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§ 2-513. Use of land under easement

West's Annotated Code of MarylandAgricultureEffective: October 1, 2018

West's Annotated Code of Maryland
Agriculture
Title 2. Department of Agriculture (Refs & Annos)
Subtitle 5. Maryland Agricultural Land Preservation Foundation
Effective: October 1, 2018
MD Code, Agriculture, § 2-513
§ 2-513. Use of land under easement
Currentness
Farm production, processing of agricultural products, or normal agricultural operations
(a) Agricultural land preservation easements may be purchased under this subtitle for any land in agricultural use which meets the minimum criteria established under § 2-509 of this subtitle if the easement and county regulations governing the use of the land include the following provisions:
(1) Any farm use of land is permitted.
(2) Operation at any time of any machinery used in farm production or the primary processing of agricultural products is permitted.
(3) All normal agricultural operations performed in accordance with good husbandry practices which do not cause bodily injury or directly endanger human health are permitted including, but not limited to, sale of farm products produced on the farm where such sales are made.
Commercial, industrial, or residential use of land prohibited
(b)(1) A landowner whose land is subject to an easement may not use the land for any commercial, industrial, or residential purpose except:
(i) As determined by the Foundation, for farm- and forest-related uses and home occupations; or
(ii) As otherwise provided under this section.
(2) Except as provided in paragraphs (3) and (7) of this subsection, on written application, the Foundation shall release free of easement restrictions only for the landowner who originally sold an easement, 1 acre or less for the purpose of constructing a dwelling house for the use only of that landowner or child of the landowner, up to a maximum of three lots, subject to the following conditions:
(i) The number of lots allowed to be released under this section, except as provided in paragraph (7) of this subsection, may not exceed:
1. 1 lot if the size of the easement property is 20 acres or more but fewer than 70 acres;
2. 2 lots if the size of the easement property is 70 acres or more but fewer than 120 acres; or
3. 3 lots if the size of the easement property is 120 acres or more.
(ii) The resulting density on the property may not exceed the density allowed under zoning of the property before the Foundation purchased the easement.
(iii) The landowner shall pay the State for any acre or portion released at the price per acre that the State paid the owner for the easement.
(iv) If the release is to be issued for a child of the landowner, the child must be at least 18 years of age at the date that the preliminary release is issued.
(v) Before any conveyance or release, the landowner and the child, if there is a conveyance to a child, shall agree not to subdivide further for residential purposes any acreage allowed to be released. The agreement shall be recorded among the land records where the land is located and shall bind all future owners.
(vi) After certifying that the landowner or child of the landowner has met the conditions provided in subparagraphs (i) through (v) of this paragraph, the Foundation shall issue a preliminary release which shall:
1. Become final when the Foundation receives and certifies a nontransferable building permit in the name of the landowner or child of the landowner for construction of a dwelling house;
2. Become void upon the death of the person for whose benefit the release was intended if the Foundation has not yet received a building permit as provided in this subparagraph; or
3. Unless extended by a majority vote of the Foundation Board of Trustees, become void if a nontransferable building permit in the name of the landowner or child of the landowner is not received by the Foundation within 3 years of the date of recordation of the preliminary release.
(vii) Any release or preliminary release issued under this paragraph shall include:
1. A statement of the conditions under which it was issued, a certification by the Foundation that all necessary conditions for release or preliminary release have been met, and copies of any pertinent documents;
2. A statement by the landowner or child of the landowner that acknowledges that:
A. Adjacent farmland that is subject to an agricultural land preservation easement may be used for any agricultural purpose and may interfere with the use and enjoyment of the property through noise, odor, vibration, fumes, dust, glare, or other interference;
B. There is no recourse against the effects of any normal agricultural operation performed in accordance with good husbandry practices;
C. The landowner's or child's lot may not be transferred for 5 years from the date of the final release, except on:
I. Approval by the Foundation; or
II. Notwithstanding any conditions on transfers imposed under item 1 of this subparagraph, a lender providing notice to the Foundation of a transfer pursuant to a bona fide foreclosure of a mortgage or deed of trust or to a deed in lieu of foreclosure;
D. If the lot is not used for the person or purpose for which it was released for the 5-year period, the Foundation may require the lot owner to reconvey the lot to the owner of the land encumbered by the easement from which it was released and subject the lot to the restrictions of the easement; and
E. Acknowledgments made under items A, B, C, and D of this item are binding to any successor or assign of the landowner or child.
