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CEA 12-04-08 Meeting AgendaCOUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/665-6395 LVJI.E MORA D l.J TO: Conservation Easement Authority FROM: Amber Powers . r,-- RE: ,i RE: December Meeting DATE: November 24, 2008 The Frederick County Conservation Easement Authority will be meeting on Thursday, December 4, 2008 at 8:00 a.m. in the Board of Supervisor's Executive Session Meeting Room in the County Administration Building, 107 North Kent Street, Winchester, Virginia. The Conservation Easement Authority will discuss the following agenda items: AGENDA 1. October 2008 Minutes 2. Finance Committee's approval of the CFA's request to roll $265,000 appropriation over to FY2009 3. PDR Easement Applications Due December 31�' 4. Snapp Easement update & MOU review 5. local Easement Activity Updates 6. Other. Please contact the Planning Department (665-5651) if you are unable to attend this meeting. ALP/bad Attachments 107 North Kent Street, Suite 202 - Winchester, Virginia 22601-5000 --DRAFT-- MEETING MINUTES OF THE FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY Held in the Executive Session Room of the Frederick County Administration Building at 107 North Kent Street in Winchester, Virginia on October 23, 2008 at 8:00 a.m. PRESENT: Diane Kearns, Chairman; Jim Lawrence, Treasurer; Robert Solenberger; John Marker; Todd Lodge; Gene Fisher, Board of Supervisors Liaison; and John Gavitt. ABSENT: Cordell Watt, Planning Commission Liaison; Ritchie Wilkins, Vice -Chairman. STAFF PRESENT: Amber Powers, Planner I; and Eric Lawrence, Planning. Director. PUBLIC MEETING: The meeting began at 8:00 am. On motion by Mr. Solenberger and seconded by Mr. Gavitt, the August 28, 2008 minutes and the September 25, 2008 minutes were approved. Regarding the Snapp easement process, Ms. Kerns stated that we need to understand the restrictions. Ms. Kerns further stated that the first restriction is no division, so it cannot be subdivided at all. Another restriction is that one single family residence, not to exceed 3,000 square feet and sitting on an area no larger than two acres in size, may be built. The actual situation of that residence will have to be approved by the Grantees. Farm buildings or structures are allowed as long as they are under 4,000 square feet. It it's more than 4,000 square feet, they have to have approval. Private roads — roads with permeable surfaces are permitted. The collective footprint of all the buildings and structures on the property, excluding the roads, shall not exceed 1% of the total area of the property. Industrial and commercial activities are prohibited, except for agriculture and livestock, equine and forestry small- scale activities. Processing and sales of products produced on the property is permitted as long as no additional buildings are required. Temporary or seasonal outdoor activities that do not permanently alter the physical appearance of the property and that do not diminish the conservation value are protected. Activities that can be and, in fact, are conducted within permitted buildings without alterations to the external appearance, are allowed. Temporary outdoor activities involving 100 or more people shall not exceed seven consecutive days in a 90 day period without written approval. There were more conditions involved that Ms. Kearns summarized. There was discussion concerning grantee approval. Ms. Kearns stated that according to the application, approval by the Potomac Conservancy shall be deemed representative approval from all grantees unless such approval expressly states otherwise or Virginia Outdoors Foundation or the United States Government expressly denies grantor's request for approval within a reasonable time. What this basically means is Potomac Conservancy takes the lead on this. Ms. Kearns stated that the MOU will contain what is specific to what is being talked about now and we will work with Potomac Conservancy if any changes are needed. Also in the MOU, there should be a stewardship fund in case there is 1 enforcement activity that's needed. The question has come up as to whether the County will require money set aside by the Finance Committee. If that happens, it needs to be spelled out. Ms. Kearns believes it may not need to be spelled out in the MOU yet because Potomac Conservancy is taking the primary lead, but it would be a good idea if the CEA could have a stewardship fund. Mr. Gavitt thinks this is a decision by the Board of Supervisors but would we get free attorney help. Do we need a fluid or would there be something within an MOU, or some level of understanding, that in case of a violation the County would be equally responsible for enforcing the easement. Mr. Gavitt isn't sure a fund needs to be set up but he is very focused on the fact that we need some kind of agreement that the County would do their equal process in this case. Mr. Lawrence stated that when you look at the easement and the benefits the CEA is looking for - like no subdivision, no houses - those things just by process are