Department of Agriculture

Delaware Agricultural Lands Preservation Foundation

final

1301 Regulations Governing the Delaware Agricultural Forestlands Preservation Program

Before The Delaware Agricultural Lands Preservation Foundation

ORDER NO. 2

AND NOW, this 11th day of October, 2006, the Delaware Agricultural Lands Preservation Foundation (the “Foundation”), issues the following Order which shall be effective ten (10) days after the publication of this Order in the Delaware Registrar 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 Forestland Preservation Program established pursuant to 3 Del.C. §931 (the “Program”). The Foundation conducted a public workshop on April 12, 2006 and a public hearing on Wednesday, June 21, 2006. At the Foundation’s July 12, 2006 Board meeting, William A. Denman, legal counsel (the "Hearing Examiner") was designated as the Hearing Examiner to conduct a second public hearing for the purpose of receiving comments from the public on the Proposed Regulations.

2. The second public hearing was held at the Foundation’s office on July 26, 2006. A copy of the Proposed Regulations and notice of the second public comment session was published in the Delaware Registrar on July 1, 2006. Notice of the June 21, 2006 hearing before the full board was published in both the Delaware State News and the News Journal on May 25, 2006 and May 24, 2006 respectively. Notice of the July 26, 2006 hearing before the Hearing Examiner was published in both the Delaware State News and the News Journal on June 28, 2006 and June 27, 2006 respectively.

3. On August 31, 2006, the Hearing Examiner submitted his Findings and Recommendations, a copy of which is attached hereto as Exhibit A.

4. The Foundation considered the Proposed Regulations and the Findings and Recommendations of the Hearing Examiner at its regularly scheduled Board meeting held on October 11, 2006. At its October 11, 2006 Board meeting, the Foundation adopted a resolution pursuant to which the Foundation accepted the Findings and Recommendations of the Hearing Examiner.

5. A summary of the evidence and public comments submitted on the Proposed Regulations is set forth in the Findings and Recommendations of the Hearing Examiner attached hereto as Exhibit A.

6. For the reasons set forth in the Findings and Recommendations of the Hearing Examiner, the Foundation, by this Order, adopts as final regulations the Regulations attached to this Order as Exhibit B.

7. Several comments were received relating to various matters relating to the Proposed Regulations. The Foundation has considered these comments, and for the reasons set forth in the Findings and Recommendations of the Hearing Examiner, the Foundation believes that all such comments have been adequately addressed by the recommended changes set forth in the Hearing Examiner's Findings and Recommendations.

NOW THEREFORE, for the reasons set forth above and in the Findings and Recommendations of the Hearing Examiner, IT IS ORDERED:

1. That the "Guidelines Used For The Delaware Agricultural Forestlands Preservation Program" (the "Regulations") attached hereto as Exhibit B are adopted pursuant to 3 Del.C. §931, et. seq. The Regulations adopted herein shall become effective ten (10) days after their publication in the Delaware Registrar of Regulations.

2. That pursuant to 29 Del.C. §1134, the Foundation shall transmit a copy of this Order and the Regulations to the Delaware Registrar of Regulations for publication in the next issue of the Delaware Registrar of Regulations.

3. That a copy of this Order and the Regulations shall be mailed to each entity or persons that previously filed comments to the Proposed Regulations and to each person who has made a timely request for advance notice of the Foundation’s regulation making proceedings.

4. That the Foundation reserves the right to hereafter alter, amend, or waive the Regulations adopted herein to the extent that the same may be allowed by law.

5. That the Foundation reserves the jurisdiction and power to enter such further orders in this matter as may be deemed necessary or proper.

BY ORDER OF THE FOUNDATION:

Robert F. Garey

Lynwood L. Davenport

Jack Markell

Kevin Coyle, for John A. Hughes

Allen Jones

G. Ray Staats

Austin Short, for Michael Scuse

Dated: October 11, 2006

Findings and Recommendations of Hearing Examiner Regarding Proposed Forestland Preservation Program Regulations

DATED: August 31, 2006

INTRODUCTION

Pursuant to its statutory authority, the Delaware Agricultural Lands Preservation Foundation (the “Foundation”) has proposed for adoption a comprehensive set of regulations (the “Proposed Regulations”) to be used in the administration of the Delaware Agricultural Forestland Preservation Program established pursuant to 3 Del.C. §931 (the “Program”). The Foundation conducted a public workshop on April 12, 2006 and a public hearing on Wednesday, June 21, 2006. Notice of the June 21, 2005 hearing before the full Board was published in both the Delaware State News and the News Journal on May 25, 2006 and May 24, 2006, respectively. The affidavits of publication, documenting the publication of each such notice, are attached as Exhibit 1 and Exhibit 2, respectively. At the Foundation’s July 12, 2006 Board meeting, I was appointed to act as the Hearing Examiner to conduct a second public hearing for the purpose of receiving comments from the public on the Proposed Regulations.

The second public hearing was held at the Foundation’s office on July 26, 2006. A copy of the Proposed Regulations and Notice of this hearing was published in the Delaware Registrar on July 1, 2006. A copy of this Notice, together with the Proposed Regulations, is attached as Exhibit 3. Notice of the hearing was also published in both the Delaware State News and the News Journal on June 28, 2006 and June 27, 2006 respectively. Affidavits of publication, documenting the publication of said notices, are attached as Exhibit 4 and Exhibit 5.

THE HEARINGS

No substantive comments were provided at the June 21, 2006 hearing. However comments were submitted at the July 26, 2006 hearing. As the Hearing Examiner, I presided over the July 26, 2006 hearing. Michael McGrath, Austin Short, and Cathy Mesick attended the July 26, 2006 hearing on behalf of the Foundation. While several members of the public appeared at the hearing, only two provided comments: Douglas Simpson and Timothy Kaden. At the conclusion of this hearing, the record remained open until July 31, 2006, for purposes of receiving written comments. The following written comments were submitted either at the hearing or subsequent to the hearing:

(1) July 24, 2006 comments of Andrew T. Manus, Director, Conservation Programs, Delaware Chapter of the Nature Conservancy (Exhibit 6);

(2) July 27, 2006 comments of Jennifer Gochenaur, Associate Director, Natural Resources Conservation, Delaware Nature Society (Exhibit 7);

(3) July 30, 2006 comments of Lorraine M. Fleming (Exhibit 8);

(4) July 31, 2006 comments of Eileen M. Butler, Natural Area Program Manager, Office of Nature Preserves, Division of Parks and Recreation, Department of Natural Resources and Environmental Control (Exhibit 9);

SUMMARY OF ORAL COMMENTS SUBMITTED AT THE HEARING

As noted above, two members of the public spoke at the July 26, 2006 hearing. A brief summary of their comments is set forth below.

1. Douglas Simpson

Mr. Simpson commented that Section 5.9 of the Proposed Regulations should allow for the creation of wildlife food plots within forestlands. He also stated that if property proposed for inclusion within a forestland preservation area is located within a State Resource Area (“SRA”), that factor should not be taken into consideration in the appraisal process for purposes of valuing the purchase price for the easement.

2. Timothy Kaden

Mr. Kaden stated that the term “professional forester” as described in Regulation 1.1.10, should be defined.

3. Donald Sharp

While Mr. Sharp did not attend the hearing, Mr. Sharp contacted me directly by telephone. Mr. Sharp recommended that the Proposed Regulations provide a monetary incentive for property owners not to use the amount of residential use otherwise allowed by law. In addition, he suggested that incentives be incorporated into the Regulations to discourage hardwood forest production.

SUMMARY OF WRITTEN COMMENTS SUBMITTED

1. Andrew T. Manus (Exhibit 6)

Mr. Manus’ comments consisted of several questions and recommendations. Mr. Manus inquired whether Section 1.0 would allow for 10+ acres of cropland to be “afforested” and included in the Program subject to Section 1.2. The answer to that question is no. (Although as soon as the land was successfully afforested it could be included in the program.)

Mr. Manus inquired if Section 8.2 of the Proposed Regulations refers only to established forestland preservation areas. The answer to that question is, yes.

Mr. Manus also inquired whether Section 8.3 refers to “Level 4” areas only. This question deals with the issue of what is considered a “growth area” as that term is used in the statute.

Mr. Manus also recommended that the “Ranking Criteria for Forestland Preservation Easement Applications” (Section 14) include the property’s proximity to an agricultural preservation district. He suggested that ten points be added to the ranking criteria for any property located within or adjacent to an agricultural preservation district.

Finally, Mr. Manus noted that Section 17.0 of the Proposed Regulations refers to “Agricultural Lands Preservation Easement Value and Purchase Price.” This section, as correctly noted by Mr. Manus, should be “Forestland Preservation Easement Value and Purchase Price.”

2. Jennifer Gochenaur (Exhibit 7)

Ms. Gochenaur commented that the Proposed Regulations are “quite comprehensive and mirror the highly successful agricultural lands preservation program.” She recommended however that the Proposed Regulations require “coordination” with DNREC (specifically the Division of Parks and Recreation’s Natural Areas Program and the Division of Fish and Wildlife’s Natural Heritage and Endangered Species Program) regarding forestland management plans on lands containing SRAs and State designated natural areas. Like Mr. Manus, Ms. Gochenaur also recommended including a fifth category for ranking applications – proximity to an agricultural preservation district.

