hb4394 intr

H. B. 4394

(By Delegates Kelley, Willis, Campbell,

Boggs, Yeager, Michael and Faircloth)

[Introduced February 4, 2000; referred to the

Committee on Agriculture and Natural Resources then Finance.]

A BILL to amend chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twelve-a, relating to the West Virginia Agricultural Land Preservation Act; legislative intent; establishing the agricultural land preservation foundation; providing a board of trustees; setting out general powers of the foundation; providing for agricultural preservation advisory boards; creating the agricultural land preservation fund; requiring foundation to provide an annual report to the governor and the Legislature; providing for purchases of agricultural land preservation easements; providing disbursements for county agricultural land preservation programs; providing for proposal of legislative rules; providing for the sale of easements in agricultural lands; setting forth formulas for determining value of easements; providing a mechanism for approval of local programs of agricultural land preservation; setting out uses of land for which an easement is purchased; providing for the termination of easements; and providing for the condemnation of land under agricultural preservation easements.

Be it enacted by the Legislature of West Virginia:

That chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twelve-a, to read as follows:
ARTICLE 12A. WEST VIRGINIA AGRICULTURAL LAND PRESERVATION ACT OF 2000.
§20-12A-1. Legislative intent.

It is the intent of the Legislature to preserve agricultural land and woodland in order to: (1) Provide sources of agricultural and wood products within the state for the citizens of the state; (2) protect agricultural land and woodland as open-space land.

§20-12A-2. West Virginia agricultural land preservation foundation established.

There is a West Virginia agricultural land preservation foundation in the department. The foundation has the powers and duties provided in this article.
§20-12A-3. Board of trustees.

(a) Composition; chairman; quorum; qualifications. -- The West Virginia agricultural land preservation foundation shall be governed and administered by a board of trustees composed of the state treasurer, who shall serve as an ex officio member, the auditor, who shall serve as an ex officio member and the secretary of agriculture who shall serve as an ex officio member and nine members to be appointed by the governor, at least five of whom shall be farmer representatives from different areas of the state. The state treasurer may appoint, as the treasurer's designee, a deputy treasurer to serve on the board of trustees. One of the at-large members who is not a farmer representative shall be a representative of the division of natural resources. All of the farmer representatives shall be actively engaged in or retired from active farming. Three of the five farmer representatives shall be appointed as follows:

(1) Two from a list of five nominees submitted by the West Virginia department of agriculture;

(2) One from a list of three nominees submitted by the West Virginia farm bureau; and

The governor shall appoint the chairman of the board, from among the nine at-large trustees. A majority of the members of the board serving at any one time constitutes a quorum for the transaction of business.

Notwithstanding any provision of law to the contrary, a person may be appointed to and serve on the board as an at-large member even if prior to the appointment the person sold an easement in the person's agricultural land to the foundation.

(b) Terms. -- (1) The term of any trustee at-large serving on the board shall expire on the first day of July, two thousand two. The governor then shall appoint trustees at-large for the following terms:

(A) Three for a term of four years;

(B) Three for a term of three years; and

(2) In appointing members at-large to replace members whose terms expire on the first day of July, two thousand two, the governor may appoint members serving as of the first day of July, two thousand two. Thereafter, successors to trustees at-large whose terms expire shall be appointed for terms of four years. Vacancies shall be filled for the unexpired term. A trustee at-large may not serve more than two successive terms. Appointment to fill a vacancy may not be considered as one of two terms.

(d) Compensation and expenses. -- Compensation may not be paid to any trustee. Each trustee shall be reimbursed for travel and other expenses incurred by him or her in the performance of his or her duties on behalf of the foundation.
§20-12A-4. General powers of foundation.

