CHAPTER Agr 700 ACQUISITION OF AGRICULTURAL LAND DEVELOPMENT RIGHTS

Statutory Authority: RSA 432:21

PART Agr 701 DEFINITIONS

Agr 701.01 "Act" means RSA 432:18 et seq., pertaining to the acquisition of agricultural land development rights, as amended.

Agr 701.02 "Agricultural land development rights" means "agricultural land development rights" as defined in RSA 432:18, I.

Agr 701.03 "Agricultural preservation restriction" means "agricultural preservation restriction" as defined in RSA 432:18, II.

Agr 701.04 "Agricultural use" means "agricultural use" as defined in RSA 432:18, III.

Agr 701.05 "Applicant" means the fee simple owner of a site who requests that the State of New Hampshire purchase, release or modify agricultural land development rights, pertaining to the site.

Agr 701.06 "Commissioner" means the commissioner of agriculture, markets and food.

Agr 701.07 "Committee" means "agricultural lands preservation committee" established by RSA 432:19.

Agr 701.08 "Conservation commission" means "conservation commission" as defined in RSA 432:18, VI.

Agr 701.09 "Filed" means the actual receipt of a document or application at the committee's office in Concord in a form consistent with these rules.

Agr 701.10 "Governing body" means "governing body" as defined in RSA 432:18, VII.

Agr 701.11 "Municipality" means "municipality" as defined in RSA 432:18, VIII.

Agr 701.12 "Site" means "site" as defined in RSA 432:18, IX.

Agr 701.13 "Soil Potential Index (SPI)" means the official United States Department of Agriculture, Natural Resources Conservation Service measure of soil productivity under standard conditions as adjusted by the cost of overcoming soil limitations plus any continuing limitations not practical to overcome.

PART Agr 702 APPLICATIONS - FILING REQUIREMENTS

Agr 702.01 Applications.

(a) Applications for new sites shall be accepted within 90 days following an announcement made by the committee that applications will be accepted.

(b) For the application to be considered the proposed site shall be capable of active, productive agricultural use in its current state.

(c) Applications to modify or release existing restrictions may be filed at any time.

Agr 702.02 Application Filing.

(a) An original and 3 copies of the application shall be filed with the committee.

(b) A copy of the application shall be simultaneously mailed to the governing body of the municipality in which the site is located.

Agr 702.03 Agreement Not to Sell.

(a) The applicant shall agree not to sell or commit to sell the land covered by the application within a period of 120 days from the date of receipt of a copy of the application by the commissioner.

PART Agr 703 NEW SITE APPLICATIONS

Agr 703.01 Content of Application. The applicant shall submit the following in the order listed as part of an application for an agricultural preservation restriction:

(a) Name of the applicant's business and/or farm name;

(b) Name, address, telephone and fax number if available of the applicant;

(c) Owner(s) of record of the proposed site;

(d) Location and/or address of the proposed site;

(e) Size of the proposed site in acres;

(f) Deed reference of the proposed site, including book and page;

(g) Assessor's valuation records of the proposed site, including number and lot;

(h) Identification of the site by deed reference or assessor's records and by a map showing all acreage to be included within the site as well as contiguous acreage, if any, under the same ownership to be excluded from consideration;

(i) A description of the agricultural uses of the proposed site including:

(1) Acreage or quantities of crops grown;

(2) Numbers and kinds of livestock;

(3) Forest products;

(4) Greenhouses;

(5) Specialty crops; and

(j) If acreage is leased to others for agriculture, the following:

(1) The number of acres; and

(2) The remainder of time the lease will be in force;

(k) The following maps:

c. A survey as required by Agr 706.01;

(l) A list of the following buildings or structures if they exist on the site and a brief description of their uses:

(1) Barns;

(2) Equipment storage;

(3) Livestock housing;

(4) Milking parlors;

(5) Crop storage;

(6) Processing areas;

(7) Greenhouses;

(8) Roadside stands;

(9) Residence;

(10) Housing for seasonal workers; and

(11) Any other buildings not listed in (1) - (10) above;

