Department of Agriculture
Aglands Preservation and Planning
Planning, Farmland Preservation
Preamble
The Agricultural Lands Preservation Act ("Act") was enacted on July 8, 1991 and provided for the creation of the Agricultural Lands Preservation Foundation ("Foundation"). The Foundation has been charged with the authority and responsibility of establishing and administering an extensive statewide program to preserve Delaware’s farmlands and forestlands. It has been declared policy of the State to encourage, promote and protect farming as a valued occupation and that the preservation of the State’s farmland and forestlands is essential to maintaining agriculture as a viable industry and important contributor to the State’s economy. It has been recognized that valuable and irreplaceable farmland and forestlands are being lost due to nonagricultural development pressure, and it is necessary to implement an effective program for permanent agricultural preservation. Included in the Foundation’s responsibilities are the adoption of criteria for the establishment of and maintenance of Agricultural Preservation Districts ("Districts") and adoption of criteria for the purchase of agricultural lands preservation easements ("Preservation Easements"). This regulation is intended to provide the requirements and manner in which the Agricultural Lands Preservation Program is administered in order to satisfy the purpose, policy and intent of the Act ( 3 Del.C. §901 et seq).
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Criteria for District Eligibility
In order to qualify for the Agricultural Lands Preservation Program, the lands proposed as an Agricultural Preservation District in the application must meet the following minimum criteria:
The owner or owners shall hold fee simple title to all land allowed to be placed in a District and must be actively using the property for "agricultural and related uses";
The land must constitute at least 200 acres of contiguous farmland or lesser acreage if the farmlands are located within 3 miles of an established District;
The land shall be zoned to allow for agricultural purposes and shall not be subject to any major subdivision plan;
The applicant or applicants, including all fee simple title holders, must sign a written agreement ("District Agreement") committing to District restrictions set forth in this Section and 3 Del.C. §909 and other adopted requirements;
The land must be viable and productive agricultural land comprising a farm property unit and meet the minimum County Land Evaluation and Site Assessment (LESA) scoring requirements for eligibility as established by the Foundation;
The land proposed for inclusion shall include all of the eligible real property located in the tax parcel or tax parcels subject to application, provided, however, a partial tax parcel or parcels separated by a natural or permanent manmade barrier may be excluded from a District application, subject to the approval of the Foundation.
The minimum LESA score for an eligible District or Expansion shall be 170 points out of a possible 300 points for each county in the State as computed under the currently approved LESA program of the Delaware Department of Agriculture.
The LESA score for agricultural lands shall be considered in evaluating the eligibility of agricultural lands for inclusion in Districts and expansions, including the eligibility for purchase of preservation easements and consideration of Requests for Termination of easements pursuant to 3 Del.C. §917 .
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Application Procedures
The Foundation will provide application forms on which applicants who volunteer to place their lands into an Agricultural Preservation District will provide information as the Foundation deems appropriate.
The Foundation shall provide assistance to potential applicants in completing application forms when requested.
The Foundation staff may conduct on-site inspections or phone interviews with the applicants to acquire data necessary to perform LESA analyses and write a staff report.
In conjunction with the application, all fee simple owners shall sign a District Agreement in a form deemed acceptable by the Foundation and which serves as a declaration in recordable form of acknowledgment of the policies and restrictions that must be followed, and benefits realized in a District.
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Application Review Procedures
The Foundation has the authority to approve applications establishing Agricultural Preservation Districts and the authority to purchase preservation easements. [ 3 Del.C. §904 ]
The Foundation staff will review applications and determine whether or not the minimum eligibility requirements under Section 1.0 have been met.
If the minimum eligibility requirements have not been met, then the applicant will be notified by letter from the Foundation indicating that the application does not qualify for further review, and the reasons for ineligibility.
If an applicant excludes a portion of property in a proposed District, then the Foundation may deny the application, unless the property proposed for exclusion is not otherwise eligible for inclusion.
Subject to subsection 3.3 of this regulation, if the lands proposed as a District in the application (200 or more acres) meet minimum eligibility criteria, then the Foundation staff will submit to the Foundation, the County Farmland Preservation Advisory Board and the County Planning and Zoning Authority, applications and an indication that the application meets the minimum eligibility requirements.
If the applicant disagrees with the staff evaluation of the proposed District, then the applicant may contact the Foundation staff to discuss the application review. Foundation staff will meet with the landowner to discuss the review as soon as practicable after receiving a formal request from the applicant.
If the issue is not resolved to the applicant's satisfaction, the applicant may request an administrative review with the Foundation by submitting a letter to the Foundation within 14 days of the applicant's last meeting with Foundation staff.
