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February 2017:

Kittleman Files Bills to Restore Property, Farmers’ Rights

By Alice Settle-Raskin

February 6, 2017

Posted in: News

On Jan. 12, Howard County Executive Allan Kittleman announced that he intended to file two bills — one to restore property rights to more than 30 county landowners in western Howard County and a second that would help protect farming operations. In addition, Kittleman announced he would also file a Zoning Regulation Amendment (ZRA) to assist farmers in maximizing the use of their land for agriculture.

“Even if it’s just one property [that is affected], I want do this,” said Kittleman. “Philosophically, it’s the best thing. It’s the fairest thing for Howard County.”

If passed, these two pieces of separate legislation would present a win-win for the property owners, whose development rights were stripped nearly four years ago; and Howard County farmers, many of whom already have their land protected from development through Howard County’s Agricultural Land Preservation Program (ALPP).

At the heart of the issue is a decision made by the Howard County Council in 2013 pertaining to land in the Rural Conservation and Rural Residential districts. The Tier III land (in rural residential) of 36 property owners was placed into Tier IV (rural conservation) to accommodate the Maryland’s Sustainable Growth and Agricultural Preservation Act.

The act sought to decrease new development in areas served by septic systems to help protect the Chesapeake Bay and its tributaries. The law required the local jurisdictions to adopt “Growth Tiers” ranging from Tier I, the most developed areas with public services; to Tier IV, which is zoned for agricultural and conservation, but severely limits the ability to develop subdivisions.

The Tier Legislation has caused undue hardship. For owners of the 36 properties composing 1,615 acres of the 94,000 acres in western Howard County, it stripped them of their development rights without compensation. For those not already in preservation and who had multi-generation family farms, they had two choices: To file for development rights within 90 days, costing many thousands of dollars; or to place their land in the ALPP for perpetuity, and be compensated via the county buying the development rights.

The latter would conserve farmland forever, thus allowing the agricultural industry to continue within Howard County. According to the county’s website, there are 22,349 acres of farmland in preservation.

Proposed Legislation

Regarding property rights, the proposed legislation would move the impacted properties from Tier IV into Tier III, restoring zoning previously determined by the county as Rural Residential and Rural Conservation. This would greatly enhance property values lost due to the Tier IV-Tier III bills previously enacted, and it gives the development rights back to these property owners.

On behalf of the Howard County farmers, Kittleman is introducing two legislative actions. The first is the right-to-farm bill, which would improve the farmers’ ability to conduct agricultural operations by discouraging “nuisance suits” brought on by residents of newly-developed land abutting farms (those often new to the area). The bill would require a plaintiff to cover all legal costs in civil suits if the court finds the farming operation in question not to be a “nuisance.”

Other nearby counties, such as Montgomery, have adopted similar laws. Since 2007, Montgomery has required property owners in “agricultural zones to notify potential buyers that state and county laws protect owners and operators of agricultural uses from certain lawsuits.”

The second proposed action is a Zoning Regulation Amendment (ZRA) adjusting set-backs from certain farm operations. Currently, Howard County farmers cannot build a structure housing animals closer than 200 feet to any dwelling. The proposed legislation would eliminate that requirement from agriculturally zoned properties.

The Reaction

To some, like local turf farmer Lambert Cissel, whose land was impacted by the current system, the news was a breath of fresh air.

“It’s fantastic,” said Cissel, who said he felt like the Maryland law robbed him, and others, of their property rights. Other landowners who were impacted feel that the legislation, if passed, lets them pass on the land to their next generation, who will have the freedom to choose to farm it or sell it for a fair market value.

“The introduced legislation is extremely important. Farmers are not all opposed to preservation; on the contrary,” said Natalie Ziegler, who stated that many of the farmers who have not sold their land into the preservation program were planning to leave the land to their grandchildren or great-grandchildren. “But to have your biggest business asset just devalued by the stroke of a pen by the county council is very frightening.”

“This legislation is very important, not just to my family, but to all farmers in Howard County and all future farmers in Howard County,” said Blair Hill of TaHill Farm in Lisbon. He said he’s proud to live in a county that protects property rights.

It’s a “precedent-setting piece of legislation that, to my knowledge, hasn’t been done anywhere else, certainly not in this state,” said Justin Brendel of Brendel Family Farms, in Woodbine.

The Paradox

Not all Howard County farmers are as positive about the proposed legislation. To Howie Feaga, whose land, Merry Acres Farm, was placed in preservation some years ago, the ZRA as written does not go far enough.

Feaga wants the amendment retroactive to the date that his land went into preservation. This would give him the right to build a structure for animals closer than a 200-foot setback from a nearby dwelling on an adjacent property, while still adhering to the 30-foot set-back from the property line. “It should retroactively apply to all land placed in preservation” (to the date the land was place in the ALPP), he said.

“It’s a complex issue,” said Howard County farmer Keith Ohlinger, who advocates for Maryland’s right-to-farm, but also understands the financial dilemma that the impacted property owners may perceive with Howard County’s current agricultural land tier system.

Ohlinger, whose family has been farming for more than 400 years, moved to the county a little more than four years ago from nearby Montgomery County, and advocates that those who put their land in the county’s ALPP would benefit greatly, potentially receiving up to $40,000 per acre.

“Howard County is at the epicenter of the state and nationally,” he said. “Howard County’s model of what agriculture, urban and residential zones looks like — the boundaries put in place — could set the standard for Maryland.”

To Be Continued

The Growth Tiers and right-to-farm bills were filed on Jan. 26. A public hearing is scheduled for Feb. 21, where many will have their voices heard. The Howard County Council is scheduled to vote on the legislation on March 6.

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