The West Virginia agricultural land preservation foundation 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 agricultural land. -- To acquire, by gift, purchase, devise, bequest or grant, easements in gross 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;

(d) Power to propose rules. -- To propose, with the approval of the Legislature, rules necessary to implement the provisions of this article; and

(e) Power to promote dissemination of information. -- To promote the dissemination of information to farmers throughout the state concerning the activities of the foundation.
§20-12A-5. Agricultural preservation advisory boards.

(a) Appointment. -- In each county containing productive agricultural land, the county commission shall appoint an agricultural preservation advisory board.

(b) Composition. -- The agricultural preservation advisory board shall consist of five members, at least three of whom shall be owner-operators of commercial farms who earn fifty percent or more of their income from farming.

(c) Terms. -- Each member of an agricultural preservation advisory board shall be appointed for a term of office of five years:

(1) No member shall serve for more than two consecutive full terms;

(2) Appointment to fill a vacancy shall be for the remainder of the unexpired term.

(d) Duties. -- Duties of each agricultural preservation advisory board shall be:

(1) To advise the county commission with respect to the establishment of agricultural districts and the approval of purchases of easements by the foundation within the county;

(2) To assist the county commission in reviewing the status of agricultural districts and land under easement;

(3) To advise the foundation concerning county priorities for agricultural preservation;

(4)To promote preservation of agriculture within the county by offering information and assistance to farmers with respect to establishment of districts and purchase of easements; and

(5) To perform any other duties as assigned by the county commission.
§20-12A-6. West Virginia agricultural land preservation fund.

(a) Created and continued. -- The West Virginia agricultural land preservation fund is created and continued for the purposes specified in this article.

(b) Sources. -- The West Virginia agricultural land preservation fund is comprised of:

(1) Any money made available to the fund by general or special fund appropriations; and

(2) Any money made available to the fund by grants or transfers from governmental or private sources.

(1) For costs associated with the staffing and administration of the West Virginia agricultural land preservation foundation;

(2) For reasonable expenses incurred by the members of the board of trustees of the West Virginia agricultural land preservation foundation in the performance of official duties; and

(3) For consideration in the purchase of agricultural land preservation easements beginning with fiscal year two thousand four and each fiscal year thereafter.

(d) Money remaining at end of fiscal year. -- Any money remaining in the fund at the end of a fiscal year may not revert to the general funds of the state, but shall remain in the West Virginia agricultural land preservation fund to be used for the purposes specified in this article. It is the intent of the Legislature that the foundation utilize the full amount of money available for the purchase of easements in any fiscal year so as to minimize the amount of money remaining in the fund at the end of any fiscal year.

(e) Budget. -- The estimated budget of the foundation for the next fiscal year shall be included with the budget of the department.

(f) Audit. -- The fund shall be audited annually by the Legislature.
§20-12A-7. Annual report to governor and Legislature.

The foundation on or before the first day of November of each year, shall transmit to the governor and to the Legislature a report of the foundation's activities for the preceding fiscal year, including an inventory of all easements or other interests in agricultural land and woodland acquired during that time, and including a report on the condition of the West Virginia agricultural land preservation fund.
§20-12A-8. Purchases of agricultural land preservation easements.

(a) Definitions. -- For purposes of this article, the following have the meanings indicated:

(1) "Total amount to be allotted" means the amount which remains in the agricultural land preservation fund at the beginning of the fiscal year after payment of all expenses of the foundation and the board of trustees during the previous fiscal year and after subtraction of funds committed for payment as consideration for easements purchased during previous fiscal years.

(2) "General purchases of easements" means purchases of agricultural land preservation easements under this article in which the county commission of the county in which the land is located is not required to make a contribution to the West Virginia agricultural preservation fund.

(3) "Matching purchases of easements" means purchases of agricultural land preservation easements under this article in which the county commission of the county in which the land is located is required to make a contribution to the West Virginia agricultural land preservation fund of an amount equal to at least forty percent of the value of the easement for each such purchase.

(4) "Allotted purchases" means general or matching purchases made pursuant to offers to buy tendered by the foundation on or before the thirty-first day of January of any fiscal year.

