012-054lGK CpG~
~ BOARD OF SUPERVISORS
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An Ordinance Establishing the
Frederick County Conservation Easement Program
WHEREAS, the Frederick County Board of Supervisors desires to establish a program which will
enable the County to acquire conservation easements, voluntarily offered by property owners, as a
means of assisting in the preservation of farm and forest land, open space, scenic vistas, historic sites,
water resources, environmentally sensitive lands, and the county's rural character; and,
WHEREAS, the Open Space Land Act of Virginia expressly authorizes public bodies to acquire and
hold conservation easements;
NOW, THEREFORE BE IT RESOLVED, that the Frederick County Board of Supervisors does
hereby adopt the attached Conservation Easement Program Ordinance
Adopted this 24 day of August, 2005.
Richard C. Shickle
Bill M. Ewing
Gary W. Dove
Gina A. Forrester
Aye Gene E. Fisher
Aye Barbara E. Van Osten
Aye Lynda J. Tyler
Aye
Aye
Aye
Aye
A COPY TESTE:
1 /.~
Jo .Riley, Jr., erk
Board of Supervisors
Resolution No.: 012-05
FREDERICK COUNTY CONSERVATION EASEMENT PROGRAM
7/15/05
1. Intent:
To further the goals of the County's Comprehensive Plan and provide a means to assist county
landowners in protecting and preserving farm and forest land, open space, scenic vistas, historic
sites, water resources and environmentally sensitive lands, andthe county's rural character. This
ordinance establishes a programwhich will enable the Countyto acquire voluntary conservation
easements either through donation or, should funding be made available, through purchase, as one
means of assuring these valuable County resources are protected. It is hoped that this will in turn
assist in shaping the character and direction of development, promote tourism through the
preservation of scenic and historic resources, and assist in preserving the quality of life for the
inhabitants of the County.
2. Authority/Applicability.
The Frederick County Conservation Easement Program (FCEP) program is established under the
provisions ofthe Open Space Land Act, Chapter 17, Title 15.2 (§ 10.1-1700 et seq.), Code of
Virginia and shall be available for all land in the County. The owner shall voluntarily offer any
conservation easement acquired pursuant to this chapter.
3. Definitions.
A. The following definitions shall apply in the interpretation and implementation ofthis chapter:
(1) Authority. The Frederick County Conservation Easement Authority.
(2) Conservation easement. The term "conservation easement" means a
nonpossessory interest in real property, whether easement appurtenant or in gross,
acquired through gift, purchase, devise, or bequest imposing limitations of affu7native
obligations, the purpose ofwhich include retaining or protecting natural oropen-space
values ofreal property, assuring its availability for agricultural, forestal, recreational, or
open-space use, protecting natural resources, maintaining or enhancing air or water quality,
or preserving the historical, architectural or archaeological aspects ofreal property.
(3) Development right. The number ofresidential building lots that may be created
from the parent tract in a given zoning district per the Frederick County Zoning and
Subdivision Regulations.
(4) Owner. The term"owner" means the owner or owners ofthe freehold interest of
the parcel
(5) Program administrator. The term"program administrator" means the Director
of Planning and Development.
(6) Parcel. The term "parcel" means a lot or tract of land, lawfully recorded in the
clerk's office of the circuit court of the County of Frederick. Because a conservation
easement may contain one or more parcels, for purposes ofthis chapterthe term "parcel"
shall include all parcels covered by, or proposed to be covered by, the conservation
easement.
4. Program administrator; powers and duties.
A. Powers and duties. The Director of Planning and Development, or his designee, shall
have the following powers and duties with respect to the program:
(1) Establish reasonable and standard procedures and forms consistent with this
chapter for the administration and implementation of the program.
(2) Evaluate all applications to determine their eligibility andtheir ranking based on
their score, and make recommendations thereon to the Authority.
(3) Determine the number ofusable development rights existing on each parcel subject
to an application.
(4) Where funding is made available for purchase, coordinate the preparation of
appraisals.
(5) Provide staff support to the Authority.
(6) Assure that the terms and conditions of all easements are monitored and complied
with by coordinating with each easement holder.
5. Authority; powers and duties.
A. Powers and duties. The Authority shall have the powers and duties to:
(1) Acquire and co-hold easements pursuant to the provisions of the ordinance.
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(2) Apply for and pursue grants, other funding, and gifts from the Virginia Land
Conservation Fund, state and federal agencies, and private persons and entities for the
purchase of easements.
(3) Promotetheprogram,incooperationwiththeprogramadministrator,byproviding
educational materials to the public and conducting informational meetings.
(4) Review the ranking of applications recommended by the program administrator
and make a determination as to whether an easement donation offer should be accepted
and, subject to funding availability, which, if any, conservation easements should be
purchased.
