Chapter 45 - Farmland Preservation

1. The purpose of this Chapter is to encourage the voluntary preservation and protection of farmland from nonfarm development, recognizing the importance of agriculture to the economic and cultural life of the County.
2. Pursuant to the authority conferred by Article 61 of Chapter 106 of the North Carolina General Statutes, and for the purpose of promoting the health, safety, morals and general welfare of Henderson County, the Board of Commissioners of Henderson County, North Carolina, does enact the following sections, which shall be known as the "Farmland Preservation Program Ordinance of Henderson County, North Carolina."

The following terms are defined for purposes of this Chapter:

Agricultural Conservation Easement. An agricultural conservation easement (sometimes herein “ACE” or “Conservation Easement”) shall have the meaning defined in N.C Gen. Stat. §106-744 and to the extent not inconsistent with N.C. Gen. Stat. §106-744 generally means a written agreement between a landowner and a qualified conservation organization or public agency under which:

• The landowner agrees to keep the land available for agriculture and/or forestry and restrict subdivision or non-farm development and other uses that are incompatible with commercial agriculture and forestry and
• The qualified conservation organization or public agency shall monitor the agricultural conservation easement to ensure the easement terms are met.   

No limitations shall be stated or interpreted to prevent a landowner from conducting agricultural activities, including, but not limited to, the production of crops, forestry products, horticultural crops or products, tillage, livestock, and livestock products. Associated uses allowable are sales and processing necessary and customarily incidental to the agricultural activities on-site, which are in keeping with the program's purpose.

Board or Advisory Board. The Henderson County Agricultural Advisory Board.

Board of Commissioners.  The Henderson County Board of Commissioners.

Chairman. The Chairman of the Agricultural Advisory Board.

Conservation Agreement. Defined per N.C. Gen. Stat. § 121‑35 as a right, whether or not stated in the form of a restriction, reservation, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of the owner of land or improvement thereon or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic, or open condition or in agricultural, horticultural, farming, or forest use.

District. A voluntary agricultural district.

Enhanced Voluntary Agricultural District. The enhanced voluntary agricultural district (“EVAD”) shall have the meaning defined in N.C Gen. Stat. §106-743.1.

Farmland Preservation Coordinator. This refers to a Henderson County employee in the Henderson County Soil and Water Conservation District office who administers the Agricultural Preservation Program and supports the Agricultural Advisory Board.

Preservation Agreement. A voluntary agreement between a landowner and Henderson County for participation in the Voluntary Agricultural District Program.

Qualified Land Conservation Organization. A tax-exempt organization with a mission dedicated to conservation or preservation and experience in real property acquisition, a land trust, or a government entity. 

Voluntary Agricultural District.  The Voluntary Agricultural District (“VAD”) shall have the meaning defined in N.C. Gen. Stat. §106-738.

A County Agricultural Advisory Board, consist of nine (9) members appointed by the Board of Commissioners, is
hereby established.

1. Each Board member shall be a resident of Henderson County and shall be selected to provide the broadest possible representation of the geographical regions and to represent, to the extent possible, all segments of agricultural production existing within Henderson County as per N.C. Gen. Stat. §106-739.
2. The Board shall consist of nine (9) members.  The membership shall consist of five (5) members actively engaged in agriculture (as defined by NC § 106‑581.1.), two (2) at-large members with some form of agricultural knowledge, and two (2) at-large members from one of the following related professions or fields: real estate, engineering, surveying, environmental consulting, or finance. The Board of Commissioners shall appoint the members.  Preference shall be given to applicants who have experience with conservation easements.
3. All members are to serve for three (3) year terms and no more than two (2) consecutive term.
4. Any vacancy on the Agricultural Advisory Board is to be filled by the Board of Commissioners for the remainder of the unexpired term. The Agricultural Advisory Board may submit a recommendation for appointment.
5. Any member of the Agricultural Advisory Board may be removed with or without cause by the Board of Commissioners.
6. Each member of the Board shall receive ethics training annually through Henderson County, the School of Government, the Henderson County Soil and Water Conservation District, or the North Carolina Soil and Water Conservation Commission.

