Farmland Preservation Ordinance

 
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"Amended" Calhoun County Farmland Preservation Program Ordinance

THIS CALHOUN COUNTY FARMLAND PRESERVATION PROGRAM ORDINANCE, ADOPTED BY THE CALHOUN COUNTY BOARD OF COMMISSIONERS ON APRIL 15, 2003, WAS AMENDED AUGUST 17, 2006, TO PROVIDE FOR GENERAL TOWNSHIP REPRESENTATION ON THE CALHOUN COUNTY AGRICULTURAL PRESERVATION BOARD AND TO ALLOW FOR THE USE OF A STATE CERTIFIED APPRAISER IN DETERMINING DEVELOPMENT RIGHTS VALUES.

 
An Ordinance creating the Calhoun County Farmland Preservation Program which preserves productive farmland by acquiring development rights voluntarily offered by landowners, authorizes the cash purchase and/or installment purchases of such development rights, places an agricultural conservation easement on the property which restricts future development, and provides the procedures and guidelines governing the purchase of development rights and the placement of an agricultural conservation easement.
 
BE IT RESOLVED BY THE CALHOUN COUNTY BOARD OF COMMISSIONERS:
 
Declaration of Purpose of the Program.
It is the purpose of the Calhoun County Farmland Preservation Program and this development rights ordinance to preserve productive farmland in order to maintain a long-term business environment for agriculture in the county, to preserve the rural character and scenic attributes of the county, to enhance important environmental benefits and to maintain the quality of life of county residents. Further, it is recognized that this ordinance is but one of several farmland preservation strategies encouraged throughout the County. Other strategies include agricultural zoning, quarter-quarter zoning, sliding scale zoning, and various overlay techniques.
 
Section 1: Definitions
  1. "Agricultural conservation easement" means a conveyance via written instrument, in which, subject to permitted uses, the owner relinquishes to the public in perpetuity his or her development rights and makes a covenant running with the land not to undertake development.
     
  2. "Agricultural use" means substantially undeveloped land devoted to the production of plants and animals useful to humans, including forages and sod crops; grains, feed crops, and field crops; dairy and dairy products; poultry and poultry products; livestock, including breeding and grazing of cattle, swine, captive cervidae, and similar animals; berries; herbs; flowers; seeds; grasses; nursery stock; fruits; vegetables; Christmas trees; and other similar uses and activities. Agricultural use includes use in a federal acreage set-aside program, a federal conservation reserve program, or a wetland reserve program. Agricultural use does not include the management and harvesting of a woodlot.
     
  3. "Development" means an activity that materially alters or affects the existing conditions or use of any land in a manner that is inconsistent with an agricultural use.
     
  4. "Development rights" means an interest in land that includes the right to construct a building or structure, to improve land for development, to divide a parcel for development purposes or to extract minerals incidental to a permitted use or as set forth in an agricultural conservation easement.
     
  5. "Development rights ordinance" means an ordinance adopted under the County Zoning Act MCL 125.201, et seq., as amended.
     
  6. "Farmland" means 1 or more of the following:
    1. A farm of 40 or more acres in single ownership, with 51% or more of the land area devoted to an agricultural use.
    2. A farm of 5 acres or more in single ownership, but less than 40 acres, with 51% or more of the land area devoted to an agricultural use, that has produced a gross annual income from agriculture of $200.00 per year or more per acre of cleared and tillable land. A farm described in this subparagraph enrolled in a federal acreage set-aside program or a federal conservation reserve program is considered to have produced a gross annual income from agriculture of $200.00 per year or more per acre of cleared and tillable land.
    3. A farm designated by the department of agriculture as a specialty farm in 1 ownership that has produced a gross annual income of $2,000.00 or more from an agricultural use. Specialty farms include, but are not limited to, greenhouses; equine breeding and grazing; the breeding and grazing of cervidae, pheasants, and other game animals; bees and bee products; mushrooms; aquaculture; and other similar uses and activities.
       
  7. "Parcel" means a contiguous quantity of land in single ownership.
     
  8. "Permitted use" means any use expressly authorized within an agricultural conservation easement consistent with the farming operation or that does not adversely affect the productivity or agricultural use of the land. Storage, retail or wholesale marketing, or processing of agricultural products is a permitted use in a farming operation if more than 50% of the stored, processed, or merchandised products are produced by the farm operator for at least 3 of the immediately preceding 5 years. Permitted use includes oil and gas exploration and extraction, but does not include other mineral development that is inconsistent with an agricultural use.
     