(5) Annuallyreviewtheprogram'seligibilityandrankingcriteriaandrecommendto
the Board of Supervisors any changes needed to maintain the program's consistency with
the comprehensive plan, or to imq~rove the adn>mistration, implementation and effectiveness
of the program.
(6) Take action to enforce compliance with terns of easements being co-held by the
Authority.
(7) ExercisearrypowersauthorizedbythePublicRecreationFacilitiesAuthoritiesAct.
6. Eligibility criteria.
In order for a parcel to be eligible for a conservation easement, it must meet the following criteria:
(i) the use of the parcel subject to the conservation easement must be consistent with the
comprehensive plan; (ii) the proposed terms ofthe conservation easement must be consistent with
the minimum conservation easement terms and conditions set forth in Section 8 (Easement Temps
and Conditions) and (iii) the parcel shall obtain at least fifteen (15) points under the ranking criteria.
s et forth under S ection 7 (Ranking Criteria) unless the Authority finds that it is in the best interest
of the County to waive this requirement.
7. Ranking criteria.
In order to effectuate the purposes of this chapter, parcels for which FCEP applications for
purchas e have been received shall be ranked according to the criteria and the point values assigned
thereto as set forth herein. Points shall be rounded to the first decimal (e.g. Under criteria A.1.,
a property with 740 feet of shared boundary with a park would receive 1 point for sharing a
boundary, plus 1.48 points for the length of the shared boundary, which when roundedto the first
decimal would be 1.5 points, for a total of 2.5 points for that criteria).
A. Open-space resources.
(1) The parcel adjoins an existing permanent conservation easement, anational, state
or local park. One (1) point, plus one (1) point for every five hundred (500) feet of shared
boundary.
(2) The number of usable development rights on the parcel as determined by the
Program Administrator based on the applicable Frederick County Zoning Ordinance
Regulations: one half (1/2) point per usable development right.
B. Threat of development.
(1) The parcel is zoned for a non agricultural use: three (3) points.
(2) The parcel is deemedto be threatened due to it's proximity to the County's Urban
Development Area or Sewer and Water Service Area boundary or to property that has
been developed for a non agricultural use within the last three years: two (2) points.
C. Natural, cultural, recreational, and scenic resources.
_ (1) The parcel adjoins a state maintained road: one (1) point for each five hundred
(500) feet ofroad frontage along a designated Virginia scenic highway or byway; (1) point
for each one thousand (1000) feet ofroad frontage on anon-designated public road.
(2) The parcel contains or fronts apublic trail or is identified as part of a planned trail
network, two (2) points; an adjoining parcel contains or fronts on a public trail or is
identified as part of a planned trail network: one (1) point.
(3) The parcel contains historic resources: Three (3) points if: (i) the parcel is within
or adjoins anational or state historic park or Civil War Battlefield; (ii) is listed on the state
ornationalregister ofhistoricplaces, or; (iii) is subjectto apermanent easement protecting
a historic resource. Two (2) point ifthe parcel contains, or adjoins a parcel containing a
historic structure identified by the Frederick County Rural Land Mark Survey or otherwise
documented as being over 100 years old. An additional one (1) point ifthe parcel contains
identified archaeological resources.
(4) The parcel is within a watershed or sub watershed identified as impaired on the
Virginia Department of Environmental Quality's Impaired Waters List: (3) points.
(5) The parcel fronts on a perennial stream as identified by the USGS 7.5 minute
series quad maps or other reliable source: one (1) point for every one thousand (1000)
linear feet of stream frontage.
(6) The parcel is within a sensitive groundwater recharging area as demonstrated by
the presence of sinkholes or karst topography: one (1) point.
(7) The parcel contains perennial springs or wetlands. One (1) point for each
occurrence.
D. For Farm or Forest land Protection
(1) The parcel contains "prime farm land" as identified by the 1987 USDA Soil
Survey of Frederick County onehalf(1/2)pointforeachl0acrescontainingsuchsoils,
for up to a total of five (5) points.
(2) The parcel is currently designated as part ofanAgricultural or Forestal district: four
(4) points. The parcel qualifies for landuse taxationunderthe provision for agricultural land
but is not in an Agricultural or Forestal District, three (3) points; the parcel qualifies for
land use taxation under the provision for forestal land but is not in an Agricultural or
~_ Forestal District two (2) point.
(3) The parcel has an approved Nutrient Management Plan and/or employs
agricultural best management practices as approved by the Lord Fairfax Soil and Water
Conservation District or Natural Resources Conservation Service: one (1) point
(4) The property owner can document that he/she has in place a conservation plan or
participates in arecognized programthatrestores and/orprotects streamchannels, ripirian
zones, and wetlands: one (1) point.