3. Lorraine M. Fleming (Exhibit 8)

In Section 8.2, which requires the Foundation to “place greatest emphasis” on acquiring forestland preservation easements in areas where significant forestlands can be maintained for long-term forest reproduction, Ms Fleming suggested that the word “give priority to” be substituted for the phrase “place greatest emphasis on.” Ms. Fleming also inquired whether or not there was a definition for the phrase “long-term”.

Ms. Fleming expressed concern that if forestlands are located within a designated natural area or an SRA, timber harvesting may run counter to maintaining the natural values for which the specific property was designated. She recommended that the Proposed Regulations contain special provisions that would require interagency review (specifically with the DNREC Secretary’s office, the Natural Heritage Program, and the Natural Areas Preservation Program) with respect to timber harvesting in such areas.

4. Eileen M. Butler (Exhibit 9)

Ms. Butler’s written comments are briefly summarized below:

Section 1.0:

Section 2.0

Section 5.0:

Section 14:

RECOMMENDATIONS

Doug Simpson’s Comments

1. Regarding Mr. Simpson’s suggestion that “wildlife food plots” should be allowed within forestlands, 3 Delaware Code Section 934 of (a)(2) provides that activities relating to “wildlife habitat management” are allowed within preserved forestlands. I do not recommend any changes to the Proposed Regulations with respect to this issue, since the enabling legislation would allow any activity related to “wildlife habitat management”, which, in a proper case, would include “wildlife food plots”. Undoubtedly, there are many activities that would come within the definition of “wildlife habitat management”, and such decisions, subject to the supervision of the Foundation, are better left to the judgment of a professional forester.

2. Mr. Simpson also suggests that for purposes of determining the value of a forestland preservation easement, the fact that the proposed property is located within an SRA should not be taken into consideration. I do not recommend including such a provision in the Proposed Regulations. In valuing the lands proposed for inclusion, the appraiser should be able to take into consideration all factors affecting the value of the land, including but not limited to any existing restrictions applicable to the property.

Timothy Kaden’s Comments

3. Regarding Mr. Kaden’s suggestion that the term “professional forester” be defined in the Proposed Regulations, I am not recommending any changes to the Proposed Regulations on this issue. The term “professional forester” is defined in the enabling statute to mean “an individual who possesses at least a bachelor’s degree in forestry or a closely related field.” See, 3 Del.C. §902(19).

Donald Sharp’s Comments

4. As noted, Donald Sharp did not appear at any of the hearings. Regarding his recommendation that the Proposed Regulations provide a monetary incentive to encourage property owners not to use the amount of residential use otherwise allowed by law, I do not believe any changes to the Proposed Regulations are required. As a matter of practice, a property owner who sells a preservation easement is not required by law to take advantage of all of the residential use allowance provided for by the statute. In determining the amount of compensation to be paid to a property owner, the value of the allowed residential acreage is deducted from the purchase price. If a property owner elects to waive the residential acreage allowance, he/she may do so, which would increase the amount of compensation that would otherwise be payable. As a result, there is a built-in incentive for property owners not to use the maximum residential use allowance provided by statute, if that is their desire.

5. Regarding Mr. Sharp’s suggestion that an incentive should be incorporated to discourage “hardwood forest production”, such incentives would be contrary to the purpose of the forestland preservation statute which is to encourage the productive use of forestlands.

Andrew T. Manus’ Comments

6. Mr. Manus raised the interesting issue of whether or not cropland which does not constitute a forest could come within the forestland preservation area if the property owner agrees to create a forest. I do not believe that such a result was intended by the legislation. Under the statute, “forestlands” means a contiguous area of trees or forest cover at least 10 acres in size which is capable of being timbered and reforested as determined by the State Forester.” 3 Del.C. §902(6). Accordingly, I believe that in order for a property to qualify for inclusion within a forestland preservation area, a forest, or a contiguous area of trees, must exist at the time the application is submitted.

7. Section 8.3 of the Proposed Regulations provides that “…the Foundation will only consider properties outside of state designated growth areas in the acquisition of forestland preservation easements.” Mr. Manus raised the issue of whether or not Section 8.3 refers to “Level 4” areas only. This question of course deals with the issue of what is considered a “growth zone.” By statute, in order for a property to be eligible for inclusion in a forestland preservation area, the property must be located outside a “Designated Growth Zone”. 3 Del.C. §933(2). The statute defines “growth zone” to mean areas designated by the Foundation recognizing planned future development.” Moreover, Section 904(a)(3) sets forth the process by which the “growth zone” will be identified, which process is beyond the scope of the Proposed Regulations. I do not recommend that the term “growth zone” be further defined in the Proposed Regulations at this time.

8. Mr. Manus also recommended that the “ranking criteria” include the property’s proximity to an agricultural preservation district. This same recommendation was made by Jennifer Gochenaur. In Kent and Sussex County, there is a substantial amount of acreage of farmland that is part of an agricultural preservation district. This however cannot be said with respect to properties in New Castle County. Accordingly, in all likelihood, there would be a greater number of forestlands located in Kent and Sussex County that are in close proximity to agricultural preservation districts compared to New Castle County. Accordingly, adding “points” to forestlands located in close proximity to such districts would in all likelihood give priority to properties located in Kent and Sussex Counties, thereby making it more difficult to preserve forestlands located in New Castle County, Delaware. Accordingly, I do not recommend that the ranking criteria set forth in the Proposed Regulations be expanded to include the property’s proximity to existing preservation districts.

9. Finally, Mr. Manus correctly pointed out the existence of a typographical error in Section 17.0 of the Proposed Regulations and accordingly, I recommend that the title of Section 17.0 be changed to read “Forestland Preservation Easement Value and Purchase Price.”

Jennifer Gochenaur’s Comments

10. Ms. Gochenaur suggested that the Proposed Regulations “require” coordination with DNREC regarding forestland management plans on lands containing SRAs and state designated natural areas. At this time I recommend against making any changes to the Proposed Regulations to mandate such “coordination.” The enabling statute requires that included property have a “forest management plan prepared by a professional forester that addresses the landowner’s forest management goals for the property.” 3 Del.C. §933(9). The plan must contain, at a minimum, aerial and soil maps of the property, a description and analysis of the forest by management unit, and silvicultural prescriptions for each management unit. The statute contemplates the existence of a “Forest Management Plan” that will be developed specifically for each parcel. Additional input from DNREC and other state agencies in the development of the Forest Management Plan is not mandated by the enabling statute.

11. Ms. Gochenaur’s proposal to create a fifth category for ranking applications (proximity to an agricultural preservation district) has already been addressed in paragraph 8 above.

Lorraine M. Fleming’s Comments

12. Ms. Fleming suggested that the word “give priority to” be substituted for the phrase “place greatest emphasis” as it appears in Section 8.2, so that Section 8.2 would read as follows: “The Foundation will give priority to acquiring Forestland Preservation Easements in areas where significant forestlands can be maintained for long-term forestry production.” I recommend accepting this suggestion. While this may just be a matter of semantics, I do believe that the intent of the phrase “place greatest emphasis” was to merely “give priority to” areas where significant forestlands can be maintained for long-term forestry production. The regulations do not provide a definition of “long-term forestry reproduction.” I do not believe however that it is necessary to provide a specific definition of “long-term” at this time.

13. Ms. Fleming recommended that the Proposed Regulations contain special provisions that would require interagency review with respect to timber harvesting in forestlands located within a dedicated natural area or an SRA. As noted above, the enabling statute requires forestlands included within a forestland preservation area to have a “Forest Management Plan” prepared by a professional forester. To the extent that forestry operations are located within a designated natural area or an SRA, these issues can be addressed in the “Forest Management Plan” prepared by the professional forester. To require additional regulatory reviews would provide additional regulation not contemplated by the enabling legislation and would perhaps discourage owners from participating in the forestland program. As noted in the enabling statute, the “establishment of permanent forested areas throughout the state will serve the long-term needs of the forest industry while providing invaluable wildlife and habitat protections and open space benefits to the citizens of the state.” 3 Del.C. §931. A Forest Management Plan prepared by a professional forester will take these goals into consideration in adopting a plan.

Eileen M. Butler’s Comments

14. Regarding Ms. Butler’s comments regarding Section 1.0 of the Proposed Regulations entitled “Criteria for Forestland Preservation Area Eligibility,” the criteria set forth in the Proposed Regulations are for the most part set forth in the enabling statute. See 3 Del.C. §933. Accordingly, it would not be appropriate to modify the Proposed Regulations in a way that would make the regulations inconsistent with the statutory criteria. With respect to Ms. Butler’s recommendation that land located inside a “growth area” should be allowed to be included in forestlands, by statute, lands located within designated growth zones are not eligible. Accordingly, any regulation that would provide otherwise would be inconsistent with the statute. Regarding the suggestion that in order to qualify the property must be located within or adjacent to state designated natural areas or state resource areas, this would be inconsistent with the enabling statute.