This letter must include reasons and documentation to justify the applicant's claim.
The Foundation will schedule a meeting and notify the applicant by certified letter of the date, time, and place of the meeting.
At the administrative review meeting, the applicant shall present information or documentation as to how the proposed District satisfies the eligibility criteria.
The Foundation will render a decision within 30 days from the administrative review meeting and notify the applicant in writing of its decision.
Owners of real property who have executed a District Agreement or a Preservation Easement that incorporates the restrictions in effect prior to the amendments in 74 Del. Laws , c. 423 and who elect to be released from the restrictions set forth in 3 Del.C. §909(a)(2)(b) pursuant to 3 Del.C. §909(a)(4)(c) , shall comply with the following requirements:
Owners who have executed a district agreement and who wish to designate up to 3 residential lots shall designate the allowable residential acreage in sufficient detail to enable the Foundation to determine the location of the residential acreage or reserve the entitlement to designate the location of the residential acreage in the future, and while a survey may be submitted, a survey shall not be required. The owner shall execute an acknowledgement to the owner’s District Agreement in a form designated and acceptable to the Foundation, subjecting the real property to the restrictions set forth in 3 Del.C. §909(a)(1), (a)(2)(a), (a)(4)(a) and (a)(4)(b) .
Owners who have executed a Preservation Easement and who wish to designate up to 3 residential lots shall designate the allowable residential acreage in sufficient detail to enable the Foundation to determine the location of the residential acreage and shall submit to the Foundation for its review and approval, at the owner’s expense, an amended survey or other documentation in recordable form in sufficient format to show the entire parcel subject to the preservation easement and the location of any residential lots. The owner shall execute an amendment to the Preservation Easement or an acknowledgement in a form designated and acceptable to the Foundation, subjecting the real property to the restrictions set forth in 3 Del.C. §909(a)(1), (a)(2)(a), (a)(4)(a) and (a)(4)(b) .
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Creation of a District
To establish an Agricultural Preservation District, the application must be approved by 2 out of 3 of the entities listed under subsection 3.4 of this regulation. [ 3 Del.C. §907(c) ]
After review by the Foundation, the application is subject to a review period of 30 days in which the Secretary of Agriculture may reject the application. The application is officially approved at the end of the review period, if it is not rejected by the Secretary of Agriculture. The Secretary may waive the right of rejection at any time during the review period. [ 3 Del.C. §919 ]
The property legally becomes a District when the applicant and Foundation Chairperson (or designee) have signed the District Agreement and no rejection has been exercised by the Secretary of Agriculture, or the Secretary of Agriculture has waived the right of rejection.
Copies of the District Agreement shall be filed with the County Planning and Zoning and Tax Assessor's Offices and recorded in the Office of the Recorder of Deeds. The Foundation shall require from these Offices proof of recording or receipt of the District Agreement.
The Foundation shall endeavor to provide written notification of the date of establishment of the Agricultural Preservation District and provide a copy of the District Agreement to the applicant, however, the failure of the Foundation to satisfy any formality following execution of a District Agreement shall not affect the validity of the District Agreement.
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District Restrictions
Any rezoning or major subdivision of real property included in an Agricultural Preservation District is prohibited. [ 3 Del.C. §909(a)(1) ]
The submission of applications or preliminary rezoning or subdivision plans for any property within an Agricultural Preservation District to a county or municipality shall be considered evidence of the intent to rezone or subdivide and no action shall be taken by any county or municipality on any application until the expiration of the District Agreement.
During the term of the District Agreement, the property shall be used for "agricultural and related uses" and shall be used so that the property continues to qualify as "viable and productive agricultural land" as defined under provisions of the Farmland Assessment Act. [ 9 Del.C. §§8329 - 8333 ] No more than 1 acre of land for each 20 acres of usable land, subject to a maximum of 10 acres, shall be allowed for dwelling housing. For purposes of calculating the number of acres allowable for dwelling housing, fractions of any acre shall not be allowed. By way of example, if a farm consists of 45 acres of usable farmland, the number of acres allowed for dwelling housing shall be 2, and not 2.25.
The phrase 'agricultural and related uses' shall have the meaning set forth in 3 Del.C. §909 , as the same may be amended from time to time.
Excavation or filling, borrow pits, extraction, processing and removal of sand, gravel, loam, rock or other minerals is prohibited unless the action is currently required by or ancillary to any preparation for, or operation of any activities including: aquaculture, farm ponds, cranberry operations, manure handling facilities, and other activities directly related to agricultural production.