E. Fund leveraging.
(1) Non-local government funding has been identifiedto leverage the purchase ofthe
conservation easement: one (1) point for each ten (10) percent ofthe total purchase price
forwhich those funds canbe applied. Donation of all or aportion ofthe easement bythe
owner shall be considered fund leveraging and points awarded at the same rate.
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8. Easement terms and conditions.
Each conservation easement shall conformwith the requirements oftheOpen-Space Land Act and
ofthisordinance. ThedeedofeasementshallbeinaformapprovedbytheCountyAttorney,and
shall contain, at a minimum, the following provisions:
A. Restrictions. In addition to the foregoing, the parcel shall be subject to standard
restrictions contained in conservation easements pertaining to uses and activities allowed onthe
parcel. These standard restrictions shall be delineated in the deed of easement and may include,
but not necessarily be limited to,restrictions pertaining to: (i) the accumulation oftrash and junk;
(ii) the display ofbillboards, signs and advertisements; (iu) the management of forest resources; (iv)
grading, blasting or earth removal; (v) the number of new dwellings and the number and size of
outbuildings and farmbuildings or structures; (vi) the conduct ofindustrial or commercial activities
on the parcel; and (vii) monitoring of the easement.
B. Designation of easement holders. The Authority and the Frederick County Board of
Supervisors shall bethe co-holders of all easements acquired under this program. The Authority
shall seek one or more public bodies, as defined in Virginia Code § 10.1-1700, or private holder,
as defined in Virginia Code § 10.1-1009, to be additional co-holders in the deed of easement or
added by the Board of Supervisors andtheAuthority later, unless the Authority finds additional co-
holders to be not feasible or not advisable.
9. Application and evaluation procedure.
Each application for a conservation easement shall be processed as follows:
A. Application materials to be provided to owner. The application materials provided by
the program administrator to an owner shall include, at a minimum, a standard application form,
a sample deed of easement, and information about the FCEP program.
B. Application form. Each application shall be submitted on a standard form prepared by
theprogramadministrator. The application formshallrequire,ataminimum,thattheowner:(i)
provide the name and address of all owners of the parcel, (ii) the acreage of the parcel, (iiz) the
tax map and parcel number, (iv) the zoning designation of the parcel, (v) permission for the
program administrator to enter the property after reasonable notice to the owner to evaluate the
parcel and for the County's assessor or an independent appraiser to appraise the property (vi)
identification of all lien holders on the parcel, including without limitation, holders of deed oftrust
liens and judgement liens and (vii) identifywhether it is their desire to donate or sell an easement.
The application formshall also include a space for an owner to indicate that whether he volunteers
to have his parcel be subject to greater restrictions than those contained in the standard sample
deed of easement, and to state those voluntary, additional restrictions.
C. Submittal of application. Applications shall be submitted to the office of the program
administrator. An application may be submitted at any time. However, applications involving an
easement purchase received after June 1 shall be evaluated in the following fiscal year.
D. Evaluation byprogram administrator. The programadministrator shall evaluate each
complete application received and determine whether the parcel satisfies the eligibility criteria set
forth in Section 6 and shall make recommendations thereon to the Authority.
E. Evaluation by Authority. The FCEP shall review the list of parcels submitted by the
program administrator and identify on which pazcels, if any, it desires conservation easements.
F. BoardofSupervisorsApproval.TheProgramAdministratorshallforwazdtotheBoazd
of Supervisors for their review and approval, any parcel which is located within the bounds of the
County's Sewer and Water Service Area or Urban Development Area, prior to the Authority
pursuing acquisition of an easement.
G. Application. An owner of a parcel not selected by the Authority for purchase or
acceptance of a conservation easement may reapply in any future year.
10. Acceptance of Easements.
Upon approval of an easement by the Authority pursuant to the terms of this ordinance, the
proposed easement shallbe forwazdedto the Board of5upervisors for its approval. No easement
shall be accepted unless approved by both the Authority and the Board of Supervisors. Upon
approval by the Authority and the Board of Supervisors, and by any additional co-holder if
applicable, the deed of easement shall be executed by all parties and recorded in the Frederick
County land records. Nothing in this chapter shall obligate the Authority to purchase or
accept a conservation easement on any property.
11. Purchase of conservation easement.
Should the Authority desire to purchase an easement, the following procedures shall apply.
