Panel declines to hear farm-landscaping case

Brothers who put land in preservation want OK on operation

February 20, 2002|By Jamie Smith Hopkins | Jamie Smith Hopkins,SUN STAFF

The Mullinix brothers wanted to tell a Howard County land-use panel why it should make legal a landscaping operation on one of their farms, but the Board of Appeals declined to hear the case last night.

That didn't deter the Mullinixes' lawyer. He said they're going to keep operating.

It's a sign of the case's complexity that attorney Malcolm Kane might have a leg to stand on.

Eighteen years ago, the Mullinix family enrolled their 203-acre farm in Dayton in the state's agricultural land preservation program, which pays farmers to give up their development rights.

Shortly before or soon after, the brothers said, they agreed to lease a barn on the farm to a landscaping contractor who wanted to set up shop.

State officials, alerted to the land-lease arrangement in 1999, said it violated rules of the preservation program because commercial operations are not permitted.

The operation did not have county zoning approval, either - so county officials took the Mullinixes to court, where both sides agreed that the brothers would apply for the zoning approval.

The Mullinixes held up their end of the bargain, Kane said: They applied.

If county officials believe otherwise, they can take the farmers back to District Court, he said.

"We're operating legally now ... so we're going to continue," Kane said.

Dayton Community Association leaders, who are worried that the brothers will set a precedent that will have an impact on the state's thousands of acres of preserved land, believe that the brothers are trying to wriggle around the rules.

"They're under contract, and they've been violating it for years," said Ted Davis, the group's president. "To me, it's very straightforward. Maybe I'm a simple sort, but I think it's inappropriate what they've been doing."

Genevieve Gibson, a longtime Dayton resident, said: "If you have an agreement saying you're going to farm a property, and you're being paid, then you should do it. They shouldn't be getting money for nothing."

Instead of hearing the case last night, the county Board of Appeals put the case on its unscheduled docket and asked the Mullinixes to return when they had the state's approval.

"They have certain rights to that property," Chairman Robert C. Sharps said of the state.

Kane, noting legal precedents, had argued that the board doesn't have the authority to consider a "private agreement" between the landowners and the state.

The brothers - Mike, Mark and Steve Mullinix - say their case boils down to making ends meet in the increasingly difficult world of farming.

They said their grain and cattle operation, on about 1,900 acres they own and rent in Howard County, isn't enough to sustain them.

Long ago, the family looked for additional sources of income - such as the preservation program and the landscaping operation.

The land-lease is a good deal for both sides, the brothers say. Besides the rent, they get a built-in market for their straw, and the landscaper doesn't have to go far to buy it.

Mark Mullinix, 42, said he would be testifying in support of legislation before the state Senate that would permit some commercial enterprises on preserved land, as long as the farming operation isn't negatively affected.

Landscaping might be commercial, but so is farming, in the Mullinixes' opinion.

"What's the difference?" said Mark Mullinix.

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