  9. "Single Ownership" means the party or parties having a freehold estate or fee simple interest in land.
     
  10. "PDR program" means a program as defined in the County Zoning Act MCL 125.201, et seq., for the purchase of development rights by a county, and specifically includes the Calhoun County Farmland Preservation Program.
Section 2: Authorization
  1. Pursuant to the County Zoning Act MCL 125.201, et seq., the County Board of Commissioners is authorized to purchase the development rights of farmland throughout the County. Such acquisition may be by purchase, gift, grant, bequest, devise, covenant or contract. The County shall only purchase development rights on farmland that are voluntarily offered for sale by a property owner.
     
  2. The County is authorized to enter into installment purchase contracts, options, and agreements or take receipt of donations of easements, consistent with applicable law. The County is authorized to pay interest on the declining unpaid principal balance at a legal rate of interest consistent with prevailing market conditions at the time of execution of the installment purchase contract.
     
  3. The County may contract with recognized and legally established nonprofit land trusts or other experienced and qualified individuals, parties or entities that would assist the County in the process of negotiating easements and purchase contracts, establishing baseline studies and procedures for monitoring, and actual monitoring of any agricultural conservation easements acquired under this Ordinance.
     
  4. The Calhoun County Planning Department under the authority of the Calhoun County Board of Commissioners shall administer the Farmland Preservation Program.
Section 3: County Agricultural Preservation Board
  1. The County Board of Commissioners shall create a seven member body under this Ordinance to be named the County Agricultural Preservation Board. The seven voting members shall be residents of the county and will be appointed by the County Board of Commissioners and will include: (a) one County Commissioner, liaison or designee, (b) three individuals with agricultural interests, (c) one representative of township government, (d) one individual with real estate or development interests, and (e) one individual representing local natural resource conservation interests.
     
  2. Members of the County Agricultural Preservation Board shall serve three-year terms, with the exception that the County Commissioner representative shall be designated on an annual basis. The initial term shall be staggered so that one of the agricultural representatives and the real estate representative serve an initial one-year term, another agricultural representative and the local township representative serve an initial two-year term and the third agricultural representative and the local conservation representative serve an initial three-year term. Members may be re-appointed to successive three-year terms by the County Board of Commissioners. The County Board of Commissioners shall have the discretion to remove members for neglect of duty or malfeasance in office or other good cause. Vacancies due to removal or resignation shall be filled for the remainder of a term by appointment by the County Board of Commissioners. Members shall not be compensated for their services unless so directed by the County Board of Commissioners.
     
  3. The County Agricultural Preservation Board shall oversee the county’s farmland preservation program and shall be responsible for:
    1. Establishing selection criteria for the ranking and prioritization of applications to the program. The selection criteria must be approved by the County Board of Commissioners prior to each application cycle.
    2. Establishing a points-based appraisal formula for determining the value of the agricultural conservation easements.
    3. Reviewing and providing oversight in scoring all applications according to the adopted selection criteria.
    4. Ranking and prioritizing the top scoring applications for acquisition and determining whether the development rights should be purchased.
    5. Approving the restrictions and permitted uses under the agricultural conservation easement.
    6. Establishing the price to be offered to the property owner and initiating negotiations for the purchase of development rights and agricultural conservation easement. All purchases of development rights and agricultural conservation easements must be submitted to the County Board of Commissioners for approval.
    7. Establishing monitoring procedures and overseeing subsequent monitoring to ensure compliance with the agricultural conservation easement. Enforcement of the agricultural conservation easement in the case of non-compliance shall be the responsibility of the County Board of Commissioners or its designated agent.
       
  4. Individual County Agricultural Preservation Board members shall disclose any potential conflict of interest and may not vote when a conflict exists. Conflicts of interest include, but are not confined to, situations where (1) the board member is the applicant; (2) the member is a close relative of the applicant; (3) the board member has a close business association or ties with the applicant; (4) the board member, a relative, or a business associate could receive financial gain or benefit from the acceptance of the application; or, (5) other conflicts of interest as defined by law.
     