Activities that would be detrimental to drainage, flood control, water conservation, erosion control or soil conservation are prohibited.
Any activity that materially interferes with or diminishes the agricultural use of the land is prohibited, including the installation, construction, operation, or leasing of any facility, structure, equipment, or infrastructure used for the generation, storage, conversion, sale, or on-site distribution of electricity or other forms of energy not primarily sized and designed to serve agricultural operations on the property.
The term "usable land owned in the district" [ 3 Del.C. §909(a)(2) ], shall be defined as any land meeting the requirements for agricultural, horticultural or forest land in the Farmland Assessment Act of 1968 [ 9 Del.C. , Chapter 83 ] and [ 3 Del.C. §403 ] or criteria for farm definition as established by the National Agricultural Statistics Service.
The District Agreement and District requirements and benefits shall be binding on the heirs, successors and assigns of property owners of lands within a District. A property owner in a District shall provide written notice to the Foundation of any proposed transfer of property subject to the District Agreement at least 10 days in advance of the transfer, and shall give written notice to any successor or assign at least 10 days in advance of the date of transfer of the property that the property is subject to District restrictions. The party taking title shall execute a document as required by [ 3 Del.C. §909(a)(2)c .] acknowledging the acreage allowed for dwelling housing and the restrictions which apply to the property. The failure of the property owner to notify the transferee shall not affect the transferee’s obligation to comply with the terms and conditions of the District Agreement upon the transfer of title.
Under 3 Del.C. §909(a)(3) , all restrictions shall be covenants which run with and bind the lands in the District for a minimum of 10 years, beginning when the District Agreement takes effect as specified in the District Agreement.
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Continuation of a District
All properties are to remain in an Agricultural Preservation District for at least 10 years, subject to the allowance of hardship exceptions for exclusion of dwelling housing pursuant to 3 Del.C. §909(a)(2)(b) and Section 9.0 of this regulation.
If a landowner wishes to withdraw from, or terminate a District, then the Foundation must receive a written notice of intent to withdraw no less than 6 months prior to the 10-year anniversary date of initial establishment of the District. [ 3 Del.C. §909(b) ] If the Foundation does not receive a written notification of the landowner's intent to withdraw from the District 6 months prior to the 10-year anniversary date of that District, then the land shall remain in the District for an additional 5-year period unless and until notice of intent to withdraw shall be given 6 months prior to the end of each additional 5-year period.
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Expansion of a District
An Agricultural Preservation District can be expanded for the purpose of preserving additional lands. Lands added to a District may be under 200 acres. [ 3 Del.C. §907(d) ]
Land which is less than 200 usable acres, yet meets the other criteria established by the Foundation, is eligible to be an expansion ("Expansion") of an Agricultural Preservation District if it is within 3 miles of any portion of an established Agricultural Preservation District. [ 3 Del.C. §907(a) ]
An existing Agricultural District subject to an Agricultural Lands Preservation Easement may be expanded through an amendment to the Preservation Easement to include eligible lands under the following conditions:
The lands to be added to the Preservation Easement area shall be located adjacent to the Preservation Easement area, the owner of the adjacent lands is the same owner of the Preservation Easement area, and the adjacent lands are comprised of no more than 10 acres;
The Foundation shall make no payment for the Preservation Easement placed on the added lands, and the addition of the lands shall not increase the allowed residential use in the District;
The District Restrictions as set forth in Section 5.0 of this regulation shall apply to the lands added to the Preservation Easement; and
The expansion of the Preservation Easement area as provided in this regulation shall be subject to the approval of the Delaware Agricultural Lands Preservation Foundation Board of Trustees (the "Foundation Board").
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Inspection of Districts
The Foundation has the authority to enter upon lands as may be necessary to perform surveys, appraisals, and investigations to accomplish the purpose of the program, consistent with applicable statutes. [ 3 Del.C. §904(b)(14) ]
The Foundation or its designee reserves the right to inspect restricted land and enforce agreements on its own behalf.
If any violations of the terms and the conditions of the District Agreement occur, the Foundation may institute proceedings in the appropriate court to enforce the terms and seek appropriate relief. [ 3 Del.C. §920(a) ]
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Dwelling Property Hardship Exceptions
Except as set forth in subsection 9.7 of this regulation, owners of real property who have executed a District Agreement or a preservation easement that incorporate the restrictions in effect prior to the Senate Bill No. 333 amendments are entitled to apply to the Foundation for a hardship exception allowing for the transfer of dwelling property to parties who are not otherwise entitled to residential use of the dwelling property under the District Agreement or Preservation Easement, subject to the provisions of 3 Del.C. §909(a)(2)(b) and the following requirements.
