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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsDecember 2015

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3 DE Admin. Code 701
AND NOW, this 18th day of November, 2015, the Trustees of the Delaware Agricultural Lands Preservation Foundation (collectively the “Foundation” or the “Board”), issues the following Order which shall be effective ten (10) days after the publication of this Order in the Delaware Register of Regulations:
1. Pursuant to its statutory authority, the Foundation has proposed for adoption a comprehensive set of regulations (the "Proposed Regulations") to be used in the administration of the Delaware Agricultural Lands Preservation Program established pursuant to 3 Del.C. §901 (the “Program”). William A. Denman, legal counsel (the "Hearing Officer") was designated as the Hearing Officer to conduct a public hearing to entertain comments from the public on the Proposed Regulations, and thereafter organize and summarize the comments submitted, and report to the Foundation on the comments.
2. The public comment session was held at the Foundation’s office on Wednesday, September 23, 2015 at 10:00AM. A verbatim transcript of the public comment session, consisting of 74 pages, was prepared and available for review by the Foundation. Notice of the public comment session, together with information as to how a copy of the Proposed Regulations could be obtained, was published in the Delaware Register on September 1, 2015. Notice of the public comment session was also (a) published in both the Delaware State News and the News Journal on August 18, 2015 and (b) posted on the Delaware.gov web site on August 25, 2015. At least 60 days prior to the publication of the Proposed Regulations, a draft of the Proposed Regulations was distributed to the Farmland Preservation Advisory Boards of Kent and Sussex County, Delaware established pursuant to 3 Del.C. §906. A copy of the Proposed Regulations was sent to the Council President of New Castle County. New Castle County did not have an established Farmland Preservation Advisory Board. The deadline for submitting written comments was October 12, 2015, nineteen (19) days after the conclusion of the public comment session.
9. The Foundation finds that the Proposed Regulations are consistent with the Foundation’s enabling legislation, and in particular, 3 Del.C. §915, and provide for a fair and uniform procedure for acquiring agricultural lands preservation easements, incorporate bidding and negotiation into that process in the form of discounting or donations, and provide additional incentives to facilitate the acquisition of preservation easements on farms located near or adjacent to growth zones. The Foundation finds that the “discount” method used in the easement selection process has worked well in the past, and recognizing the voluntary nature of the program, provides an objective method for selecting qualified farms for easement purchase. The Foundation also finds that the 5% bonus provision set forth in Proposed Regulation Section 18.2 represents an additional incentive for owners of farmland located near and adjacent to growth zones to sell a preservation easement. The Foundation will monitor the effectiveness of the 5% bonus. The Foundation also finds that the Proposed Regulations simplify the procedure for acquiring preservation easements, and will not impose additional costs or burdens upon individuals, farmers, or small business owners. The Foundation also notes that many of the commentators who submitted comments supported the adoption of the Proposed Regulations. The Delaware Audubon Society, the Delaware Nature Society, Delaware Wild Lands, and the League of Women Voters submitted comments in support of the Proposed Regulations. Tony Domino and Tom Unruh, two active farmers in New Castle County, voiced their support for the Proposed Regulations. Neither the Kent County Farmland Preservation Advisory Board nor the Sussex County Farmland Preservation Advisory Board opposed the Proposed Regulations.
1. That the "Delaware Agricultural Lands Preservation Program" regulations (the "Regulations") attached hereto as Exhibit A are adopted pursuant to 3 Del.C. §901, et. seq. The Regulations adopted herein which constitute rules for the administration of the Delaware Agricultural Lands Preservation Program shall become effective ten (10) days after their publication in the Delaware Register of Regulations. The Foundation Board finds and determines that the adoption of the Proposed Regulations is just and reasonable, and in the public interest, and will foster the preservation of farmland in Delaware.
2. That pursuant to 29 Del.C. §1134, the Foundation shall as soon as possible transmit a copy of this Order and the Regulations to the Delaware Registrar of Regulations for publication in the next issue of the Delaware Register of Regulations.
BY ORDER OF THE FOUNDATION:
On July 8, 1991, Governor Michael N. Castle signed House Bill 200 to amend 3 Del.C. Ch. 9. The legislation established a comprehensive agricultural lands preservation program to serve the long-term needs of the agricultural community and the citizens of Delaware. It is the declared policy of the State to conserve, protect and encourage improvement of agricultural lands within the State for the production of food and other agricultural products useful to the public which are grown, raised or harvested on land and water in the State of Delaware.
