal ordinance requiring payment of a realty transfer tax, provided however, that the amount of tax relief shall nonetheless be determined and such tax relief shall be subject to recovery and placed in the Fund if within five (5) years after the unimproved lands are released from a District pursuant to §909(b) hereof, such unimproved lands are rezoned or subject to subdivision; and
(iii) any ad valorem tax imposed by the State, a County, a municipality, and any quasi-governmental body.
(b) The Department of Natural Resources, Department of Finance, and the Board of Assessment and Recorder of Deeds for the respective Counties shall coordinate, assist and cooperate with the Foundation to fully effectuate the applicable provisions of this Chapter.
SUBCHAPTER III. Acquisition of Preservation Easements.
§913. Acquisition of Agricultural Lands Preservation Easements.
The Foundation, subject to the availability of funds and compliance with the requirements of this Subchapter, shall be entitled to acquire, maintain and enforce agricultural lands preservation easements for lands which are located in Agricultural Preservation Districts. The purchase of preservation easements by the Foundation is purely a discretionary function and the Foundation shall be under no obligation to purchase a preservation easement from any applicant. The Foundation may utilize such method or methods of payment for preservation easements as may be available. Upon acquisition of a preservation easement the lands subject to such easement shall form a permanent Agricultural Preservation District. The acquisition of a preservation easement by the Foundation shall not grant the public any right of access or right of use of the real property subject to the easement.
§914. Criteria for Eligibility and Evaluation.
(a) In order for the Foundation to acquire an agricultural lands preservation easement it shall be required that:
(1) The Grantor of the preservation easement has fee simple title to the real property and conveys the easement free and clear of all liens and encumbrances; and
(2) The preservation easement is granted in perpetuity in a form acceptable to the Foundation and includes the restrictions set forth in §909 and such other terms and conditions as specified by the Foundation;
(b) In reviewing applications for the conveyance of agricultural lands preservation easements the Foundation shall consider:
(1) The criteria set forth in §908 (b) hereof; and;
(2) The relative agricultural value of the lands and potential for conversion to nonagricultural use; and
(3) The relative cost of acquiring the easement giving due consideration to the extent to which an applicant is willing to discount the sale price below the Foundation's appraised easement value.
(c) The Foundation may adopt, after public hearing, a system for scoring, ranking and prioritizing consideration of applications submitted for the conveyance of agricultural lands preservation easements.
§915. Procedure for Acquisition Easements.
The Foundation shall adopt, after public hearing, a uniform procedure for acquiring agricultural lands preservation easements. The procedure adopted by the Foundation may incorporate bidding and/or negotiation as part of the procurement process.
§916. Valuation of Easements.
(a) The maximum value of any preservation easement to be purchased shall be the difference between the fair market value of the land under its agricultural zoning designation and the agricultural value of the land. The fair market value of the land is the price as of the valuation date for the highest and best use of the property which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay for the property if the property was not subject to any restriction imposed under this Chapter. The agricultural value of land is the price as of the valuation date which a vendor, willing but not obligated to buy, would pay for the property as a farm unit, to be used for agricultural purposes. The value of the preservation easement shall be determined as of the date the application for conveyance of the preservation easement is received by the FoundatiOn. The value shall be determined by the Foundation based on appraisal by an appraiser selected by the Foundation, which appraisal shall be provided to the Owner. The Owner shall be entitled to have an appraisal performed by a qualified appraiser and submit such appraisal to the Foundation for consideration. The value of the easement shall be determined by an appraisal on the entire contiguous acreage, less 1 acre per each dwelling structure, provided however, the entire contiguous acreage, including the 1 acre per dwelling structure, is considered subject to the preservation easement restrictions.
(b) If the Owner and Foundation do not agree on the value of the easement, as determined by appraisal, the Owner shall be entitled to withdraw the application for conveyance without prejudice to any submission of an application in the future.
§917. Termination of Easement.
(a) Legislative intent.