(viii) Any release, preliminary release, building permit, or other document issued or submitted in accordance with this paragraph shall be recorded among the land records where the land is located and shall bind all future owners.
(ix) The Foundation may not restrict the ability of a landowner who originally sold an easement to acquire a release under this paragraph beyond the requirements provided in this section.
(x) The Foundation may require evidence it deems sufficient to ensure that the persons for whom the lots are released occupy the dwellings located on the lots for the 5-year period.
(3) A landowner may reserve the right to exclude 1 unrestricted lot from an easement in lieu of all owner's and children's lots to which the landowner would otherwise be entitled under paragraph (2) of this subsection, subject to the following conditions:
(i) The resulting density on the property shall be less than the density allowed under zoning of the property before the Foundation purchased the easement;
(ii) An unrestricted lot may be subdivided by the landowner from the easement and sold to anyone to construct one residential dwelling;
(iii) The size of an unrestricted lot shall be 1 acre or less, except as provided in paragraph (7) of this subsection;
(iv) The landowner shall agree not to subdivide further for residential purposes any acreage allowed to be released, and the agreement shall be recorded among the land records where the land is located and shall bind all future owners;
(v) The right to the lot is taken into consideration in the appraisal of fair market value and determination of easement value;
(vi) The lot can be subdivided at any time and the location of the lot to be subdivided is subject to the approval of the local agricultural advisory board and the Foundation; and
(vii) If the property is transferred before the right to exclude the lot has been exercised, the right may be transferred with the property.
(4)(i) Subject to the approval of the Foundation, and based on a showing of a current compelling need, a landowner may construct housing for tenants fully engaged in operation of the farm.
(ii) Construction may not exceed 1 tenant house per 100 acres, unless the Foundation grants an exception based on a showing of compelling need.
(iii) The land on which a tenant house is constructed may not be subdivided or conveyed to any person. In addition, the tenant house may not be conveyed separately from the original parcel.
(iv) The Foundation shall adopt regulations to:
1. Establish criteria for a landowner to show the basis of a current compelling need to construct a tenant house; and
2. Establish the size and location of tenant houses.
(5)(i) After obtaining approval for the construction of a tenant house under paragraph (4) of this subsection, a landowner may, instead of constructing a new tenant house, convert an existing dwelling house into a tenant house and construct one replacement dwelling house restricted to the landowner's own use, subject to the conditions provided under subparagraph (ii) of this paragraph.
(ii) 1. Before a replacement dwelling house may be constructed under this subsection, the landowner shall:
A. Obtain the Foundation's approval; and
B. Execute an agreement with the Foundation to prohibit the replacement dwelling house from being separately conveyed from the original parcel.
2. The agreement required under subsubparagraph 1 of this subparagraph shall be recorded among the land records in the county where the land upon which the replacement dwelling house is to be located and shall bind future owners of the land.
3. The size and location of a replacement dwelling house constructed in accordance with this paragraph shall be subject to the Foundation's approval.
4. A replacement dwelling house constructed in accordance with this paragraph shall be treated as a relocated existing dwelling house as described in paragraph (8) of this subsection, but is exempt from the requirements under paragraph (8)(ii) of this subsection.
(iii) The Foundation shall adopt regulations to establish the size and location of replacement dwelling houses.
(6) Except as provided in paragraph (7) of this subsection, on request to the Foundation, an owner may exclude from the easement restrictions 1 acre per each single dwelling, which existed at the time of the sale of the easement, as an owner's, children's, or unrestricted lot to which the owner is entitled under paragraph (2) of this subsection, by a land survey and recordation provided at the expense of the owner. However, before any exclusion is granted, an owner shall agree with the Foundation not to subdivide further for residential purposes any acreage allowed to be released. This agreement shall be recorded among the land records where the land is located and shall bind all future owners.
(7)(i) The restrictions of paragraphs (2) and (6) of this subsection concerning maximum lot sizes are altered so that the maximum lot size is:
1. As determined by the Department of the Environment in accordance with regulations adopted by the Department of the Environment in areas where there is less than 4 feet of unsaturated and unconsolidated soil material below the bottom of an on-site sewage disposal system or in areas located within 2,500 feet of the normal water level of an existing or proposed water supply reservoir; or
2. Up to a maximum of 2 acres when regulations adopted by the jurisdiction in which the land is situated require that a lot for a dwelling house be larger than 1 acre.
