CHAPTER 201

FORMERLY

SENATE BILL NO. 121

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO ESTABLISH A FORESTLAND PRESERVATION PROGRAM.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend §902(14), Title 3 of the Delaware Code, by deleting paragraph (14) in its entirety, and by inserting the following definitions in numerical order and renumbering “(6)” – “(14)” as “(10)” – “(18)”:

“(6) ‘Forestlands’ means a contiguous area of trees or forest cover at least ten (10) acres in size which is capable of being timbered and reforested as determined by the State Forester.

(7) ‘Forestland Preservation Agreement’ means an agreement executed by an owner or owners creating a forestland preservation area and binding forestlands to Forestland Preservation Area Restrictions for a period of ten (10) years and any extended period.

(8) ‘Forestland Preservation Easement’ means the perpetual easement acquired by the Foundation on forestlands.

(9) ‘Growth zone’ means the areas designated by the Foundation recognizing planned future development.

(19) ‘Professional Forrester’ means an individual who possesses at least a Bachelor’s Degree in forestry or a closely related field.”

Section 2. Amend §903, Title 3 of the Delaware Code, by deleting the number “9” as it appears in the first paragraph of subsection (a), and substituting in lieu thereof the number “10.”

Section 3. Amend §903, Title 3 of the Delaware Code, by adding a new subparagraph (10) at the end of subsection (a) to read as follows:

“(10) The Chair of the Council on Forestry or authorized designee to serve an indefinite term.”

Section 4. Amend §904, Title 3 of the Delaware Code, by adding new subparagraphs (12) and (13) at the end of subsection (a) to read as follows:

“(12) The establishment and implementation of a forestland preservation program; and

(13) The adoption of rules of practice and procedure for acquiring Forestland Preservation Easements.”

Section 5. Amend §904, Title 3 of the Delaware Code, by adding a new subparagraph (22) at the end of subsection (b) to read as follows:

“(22) Engage in all the activities specified in this subsection (b) as they may relate to the forestland preservation program set forth in Subchapter V. hereof.”

Section 6. Amend Chapter 9, Title 3 of the Delaware Code, by adding a new Subchapter V. to read as follows:

“Subchapter V. Forestland Preservation”

§931. Purpose, policy and intent.

It is the declared policy of the State to conserve, protect and encourage the proper utilization of the State’s forestland resources. The forestlands of the State are a renewable resource which provide economic, environmental and social benefits. There is a need to provide sufficient economic benefit to the owners of forestlands to voluntarily subject forestlands to protective restrictions through the sale of forestland preservation easements. The establishment of permanent forested areas throughout the State will serve the long term needs of the forest industry while providing invaluable wildlife and habitat protections and open space benefits to the citizens of the State.

§932. Establishment of Forestland Preservation Areas.

(a) Any owner or owners of contiguous forestland containing at least 10 acres of such lands located in the State and outside of a designated growth zone may submit on a voluntary basis, on such forms as the Foundation prescribes, an application for establishment of a forestland preservation area. Upon receipt of a completed application, the Foundation and the State Forester shall review the application to determine if it satisfies the criteria for eligibility established under §933 of this Title, and any rules of practice and procedure for acquiring forestland preservation easements adopted and related thereto. The Foundation shall notify the applicant of the findings, and may provide assistance to potential applicants regarding completion of necessary application forms.

(b The Foundation shall consider approval of application at noticed regularly scheduled meetings. Upon Foundation approval of a forestland preservation area, and after the landowner or owners execute a Forestland Preservation Agreement in a recordable form as provided by the Foundation, the Foundation shall provide appropriate notice and a description of the established forestland preservation area to the Planning and Zoning Commission and Board of Assessment for the county in which the forestland preservation area is located. Upon receipt of such information from the Foundation, the Planning and Zoning Commission and Board of Assessment shall provide appropriate reference in their real property records and notations on maps which are utilized and maintained that the subject real property is designated as a forestland preservation area.

§933 Forestland Preservation Area Criteria for eligibility and review.