15. With respect to Ms. Butler’s suggestion that the application form should include an area for the property owner to note whether or not his or her property is adjacent to state designated natural areas and/or an SRA, I do not recommend including such a provision in the application itself. The staff of the Foundation, as a part of its administrative review, will make this determination when reviewing the application. Many property owners will not know if their property is located adjacent to state designated natural areas and/or SRAs.

16. With respect to Ms. Butler’s comments regarding ditching, horseback riding, and grazing of livestock, I would merely observe that under the enabling statute, these activities are specifically addressed. Thus, Section 934(b)(5) would allow “ditching for drainage necessary to enhance or preserve forestlands.” Thus, not all ditching for drainage would be allowed, but only ditching for drainage necessary to “enhance or preserve forestlands.” Obviously, if a property owner embarks upon a course of action on designated wetlands, the numerous statutes and regulations that deal with the issue of wetlands would come into play. Under the enabling statute, non-commercial private recreational uses such as “horseback riding” are allowed provided that the activities do not adversely affect the forestland use of the property. Grazing of livestock is also allowed, subject to the prior approval by the State Forester. However, housing or shelters for livestock on forestlands are not allowed. Accordingly, the legislature has already addressed these issues and the Proposed Regulations cannot prohibit horseback riding, grazing of livestock or ditching and draining, except to the extent provided for in the statute.

17. Ms. Butler suggests that the reference to “open space” in Section 5.9 contradicts the reference to “open space” in Section 8.1. Section 5.9 provides in pertinent part that “no conversion of forestland to cropland, pasture land, open space or other types of land use shall be allowed.” Section 8.1 notes that the intent of the enabling legislation is to provide a framework for the acquisition of forestland preservation easements to protect in perpetuity those lands of the state most suitable for long-term utilization of forestland resources while at the same time preserving invaluable wildlife and habitat protections and open space benefits to the citizens of the State of Delaware. I believe that the primary purpose of the legislation is to preserve forestlands and to encourage forestry in Delaware. Section 5.9 is a direct quote from the enabling legislation, and I believe its intent is to make it clear that the deforesting of forestland solely for the purposes of creating open space for development purposes is not allowed. Forestlands will undoubtedly contain areas of open space, and to the extent that forestlands are preserved, one incidental benefit is preserving that open space (as opposed to developing the property for residential purposes). Accordingly, I do not believe there is any inconsistency.

18. Finally, Ms. Butler suggests that the ranking criteria for forestland preservation easement applications should include points for “habitat values” or “ecological benefits”. The purpose of the ranking criteria is to provide some objective mechanism for ranking forestland preservation easement applications. Undoubtedly, there are an infinite number of factors (both subjective and objective) that could sway the evaluator in terms of ranking a particular application. Habitat values and ecological benefits, such as flood control, are but a few. To the extent that the ranking criteria are expanded to include such subjective evaluations, the intent of the ranking criteria will be defeated and will provide for increased subjectivity in evaluating applications. I would note that the Proposed Regulations do attempt to capture a property’s biodiversity importance through the points provided for properties located in an SRA or Natural Area. Accordingly, I do not recommend broadening the ranking criteria at this time.

CONCLUSION

For the reasons stated herein, I recommend that the Proposed Regulations be revised as follows:

1. By changing the title of Section 17.0 to read “Forestland Preservation Easement Value and Purchase Price.”

2. That the words “give priority to” be substituted for the phrase “place greatest emphasis” as it appears in Section 8.2, so that Section 8.2 would read as follows: “The Foundation will give priority to acquiring Forestland Preservation Easements in areas where significant forestlands can be maintained for long-term forestry production.”

A copy of the revised “Regulations” is attached hereto as Exhibit 10.

Respectfully submitted,

William A. Denman

Hearing Examiner

1301 Regulations Governing the Delaware Agricultural Forestlands Preservation Program

The Foundation is granted authority to establish criteria for Forestland Preservation Areas (hereinafter referred to as "Forestland Preservation Area") and the purchase of forestland preservation easements. [3 Del.C., §933]

1.1 In order to qualify for the Agricultural Forestland Preservation Program, the lands proposed as a Forestland Preservation Area in the application must meet the following criteria:

1.1.1 the owner(s) shall hold fee simple title to all land to be placed in the Forestland Preservation Area;

1.1.2 the land must constitute a contiguous area of trees or forest and cover at least 10 acres in size and be capable of being timbered and reforested, as determined by the State Forester;

1.1.3 the land shall be zoned to allow for agricultural or open space uses and shall not be subject to any major subdivision plan;

1.1.4 the applicant(s), including all fee simple title holders, must sign a written agreement committing to the Forestland Preservation Area restrictions set forth in this Section and 3 Del.C., §934 and other adopted requirements;

1.1.5 the land must be viable and potentially productive forestlands;

1.1.6 the land must be located outside a designated Growth Zone, as that term is defined in 9 Del.C. §902(9);

1.1.7 the land must not be subject to an existing conservation or preservation easement or other restriction which prohibits development;

1.1.8 the land proposed for inclusion shall include all of the eligible forestlands located in the tax parcels subject to the application, and no eligible real property shall be carved out or otherwise excluded. One (1) location containing no more than one (1) acre of land may be designated for seasonal recreational dwelling usage provided that the property proposed for inclusion contains at least 30 acres and the use of the designated area does not adversely affect the forestlands of the property. The owner may designate up to three residential locations as permitted under 9 Del.C. §933(8)(b), provided that any seasonal recreational dwelling shall be counted against the total allowable dwelling units;

1.1.9 no more than one (1) acre of land for each 20 acres of usable forestlands, up to a maximum of 10 acres, can be used for permanent dwelling housing;

1.1.10 the land shall have a forest management plan prepared by a professional forester that addresses the landowner's forest management goals for the land. The plan shall contain, at a minimum, aerial and soil maps of the land, a description and analysis of the forest by management unit, silvicultural prescriptions for each management unit, shall be revised and updated at least once every five years, and shall be available for inspection by the State Forester's office.

1.2 For the purposes stated in this chapter, the phrase "viable and potentially productive forestlands" is defined as land that is capable of being timbered and reforested as determined by the State Forester.

2.1 The Foundation will provide application forms (Appendix A) on which applicants who volunteer to place their lands into a Forestland Preservation Area will (shall) provide the following information:

2.1.1. name of petitioner(s)

2.1.2. mailing address(es)

2.1.3 telephone number(s)

2.1.4 property location

2.1.4.1 county

2.1.4.2 community name

2.1.4.3 tax parcel number for each parcel

2.1.5 deed or property description

2.1.6 area - total acreage of:

2.1.6.1 open space

2.1.6.2 forestlands

2.1.6.3 pasture

2.1.6.4 tidal wetlands

2.1.6.5 farm or commercial structures

2.1.6.6 residence/buildings

2.1.6.7 other

2.1.7 land use/zoning designation or designations

2.1.8 easements/rights-of-way (identify, if any)

2.1.9 mortgages/liens (identify, if any):

2.1.9.1 mortgagee or lien holder's name or names

2.1.9.2 date of mortgages or liens

2.1.10 number of dwelling units and any residential acreage designated by theowner pursuant to 9 Del.C. §933(8).

2.1.11 forest management plan (if any)

2.1.12 information regarding the occupancy of dwelling units on the property

2.1.13 the approximate location of the acreage, if any, the applicant intends to designate for seasonal recreational dwelling usage pursuant to 3 Del.C., §933(7).

2.2 The Foundation shall provide assistance to potential applicants in completing application forms when requested.

2.3 Foundation staff may conduct on-site inspections and/or phone interviews with the applicants to acquire data necessary to review the application and write a staff report.

2.4 In conjunction with the application, all fee simple owners shall sign a Forestland Preservation Area Agreement (Appendix B) which serves as a declaration in recordable form and acknowledgment of the policies and restrictions that must be followed, and all benefits realized in a Forestland Preservation Area.

The Foundation, subject to the review and approval of the State Forester, has the authority to approve applications establishing Forestland Preservation Areas and to purchase forestland preservation easements. [3 Del.C., §931]

3.1 The Foundation staff and the State Forester will review applications and determine whether or not the minimum eligibility requirements under Section 1.1 have been met.

3.2 If the minimum eligibility requirements have not been met, the applicant will be notified by letter from the Foundation indicating that the application does not qualify for further review, and the reasons for ineligibility.

3.3 If an applicant excludes a portion of property otherwise includable in a proposed Forestland Preservation Area, the Foundation shall deny the application; provided however that the applicant shall have the right to designate a location for seasonal recreation dwelling usage and residential usage, as allowed by law.

3.4 Subject to Section 3.3 above, if the lands proposed as a Forestland Preservation Area in the application meet minimum eligibility criteria, then the Foundation staff will submit to the Foundation and the State Forester applications and criteria checklists describing and summarizing the criteria as established in this chapter.

3.5 If the applicant disagrees with the staff evaluation of the proposed Forestland Preservation Area, then the applicant may contact the Foundation staff to discuss the application review. The Foundation staff will meet with the landowner to discuss the review within thirty (30) days from receiving such telephone call or letter.