An applicant for a hardship exception shall submit the following information in writing to the Foundation:
The name and property interest of applicant in the dwelling property;
The acreage of the dwelling property subject to application;
The date on which the District Agreement was established;
The number of dwellings and acreage of residential use currently on the property in the District Agreement;
The nature of the hardship condition and reasons justifying the granting of a hardship exception;
The extent to which the hardship condition is unavoidable.
The Foundation shall consider hardship conditions involving the following circumstances:
The sale or transfer of the dwelling property compelled by foreclosure, court order, or marital property division agreement;
The sale or transfer of the dwelling property compelled by job transfer;
The sale or transfer of the dwelling property compelled by health conditions;
The sale or transfer of the dwelling property required to avoid insolvency or bankruptcy; and
Any other circumstances of an unusual and extraordinary nature which pose a practical hardship to continued ownership of the dwelling property and which are unavoidable.
Hardship exceptions will not be granted when no real hardship exists and the primary consequence of the sale or transfer of the dwelling property is financial gain.
The applicant shall bear the burden of establishing the existence of hardship circumstances, and shall provide to the Foundation documentation in support of the application, and any documentation requested by the Foundation, provided however, that documentation involving privileged information may be submitted on a confidential basis.
The Foundation may require the applicant for a hardship exception to appear before the Foundation Board to present the application, and an applicant shall be entitled to appear before the Foundation Board to make a presentation by submitting a written request to the Foundation.
The granting of a hardship exception by the Foundation shall be subject to the following conditions:
The dwelling property following transfer shall be used only for residential purposes;
The transferred property shall not qualify for District benefits or benefits of Preservation Easements;
If the transferred property is subject to a Preservation Easement prior to transfer, payment shall be made to the Foundation in an amount equal to 25% of the current fair market value of the land subject to transfer;
The transferee shall execute a Declaration in recordable form as prescribed by the Foundation which includes the acreage allowed for dwelling housing and the restrictions which apply to the real property;
The Foundation may require the transferor to execute a Declaration in recordable form as prescribed by the Foundation to evidence the status of allowable dwelling housing property on lands retained by the transferor which are in the District or subject to a Preservation Easement; and
Any other terms and conditions considered necessary by Foundation to address the nature of the hardship condition.
The hardship provisions set forth in Section 9.0 shall not apply to the owner or owners of real property who, pursuant to 3 Del.C. §909(a)(4)(c) , have elected to be released from the restrictions of 3 Del.C. §909(a)(2)(b) .
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Delaware Farmland Preservation Fund
The Delaware Farmland Preservation Fund, hereinafter referred to as the "Fund", was enacted under 3 Del.C. §905 for the exclusive application by the Foundation to achieve the desired goals of preserving viable agricultural lands and conducting the business of the Foundation.
Sources of Funding
The Foundation may accept donations, property, or development rights as gifts and monetary gifts from any source, public or private.
Monies not needed on a current basis by the Foundation may be invested with the approval of the Foundation Board.
The Fund is subject to an annual audit to be prepared by an independent, certified public accountant. The findings of all audits shall be presented to the Foundation Board.
The Foundation shall manage the monies appropriated to it by the General Assembly in accordance with the terms of the appropriations.
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Criteria for Purchase Agricultural Lands Preservation Easements
The criteria for eligibility of acquisition of a Preservation Easement shall be the same as the criteria for district eligibility. In addition, offered preservation easement lands shall be in an established district and in compliance with district requirements to be eligible. The Foundation shall have the right, in its sole discretion, to acquire a Preservation Easement on only a part of the property included within the District Agreement, and on a case by case basis, acquire Preservation Easements on properties whose owners have submitted successful qualified offers by making payment for the Preservation Easements over a multi-year period, subject to the availability of funding to make the purchase and Foundation Board approval.
Matching Contributions to the Program
The Foundation may establish a reserve or set aside of available funds for the matching of federal, county, local, or private funds for the preservation of farmland. The Foundation may allow the entity providing matching funding to select the qualified properties for purchases of easements using the matching funding not withstanding provisions of this regulation regarding selections. The Foundation has the discretion, but is not required, to match contributions.
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Schedule for Acquisition of Agricultural Lands Preservation Easements
Application and funding cycles will take place on schedules established by the Foundation.
Applications for the purchase of Preservation Easements in rounds of purchases shall be subject to deadlines established by the Foundation.
For each round of Preservation Easement purchases the Foundation shall arrange for the appraisal of the Preservation Easement value of those properties under consideration.
