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CEA 03-27-08 Meeting AgendaCOUNTY of FREDERICK Department of Planning and Development - 540/665-5651 FAX: 540/665-6395 MEMORANDUM TO: Conservation Easement Authority FROM: Amber Powers, Planning Technicianky RE: March Meeting DATE: March 20, 2008 The Frederick County Conservation Easement Authority will be meeting on Thursday, March 27, 2008 at 8:00 a.m. in the Board of Supervisor's 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. February 2008 Minutes. 2. PDR Update. 3. CEA Current Funds Total: $3,340 4. Clarke County Conflict of Interest Policy Opinion Update. 5. 2008 Comprehensive Plan must be ready by June. 6. Selecting Dates for spring and summer events & set workgroup meeting times. 7. Bylaws. 8. April 5t" Conservation Course, with update of the County's PDR program. 9. 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 February 28, 2008 at 8:00 a.m. PRESENT: Jim Lawrence; John Gavitt; Todd Lodge; Cordell Watt; Ritchie Wilkins, Vice - Chairman; and Diane Kearns, Chairman ABSENT: Phil Glaize; John Marker, C. Robert Solenberger; and Gene Fisher, Board of Supervisors Liaison STAFF PRESENT: Amber Powers, Planning Technician and Diane Walsh OTHERS PRESENT: Seth Coffman, Potomac Conservancy PUBLIC MEETING: Item 1 - Minutes and Agenda The minutes of the January 10, 2008 meeting was approved as presented. Item 2 - PDR Update It was announced that Frederick County has received a $265,000.00 grant from the State of Virginia and it has 60 days to respond. The State has provided a template that will need to be followed. Amber will make copies and provide it to the CEA Members for their review to get a better understanding what needs to be done. It was discussed at length the best way to advertise the PDR Program. Possibilities were to work with VCC, the Potomac Conservancy and the Battlefield Foundation. It was also discussed as to where CEA can get the matching funds. CEA will need to meet with the Board of Supervisors to Iet them know how they plan to match it and get their approval. Item 3 - Conservation Easement Updates None Item 4 - Conflict of Interest Policy Opinion Update The group would prefer to have some type of summary rather than a 50 to 60 page document to go by. Chairman Kerns asked Amber to contact Clarke County to see how they handle the Conflict of Interest Policy and provide feedback at the next meeting. Item S - Brief Update from the Potomac Conservancy by Seth Seth Coffman from the Potomac Conservancy spoke about helping and partnering with the CEA to promote workshops, etc. He also provided the members with handouts for the Forest & Farmland Conservation Strategies which will be held on Saturday, April 5, 2008 at the Lord Fairfax Community College. Item 6 - Charrett/Discussion of Target Areas for Preservation and Outreach Amber provided maps to be reviewed which showed the location of prime agricultural soils, landmarks listed on the National Registry of Historic Places, and the locations of parcels still large enough to be considered for protection by state and/or local conservation organizations. There was a short discussion about possible additions but overall the members were pleased with what had been put together. Item 7 - Bylaws Review/Revision Chairman Kearns asked the members if there was a motion to approve the Bylaws. Mr. Lawrence made the motion to approve but no one seconded it and a discussion ensued. The members will review the revisions and will vote on them at the next meeting. Item 8 - Review Design Ideas for Plaque/Sign Program, and Form a Workgroup Chairman Kearns announced that she would like to see the CEA form some type of Plaque/Sign Program to recognize the people which have done easements and to set up a workgroup to look into this. Amber will provide a listing of the people who have donated and the amount they have donated for the members so they have some idea the dollar amount they have to work with. It was decided at this time to put this program on hold. Item 9 - Event PIanning Workgroup for Spring and Summer Events Chairman Kearns announced that VCC would be passing through the area on March 19th and wondered if anyone would be interested in meeting them for coffee on March 19th. She also announced that United Land Trust would be having a meeting in Staunton, Virginia on June 11 — 13. There will be a banquet at that meeting on June 12 if anyone would be interested in attending. Jim Lawrence suggested that the CEA may want to set up a "Green Infrastructure Planning Workshop" for Stakeholders & Decision Makers. Amber passed out a listing of different items to think about for fundraising and advertising. The members will review the handout and discuss it at the next meeting. Item 10 - Review latest draft of CEA contribution to the 2008 Comprehensive Plan The group was not happy with the revisions which were made to the latest draft of the CEA portion to the 2008 Comprehensive Plan. Chairman Kearns asked if anyone would be interested in being on a subcommittee to review the latest draft of the CEA contribution for the 2008 Comprehensive Plan and provided comments. Jim Lawrence