3.6 If the issue is not resolved to the applicant's satisfaction, the applicant may request an administrative review with the Foundation by submitting a letter to the Foundation within fourteen days (14) of the applicant's last meeting with Foundation staff. This letter must include reasons and documentation to justify the applicant's claim(s).

3.7 Within seven (7) working days from the receipt of the landowner's letter, the Foundation will schedule a meeting and notify the applicant by certified letter of the date, time, and place of the meeting, at least seven (7) days in advance.

3.8 At the administrative review meeting, the applicant(s) shall present information or documentation as to how the proposed Forestland Preservation Area satisfies the eligibility criteria.

3.9 The Foundation will render a decision within thirty (30) days from the administrative review meeting and notify the applicant in writing of its decision.

4.1 To establish a Forestland Preservation Area, the application must be approved by the Foundation and the State Forester. [3 Del.C., §932 (a)]

4.2 After review by the Foundation and State Forester, the application is subject to a review period of thirty (30) days in which the Secretary of Agriculture may reject the application. The application shall be deemed officially approved at the end of the review period if it is not rejected by the Secretary of Agriculture. [3 Del.C., §919 and 938]

4.3 The property legally becomes a Forestland Preservation Area when the applicant and Foundation Chairperson (or designee) have signed the Forestland Preservation Area Agreement and no rejection has been exercised by the Secretary of Agriculture, or the Secretary of Agriculture has specifically approved the application.

4.4 Copies of the Forestland Preservation Area Agreement shall be filed with the County Planning and Zoning and Tax Assessor's Offices and recorded in the Office of the Recorder of Deeds. The Foundation shall require from these Offices proof of recording and/or receipt of the Forestland Preservation Area Agreement.

4.5 The Foundation shall endeavor to provide written notification of the date of establishment of the Forestland Preservation Area and provide a copy of the Forestland Preservation Area Agreement to the applicant, however, the failure of the Foundation to satisfy any formality following execution of a Forestland Preservation Area Agreement shall not affect the validity of the Forestland Preservation Area Agreement.

5.1 Any rezoning or major subdivision of real property included in a Forestland Preservation Area is prohibited. [3 Del.C., §934 (a)(1)]

5.2 The submission of applications for preliminary rezoning or approval of subdivision plans for any property within a Forestland Preservation Area to a county or municipality shall be considered evidence of the intent to rezone or subdivide and no action shall be taken by any county or municipality on any such application until the expiration of the Forestland Preservation Area Agreement.

5.3 During the term of the Forestland Preservation Area Agreement, activities on the property shall be limited to forestry production, forestry operations, forestry management and control, wildlife habitat management, and activities related to the foregoing. [9 Del.C., §934(a)(2)]

5.4 Forestry management, control and related activities allowed on Forestland

Preservation Areas are as follows:

5.4.1 Hunting, trapping and fishing, provided such activities are limited to private non-commercial activities that do not adversely affect the forestland use of the property, and provided further that leasing of the property for such non-commercial activities shall be allowed.

5.4.2 Easements, licenses and other property interests for utility, telecommunications, and access uses are allowed subject to the requirements set forth in 9 Del.C. §909(a)(5)(f).

5.4.3 The use of portable non-permanent forest planting, harvesting and processing equipment.

5.4.4 Conservation, educational and research activities related to forestlands.

5.4.5 Ditching for drainage necessary to enhance or preserve forestlands.

5.4.6 The grazing of livestock, excluding housing or shelters, subject to prior approval by the State Forester.

5.4.7 Timbering and reforestation.

5.4.8 Noncommercial private recreational uses such as hiking, horseback riding, and primitive camping, provided such activities do not adversely affect the forestland use of the property.

5.4.9 Activities involving best forestland management practices.

5.5 No more than 1 acre of land for each 20 acres of usable land in a Forestland Preservation Area, subject to a maximum of 10 acres, shall be allowed for permanent dwelling housing. The seasonal recreational dwelling usage designated pursuant to 9 Del.C. §933(7) shall be counted against the total allowable permanent dwelling housing acreage. With respect to acreage allowed for dwelling housing there shall be a limit of 3 dwelling houses for residential use placed on the allowable acreage at 3 locations designated by the owner. This limit shall include any pre-existing dwelling housing and/or the seasonal dwelling usage designated pursuant to 9 Del.C. §933(7). If however there exists 3 dwelling houses on the real property at the time of approval of the new Forestland Preservation Area, the allowable total number of dwelling housing and the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses, including seasonal dwelling usage, shall be allowed. The aforesaid dwelling housing allowances are subject to any applicable zoning laws and regulations, and the approval of said allowances by the Foundation shall not be considered a representation by the Foundation that said allowances comply with any applicable zoning laws and regulations.

5.6 Excavation or filling, borrow pits, extraction, processing and removal of sand, gravel, loam, rock or other minerals is prohibited unless such action is currently required by or ancillary to forestry management, control and related activities allowed on forestland preservation areas.

5.7 Activities that would be detrimental to drainage, flood control, water conservation, erosion control or soil conservation are prohibited.

5.8 Any other activity that might negatively affect the continued use of the land as forestlands is prohibited.

5.9 No conversion of forestland to cropland, pasture-land, open space or other types of land use shall be allowed.

5.10 No permanent commercial or industrial structures shall be located on the property.

5.11 No disposal, burial, storage, or stock piling of junk, vehicles, equipment, liquid or solid waste or other liquid or solid materials shall be allowed, except that wastewater spray irrigation shall be allowed utilizing best available treatment technology with storage and treatment facilities located on lands outside the Forestland Preservation Area.

5.12 The Forestland Preservation Area Agreement and Forestland Preservation Area requirements and benefits shall be binding on the heirs, successors and assigns of property owners within a Forestland Preservation Area. A property owner intending to transfer all or a portion of the property in a Forestland Preservation Area shall provide written notice to the Foundation at least (10) days in advance of the date of transfer of the property, and shall notify the purchaser or transferee that the property is subject to Forestland Preservation Area restrictions. Any transfer of real property in a Forestland Preservation Area shall be preceded by the execution by the transferor and the transferee of an Acknowledgment in the form on Appendix C and in recordable form acknowledging the restrictions applicable to the property and the agreement by the transferee to be bound by said restrictions.

5.13 Pursuant to 3 Del.C., §934 (d), all restrictions shall be covenants which run with and bind the lands in the Forestland Preservation Area for a minimum of ten (10) years, beginning when the Forestland Preservation Area Agreement takes effect as specified in the Forestland Preservation Area Agreement.

6.1 All properties are to remain in a Forestland Preservation Area for at least ten (10) years.

6.2 If a landowner wishes to withdraw from, or terminate a Forestland Preservation Area, then the Foundation must receive a written notice of intent to withdraw no less than six (6) months prior to the ten (10) year anniversary date of initial establishment of the Forestland Preservation Area. [3 Del.C. §934 (d)]

6.3 If the Foundation does not receive a written notification of the landowner's intent to withdraw from the Forestland Preservation Area at least six (6) months prior to the ten (10) year anniversary date of that Forestland Preservation Area, then the land shall remain in the Forestland Preservation Area for an additional five-year period unless and until written notice of intent to withdraw shall be given at least six months prior to the end of each additional five-year period.

The Foundation and State Forester shall have the authority to enter upon lands located within a Forestland Preservation Area as may be necessary to perform surveys, appraisals, and investigations to accomplish its mission; consistent with applicable statutes and these regulations. [3 Del.C., §939]

7.1 The Foundation or its designee, including the State Forester, reserves the right to inspect restricted land and enforce agreements.

7.2 If any violations of the terms and the conditions of the Forestland Preservation Area Agreement occur, the Foundation may institute proceedings in the appropriate court to enforce the terms and seek appropriate relief. [3 Del.C., §939]

8.1 The intent of this section is to provide a framework for the acquisition of Forestland Preservation Easements (hereinafter referred to as "Forestland Preservation Easements") to protect in perpetuity those lands of the state most suitable for long-term utilization of forestland resources while preserving invaluable wildlife and habitat protections and open space benefits to the citizens of the State of Delaware.

8.2 The Foundation will [place greatest emphasis give priority to] on acquiring Forestland Preservation Easements in areas where significant forestlands can be maintained for long-term forestry production.

8.3 Based on the long-range goal set forth in Section 8.2, the Foundation will only consider properties outside of state designated growth areas in the acquisition of Forestland Preservation Easements.

8.4 In the criteria established for the prioritization of Forestland Preservation Easements, the Foundation will also give weight to the Forest Land Evaluation (LE) score for the subject parcel and the location of the subject parcel in relation to State Resource Areas (SRAs) and state-designated Natural Areas.

9.1 Recognizing that voluntary applications by Forestland Preservation Area landowners may exceed available funds for the procurement of Forestland Preservation Easements, it is necessary to establish a procedure for pooling, reviewing, prioritizing, and funding applications for permanent Forestland Preservation Easements.

9.2 Application and funding cycles will take place on schedules established by the Foundation.

9.3 Applications for the purchase of Forestland Preservation Easements in Rounds of Purchases shall be subject to deadlines established by the Foundation.