Upon completion, the appraisals shall be provided to the landowners, and procedures set forth in this regulation involving offers for the sale of preservation easements under option agreements shall be initiated.
Offers received shall be held confidential until all offers are received after which the Foundation shall review the offers and announce the selections.
Following the selection of properties for acquisition of Preservation Easements, the Foundation shall arrange for surveys of the properties to be conducted, and proceed to settlement under the terms of the option agreements, subject to the availability of funding and satisfaction of regulatory, financial or other restrictions or limitations.
The Foundation is under no obligation to purchase a Preservation Easement which is offered for sale. [ 3 Del.C. §913 .]
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Application Procedures
A separate application shall be required for each farmland tract (operating farm unit) subject to a District Agreement offered for Preservation Easement purchase. The Foundation shall not be obligated to process any incomplete application.
The Foundation shall develop, and make available to landowners or other interested parties, an application form for use in offers to sell Preservation Easements.
The Foundation shall review the application to determine if it is complete.
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Appraisals [3 Del.C. §916]
An offer to purchase a Preservation Easement shall be based upon 1 or more appraisal reports which estimate the full market value of the land under its agricultural zoning designation and the agriculture-only value of the farmland tract. The agricultural only value shall be based on an income capitalization methodology. Any appraisal obtained by the Foundation shall constitute the property of the Foundation and may not be used by the property owner for tax or other purposes. All categories of land located in the farmland tract shall be eligible for easement purchase and shall be appraised
The value of buildings or other improvements on the farmland tract shall not be considered in determining the Preservation Easement value. Excluded from the value of the Preservation Easement shall be any acreage designated or eligible to be designated by the owner for residential use pursuant to 3 Del.C. §909(a)(4)(a) , provided however, the landowner shall have the right to waive eligible residential usage in which case the development rights value of the waived acreage shall, if applicable, be included. Residential use which is waived and not designated for present or future use at the time of the Preservation Easement acquisition shall be considered waived permanently while the Preservation Easement is in effect.
The appraiser shall be:
An independent, licensed real estate appraiser who is qualified to appraise a property for easement purchase. An appraiser shall be selected on the basis of experience, expertise and professional designation; and
A member of an organization which subscribes to the "Uniform Standards of Professional Appraisal Practice" published by the Appraisal Standards Board of the Appraisal Foundation, and shall follow the organization’s ethical and professional standards.
The appraiser retained by the Foundation for the purposes of processing a Request for Termination of Easement pursuant to 3 Del.C. §917 shall have the qualifications as specified by the Foundation.
The appraiser shall supply a narrative report which shall contain information as required by the Foundation.
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Agricultural Lands Preservation Easement Value and Purchase Price
The value of a Preservation Easement in perpetuity shall be the difference between the full market value and the agriculture-only value contained in the appraisal report.
The price paid by the Foundation for the purchase of a Preservation Easement may not exceed, but may be less than, the value of the Preservation Easement. [ 3 Del.C. §916(a) ]
If the applicant is not satisfied with the appraisal provided by the Foundation, the applicant shall be entitled to have an independent appraisal performed at the applicant’s expense by a qualified appraiser as specified in subsection 16.3. The alternative appraisal shall be prepared in the same format as the Foundation’s appraisal and shall be submitted to the Foundation as soon as possible after the applicant’s date of receipt of the appraisal provided by the Foundation, and provide further the request of an alternative appraisal does not delay the time frame established by the Foundation for making selection and acquisition decisions.
The review of the alternative appraisals by the Foundation shall be based on written submissions under procedures as specified by the Foundation. The maximum adjusted Preservation Easement value which the Foundation will accept is up to 50% of the difference between the Foundation’s final appraisal and the applicant’s final appraisal. The Foundation is under no obligation to accept the applicant’s appraisal or make an adjustment to the offered purchase price for the Preservation Easement.
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Offer of Purchase by the Foundation
The Foundation has the authority to incorporate bidding and negotiation as part of the procurement process. [ 3 Del.C. §915 ]
In reviewing the offers of applicants to sell Preservation Easements to the Foundation, the Foundation shall, subject to consideration of any alternative criteria by the Foundation to satisfy special objectives, select those offers providing the highest level of percentage donation or percentage discount to the finally appraised value of the Preservation Easement, in accordance with the procedures and requirements of this Section. As an additional incentive, if any part of the applicant’s property subject to the offer is located in whole or in part within ½ mile completely outside of any growth zone of the County in which the Property is located, or in whole or in part within ½ mile completely outside of the boundary of an incorporated town, municipality or city, for the sole purpose of ranking the application, the Foundation shall increase the offered percentage discount by 5%. By way of example, if an applicant’s offer includes a discount of 60%, and the applicant’s property is located in whole or in part within ½ mile completely outside of the specified areas, for ranking purposes, the applicant’s discount shall be deemed to be 65%. If the applicant’s property is selected for purchase of a preservation easement, the purchase price for the preservation easement shall incorporate a discount of only 60%. The locations of the growth zones referenced and the ½ mile surrounding areas are determined by the Counties.