It is the intent of the General Assembly that the preservation easements purchased under this subtitle be held by the Foundation for as long as profitable farming is feasible on the land subject to the easement but at a minimum for the period specified hereinafter. A preservation easement may be terminated only in the manner and at the time specified in this Section.
(b) Request for review.
At any time after twenty—five (25) years from the date of acquisition of a preservation easement, the Owner may request that the easement be reviewed for possible termination of the easement.
(c) Inquiry and decision.
Upon a request for review of an easement for termination, an inquiry shall be conducted by the Foundation to determine the feasibility of profitable farming on the subject land. The inquiry shall be concluded and a decision reached by the Foundation within 180 days after the request for termination, and shall include:
(1) On—site inspection of the subject land; and
(2) A public hearing conducted by the Foundation within the County containing the subject land after adequate public notice; and
(3) A review of the subject land under the LESA scoring system; and
(4) Approval of termination by the Board of Trustees of the Foundation.
(d) Repurchase by Owner.
If the request for termination is approved, an appraisal of the subject land shall be ordered by the Foundation at the expense of the Owner requesting termination of the easement. Within a period of one hundred eighty (180) days following the appraisal, the Owner may repurchase the easement by paying to the Foundation the difference between the fair market value and the agricultural value of the subject land, as determined by the appraisal, but in no event shall the repurchase price be less than the amount paid by the Foundation for acquisition of the preservation easement. In addition, the Owner shall also pay to the Fund an amount equal to any tax benefit realized under §918 hereof. For purposes of this paragraph, the term agricultural value shall also mean the price as of the valuation date which a buyer, willing but not obligated to buy, would pay for a farm unit with land comparable in quality and composition to the property being appraised, but located in the nearest location where profitable farming is feasible. For purposes of this paragraph, the term fair market value shall mean the price as of the valuation date which a buyer, willing but not obligated to buy, would pay for the land at its best and most beneficial use under any obtainable development zoning category.
(e) Subsequent request for termination after denial or failure to repurchase.
If the request for termination is denied, or if the Owner fails to repurchase the easement within 180 days of the appraisal, the Owner may not again request termination of the easement until five years after his last such request.
§918. Benefits of Easement Conveyance.
In addition to the district benefits set forth in §911 hereof, the Owner of real property subject to a preservation easement shall be entitled to exemption from taxation for the transfer of any interest in such real property by gift otherwise subject to gift taxation under the provisions of 30 Del. C., Chapter 14, and by death otherwise subject to inheritance tax under the provisions of 30, Del. C. Chapter 13, and estate tax under the provisions of 30 Del. C., Chapter 15. The Department of Finance shall be entitled to adopt requirements to effectuate the exemption from taxation as provided hereunder.
SUBCHAPTER IV. Miscellaneous Provisions.
§919. Right of Rejection.
(a) Notwithstanding any provision contained herein to the contrary, the Secretary of the Department of Agriculture shall be entitled, within thirty (30) days of the date of decision of the Foundation, to reject the establishment or expansion of any Agricultural Preservation District or the acquisition of a preservation easement, and the decisions of the Foundation on such matters shall be subject to right of rejection exercisable by the Secretary of the Department of Agriculture. If the right of rejection as provided herein is exercised, the Secretary of the Department of Agriculture shall notify the Foundation in writing of such decision and the reasons for it. The Secretary of the Department of Agriculture may waive the right to reject by providing notification to such effect to the Foundation. Failure to act on the part of the Secretary of the Department of Agriculture within the specified thirty (30) day period shall constitute an affirmation of the decision of the Foundation.
(a) In the event of rejection of an application by the Secretary of the Department of Agriculture for establishment or expansion of any Agricultural Preservation District or the acquisition of a preservation easement, such application shall be considered denied and not subject to reconsideration for a period of at least one (1) year.