(5) "County" means any county containing productive agricultural land which is being actively farmed and which meets the criteria for land for which easements may be purchased.

(6) "Eligible county" means a county which has secured approval from the foundation for a local agricultural land preservation program.

(b) Maximum amount to be expended for allotted purchases. -- Beginning with fiscal year two thousand four, and in each fiscal year thereafter, the foundation shall determine the maximum amount which may be expended for allotted purchases of easements on land located within each county. The maximum amount which may be expended for allotted purchases of easements in any county in any fiscal year shall be:

(1) An amount, to be used for general allotted purchases, equal to one twenty third of one half of the total amount to be allotted; and

(2) An amount, to be used for matching allotted purchases, which shall be computed for each eligible county by dividing one half of the total amount to be allotted equally among those counties having an approved program. The maximum amount available from the foundation for the foundation's share in matching allotted purchases may not exceed one million dollars in any county in any fiscal year.

(c) Additional offers to buy. -- If the foundation receives acceptances of offers to buy in insufficient numbers to expend the total amount to be allotted for allotted purchases, the foundation, to the extent feasible, shall tender additional offers to buy in sufficient numbers to expend the total amount to be allotted. Any such additional offers to buy shall be tendered:

(1) To landowners who have applied to sell easements on land which were otherwise acceptable, but who had not received an offer to buy solely because of limitations on the amount of money to be spent for allotted purchases;

(2) To applicants on a statewide basis as provided by the priority ranking system established under the provisions of this article; and

(3) Only after the expiration of the period allowed for acceptance of offers to buy under allotted general and matching purchases.

§20-12A-9. Disbursements to county agricultural land preservation programs.

(a) Applications; amount. -- If a county is certified by the foundation as having established an effective county agricultural land preservation program, and if there are moneys remaining in the West Virginia agricultural land preservation fund at the end of the fiscal year, the county may apply to the foundation for an amount equal to the difference between:

(1) The aggregate amount allotted on behalf of the county under general allotted purchases of easements for the fiscal year in which easement purchases are made; and

(2) The amount committed by the foundation on behalf of the county under general allotted purchases of easements for the fiscal year in which easement purchases are made.

(b) Time. -- The distribution under this section shall be made within sixty days of the end of each fiscal year.

(c) Insufficient funds. -- If the moneys remaining in the West Virginia agricultural land preservation fund at the end of the fiscal year are insufficient to distribute the total amount applied for under subsection (a) of this section, the maximum amount that may be distributed to any certified county is:

(1) The total sum available divided by the number of counties applying for additional funds under this section; less

(2) The amount committed by the foundation on behalf of the county under general allotted purchases of easements for the fiscal year in which easement purchases are made.

(d) Uses. -- A county may use the additional funds distributed under this section only for an approved agricultural land preservation program for the purposes stated under the provisions of this article, including use for bond annuity funds, collateralizing loans or matching funds.
§29-12A-10. Foundation rules.

(a) Rules to be proposed. -- The foundation shall propose legislative rules for:

(1) Establishment and monitoring of agricultural districts;

(2) Evaluation of land to be included within agricultural districts; and

(3) Purchase of easements.

(b) Rules for establishment and monitoring of agricultural districts. -- Rules proposed by the foundation for the establishment and monitoring of agricultural districts shall provide that:

(1) One or more owners of land actively devoted to agricultural use may file a petition with the county commission requesting the establishment of an agricultural district composed of the land owned by the petitioners. The petition shall include maps and descriptions of the current use of land in the proposed district;

(2) Upon receipt of a petition to establish an agricultural district the county commission shall refer the petition and accompanying materials to the county planning and zoning body and to the agricultural preservation advisory board.

