TITLE 3

Agriculture

Department of Agriculture

CHAPTER 9. DELAWARE AGRICULTURAL LANDS PRESERVATION ACT

Subchapter IV. Miscellaneous Provisions


(a) Notwithstanding any provision contained herein to the contrary, the Secretary of the Department of Agriculture shall be entitled, within 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 30-day period shall constitute an affirmation of the decision of the Foundation.

(b) 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 1 year.

(c) Notwithstanding any provision contained herein to the contrary, the Secretary of the Department of Agriculture shall be entitled, within 30 days of the date of adoption of criteria for establishment and maintenance of Agricultural Preservation Districts pursuant to § 904(a)(1) of this title, 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 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.

68 Del. Laws, c. 118, § 2.;

(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 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 of this title, plus one and one-half percent 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) of this title, shall, after notification and failure to correct the violation, be subject to a civil penalty of not less than $50 but not more than $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) of this section, a civil penalty claim hereunder shall be filed in any Court of Common Pleas. Any civil penalties recovered shall be paid to the Fund.

(c) The Foundation shall be entitled to take action, including an action by monition, in any court of competent jurisdiction to enforce liens and to collect the Foundation's share of roll-back taxes, including penalties, which are due under the provisions of § 921(c) of this title. In any such action the Foundation shall be entitled to proceed through its legal counsel, without the need of obtaining any prior approval, and the Foundation shall, if it prevails, be entitled to recover its reasonable costs and expenses, including reasonable attorney's fees. Nothing contained herein shall preclude a county or school district from pursuing legal action to collect, on behalf of the Foundation, the Foundation's share of the roll-back tax through either independent action or as part of another action. Upon collection of the Foundation's share of the roll-back tax through such legal action the amount collected, after deduction of the seven and a half percent administration charge, shall be forwarded to the Foundation.

68 Del. Laws, c. 118, § 2; 68 Del. Laws, c. 371, § 6.;

(a) The Director of the Office of Management and Budget and the Controller General are authorized to transfer the sum of $48,000 from the Office of Management and Budget 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 moneys collected by the respective county receiver of taxes, treasurer or director of finance as the Foundation's share of roll-back taxes under § 8335(d) of Title 9 shall, when collected and after deduction of the seven and a half percent administration charge, be transferred to the Foundation for use in carrying out the purposes of this chapter. The Foundation shall be entitled to adopt and impose procedures and requirements to assure collection of its share of roll-back taxes and the Foundation shall be entitled to notify county taxing authorities of lands subject to the agricultural lands preservation assessment and upon such notification such county taxing authorities shall include the amount due on the property tax statements submitted with respect to the converted lands. Nonpayment of the Foundation's share of the roll-back tax, including penalties, shall when payable result in the imposition of a lien on the land for nonpayment, which lien shall qualify for all purposes as a lien under § 2901 of Title 25.

(d) There is hereby established a Committee on Funding for Farmland Preservation, which shall consist of 2 members of the Delaware Senate as appointed by the President Pro Tem of the Senate, 2 members of the Delaware House of Representatives as appointed by the Speaker of the House of Representatives and 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, 1993.

(e) All moneys directed to the Foundation under this chapter, either directly or indirectly, shall be for the exclusive benefit of the Foundation in carrying out the purposes of this chapter. Such funding shall be considered separate and distinct from any other funding authorization, even though the funding amount may be determined on the basis of tax rates, assessments or by other means used by other entities.

68 Del. Laws, c. 118, § 2; 68 Del. Laws, c. 306, § 1; 68 Del. Laws, c. 371, §§ 4, 5; 75 Del. Laws, c. 88, § 21(2).;

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.

68 Del. Laws, c. 118, § 2.;

(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 9 months of July 8, 1991, 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.

68 Del. Laws, c. 118, § 2.;

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.

68 Del. Laws, c. 118, § 2.;

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. No recording cost, fee or charge of any nature shall be imposed for the recording of any documents or other materials submitted by the Foundation for purposes of implementing the provisions of this chapter.

68 Del. Laws, c. 118, § 2; 70 Del. Laws, c. 51, § 3.;

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 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 Chapter 54 of Title 30 and any county or municipal ordinance requiring payment of a realty transfer tax.

68 Del. Laws, c. 118, § 2.;

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 30 days from the date of the promulgation of the rule or regulation or other action of the Foundation.

68 Del. Laws, c. 118, § 2.;

For any public hearing conducted under the provisions of this chapter, the Foundation shall provide at least 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.

68 Del. Laws, c. 118, § 2.;

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.

68 Del. Laws, c. 118, § 2.;

(a) The Secretary of the Department of Agriculture may establish and promulgate such rules and regulations as he deems necessary to enforce the state policy established under this chapter.

(b) Whenever the Secretary of the Department of Agriculture has reason to believe that a public agency's action will have an adverse impact on agriculture without an ample finding of public need or is harmful to the maintenance and preservation of agricultural activities, the Secretary may conduct a hearing to investigate the actions and make recommendations consistent with this chapter to the public agency.

(c) Whenever the public agency disagrees with the Secretary's recommendations, the Secretary may request the Attorney General to review the record of the hearing on the matter and determine whether a Chancery Court action for injunctive relief consistent with this chapter is warranted.

64 Del. Laws, c. 465, § 1; 68 Del. Laws, c. 118, § 1.;