Budget Amendment ID: FY2019-S4-51-R1
Redraft OTH 51
APR Waiver and Appeals
Mr. Rodrigues, Ms. Gobi, Messrs. Tarr, Ross, Moore, Humason, O'Connor and Montigny moved that the proposed new text be amended by inserting, after section 5 the following 7 sections:-
“SECTION5A. Section 1 of chapter 20 of the General Laws, as appearing the 2016 Official Edition, is hereby amended by adding the following paragraph:-
The commissioner shall notify and provide the board with an opportunity to consult, review and comment on policies and regulations proposed by the commissioner pursuant to section 23.
SECTION 5B. Subsection (a) of section 23 of said chapter 20, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following 4 sentences:-
The commissioner of agricultural resources shall, subject to the approval of the agricultural lands preservation committee established in section 24 and in consultation with the board of agriculture established in section 1, establish policies and promulgate regulations for the management and oversight of the program to assist the commonwealth in the acquisition of agricultural preservation restrictions. The commissioner shall promulgate regulations pursuant to this section in accordance with section 2 of chapter 30A, including the requirement that a public hearing be held. The regulations shall, at a minimum: (i) establish criteria for when the department may exercise a right of first refusal, option to purchase at fair market agricultural value or other similar right contained in an agricultural preservation restriction as held by the commonwealth; and (ii) establish a process for waiver requests pursuant to subsection (d). Nothing in this section shall be construed as requiring the department to include any of the rights above when acquiring an agricultural preservation restriction.
SECTION 5C. Said subsection (a) of said section 23 of said chapter 20, as so appearing, is hereby further amended by adding the following 2 paragraphs:-
As a condition of an agricultural preservation restriction acquired under this section, the owner of land subject to such a restriction held by the commonwealth shall be required to participate in a meeting with the department to discuss, and for the department to explain, the terms and conditions of the agricultural preservation restriction. If the landowner intends to sell the land subject to the restriction, the landowner shall, prior to submitting a requisite notice of intent to sell, participate in a meeting with the proposed purchaser and the department to discuss the requirements under this section and the requirements of any requests for waivers of the department’s right to exercise or assign a right to acquire an interest in land through a right of first refusal, option to purchase at fair market agricultural value or other similar right contained in the agricultural preservation restriction. A meeting held in accordance with this section shall occur on the parcel of land subject to the restriction under consideration or at a location and time agreed upon by the landowner, proposed purchaser of the land and the department. If the agricultural preservation restriction was acquired in cooperation with a partner agency, the department shall obtain the approval of the partner agency prior to incorporating these conditions into any agricultural preservation restrictions.
The department shall review, once every 3 years and in consultation with the board of agriculture and the agricultural lands preservation committee, all existing guidance, policies, procedures and regulations relative to the management and oversight of the program pursuant to this section and propose updates to the guidance, policies, procedures or regulations that are necessary to improve and modernize the management of the program. This review shall include regional public hearings to assess the effectiveness of the program and existing guidance, policies, procedures and regulations. A copy of any guidance, policies, procedures or regulations, whether proposed or promulgated under this section, shall be mailed to all owners of land subject to agricultural preservation restrictions held by the commonwealth not less than 21 days prior to the date of a public hearing.
SECTION 5D. Subsection (c) of said section 23 of said chapter 20, as so appearing, is hereby amended by striking out, in line 49, the word “, may” and inserting in place thereof the following words:- or any landowner of land subject to an agricultural preservation restriction who is subject to and aggrieved by a decision of the department to exercise or assign a right to acquire an interest in land through an option to purchase at fair market agricultural value, a right of first refusal or other similar right for land subject to an agricultural preservation restriction as held by the commonwealth on their land may.
SECTION 5E. Said subsection (c) of said section 23 of chapter 20, as so appearing, is hereby further amended by adding the following paragraph:-
The department shall notify the aggrieved landowner in writing by certified mail of the determination not more than 3 business days after a determination made by the department under this subsection to exercise or assign a right of first refusal, an option to purchase at fair market agricultural value or other similar right contained in the agricultural preservation restriction. The department’s notice shall include notice of a right to request a hearing at which the aggrieved landowner may, not more than 10 days after receipt of such determination by the department, request a hearing before the committee under chapter 30A. If a timely request is received, the committee shall, within a reasonable time, hold a hearing in compliance with said chapter 30A. The committee shall designate a hearing officer to preside over the hearing, to assemble an official record of the hearing and to render a written decision that shall be submitted to the committee. The committee shall make the final decision not more than 14 days after holding a hearing or the time period established in the agricultural preservation restriction for transfer of the subject land following the department’s exercise of said right, whichever is earlier.
SECTION 5F. Said section 23 of said chapter 20, as so appearing, is hereby amended by adding the following 2 subsections:-
(d) The department shall waive its rights under this section to exercise or assign a right to acquire an interest in land through a right of first refusal, an option to purchase at fair market agricultural value or other similar right contained if a landowner of land subject to an agricultural preservation restriction held by the commonwealth has received a good faith offer, including a certified copy of an executed purchase and sale agreement, for a fixed consideration payable upon delivery of the deed for land subject to an agricultural preservation restriction from a farmer who, at a minimum: (i) has engaged in active commercial agriculture for not less than 2 years prior to the date of the request for a waiver under this section; (ii) demonstrates how the farmer will continue to engage in commercial agriculture to retain and use the land primarily and directly for agricultural purposes pursuant to sections 1 and 2 of chapter 61A and preserve the natural agricultural resources for a period of not less than 5 years after the date of sale by submitting a proposed farm business plan to the department; and (iii) has no prior record of a significant violation of the written agreement or terms of any agricultural preservation restriction held by the commonwealth; provided, however, that the department may waive the requirements of clause (iii) if the violation is deemed minor by the department; and provided further, that any person, party or entity who is subject to and aggrieved by a decision of the department not to waive its rights under this section may appeal to the agricultural land preservation committee.
The department, in consultation with the agricultural preservation lands committee and the board of agriculture, shall establish benchmarks and criteria to be used to evaluate and measure a farm business plan submitted by a farmer as part of any waiver request in accordance this section.
(e) Where an agricultural preservation restriction acquired and held by the commonwealth gives the department the authority to exercise or assign a right to acquire an interest in land through a right of first refusal, an option to purchase at agricultural value or other similar right, the landowner shall have the right to withdraw the landowner’s notice of intent to sell at any point prior to the department's exercise or assignment of the option to purchase at agricultural value or right of first refusal. A landowner’s decision to withdraw a notice of intent to sell shall not affect a landowner's right or obligation to submit to the department any future offer to purchase said land.
SECTION 5G. Section 24 of said chapter 20, as so appearing, is hereby amended by striking out, in lines 9 and 10, the words “2 of whom shall be owners and operators of farms within the commonwealth” and inserting in place thereof the following words:- “3 of whom shall be owners and operators of farms within the commonwealth and 1 of whom shall represent an organization that advocates on behalf of farmers.”; and
by inserting after section 57 the following 2 sections:-
“SECTION 57A. The department of agricultural resources shall commence its review of all existing policies, procedures and regulations required pursuant to subsection (a) of section 23 of chapter 20 of the General Laws not later than January 1, 2020.
SECTION 57B. The department of agricultural resources shall promulgate the regulations required by subsection (a) of section 23 of chapter 20 of the General Laws not later than 1 year after the effective date of this act.”.