(m) A description of the land of the entire farm under the ownership of the applicant and the total acreage to be placed under development restriction, for the following:

(1) Tillable cropland;

(2) Nursery or orchard;

(3) Pasture;

(4) Woodlands;

(5) Other, which shall be specified;

(6) Land occupied by farm buildings;

(7) Land occupied by commercial buildings or residences; and

(n) The following information, as applicable:

a. Farmland;

b. Woodland;

c. Farm buildings;

d. Other buildings;

e. Commercial lots;

f. Residence(s);

g. Residential lots; and

h. Other, as specified by the applicant;

(3) The property tax rate and tax year;

c. Any and all liens and encumbrances on such land.

(o) The signature of the applicant.

Agr 703.02 Language of Proposed Agricultural Preservation Restriction. The application shall include a draft of the actual deed restriction proposed by the applicant which conforms to the following:

(a) Construction or placing of buildings except those used for agricultural purposes or for dwellings used for family living by the landowner shall be prohibited and the area within the site where such construction shall be permitted shall be expressly designated;

(b) Excavation, dredging or removal of loam, sod, peat, gravel, soil, rock or other mineral substance in such a manner as to adversely affect the site's future agricultural potential shall be prohibited, and the area within the site where any such activities shall be permitted shall be designated;

(c) Other acts or uses detrimental to such retention of the land for agricultural use, including but not limited to allowing soil erosion or growth of brush and woody species onto the land, shall be prohibited and the grantee shall be expressly authorized after issuing written notice to the grantor to enter the property and correct any nonconforming condition and to assess the expense against the grantor;

(d) Subdivision of the site shall be prohibited;

(e) All other customary rights and privileges of ownership shall be retained by the owner including the right to privacy and to carry out those practices consistent with RSA 21:34-a;

(f) The restriction shall be enforced by an action at law or by injunction or other proceedings in equity and shall entitle representatives of the grantee to enter the land in daylight hours to assure compliance;

(g) The restriction shall be in perpetuity except as released, in whole or part, by the grantee only under the stipulations expressed in RSA 432:24; and

(h) Any additional restrictions proposed by the applicant for the intended purpose of preserving the economic viability of the proposed site for agricultural use.

Agr 703.03 Options for Comment by the Municipality to the Committee.

(a) Within 60 days of the receipt of an application in accordance with Agr 703.01, the governing body of the municipality shall be notified by the committee and invited to submit comments, including the following:

(b) A recommendation by a governing body that the committee not purchase the development rights or the failure of a governing body to supply the information as outlined in this section shall not be construed as prohibiting committee consideration of said application.

PART Agr 704 DUTIES OF THE COMMISSIONER - NEW SITE APPLICATIONS

Agr 704.01 Acceptance for Filing. When an application is tendered for filing, the commissioner shall:

(a) Examine the application to determine if it is facially complete. If the application is not facially complete, the applicant shall be notified of any apparent errors or omissions and afforded the opportunity to provide the information. If the application is complete, the commissioner shall notify the applicant that it has been accepted for filing. If the applicant fails to provide the information required in Agr 703 within 30 days and after being notified of the missing information, the application shall be denied;

(b) Authorize a field inspection of the land and agricultural area covered by the application including preparation of a preliminary estimate of the probable value of the related agricultural land development rights;

(c) Submit the application to the committee for examination and evaluation according to Agr 705, Criteria for Evaluating New Site Applications; and

(d) Negotiate with the applicant concerning an extension of the agreement not to sell and any other matters germane to the completion of a provisionally-approved application and, when appropriate,

negotiation with the municipality and execution of an agreement between the committee and the municipality as to the financial assistance to be provided by the municipality in the purchase of the development rights.

Agr 704.02 Appraisal.

(a) If an application is provisionally-approved by the committee, an appraisal shall be conducted according to the following terms:

(2) Fair market value shall be determined in accordance with RSA 75:1 and Rev 600;

(3) The committee shall select the appraiser, subject to the approval of the applicant; and

(b) The applicant shall file the appraisal report with the committee within 90 days from the date that the provisional approval was granted or the application shall be dismissed.