and John Gavitt said they would like to be on the subcommittee along with Chairman Kern and Amber Powers. Item 11- Next Meeting The next meeting will be on March 27, 2008 at 8:00 a.m. ADJOURNMENT There being no further business to discuss, the meeting adjourned at 9:40 a.m. 0) Respectfully submitted, Diane Kearns, Chairman Eric R. Lawrence, Secretary PDR Intergovernmental Agreement Overview The County has been awarded $265,000 in state matching funds for the "local protection of agricultural land" through the purchase of development rights. To accept the funds, it must sign the contract by April 25, and must set aside in a separate account, $265,000 within 30 days of signing the agreement. (Cannot be an earmark, must be an actual account with full amount dedicated to the program.) UItimately, the county's contribution doesn't have to come from this account. It can use donations, proffers and any other funds that the County has on hand. It is still not clear whether federal grants could be used to meet the County's snatching requirements, but the prospect of securing grant money in time for specific acquisitions is unlikely anyways. (The County could seek grant money to help recoup costs after the fact.) The county can only be reimbursed for funds actually spent. (We will need to submit canceled checks to verify.) Funds that qualify for reimbursement include: • Actual purchase price (not the value) • Cost of title insurance • Cost of one appraisal of the land • Cost of one physical survey of the property's boundaries (not the baseline survey) • Attorney Fees • Public Hearing advertisement costs We can arrange to have the state provide its matching funds upfront. The County would need the Grant Manager's approval to assign the interest in its easement program to the CEA. (Should not be a problem.) The County cannot assign all or even part of its interest in an easement to a private organization like the Potomac Conservancy. (That means that they can't take on legal responsibility for the development rights, although we could work with them unofficially.) If the County does give control of an casement to another organization, the amount given by the state through the program would need to be returned. Finance Committee will review the LEA's request for this allocation at their April meeting. The CEA will then need to get the Board of Supervisors Approval at the April 23 meeting, and sign the contract by the 25th of April. INTERGOVERNMENTAL AGREEMENT Between Virginia Department of Agriculture and Consumer Services and Frederick County This INTERGOVERNMENTAL AGREEMENT is entered into this 26"' day off February, 2008, in the City of Richmond, Virginia, between the Virginia Department of Agriculture and Consumer Services ("VDACS") and Frederick County (collectively, "the parties") to provide mutually advantageous terms for cooperation between VDACS and Frederick County to implement VDACS' contribution of funds during the fiscal year ending June 30, 2008 in support of Frederick County's purchase of agricultural conservation easements. WHEREAS, the General Assembly, by Chapter 847 of the 2007 Acts of Assembly, has appropriated $4.25 million to VDACS for the establishment of a state fund to match local government purchase of development rights program funds for the preservation of working fauns and forest lands; and, WHEREAS, § 3.1-18.10 of the Code of Virginia authorizes VDACS' Office of Farmland Preservation to develop methods and sources of revenue for allocating funds to localities to purchase agricultural conservation easements; and, WHEREAS, for all purposes of this INTERGOVERNMENTAL AGREEMENT, the terra "agricultural conservation casement" shall mean a negative easement that has the primary conservation purpose of preserving working farm and/or forest land; and, WHEREAS, the Frederick County Board of Supervisors has enacted an ordinance or passed a resolution that: authorizes, in accordance with Title 10. 1, Chapter 17 of the Code of Virginia ("the Open -Space Land Act") and other applicable law, Frederick County to purchase agricultural conservation easements from landowners (each hereinafter called "Grantor"); sets forth a clear, consistent, and equitable administrative process governing such purchases; and outlines the goals and purposes of Frederick County's farmland preservation program; and, WHEREAS, Frederick County has agreed to maintain a public outreach program designed to educate various stakeholders in Frederick County --including farmers, landowners, public officials, and the non -farming public—about Frederick County's initiatives to preserve working farms and forest lands; and, WHEREAS, Frederick County has agreed to establish a transparent and replicable process for valuation of agricultural conservation easements; and, WHEREAS, the purchase of agricultural conservation easements is one component of Frederick County's broader farmland preservation program; and, WHEREAS, Frederick County has agreed to use a deed of easement that is sufficiently flexible to allow for future agricultural production in purchases of agricultural conservation easements for which