9.4 For each Round of Forestland Preservation Easement Purchases the Foundation shall rank the applications in the Round in accordance with the criteria set forth herein.

9.5 Upon completion, the appraisals shall be provided to the landowners, and the procedures set forth herein involving offers for the sale of preservation easements shall be initiated.

9.6 After receipt and the completion of review of offers for the sale of preservation easements, the Foundation shall review the offers and announce the selections.

9.7 Following the selection of properties for acquisition of Forestland Preservation Easements, the Foundation shall arrange for surveys of the properties to be conducted, and proceed to settlement under the terms of option agreements, subject to the availability of funding and satisfaction of regulatory, financial or other restrictions or limitations.

9.8 The Foundation is under no obligation to purchase a Forestland Preservation Easement which is offered for sale.

10.1 The Foundation may establish a reserve of available funds for the matching of federal, county, state, local, or private funds for the preservation of forestlands.

The criteria for eligibility of acquisition of a Forestland Preservation Easement shall be the same as the criteria for Forestland Preservation Area eligibility. In addition, offered preservation easement lands shall be in an established Forestland Preservation Area and in compliance with Forestland Preservation Area requirements to be eligible; provided however that the Foundation shall have the authority to acquire Forestland Preservation Easements located within an existing Agricultural Preservation District heretofore approved by the Foundation. The Foundation shall have the right, in its sole discretion, to acquire a Forestland Preservation Easement on only a part of the property included within the Forestland Preservation Area Agreement or Agricultural Preservation District, as the case may be.

12.1 A separate application shall be required for each forestland tract offered for Forestland Preservation Easement purchase. The Foundation shall not be obligated to process any incomplete application.

12.2 The Foundation shall develop, and make available to landowners or other interested parties, an application form which requires the following information:

12.2.1 Name, address, telephone number and signature of the owner of the forestlands.

12.2.2 County, municipality or hundred, and Forestland Preservation Area in which the forestlands are located.

12.2.3 Total acreage of the forestlands and the number of acres of that tract proposed for Forestland Preservation Easement purchase.

12.2.4 Street/Road location of the forestlands, and directions from the nearest State route.

12.2.5 Deed reference - book, volume and page.

12.2.6 County tax map records, including tax parcel number, or account number of each parcel.

12.2.7 A copy of the forest management plan prepared by a professional forester shall be submitted with the application.

12.2.8 Name, address and telephone number of the person to be contacted to view the forestlands tract.

12.2.9 The approximate location of the acreage, if any, the applicant intends to designate for seasonal dwelling or residential use pursuant to 3 Del.C., §933(8)(b).

12.3 A form of Application is attached hereto as Appendix D.

13.1 The Foundation shall review the application to determine if it is complete and meets the minimum criteria set forth herein.

13.2 If the application is complete and the minimum criteria are met, a representative of the Foundation shall view the forestlands.

13.3 The Foundation shall for each Round of Preservation Easement Purchases evaluate applications which meet the minimum criteria and rank the applications in accordance with the criteria of Section 14. Notwithstanding the ranking procedure set forth in Section 14, the Foundation shall be entitled to have all eligible properties appraised and considered for purchase of Forestland Preservation Easements.

14.1 A system for ranking Preservation Easement applications is established to assist the Foundation in reaching a final decision.

14.2 Four categories will be utilized to rank the Preservation Easement applications during the Foundation's review period with a maximum score of 220 points. The four categories, each of which is discussed below, are forest productivity, size of discount, proximity to State Resource Area, and proximity to a state designated Natural Areas. In the event of a tie score, the property with the higher Forest Land Evaluation (LE) will receive the higher ranking. If the tie score is not resolved by the Forest LE scores, then the parcel with the greater acreage will receive the higher ranking.

14.3 Forest Productivity - Forest Land Evaluation Score - 100 Points.

In order to follow a rational, statewide plan for the acquisition of development rights on forestlands, the Foundation will give weight to applications for sale of Preservation Easements based on the land's capacity to produce timber. A property's Forest LE score will be used to reflect this capacity. Forest LE scores range from 0 to 100 with 100 reflecting the best soils for timber production.

Land with multiple soil types with differing LE scores will be categorized based on a weighted area average of the various LE scores.

14.4 Forestland Preservation Easement Discount - 100 Points.

The Foundation will also consider applications for sale of Forest Preservation Easements based on the ability to purchase easements at a discounted cost or donation. Weight will be given to the owner's willingness to receive a discounted payment from the appraised value of the Forestland Preservation Easement. One point will be awarded for each percentage of discount provided by the owner from the appraised value of the Forestland Preservation Easement.

14.5 Other factors - 20 Points.

Other criteria the Foundation will consider in the ranking of applications for sale of Forest Preservation easements will include the property's natural resource values, in addition to timber, and its location relative to lands designated as high priority for protection by the State.

Ten (10) points will be awarded if the property is located within a State Resource Area (SRA) as defined in 7 Del.C. §7507. A property shall be considered within a SRA if at least half of the property's area is located within the SRA.

Ten (10) points will be awarded if the property is located within a state-designated Natural Area as defined in 7 Del.C. Ch. 73. A property shall be considered within a Natural Area if at least half of the property's area is located within the Natural Area.

15.1 An offer to purchase a Forestland Preservation Easement shall be based upon one or more appraisal reports which estimate the full market value of the forestlands under its agricultural zoning designation and the forest-only value of the forestlands tract. Any appraisal obtained by the Foundation shall remain the property of the Foundation and may not be used by the property owner for tax purposes.

15.2 Subject to Section 15.7 hereof, an appraisal to the extent possible shall be based primarily on an analysis of comparable sales.

15.3 The value of buildings or other improvements on the forestlands shall be excluded in determining the Forestland Preservation Easement value. The value of the buildings or other improvements shall appear separately in the appraisal. Excluded from the value of the Forestland Preservation Easement shall be the acreage designated for residential use or seasonable dwelling use.

15.4 The appraiser shall be:

15.4.1 An independent, licensed real estate appraiser who is qualified to appraise a property for easement purchase. An appraiser shall be selected on the basis of experience, expertise and professional designation, and

15.4.2 A member of an organization which subscribes to the "Uniform Standards of Professional Appraisal Practice" published by the Appraisal Standards Board of the Appraisal Foundation, and shall follow their ethical and professional standards.

15.5 The appraiser shall supply a narrative report which contains the following information and (must be) is in the following format:

15.5.1 Introduction

15.5.1.1 Professional qualifications of the appraiser

15.5.1.2 Letter of transmittal or appraiser certificate

15.5.1.3 Table of contents

15.5.1.4 Summary of salient facts and conclusions

15.5.1.5 Purpose of the appraisal

15.5.1.6 Easement value definition as provided in 3 Del.C. §916(a)

15.5.2 Description of property

15.5.2.1 Area or neighborhood description

15.5.2.2 Description of appraised property

15.5.2.2.1 Legal description

15.5.2.2.2 Property data and zoning

15.5.2.2.3 Description of improvements

15.5.2.2.4 Photos and sketches (if available) of subject property

15.5.2.2.5 Tax map of subject property. In instances where the county does not have tax maps available, the sketch map required below shall include the boundary lines and acreage of properties adjoining the subject property and the names of all adjoining property owners

15.5.2.2.6 Location map

15.5.2.2.7 Development constraints. The appraiser shall report whether the farmland tract has public or private land use restrictions, is within a flood plain, or has other physical attributes which limit its developmental capability

15.5.3 Analyses and conclusions

15.5.3.1 Analysis of highest and best development use

15.5.3.2 Full market valuation

15.5.3.2.1 Comparable sales data

15.5.3.2.2 Adjustment grid

15.5.3.2.3 Location map of comparable sales

15.5.3.2.4 Market value estimate

15.6 The appraiser shall provide at least one original and three copies of each report to the Foundation. The original of each report and all copies shall be bound with rigid covers.

15.7 The forest-only valuation shall be based on the property's capacity to produce timber through the soil type(s) located on the property. The State Forester shall calculate annual timber production rates for each soil type and determine a five-year, rolling average of timber sale prices for the state. These values will produce an average annual income per acre for the property. This income value will then be capitalized to produce the forest-only valuation using a five-year, rolling average rate of return.

15.8 The Forestland Preservation Easement value is then calculated using the full market valuation appraisal and the forest-only valuation.

16.1 The appraiser shall supply information concerning comparable sales as follows:

16.1.1 At least four comparable sales shall be used for an appraisal. If the appraiser cannot obtain sufficient comparable sales data within the same general area as the subject farmland tract, the appraiser may use comparable sales from other areas within the county, state or outside the state, after consultation with the Foundation. The use of comparable sales which require adjustment of 50 percent or more is permitted only with the approval of the Foundation.

16.1.2 Pertinent data for each comparable sale used in the preparation of the appraisal shall be stated in the appraisal report, including date of sale, purchase price, road frontage in feet, soil series, an estimate of the range of slope and other relevant information. The appraisal shall include an analysis comparing the pertinent data for each comparable sale to the subject farmland tract.

