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).

1. 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.

Pursuant to N.C. Gen. Stat. §106-740, which provides that no state or local public agency or governmental unit may formally initiate any action to condemn any interest in qualifying farmland within a voluntary agricultural district until such agency or unit has requested the local Agricultural Advisory Board to hold a public hearing on the proposed condemnation, this article provides for such hearings. This Chapter shall not be interpreted or construed to limit the County's authority to acquire land within or outside a voluntary agricultural district for a public purpose, whether by purchase or condemnation

1. Upon receiving a request for condemnation, the Agricultural Advisory Board shall, within 2 days, publish a notice in a newspaper having general circulation in Henderson County describing the proposed condemnation. The notice shall state the time, date and location of the public hearing on the proposed condemnation. Such hearing shall be held within 14 days of receipt of the request.
2. The Board will meet to review:
   1. If the need for the condemnation has been satisfactorily established by the agency or unit of government involved, including a review of any fiscal impact analysis conducted by the agency involved; and
   2. Alternatives to the proposed condemnation that are less disruptive and of less impact to the agricultural activities and farm land base of the voluntary agricultural district within which the condemnation action is to take place.
3. The Board will consult with the County Cooperative Extension Service, United States Department of Agriculture Natural Resources Conservation Service, and may consult with any other individuals, agencies or organizations, public or private, necessary to the Board's review of the proposed condemnation.
4. Within 10 days after the public hearings, the Board will make a report containing its findings and recommendations regarding the proposed condemnation. The report will be made available to the public for comment prior to its being conveyed to the decision making body of the agency proposing condemnation.
5. Pursuant to N.C.Gen. Stat. §106-740, the County will not, within its scope of authority, permit any formal initiation of condemnation by local agencies while the proposed condemnation is properly before the Advisory Board within these time limitations.

The purpose of this article is to help meet the needs of agriculture as an industry and to prevent conflicts between voluntary agricultural district participants and nonfarm landowners in proximity to districts.

Voluntary agricultural districts will not be permitted in designated County growth areas, as delineated in the most recently adopted County Land Use Plan, such plan being adopted after the effective date of this Chapter.

The Board shall consult as much as possible with the North Carolina Department of Agriculture, the North Carolina Division of Soil and Water Conservation and any other entity the Board deems necessary to the proper conduct of its business.

1. A copy of this Chapter shall be recorded with the North Carolina Commissioner of Agriculture's office after adoption. 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. 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.    
2. Copies of the reports cited in Subsection A will be sent to:  
   1. North Carolina Commissioner of Agriculture.  
   2. North Carolina Department of Transportation.  
   3. North Carolina Department of Commerce.  
   4. Hendersonville Chamber of Commerce.  
   5. Any other entities the Board deems appropriate.  

At such time as Henderson County has a computerized land records system, it shall be required that such records 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.

The purpose of voluntary agricultural districts, per N.C. Gen. Stat. §106-738(b), are formed by landowners shall be to encourage the economic and financial well-being of farming areas, decrease the likelihood of legal disputes, such as nuisance actions between farm owners and their neighbors, undesirable nonfarm development and negative impacts on participating farms and to increase the identity and pride in the agricultural community and its way of life.  

1. An agricultural district shall initially consist of at least fifty (50) or more contiguous acres of qualifying farmland or at least five (5) qualifying farms, which collectively will create a district with Page 3 of 13 Chapter 45 - Farmland Preservation Published on Henderson County North Carolina (https://www.hendersoncountync.gov) each said farm lying within one mile of any other such farm. An agricultural district may be enlarged by adding qualifying farms subsequent to initial formation.
2. An agreement to sustain, encourage, and promote agriculture must be executed by each applicant in the district and submitted to the Agricultural Advisory Board for approval.
3. Landowners may apply to participate in existing districts and are encouraged to do so.
4. To secure County certification in an agricultural district, a landowner, for such designation, shall apply to the Agricultural Advisory Board. Application forms may be obtained from the Soil and Water Conservation District office.
5. Upon receipt of an application, the Henderson County Soil and Water Conservation District office, Farmland Preservation Coordinator, or its designee will evaluate each application pursuant to Article IV. Said parties shall evaluate, complete, and return copies to the Agricultural Advisory Board at the subsequent meeting.
6. The Board will meet and render a decision regarding the application. The Board will notify the applicant by mail of the Board's decision.
7. If the Agricultural Advisory Board denies the application, the petitioner has thirty (30) days to appeal the decision to the Henderson County Board of Commissioners. Such appeal shall be presented in writing. The decision of the Board of Commissioners is final.

1. By written notice to the Board, a landowner of qualifying farmland may revoke the preservation agreement formulated pursuant to Article IV Part 1 of this Chapter, or the Board may revoke the same preservation agreement based on noncompliance by the landowner. Such revocation shall result in loss of eligibility to participate in a Voluntary Agricultural District.

Developers of major subdivisions or planned unit developments shall designate on preliminary development plans the existence of voluntary agricultural districts within 1/2 mile of the proposed development.

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.