TITLE 3

Agriculture

Department of Agriculture

CHAPTER 9. DELAWARE AGRICULTURAL LANDS PRESERVATION ACT

Subchapter II. Agricultural Preservation Districts


(a) Any owner or owners of contiguous farmland and/or forestland containing at least 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 45 days the application to determine if it satisfies the criteria for eligibility established under § 908 of this title 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) of this title. 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 90 days of receipt, the application shall be deemed approved.

(c) 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 2 of the 3 entities which considered the application, namely: The Foundation, the Board and the Planning and Zoning Commission.

(d) An owner of farmland and/or forestland consisting of less than 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 of this title 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 3-mile radius of an established Agricultural Preservation District. The Foundation shall render decisions in favor or against applications for expansions of Agricultural Preservation Districts at noticed regularly scheduled meetings.

(e) 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.

68 Del. Laws, c. 118, § 2; 71 Del. Laws, c. 221, § 1.;

(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) of this title 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 consist of viable and productive farmlands and/or forestlands which meet the minimum LESA scoring requirements for eligibility established by the Foundation through adopted regulations;

(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 of this title; and

(5) The real property proposed for inclusion in the District shall include all of the eligible real property located in the tax parcel or tax parcels subject to application, and no eligible real property shall be carved out or otherwise excluded from the application for establishment of an Agricultural Preservation District or the application to sell a preservation easement pursuant to subchapter III of this chapter.

(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;

(2) The extent to which the farmlands and/or forestlands are being actively utilized for agricultural purposes;

(3) 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;

(4) The potential for expansion of the District if established and compatibility with surrounding land uses;

(5) The ancillary benefit of creating additional open space adjacent to existing established and protected open space;

(6) The potential for acquisition of agricultural preservation easements under rating or ranking systems that may be adopted through regulations of the Foundation;

(7) 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; and

(8) Consistency with the statewide agricultural lands preservation strategy adopted pursuant to § 904(a)(3) of this title.

68 Del. Laws, c. 118, § 2; 71 Del. Laws, c. 257, § 2.;

(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 as follows:

a. No more than 1 acre of land for each 20 acres of usable land owned in a District or an expansion of a District, to a maximum of 10 acres, shall be allowed for dwelling housing; and

b. The dwelling housing shall be limited to residential use of the owner, relatives of the owner and persons providing permanent and seasonal farm labor services; provided however, that the Foundation may, pursuant to regulations adopted after notice and public hearing, allow, from the effective date of an initial District Agreement, no more than a total of 3 dwellings or dwelling lots located in the Agriculture Preservation District to be transferred from an owner or relatives of an owner to any other person, subject to the following limitations and requirements:

1. The owner or relative of an owner seeking to make the transfer shall establish that a hardship condition exists, as defined pursuant to Foundation regulations, and obtain Foundation approval;

2. The dwelling or dwelling lot, after transfer, shall be used only for residential purposes;

3. The transferred property shall not qualify for District benefits or benefits of easement conveyance established under this chapter; and

4. If a preservation easement has been acquired by the Foundation on the real property subject to transfer, the owner or relatives of the owner shall, as a condition of Foundation approval, pay to the Foundation an amount equal to 25 percent of the then current fair market value of the land subject to transfer; and

c. Any transfer of real property in a District or an expansion of a District to another person shall be preceded by the execution by the transferee of a document, in recordable form and as prescribed by the Foundation, which sets forth the acreage allowed for dwelling housing and the restrictions which apply to the real property under this chapter and the regulations of the Foundation.

(3) The restrictions shall be deemed covenants which run with and bind the lands in the District for a period of 10 years or any extended period from the date of placement of the lands in the District.

(4) For any new District or expansion of a District approved after August 23, 2004, the provisions of paragraph (a)(2)b. of this section shall be replaced by the following restrictions:

a. With respect to the acreage allowed for dwelling housing pursuant to paragraph (a)(2)a. of this section, there shall be a limit of 3 dwelling houses for residential use placed on the allowable acreage at 3 locations designated by the owner, unless there exists more than 3 dwelling houses on the real property at the time of approval of the new district or expansion of a District, in which case the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses shall be allowed.

b. The dwelling housing utilized pursuant to paragraph (a)(4)a. of this section, above, for residential use shall not be restricted to owners, relatives of owners or persons providing permanent and seasonal farm labor services, and any person shall be entitled to use the dwelling housing for residential purposes.

c. The owners of real property in any District or expansion of a District, which District is in existence on August 23, 2004, shall be entitled to be released from the restrictions of paragraph (a)(2)b. of this section, provided such owner executes an amendment to their District Agreement in a form designated and acceptable to the Foundation, subjecting the real property to the restrictions set forth in paragraphs (a)(1), (a)(2)a., (a)(4)a. and (a)(4)b. of this section. If an owner of real property in any District or expansion of a District has before August 23, 2004, conveyed a preservation easement to the Foundation, such owner shall be entitled to be released from the restrictions of paragraph (a)(2)b. of this section as contained in the preservation easement, provided the owner executes an amendment to the preservation easement in a form designated and acceptable to the Foundation subjecting the real property to the restrictions set forth in paragraphs (a)(1), (a)(2)a., (a)(4)a. and (a)(4)b. of this section.