(b) Notwithstanding any provision contained herein to the contrary, the Secretary of the Department of Agriculture shall be entitled, within thirty (30) days of the date of adoption of criteria for establishment and maintenance of Agricultural Preservation Districts pursuant to §904(a)(1) hereof, to reject in whole or in part such criteria as adopted by the Foundation. If the right of rejection as provided herein is exercised, the Secretary of the Department shall notify the Foundation in writing of such decision and the reasons for it. The Secretary of the Department of Agriculture may waive the right to reject by providing notification to such effect to the Foundation. Failure to act within the specified thirty (30) day period shall constitute an affirmation of the decision of the Foundation. In response to the exercise of the right of rejection the Foundation shall be entitled to adopt alternative criteria, which action shall also be subject to the right of rejection provided herein.
§920. Enforcement of Restrictions.
(a) The Foundation shall be entitled to take action in any Court of competent jurisdiction to enforce any restrictions or requirements imposed under this Chapter, duly adopted regulations, and binding legal instruments. In any such action the Foundation shall, if it prevails, be
e made to the Owner, or in entitled to recover its reasonable costs and expenses, including reasonable attorney's fees.
The Foundation shall also be entitled to recover in any such action all tax benefits conferred under §911 hereof, plus one and one-half percent (1.5%) per month of tax benefit amounts computed on a compound basis from the date the tax benefit was first realized to the date of judgment.
(b) Any person who violates a District restriction, requirement imposed in a preservation easement, or the provisions of §910(a), shall, after notification and failure to correct the violation, be subject to a civil penalty of not less than Fifty Dollars ($50) but not more than Two Hundred Dollars ($200) for each completed violation. If the violation continues for a number of days, each day of such violation shall be considered a separate violation. Unless joined to an action under subsection (a) above, a civil penalty claim hereunder shall be filed in any Court of Common Pleas. Any civil penalties recovered shall be paid to the Fund.
(a) The Budget Director and the Controller General are authorized to transfer the sum of $48,000 from the Budget Office Contingency Appropriation Salary, (10-02-04), contained in Senate Bill No. 500 of the 135th General Assembly (Fiscal Year 1991 Appropriation Act) for use by the Foundation to carry out the purposes of this chapter. Any Foundation funds not otherwise appropriated or encumbered as of June 30, 1991, shall be considered a continuing appropriation for Fiscal Year 1992.
(b) The Secretary of the Department of Agriculture is hereby authorized and directed, on behalf of the Foundation, to apply on or before August 1, 1991 for federal funding available to the State under the Farms for the Future Act of 1990 (7 U.S.C. §4201 et seq.) by submitting any necessary applications and taking such other action to qualify for eligibility.
(c) All monies collected as roll-back taxes under the provisions of 9 Del. C. §8335(d) for lands converted from agricultural to non-agricultural use shall, when collected, be transferred to the Foundation for use in carrying out the purposes of this Chapter. The Foundation shall be
entitiled to adopt and impose procedures and requirements to assure collection of any such roll-back taxes.
(d) There is hereby established a Committee on Funding for Farmland Preservation, which shall consist of two (2) members of the Delaware Senate as appointed by the President Pro Tem of the Senate, two (2) members of the Delaware House of Representatives as appointed by the Speaker of the House of Representatives, and three (3) members appointed by the Governor. The Committee shall review and consider ways and means of providing reliable, short-term and long-term funding for the permanent preservation of viable agricultural lands. The Committee shall also review and consider ways and means of creating economic incentives for the establishment and expansion of Agricultural Preservation Districts and the acquisition of agricultural lands preservation easements, such as the use of tax credits for activities undertaken in Agricultural Preservation Districts which reduce or eliminate the impact of the release of pollutants to the environment. The Committee shall report its findings to the Governor and the General Assembly on or before March 1, 1992.
§922. Condemnation of Preservation District Lands.
Nothing contained in this Chapter shall prohibit the exercise of powers of eminent domain or condemnation with respect to lands located in an Agricultural Preservation District, provided however, that the compensation paid for such lands by the condemning authority shall be based on the highest and best development use of the property with no consideration given to the restrictions and limitations imposed under this Chapter, and provided further that the condemning authority shall also include in its taking such additional lands rendered unusable or unprofitable for intended agricultural uses. Payment of compensation shall be made to the Owner, or in the event the property is subject to a
preservation easement, to the Owner and the Foundation in accordance with their respective interests.