In all matters not covered in 3 Del.C., Ch. 9 or these By-Laws, Roberts Rules of Order shall apply.
10.8 The term "usable land owned in the district" 3 Del.C., §909(a)(2), shall be defined as any land meeting the requirements for agricultural, horticultural or forest land in the Farmland Assessment Act of 1968 [9 Del.C., Ch. 83] and 3 Del.C., §403 or criteria for farm definition as established by the National Agricultural Statistics Service.
10.10 Under 3 Del.C., §909(a)(3), all restrictions shall be covenants which run with and bind the lands in the District for a minimum of ten (10) years, beginning when the District Agreement takes effect as specified in the District Agreement.
14.1 In accordance with 3 Del.C. §909(a)(2)(ii), the legal or equitable owners of real property subject to a District Agreement or Preservation Easement are entitled to apply to the Foundation for a hardship exception allowing for the transfer of dwelling property to parties who are not otherwise entitled to residential use of the dwelling property under the District Agreement or Preservation Easement, subject to the provisions of 3 Del.C. §909(a)(2)(ii) and the following requirements.
15.1 The Delaware Farmland Preservation Fund, hereinafter referred to as the "Fund" was enacted under 3 Del.C., §905 for the exclusive application by the Foundation to achieve the desired goals of preserving viable agricultural lands and conducting the business of the Foundation.
16.1 The Foundation Trustees shall manage and administer the Fund according to the requirements as stated in 3 Del.C., §905. A Trustee shall be elected as Foundation Treasurer to monitor and supervise the Fund.
25.0 Appraisals 3 Del.C. §916
28.6 Notwithstanding the priority and non-priority requirements set forth in this Section, the Foundation (1) shall be entitled to accept donations of preservation easements under such terms and conditions that may be imposed in the donations, provided the preservation easements contain the restrictions imposed under 3 Del.C. Ch. 9 and (2) the Foundation shall be entitled to participate in programs which make monies available for the purchase of preservation easements, subject to the requirements of such programs, provided the preservation easements contain the restrictions imposed under 3 Del.C. Ch. 9.
Telephone Number: (H)________________________ (W)_________________________
WHEREAS, in consideration of those benefits conferred under 3 Del.C. §910 and §911 GRANTORS voluntarily enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and as required by 3 Del. C. §908(a)(4), the undersigned GRANTORS agree to the following restrictions which shall apply to the Property of GRANTORS as shown on Exhibit "A" and/or referenced in whole or in part in Deed Book ___________________, Page ______________, _______________ County Parcel Nos._______________________________________ __________________________ as recorded in the Office of the Recorder of Deeds in and for __________________ County:
8.This Agreement shall be considered a covenant which runs with and binds the Property and the terms and conditions shall be subject to specific performance, and other action allowed under 3 Del.C. §920. GRANTOR(s) agree to abide by the provisions of 3 Del.C. Ch. 9 and the duly adopted regulations thereunder as such provisions relate to the Property.
I/We owner(s), of agricultural land, which has been established by recorded agreement as an Agricultural Preservation District in County, Delaware, apply to the Delaware Agricultural Lands Preservation Foundation to sell an Agricultural Preservation Easement. Agricultural Preservation Easement sale to the Delaware Agricultural Lands Preservation Foundation is offered in consideration of not less than
1) $ for the entire farm; or 2) $ per acre; or 3) an amount to be determined by appraisal and acceptable to buyer and seller (please check).
The land proposed for easement sale equals acres and consists of (check one):
__ the entire property owned as identified and stated in the District Agreement.
the property as outlined on the Agricultural Preservation District map attached (highlight the land proposed for an Agricultural Preservation Easement).
# of Dwelling Units: Date of Soil & Water Conservation Plan, if any:
File #: District Name: Date Received:
Tillable Cropland: acres Aquaculture acres
Pasture: acres Farm Structures: acres
Woodland acres Residence/Buildings: acres
Orchard/Vineyard/Nursery: acres Other (Specify): acres
CROP ACRES GROWN YIELD PER ACRE
Year = $ , Year = $ , Year = $
Tenant: Farm operator: The name, address and phone number of person to be contacted to view farm if different from landowner(s):
Medium to High Poultry
Medium Row Crops
Low Forestry
NOW, THEREFORE, the Grantor, for and in consideration of the sum of __________________, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the benefits conferred under 3 Del.C. Ch. 9, hereby grants and conveys to the Foundation, its successors and assigns, an agricultural lands preservation easement on and over the Parcel, and convenants and promises that the Parcel will be owned, used and conveyed subject to, and not in violation of the following restrictions:
2.Activities conducted on the real property shall be limited to agricultural and related uses as defined in 3 Del.C. §902. "Agricultural and related uses" does not include, among other things, such activities as:
5.This easement shall be deemed a covenant which runs with and binds the parcel permanently as set forth in 3 Del.C. §909(c), the terms and conditions shall be subject to specific performance and other action allowed under 3 Del.C. §920, and shall be subject to release only under 3 Del.C. §917. This easement shall be binding upon the heirs, executors, administrators, successors and assigns of the Grantor.
