Delmarva Farmer Columnists
Which land conservation option is right for you? (April 22, 2014)
Local, state, and federal governments all administer programs that facilitate conservation of land for agricultural use.
Determining which program best suits your particular needs and will maximize your return is key.
Work with your local conservation district program office, accountant and lawyer to determine which program is best for you.
If your property qualifies for the program, you and the program administering body will need to agree to the price and the terms of the easement being placed on the property.
If you are concerned that you are not receiving a fair price, you should get an appraisal of your own.
In Maryland, if you and the state do not agree on the valuation, then you or the state may seek arbitration before the property tax assessment appeal board.
Before you sign the deed of easement document, read it — the document means what it says.
Most frequently, by signing the document you are giving up your right to conduct anything other than agricultural operations on the property forever.
The document will generally describe what the party acquiring the easement (usually the state, county or local conservancy) believes agricultural operations to mean and also will often contain other restrictive language governing use of the property. Practically speaking, some of the restrictions often apply to your property anyway as a result of local zoning and subdivision rules and regulations or even environmental regulations.
However, make certain that you plan ahead: Are you going to want to add an additional house on the property to accommodate another son or daughter? Are you going to want to add a creamery or other structure to diversify your operation? What about adding solar panels or a small wind farm? What about subdividing the property to give a portion of it to a loved one?
These and other changes to the use of your property are all likely subject to the easement agreement.
Some may be outright prohibited, others may simply require pre-approval by the easement holder.
Regardless, by signing the easement document you agree to these restrictions, not just for yourself, but for anyone who comes after you in the chain of title, whether that person is a son or daughter who acquires the property by inheritance or gift, or a third party purchaser.
Forever, is a long time, but the state or other entity that is acquiring the easement is paying you money for that right both directly in the form of cash at settlement and indirectly in the form of tax benefits in future years.
By entering into the agreement be certain that you are comfortable with the additional governmental oversight that will be attendant to the easement having been granted.
Most farmers are familiar with soil conservation plans, forest management and nutrient management plans, and their adoption in most cases is simply good management and stewardship.
However, the easement holder will likely have the right to inspect your farm to verify that you are in compliance with the easement granted.
Violation of the easement carries penalties that can be significant depending upon the size of the infraction.
Maryland has a process by which easements granted before Sept. 30, 2004 may be terminated.
This process is long, costly, and reflective of the state law’s policy that the easement is designed to protect agricultural lands from development.
However, those granted post September 2004 are by statute held “in perpetuity” and may be “terminated only under extraordinary circumstances.”
By comparison, agriculture easements in Delaware are meant to be held for as long as it is feasible to profitably farm the land.
Owners who maintain that the land may no longer be farmed profitably may apply to terminate the easement and repurchase the development rights from the state after 25 years.
Conservation easements in Virginia are held either in perpetuity or for a shorter length if specified in the agreement and are subject to termination in accordance with principles of law in equity.
In short, make sure that you (and the rest of your family) have a full understanding of the implication of burdening your property with the easement before you burden your successors with potential legal battles attempting to terminate an easement that no longer seems to make economic sense to them.
Putting your property in agriculture preservation can be a terrific way to preserve your family’s farm for years to come.
It is not without risks, however, and there are other options that may afford similar outcomes.
Make sure you fully understand those risks before you leap.
(Editor’s note: Kim (Pardoe) Manuelides is a partner in the law firm of Saul Ewing, LLP, who focusses her practice on solving legal issues and concerns of the agricultural community.)
• Pig Tales: Caring for animals (April 15, 2014)
• Vegetable Grower: Pollination, fruit set in seedless watermelons (April 8, 2014)
• Shepherd’s Notebook: Artifically raising lambs and kids (April 1, 2014)
• Ag Law: To fence or not to fence: That is the question (March 25, 2014)
• Pig Tales: A changed industry (March 18, 2014)
• Vegetable Grower: Producing, sourcing quality transplants (March 11, 2014)
• Shepherd’s Notebook: Changes to Maryland’s buck test (March 4, 2014)
• Ag Law: What legal risks come with agritourism attraction? (Feb. 25, 2014)
Get started with NRCS and 2014 Farm Bill (April 22, 2013)