Senate Bill No. 779
(By Senators Kessler, Dempsey, Fanning, Foster, Hunter, Jenkins,
Minard, Oliverio, White, Barnes, Caruth, Deem, Lanham and Weeks)
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[Originating in the Committee on the Judiciary;
reported February 23, 2006.]
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A BILL to amend and reenact §8A-12-2, §8A-12-5, §8A-12-6, §8A-12-
11, §8A-12-12 and §8A-12-14 of the Code of West Virginia,
1931, as amended, all relating to voluntary farmland
protection programs; providing for oversight by county
commission in certain cases; and allowing county commission to
participate in arbitration in certain cases.
Be it enacted by the Legislature of West Virginia:
That §8A-12-2, §8A-12-5, §8A-12-6, §8A-12-11, §8A-12-12 and
§8A-12-14 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 12. VOLUNTARY FARMLAND PROTECTION PROGRAMS.
§8A-12-2. County farmland protection programs and farmland
protection boards authorized; authority of county
commission to approve purchase of farmland; expense
reimbursement of actual expenses for the board members.
(a) The county commission of each county may adopt and
implement a farmland protection program within the county. The
county commission of each county which decides to adopt and
implement a farmland protection program shall appoint a farmland
protection board. The farmland protection board shall administer
on behalf of the county commission all matters concerning farmland
protection. The county commission has final approval authority for
any and all purchases of easements and land acquisitions, by
whatever method for the farmland protection program by the board.
(b) The farmland protection board shall adopt bylaws
prescribing the board's officers, meeting dates, record-keeping
procedures, meeting attendance requirements and other internal
operational procedures. The member of the farmland protection
board who is a county commissioner shall serve as temporary
chairman of the board until the board's bylaws are adopted and
until the board's officers are selected as prescribed by those
bylaws. The farmland protection board shall prepare a document
proposing a farmland protection program which is consistent with
the Legislature's intent.
(c) Each member of the board shall receive expense
reimbursement for actual expenses incurred while engaged in the
discharge of official duties, the actual expenses not to exceed the
amount paid to members of the Legislature.
§8A-12-5. Farmland protection boards -- powers.
A farmland protection board has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters
in its own name;
(b) Power to contract. -- To enter into contracts generally
and to execute all instruments necessary or appropriate to carry
out its purposes;
(c) Power to restrict use of land. -- To acquire or cohold, by
gift, purchase, devise, bequest or grant, easements in gross, fee
or other rights to restrict the use of agricultural land and
woodland as may be designated to maintain the character of the land
as agricultural land or woodland: Provided, That the county
commission has final approval authority for any and all purchases
of easements and land acquisitions, by whatever method, for the
farmland protection program by the board;
(d) Power to implement rules. -- To implement rules necessary
to achieve the purposes of the voluntary farmland protection
programs;
(e) Power to disseminate information. -- To promote the
dissemination of information throughout the county concerning the
activities of the farmland protection board; and
(f) Power to seek funding. -- To pursue and apply for any and
all county, state, federal and private funding available,
consistent with the purpose of the voluntary farmland protection programs.
§8A-12-6. Farmland protection board duties.
The duties of each farmland protection board are as follows:
(a) To report to the county commission with respect to the
acquisition of easements and land, by whatever method, by the
farmland protection board within the county and to obtain final
approval authority for any and all purchases of easements and
acquisition of land, by whatever method, for the farmland
protection program by the board;
(b) To advise the authority concerning county priorities for
agricultural protection;
(c) To promote protection of agriculture within the county by
offering information and assistance to landowners with respect to
the acquisition of easements;
(d) To seek and apply for all available funds from federal,
state, county and private sources to accomplish the purposes of the
voluntary farmland protection programs; and
(e) To perform any other duties assigned by the county
commission.
§8A-12-11. Definitions.
For purposes of the voluntary farmland protection programs,
the following terms have the meanings set forth in this section.
(a) Acquisition of easement. -- The holding or coholding of
land-use restrictions as defined in this article, whether obtained through purchase, gift, devise, bequest, grant or contract to
cohold with another holder.
(b) Conservation easement. -- This article incorporates the
definition of a conservation easement found in section three,
article twelve, chapter twenty of this code, except that a
conservation easement created under this article must be held or
coheld by at least one "holder" as defined in that section in
perpetuity.
(c) Farm, farmland or agricultural land. -- A tract, or
contiguous tracts of land, of any size, used within the past ten
years or currently useable for agriculture, horticulture or grazing
and includes all real property designated as wetlands that are part
of a property used within the past ten years or currently useable
as farmland.
