Land program's clause may offer little escape

Farms: Landowners who signed state easements are talking about termination at the 25-year mark, but officials assert that's easier said than done.

March 25, 2004|By Liz F. Kay | Liz F. Kay,SUN STAFF

Nearly two decades ago, Barbara Warfield and her two sons decided to give up the development rights on their 342-acre Clarksville farm as part of a state-run program that seeks to preserve rural land from suburban growth. It seemed like a logical choice.

"Back then, we had no intention of doing anything else," Warfield said.

But today, with development encroaching on the land the program set out to protect, Warfield and other farmers are having trouble making a living. Many are considering whether to opt out, a prospect that preservation advocates say could threaten up to 240,000 acres of farmland over the next 25 years.

Both sides are watching closely as the 25-year anniversary of the first agreements approaches. A clause in the preservation easements allows landowners to leave the program after a quarter-century if they can prove that farming is no longer profitable on their land.

Farmers, who struggle to maneuver farm equipment through suburban traffic and who see fields they once rented turn into luxury subdivisions, say they want the state to honor their exit clause.

"We were willing to sign a 25-year agreement and commit to 25 years," said Warfield's son, Mike Clark. "If we didn't think we could get out, I don't know if we would have gone in."

But the farmers and preservation officials often have differing definitions of a farm that is no longer "profitable."

To clarify the terms of the deal for future applicants, both houses of Maryland's General Assembly have approved bills that would remove the termination clause in easements sold after this October.

"It's a permanent easement, and it's intended to be a permanent easement," said Joseph F. Tassone, director of land-use planning and analysis at the Maryland Department of Planning.

The legislation also would set up a formal public process for landowners now in the program to pursue termination and appeals.

"It's become clear that there are increasing numbers of people ... that have misinterpreted this easement-elimination clause to say, `Oh, I can get out of this easement after it's been enforced for 25 years,' " Tassone said.

Maryland created its program in 1979, allowing farmers to retain land ownership while agreeing not to develop it in exchange for a payment or tax benefits. About 240,000 acres, representing nearly 1,600 farms, have been preserved under this program, one of several in the state that collectively aim to preserve 1.03 million acres.

This program is the only one with a termination clause, originally included to protect farmers in case land use around them changed in a way that prevented profitable farming, or if the county's land planning did not coordinate with preserved areas.

"That was sort of a compromise," said former state Sen. James Clark, who drafted the legislation and whose Ellicott City farm is part of the program.

However, "you don't have a right to come out; it's just a possibility," he said.

Today, the average price of state easements is about $2,000 an acre, said James Conrad, executive director of the Maryland Agricultural Land Preservation Foundation. Transferable development rights, which allow developers to increase density on one property while paying to preserve another, are more than $35,000 an acre, and up to $150,000 for land for homes.

Talk of releases makes land-preservation advocates nervous, particularly with rumors circulating about people buying land under easement with the hope of developing it later.

"It's just holding your breath, waiting to see what's going to happen," said Joy Levy, program administrator in Howard, where some of the first challenges on easements are expected because of exploding land values.

The 30 farms that will be eligible to request termination in 2005 or 2006 are in counties facing increasing development pressure. Carroll County has 22, Howard has five, Frederick has two and Anne Arundel has one.

Tim Blaser, Frederick's program adminstrator, said he doubted many owners would successfully withdraw because most of the affected farms are far from growth areas.

Release requires review by a number of state and county officials and boards, said Donna Mennitto, a land-preservation consultant and former Howard program administrator. If approved, owners would have to repay the difference between the fair-market value of the property and its agricultural value.

"The jury is still out on whether this would even be financially viable to a landowner," said Kevin Schmidt, state director of the American Farmland Trust.

In Howard, Warfield's Limestone Valley Farm has been in her husband's family since 1890. She and her two sons used the $478,800 from the program, which they entered a few years after Warfield's husband died, to pay off their mortgage.

"The situation for farming has changed so drastically," she said. "We rent [additional] land to make it possible to farm for a living. You have to buy big machinery to do the work."

As the land the family rents increasingly gives way to development, "it's not very profitable to have all this machinery to raise crops," she said.

Her son said it should be easy to verify that farming is not profitable. "If you're in debt, I don't think it would be too hard to prove," Mike Clark said.

But Tassone said that debt should not be the deciding factor. "That would set a terrible, terrible precedent that would basically compromise 25 years of public investment," he said.

State officials said they would consider whether someone could earn money pursuing any agricultural endeavor, including pick-your-own farms or produce stands. But that does not appeal to Warfield and her sons.

"I don't want to deal with John Q. Public," said Mike Clark, who relishes his time in the fields on his tractor. "The solitude of it is what I've always enjoyed."

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