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Introduced Version House Bill 2112 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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