The Foundation shall entertain offers in the form of option agreements from all eligible applicants who wish to submit offers, and after all offers are received, list the offers with the highest to the lowest level of percentage donation or percentage discount to the finally appraised value of the Preservation Easement with any adjustment to the offered donation or percentage discount as specified in subsection 18.2 of this regulation.
Prior to releasing information to the public regarding the percentage of any discount or donation provided by a landowner the Foundation shall notify the landowner, identifying the requesting party, and obtain permission from the landowner prior to releasing the requested information. Otherwise, the information shall not be disclosed.
The Foundation may, but shall not be required to, allow a property owner in a District to submit an offer to sell a preservation easement on a portion of the real property in a District.
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The Agricultural Lands Preservation Easement
The owners of the subject farmland tract shall execute a document conveying the Preservation Easement which document shall be in a form which contains conditions contained in option agreements executed by landowners.
The document shall be in recordable form and contain:
A legal description setting forth the metes and bounds of the farmland tract subject to the Preservation Easement.
At least 1 course and distance referencing a fixed marker or monument of a type commonly placed in the field by a surveyor.
The legal description shall not contain a closure error greater than 1 foot per 200 linear feet in the survey.
The survey of the farmland tract on which a Preservation Easement is to be purchased shall show each of the residential lots, if any, designated by the owner pursuant to 3 Del.C. §909(a)(4)(a) . The owner may waive the allowed residential use in whole or in part, or reserve the right to designate residential use in the future. The owner’s decision regarding residential use shall be noted on the survey.
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Title Quality
The Preservation Easement conveyed to the Foundation shall be unencumbered except for standard exceptions and be capable of being insured by an established and recognized title insurance company doing business in the State of Delaware. Any title defects, liens, survey discrepancies, boundary line disputes, or similar title issues shall be resolved by the property owner, at the property owner’s sole expense. If subsequent to the purchase of a Preservation Easement it is determined that the amount of acreage is less than as reflected on the survey used by the Foundation for purposes of calculating the purchase price for the Preservation Easement, the property owner shall be required to refund to the Foundation any excess funds paid in reliance upon the inaccurate survey.
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Residential Lots; Tax Parcels
74 Del. Laws , c. 423 imposes alternative restrictions on the limited residential use of property subject to a District Agreement or Preservation Easement by replacing the unlimited number of residential dwellings allowed for owners, relatives of owners, and farm labor, with a total limit of 3 dwellings which can be occupied by any person. The overriding limitation of residential use of 1 acre for 20 acres of usable farmland (subject to a maximum of 10 acres) was left unchanged. Accordingly, owners can now designate up to 3 residential lots on District Property or Preserved Property. With respect to the designation of the residential lots allowed under 74 Del. Laws , c. 423 , the following additional guidelines shall apply:
The acceptance by the Foundation of the designation of a residential lot does not mean that the location of the lot and proposed residential use complies with any applicable zoning rules or regulations, or that a lot is suitable for residential use. Owners are encouraged to conduct investigations and perform tests as they deem appropriate to ascertain whether or not any designated lot will be suitable for residential use and complies with all applicable land use regulations, including zoning laws.
The Foundation recognizes that at times, due to circumstances beyond the control of the owner, it may be necessary for the owner to change the location of a lot. As a matter of policy, the Foundation will allow changes subject to the following requirements:
No change in the location of a lot or size of a lot shall be allowed which would cause the number of lots or amount of residential acreage to be in excess of that otherwise allowed under the terms of the District Agreement or Preservation Easement.
With respect to property subject to a Preservation Easement, the owner shall cause to be prepared, at the owner’s expense, an amended plot plan or other sufficient documentation in recordable form and sufficient format to show the entire parcel subject to the Preservation Easement and the location of each residential lot.
The owner shall execute an amendment to the District Agreement or Preservation Easement, which amendment shall reflect the change in the location or size of the residential lots, and which shall reference the amended plot plan.
If the change in location of a residential lot involves the abandonment of an existing residential property, the abandoned property shall be destroyed or, if used, only if so used for an allowed purpose under 3 Del.C. §901 et seq. and this regulation.
