Farmers get the go-ahead to lease preserved acreage

State disputes decision of hearing examiner


March 24, 2004|By Liz F. Kay | Liz F. Kay,SUN STAFF

The Howard County hearing examiner has granted owners of a Dayton farm permission to lease land to a landscape contracting business, despite opposition from the state agricultural land preservation program.

"The county should not be issuing a permit that undermines state law," said Assistant Attorney General Craig A. Nielsen, the preservation program's counsel. He said he will review the decision to determine whether to appeal.

Mike, Mark and Steve Mullinix are third-generation farmers who sold the development rights for their 202-acre property to the Maryland Agricultural Land Preservation Foundation in 1983 as part of an effort to conserve farmland throughout the state. They also leased about 5 acres to a landscape contractor, which state officials say is a commercial use that violates the terms of the easement.

Nielsen argued at a hearing Monday in Ellicott City that the Mullinixes' easement and state law limits the property to agricultural uses. But the Mullinixes have said that the income from the lease is what allows them to continue to farm. In addition, they believe a landscaping business is an agricultural use because Howard County allows such businesses in its agricultural zones as a "conditional-use" after review by the hearing examiner.

"We kind of feel like local zoning should manage it," said Mike Mullinix after the hearing.

Nielsen, however, said that granting the conditional use was akin to "selling someone the Brooklyn Bridge when you don't own it."

Local zoning should not be the standard to define agricultural uses, he said, because "otherwise we would have 23 different agricultural preservation programs" - one for each of Maryland's counties.

The Mullinixes' original request for a conditional use was appealed to Howard County Circuit Court, which ordered the county last year to evaluate the application.

On Monday, county hearing examiner Thomas P. Carbo disagreed with Nielsen, stating that the Mullinixes' application meets Howard's criteria for a conditional use, despite any agreement the owners may have with the state. Mike Mullinix testified that the landscaper has ample parking, no outdoor lighting and does not create any adverse effects, such as noise, dust or odors. "No worse than our cows do," he said.

If program officials believe the landscaping facility is a violation, Carbo told Nielsen, "you've got a state law and an easement you can enforce."

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