regulated in the Planning Department. So when you look at what aspects of the easement we would have to enforce, Mr. Lawrence suggests there is only a slim chance that we would have to have legal action. If they violate their forest management plan, that's something we would have to get legal enforcement on. Mr. Lawrence feels that 90% of the enforcement is going to be just on what the Planning Department does with property owners on a regular basis so we may not need to set up any fund. Mr. Fisher believes there are some bigger issues beyond just local issues. There are restrictions on power lines, gas lines, utility easements, and with these issues, you'll need legal assistance. Mr. Gavitt stated that would be a case of eminent domain, which they can't do unless the State takes eminent domain and says we're going to put in this power line. Mr. Fisher stated he understands, but the County needs to support this. Mr. Fisher believes there are some issues with the Easement Authority's authority and what they need Board authority from. He would hope that down the road the credibility of this Authority gets to the point that it assumes most of the responsibility and for some issues, doesn't need to go the Board. Mr. Fisher doesn't know that right now there needs to be some set-aside money on the accounting part of that. Ms. Powers stated that the average set-aside per easement for Potomac Conservancy is somewhere between $3,000 and $6,000 because of the fact that the County is already assuming a lot of those responsibilities in their day-to-day work. They probably don't even need that much. Ms. Kearns stated she doesn't believe any money will be coming from the County, but she would like to be able to say the CEA wants to start this type of fund with private donations. Ms. Kearns said she and Kelly Watkinson of the Potomac Conservancy will get together and come up with MOU language, which will be provided to CEA members by the next meeting. Ms. Kearns stated that she needs a consensus from members on the general ideas in the MOU — such as Potomac Conservancy will be the primary Grantee in monitoring and enforcement; they will be primary and we're backup. Mr. Gavitt suggested it be put in a more pro -active sense so there is a clear understanding that fiends for enforcement shall be the responsibility of each of the Grantees and they're not going to depend on the others for funds. 2 Mr. Gavitt stated he would like to speak with someone at the Baptist Retreat on Hunting Ridge Road about a possible easement, but he's been unable to contact anyone. Ms. Kearns stated that Winnie McKay Smith is doing a program at Blandy Farm and emailed the CEA members to attend; Ms. Kearns thinks it's a great idea for the CEA to participate. Mr. Gavitt recognized Ms. Kearns for all the work she does between meetings. He also thanked Ms. Powers for her contributions, as Ms. Powers will be leaving the Planning Department in mid-November. Ms. Kearns stated that the next regularly scheduled CEA meeting falls on Thanksgiving. It was decided that it will be held the following Thursday on December 4`h at 5;00 am. The December 4th meeting will be considered the November and December meeting. The meeting was adjourned. Diane Kearns, Chairman Amber Powers, Secretary C ITEM 2: Finance Committee's approval of the CEA's request to roll appropriation over to FY2009 The Finance Committee approved the CFA's request to extend this appropriation into FY 2009, but specified that these funds were not to be spent. One of the funding sources that the CEA originally proposed to the County as a possibly for the County's matching contribution was the open space proffers from the Red Bud residential development rezoning. When fully built, the development would provide for $310,000 in open space funds; however, to date, only $112,000 has been collected. The Board of Supervisors approved the use of these funds on November 12"' to assist in the acquisition of 209 acres of battlefield by the Shenandoah Valley Battlefields Foundation and the Civil War Preservation Trust. In 2005 the state government awarded the project a $1 million grant through the Virginia Land Conservation Foundation. Another $1.61million came from the CWPT, and the SVBF will provide $628,000. While excellent news, this does reaffirm the CEA's need to look elsewhere for matching funds. This will likely mean a concerted effort to expand the group's fundraising activities, or continued reliance on federal sources of grant funding. ITEM 3: PDR Easement Applications Due December 31" Members should note that December 31st is the due date for 2009 PDR applications, and that the next meeting will likely be devoted to reviewing and scoring any potential applications. As of November 24"', the office did not yet receive an application. Staff will contact all those who may have expressed interest in the program over the last several months. Members are asked to remind anyone they may know to be interested about the due date. Copies of the application and brochures will be at the meeting so that members