Subject to the approval of the Foundation, District Agreement property and Preservation Easement property may be combined under common ownership into a single tax parcel, provided there shall be no resulting increase in residential use.
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Easement Termination
Pursuant to 3 Del.C. §917 the owner or owners of land subject to an Agricultural Lands Preservation Easement may request that the Foundation conduct an inquiry to determine if profitable farming is feasible on the land subject to the Preservation Easement.
The request by the owner or owners for an inquiry may not be made until at least 25 years after the date of acquisition of the Preservation Easement.
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Application for Inquiry
The requested inquiry shall not commence until the owner or owners submit a complete application for inquiry ("Application for Inquiry") on a form or forms provided by the Foundation, and the inquiry shall be completed within 180 days from the date the complete Application for Inquiry is accepted by the Foundation.
An Application for Inquiry may only be submitted for termination of the Preservation Easement on all of the owner or owners’ land subject to the Preservation Easement.
The Application for Inquiry shall include the following information:
The name, address, and phone number of the current owner or owners holding title to Preservation Easement lands and the name, address, and phone number of any other person as defined in 3 Del.C. §902(14) having a present or future interest in the Preservation Easement lands. For any person or persons having a present or future interest, the interest and the extent of it shall be identified.
The name, address, and phone number of all persons who have been owners of the lands subject to the Preservation Easement since the time that the Preservation Easement was entered until the present, and the time period of each owner's ownership.
The type of agricultural use of the lands subject to the Preservation Easement during the 5-year period immediately prior to the submission of the Application for Inquiry. Agricultural use is defined in 3 Del.C. §902(3) .
The name of any person who rented the lands for agricultural use during the 5-year period immediately prior to submission of the Application for Inquiry, including the type of agricultural use.
For any rental of the land for agricultural use during the 5-year period referenced in subsection 22.3.4 provide a copy of all rental agreements or an indication of the terms of any rentals if verbal.
Indicate if the owner or owners received any monies or other benefits for participating in federal, state, or other programs related to agricultural use on the lands subject to the Preservation Easement, and the source and annual amount of any monies during the 5-year period immediately prior to the submission of the Application for Inquiry.
The extent to which the owner or owners have received income from any of the related uses allowed on lands subject to Preservation Easements as provided under 3 Del.C. §909(a)(5) .
The Application for Inquiry shall contain a Statement by the owner or owners indicating the factual basis for claiming the lack of feasibility of profitable farming on the lands subject to the Preservation Easement.
In reviewing the Application for Inquiry for completeness, the Foundation staff may request additional information from the land owner or owners.
The owner or owners submitting an Application for Inquiry shall verify that the information provided is true and correct.
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The Inquiry
After the Foundation staff has accepted the Application for Inquiry on behalf of the Foundation, the Foundation staff shall conduct a review of the application and related facts regarding the feasibility of profitable farming on the lands subject to the Preservation Easement.
The Foundation staff review shall include the following:
An on-site inspection of the lands subject to the Preservation Easement, including any desired testing to determine the suitability of the lands for any agricultural use.
The preparation of a LESA score for the lands subject to the Preservation Easement using the most recent LESA scoring guidelines.
A survey of agricultural land rentals near and on adjacent properties and agricultural lands located within operational proximity to the lands subject to the application.
A determination of what, if any, profitable income producing alternative agricultural uses could be conducted on the lands subject to the Preservation Easement property.
The extent to which the applicant has engaged in active agricultural use operations during the 5-year period immediately prior to the submission of the application.
Consultation with agricultural use experts for purposes of obtaining information and opinion on the feasibility and profitability of conducting agricultural uses on the lands subject to the application.
In conducting the review the staff shall consider only the feasibility of the lands subject to the Preservation Easement to support profitable farming by any person qualified to engage in farming operations. The individual circumstances of the applicant shall not be a consideration in determining profitability.
Inconvenience or opposition to farming operations shall not be a consideration for any purpose of the Inquiry.
Any delay in the Foundation staff review caused by the applicant shall result in an extension of the 180-day period for completion of the inquiry.
Upon completion of the review, the staff shall prepare a written report which shall include the staff’s recommendations to the Foundation Board. A copy of the written report shall be provided to the applicant.
29 DE Reg. 855 (04/01/26)
Public Hearing
Pursuant to the provisions of 3 Del.C. §917(c)(2) , the Foundation shall conduct a public hearing on the Request for Termination of the Preservation Easement in the County containing the lands subject to the Preservation Easement.
A notice of the proceeding shall be provided at least 20 days in advance of the date of the hearing and provide the date, time, and place of the hearing.