A. Identification of initial pool. For applications received under Section 9, in which the
owner has indicated a desire to sell an easement, the program administrator shall determine the
number ofpoints to be attributed to each pazcelby applying the criteria set forth in section 7. The
program administrator shall rank each parcel scoring at least fifteen (15) points with the parcel
scoring the most points being the highest ranked and descending therefrom. The program
administrator shall submit the list of ranked parcels to the Authority. The Authority shall
designate the initial pool ofparcels identified for conservation easements to be purchased The
purchase price may besupplemented bynon-county funding as discussed in Section 7 (E) above.
The size ofthe pool shall be based upon the funds available for easement purchases in the current
fiscal year.
B. Additional application information required byprogram administrator. The program
administrator may require an owner to provide additional information deemed necessary to
determine: (i) whether the proposed easement is eligible for purchase; and (u) the purchase price
of such easement.
C. Appraisal of conservation easement value. Each conservation easement identified by
the Authority to be purchased shall be appraised either by the County's assessor or by an
independent qualified appraiser chosen by the Authority. Each completed appraisal shall be
submitted to the programadministrator and the owner. The program administrator shall forward
each appraisal to the Authority, which shall review each appraisal.
D. Invitation of offer to sell. The Authority shall invite the owner of each parcel included
in the initial pool of conservation easements to submit an offer to sellto theAuthority a conservation
`~ easementonthatparcel,subjecttothetermsandconditionsofaproposeddeedofeasement. The
invitation to sell shall be in writing and shall include the desired purchase price, the proposed deed
of easement, and the date by which awritten offer must be received by the program administrator
in order to be considered. The invitation may contain an offer form to be returned if the owner
desires to sell a conservation easement.
E. Offer to sell. Each owner who desires to sell a conservation easement shall submit a
written offer that must be received by the program administrator by the date contained in the
invitation to offer to sell. The offer should include a statement that substantially states the following:
"iThe owner) offers to sell a conservation easement to the Authority for the sum of urchase
rice , subject to the terms and conditions set forth in the proposed deed of easement enclosed
with the invitation to offer." Nothing in this chapter shall compel an owner to submit an offer to sell.
F. Acceptance. Nothing in this chapter requires the Authority to accept an offer to sell a
conservation easement.
G. Offers not made; offers not accepted; invitation to other owners. If an owner invited
to submit an offer elects not to do so, or ifhis offer to sell is not accepted by Authority, then the
Authority may send an invitation to offer to sell to other owners on the list.
H. Costs. Ifthe Authority accepts an offer to sell a conservation easement, the Authority may
pay all costs, including environmental site assessments, surveys, recording costs, grantor's tax, if
any,andotherchargesassociatedwithclosing. Provided,however,theAuthorityshallnotpay
fees incurred for independent appraisals or legal, financial, or other advice, or fees in connection
with the release and subordination. of liens to the easement purchased by the Authority.
I. Application. An owner forwhoseparcel a conservation easement is not purchasedmay
reapply in any future year.
J. Special Consideration. The Authorityshallgivespecialconsiderationandtakeimmediate
action to review applications in the special case where private funding is available to cover one
hundred (100) percent of the cost of the purchase, or the owner is willing to donate the
conservation easement at no cost to the county, provided that such parcel meet the eligibility
requirements of this ordinance.
12. Program funding.
The FCEP programmay, but is not required to, be funded annually by the Board of Supervisors
in the County budget or by special appropriation. 'The Authority shall endeavor to seek funds from
federal, state and private sources to effectuate the purposes of this chapter. Nothing in this
- chapter shall require the Board of Supervisors to fund this program.
COUNTY of FREDERICK
MEMORANDUM
TO: Board of Supervisors
FROM: Kris C. Tierney, Assistant County Administrator/"'
RE: Conservation Easement Authority and Program `~
DATE: August 17, 2005
Kris C. Tierney
Assistant County Administrator
540/665-5666
Fax 540/667-0370
E-mail:
ktierney @co.frederick.va.us
Attached are two resolutions whichwould, l) establish the proposed Conservation Easement Program and
2) create an Easement Authority to oversee and administer the proposedprogram This resolution quite
simply sets out the title, intent and membership of the Easement Authority.
If adopted, the Easement Program would establish a mechanism for the County to accept donated
easements on land which the Easement Authority and the Board of Supervisors have determined to be of
conservation value to the County. Once an easement is inplace itwouldprotubit certain activities outright,
and strictly limit the potential for commercial or residential development on the eased property. The
proposed Ordinance also contains provisions that would enable the Board of Supervisors, at some point
in the future, to provide funding for the programsuch that landowners might receive compensation from
the County for the value of an easement they voluntarily grant to the County.
Please let me know if I can answer any questions.
C ~Documeuts and 9ettingsVETMy Documenfsl&~ard of SupervisorsVteaolutious\easementpmpam&xu$otltyco~umemo.wpd
107 North Kent Street Winchester, Virginia 22601