(A) Within sixty days of the referral of a petition, the agricultural preservation advisory board shall advise the county commission as to whether or not the land in the proposed district meets the qualifications established by the foundation under subsection (c) of this section, and whether or not the advisory board recommends establishment of the district;

(B) Within sixty days of the referral of a petition, the county planning and zoning body shall advise the local governing body as to whether or not establishment of the district is compatible with existing and approved county plans and overall county policy and whether or not the planning and zoning body recommends establishment of the district;

(3) If either the agricultural preservation advisory board or the planning and zoning body recommends approval, the county governing body shall hold a public hearing on the petition. Adequate notice of the hearing shall be made to the public, and to the foundation;

(4) Within one hundred twenty days after the receipt of the petition, the county governing body shall render a decision as to whether or not the petition shall be recommended to the foundation for approval:

(A) If the county commission decides to recommend approval of the petition, it shall so notify the foundation and forward to the foundation the petition and all accompanying materials, including the recommendations of the advisory board and county planning and zoning body;

(B) If the county commission recommends denial of the petition, it shall so inform the foundation and the petitioners.

(5) The foundation may approve a petition for the establishment of an agricultural district only if:

(A) The land within the proposed district meets the qualifications established under subsection (c) of this section;

(B) The petition has been approved by the county commission; and

(6) The foundation shall render its decision on a petition to establish an agricultural district within sixty days of the receipt of the petition and shall inform the county commission and the petitioners of its decision;

(7) If the foundation approves the petition, the agricultural district shall be established by an ordinance of the county governing body, however, the establishment shall not take effect until all landowners in the proposed district have executed and recorded along with land records an agreement with the foundation stipulating that for a period of five years from the establishment of the agricultural district, the landowner agrees to keep his or her land in agricultural use and has the right to offer to sell an easement for development rights on his or her land to the foundation under the provisions of this article:

(A) In the event of severe economic hardship the foundation, with the concurrence of the county commission, may release the landowner's property from the agricultural district. Any person aggrieved by a decision of the foundation regarding a determination of severe economic hardship is entitled to judicial review;

(B) Nothing in this section shall preclude the landowner from selling his or her property.

(8) At any time after five years from the establishment of a district a landowner may terminate his or her property as an agricultural district by notifying the foundation one year in advance of his or her intention to do so;

(9) After the establishment of an agricultural district the county commission or the foundation may review the use of land within the district;

(10) The foundation may approve alteration or abolition of a district only if:

(A) The use of land within the district has so changed as to cause land within the district to fail to meet the qualifications established under subsection (c) of this section;

(B) The alteration or abolition of the district has been recommended by the county commission; and

(C) The alteration or abolition is approved by a majority of the foundation board of trustees at-large, by the secretary and by the state treasurer.

(c) Land which may be included in agricultural district. -- Rules developed by the foundation relating to land which may be included in an agricultural district shall provide that:

(1) Land shall meet productivity, acreage and locational criteria determined by the foundation to be necessary for the continuation of farming;

(2) The foundation shall attempt to preserve the minimum number of acres in a given district which may reasonably be expected to promote the continued availability of agricultural suppliers and markets for agricultural goods;

(3) Land within the boundaries of a ten-year water and sewer service district may be included in an agricultural district only if that land is outstanding in productivity and is of significant size; and

(4) Land may be included in an agricultural district only if the county regulations governing the land permit activities permitted under the provisions of this article.
§20-12A-11. Sale of easement in agricultural land.

(a) Owner may offer to sell easement. -- An owner of agricultural land located in an agricultural district established under this article may offer by written application to sell an easement to the foundation on the entire contiguous acreage of such agricultural land.

(b) Requirements for application to sell. -- In order to be considered by the foundation, an application to sell shall:

(1) Be received by the board not later than the first day of July of the fiscal year in which the application is to be considered;

(2) Include an asking price at which the owner is willing to sell an easement; and

(3) Include a complete description of the subject land.

(2) Applications received after the maximum number has been reached may be considered in the next available cycle.