The Foundation shall appoint a hearing officer who shall be empowered to:
Administer oaths to witnesses.
Exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence.
Limit unduly repetitive offerings of proof and rebuttal information.
Hold prehearing conferences for disposal of procedural requests or disputes and to regulate and expedite the course of the hearing.
The burden of proof shall always be upon the applicant.
A record from which a verbatim transcript can be prepared shall be made of the hearing, and shall include all exhibits, documents and testimony admitted into evidence.
Based on the record, the hearing officer shall prepare and submit to the Foundation Board a report which shall include a summary of the evidence submitted by the Foundation staff as a result of its review and any other evidence produced at the hearing, including legal arguments, as well as a summary of the evidence submitted by the applicant, including legal arguments.
After review of the hearing officer’s report and the record, the Foundation Board shall make a decision in the form of an order accepting or rejecting the Application to Terminate the Preservation Easement. The order shall include a brief summary of the evidence, findings of fact based on the evidence, and conclusions of law.
The order shall be signed and dated by a majority of the quorum of members of the Foundation Board attending a Foundation Board meeting for the purposes of making a decision on the Application for Inquiry.
If the request for termination is rejected by the Foundation Board, an appeal of the decision may be taken pursuant to 3 Del.C. §927 .
If the request for termination is accepted by the Foundation Board, then the procedure and requirements for repurchase of the Preservation Easement as set forth in 3 Del.C. §917(d) and this regulation shall apply.
29 DE Reg. 855 (04/01/26)
Appraisal
The Foundation shall order an appraisal to be conducted by a qualified appraiser or appraisers.
The appraisal shall have 1 component which determines the agricultural value of the subject land by comparing it to a farm unit with land comparable in quality and composition to the property subject to the termination request but located in the nearest location where profitable farming is feasible.
The comparable farm unit shall have an agricultural use designation for zoning purposes.
The comparable farm unit shall not be zoned to allow for a major subdivision.
The comparable farm unit may be subject to restrictions which prohibit residential and commercial development.
The appraisal of the comparable farm unit shall conder a valuation which includes irrigation only if irrigation is available and in use on the property subject to the termination request.
In considering the profitability of the comparable farm unit the appraiser may use any commonly accepted appraisal methodology.
The appraisal of the fair market value of the subject land shall be based on the best and most beneficial use of the property under any obtainable development zoning category.
In determining if a development use is obtainable it shall be assumed that it is possible to obtain that use through any means possible, including a change to a Comprehensive Plan, a zoning change, a conditional use, a variance, a special use exception or any other possible requests that could be made under the Planning and Zoning requirements of the County in which the property subject to the termination request is located.
In determining the most beneficial use any use which also requires other federal, state or local approvals shall be considered available unless the use is expressly prohibited.
The Foundation may order separate appraisals of the comparable farm agricultural value, and the best and most beneficial use value of the land subject to termination, from different qualified appraisers.
The appraisal or appraisals shall be conducted in accordance with the requirements of this regulation.
Upon selection of the appraiser or appraisals the payment for the appraisal or appraisals shall be made in advance to the Foundation before the appraisal work commences, but no later than 30 days after the request for payment is made.
The standard for the agricultural value of lands subject to easement termination based on the appraisal of comparable nearest location property shall be the price as of the valuation date that a buyer, willing but not obligated to buy, would pay for a farm unit with comparable quality and composition based on the appraisal performed under this regulation.
The standard for the fair market value of lands subject to easement termination based on the best and most beneficial use obtainable under the appraisal performed under this regulation shall be the price as of the valuation date that a buyer willing but not obligated to buy would pay for the land.
29 DE Reg. 855 (04/01/26)
Repurchase
After completion of the appraisals as provided for in this regulation, the Foundation shall provide to the owner the appraisals and indicate the price of the repurchase as the difference between the fair market value and the value based on the comparable nearest property valuation.
The repurchase price shall be paid in cash to the Foundation within 180 days of the date that the owner is provided with the appraisals and the amount of the repurchase price.
The Preservation Easement on the property shall not be released until full payment of the repurchase price is paid.
In the event that the repurchase price is not paid within 180 days of the date the appraisals and the amount of the repurchase price are provided to the owner, the request for termination of the easement shall automatically be deemed denied, and the owner may not again request termination of the easement until 5 years after the last request was submitted.
29 DE Reg. 855 (04/01/26)
3 DE Reg. 170 (08/01/99)
19 DE Reg. 482 (12/01/15)
29 DE Reg. 855 (04/01/26)