Agr 704.03 Final Approval or Disapproval.

(a) Following completion of the actions described in Agr 704.01 and Agr 704.02, the commissioner shall within 30 days resubmit the application, with a report of such actions, to the committee for final action pursuant to Agr 705 as to whether the funds shall be reserved to purchase the development rights to the site.

(b) Approval shall include reservation of funds for purchase of the agricultural land development rights.

(c) Disapproval shall not preclude the applicant from resubmitting an application in the future.

(d) The commissioner shall inform the applicant of the committee's decision.

Agr 704.04 Application Returned to Municipality. If a municipality has entered into an agreement with the committee to provide assistance in purchasing agricultural land development rights, the municipality's share of the cost shall be forwarded to the commissioner for payment at the time of closing.

Agr 704.05 Preparation, Execution and Recording Before Payment. Preparation, execution and recording of the necessary instruments shall be approved by the commissioner before payment for the agricultural land development rights shall be made.

PART Agr 705 CRITERIA FOR EVALUATING NEW SITE APPLICATIONS - POINTS AWARDED

Agr 705.01 Evaluation of Applications. All applications submitted to the committee shall be evaluated and points awarded according to the criteria listed in subsequent sections of this part.

Agr 705.02 Land Evaluation.

(a) Each application shall be evaluated to determine the potential and suitability of the soils for agricultural production.

(b) The New Hampshire Soil Potential Index (SPI) developed by the U.S. Department of Agriculture Natural Resources Conservation Service shall be used. The commissioner hereby adopts as a rule the Soil Potential Index for Current Use Assessment of Farmland in New Hampshire, published by the U.S. Department of Agriculture, New Hampshire Natural Resources Conservation Service, Durham, NH, dated January 1993, in accordance with the National Soils Handbook, Part 621, dated 1996.

(c) The extent of each soil map unit on the subject property shall be measured and the acreage multiplied by the SPI for that soil.

(d) The resultant values shall be totaled and divided by the total acreage of the application.

(e) The value calculated in (d) above shall be the average SPI for the entire parcel. The average SPI for the parcel shall be multiplied by 0.3 and the product rounded to the nearest whole number, which shall be the number of points assigned to the application under this section.

(f) The maximum possible score for this section shall be 30.

Agr 705.03 Threat of Conversion to a Nonagricultural Use.

(a) "Conversion" means changing use of the land from agricultural production to such uses as commercial, residential, or industrial development.

(b) "General vicinity" means a distance of more than one and less than 5 miles from the perimeter of the property.

(c) "Immediate vicinity" means within a distance of one mile from the perimeter of the property.

(d) Points for threat of conversion to a nonagricultural use shall be awarded as follows:

(e) Some evidence or documentation shall be submitted in order to qualify for points under (d)(3) above, such as a copy of a written offer or names of the prospective buyers.

(f) The maximum points awarded for this section shall be 15.

Agr 705.04 Cost of Development Rights.

(a) The cost of development rights shall be measured as a ratio between the applicant's declared fair market or ad valorem value for the land and the applicant's declared value for the development rights to the parcel, as expressed in the formula below:

Declared development rights value = ratio %

Declared fair market value

(b) Points shall be awarded according to Table 700-1, Points Awarded for Cost of Development Rights below:

(c) If the ratio falls exactly on an even percentage, the points awarded shall be the higher of the 2 numbers.

(d) The maximum points awarded for this section shall be 15.

Agr 705.05 Economic Viability.

(a) The committee shall evaluate the economic viability and supporting services to maintain agricultural production.

(b) Availability of wholesale and retail markets for commercial products and supplies and services required for agricultural production shall qualify the application for 5 points.

(c) Information relevant to demonstrating availability of these markets shall be furnished in the following form:

(d) Concentration of farm and agricultural activity shall qualify the application for 5 points.

(e) The maximum points awarded for this section shall be 10.

Agr 705.06 Agricultural Activity.

(a) The committee shall evaluate current and recent usage of the land for agricultural production.