can take a few with them if they choose. ITEM 4: Snapp Easement update & MOU review Since the October meeting, Diane Kearns and Kelly Watkinson have worked to finalize a draft MOU which is, at the time of this mailing, still under review by the County's Attorney. (A copy of the MOU is also attached.) Mr. Williams, the County Attorney, will submit any comments he has regarding the MOU and easement Contract around November 26'x'. If there are comments / or proposed changes, staff will email them as soon as they are received. (Copies will also be available at the meeting.) The CEA, via staff, has formally submitted a request to arrange for the State's contribution to be wired directly to the closing for the Snapp easement, and the County will need to request this again for any future easement closings. MEMORANDUM OF UNDERSTANDING BETWEEN POTOMAC CONSERVANCY -01 The Frederick County Easement Authority On this day of , 2008 PARTIES The parties to this cooperative agreement are the POTOMAC CONSERVANCY, a tax exempt land trust whose prime purpose is to protect the lands vital to the health, beauty and enjoyment of the Potomac River and its tributaries., having an address at 19 West Cork Street, Suite 201, Winchester, VA 22601, and THE FREDERICK COUNTY EASEMENT AUTHORITY, a (INSERT CO HOLDER DESCRIPTION AND MISSION), having an address at (INSERT CO -HOLDER ADDRESS). Working in partnership, the Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY can collectively improve the quality of stewardship and ensure legal defense of our co -held conservation easements in perpetuity. This Agreement is intended to clarify and set forth guidance for stewardship and enforcement activities regarding the co -holding of conservation easements between the Potomac Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY. The Potomac Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY agree to the following to reach mutually beneficial conservation goals. AGREEMENTS Stewardship Responsibilities: Potomac Conservancy will serve as the lead on all Stewardship responsibilities associated with the co - held conservation easements. Potomac Conservancy will serve as the primary contact with landowners in regards to all questions about their conservation easements, site visits, approvals and any potential violations. Potomac Conservancy will share information about site visits, approvals and potential violations with THE FREDERICK COUNTY EASEMENT AUTHORITY through phone calls, memos and copies of site visit reports. Potomac Conservancy will also share files with the US Internal Revenue Service, the State Treasurer, and the office of Attorney General as necessary. Potomac Conservancy will keep copies of all original documents and reports. More specifically the co -holders commit to the following: • Baseline Documentation: Potomac Conservancy will be responsible for the cost and development of the Baseline Documentation Report and will provide THE FREDERICK COUNTY EASEMENT AUTHORITY and the landowner with one identical copy each of this report. THE FREDERICK COUNTY EASEMENT AUTHORITY and the Conservancy will store the reports in a secure location and will not alter or change their contents in any way. Monitoring Visits: Potomac Conservancy will contact the landowner to schedule annual monitoring visits of the easement property. If THE FREDERICK COUNTY EASEMENT AUTHORITY NAME desires to join the Potomac Conservancy in yearly monitoring visits, we will work in good faith to accommodate the landowners, the Conservancy's and THE FREDERICK COUNTY EASEMENT AUTHORITY representative's schedules. After conducting a monitoring visit, the Conservancy will write a monitoring report and follow-up letter to the landowner, copies of which are to be kept on file according to Potomac Conservancy's record keeping policy. The Conservancy will provide a copy of the monitoring report and follow up letter to THE FREDERICK COUNTY EASEMENT AUTHORITY. • Record Keeping, Approvals and Landowner Correspondence: Potomac Conservancy will follow the provisions of its record keeping; policy when corresponding with landowners and THE FREDERICK COUNTY EASEMENT AUTHORITY and responding to requests for approvals, amendments or notifications. If the Conservation Easement requires the landowner to secure prior consent of the Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY before taking an action, the Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY will collaborate in good faith (and within any applicable time limits) to develop a response to the landowner's request for approval. THE FREDERICK COUNTY EASEMENT AUTHORITY and Conservancy will make every reasonable effort to develop a single, unified response; however, the Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY recognize that they have separate and equal rights to grant or deny consent, and if coordinating a unified response is not possible, they may respond independently to the landowner's request. The landowner must secure both THE FREDERICK COUNTY EASEMENT AUTHORITY and Conservancy's consent before taking