Frederick County uses funds contributed to it by VDACS; and, WHEREAS, Frederick County has agreed to establish a clear strategy for monitoring and enforcing the terms of the agricultural conservation casements that Frederick County purchases; and, WHEREAS, Frederick County has agreed to establish a process that Frederick County will use to evaluate the effectiveness of its farmland preservation program, including a protocol for making changes to Frederick County's agricultural conservation efforts based on such evaluations; and, WHEREAS, VDACS, in reliance on the veracity of the foregoing recitals, certifies Frederick County is eligible to receive contributions of funds from VDACS in reimbursement for certain costs Frederick County incurs in the course of purchasing agricultural conservation easements; and, WHEREAS, Frederick County, and the agents and employees of Frederick County, in the performance of this INTERGOVERNMENTAL AGREEMENT, are acting on behalf of Frederick County, and not as officers or employees or agents of the Commonwealth of Virginia; NOW, THEREFORE, VDACS and Frederick County agree their respective responsibilities, pursuant to this INTERGOVERNMENTAL AGREEMENT, shall be defined as follows: VDACS Responsibilities a. VDACS shall, within thirty (30) days of the date of execution of this INTERGOVERNMENTAL AGREEMENT, restrict $265,000 (hereinafter "the allocation amount') in an account, from which VDACS shall withdraw funds only to pay contributions of funds that Frederick County is eligible to receive pursuant to this INTERGOVERNMENTAL AGREEMENT, except that upon the expiration of two (2) years from the date of this INTERGOVERNMENTAL AGREEMENT, or immediately upon Frederick County's failure to perform any of its obligations under the terms of this INTERGOVERNMENTAL AGREEMENT, VDACS shall have the right to withdraw any funds then remaining in such account and the right to redirect those funds to other localities that VDACS certifies as being eligible to receive matching funds and that enter into an intergovernmental agreement with VDACS to govern the distribution of matching funds for the purchase of agricultural conservation easements. b. Upon Frederick County's recordation of a deed evidencing Frederick County's purchase of an agricultural conservation easement in the circuit court of the city or county where the Grantor's land is located and Frederick County's submission to VDACS of a completed claim for reimbursement, on a form prescribed by VDACS, together with the supporting documentation required under paragraph 2(e) of this INTERGOVERNMENTAL AGREEMENT, VDACS shall reimburse Frederick County fifty percent (50%) of the reimbursable costs that Frederick County actually incurred in the course of purchasing that agricultural conservation easement, limited to that portion of the allocation amount remaining in the account maintained by VDACS pursuant to paragraph 1(a) of this INTERGOVERNMENTAL AGREEMENT. VDACS may make alternative arrangements for the distribution of funds pursuant to this INTERGOVERNMENTAL AGREEMENT, provided Frederick County presents a written request for such alternative arrangement to the Commissioner of VDACS or the Comrrlissioner's designated agent (referred collectively hereinafter as "the Grant Manager") prior to incurring any expense for which Frederick County seeks a distribution of funds under the proposed alternative arrangement. For purposes of this INTERGOVERN1vlENTAI. AGREEMENT, "reimbursable costs" include: The purchase price of the agricultural conservation easement, at present value, including any portion that Frederick County will pay over time pursuant to an installment purchase agreement; The cost of title insurance; The cost of one appraisal of the land upon which Frederick County purchases an agricultural conservation easement; V, 4. The cost of one survey of the physical boundaries of the land upon which Frederick County purchases an agricultural conservation easement, but not the cost of producing a baseline report of the conditions existing on the land at the time of the conveyance of the agricultural conservation easement; Reasonable attorney fees associated with the purchase of an agricultural conservation easement; and 6. The cost of issuing public hearing notices associated with Frederick County's purchase of an agricultural conservation easement that Frederick County is required by law to issue. VDACS shall only be responsible for reimbursing Frederick County under paragraph I (b) of this INTERGOVERNMENTAL AGREEMENT for reimbursable costs that Frederick County actually incurs in the course of purchasing an agricultural conservation easement when Frederick County acquires, by such purchase, a deed of easement that, at a minimum, provides: The primary conservation purpose of the easement conveyed by the deed of easement is the conservation of the land for agricultural and/or forestal uses. 2. The Grantor and Frederick County agree that the land subject to the agricultural conservation easement shall not be converted or diverted, as the Open -Space Land Act employs those terms, until and unless the Grant Manager, with the concurrence of Frederick County or an assignee of Frederick County's interest in the agricultural conservation easement, certifies that such conversion or diversion satisfies the requirements of the Open - Space Land Act. The Grantor and Frederick County agree that, in the event of an extinguishment of the restrictions of the agricultural conservation easement that results in the receipt of monetary proceeds by Frederick County or an assignee of Frederick County's interest in an agricultural conservation easement in compensation for the loss of such property interest, VDACS shall be entitled to a share of those proceeds proportional to VDACS's contribution toward the total reimbursable cost of acquiring the agricultural conservation easement. 