# Montgomery County Code — Part II. Local Laws, Ordinances, Resolutions, Etc.

## Chapter 2B. AGRICULTURAL LAND PRESERVATION.

### Article 2. State Easements.

**Sec. 2B-3. State Easement Application and Purchase.**

  (a)   A landowner seeking to place land under an agricultural easement must file a petition with the APAB requesting an application for the purchase of an easement by the Foundation.

  (b)   The APAB must advise the County Council whether the applicant’s land meets the qualifications established by the Foundation and recommend whether the Foundation should buy an agricultural easement.

  (c)   The APAB must refer the application to the Planning Board.  The Planning Board must advise the Council if:

    (1)   the proposed agricultural easement is compatible with existing and approved County plans and overall policy; and

    (2)   the Planning Board recommends buying an agricultural easement on the applicant’s land.

  (d)   If either the APAB or the Planning Board recommends approval, the County Council must hold a public hearing on the proposed easement.  The Office must give adequate notice of the hearing to the owner of any land adjacent to the proposed agricultural easement.

  (e)   The Council must decide if the application for the proposed agricultural easement should be recommended to the Foundation for approval.

    (1)   If the Council recommends approval of the application, the Council must notify and forward to the Foundation its recommendation and relevant information about the proposed easement, including the recommendations of the APAB and the Planning Board.

    (2)   If the Council recommends denial of the application, the Council must notify the Foundation and the landowner of its decision.

  (f)   The Foundation may approve an application for a proposed agricultural easement only if:

    (1)   the land in the proposed agricultural easement meets the following qualifications established by the Foundation:

      (A)   any productivity, acreage, and locational criteria necessary to continue farming;

      (B)   the land must be at least 50 acres; and

      (C)   any other eligibility requirement in Subtitle 5 of Title 2 of the Agriculture Article;

    (2)   the Council recommended approval of the proposed easement; and

    (3)   a majority of the Foundation’s Board of Trustees approves buying the proposed easement.

  (g)   If the Foundation buys an agricultural easement, the County may make an additional payment to the landowner of up to 15% of the State’s purchase price of the easement under regulations issued under this Chapter.  The Executive must specify the percentage used to determine the payment each year and publish that number in the County Register.

  (h)

    (1)   The procedures governing State agricultural easements, including the application process, the maximum value of any easement bought, the source of funds to buy an easement, and the restrictions required in easements, are contained in Subtitle 5 of Title 2 of the Agriculture Article and the regulations issued under Subtitle 5 of Title 2.

    (2)   If any conflict arises between this Chapter and its regulations and Subtitle 5 of Title 2 and its regulations, the State law and State regulations govern.

  (i)   The Office must work with the State to record each State agricultural easement in the County land records.  The recordation of a State agricultural easement is not subject to any County recordation or transfer tax.

**Sec. 2B-4. Activities and uses permitted on land under a State easement.**

  (a)    Permitted uses. The following activities are permitted on land under a State agricultural easement:

    (1)   any agricultural use of land;

    (2)   operation at any time of any machinery used in farm production or the primary processing of agricultural products;

    (3)   any normal agricultural operations performed in accordance with good husbandry practices which does not cause bodily injury or directly endanger human health; and

    (4)   sale of farm products at a farm market.

  (b)    Uses not permitted; release.

    (1)   Land under a State agricultural easement must not be subdivided or used for residential, commercial, or industrial purposes.  However, the Foundation may approve, after receiving a written application, the release of any easement restriction for:

      (A)   the landowner who originally sold the easement, to use 1 acre or less to build one or more dwelling houses for the use only of that landowner or a child of the landowner, up to a maximum of 3 lots, subject to the requirements in Subtitle 5 of Title 2 of the Agriculture Article; and

      (B)   a landowner to build housing for one or more tenants who are fully engaged in operating the farm if the landowner meets the following requirements:

        (i)   the use must not exceed 1 tenant house for each 100 acres, unless the Foundation allows an exception in a case of compelling need;

        (ii)   the land where a tenant house is located must not be subdivided or conveyed to any person;

        (iii)   the tenant house must not be conveyed separately from the original parcel; and

        (iv)   any other requirement in Subtitle 5 of Title 2 of the Agriculture Article.

    (2)   Purchase of an agricultural easement by the Foundation does not grant the public any right of access or right to use the land included under the easement.

    (3)   Any land under a State agricultural easement must not be condemned for public use unless no other reasonable alternative is available.

**Sec. 2B-5. Landowner rejection of offer to purchase easement.**

  A landowner who rejects an offer by the Foundation to buy a State agricultural easement on the same land for 2 consecutive years, for a reason other than that sufficient State or County funds are not available to buy the easement, must not reapply to sell an agricultural easement on the same land for the next 2 consecutive years.

**Sec. 2B-6. Termination of State easements.**

  (a)   The Foundation and the County must approve the termination of any agricultural easement bought in full or in part with State funds.  Any termination must comply with Subtitle 5 of Title 2 of the Agriculture Article.

  (b)   The Foundation must hold a State agricultural easement in perpetuity if the State Board of Public Works approved the purchase of the easement on or after October 1, 2004.