(b) A maximum of 5 points shall be awarded, according to the following criteria:

Agr 705.07 Additional Financial Participation. Financial participation by counties, cities, towns, charitable organizations or trusts shall qualify the application for up to 15 points, and shall receive one point for each 4 percent of the total cost assumed by the participating entity.

Agr 705.08 Gift of Easement or Other Deed Restrictions.

(a) Applicants offering to make gifts of preservation or conservation easements or other deed restrictions to additional land shall receive up to 10 additional points according to the following schedule:

(2) Each additional 10 percent shall qualify the application for one point.

PART Agr 706 CLOSING REQUIREMENTS - NEW APPLICATIONS

Agr 706.01 Obligations of Grantor.

(a) Before the committee shall relinquish the consideration to be paid for an agricultural preservation restriction, the grantor shall produce a current survey of the site.

(b) All costs for this survey shall be borne by the landowner.

(c) The survey shall be made by a New Hampshire licensed surveyor and shall be in a form which will allow it to be recorded in the registry of deeds with the grantor's deed.

(d) Development rights shall be recorded in the appropriate registry of deeds by an official of the municipality administering the site.

PART Agr 707 RELEASE OF AGRICULTURAL PRESERVATION RESTRICTION

Agr 707.01 Restriction Released by Committee.

(a) The agricultural preservation restriction placed on a particular site shall be released by the committee only if the site is no longer suitable for agricultural production.

(b) In making the determination to release under (a) above, the committee shall require the following:

a. Conservation commission;

b. Conservation district;

c. Planning board; and

d. Town or city manager or mayor;

(6) The committee shall hold a public hearing conducted as follows:

f. At least 2 committee members shall sit on the hearing panel;

PART Agr 708 PERMISSION FOR CONSTRUCTION ON OR ALTERATION OF SITE

Agr 708.01 Permission for Construction on or Alteration of Site.

(a) Construction of agricultural buildings or dwelling houses for the owner, operator or employees of a farm situated on a site or alteration of a site shall require approval of the committee.

(b) The owner of the site shall submit a request for approval for construction or alteration to the commissioner and a copy of such request to the governing body of the municipality in which the site is located which includes:

(1) The name of the owner and the location of the site;

(2) A description of the construction or alteration being proposed; and

(3) A map of the site showing the location of the proposed construction or alteration.

(c) Within 30 days of the receipt of a request for permission for construction on or alteration of the site the committee shall conduct a public hearing in accordance with RSA 541-A.

(d) The committee shall decide, upon the evidence presented at the hearing, whether the request conforms to the provisions of the restriction and whether construction on or alteration of the site shall be approved.

(e) Within 7 days of the hearing, the committee shall inform the owner and the governing body of the municipality in writing of its decision whether to grant the request.

PART Agr 709 REQUEST FOR RECONSIDERATION

Agr 709.01 Dissatisfaction With Action of Committee.

(a) If the applicant or the municipality is dissatisfied with the action of the committee in approving or disapproving an application, either party may request that the committee reconsider its action. The request for reconsideration shall be made to the committee within 30 days after receipt of the committee's initial decision.

(b) The committee, within 60 days of its receipt of such a request, shall reconsider the application in the light of such relevant and supplementary information presented to it.

(c) All parties shall be notified of the committee's decision on reconsideration within 30 days.

PART Agr 710 MONITORING AGRICULTURAL PRESERVATION RESTRICTIONS

Agr 710.01 Monitoring.

(a) The committee or its delegate shall view each parcel subject to agricultural preservation restrictions not less than once every 2 years to assure that its use complies with the deed restrictions, the rules of the committee, and applicable law.

(b) The committee or its delegate shall prepare a written inspection report to be placed on file within 60 days from the date of any inspection.

(c) The committee, pursuant to RSA 432:22, V, shall delegate responsibility for monitoring under this section to the conservation commission in the municipality, or the conservation district, in which the parcel is situated, or to the commissioner, under the following circumstances:

(2) Any of the entities named in (c) above, are unable to provide monitoring responsibilities.