16.1.3 The location of each comparable sale used in the appraisal report shall be shown accurately on the comparable sales map and sufficiently identified and described so as to be located easily.

17.1 The value of a Forestland Preservation Easement in perpetuity shall be the difference between the full market value and the forest-only value contained in the appraisal report.

17.2 The price paid by the Foundation for the purchase of a Forestland Preservation Easement may not exceed, but may be less than, the value of the Forestland Preservation Easement. [3 Del.C. §916(a)]

17.3 If an applicant is not satisfied with the appraisal provided by the Foundation, the applicant shall be entitled to have an independent appraisal performed at the applicant's expense by a qualified appraiser as specified in Section 15.4. The alternative appraisal shall be prepared in the same format as the Foundation's appraisal and shall be submitted to the Foundation within forty-five (45) days of the applicant's date of receipt of the appraisal provided by the Foundation. The forty-five (45) day period may be extended by the Foundation, provided the time extension does not delay the time frame established by the Foundation for making selection and acquisition decisions.

17.4 The review of the alternative appraisals by the Foundation shall be based on written submissions under such procedures as specified by the Foundation.

17.5 The maximum adjusted Preservation Easement value which the Foundation may accept is the difference between the adjusted forest-only value and the adjusted full market value, determined as follows:

17.5.1 The adjusted forest-only value shall equal the sum of:

17.5.1.1 The forest-only value determined by the applicant's appraiser, and

17.5.1.2 Up to one-half of the positive difference between the forest-only value determined by the Foundation's appraiser and his/her values which exceed those determined by the applicant's appraiser.

17.5.2 The adjusted full market value shall equal the sum of:

17.5.2.1 The full market value determined by the Foundation's appraiser, and

17.5.2.2 Up to one-half of the positive difference between the full market value determined by the applicant's appraiser and his/her values which exceed those determined by the Foundation's appraiser.

18.1 The priority for making purchases of Forestland Preservation Easements shall be those properties with the highest score as described in Section 14.

18.2 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.

19.1 The owners of the subject forestlands shall execute a document conveying the Forestland Preservation Easement which document shall be in the form of Appendix E or such other form which contains conditions contained in Option Agreements executed by landowners.

19.2 The document shall be in recordable form and contain:

19.2.1 A legal description setting forth the metes and bounds of the forestlands subject to the Forestland Preservation Easement and the seasonal dwelling or residential acreage, if any, designated by the owner pursuant to 9 Del.C. §933(8)(b).

19.2.2 At least one course and distance referencing a fixed marker or monument of a type commonly placed in the field by a surveyor.

19.2.3 The legal description shall not contain a closure error greater than one foot per 200 linear feet in the survey.

19.2.4 The forestlands on which a Forestland Preservation Easement is to be purchased must be surveyed and the survey shall show any residential acreage designated by the owner pursuant to 9 Del.C. §933(8)(b).

The Forestland Preservation Easement conveyed to the Foundation shall be unencumbered except for standard exceptions and be capable of being insured as such by an established and recognized title insurance company doing business in the State of Delaware. Any title defects, liens, survey discrepancies, boundary line disputes, or similar title issues shall be resolved by the property owner, at his or her sole expense. If subsequent to the purchase of a Preservation Easement it is determined that the amount of acreage is less than as reflected on the survey used by the Foundation for purposes of calculating the purchase price for the Preservation Easement, the property owner shall be required to refund to the Foundation any excess funds paid in reliance upon the inaccurate survey.

APPENDIX A

LETTERHEAD OF FOUNDATION

Return to: The Delaware Agricultural Lands Preservation Foundation FILE# _______________________

2320 S. duPont Highway, Dover, DE 19901

Phone (302) 698-4530, or Toll Free in DE Only (800) 282-8685

Please Type or Print:

Name of Petitioner(s)___________________________________________________________________

(All Fee Simple Owners of Record)

__________________________________________________________________________________________

Mailing Address

__________________________________________________________________________________________

Telephone: (H)_________________ (W) ________________________(CELL) __________________________

Email Address ________________________________ ___________ FAX NO: __________________ _______

Forest Location (County)_______________________Total Acreage of Forest __________________________

Adjoining Roads ____________________________________________________________________________

County Tax Parcel Number(s) _________________________________________________________________

Zoning Designation ___________________

(Call County Planning for zoning designation)

Type of Land Use: Forestlands Acres Open Space __________ Acres

Cropland Acres Pasture Land _________ Acres

# Of Farm Structures ______ Tidal Wetlands ________ Acres

Residence _________ Acres Other (specify) ________ Acres

# Of Dwelling Units: ______ # Seasonal Dwelling Units _____

# Seasonal Dwelling Acres _____

Occupant's Name(s) & Relationship

Historic Significance of Forest (if any) _________________________________________________________

Easements/Rights-of-Way (if any) _____________________________________________________________

Is there a forest management plan for the property prepared by a professional forester?

Yes _________ No ____________

If yes, what is the date of the plan ______________________Name of forester ________________________

Is any portion of the property currently subject to subdivision? Yes ____ No ____

Mortgage or Lien Holders: ____________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

INSTRUCTIONS

The following supplement is designed to assist in filling out the application for establishing your property as a Forestland Preservation Area:

1. Names of Petitioners: The application(s) must be signed by all fee simple owners of the parcel(s) being placed in a Forestland Preservation Area. If there is more than one property proposed to be in an Area where:

a) parcels are not contiguous, and/or

b) parcels are in differing forms of title,

Then each parcel must have a separate application.

All applications to create one Area should be returned to the Foundation together.

2. Mailing Address: The address that you want used for correspondence pertaining to this application.

3. Adjoining Roads: Because some people have a post office box number for a mailing address, it is necessary for the Foundation to know the exact road number(s) on which the parcel is located. Please list your main road (i.e., RT. 18) and any roads that adjoin your property.

4. # of Dwelling and Seasonal Dwelling Units: This is the number of houses on the parcel(s) which can be occupied. Please specify the names of the occupants and their relationship to the owners listed on the application. If any of the Dwelling Units are for seasonal use only, please specify.

5. County Tax Parcel Number(s): If you are unsure of your parcel number, please attach a copy of your most recent tax bill.

6. Zoning designation: In order to qualify for a Forestland Preservation Area, your land must be zoned for agricultural purposes (i.e., SR, S, SE, AC, AR, or AR-1). If you are not sure about your zoning designation, contact your County Planning Office. Kent: 744-2471, New Castle: 395-5400, Sussex: 855-7878.

7. Type of Land Use: The number of acres that is in each land use listed on the application. Your farmland assessment application may serve as a good reference for this information.

PLEASE RETAIN A COPY OF THE AREA APPLICATION FORM FOR YOUR RECORDS AND RETURN THE ORIGINAL FORMS OF EACH OF THESE TO THE FOUNDATION.

APPENDIX B

Tax Map No. _____

Prepared By: Delaware Agricultural

Lands Preservation Foundation

2320 S. DuPont Highway, Dover, DE 19901

Return To: Parkowski, Guerke & Swayze, PA

116 W. Water Street, Dover, DE 19904

DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION FORESTLAND PRESERVATION AREA AGREEMENT

This Forestland Preservation Area Agreement, in the nature of a declaration of a Restriction on the Use of Land for the purpose of preserving productive Forestlands, is made this day of ____________________________, __________ by and between ____, ____ heirs and assigns, (hereafter individually and collectively referred to as "GRANTOR"), of the County of ____, Delaware, and the DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION, its successors, nominees or assigns, a body politic and corporate constituting a public instrumentality of the State, created and organized under the laws of the State of Delaware, with its offices at 2320 S. DuPont Highway, Dover, Delaware 19901 (hereinafter "GRANTEE").

RECITALS:

A. GRANTOR is the owner in fee of lands consisting of Forestlands (as that term is defined in 3 Del.C. §902(6) and as shown on Exhibit "A" (hereinafter referred to as the "Property"), which Grantor desires to be included in a Forestland Preservation Area. The Property is located in ____ County, Delaware, and is more fully described in whole or in part in a Deed recorded in the Office of the Recorder of Deeds in and for ____ County, Delaware in Deed Book ____, Page ____, and being County Parcel No. ____. The Property consists of ____ acres on which ____ acres are classified as Forestlands.

B. The public and the economy benefits from the protection and conservation of Forestlands, including the protection of scenic areas for public visual enjoyment from the public right of way. The conservation and protection of Forestlands as a valued natural and ecological resource provides needed space for clean air as well as for aesthetic purposes, and the public will benefit from the conservation, protection, development and improvement of Forestlands for the production of timber.

C. GRANTEE has declared that the preservation of prime Forestlands is vital to the public interest of the State, the region, and the nation through its economic, environmental, and productive benefits.

D. GRANTOR desires and intends that the Forestlands of the Property be preserved, protected, and maintained, and in consideration of those benefits conferred under 3 Del.C. §935, the Grantor is willing to enter into this Agreement.

E. GRANTEE is entitled to enforce this Forestland Preservation Area Agreement and to preserve and protect for ten years from the effective date of this Agreement, or any extension period, the Property subject to the restrictions imposed under this Agreement.