(ii) For exclusions provided under paragraph (6) of this subsection, the landowner shall pay the State for any acre or portion released in excess of the 1 acre per single dwelling that existed at the time of easement.
(8) The Foundation may approve a landowner's request to relocate the site of an existing dwelling to another location on a farm subject to an easement, provided:
(i) The new location does not interfere with any agricultural use; and
(ii) Subject to the Foundation's approval, the landowner agrees either to demolish the existing dwelling at the current location or permanently convert the existing dwelling at the current location to a use that is nonresidential and integral to the farm operation.
(9)(i) The Foundation may enter into corrective easements with landowners in order to:
1. Adjust boundary lines;
2. Resolve easement violations; or
3. Accommodate a plan that the Foundation has determined will benefit the agricultural operations.
(ii) Corrective easements under this paragraph may be accomplished by the exchange and release of farmland subject to easement restrictions with other farmland that meets the requirements of this subtitle.
(iii) Corrective easements approved by the Foundation are not subject to the requirements of §§ 4-416 and 10-305 of the State Finance and Procurement Article.
(iv) The Foundation shall adopt regulations to carry out this paragraph.
(10) The restrictions of paragraphs (2) and (6) of this subsection concerning maximum lot sizes may be waived by the Foundation so that the maximum lot size is 2 acres if:
(i) The Foundation receives a recommendation to allow a maximum lot size of more than 1 acre from the county agricultural preservation advisory board and the planning and zoning authority of the jurisdiction where the land is situated; and
(ii) The Foundation makes a determination that a lot size greater than 1 acre will not interfere significantly with the agricultural use of the land under easement.
(11)(i) A landowner may, without the approval of the Foundation, erect and display on land subject to an easement under this subtitle a sign or any other outdoor advertising display measuring not more than 4 feet by 4 feet for the purpose of:
1. Stating the name or address of the property or its occupant;
2. Advertising any farm- or forest-related uses of the property or any home occupations that occur on the property with the approval of the Foundation;
3. Advertising the sale of agricultural products, consistent with the policies of the Foundation;
4. Advertising that the property is available for sale or rent;
5. Forbidding trespassing, hunting, or the destruction of property;
6. Marking the boundaries of the property;
7. Identifying the protected status of the property; or
8. Supporting a political candidate.
(ii) The Foundation may authorize a landowner to erect and display on land subject to an easement under this subtitle a sign or any other outdoor advertising display measuring not more than 4 feet by 4 feet for the purpose of providing any other information consistent with the purposes of the Foundation.
(iii) This paragraph:
1. Supersedes any inconsistent provisions of a deed or any other agreement granting an easement under this subtitle; and
2. Does not supersede any local law or ordinance governing signs or outdoor advertising displays.
Definitions
(c)(1)(i) In this subsection the following words have the meanings indicated.
(ii) “Authorized renewable energy source” means the following energy sources:
1. Solar;
2. Wind;
3. Anaerobic digestion of poultry litter if placed on fallow land; and
4. Anaerobic digestion of livestock manure if placed on fallow land.
(iii) “Reference point” means a point on the Patuxent Naval Air Station centered at 38.29667N and 76.37668W.
(2) Subject to paragraph (4) of this subsection, any easement approved for purchase by the Board of Public Works after June 30, 2014, shall authorize the landowner to request approval, with a favorable recommendation of the local agricultural advisory board and if not prohibited by federal, State, and local laws and regulations, to use the land subject to the easement for the generation of electricity by a facility utilizing an authorized renewable energy source provided that:
(i) The facility occupies no more than 5% or 5 acres, whichever is less, of the land subject to the easement:
1. Including permanent roads or structures that are necessary for access for operation and maintenance purposes; and
2. Not including any temporary impacts necessary for construction of the facility;
(ii) The Foundation determines that authorizing the landowner to use the land subject to the easement for the generation of electricity by a facility utilizing an authorized renewable energy source will not:
1. Interfere significantly with the agricultural use of the land subject to the easement; and
2. Interfere with State, local, or federal restrictions placed on funds used by the Foundation to purchase the easement; and
(iii) For generation of electricity from wind, the generating station’s wind turbines:
1. Are not located in an area where the wind turbines could create Doppler radar interference for missions at the Patuxent River Naval Air Station; and