1. The Board is to elect a Chairman and Vice Chairman each year at its first meeting of the calendar year. The Chairman shall preside over all regular or special meetings of the Board. The Board shall adopt its own bylaws, and such bylaws or amendments thereto must be approved by the Henderson County Board of Commissioners.
2. The Board will use the calendar year as its meeting year. Meetings of the Board shall be publicized and conducted in accordance with provisions of the North Carolina Open Meetings Law. Such meetings shall be held at the call of the Chairman and at such other times as specified in the Board's rules of procedure.
3. The Board shall keep minutes of the proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact. The Board shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
4. The Henderson County Agricultural Advisory Board shall contract with the Soil and Water Conservation District office to serve the Board for recordkeeping, correspondence and application procedures under this Chapter and whatever other services the Board needs to complete its duties.

1. The Agricultural Advisory Board shall:
   1. Review and approve applications for qualifying farmland and Voluntary Agricultural Districts, Enhanced Voluntary Agricultural Districts, and Agricultural Conservation Easements, and make recommendations concerning the establishment and modification of agricultural districts, subject to the appeal of such decisions to the Board of Commissioners pursuant to N.C. Gen. Stat. §106-739(a)(1).
   2. Hold public hearings pursuant to Article VI of this Chapter.
   3. Advise the Board of Commissioners on projects, programs, or issues affecting the agricultural economy or activities within the County that will affect agricultural districts.
   4. Execute agreements with landowners necessary for enrollment of land in a voluntary agricultural district.
   5. Perform other related tasks or duties assigned by the Board of Commissioners.
2. Each district shall be assigned to a member of the Board who shall monitor and represent that district in all business conducted by the Board. Individual members will represent those districts closest to them geographically. No member will represent more than thirty percent (30%) of the total number of districts in the County or thirty percent (30%) of the total land area.
3. Each member shall state if there is a conflict of interest with any Agricultural Conservation Easement application the Agricultural Advisory Board reviews. If a Board member applies and requests federal, state, or local funding, that member shall not participate in reviewing or approving any application for the same review cycle as the Agricultural Advisory Board is considering their application.

As used in this Article, qualifying farmland per N.C, Gen. Stat. §106-737, must:

1. Be managed, if highly erodible land exists on the farm, in accordance with the Natural Resources Conservation Service defined erosion-control practices that are addressed to said highly erodible land; and
2. Be located in the unincorporated area of Henderson County; and
3. Either:
   1. Participate in the farm present-use-value taxation program established by N.C. Gen. Stat. Chapter 105, Article 12, or is otherwise determined by the county to meet all the qualifications of this program set forth in N.C. Gen. Stat. §105-277.3; or,
   2. Both:
      1. Be engaged in "agriculture," as defined in N.C. Gen. Stat. 
         §106-581.1; and,
      2. Qualify as a "bona fide farm" under N.C. Gen. Stat. §160D-903(a).

Voluntary agricultural districts will not be permitted in incorporated areas, except by a separate agreement or memorandum of understanding.

Voluntary and Enhanced Voluntary Agricultural Districts will be marked on official maps maintained by the Henderson County Soil and Water Conservation District office and displayed for public view. Maps are also available on the county’s website.

Henderson County’s Land Records shall include some form of notice reasonably calculated to alert a person researching the title of a particular tract that such tract is located within 1/2 mile of the property line of any tract of land enrolled in a Voluntary Agricultural District.

1. Developers of major subdivisions (as that term is used in the Henderson County Land Development Code) shall designate on preliminary development plans the existence of Voluntary Agricultural Districts and Enhanced Voluntary Agricultural Districts within 1/2 mile of the proposed development.
2. In addition, developers shall comply with all applicable provisions of the Henderson County Land Development Code, including but limited to those regarding Farmland Preservation Districts.
3. As used in this Article, unless the context clearly indicates otherwise, the terms “Voluntary Agricultural District” and “Enhanced Agricultural District” shall have the same meaning as the term “Farmland Preservation District” as used in the Henderson County Land Development Code.

The County may take such action as it deems appropriate through the Agricultural Advisory Board or other body or individual to encourage the formation of voluntary agricultural districts and to further their purposes and objectives, including a public information program to reasonably inform landowners of the farmland preservation program. Official Henderson County electronic land records shall indicate the boundary of the area within 1/2 mile of a voluntary agriculture district. The Land Development Code shall further indicate any required setbacks from such district.

