The lengthening days, the softening ground and talk of crops, rainfall and TDRs mark the coming of spring for Montgomery County farmers. TDRs?
Transfer of Development Rights.
To save farmland from the northward creep of suburban development, the County Council in January passed a zoning amendment placing 73,000 acres of up-county land in 25-acre zoning, thus limiting farmers to building one house on 25 acres. The previous zoning allowed one, two or five-acre lots.
The farmer gets one development right for every 25 acres on which he does not build. He may sell that right, called a TDR, to a developer who may use it to build extra housing units on a site that is in a designated "receiving area." In effect, the TDR amounts to a density bonus for the purchaser.
Montgomery's Agricultural Preservation Plan is unconventional, even for a county with a reputation for innovative planning. There are few other places in the nation where such a system has been tried, particularly on a comparable scale. Four farmers have challenged the plan in court as illegal appropriation of their land.
The farmers as a group have reacted with caution. Although some parts of the system have been operative since last fall, not a single TDR transaction has been completed.
"Yes, my farm's in the transfer area, but we're just sitting on it," said Paul Schaffer, 74, who has 98 acres on Gregg Road. He said he has no intention of selling his development rights. "It'd be like selling off mineral rights. What would I have later? Somebody later on might want to do some developing."
Melissa Banach, a planner with an office in the sunlit atrium of the Maryland-National Capital Park and Planning Commission in Silver Spring, compares the TDR transaction to a marriage: "It's just a matter of time before the right farmer meets the right developer."
Her phone hasn't stopped ringing, she said. "Now that the plan's been approved and adopted, everybody wants to understand it and see if they can participate." She said 99 percent of the calls come from owners of farmland who seem legitimately interested in the new system.
"We have yet to find the right partners, but we have partners looking for one another. We're on the brink, we know."
Much of the reluctance to be the first to sell a TDR stems from uncertainty about price. The planning board staff said a TDR would be worth $6,000 to $12,000. Developers have said they were making offers ranging from $5,000 to $8,000. Some farmers say they could gotten as much as $20,000 per acre under the old zoning, however. They charge that the planning board and County Council are denying them the opportunity to profit from their land.
Another reason TDRs have not been selling is that few receiving areas are ready for development. The Olney master plan has receiving areas, but only for TDRs from the 15,000 acres in the Olney preservation district. The Eastern Montgomery County Master Plan contains receiving areas for about 3,000 development rights, but it has yet to be passed by the County Council. Any TDR transaction for the Burtonsville and Fairland area in that plan would have to be contingent on the plan's adoption.
Planners working on the Damascus master plan say one of the options being proposed for Damascus includes receiving areas.
Harrison King, a member of the Agricultural Advisory Committee formed to work with the planning staff, said that for the first time in two or three decades, farmers are divided.
"Young farmers who want to do a lot of commercial farming are for it (TDRs). Older farmers near retirement who hold valuable land close to subdivisions are against it, because even with the sale of TDRs they'd lose a tremendous amount of equity," he said.
A number of farmers fought to be exempted from the plan, and eventually won. They include King, Barbara Stiles, Charles Burton and Sally Carl in the Goshen area and Patricia Tregoning in the Cedar Grove area.
Four others have filed suit in Montgomery County Circuit Court, charging that the plan is illegal because not enough receiving areas have been designated to allow them to be compensated for the loss of development rights on their land.
"They had no difficulty in identifying 88,000 acres in sending areas (73,000 acres in the general preservation area and 15,000 in the Olney area). How can they say they have a problem in designating receiving areas?" asked John Delaney of the Linowes and Blocher law firm, which is representing the farmers. "The County Council is taking property without compensating the land owners. It has shied away from the painful act of designating receiving areas."
Aside from the farmers' contention that they should not be precluded from earning whatever profits their land might bring from sales to developers, they also say that 25-acre parcels are not big enough to farm.
As a result, they say, mansions and large estates will be built on these large lots, and farming will be no better protected than before.
Rene Johnson, who works for the county's Office of Economic Development and acted as liaison between the farmers and the planning board staff, said the zoning was set at 25 acres because planners decided that was the minimum size of a working farm. A farm family can earn a reasonable income from 25 acres if it raises high-income crops such as berries, fruits and vegetables, he said.
To which farmers like Schaffer reply, "Raise vegetables? Who'd buy them? You'd have to peddle them on the street. Supermarkets don't buy from small farmers."
The plan also envisions a Development Rights Bank, which would back private bank loans to farmers using TDRs as collateral. The bank might purchase TDRs under specific circumstances, such as when a farmer has applied to the state's development right purchase program and has been turned down because the state had insufficient funds. Legislation to set up the bank aspect of the plan is before the County Council.
In Calvert County, where an agricultural preservation plan has been in place since 1979, inclusion is voluntary. Eleven farms covering 1,800 acres have opted for participation, and another four farms totaling 700 acres are in the process of applying.
If they are accepted in the preservation district, they agree not to subdivide their property for eight years. During that period, they get a 100 percent property tax credit on farm and forest land, excluding improvements.
Farmers in the Calvert County plan get one development right per acre, which they may sell.A developer needs five development rights to build one house in the development area, which comprises about 685 acres.There has been only one sale of development rights: Richard Eisenman of Dunkirk sold the rights to his 62-acre farm for $1,200 per acre. After he sold the development rights, he also sold the farm. He said selling the rights and the farm separately enabled him to offer a better price on the land.
"In order to make the program acceptable to farmers, we made it volunteer," said Greg Bowen of Calvert County's Department of Planning and Zoning. "But maybe it's not as effective as in Montgomery County, because if there is not widespread support among farmers, we could still have leap-frog development."
The state's own agricultural land preservation program was started in 1979. Maryland has brought the development rights to 12 farms totaling 2,200 acres in Carroll, Howard and Anne Arundel counties, and is now processing applications for 78 more farms. These amoung to 11,000 acres, and the program has funds to buy development rights for about half. The state pays an average of about $1,000 per acre in return for the farmer's promise not to develop his land. After 25 years, the farmer may ask for a review of his easement if he feels the land is no longer suitable for farming.