RESTRICTIONS:

NOW THEREFORE, in consideration of the foregoing and as required by 3 Del.C. §934, the undersigned GRANTOR agrees to the following restrictions which shall apply to the Property:

1. No rezoning or major subdivision of the Property, or any portion thereof, shall be allowed.

2. Activities conducted on the Property shall be limited to forestry production, forestry operations, forestry management and control, wildlife habitat management, and related activities, as defined in 3 Del.C. §934. Grantor shall manage the Parcel in accordance with a forest management plan prepared by a professional forester that addresses the Grantor's forest management goals for the Parcel. The plan shall contain, at a minimum, aerial and soil maps of the Property, a description and analysis of the forest by management unit, and silvicultural prescriptions for each management unit. The plan shall be made available for inspection by the State Forester's office and the plan shall be revised and updated at a minimum every five years.

3. If the Property contains at least thirty (30) acres, one (1) location containing no more than one (1) acre of land may be designated for seasonal recreational dwelling usage provided the use of the designated area does not adversely affect the forestland use of the Property. Residential use of the Property shall be limited to usage of no more than one (1) acre of land for each twenty (20) acres of usable land on the Property, with a maximum of ten (10) acres of land being used for dwelling housing on the Property. The establishment or existence of any seasonal housing will be counted against the total allowable permanent housing acreage. The Property consists of acres, of which acres are usable for forestry and related uses. With respect to the acreage allowed for dwelling housing, there shall be a limit of three (3) dwelling houses for residential use placed on the allowable acreage at three (3) locations to be designated by the Grantor, unless there exists three (3) or more dwelling houses on the Parcel as of the date hereof, in which case the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses shall be allowed. There are currently ____ dwelling houses located on the Property, and only _____ additional dwelling houses shall be allowed.;

4. No conversion of the Forestlands to cropland, pasture land, open space or other types of land uses shall be allowed.

5. No permanent commercial or industrial structures shall be located on the Property.

6. No mining, commercial or extractive uses shall be conducted on the Property.

7. No disposal, burial, storage, or stock piling of junk, vehicles, equipment, liquid waste, solid waste or other liquid or solid materials, except that wastewater spray irrigation shall be allowed utilizing best available treatment technology with storage and treatment facilities located on lands other than Forestland preservation areas.

8. The allowability of a general use, conditional use, special use or other use under any zoning law or ordinance shall not have any effect on the restrictions imposed on the Property under this Agreement.

9. This Agreement shall become effective as of the date the necessary approvals have been rendered and the Secretary of Agriculture has either failed to exercise or waived the right of rejection allowed within the thirty (30) day period following Foundation action on the Forestland Area Application. At the time of recording of the Agreement the Foundation shall certify the date of creation of the Forestland Area or extension thereto, and such date shall serve as the effective date of this Agreement.

10. This Agreement shall remain in effect for a minimum period of ten (10) years from the effective date. Unless GRANTOR provides written notification to the Foundation of intent to withdraw the Property from the Forestland Area at least six (6) months prior to expiration date of this Agreement or any extension thereto, this Agreement shall continue for additional five (5) year periods.

11. 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. §939. GRANTOR agrees to abide by the provisions of 3 Del.C. Chapter 9 and the duly adopted regulations thereunder as such provisions relate to the Property.

12. By executing this Agreement the GRANTOR verifies that individually or collectively GRANTOR holds a fee simple interest in the Property and is entitled to enter into this Agreement. GRANTOR further verifies that the information contained in the Forestland Area Application is true and correct.

13. The Agreement shall be binding on the heirs, successors and assigns of GRANTOR. Prior to any transfer of any interest in the Property during the term of this Agreement, GRANTOR shall provide advance written notification of this Agreement and the restrictions contained herein to the party acquiring such interest and a copy of such written notification shall be provided to the Foundation.

SIGNATURES APPEAR ON FOLLOWING PAGES

IN WITNESS WHEREOF, the parties have set their hands and seals this_________ day of A.D. 20___.

WITNESS:

_____________________________ _______________________________(SEAL)

_____________________________ _______________________________(SEAL)

STATE OF ______________ ) SS:

COUNTY OF ____________ )

ON THIS, the _________ day of ___________________, 20__, before me, the undersigned Notary Public for the State and County aforesaid, personally appeared ____, known to me (or satisfactorily proven) to be the person or persons whose names are subscribed to the within instrument and acknowledged that ____ executed the same for purposes therein contained.

IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.

____________________________________

Notary Public

___________________________________

NOTARY NAME - TYPED OR PRINTED

My Commission Expires: ________________

I, THE UNDERSIGNED, being the Chairman of the Delaware Agricultural Lands Preservation Foundation or authorized assignee of the Delaware Agricultural Lands Preservation Foundation, hereby execute this Forestland Preservation Area Agreement on behalf of the Foundation, and certify that the Forestland Preservation Area or extension of existing Forestland Area has been established as of , 20__.

IN WITNESS WHEREOF, I have set my hand and seal this __________day of _______________, 20__.

WITNESS:

_____________________ _____________________________________(SEAL)

Chairman, Delaware Agricultural

Lands Preservation Foundation or

Authorized Designee

STATE OF _____________)

SS: _________________

COUNTY OF ___________)

ON THIS, the _____ day of ___________, 20___, before me, the undersigned Notary Public for the County and State aforesaid, personally appeared, ____________________, known to me (or satisfactorily proven) to be the person or persons whose names are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes therein contained.

IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.

___________________________________

Notary Public

___________________________________

NOTARY NAME - TYPED OR PRINTED

My Commission Expires: _______________

CERTIFICATION:

The Property subject to this Forestland Preservation Area Agreement was accepted into a Forestland Preservation Area on which is the effective date of this Agreement.

APPENDIX C

TAX MAP NO.: ______________

DALPF Project I.D.#: _________

Parkowski, Guerke & Swayze, P.A.

P.O. Box 598

Dover, Delaware 19903

DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION

ACKNOWLEDGMENT PURSUANT TO 3 Del.C. §934(c)

WHEREAS, ____, ("Transferor(s)") are the owner(s) of forestlands comprised of ____ acres located at ____, Delaware, said lands lying in ____ County, and described in and subject to a Forestland Preservation Agreement (the "Agreement"), dated ____, of record in the Office of the Recorder of Deeds in and for ____ County, State of Delaware in Deed Book ____, Page ____; and

WHEREAS, Transferor(s) is/are about to transfer (____ acres of) subject lands to ____, ("Transferee(s)") as shown on a subdivision plot dated ____, performed by ____, and about to be recorded in the Office of the Recorder of Deeds in and for ____ County, State of Delaware.

NOW, THEREFORE, in accordance with the requirements of 3 Del.C. §934(c), Transferor(s) and Transferee(s) acknowledge their understanding of the acreage allowed for dwelling housing, and the restrictions which apply to the real property about to be conveyed, and that said lands are subject to the referenced Agreement, the provisions of 3 Del.C. ch. 9 and the regulations adopted pursuant thereto. Transferor(s) and Transferee(s) agree to be bound by same. Transferee(s) shall be allowed ____ acres of dwelling housing. Transferor(s) will retain ____ acres of said lands, of which ____ acres are currently used for dwelling housing. Transferor(s) shall be allowed ____ additional acre(s) for dwelling housing. Transferor(s) shall have the right to designate _____________ locations for residential use and Transferee(s) shall have the right to designate ____________ locations for residential use.

IN WITNESS WHEREOF, the Transferor(s) and Transferee(s) have executed this Acknowledgment this _________ day of ___________________, 20____.

Transferor(s):

__________________________ ________________ ___________(SEAL)

Witness

__________________________ ________________ ___________(SEAL)

Witness

Transferee(s):

__________________________ ________________ ___________(SEAL)

Witness

__________________________ ________________ ___________(SEAL)

Witness

STATE OF DELAWARE )

) : SS_____________________

COUNTY OF __________

BE IT REMEMBERED that on this ________ day of ________________, A.D. 20____, personally came before me, the Subscriber, a Notary Public for the State and County aforesaid, ____, and ____, parties to this Indenture, known to me personally to be such, and they acknowledged this Indenture to be their act and deed.

GIVEN under my Hand and Seal of office the day and year aforesaid.

_____________________________________

Notary Public Signature

_____________________________________

Notary Name - Printed or Typed

My Commission Expires: __________________

APPENDIX D

DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION FORESTLAND PRESERVATION EASEMENT APPLICATION

Please Type or Print

I/We ______________________________________________________________________________

("Owner(s)"), of certain forestlands that have been established by recorded agreement as a Forestland Preservation Area in County, Delaware, apply to the Delaware Agricultural Lands Preservation Foundation ("Foundation") to sell a Forestland Preservation Easement ("Easement"). The Forestland Preservation Easement sale to the Foundation is offered in consideration of not less than:

1) $ for the entire forest; or 2) $ ________ per acre; or 3) an amount to be determined by appraisal and acceptable to the Owner and the Foundation $

The forestlands to be subject to the Easement total ________________ acres and consist of (check one):

_____ the entire property covered by and described in the Forestland Preservation Area Agreement.

_____ the property outlined on the Forestland Preservation Area map attached hereto

(highlight the land proposed for a Forestland Preservation Easement).