(d) Notice to landowner of receipt and sufficiency of application. -- Within thirty days after the receipt of an application, the foundation shall notify the landowner of the receipt and sufficiency of the application. If the original application is insufficient, the foundation shall specify the reason for insufficiency and the foundation shall grant an additional thirty days for the landowner to remedy the insufficiency. If the application is made sufficient within thirty days of the notification by the foundation, the application shall be considered as if it had originally been submitted in a timely and sufficient manner.

(e) Approval or disapproval of application by county governing body. -- Within thirty days after the receipt of an application to sell, the foundation shall notify the governing body of the county containing the subject land, that an application to sell has been received. Within sixty days of the notification, the county commission shall advise the foundation as to local approval or disapproval of the application. The foundation shall grant a thirty-day extension of this response period if the county commission applies to the foundation for an extension and states its reasons for seeking an extension. In deciding whether to approve the application, the county commission shall receive the recommendation of the county agricultural preservation advisory board. In making its recommendation, the county agricultural preservation advisory board shall take into consideration criteria and standards established by the foundation under this article, local regulations, local patterns of land development and any locally established priorities for the preservation of agricultural land. The county agricultural preservation advisory board shall provide a public hearing concerning any application to sell if requested by a majority of the county agricultural preservation advisory board, or by the county commission or by the applicant. The foundation shall not approve any application to sell which has not been approved by the county commission or the county containing the subject land.

(f) Determination by foundation of applications to be approved. -- (1) In determining which applications it shall approve for the purchase of easements offered for sale in each fiscal year under this section, the foundation:

(A) May approve only those applications in which the subject land meets applicable criteria and standards established under this article; and

(B) Shall rank the applications and submit offers to buy in order of priority, as provided in this subsection.

(2) The foundation shall propose a legislative rule to determine a standard priority ranking system by which it shall rank each application. The system shall be based on the following criteria as to the easements offered in a county:

(A) The applications shall be assigned a rank in ascending order with respect to the proportion obtained by dividing the asking price by the state easement value. The resulting rank shall be the sole criterion for establishing the priority for discounted applications that include proportions of 1.0 or lower.

(B) All additional applications which include proportions greater than 1.0 shall be assigned a numerical value that, in regard to the land for which the easement is offered, reflects:

(i) The relative productive capacity of the land;

(ii) The extent to which the easement acquisition will contribute to the continued availability of agricultural suppliers and markets for agricultural goods; and

(iii) The priority recommendations of the local governing bodies.

(g) Maximum amount of general allotted purchases. -- The foundation may approve general allotted purchases of easements in a county not to exceed in aggregate value the amount allotted for that county under subsection (b), section eight of this article for the fiscal year in which the purchases are made, plus any amount of transferred local open space funds designated by the local governing body for general purchases.

(h) Maximum amount of matching allotted purchases. -- The foundation may approve matching allotted purchases of easements in an eligible county such that the foundation's share will not exceed in aggregate value the amount allotted for that county under subsection (b), section eight of this article for that fiscal year.

(i) Tender of offer to buy after approval application. -- Upon approval of the board and upon the recommendation of the treasurer and the secretary of state an application to sell shall be approved, and an offer to buy containing the specific terms of the purchase shall be tendered to the landowner. An offer to buy may specify terms, contingencies and conditions not contained in the original application.

(j) Time of tender; acceptance or rejection. -- With respect to allotted purchases, the foundation shall tender any offer to buy containing the specific terms of the purchase on or before the thirty-first day of January of the fiscal year in which the purchase is to be made:

(1) With respect to additional offers to buy tendered under subsection (c), section eight of this article, the foundation may not tender such offers earlier than thirty days after the completion of allotted purchases in each offer cycle;

(2) A landowner has thirty days from the date of any offer to buy in which to accept or reject the offer.

