[HISTORY: Adopted by the Board of Supervisors
of the County of Frederick 8-24-2005. Amendments noted where applicable.]
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, and the
County's rural character. This chapter establishes a program which
will enable the County to 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.
The Frederick County Conservation Easement Program (FCEP) is established under the provisions of the 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.
The following definitions shall apply in the
interpretation and implementation of this chapter:
The Frederick County Conservation Easement Authority.
A nonpossessory interest in real property, whether easement
appurtenant or in gross, acquired through gift, purchase, devise or
bequest imposing limitations of affirmative obligations, the purpose
of which include retaining or protecting natural or open space values
of real 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 of real property.
The number of residential building lots that may be created
from the parent tract in a given zoning district per the Frederick
County Zoning and Subdivision regulations.[1]
The owner or owners of the freehold interest of the parcel.
The Director of Planning and Development.
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
of this chapter the term "parcel" shall include all parcels covered
by, or proposed to be covered by, the conservation easement.
The Director of Planning and Development, or
his designee, shall have the following powers and duties with respect
to the program:
A.
Establish reasonable and standard procedures and forms
consistent with this chapter for the administration and implementation
of the program.
B.
Evaluate all applications to determine their eligibility
and their ranking based on their score, and make recommendations thereon
to the Authority.
C.
Determine the number of usable development rights
existing on each parcel subject to an application.
D.
Where funding is made available for purchase, coordinate
the preparation of appraisals.
E.
Provide staff support to the Authority.
F.
Assure that the terms and conditions of all easements
are monitored and complied with by coordinating with each easement
holder.
The Authority shall have the powers and duties
to:
A.
Acquire and co-hold easements pursuant to the provisions
of this chapter.
B.
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.
C.
Promote the program, in cooperation with the program
administrator, by providing educational materials to the public and
conducting informational meetings.
D.
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.
E.
Annually review the program's eligibility and ranking
criteria and recommend to the Board of Supervisors any changes needed
to maintain the program's consistency with the comprehensive plan
or to improve the administration, implementation and effectiveness
of the program.
F.
Take action to enforce compliance with terms of easements
being co-held by the Authority.
G.
Exercise any powers authorized by the Public Recreation
Facilities Authorities Act.
In order for a parcel to be eligible for a conservation
easement, it must meet the following criteria:
In order to effectuate the purposes of this
chapter, parcels for which FCEP applications for purchase 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 Subsection 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 rounded to 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, a national, state or local park: one point, plus one point
for every 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: 1/2 point per usable
development right.
B.
Threat of development.
(1)
The parcel is zoned for a nonagricultural use: three
points.
(2)
The parcel is deemed to 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
nonagricultural use within the last three years: two points.
C.
Natural, cultural, recreational and scenic resources.
(1)
The parcel adjoins a state maintained road: one point
for each 500 feet of road frontage along a designated Virginia scenic
highway or byway; one point for each 1,000 feet of road frontage on
a nondesignated public road.
(2)
The parcel contains or fronts a public trail or is
identified as part of a planned trail network: two points; an adjoining
parcel contains or fronts on a public trail or is identified as part
of a planned trail network: one point.
(3)
The parcel contains historic resources:
(4)
The parcel is within a watershed or subwatershed identified
as impaired on the Virginia Department of Environmental Quality's
Impaired Waters List: three 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 point for every 1,000 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 point.
(7)
The parcel contains perennial springs or wetlands:
one point for each occurrence.
D.
Farm or forestland protection.
(1)
The parcel contains prime farm land as identified
by the 1987 USDA Soil Survey of Frederick County: 1/2 point for each
10 acres containing such soils, for up to a total of five points.
(2)
The parcel is currently designated as part of an agricultural
or forestal district: four points; The parcel qualifies for land use
taxation under the provision for agricultural land but is not in an
agricultural or forestal district: three points; the parcel qualifies
for land use taxation under the provision for forestal land but is
not in an agricultural or forestal district: two points.
(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 point.
(4)
The property owner can document that he/she has in
place a conservation plan or participates in a recognized program
that restores and/or protects stream channels, riparian zones and
wetlands: one point.
E.
Fund leveraging. Nonlocal government funding has been
identified to leverage the purchase of the conservation easement:
one point for each 10% of the total purchase price for which those
funds can be applied. Donation of all or a portion of the easement
by the owner shall be considered fund leveraging and points awarded
at the same rate.
Each conservation easement shall conform with
the requirements of the Open-Space Land Act and of this chapter. The
deed of easement shall be in a form approved by the County Attorney
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 on the parcel.
These standard restrictions shall be delineated in the deed of easement
and may include, but not necessarily be limited to, restrictions pertaining
to:
(1)
The accumulation of trash and junk;
(2)
The display of billboards, signs and advertisements;
(3)
The management of forest resources;
(4)
Grading, blasting or earth removal;
(5)
The number of new dwellings and the number and size
of outbuildings and farm buildings or structures;
(6)
The conduct of industrial or commercial activities
on the parcel; and
(7)
Monitoring of the easement.
B.
Designation of easement holders. The Authority and
the Frederick County Board of Supervisors shall be the 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 and the Authority later, unless the Authority
finds additional co-holders to be not feasible or not advisable.
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.
(1)
Each application shall be submitted on a standard
form prepared by the program administrator. The application form shall
require, at a minimum, that the owner:
(a)
Provide the name and address of all owners of the
parcel;
(b)
The acreage of the parcel;
(c)
The Tax Map and parcel number;
(d)
The zoning designation of the parcel;
(e)
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;
(f)
Identification of all lien holders on the parcel,
including, without limitation, holders of deed of trust liens and
judgement liens; and
(g)
Identify whether it is his desire to donate or sell
an easement.
(2)
The application form shall also include a space for
an owner to indicate 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 by program administrator. The program administrator shall evaluate each complete application received and determine whether the parcel satisfies the eligibility criteria set forth in § 68-6 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 parcels, if any, it desires conservation easements.
F.
Board of Supervisors approval. The program administrator
shall forward to the Board 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.
Upon approval of an easement by the Authority
pursuant to the terms of this chapter, the proposed easement shall
be forwarded to the Board of Supervisors 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.
Should the Authority desire to purchase an easement,
the following procedures shall apply.
A.
Identification of initial pool. For applications received under § 68-9, in which the owner has indicated a desire to sell an easement, the program administrator shall determine the number of points to be attributed to each parcel by applying the criteria set forth in § 68-7. The program administrator shall rank each parcel scoring at least 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 of parcels identified for conservation easements to be purchased. The purchase price may be supplemented by non-County funding as discussed in § 68-7E above. The size of the pool shall be based upon the funds available for easement purchases in the current fiscal year.
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 program administrator 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 sell to the Authority a conservation
easement on that parcel, subject to the terms and conditions of a
proposed deed of easement. 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 a written 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.
(1)
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:
|
"(The owner) offers to sell a conservation easement
to the Authority for the sum of (purchase price), subject to the terms
and conditions set forth in the proposed deed of easement enclosed
with the invitation to offer."
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(2)
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 if his 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. If the 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, and other charges associated with closing; provided,
however, the Authority shall not pay 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 for whose parcel a conservation
easement is not purchased may reapply in any future year.
J.
Special consideration. The Authority shall give special
consideration and take immediate action to review applications in
the special case where private funding is available to cover 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 chapter.
The FCEP program may, 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.