2. Do not exceed the maximum height above ground level within the area specified in paragraph (5) of this subsection.
(3) Subject to paragraph (4) of this subsection, a written request of a landowner, with a favorable recommendation of the local agricultural advisory board and if not prohibited by federal, State, and local laws, may be approved by the Foundation to amend an existing easement to authorize the landowner to use the land subject to the easement for the generation of electricity by a facility utilizing an authorized renewable energy source provided that:
(i) The facility occupies no more than 5% or 5 acres, whichever is less, of the land subject to the easement:
1. Including permanent roads or structures that are necessary for access for operation and maintenance purposes; and
2. Not including any temporary impacts necessary for construction of the facility;
(ii) The Foundation determines that authorizing the landowner to use the land subject to the easement for the generation of electricity by a facility utilizing an authorized renewable energy source will not:
1. Interfere significantly with the agricultural use of the land subject to the easement; and
2. Interfere with State, local, or federal restrictions placed on funds used by the Foundation to purchase the easement; and
(iii) For generation of electricity from wind, the generating station's wind turbines:
1. Are not located in an area where the wind turbines could create Doppler radar interference for missions at the Patuxent River Naval Air Station; and
2. Do not exceed the maximum height above ground level within the area specified in paragraph (5) of this subsection.
(4)(i) The Foundation may not approve the use of land subject to an easement for the generation of electricity by a facility utilizing an authorized renewable energy source after June 30, 2019.
(ii) This paragraph may not be construed to prohibit the use of land subject to an easement for the generation of electricity in accordance with this subsection that was approved by the Foundation before July 1, 2019.
(5) A wind turbine located on land subject to an easement may not exceed the specified height above ground level in the area described as follows:
(i) East of a line passing through the reference point and 39.0986N and 76.5284W and:
1. Not more than 24 miles from the reference point, 0 feet;
2. More than 24 miles and not more than 30 miles from the reference point, 100 feet;
3. More than 30 miles and not more than 35 miles from the reference point, 200 feet;
4. More than 35 miles and not more than 39 miles from the reference point, 300 feet;
5. More than 39 miles and not more than 43 miles from the reference point, 400 feet;
6. More than 43 miles and not more than 46 miles from the reference point, 500 feet;
7. More than 46 miles and not more than 49 miles from the reference point, 600 feet; and
8. More than 49 miles and not more than 56 miles from the reference point, 700 feet; and
(ii) West of a line passing through the reference point and 39.0986N and 76.5284W and:
1. South of 38.4428N, 0 feet;
2. North of 38.4428N and no farther north than 38.5711N, 100 feet;
3. North of 38.5711N and no farther north than 38.5943N, 200 feet;
4. North of 38.5943N and no farther north than 38.6366N, 300 feet;
5. North of 38.6366N and no farther north than 38.6596N, 400 feet;
6. North of 38.6596N and no farther north than 38.6873N, 500 feet;
7. North of 38.6873N and no farther north than 38.7075N, 600 feet; and
8. North of 38.7075N and not more than 56 miles from the reference point, 700 feet.
(6) A facility owner who uses land subject to an easement for the generation of electricity in accordance with this subsection shall, on operation of the facility, remit an annual payment of 5% of any lease payment paid to the landowner to the Maryland Agricultural Land Preservation Fund under § 2-505 of this subtitle.
(7) A lease executed by a facility owner and a landowner for the generation of electricity in accordance with this subsection shall include provisions to require a facility owner to remove the facility if the facility is no longer intended to be used to generate electricity.
(8) A landowner who is in violation of federal, State, or local laws regarding the operation of the facility is in violation of the easement and is subject to a civil penalty under § 2-519 of this subtitle.
(9) The Foundation may charge reasonable costs to cover any expenses relating to the Foundation's responsibility to amend any easement, as required under this subsection, and to monitor the enforcement and compliance of the easement.
(10) The Foundation shall adopt regulations to carry out the provisions of this subsection.
Special occasion event; use of land subject to an easement
(d)(1) In this subsection, “special occasion event” means a wedding, lifetime milestone event, or other cultural or social event.