(d) Preservation easement. -- This article incorporates the
definition of a preservation easement found in section three,
article twelve, chapter twenty of this code, except that a
preservation easement created under this article must be held or
coheld by at least one "holder" as defined in said section and must
be perpetual in its duration.
(e) Woodland. -- Woodland shall be considered land of a farm
only if it is part of or appurtenant to a tract of land which is a
farm, or held by common ownership of a person or entity owning a
farm, but in no event may woodland include land used primarily in commercial forestry or the growing of timber for commercial
purposes or any other use inconsistent with farm use.
(f) Opt-out provision. -- A provision which may be inserted
into any conservation or preservation easement agreement entered
into pursuant to this article which would act as a mechanism to
place the easement selling price into an escrow fund for the
purpose of allowing the owner or owners up to five years to rescind
the decision to enter into the farmland protection program.
§8A-12-12. Methods of farmland protection.
(a) The authority or a county farmland protection board may
negotiate with and compensate eligible property owners to ensure
the protection of farmland within the county or state. Methods of
protecting farmland may include, but are not limited to, the
following:
(1) Acquisition of conservation easement or preservation
easement. -- With the consent of a property owner, the county
farmland protection board, with the approval of the county
commission,
or the authority may acquire and place on record a
conservation or preservation easement. Acquired easements apply
only to those properties which qualify for consideration under the
terms established by an adopted farmland protection program; and
(2) Acquisition of land and disposition. -- With the consent
of a property owner the county farmland protection board, with the
approval of the county commission,
or the authority may acquire any property which qualifies for agricultural protection under terms
established by an adopted farmland protection program. The county
farmland protection board or the authority may lease, as lessor,
acquired property for agricultural uses or may restrict the
property to agricultural uses and sell the property at fair market
value for use as a farm. Any property acquired by a county
farmland protection board or the authority and then sold shall be
sold subject to a conservation or preservation easement. If the
property is leased, the lessee shall pay to the county commission,
in addition to rent, an annual fee set by the county commission.
The amount of this annual fee shall be commensurate with the amount
of property taxes which would be assessed in accordance with the
provisions of this code upon the property if the property were held
by a private landowner.
(b) Revenues from the sale of properties restricted to
agricultural uses shall be used to recover the original purchase
costs of the properties and shall be returned to the applicable
funds which were used by the county farmland protection board or
the authority to purchase the property. Any profits resulting from
the sale of property restricted to agricultural uses shall be
deposited in a farmland protection fund.
§8A-12-14. Value of conservation or preservation easement.
(a) Maximum value. -- The maximum value of any conservation or
preservation easement acquired by the county farmland protection board or the authority is the asking price or the difference
between the fair market value of the land and the agricultural
value of the land, whichever is lower.
(b) Fair market value. -- The fair market value of the land is
the price as of the valuation date for the highest and best use of
the property which a vendor, willing but not obligated to sell,
would accept for the property and which a purchaser, willing but
not obligated to buy, would pay for the property if the property
was not subject to any restriction imposed under this article.
(c) Agricultural value. -- The agricultural value of land is
the price as of the valuation date which a vendor, willing but not
obligated to sell, would accept for the property and which a
purchaser, willing but not obligated to buy, would pay for the
property subject to the restrictions placed upon it by the
conservation or preservation easement.
(d) Determination of values. -- The value of the easement is
determined at the time the county farmland protection board or the
authority is requested in writing to acquire the easement. The
fair market value is determined by the county farmland protection
board or the authority based on one or more appraisals obtained by
the county farmland protection board or the authority and
appraisals, if any, of the landowner.
(e) Arbitration. -- If the landowner and the county farmland
protection board, the county commission
or the authority do not agree on the value of the easement as determined by the state, the
landowner, the county farmland protection board, the county
commission
or the authority may request that the matter be referred
to a mutually agreed upon mediator for arbitration as to the value
of the easement. The arbitration shall be conducted in accordance
with the rules promulgated by the American arbitration association.
The value determined at arbitration is binding upon the owner, the
county commission and the county farmland protection board or the
authority in a purchase of the easement made subsequent to the
arbitration for a period of two years, unless the landowner and the
county farmland protection board or the authority agree upon a
lesser value or the landowner, the county farmland protection board
or the authority appeals the results of the arbitration to the
circuit court.
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(NOTE: The purpose of this bill is to clarify the authority
of the county commission in regards to voluntary farmland
protection programs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)