6.The provisions of 3 Del.C. Ch. 9 of the Delaware Code Annotated and duly adopted regulations hereunder as such provisions relate to the Parcel shall govern this easement.
Soils (weight = 9) SCS Natural Soils Groups
Sewer (weight = 8) County Engineering
Land Use/Land Cover (weight = 5) 1992 Land Use/Land Cover Map
% of Area in Agriculture (weight = 4) SCS Soil map grids were
Agricultural Investment (weight = 4) County ASCS Maps
Natural Areas (weight = 3) DNREC Natural Areas Map
2.1 The Foundation will provide application forms on which applicants who volunteer to place their lands into an Agricultural Preservation District will provide such information as the Foundation deems appropriate.
5.3 During the term of the District Agreement, the property shall be used for “agricultural and related uses” and shall be used in such a way so that the property continues to qualify as “viable and productive agricultural land" as defined under provisions of the Farmland Assessment Act. [9 Del.C. §§8329 - 8333] No more than 1 acre of land for each 20 acres of usable land, subject to a maximum of 10 acres, shall be allowed for dwelling housing. For purposes of calculating the number of acres allowable for dwelling housing, fractions of any acre shall not be allowed. By way of example, if a farm consists of 45 acres of usable farmland, the number of acres allowed for dwelling housing shall be 2, and not 2.25.
5.4 The phrase 'agricultural and related uses' shall have the meaning set forth in 3 Del.C. §909, as the same may be amended from time to time.
5.8 The term "usable land owned in the district" [3 Del.C. §909(a)(2)], shall be defined as any land meeting the requirements for agricultural, horticultural or forest land in the Farmland Assessment Act of 1968 [9 Del.C., Chapter 83] and [3 Del.C. §403] or criteria for farm definition as established by the National Agricultural Statistics Service.
5.10 Under 3 Del.C. §909(a)(3), all restrictions shall be covenants which run with and bind the lands in the District for a minimum of ten (10) years, beginning when the District Agreement takes effect as specified in the District Agreement.
9.8 The hardship provisions set forth herein shall not apply to the owners of real property who, pursuant to 3 Del.C. §909(a)(4)(c), have elected to be released from the restrictions of 3 Del.C. §909(a)(2)(b).
The Delaware Farmland Preservation Fund, hereinafter referred to as the "Fund", was enacted under 3 Del.C. §905 for the exclusive application by the Foundation to achieve the desired goals of preserving viable agricultural lands and conducting the business of the Foundation.
16.0 Appraisals [3 Del.C. §916]
18.2 In reviewing the offers of applicants to sell Preservation Easements to the Foundation, the Foundation shall, subject to consideration of any alternative criteria by the Foundation to satisfy special objectives, select those offers providing the highest level of percentage donation or percentage discount to the finally appraised value of the Preservation Easement, in accordance with the procedures and requirements of this Section. As an additional incentive, if any part of the applicant’s property subject to the offer is located in whole or in part within one-half (1/2) mile completely outside of any growth zone of the County in which the Property is located, or in whole or in part within one-half (1/2) mile completely outside of the boundary of an incorporated town, municipality or city, for the sole purpose of ranking said application, the Foundation shall increase the offered percentage discount by five percent (5%). By way of example, if an applicant’s offer includes a discount of sixty percent (60%), and the applicant’s property is located in whole or in part within one-half (1/2) mile completely outside of the specified areas, for ranking purposes, the applicant’s discount shall be deemed to be sixty-five percent (65%). If the applicant’s property is selected for purchase of a preservation easement, the purchase price for the preservation easement shall incorporate a discount of only sixty percent (60%). The locations of the growth zones referenced by the Counties and the one-half (1/2) mile surrounding areas are as shown in Appendix “A” attached hereto.
21.0 Residential Lots
Last Updated: December 31 1969 19:00:00.
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