4. If the Grantor conveys the agricultural conservation easement for less than its fair market value, the Grantor and Frederick County mutually acknowledge that approval of the terms of this Deed of Easement by VDACS and/or its legal counsel does not constitute a warranty or other representation as to the Grantor's qualification for any exemption, deduction, or credit against the Grantor's liability for the payment of any taxes under any provision of federal or state law. All mortgagors and other holders of liens on the property subject to the restrictions contained in the deed of easement have subordinated their respective liens to the restrictions of the deed of easement acquired by Frederick County. All such mortgagors and other holders of liens shall manifest their assent to the easement's priority over their respective liens by endorsing the deed of easement. 3 2. Frederick County Responsibilities a. Frederick County sball, within thirty (30) days of the date of execution of this INTERGOVERNMENTAL AGREEMENT, appropriate funds equal to the allocation amount for the purpose of purchasing agricultural conservation easements. b. Frederick County shall use matching funds that VDACS contributes to Frederick County, pursuant to this INTERGOVERNMENTAL AGREEMENT, only for the purpose of purchasing agricultural. conservation easements that are perpetual and that have the primary conservation purpose of preserving working farm and forest lands. c. Within one (1) year from the date of this INTERGOVERNMENTAL AGREEMENT, and for each subsequent year in which the INTERGOVERNMENTAL AGREEMENT or a subsequent agreement is in force, Frederick County shall submit to VDACS a progress report that: describes any properties that Frederick County has identified as prospects for Frederick County's purchase of agricultural conservation easements and the status of any negotiations for the purchase of such agricultural conservation easements; 2. estimates the timeframes within which Frederick County will execute contracts for any such purchases, close on such purchases, and request reimbursement of reimbursable costs for those purchases from VDACS; 3. describes the measures Frederick County has undertaken to develop and/or maintain a public outreach program designed to educate various stakeholders in Frederick County's community—including farmers, landowners, public officials, and the non -farming public -- about Frederick County's agricultural conservation easement program and other initiatives to preserve working agricultural land; 4. describes the measures Frederick County has undertaken to develop and/or maintain a formal plan for stewardship and monitoring of the working agricultural land on which Frederick County acquires agricultural conservation easements; and describes the measures Frederick County has undertaken to develop and/or maintain a process that Frederick County will use to evaluate the effectiveness of its program, including a protocol for making changes to. Frederick County's agricultural conservation efforts based on such evaluations d. For any purchase of agricultural conservation easements for which Frederick County requests reimbursement from VDACS pursuant to this INTERGOVERNMENTAL AGREEMENT, Frederick County shall obtain a policy of title insurance on its purchased interest that covers at least an amount equal to the amount for which Frederick County requests reimbursement from VDACS. Prior to closing on a purchase of an agricultural conservation easement for which Frederick County requests reimbursement from VDACS pursuant to this INTERGOVERNMENTAL AGREEMENT, Frederick County shall submit, for review and approval by VDACS and its legal counsel, the following documentation: a fully executed contract for the sale of the agricultural conservation easement; 2. any installment purchase agreement; 4 3. the deed of easement that the Grantor will deliver to Frederick County at closing; 4. a title insurance commitment for a policy to insure the easement interest under contract indicating an amount of coverage at least equal to the amount of funds for which Frederick County requests reimbursement from VDACS; and an itemized list of all reimbursable costs that Frederick County has or will, up to the time of closing, incur in the course of purchasing the agricultural conservation easement. Frederick County shall make whatever changes to the proposed