The purpose of this article is to outline additional requirements of Henderson County’s Soil and Water Preservation Districts.

1. The Agricultural Advisory Board, or its designee, may consult with the North Carolina Cooperative Extension, the Natural Resources Conservation Service office, the North Carolina Department of Agriculture and Consumer Services, the North Carolina Division of Soil and Water Conservation, and any other entity the Board deemed necessary to the proper conduct of its business.
2. A copy of this ordinance shall be sent to the Office of the North Carolina Commissioner of Agriculture and Consumer Services, the North Carolina Cooperative Extension, and the Henderson County Soil and Water Conservation District office after adoption. The Henderson County Soil and Water Conservation District office is responsible for any required reporting.

At least once a year, the County shall submit a written report to the Commissioner of Agriculture's office indicating the status, progress, and activities of the County's farmland preservation program, including voluntary agricultural districting information regarding:

1. 1. Number of landowners, acres, and farms enrolled. 
   2. Number of acres applied. 
   3. Number of acres certified. 
   4. Number of acres denied. 
   5. Date each agricultural district was certified.

It shall be the duty of the Agricultural Advisory Board to advise the Board of Commissioners and any other agency or office to which the Board of Commissioners delegates authority to oversee County land use planning on the status, progress, and activities of the County’s Voluntary Agricultural District program and Enhanced Voluntary Agricultural District program. They also should coordinate the formation and maintenance of the VAD, EVAD, and agricultural conservation easements with the County’s land use planning activities, the County’s Comprehensive Plan, and the County’s Agricultural Preservation Plan.

1. Purpose. Preserving the County’s agricultural lands in a manner that directs and accommodates growth and development is a high priority for County residents. To this end, the County establishes the following goals:
   1. To permanently protect and conserve those land in the County best suited for agricultural uses;
   2. To identify and harmonize policies of government at all levels which may conflict with the goal of protection of farmland;
   3. To reduce land use conflicts between agricultural and other land uses; and
   4. To promote agriculture as an integral part of the County’s economy.
2. The Henderson County Soil and Water Conservation District staff and the Farmland Preservation Coordinator shall make recommendations to the Agricultural Advisory Board on selecting properties for the purchase and/or donation of agricultural conservation easements. Subject to the availability of local, state, and federal funding, the Henderson County Soil and Water Conservation District may acquire or support the acquisition of agricultural conservation easements consistent with this ordinance. It may seek assistance from any appropriate qualified conservation organization.

1. General. Subject to the availability of funds, the County may purchase or facilitate the purchase of agricultural conservation easements for agricultural and/or forestry lands. All applications for the purchase of agricultural conservation easements will be evaluated based on a ranking system. Applications may be ranked based on various site factors determined by the Henderson County Soil and Water Conservation District staff and Farmland Preservation Coordinator. Agricultural conservation easements may be purchased in accordance with the ranking of agricultural properties and the availability of funding.
2. Description. The purchase of agricultural conservation easements is legally binding, restricting the owners and future owners to agricultural and/or forestry land use. The agricultural conservation easements will be held by either Henderson County, the Henderson County Soil and Water Conservation District, Cooperative Extension, or in public trust by a qualified conservation organization. Agricultural conservation easements will be in perpetuity and compliance with the North Carolina Conservation and Historic Preservation Agreements Act and applicable federal and state laws.
3. Authority. Henderson County may apply for grant funding for its agricultural preservation program. The County may enter into cooperative agreements with a qualified conservation organization, the United States Department of Agriculture Natural Resource Conservation Service (USDA NRCS), the North Carolina Department of Agriculture and Consumer Sciences Agricultural Development & Farmland Preservation Trust Fund (NCDA&CS, ADFPTF) or other agencies to facilitate the agricultural conservation easement purchase.
4. Minimum eligibility criteria. There is no minimum acreage eligibility requirement to apply, but grant funding sources may have minimum acreage criteria.
5. Application procedure. An application must be submitted to the Henderson County Soil and Water Conservation District staff, Farmland Preservation Coordinator, or its designee. Applications will be accepted year-round, reviewed, and ranked for funding during two (2) annual reviews held six (6) months apart.
6. Review and ranking of applications. The Henderson County Soil and Water Conservation District staff and the Farmland Preservation Coordinator are responsible for developing and maintaining a system to rank and evaluate projects fairly and impartially. The agricultural preservation ranking system will be used to rank and prioritize applications received from landowners seeking the purchase of an agricultural conservation easement. The Farmland Preservation Coordinator, in coordination with the Henderson County Soil and Water Conservation District staff, will rank each application and present it to the Agricultural Advisory Board for approval.

