H. B. 2112
(By Delegate Overington)
[Introduced January 9, 2008; referred to the
Committee on Political Subdivisions then Government
Organization.]
A BILL to amend and reenact §8A-12-1, §8A-12-2, §8A-12-3, §8A-12-5,
§8A-12-12, §8A-12-15, §8A-12-16 and §8A-12-17
of the Code of
West Virginia, 1931, as amended, all relating to the voluntary
farmland preservation program generally; clarifying
legislative purpose; prohibiting county farmland preservation
boards from purchasing land without the authority of the
county commission; prohibiting use of fees for tourism
purposes, historical preservation, or maintenance or
management by the county farmland preservation board.
Be it enacted by the Legislature of West Virginia:
That §8A-12-1, §8A-12-2, §8A-12-3, §8A-12-5, §8A-12-12,
§8A-12-15, §8A-12-16 and §8A-12-17
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-12-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that agriculture
is a unique "life support" industry and that a need exists to
assist those agricultural areas of the state which are experiencing
the irreversible loss of agricultural land.
(b) It is the intent of the Legislature to provide persons and
other entities an opportunity to voluntarily protect agricultural
land and woodland in order to:
(1) Assist in sustaining the farming community;
(2) Provide sources of agricultural products within the state
for the citizens of the state;
(3) Control the urban expansion which is consuming the
agricultural land, topsoil and woodland of the state;
(4) Curb the spread of urban blight and deterioration; and
(5) Protect agricultural land and woodland as open-space land.
(6) Enhance tourism; and
(7) Protect worthwhile community values, institutions and
landscapes which are inseparably associated with traditional
farming
(c) Further, it is the intent of the Legislature to establish
a West Virginia Agricultural Land Protection Authority, hereinafter
"authority", to assist persons, other entities and counties to
obtain funding from any source available to accomplish the purposes
of the 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
easements; 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 advise the county commission
on all matters concerning
farmland protection. The county commission
shall provide all
administrative support to the board has final approval authority
for and shall by majority vote approve any and all purchases of
easements for the farmland protection program
recommended 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-12-3. Content and requirements of farmland protection
programs.
(a) An adopted farmland protection program shall include only
those qualifying properties which are voluntarily offered into the
program by the landowners of the properties.
(b) An adopted farmland protection program shall meet the
following minimum requirements:
(1) The program shall be developed by the county farmland
protection board and approved by the county commission. The county
farmland protection board, in consultation with the local
conservation district, shall administer the farmland protection
program
with necessary staff provided by the county commission;
(2) The board shall establish uniform standards and guidelines
for the eligibility of properties for the program.
The board shall
not manage any farmland except as necessary to transfer the real
estate as provided in this article. The standards and guidelines
shall take into consideration the following: Current and past uses
of the property; existing property improvements, property tract size and shape; location of the property tract in relation to other
potential agricultural property tracts; impending threat of
conversion of the property to nonagricultural uses
including
tourism promotion and historic preservation; property ownership and
existing deed covenants; and restrictions with respect to the
property,
but shall not take into consideration tourism, historical
preservation, or farm maintenance by the board; and
(3) The guidelines established by the board shall outline the
various methods of farmland protection which are available to
prospective participating property owners and the procedures to be
followed in applying for program consideration.
§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
and as authorized by majority vote of the county
commission;
(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 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-12-12. 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
as approved
by majority vote of the county commission. 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 express approval of the county
commission by majority vote of the 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
as
approved by majority vote 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.
In no
event, may a county farmland protection board manage property
except as necessary to transfer ownership.
(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-12-15. Criteria for acquisition of conservation and
preservation easements by county farmland
protection boards and the authority.
The authority and county farmland protection boards, in
ranking applications for conservation and preservation easements,
shall consider the following factors as priorities:
(a) The imminence of residential, commercial or industrial
development;
(b) The total acreage offered for conservation or preservation
easement;
(c) The presence of prime farmland, unique farmland, farmland
of statewide importance, other locally significant farmlands and
the productive capacity of the acreage;
(d) Whether the property offered is contiguous or appurtenant
to working farms;
(e) The ratio of the asking price, if any, of the easement to
the fair market value of the easement;
(f) The
historical, architectural, archaeological cultural,
recreational, natural, scenic, source water protection or unique
value of the easement
for farming operations; Provided, That determinations of the authority or a county farmland protection
board are not a substitute for, and do not have the effect of other
procedures under state or federal law for granting protected status
to land, including, but not limited to, procedures under the
National Historic Preservation Act of 1966, as amended, or rules of
the director of the historic preservation section of the division
of culture and history authorized in section eight, article one,
chapter twenty-nine of this code, or procedures under the authority
of the tourism commissioner or the parks and recreation section of
the division of natural resources
(g) The existence and amount of secured debt upon the
property, as determined by a title search, and whether the total
exceeds the agricultural value of the land as determined by the
appraisal as required in subsection (d), section fourteen of this
article; and
(h) The length of the protective easement.