  5. To the extent of available funding and as approved by the County Board of Commissioners in consultation with the County Agricultural Preservation Board, the County may contract with qualified and experienced individuals or entities for consulting or staffing services.
Section 4: Eligibility for Application 
Any property owner may submit an application to the County Farmland Preservation Program provided it meets the following requirements:
  1. The property owner has signed the application indicating that he or she is interested in voluntarily selling the development rights to the parcel.
     
  2. At least 51% of the parcel’s area is devoted to an active agricultural use and no more than 49% of the parcel may be devoted to non-agricultural open space consisting of wetlands, woodlands, or otherwise unusable land.
     
  3. If the parcel is located within a city, village or township that administers a zoning ordinance, the municipality has also signed the application indicating it’s approval of the application to the County. The County shall not purchase development rights under a development rights ordinance from land subject to a city, village, or township zoning ordinance unless all of the following requirements are met:
     
    1. The development rights ordinance provisions for the PDR program are consistent with the Master Plan upon which the city, village, or township zoning is based.
    2. The legislative body of the city, village, or township adopts a resolution authorizing the PDR program to apply in the city, village, or township.
       
  4. The property is not designated for commercial, industrial, or residential uses at densities in excess of 5 dwelling units per acre under the County, Township, City or Village Master Plan.
     
  5. Agricultural activities are a permitted use on the parcel under all applicable zoning ordinances.
     
  6. The property has an approved and implemented resource conservation plan that meets USDA-NRCS standards.
Section 5: Criteria for Reviewing and Ranking Applications 
The County Agricultural Preservation Board shall establish selection criteria for ranking and prioritizing all eligible parcels submitted to the County Farmland Preservation Program. The selection criteria shall place an emphasis on farmland that:
  1. As part of the application procedure for the specific proposed purchase of development rights, the city, village, or township provides the county with written approval of the application.
     
  2. Has a productive capacity suited for the production of feed, food and fiber and has a greater potential for long-term agricultural production. Specific selection criteria may be based on soil classifications, parcel size, agricultural income, enrollment in the Farmland and Open Space Preservation Act, or the implementation of a soil conservation plan.
     
  3. Is under the threat of development. Specific selection criteria may be based on proximity to public sanitary sewer or water, the extent of development activity in the municipality or the amount of road frontage.
     
  4. Complements other farmland protection efforts in the County. Specific selection criteria may include proximity to other permanently protected farmland, proximity to other protected lands or surrounding land enrolled in the State Farmland and Open Space Preservation Act, or inclusion in an agricultural zoning district.
     
  5. Has additional matching funds available for the purchase of development rights provided by a local unit of government, landowner or private sources.
     
  6. Other factors considered important by the County Agricultural Preservation Board such as unique physical, historical or environmental characteristics.
Section 6: Application and Selection Process
  1. Based upon available resources and at the discretion of the County Agricultural Preservation Board, the county may on an annual basis conduct a voluntary application and selection process for property owners who wish to sell development rights under the County Farmland Preservation Program.
     
  2. The County Agricultural Preservation Board shall begin each application cycle by giving notice at least 90 days in advance of the application deadline that the county is accepting applications to the County Farmland Preservation Program. Notification shall be given in at least one newspaper of general circulation within the county, through the county Farm Bureau, County Conservation District, County MSU-Extension Service, local township offices and other organizations.
     
  3. The application may require information to be filled out by the property owner, the county Conservation District and the local unit of government.
     
  4. All applications shall represent the applicant’s intent to sell the development rights of the property to the County subject to mutually acceptable terms. The application will remain active by way of annual written approval of the landowner, provided there is no subsequent modification to the scoring criteria or application that requires additional information. Local cities, villages, and townships will be asked to sign a letter of continued support for standing landowner applications, and all applications, both new and old, will be scored and ranked for each cycle.
     
  5. The County Agricultural Preservation Board shall give notice to each city, village, or township in which an application for the purchase of development rights has been received, and the disposition of that application.
     
  6. At the close of the application deadline, an initial determination of eligibility shall be completed by the County Agricultural Preservation Board or designated staff. The property owner shall be notified if the application is not eligible for the program. Each application shall be evaluated and scored according to selection criteria approved by the County Agricultural Preservation Board and the County Board of Commissioners prior to the application cycle.
     