§923. Interim Foundation Staffing.
(a) Until such time that funding is available to support a permanent Foundation staff, the staff support necessary for Foundation activities provided under this Chapter shall be provided by the Agricultural Lands Preservation Section of the Department of Agriculture. Such Section shall, within nine (9) months of the effective date of this legislation, prepare in coordination with the Department of Natural Resources and Environmental Control and the Planning and Zoning Commissions of the respective Counties, for review and consideration of the Foundation, the following:
(1) Proposed additional criteria for establishment and maintenance of Agricultural Preservation Districts;
(2) A proposed selection system for scoring, ranking and prioritizing applications for conveyance of preservation easements;
(3) A draft statewide agricultural lands preservation strategy; and
(4) Proposed procedural rules and regulations for conduct of the internal affairs of the Foundation, including the development of draft application forms and procedures for conducting business.
(b) The Department of Agriculture shall provide to the Foundation the administrative support necessary for the organization of the Foundation, Including accommodations for meetings until such time that an office is opened by the Foundation
(c) The Foundation shall, from its sources of funding, reimburse the Department of Agriculture for any out-of-pocket costs expended by the Department of Agriculture on behalf of the Foundation which are related to efforts undertaken by the Department of Agriculture under this Section.
§924. Governmental Cooperation.
All municipalities, political subdivisions and every department,
agency or public body of the State is hereby authorized and empowered to cooperate with, aid and assist the Foundation in effectuating this Chapter and any amendment hereof or supplement hereto.
The Foundation shall submit executed documents for recording in order to fully implement and enforce the provisions of this Chapter. The Offices of the Recorder of Deeds for the respective Counties shall receive and appropriately index any such documents submitted by the Foundation.
§926. Tax Status.
The duties and functions exercised by the Foundation under this Chapter and any amendments hereof or supplements hereto are and will be in all respects for the benefit of the people of the State and for the protection of their health and welfare. To this end, the Foundation shall be regarded as performing essential governmental functions in exercising such duties and functions and in carrying out this Chapter and of any law relating thereto, and shall not be required to pay any taxes or assessments of any character, levied either by the State or a political subdivision thereof, upon any of the property used by it for such purposes, or any income or revenue therefrom, including any profit from a sale or exchange. The acquisition and transfer of preservation easements hereunder shall be exempt from all realty transfer tax imposed under the provisions of 30 Del. C., Chapter 54 and any County or Municipal ordinance requiring payment of a realty transfer tax.
§927. Judicial Review.
Judicial proceedings to review any rule, regulations or other action of the Foundation or to determine the meaning or effect thereof, may be brought in the Superior Court of this State, provided such review is requested within thirty (30) days from the date of the promulgation of the rule or regulation or other action of the Foundation.
§928. Public Hearings.
For any public hearing conducted under the provisions of this Chapter, the Foundation shall provide at least twenty (20) days advance notice published in a daily newspaper of general circulation throughout the State. For a public hearing on a regulation or plan proposed for adoption, the notification shall include a brief description of the regulation or plan, the time and place of the hearing and time and place where copies of the proposed regulation or plan may be obtained or reviewed. A record from which a verbatim transcript can be prepared shall be made of all public hearings and shall, along with the exhibits and other documents, introduced constitute the record.
§929. Construction of Chapter.
This Chapter and the regulations promulgated thereunder shall be construed liberally to effectuate the legislative intent and as complete authority for the performance of each and every act and thing herein authorized.
If any provision of this Chapter, or any regulation adopted thereunder, or the application of such provision or regulation to any person or circumstance, shall be invalid, the remainder of this Chapter or any regulation shall not be held invalid or thereby affected.
Section 3. This legislation shall be known as the Delaware Agricultural
Lands Preservation Act.
Approved July 8, 1991.