In order to be considered eligible for inclusion in a forestland preservation area, an application which meets the requirements of §932 of this title shall satisfy the following criteria:

(1) The owner or owners seeking inclusion of real property in a forestland preservation area shall hold fee simple title to such property;

(2) The real property shall be located outside a designated Growth Zone;

(3) The real property shall be zoned to allow for agricultural or open space uses and shall not be subject to any major subdivision plan;

(4) The real property consists of viable and potentially productive forestlands;

(5) The real property is not subject to an existing conservation or preservation easement or other restriction which prohibits development;

(6) The owner or owners of the real property proposed for inclusion in a forestland preservation area execute a Forestland Preservation Agreement in recordable form as provided by the Foundation which contains the forestland preservation area restrictions set forth in §934 of this title;

(7) The property proposed for consideration in the forestland preservation area shall include all of the eligible forestlands located in the tax parcels subject to the application. No eligible real property shall be carved out or otherwise excluded from the application to create a forestland preservation area or an application to sell a forestland preservation easement, except that one (1) location containing no more than one (1) acre of land may be designated for seasonal recreational dwelling usage provided that the property proposed for consideration in the forestland preservation area or proposed for sale of a forestland easement contains at least thirty (30) acres and the use of the designated area does not adversely affect the forestland use of the property;

(8) (a) No more than 1 acre of land for each 20 acres of usable land owned in a Forest Conservation Area or Forest Conservation Easement, to a maximum of 10 acres, shall be allowed for permanent dwelling housing. The establishment or existence of any seasonal housing will be counted against the total allowable permanent dwelling housing acreage; and

(b) With respect to acreage allowed for dwelling housing there shall be a limit of 3 dwelling houses for residential use placed on the allowable acreage at 3 locations designated by the owner. This includes any pre-existing dwelling housing and/or the seasonal housing pursuant to subsection (7) above, unless there exists 3 dwelling houses on the real property at the time of approval of the new Forest Conservation Area or Forest Conservation Easement, in which case the allowable total number of dwelling housing and the allowable acreage shall be allocated to be existing dwelling houses and no additional dwelling houses shall be allowed. Such dwelling housing locations must be designated at the time of establishing the Forest Conservation Area; and

(9) The property shall have a forest management plan prepared by a professional forester that addresses the landowner’s forest management goals for the property. The plan shall contain, at a minimum, aerial and soil maps of the property, a description and analysis of the forest by management unit, and silvicultural prescriptions for each management unit. The plan shall be made available for inspection by the State Forester’s office and the plan shall be revised and updated at a minimum every five years.

§934. Forestland Preservation Area Restrictions.

(a) The forestlands included in a forestland preservation area 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 forestry production, forestry operations, forestry management and control, wildlife habitat management, and related activities;

(3) No residential use of the real property shall be allowed, except for the seasonal recreational dwelling usage designated pursuant to Section 933 (7) hereof;

(4) No conversion of the forestland to cropland, pasture land, open space or other types of land uses shall be allowed.

(5) No permanent commercial or industrial structures shall be located on the real property; and

(6) No mining, commercial excavation or extractive uses shall be conducted on the property.

(7) No disposal, burial, storage, or stock piling of junk, vehicles, equipment, liquid waste, solid waste or other liquid or solid materials, except that wastewater spray irrigation shall be allowed utilizing best available treatment technology with storage and treatment facilities located on lands other than forestland preservation areas.

(b) Forestry management, control and related activities allowed on forestland preservations areas are:

(1) Hunting, trapping and fishing provided such activities are limited to private non-commercial activities and do not adversely affect the forestland use of the property, and provided further that leasing of the property for such non-commercial activities shall be allowed.

(2) Easements, licenses and other property interests for utility, telecommunications, and access uses subject to the requirements set forth in §909(a)(5)f. of this Chapter;

(3) The use of portable non-permanent forest planting, harvesting and processing equipment;

(4) Conservation, educational and research activities related to forestlands;

(5) Ditching for drainage necessary to enhance or preserve forestlands; and

(6) The grazing of livestock, excluding housing or shelters, subject to prior approval by the State Forester;

(7) Timbering and reforestation;

(8) Noncommercial private recreational uses such as hiking, horseback riding, and primitive camping, provided such activities do not adversely affect the forestland use of the property; and

(9) Activities involving best forestland management practices.

(c) Any transfer of real property in a forestland preservation area or subject to a forestland preservation easement shall be preceded by the execution by the transferee of a document, in recordable form and as prescribed by the Foundation, which references the restrictions applicable to the real property.