(k) Schedule of payment. -- At the time of settlement of the purchase of an easement, the landowner and the foundation may agree upon and establish a schedule of payment such that the landowner may receive consideration for the easement in a lump sum, or in installments over a period of up to ten years from the date of settlement. At the time of settlement, the foundation shall notify in writing each landowner who sells an agricultural easement to the foundation of the schedule of anticipated ranges of interest rates to be paid on any unpaid balance after the date of settlement:

(1) If a schedule of installments is agreed upon, the treasurer shall retain in the West Virginia agricultural land preservation fund an amount of money sufficient to pay the landowner according to the schedule;

(2) The landowner shall receive interest on any unpaid balance remaining after the date of settlement. The treasurer shall invest the unpaid balance remaining after the date of settlement in a certificate or certificates of deposit at the maximum interest rate offered by a bank servicing the state or at such other institutions which pay the maximum interest rates payable on time and savings deposits at federally insured commercial banks selected by the treasurer, to mature in accordance with an agreed upon schedule of installments as provided in this section. Any interest earned on the invested unpaid balance shall be paid with the installment when due, less one fourth of one percent.

(l) Rejection of application; reapplication. -- On or before the thirtieth day of June, the foundation shall notify all landowners whose applications had been rejected during that fiscal year. The foundation shall specify the reasons for that rejection.

A landowner whose application has been rejected for a reason other than insufficient foundation funds may not reapply to sell an easement on the same land on the same terms until two years after the date of the original application.
§20-12A-12. Value of easement.

(a) Maximum value. -- The maximum value of any easement to be purchased shall be 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 as a farm unit, to be used for agricultural purposes.

(d) Determination of values. -- The value of the easement is determined at the time the foundation is requested in writing to purchase the easement:

(1) The fair market value is determined by the commissioner of agriculture based on one or more appraisals by state appraisers, and appraisals, if any, of the landowner;

(2) The entire contiguous acreage shall be included in the determination of the value of the easement, less one acre per single dwelling; however, except as otherwise provided for in this article, the entire contiguous acreage, including the one acre per single dwelling, is subject to the easement restrictions;

(3) The agricultural value of land shall be determined by a formula approved by the department that measures the farm productivity of the land on which the applicant has applied to sell an easement by taking into consideration weighted factors that may include rents, location, soil types, development pressure, interest rates, and potential agricultural use. The value arrived at is subject to the approval of the department.

(e) Arbitration. -- If the landowner and foundation do not agree on the value of the easement as determined by the state, either the landowner or the foundation may request that the matter be referred to a mutually agreed upon mediator for arbitration as to the value of the easement.

(f) The value determined at arbitration shall be binding upon the owner and the foundation in a purchase of the easement made subsequent to the arbitration for a period of two years, unless the landowner and the foundation agree upon a lesser value or the landowner or the foundation appeals the results of the arbitration to the circuit court.
§20-12A-13. Approval of local programs of agricultural land preservation.

(a) Matching allotted purchases for land in county without approved program. -- The foundation may not approve matching allotted purchases of easements for land located in any county which has not secured approval from the foundation for a local program of agricultural land preservation.

(b) Conditions for approval. -- The foundation may approve a local program of agricultural land preservation upon request of a county: Provided, That:

(1) The county shall agree to make payments up to a specified aggregate amount to the West Virginia agricultural land preservation fund to equal at least forty percent of the value of any easement acquired by the foundation as a result of a matching allotted purchase, made during the ensuing fiscal year;

(2) The county shall show evidence that any county program for the acquisition of agricultural land for preservation, or easements for purposes of preservation of agricultural land, will not result in preservation of land which does not meet the minimum standards set by the foundation under section ten of this article; and

(3) The request for approval of a local program must be submitted to the foundation, together with any necessary agreements not later than ninety days prior to the beginning of the fiscal year for which approval is being sought.

(c) Period of validity. -- Approval of a local program by the foundation is valid only during the next fiscal year following the fiscal year of the request for approval by the county.