any action requiring such consent. The Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY will provide to each other a copy of any correspondence received from or sent to the landowner related to the Conservation Easement. If such correspondence is a written notice or request for approval from the landowner, a copy must be provided within ten (10) days. Violations: Should a violation of the Conservation Easement occur, the Conservancy will follow its internal Violation Response Guideline and will collaborate in good faith with THE FREDERICK COUNTY EASEMENT AUTHORITY to develop a unified response to the violation. However, if the THE FREDERICK COUNTY EASEMENT AUTHORITY and Conservancy disagree as to whether a violation has occurred or are unable to develop a unified response to a violation, each expressly retains the right to enforce the terms of the Conservation Easement independently, notwithstanding the action or inaction of the other. Costs and Income Handling As the lead organization addressing stewardship responsibilities for our co -held conservation easements, Potomac Conservancy will conduct all monitoring work. Monitoring involves staff time, travel costs, and administrative costs associated with organizing site visits, property documentation updates and completing detailed reports. THE FREDERICK COUNTY EASEMENT AUTHORITY will be asked to contribute to the monitoring costs of this co -held conservation easements in either of the following ways: (a) A onetime Stewardship Gift for each conservation easement. This one time donation should be made to the Conservancy by the landowner and/or THE FREDERICK COUNTY EASEMENT AUTHORITY at closing or shortly thereafter. This gift will be deposited in Potomac Conservancy's stewardship endowment and will be used to cover the annual costs of monitoring and enforcement obligations. (b) Annual fee paid by THE FREDERICK COUNTY EASEMENT AUTHORITY to Potomac Conservancy. This fee will be used to cover monitoring and administrative costs for the year of particular co -held properties. If THE FREDERICK COUNTY EASEMENT AUTHORITY and the Conservancy jointly decide to proceed with litigation or a litigation alternative (including but not limited to arbitration) to enforce the terms of a co -held Easement, THE FREDERICK COUNTY EASEMENT AUTHORITY and the Conservancy will jointly finance said litigation or litigation alternative. If either THE FREDERICK COUNTY EASEMENT AUTHORITY or the Conservancy initiates litigation or a litigation alternative independently, the other party having in good faith determined that such action is not necessary to fully defend the easement, the litigating party will be solely responsible for costs incurred pursuant to that Iitigation. This Agreement becomes effective as of the date of signing, and continues indefinitely unless it is expressly terminated by any party via written notice to the other parties, or automatically terminates. The Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY may jointly modify or amend this agreement. Should any party go out of business, dissolve, or cease to exist as an entity, and no longer be able to hold or monitor the Conservation Easement, this agreement shall automatically terminate and all responsibilities under the Easement shall vest in the party or parties still in existence. The remaining party or parties shall notify the Landowner in a timely manner of such dissolution. This Agreement is not transferable and no privileges or responsibilities associated with this Agreement may be assigned to any person or interest not a party to this Agreement. Both co -holders agree to keep conservation easement grantor (referred to as landowner throughout document) information confidential and will not publish or distribute any information related to the purchase price, appraised value of the conservation easement or specific terms and restrictions of the easement deed without written permission of the Landowner. Landowner's names and property locations may be released with verbal permission of the landowner. This Agreement becomes effective as of the date of signing, and continues indefinitely unless it is expressly terminated by any party via written notice to the other parties, or automatically terminated. The Conservancy and THE FREDERICK COUNTY EASEMENT AUTHORITY may jointly modify or amend this agreement. Should any party go out of business, dissolve, or cease to exist as an entity, and no longer be able to hold or monitor the Conservation Easement, this agreement shall automatically terminate and all responsibilities under the Easement shall vest in the party or parties still in existence. The remaining party or parties shall notify the Landowner in a timely manner of such dissolution. This Agreement is not transferable and no privileges or responsibilities associated with this Agreement may be assigned to any person or interest not a party to this Agreement. This agreement is signed this day of ,20_ CO -HOLDING ORGNAIZATIONS Potomac Conservancy By: Title: THE FREDERICK. COUNTY AUTHORITY By: Title: EASEMENT