(d) The restrictions set forth in a Forestland Preservation Area Agreement shall be deemed covenants which run with and bind the lands in the forestland preservation area for a period of 10 years or any extended period from the date of approval of the forestland preservation area. The real property in a forestland preservation area shall be released from the restrictions at the expiration of the 10 year period if the owner of the forestland provides written notification to the Foundation of the intent to withdraw such lands from the forestland preservation area at least 6 months prior to expiration of the referenced 10 year period; otherwise the real property shall remain as a forestland preservation area for additional 5-year periods until such time that the owner, provides prior to the expiration date of any such additional period, at least 6 months prior written notice to the Foundation of intent to withdraw.

(e) In the event of the purchase of a forestland preservation easement by the Foundation, the restrictions set forth under this section shall become permanent and not subject to release.

§935. Forestland use protections and benefits.

(a) Owners of real property located in a forestland preservation area shall be entitled to the same protections provided to the owners of real property in Agricultural Preservation Districts under the provisions of §910 of this Chapter, and the term “Agricultural Preservation District(s)” as used in § 910, shall include a forestland preservation area.

(b) Owners of real property located in a forestland preservation area shall be entitled to the same benefits provided to owners of real property located in Agricultural Preservation Districts under the provisions of §911 of this Chapter, and the term “Agricultural Preservation District(s)”, as used in § 911, shall include a forestland preservation area.

§936. Acquisition of Forestland preservation easements.

(a) The Foundation, subject to the availability of funds, shall be entitled to acquire, maintain and enforce forestland preservation easements for lands which are located in forestland preservation areas. The purchase of forestland preservation easements by the Foundation is purely a discretionary function, and the Foundation shall be under no obligation to purchase a forestland preservation easement from any applicant. The Foundation may utilize such method or methods of payment for forestland preservation easements as may be available. Upon acquisition of a forestland preservation easement the lands subject to such easement shall form a permanent forestland preservation area. The acquisition of a forestland 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.

(b) The Foundation shall adopt rules of practice and procedure for the acquisition of forestland preservation easements which shall include the process and timeframe for submitting applications for the sale of forestland preservation easements, the establishment of the purchase price for the easements through use of appraisal information, the manner in which offers to sell easements are accepted, and the basis upon which offers for sale of easements are accepted. The rules of practice and procedure shall incorporate, to the extent necessary, provisions for utilizing federal, county or other funding.

§937. Forestland Preservation Easement Criteria for eligibility and evaluation.

(a) In order for the Foundation to acquire a forestland preservation easement it shall be required that:

(1) The grantor of the forestland 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 §934 of this Chapter, and such other terms and conditions as specified by the Foundation.

(b) In reviewing applications for the conveyance of forestlands preservation easements the Foundation shall consider 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 easement value established by the Foundation.

(c) The Foundation shall approve and announce the purchase price of forestland preservation easements at its regularly scheduled meetings.

§938. Right of rejection

The Secretary of the Department of Agriculture shall, with respect to the approval of a forestland preservation area or the approval of purchase of forestland preservation easements, be entitled to reject such approvals in the manner and subject to the provisions of §919 of this Chapter.

§939. Enforcement of restrictions.

The Foundation is authorized to take those actions and exercise the authority and entitlements set forth under §920 of this Chapter to enforce the restrictions and other provisions which apply to forestland preservation areas, Forestland Preservation Area Agreements, forestland preservation easements, and the provisions of this Subchapter.

§940. Condemnations.

The provisions of §922 of this Chapter as they apply to land located in Agricultural Preservation Districts shall also apply to the real property located in forestland preservation areas and real property subject to forestland preservation easements, and the terms “Agricultural Preservation District(s)”, “agricultural uses”, and “preservation easement”, as used in §922, shall include a “forestland preservation area”, “forestry and related activities” and “Forestland Preservation Easement” respectively.

§941. Program participation.

The owners of farmlands and forestlands included in Agricultural Preservation Districts shall be entitled to apply to sell an agricultural lands preservation easement to the Foundation under the provisions of Subchapter III of this Chapter, and concurrently apply to sell a forestland preservation easement under the provisions of this Subchapter V. If the owner’s offers to sell the agricultural lands preservation easement and a forestland preservation easement on the same agricultural lands are accepted by the Foundation, the owners shall be entitled to proceed with the offer to sell an agricultural lands preservation easement for the entire property, or to separately sell a forestland preservation easement under the accepted offer and sell an agricultural lands preservation easement for the balance of the property under the accepted offer, whichever is considered desirable by the owner, provided further that the separate sale of a forestland preservation easement shall not limit the residential use allowance for the entire property as utilized on the balance of the property.”

Approved July 20, 2005