(d) Vote of foundation members; approval by secretary of state. -- Local programs shall be approved upon the affirmative vote of the foundation and upon approval of the secretary of state and the treasurer.

(e) Development rights. -- In this subsection, "development rights" mean the potential for improvement of a parcel of real property that is measured in dwelling units or units of commercial or industrial space and that exist because of the zoning classification of the parcel.

(f) A county shall use its unencumbered and uncommitted matching funds and any additional funds as provided for under section nine of this article to purchase development rights and guarantee loans that are collateralized by development rights for agricultural land that meets the minimum standards as provided for under subsection (c), section ten of this article.

(g) Nothing contained in this article may be construed to prohibit any county from accepting funds from private sources and using those private funds to purchase development rights or guarantee loans that are collateralized by development rights.
§20-12A-14. Use of land for which easement purchased.

(a) Provisions to be included in easement and county regulations. -- Agricultural land preservation easements may be purchased under this article for any land in agricultural use which meets the minimum criteria established under section ten of this article 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; and

(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, the sale of farm products produced on the farm where such sales are made.

(b) Use for commercial, industrial or residential purposes. -- (1) Except as otherwise provided in this section, a landowner, whose land is subject to an easement, may not use the land for any commercial, industrial or residential purpose.

(2) Except as provided in this subsection, on written application, the foundation shall release free of easement restrictions only for the landowner who originally sold an easement, one acre or less for the purpose of constructing a dwelling house for the use only of that landowner or child of the landowner subject to the following conditions:

(A) The total number of lots allowed to be released under this section, except as otherwise provided in this subsection, may not exceed ten lots of one acre or less at a maximum of not more than one lot for each twenty acres or portion thereof;

(B) The resulting density on the property may not exceed the density allowed under zoning of the property before the foundation purchased the easement;

(C) 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; and

(D) 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.

(c) After certifying that the landowner or child of the landowner has met the conditions provided in subdivisions (A) through (D) of this subsection, 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; or

(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.

(d) Any release or preliminary release issued under this section shall include 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.

(e) Any release, preliminary release, building permit or other document issued or submitted in accordance with this section shall be recorded among the land records where the land is located and shall bind all future owners.

(f) 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.

(g) A landowner may construct housing for tenants fully engaged in operation of the farm, but this construction may not exceed one tenant house per one hundred acres. 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.

(h) Except as otherwise provided in this section, on request to the foundation, an owner may exclude from the easement restrictions one acre per each single dwelling, which existed at the time of the sale of the easement, 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.
§20-12A-15. Termination of easement.

(a) Legislative intent. -- It is the intent of the Legislature that the easement purchased under this article be held by the foundation for as long as profitable farming is feasible on the land under easement, and that an easement may be terminated only in the manner and at the time specified in this section.

(b) Request for review. -- At any time after twenty-five years from the date of purchase of an easement, the landowner may request that the easement be reviewed for possible termination of the easement.

(c) Inquiry and decision. -- Upon a request for review of an easement for termination, an inquiry shall be conducted by the foundation to determine the feasibility of profitable farming on the subject land. The inquiry shall be concluded and a decision reached by the foundation within one hundred eighty days after the request for termination, and shall include:

(1) On-site inspection of the subject land;

(2) A public hearing conducted by the foundation board within the county containing the subject land after adequate public notice.

(d) Approval by county governing body. -- An easement may be terminated only with the approval of the county commission of the county containing the subject land. In deciding whether to approve the request for termination, the county commission shall receive the recommendation of the county agricultural preservation advisory board. The decision of the county commission shall be made after the public hearing required in subsection (c) of this section. The county commission shall notify the foundation of its decision within thirty days after the conclusion of the public hearing required in subdivision (2), subsection (c) above.

(e) Approval by foundation, secretary of state and treasurer. -- Upon the affirmative vote of a majority of the foundation members, and upon the approval of the secretary of state and the treasurer, the request for termination shall be approved and the landowner shall be notified.