§8A-12-16. Use of land for which conservation or preservation
easement acquired.
(a)
Provisions to be included in conservation or preservation
easement and county farmland protection board rules, or the
authority rules. -- Farmland upon which a conservation or
preservation easement has been recorded may be used for the
following:
(1) Farm use;
(2) Businesses directly related to the retail sale of farm
products;
and
(3) Any activity performed for religious, charitable or
educational purposes or to foster tourism; and
(4) (3) Any home-based
farming related business that does not
require a Division of Environmental Protection permit to operate.
Notwithstanding any of the exceptions in this subsection, Any
use of land under preservation or conservation easement must be
consistent with the purpose of the farmland protection programs.
(b)
Use for commercial, industrial or residential purposes. --
Excepting existing and future uses described in subsections (c),
(d) and (e) of this section, a landowner whose land is subject to
a conservation or preservation easement may not develop the land
for any commercial, industrial, residential or other nonfarm
purpose. Nonresidential, noncommercial, nonindustrial farm support
buildings or structures are permitted.
(c)
Exclusion for single residential dwelling. -- On request
to a county farmland protection board or the authority, an owner
may exclude two acres per each single residential dwelling, which
existed at the time of the sale of the easement, from the easement
prohibitions on residential development. A land survey and
recordation identifying each single residential dwelling shall be
provided at the expense of the owner. However, before any
exclusion is granted, an owner shall agree with the county farmland protection board or the authority not to subdivide further for
residential purposes any acreage allowed to be excluded. This
agreement shall be recorded among the land records where the land
is located and shall bind all future owners.
(d)
Exclusion for certain existing and future uses. -- This
article neither abrogates nor creates any preexisting rights in the
land owned by any person not joining as a grantor of a conservation
or preservation easement. Neither the creation nor the existence
of a conservation or preservation easement shall prevent existing
or future use of the land based on a preexisting right, or prevent
any existing or future use consistent with state law with respect
to transmission and telecommunications facilities' rights-of-way,
easements and licenses.
(e)
Condemnation of private property for public use. -- This
article neither abrogates nor creates any rights inconsistent with
state or federal law respecting the power of condemnation of
private property for public use. Any person or entity exercising
the power of eminent domain must pay compensation at not less than
the fair market value of the land to the court having jurisdiction
of the proceeding or as directed by the court. The term "fair
market value" as used in this subsection shall be determined
without regard to the existence of the conservation or preservation
easement. Neither the creation nor the existence of a conservation
or preservation easement shall prevent acquisition of real property, or any right or interest in the property, for public use.
§8A-12-17. Funding of farmland protection programs.
(a)
County funds. --
(1)
Creation of county funds. -- Once having created a county
farmland protection program, a county commission may authorize the
county farmland protection board to create and maintain a farmland
protection fund.
and hire staff as it considers appropriate
(2)
Sources. -- A county farmland protection fund is comprised
of:
(A) Any moneys not specifically limited to other uses and
dedicated to the fund by a county commission;
(B) Any moneys collected pursuant to section twenty-one of
this article;
(C) Any money made available to the fund by grants or
transfers from governmental or private sources; and
(D) Any money realized by investments, interest, dividends or
distributions.
(b)
State fund. --
(1)
Created and continued. -- The West Virginia Farmland
Protection Fund is created for the purposes specified in this
article.
(2)
Sources. -- The West Virginia Farmland Protection Fund is
comprised of:
(A) Any money made available to the fund by general or special fund appropriations;
(B) Any money made available to the fund by grants or
transfers from governmental or private sources;
(C) Any money realized by investments, interest, dividends or
distributions; and
(D) Any money appropriated by the Legislature for the West
Virginia Farmland Protection Fund.
(3)
Disbursements. -- The Treasurer may not disburse any money
from the fund other than:
(A) For costs associated with the staffing, administration,
and technical and legal duties of the authority;
(B) For reasonable expenses incurred by the members of the
board of trustees of the authority in the performance of official
duties; and
(C) For consideration in the purchase of farmland conservation
and preservation easements.
(4)
Money remaining at end of fiscal year. -- Any money
remaining in the fund at the end of a fiscal year shall not revert
to the General Revenue Fund of the state, but shall remain in the
West Virginia Farmland Protection Fund to be used for the purposes
specified in this article.
(5)
Budget. -- The estimated budget of the authority for the
next fiscal year shall be included with the budget of the West
Virginia Department of Agriculture.
(6)
Audit. -- The fund shall be audited annually.
NOTE: The purpose of this bill is to prohibit county farmland
preservation boards from purchasing land without the authority of
the county commission. The bill prohibits the use fees for tourism
purposes, historical preservation, or maintenance or management by
the county farmland preservation board.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.