  7. The County Agricultural Preservation Board shall rank parcels according to the selection criteria score but shall also individually evaluate and prioritize the top scoring parcels. The County Agricultural Preservation Board may reprioritize the top scoring parcels based on individual review of each application and establish a priority on which development rights should be purchased first based on available funds. The written rationale for reprioritization of the top scoring parcels shall be included with each application.
     
  8. Agricultural conservation easement value shall be based upon a price established by the County Agricultural Preservation Board using a state certified appraiser or points-based appraisal method, as established in section 10 9 and approved by the County Board of Commissioners.
     
  9. The final ranking and prioritization of applications shall be submitted to the County Board of Commissioners for their approval.
     
  10. Upon mutual agreement to purchase terms by the property owner, the County Board of Commissioners, and the County Agricultural Preservation Board, a title search shall be completed before signing and recording of the agricultural conservation easement. Any questions or concerns regarding clear title to the property shall be resolved prior to signing of the agricultural conservation easement. All individuals, parties or entities with an interest in the property must be willing to agree to the terms and provisions of the agricultural conservation easement.
     
  11. The County Board of Commissioners shall approve the purchase of development rights and the agricultural conservation easement. The County Board of Commissioners may alter the recommendation by the County Agricultural Preservation Board to purchase the development rights only if there are insufficient funds, or upon a finding of fact that the selection criteria had not been accurately or appropriately applied to a specific application.
     
  12. Once the application has been approved for purchase by the County Board of Commissioners, the county and the property owners shall sign the agricultural conservation easement and it shall be legally recorded with the County Register of Deeds office.
     
  13. The County shall notify the appropriate local unit of government of each agricultural conservation easement.
     
  14. The agricultural conservation easement will be monitored in accordance with procedures and guidelines established by the County Agricultural Preservation Board.
Section 7: Agricultural Conservation Easement Provisions
  1. Upon the agreement of the purchase and sale of development rights by the County Agricultural Preservation Board, the property owner and the County Board of Commissioners, the County and the property owner shall execute a perpetual agricultural conservation easement, approved by the County Agricultural Preservation Board and the County Board of Commissioners. The agricultural conservation easement shall contain a provision indicating that the easement runs with the land and may not be terminated except as provided for in this Ordinance and the easement.
     
  2. Restrictions on that portion of the property included in the agricultural conservation easement shall include, but not be limited to, the following:
    1. Property shall not be divided into parcels less than 40 acres in size.
    2. The construction of residences for new owners of any divisions shall be prohibited.
    3. Construction of any other buildings, unless they are built for uses consistent with farming operations shall be prohibited.
    4. Commercial or industrial activity that is inconsistent with a normal farming operation shall be prohibited.
    5. Excavation of topsoil, sand, gravel, rock, minerals or other materials that significantly impairs or interferes with the agricultural values of the property shall not take place without prior written approval.
    6. Public access may not be required under the agricultural conservation easement.
       
  3. Permitted uses and retained development rights in the agricultural conservation easement shall include, but not be limited to, the following:
    1. Construction of buildings necessary for and consistent with agricultural uses.
    2. The right to construct one additional residence for an individual essential to the operation of the farm as defined in MCL 324.36101 et seq., Farmland and Open Space Preservation. Any structure must be in conformance with all applicable federal, state and local laws, ordinances and regulations.
    3. The right to maintain, renovate, add on to, or replace existing structures. Structure built must be in conformance with all applicable federal, state and local laws, ordinances and regulations.
    4. The right to sell, mortgage, bequeath or donate the property, provided that any conveyance shall be subject to the terms of the easement.
Section 8: Duration of the Agricultural Conservation Easement
  1. The agricultural conservation easement shall be permanent and run with the land, regardless of transfers in property ownership absent an action for eminent domain.
     
  2. Upon a court’s determination in eminent domain proceedings that the repurchase of the development rights from the County is necessary for a specific public interest, need or purpose, the party acquiring the property through eminent domain or the landowner shall pay to the county the fair market value of those development rights at the time of the repurchase, as determined by a State Certified Appraiser, or utilizing the points-based appraisal in section 10, before the termination of the agricultural conservation easement. The value of the development rights shall be determined as the difference between the fair market value of the property with all development rights intact and the value of the property for agricultural use with an agricultural conservation easement in place. If the appraiser has a conflict of interest associated with a potential appraisal, the appraiser shall report the conflict to the County, and the County shall select another appraiser to complete the appraisal.
     
