TITLE 3

Agriculture

Department of Agriculture

CHAPTER 9. DELAWARE AGRICULTURAL LANDS PRESERVATION ACT

Subchapter III. Acquisition of Preservation Easements


(a) 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.

(b) The Foundation shall be authorized to enter into installment purchase agreements and to execute all documents necessary or desirable thereto to qualify such agreements for exemption from federal or state taxation to the extent permitted by the tax laws. Pursuant to the installment purchase agreements, the Foundation shall acquire preservation easements, establish special accounts for each agreement from which principal and interest payments shall be made and deposit into such special accounts amounts necessary to fund the agreements. The special accounts may be administered by a bank, escrow agent or other qualified paying agent approved by the Foundation and the deposited funds may only be invested in a manner approved by the Secretary of Finance. The amounts to be paid under an agreement shall not exceed the amounts available from the special account related thereto, including earnings thereon. The Foundation may, under the terms of the agreement, impose on the seller through direct charge or installment payment reduction the costs associated with the agreement and the special account. The Foundation is authorized to use all funds appropriated to it to acquire preservation easements through installment purchase agreements.

68 Del. Laws, c. 118, § 2; 70 Del. Laws, c. 570, § 2[1].;

(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 of this title 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) of this title; 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. Under any system adopted for consideration of applications submitted for the conveyance of agricultural lands preservation easements, the Foundation shall establish by regulation after public hearing means of creating a priority for acquisition of agricultural lands preservation easements in designated areas which are near or adjacent to growth zones, or border in part the growth zones.

68 Del. Laws, c. 118, § 2; 71 Del. Laws, c. 378, § 97.;

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. The Foundation shall be entitled to establish separate methods or incentives to facilitate the acquisition of agricultural lands preservation easements in designated areas which are near or adjacent to growth zones, or border in part the growth zones.

68 Del. Laws, c. 118, § 2; 71 Del. Laws, c. 378, § 96.;

(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.

68 Del. Laws, c. 118, § 2.;

(a) Legislative intent. — It is the intent of the General Assembly that the preservation easements purchased under this subchapter 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 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 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 of this title. For purposes of this subsection, 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 5 years after his last such request.

68 Del. Laws, c. 118, § 2.;

In addition to the district benefits set forth in § 911 hereof of this title, 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 death otherwise subject to the estate tax under Chapter 15 of Title 30. The Department of Finance shall be entitled to adopt requirements to effectuate the exemption from taxation as provided hereunder.

77 Del. Laws, c. 85, § 8; 79 Del. Laws, c. 11, § 1.;