(2) Subject to the Foundation's approval and any applicable regulations, and subject to paragraph (3) of this subsection, a landowner may use a portion of the land subject to an easement to hold special occasion events for commercial purposes if:
(i) More than 10 years have elapsed since the easement was recorded in the land records;
(ii) The local agricultural advisory board provides a written favorable recommendation for the proposed special occasion event area;
(iii) The proposed special occasion events are not prohibited by any federal, State, or local law or regulation;
(iv) The proposed special occasion events will not interfere with any federal, State, or local restriction placed on funds used by the Foundation to purchase the easement;
(v) The proposed special occasion event area, including parking for the special occasion events, does not exceed 2 acres, as shown on a map prepared and certified by a professional land surveyor licensed under Title 15 of the Business Occupations and Professions Article;
(vi) The Foundation approves in writing the location of the proposed special occasion event area;
(vii) The Foundation determines in writing that the proposed special occasion events will not interfere with the agricultural use of the land subject to the easement;
(viii) The proposed special occasion events will take place in:
1. A temporary structure, including an enclosed or open canopy or tent, or other portable structure erected for a reasonable amount of time to accommodate the special occasion event;
2. An existing building on the land subject to the easement;
3. A farm or open air pavilion; or
4. Any other existing structure located on the land subject to the easement; and
(ix) Unless required by law, the special occasion event area does not add any new impervious surfaces to the land subject to the easement.
(3) An approval granted by the Foundation under this subsection to a landowner to use a portion of the land subject to an easement to hold special occasion events for commercial purposes automatically terminates on the sale or transfer of the land subject to the easement.
Public right of access or right of use of property
(e) Purchase of an easement by the Foundation does not grant the public any right of access or right of use of the subject property.
Inclusion under Readiness and Environmental Protection Integration Program
(f) An agricultural land preservation easement purchased under this subtitle shall be included as part of a partnership under the Readiness and Environmental Protection Integration Program established under 10 U.S.C. § 2684a if:
(1) The land that is subject to an easement is in the vicinity of, or ecologically related to, the Atlantic Test Range;
(2) The landowner whose land is subject to an easement agrees to any restrictions imposed on the easement under the Readiness and Environmental Protection Integration Program established under 10 U.S.C. § 2684a; and
(3) Funding is available to the Foundation to enter into an agreement under the Readiness and Environmental Protection Integration Program established under 10 U.S.C. § 2684a.

Credits

Added by Acts 1977, c. 883. Amended by Acts 1981, c. 347; Acts 1982, c. 613; Acts 1987, c. 65; Acts 1988, c. 507; Acts 1989, c. 465; Acts 1994, c. 683, § 1, eff. Oct. 1, 1994; Acts 1996, c. 624, § 1, eff. Oct. 1, 1996; Acts 1997, c. 14, § 1, eff. April 8, 1997; Acts 1997, c. 467, § 1, eff. Oct. 1, 1997; Acts 2003, c. 258, § 1, eff. Oct. 1, 2003; Acts 2003, c. 278, § 1, eff. Oct. 1, 2003; Acts 2004, c. 374, § 1, eff. Oct. 1, 2004; Acts 2004, c. 498, § 1, eff. Oct. 1, 2004; Acts 2006, c. 76, § 1, eff. Oct. 1, 2006; Acts 2006, c. 174, § 1, eff. July 1, 2006; Acts 2008, c. 105, § 1, eff. Oct. 1, 2008; Acts 2009, c. 150, § 1, eff. July 1, 2009; Acts 2009, c. 536, § 1, eff. July 1, 2009; Acts 2010, c. 72, § 1, eff. April 13, 2010; Acts 2012, c. 35, § 1, eff. July 1, 2012; Acts 2012 c. 180, § 1, eff. June 30, 2012; Acts 2013, c. 108, § 1, eff. July 1, 2013; Acts 2014, c. 287, § 1, eff. July 1, 2014; Acts 2016, c. 8, § 1, eff. March 14, 2016; Acts 2017, c. 394, § 1, eff. June 1, 2017; Acts 2018, c. 66, § 1, eff. Oct. 1, 2018; Acts 2018, c. 492, § 1, eff. June 1, 2018; Acts 2018, c. 644, § 1, eff. Oct. 1, 2018.
MD Code, Agriculture, § 2-513, MD AGRIC § 2-513
Current through legislation effective through April 9, 2023, from the 2024 Regular Session of the General Assembly. Some statute sections may be more current, see credits for details.
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