1. General. Henderson County may accept a voluntary donation of agricultural conservation easements or work with partners to facilitate these donations.
2. Description. Donating agricultural conservation easements is legally binding, restricting owners and future owners to agricultural and/or forestry land use. The agricultural conservation easements will be held by either Henderson County or the Henderson County Soil and Water Conservation District or in public trust by a qualified conservation organization. They will be in perpetuity and compliance with the North Carolina Conservation and Historic Preservation Agreements Act and applicable federal and state laws.
3. Minimum eligibility criteria. There is no minimum acreage eligibility requirement to apply.
4. Application procedure. Upon contact by a landowner, a meeting will be set with the Henderson County Soil and Water Conservation District staff and the Farmland Preservation Coordinator or its designee to discuss the donation of an agricultural conservation easement.
5. Funding. Any application seeking funding shall be ranked under 45-87.

1. Baseline documentation purpose. This policy establishes the procedure for collecting, compiling, and storing baseline documentation for agricultural conservation easements managed by Henderson County, the Henderson County Soil and Water Conservation District, or a qualified conservation organization. The County must have baseline documentation for all properties it protects. This information establishes the condition of a property at the time of easement acquisition or donation, allowing comparisons with findings during subsequent monitoring events.
2. Baseline data collection. The volume and specificity of the information included in the baseline documentation report may vary depending on the easement terms and the property's conservation objectives. Henderson County’s policy is that the Henderson County Soil and Water Conservation District staff, the Farmland Preservation Coordinator, or their designee will collect baseline data.
3. Baseline data collected during a site visit will generally include:
   1. Boundary photos as well as photos of special features, structures, and other improvements and/or human modifications.
   2. Data and locations on a map of each photo, special feature, structure, and other improvements (Global Positioning System (GPS) is preferred);
   3. Other natural resource information documenting the conservation values of the site, such as soil maps, land cover data, natural community descriptions, ecological data, and other relevant agricultural or forestry information.
4. The easement grantee shall keep a copy of the baseline documentation report on file, which the landowner must review prior to closing.
5. Monitoring purpose. To protect conservation values and maintain safety on its fee simple properties, the Henderson County Soil and Water Conservation District staff, the Farmland Preservation Coordinator, or its designee will regularly monitor and maintain detailed records of inspections, problems on the property, and actions taken to address such issues.
   1. Monitoring personnel. The easement holder is responsible for overall monitoring supervision, which will be coordinated with the Henderson County Soil and Water Conservation District staff and the Farmland Preservation Coordinator. 
   2. Monitoring procedure. Comprehensive monitoring shall be performed at least annually, with additional monitoring visits and reports to be generated as needed. Property owners will be notified prior to the scheduled monitoring visit.

1. Severability. If any section, subsection, clause, phrase, or portion of this Article is for any reason found invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Article.
2. Conflict with other ordinances and statutes. Whenever the provisions of this Article conflict with other ordinances of Henderson County, the provisions of those other ordinances shall govern. Whenever the provisions of any federal or state statute conflict with this Article, the provisions of such federal or state statute shall govern. The sole remedy for a land use not complying with this Article shall result in a civil action and removal of the non-qualifying land from the Henderson County Voluntary Agricultural District or Enhanced Agricultural District program. Recreational use of land that does not interfere with agricultural uses as defined in N.C. Gen. Stat. §106-581.1 shall not be considered non-compliant with this Article unless otherwise stated in the agricultural conservation agreement.
3. Amendments. This ordinance and its articles may be amended by the Board of Commissioners.