  3. The County will deposit the proceeds from any repurchases into the farmland preservation fund and the proceeds shall be used to purchase additional development rights and agricultural conservation easements on additional farmland within the county.
Section 9: Determining the Value of the Agricultural Conservation Easement
  1. The County Agricultural Preservation Board, with concurrence of the County Board of Commissioners, shall utilize a state certified appraiser to determine the value of the development rights or establish a points-based appraisal method and formula for determining the value of the agricultural conservation easement prior to each application cycle. The formula shall establish a Base Value based on the parcel’s soil characteristics, size and proximity to other protected farmland. The Base Value shall be increased if the parcel qualifies for a market value adjustment based on the parcel’s location within the county and the amount of road frontage. In determining the market value adjustment, an average of actual vacant land sales of parcels over 20 acres in size zoned for agricultural purposes sold during the prior three years shall be determined for each township. The parcel may also qualify for a premium based on its proximity to sewer and water as determined by a formula established by the County Agricultural Preservation Board. The County Agricultural Preservation Board shall review the points-based appraisal method at the end of each application cycle, and compare agricultural conservation easement values relative to actual fair market sales in the county.
     
  2. The property owner may obtain, within a reasonable time frame, an appraisal of the development rights from a State Certified Appraiser at the property owner’s expense. The appraisal may calculate the value of the development rights as the difference between the fair market value of the property with all development rights intact and the value of the property for agricultural use with an agricultural conservation easement in place. The County Agricultural Preservation Board may establish guidelines, consistent with state standards, for the State Certified Appraiser to use in determining the fair market value or the agricultural value.
     
  3. The County Agricultural Preservation Board, with the concurrence of the County Board of Commissioners, shall approve the price to be offered and paid for the agricultural conservation easement. If the property owner obtains an independent appraisal, the County Agricultural Preservation Board may elect to renegotiate the initial offer based on qualified circumstances.
     
  4. The property owner may be paid a cash payment or offered an installment purchase contract, or a combination of both.
Section 10: Related Costs
The cost of services ordered by the County Agricultural Preservation Board in relation to the County’s Farmland Preservation Program shall be paid from all available farmland preservation program funding sources within the County, including state and federal matching funds, which may include the cost of appraisal, engineering, surveying, planning, financial, legal, environmental assessments, title searches, developing baseline assessments and monitoring easements. The County shall not be responsible for any expenses incurred by the property owner incident to this transaction that the County Agricultural Preservation Board has determined are the responsibility of the property owner.
Section 11: Farmland Preservation Fund
  1. Available funding for the County Farmland Preservation Program shall be deposited in a separate farmland preservation account established by the County Treasurer. Money in such farmland preservation account may be temporarily deposited in such institutions or invested in such obligations as may be lawful for the investment of county money. The revenues from the deposit and/or investment of the farmland preservation fund shall be applied and used solely for the purpose of purchasing development rights and agricultural conservation easements under this Ordinance, making payments obligated under installment purchase contracts, promoting farmland preservation programs, or paying for costs of administering or enforcing the County Farmland Preservation Program.
     
  2. Supplemental or matching funds from private sources or other governmental agencies, including local municipalities, the State, or Federal Government, may become available to pay a portion of the cost of acquiring development rights or agricultural conservation easements, or to supplement or enlarge such acquisitions.
     
  3. The County Board of Commissioners, pursuant to the County Zoning Act, may finance the County Farmland Preservation Program through one or more of the following sources:
    1. General appropriations by the County
    2. Proceeds from the sale of development rights by the county under Section 9
    3. Grants
    4. Donations
    5. General fund revenue
    6. Bonds or notes
    7. Special assessments as permitted by law
    8. Other sources approved by the County Board of Commissioners and permitted by law
Section 12: Amendments
This Ordinance may be amended by the County Board of Commissioners after receiving input from the County Agricultural Preservation Board.
Section 13: Severability
Any provision of this Ordinance which is found by a court of competent jurisdiction to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision contained in the Ordinance and such other provisions shall remain in full force and effect.
Section 14: Effective Date
This ordinance shall become effective upon publication.

 

 
 
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