Attach drawing showing the approximate location and acreage, if any, Applicant intends to designate for seasonal dwelling or residential use.

Tax Parcel Number(s): ______________________________________________________________

Deed Reference(s): ______________________________________________________________

Leases/Timber Agreements: _________________________________________________________

Street/Road Location: ______________________________________________________________

Mortgages or Liens on the Property:____________________________________________________

________________________________________________________________________________

Easements/Right-of-Way (identify, if any): _________________________________________________

# of Dwelling Units:______________ Date of Forest Management Plan:_________________________

Applicant(s): Corporate or Business Name: ______________________________________________

Federal I.D. Number (if applicant is a corporation or business): _________________________________

Name: ____________________________________________________________________________

Address: __________________________________________________________________________

Telephone Number: (H)______________ (W) ________________(Cell) _________________________

Email Address: _____________________________________________________________________

LAND TYPE AND USE

Forestlands: ___________________ acres Residence/Buildings________________ acres

Seasonal Dwelling: _______________acres Farm Structures: _________________ acres

Tillable Cropland: ___________________ acres Open Space: ___________________ acres

Pasture:___________________ acres Other (Specify): ___________________ acres

1. MINERAL/TIMBER RIGHTS: Does a party or parties other than yourself own or lease mineral or timber rights on this property? Yes _____ No _____ If yes, secure signatures and addresses of such parties:

___________________________________________________________________________________________________________________________________________________________________________________

I/We submit this application, true and complete, to convey a Forestlands Preservation Easement to the Delaware Agricultural Lands Preservation Foundation, and declare that good title is provided to the premises, free of encumbrances such as liens, mortgages, options, rights of others in extraction or mineral rights, timber rights, land use restrictions, adverse ownership interests, and other encumbrances which would adversely impact the State of Delaware's interest in the farmland tract. I/We understand that any false information may be cause for rejection of application.

____________________ ______________ _____________________________

Landowner Signature Social Security # Date

____________________ ______________ _____________________________

Landowner Signature Social Security # Date

____________________ ______________ _____________________________

Landowner Signature Social Security # Date

____________________ ______________ _____________________________

Landowner Signature Social Security # Date

____________________ _______________ ____________________

Landowner Signature Social Security # Date

******************************************************************************

FOR OFFICE USE ONLY

File #: ____________________ District Name: ____________________ Date Received: ____________________

APPENDIX E

Tax Map No(s).:

Prepared By: Delaware Agricultural Lands Preservation Foundation

2320 S. DuPont Highway

Dover, DE 19901

Return To: Parkowski, Guerke & Swayze, P.A.

116 W. Water Street

Dover, DE 19904

FORESTLAND PRESERVATION EASEMENT

STATE OF DELAWARE

FORESTLANDS PRESERVATION PROGRAM

THIS PRESERVATION EASEMENT, made, granted, assigned and conveyed this _______ day of ____________________, A.D. 200_, by __________, whose address is ________ and who are hereinafter referred to as "Grantor", and the DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION, a body politic and corporate constituting a public instrumentality of the State of Delaware, and which is hereinafter referred to as "Grantee" and/or "Foundation."

WHEREAS, Grantor is fee simple title holder of certain lands situated in ________ Hundred, Kent County, Delaware, being of record in Deed Book ___, Page ___ at the Office of the Recorder of Deeds, in and for ____ County, at _____, Delaware, hereinafter referred to as the "Parcel" and more particularly described in Exhibit "A" (annexed hereto); and as shown on a plot entitled "Delaware Agricultural Lands Preservation Foundation - Lands of _______" as prepared by _______, dated _______ and recorded in the aforesaid Office of the Recorder of Deeds in Plot Book _______, Page _______ (hereinafter the "Plot").

WHEREAS, the General Assembly of the State of Delaware has declared that the preservation of the State's farmlands and forestlands is considered essential to maintaining forestry as a viable industry and as an important contributor to Delaware's economy; and

WHEREAS, the General Assembly of the State of Delaware has recognized that a need exists to create sufficient economic incentives and benefits to encourage landowners to voluntarily place viable forestlands under protective restrictions through the creation of and participation in forestland preservation areas and sale and/or donation of development rights;

WHEREAS, the Grantor desires to grant and convey to the Foundation a forestlands preservation easement as provided in Chapter 9, Title 3 of the Delaware Code Annotated.

NOW, THEREFORE, the Grantor, for and in consideration of the sum of ______________ DOLLARS ($______.__), 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, a forestlands preservation easement on and over the Parcel, and covenants and promises that the Parcel will be owned, used and conveyed subject to, and not in violation of, the following restrictions:

1. No rezoning or major subdivision of the Parcel shall be allowed.

2. Activities conducted on the Parcel shall be limited to forestry production, forestry operations, forestry management and control, wildlife habitat management, and related activities, as defined in 3 Del.C. §934.

3. The allowability of a general use, conditional use, special use or other use under any zoning law or ordinance shall not have any effect on the restrictions imposed on the Parcel under this easement.

4. No conversion of the forestlands to cropland, pastureland, open space or other types of land uses shall be allowed.

5. No permanent commercial or industrial structures shall be located on the Parcel.

6. No mining, commercial or extractive uses unrelated to forestry operations shall be conducted on the Parcel.

7. Residential use of the Parcel shall be limited to usage of no more than one (1) acre of land for each twenty (20) acres of usable land on the Parcel, with a maximum of ten (10) acres of land being used for dwelling housing on the Parcel. The Parcel consists of ______ acres, of which acres are usable for forestry and related uses. With respect to the acreage allowed for dwelling housing, there shall be a limit of three (3) dwelling houses for residential use placed on the allowable acreage at the three (3) locations designated on the Plot as "Residential Acreage", unless there exists three (3) or more dwelling houses on the Parcel as of the date hereof, in which case the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses shall be allowed. There are currently ____ dwelling houses located on the Property, and only _____ additional dwelling houses shall be allowed.

8. This easement shall be deemed a covenant which runs with and binds the Parcel permanently and in perpetuity, the terms and conditions of which shall be subject to specific performance and other action allowed under 3 Del.C. §920 and §939. This easement shall be binding upon the heirs, executors, administrators, successors and assigns of the Grantor. This easement may be managed, administered and enforced by the Grantee or the State of Delaware.

9. The provisions of Title 3, Chapter 9 of the Delaware Code Annotated and duly adopted regulations thereunder as such provisions relate to the Parcel shall govern this easement.

10. Grantor shall manage the Parcel in accordance with a forest management plan prepared by a professional forester that addresses the Grantor's forest management goals for the Parcel. The plan shall contain, at a minimum, aerial and soil maps of the Parcel, a description and analysis of the forest by management unit, and silvicultural prescriptions for each management unit. The plan shall be made available for inspection by the State Forester's office and the plan shall be revised and updated at a minimum every five years.

11. Notwithstanding anything stated herein to the contrary, the rights afforded Grantee under this Preservation Easement may only be assigned by Grantee to a "qualified organization" within the meaning of Section 170(b)(1)(A)(v), 170(c)(1), 170(h)(3)(A) and 170(h) of the Internal Revenue Code or the comparable provision in any subsequent revision of the Code and only with assurances that the purposes of this Preservation Easement, as described herein, will be maintained in perpetuity by such Assignee. If any such Assignee shall be dissolved or shall abandon this Preservation Easement or the rights and duties of enforcement herein set forth, the Preservation Easement and the rights of enforcement shall revert to the Grantee, and if the Grantee shall be dissolved and if the terms of the dissolution fail to provide a successor, then the State of Delaware, or its successors or assigns, shall appoint an appropriate successor as Grantee, and any such successor shall be a "qualified organization" within the meaning of Section 170(h) of the Internal Revenue Code or the comparable provision in any subsequent revision of the Code. No assignment may be made by the Grantee of its rights under this Preservation Easement unless the Grantee, as a condition of such Assignment, requires the Assignee to carry out the conservation purposes of this Preservation Easement, as described herein. Grantee agrees to hold this Preservation Easement exclusively for conservation purposes as defined in Section 170(h)(4)(A) of the Internal Revenue Code.

12. The Preservation Easement granted hereunder shall be perpetual.

IN WITNESS WHEREOF, the said _________________ have hereunto set their hands and seals the day and year first above written.

SIGNED AND DELIVERED

IN THE PRESENCE OF:

____________________________ _ ______________________________(SEAL)

Witness

STATE OF DELAWARE )

) SS.

COUNTY OF _____________

BE IT REMEMBERED that on this _____ day of _____________, A.D. 200_, personally came before me, the Subscriber, a Notary Public for the State and County aforesaid, _____, parties to this Indenture, known to me personally to be such, and they acknowledged this Indenture to be their act and deed.

GIVEN under my hand and seal of office the day and year aforesaid.

_________________________

Notary Public Signature

_________________________

Notary Name - Typed or Printed

My Commission Expires:______