Senate Bill No. 779

(By Senators Kessler, Dempsey, Fanning, Foster, Hunter, Jenkins, Minard, Oliverio, White, Barnes, Caruth, Deem, Lanham and Weeks)

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[Originating in the Committee on the Judiciary;


reported February 23, 2006.]

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A BILL to amend and reenact §8A-12-2, §8A-12-5, §8A-12-6, §8A-12- 11, §8A-12-12 and §8A-12-14 of the Code of West Virginia, 1931, as amended, all relating to voluntary farmland protection programs; providing for oversight by county commission in certain cases; and allowing county commission to participate in arbitration in certain cases.

Be it enacted by the Legislature of West Virginia:
That §8A-12-2, §8A-12-5, §8A-12-6, §8A-12-11, §8A-12-12 and §8A-12-14 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
 ARTICLE 12. VOLUNTARY FARMLAND PROTECTION PROGRAMS.
§8A-12-2. County farmland protection programs and farmland protection boards authorized; authority of county commission to approve purchase of farmland; expense reimbursement of actual expenses for the board members.

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

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)