(f) Repurchase by landowners. -- If the request for termination is approved, an appraisal of the subject land shall be ordered by the foundation at the expense of the landowner requesting termination of the easement.

(g) No more than one hundred eighty days following the appraisal required under this section, the landowner may repurchase the easement by paying to the foundation the difference between the fair market value and the agricultural value of the subject land, as determined by the appraisal.

(h) For purposes of this section the agricultural value is the price as of the valuation date which a vendor, willing but not obligated to sell, would accept, and which a purchaser, willing but not obligated to buy, would pay for a farm unit with land comparable in quality and composition to the property being appraised, but located in the nearest location where profitable farming is feasible.

(i) In the case of the termination of an easement that was originally purchased under a matching allotted purchase, the foundation shall distribute to the contributing county a portion of the repurchase payment received that is equal to the percentage of the original easement purchase price contributed by the county.

(j) From the funds distributed to a county under this subdivision, the county shall deposit in the county's special account for its agricultural land preservation program an amount that is at least equal to the percentage of the original easement purchase price that was paid out of the special account.

(k) If any of the funds deposited in the county's special account have not been expended or committed within three years from the date of deposit into the special account, the county sheriff shall remit those funds to the treasurer for deposit in the West Virginia agricultural land preservation fund.

(l) The county shall deposit the balance of the funds distributed to it under this article in the county's general fund.

(m) Subsequent request for termination after denial or failure to repurchase. -- If the request for termination is denied, or if the landowner fails to repurchase the easement within one hundred eighty days of the appraisal, the landowner may not again request termination of the easement until five years after his or her last request for termination.
§20-12A-16. Condemnation of land under agricultural preservation easement.

(a) Acquisition for public purpose not prohibited. -- This article does not prohibit an agency of the state or of a county from acquiring by condemnation land which is under an agricultural preservation easement held by the foundation or a county agricultural land preservation program if such acquisition is for a public purpose.

(b) Payments by condemning authority. -- In the event of condemnation of land under an agricultural preservation easement, the condemning authority, whether state or county, shall pay:

(1) To the landowner the full amount to which the landowner would be entitled if the land was not under easement, less any amount paid to the landowner by the foundation or a county agricultural land preservation program for the easement; and

(2) To the West Virginia agricultural land preservation fund or a county agricultural land preservation program, an amount equal to any amount paid by the foundation or the county agricultural land preservation program for the easement.

(c) Effect of easement on land acquired by eminent domain. -- (1) If a part or all of the property is acquired by the exercise of the power of eminent domain, the fair market value of the property is not affected by its having been qualified for any tax credit provided for under any provision of this code except that there shall be deducted from fair market value the lesser of:

(A) The value of the easement granted; or

(B) The excess of the aggregate amount of the property taxes that would have been due on the property if the easement had not been granted above the aggregate amount of property taxes actually paid on the property since the easement was granted.

(2) If the foundation or a county agricultural land preservation program purchases the easement for a monetary consideration, other than or in addition to, the tax credit, the condemnation award shall be further reduced by an amount equal to the additional consideration.

NOTE: The purpose of this bill is to create the West Virginia Agricultural Land Preservation Act. In doing so the bill includes provisions that address the following: Legislative intent; establishing the agricultural land preservation foundation; providing a board of trustees; setting out general powers of the foundation; providing for agricultural preservation advisory boards; creating the agricultural land preservation fund; requiring foundation to provide an annual report to the governor and the Legislature; providing for purchases of agricultural land preservation easements; providing disbursements for county agricultural land preservation programs; providing for proposal of legislative rules; providing for the sale of easements in agricultural lands; setting forth formulas for determining value of easements; providing a mechanism for approval of local programs of agricultural land preservation; setting out uses of land for which an easement is purchased; providing for the termination of easements; and providing for the condemnation of land under agricultural preservation easements.

Article 12A is new; therefore, strike-throughs and underscoring have been omitted.