(5) The following uses shall be deemed "related uses" for purposes of paragraph (a)(2) of this section:

a. A farm market or roadside stand shall be allowed provided the products offered for sale are grown or produced on the property included within the District and such farm market or roadside stand complies with § 2601(b)(5), § 4901(b)(5), or § 6902(b)(5) of Title 9.

b. Hayrides, horseback riding, guided tours, and petting zoos shall be allowed, provided that said activities are limited to no more than 50 persons on the premises at a time. Notwithstanding the foregoing, educational tours and agricultural demonstration events shall not be subject to the 50-person limitation.

c. Horse stabling and training and caring for horses is permitted; provided however, quasi-public horse events such as polo fields and horse shows, shall not be permitted.

d. Hunting, trapping, and fishing shall be allowed provided said activities are limited to private noncommercial activities and do not adversely affect the agricultural use of the property.

e. Spray irrigation designed to replenish soil nutrients and improve the quality of the soil is allowed provided that the spray effluent is treated pursuant to the best available treatment technology, is disposed of on property utilized for the production of conventional cash crops, and all storage and treatment of the effluent disposed of on the District property takes place on property other than District property.

f. Easements, licenses and other property interests for utility, telecommunications, and access uses are allowed provided that:

1. The property subject to the easement, license or other property interest is limited to only the area necessary to accommodate the utility, telecommunications or access use;

2. The area affected by the use is located so as to minimize, to the maximum extent practicable, the impact on farming activities and operations;

3. No commercial advertising or commercial activities unrelated to the utility, telecommunications or access use shall be conducted on the area of the utility, telecommunications or access use;

4. Any document used to grant an easement, license or other property interest shall limit the activities to utility, telecommunications or access uses and shall contain the prohibitions of commercial advertising or commercial activities unrelated to the permitted use; and

5. The written approval of the Foundation shall be obtained in accordance with the rules and regulations of the Foundation.

g. Farm structures in existence at the time of approval of a District or expansion of a District that are no longer used in farming operations may be used for the enclosed storage of property belonging to others.

h. A restricted landing area utilized for the personal use of the owner or tenant of the owner is permitted provided that said use does not require any rezoning of the property or conditional use allowing for commercial use. As used herein, "restricted landing area" means any area of land, water or both which is used for the landing and takeoff of aircraft.

i. A "bed and breakfast" may be operated in any allowed dwelling located on the property.

j. A daycare center for the care of no more than 5 children under the age of 16 shall be allowed in any allowed dwelling located on the property.

k. Farm structures in existence at the time of approval of a District or expansion of a District that are no longer used in farming operations, and any related temporary ancillary structure used in conjunction with the existing farm structures, may be used for public and private gatherings, such as weddings, parties, conferences, fundraising ceremonies and other similar events, provided that all of the following requirements are satisfied:

1. The property with improvements on which the allowed activities are conducted must be owned by the person subject to the District Agreement or preservation easement.

2. The area on which the allowed activities are conducted cannot be subdivided from the agricultural lands.

3. The area on which the allowed activities are conducted shall be limited to the extent feasible to avoid impacts on current and beneficial agricultural use of the agricultural lands and the exterior dimensions of the existing farm structures shall not be increased in size.

4. The person seeking to conduct activities allowed under this paragraph (a)(5)k. shall submit to the Foundation Board, in advance and on an application form provided by the Foundation, a detailed description and plan of the proposed activities.

5. The application shall have been approved by the Foundation, subject to such terms and conditions deemed necessary and desirable to protect the agricultural value of the property, which terms and conditions shall be subject to the enforcement provisions set forth in § 920(a) of this title.

6. The person seeking to conduct activities allowed under this subsection shall have agreed, in writing, to comply with the terms and conditions set forth in the Foundation Board's approval.

l. Annual and semi-annual events related to agricultural commodities and agricultural enterprises during the growing season, and other annual and semi-annual events during the nonprimary growing season, subject to case by case review and approval by the Foundation Board, and if approved subject to such terms and conditions imposed to protect the agricultural value of the property, which terms and conditions shall be subject to the enforcement provisions set forth in § 920(a) of this title.

(b) Farmlands and/or forestlands included in an Agricultural Preservation District shall be released from such District at the expiration of 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 6 months prior to the expiration of the referenced 10-year period; otherwise, such lands shall remain in the District 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 the lands from the District.

(c) In event of a purchase of an agricultural lands preservation easement by the Foundation, the restrictions set forth in subsection (a) of this section shall become permanent and subject to release only under § 917 of this title, or in the case of the restrictions set forth in paragraph (a)(2)b. of this section, under paragraph (a)(4)c. of this section.

68 Del. Laws, c. 118, § 2; 71 Del. Laws, c. 257, § 1; 74 Del. Laws, c. 423, §§ 1, 2; 80 Del. Laws, c. 233, § 1; 80 Del. Laws, c. 344, § 1.;

(a) Normal agricultural uses and activities conducted in a lawful manner are preferred and priority uses and activities in Agricultural 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 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 50 feet of the boundary of an Agricultural Preservation District, no improvement requiring an occupancy approval shall be constructed within 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.

68 Del. Laws, c. 118, § 2.;

(a) Owners of real property located in an Agricultural Preservation District shall, with respect to such real property, be entitled to the following benefits:

All unimproved land shall be exempt from:

(1) Taxation otherwise imposed under Chapter 83 of Title 9 and Chapter 19 of Title 14; 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 Chapter 41 of Title 7 shall in no way be affected;

(2) Taxation otherwise imposed under Chapter 54 of Title 30, 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 5 years after the unimproved lands are released from a District pursuant to § 909(b) of this title, such unimproved lands are rezoned or subject to subdivision; and

(3) 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.

(c) [Deleted.]

68 Del. Laws, c. 118, § 2; 70 Del. Laws, c. 51, § 1; 71 Del. Laws, c. 353, § 1.;