deed of easement and/or the installment purchase agreement, where applicable, that VDACS and/or its legal counsel deem necessary to ensure compliance with applicable state law and the requirements and purposes of this INTERGOVERNMENTAL AGREEMENT. Frederick County may fulfill its obligation under this paragraph by submitting accurate and complete copies of all documents enumerated in this paragraph, provided that Frederick County shall deliver or make available the original documents to VDACS for review at VDACS' request. f. Together with any claim for reimbursement pursuant to this INTERGOVERNMENTAL AGREEMENT that Frederick County submits to VDACS, Frederick County shall also submit the following supporting documentation: a copy of the recorded deed of easement that VDACS and/or its legal counsel approved prior to closing, showing the locality, deed book, page of recordation, and purchase price; and copies of invoices, bills of sale, and cancelled checks evidencing Frederick County's incursion of reimbursable costs in the course of purchasing the agricultural conservation easement; and a copy of any executed installment purchase agreement related to the purchase; and 4. a copy of any deed of trust related to the purchase. g. Frederick County shall provide the Grant Manager immediate written notice of Frederick County's receipt of any application or proposal for the conversion or diversion of the use of any land upon which Frederick County or its assignee, where applicable, holds an agricultural conservation easement, for the purchase of which VDACS contributed funds pursuant to this INTERGOVERNMENTAL AGREEMENT. h. Frederick County, or any assignee of Frederick County's interest in an agricultural conservation easement for which Frederick County receives a contribution from VDACS pursuant to this INTERGOVERNMENTAL AGREEMENT shall at all times enforce the terms of that easement. Frederick County shall provide the Grant Manager immediate written notice of any actions, whether at law, in equity, or otherwise, taken by locality to enforce the terms of the easement or to abate, prevent, or enjoin any violation thereof by any party. Any failure by Frederick County or such assignee to perform its enforcement responsibility shall constitute a breach of this INTERGOVERNMENTAL AGREEMENT, for which VDACS shall have a remedy by way of a civil action for specific performance of that enforcement responsibility; or, VDACS shall have the right and authority, at its option, to demand and receive from Frederick County a portion of the full market value of the agricultural conservation easement at the time of the breach in proportion to the amount VDACS contributed to Frederick County's A purchase of the agricultural conservation easement relative to the full market value of the agricultural conservation easement at the time of the purchase. For any purchase of an agricultural conservation easement for which Frederick County requests reimbursement from VDACS pursuant to this INTERGOVERNMENTAL AGREEMENT, Frederick County shall derive its valuation of the agricultural conservation easement according to the valuation methods prescribed by ordinance or resolution. 3. Recertification This INTERGOVERNMENTAL AGREEMENT pertains exclusively to VDACS's contribution of funds that the General Assembly has appropriated to VDACS for the fiscal years ending lune 30, 2007 and June 30, 2008. VDACS shall not contribute other funds in the fiiture to Frederick County except upon VDACS's recertification of Frederick County's eligibility to receive such funds. VDACS may establish and communicate to Frederick County certain benclunarks of program development that VDACS will impose upon Frederick County as preconditions to Frederick County's recertification for future contributions. 4. Governing Law This INTERGOVERNMENTAL AGREEMENT is governed by and shall be interpreted in accordance with the laws of the Commonwealth of Virginia. In all actions undertaken pursuant to this INTERGOVERNMENTAL AGREEMENT, preferred venue shall be in the City of Richmond, Virginia, at the option of VDACS. Assignment Frederick County shall not assign this INTERGOVERNMENTAL AGREEMENT, either in whole or in part, or any interest in an agricultural conservation easement for the purchase of which VDACS contributes funds pursuant to this INTERGOVERNMENTAL AGREEMENT, without the prior, written approval of the Grant Manager. 6. Modifications The parties shall not amend this INTERGOVERNMENTAL AGREEMENT, except by their mutual, written consent. Severability In the event that any provision of this INTERGOVERNMENTAL AGREEMENT is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this INTERGOVERNMENTAL AGREEMENT have force and effect and shall not be affected thereby. In witness, whereof, the parties hereto have executed this INTERGOVERNMENTAL AGREEMENT as of the day and year first written above. 1(�)- - &--� zzG,�g Todd P. Nayki&M bat -e Commissioner Virginia Department of Agriculture & Consumer Services APPROVED AS TO FORM ONLY: Assistant Attorney General Date John R. Riley, Jr. County Administrator APPROVED AS TO FORM ONLY: County Attorney Date Date F