Open Space Council Minutes

March 13, 2007

Page 1 of 9

OPEN SPACE COUNCIL

MINUTES

Legislative Hall

Senate Hearing Room, Second Floor

Dover, DE

March 13, 2007

9:00 a.m.

ATTENDANCE

Council Members

LynnW.Williams, Chairperson

NathanHayward, III

D. WayneHolden

HarveyMarvel

WilliamPowers, Jr.

JohnR.Schroeder

Representative RobertValihura, Jr.

Advisory to:

JohnA.Hughes, Department of Natural Resources & Environmental Control

Staff

GregAbbott, Parks & Recreation, DNREC

PhilCarpenter, Fish & Wildlife, DNREC

TimKaden, Parks & Recreation, DNREC

RobertF.Phillips, Deputy Attorney General, DOJ

AustinShort, Forest Service, DDA

RonVickers, Parks and Recreation, DNREC

BobZimmerman, Office of the Secretary, DNREC

RoseRyödi, Parks and Recreation, DNREC

Visitors:

Frances Aviles

RicardoTorres

EdJestice

I.Call to Order/Announcements

The meeting was called to order by Mrs.LynnWilliams, Chairperson, at 9:05a.m. She welcomed John Schroeder as a newly appointedOpen Space Councilmember. She also welcomed Council members and visitors and asked them to introduce themselves. Mrs.Williamsexpressedthanks for the services ofDr.JohnMcKenzie and Mr.DonaldLynchas former Council members and asked to conveyCouncil’s thanks to them in a letter.A quorum was present so she asked the meeting to proceed.

II.Review of Minutes of the September 19, 2006 Meeting

Council Chair Lynn Williams asked Council if they had changes to the December 12, 2006 minutes. Representative Valihura pointed out that his name was left off the attendance list and yet he was mentioned as making comments in the minutes. He askedfor a correction to show his presence. Mrs. Williams asked that a correction be made on page 2 # IV “State Resource Area Maps,” it should read: Revised State Resource Area Maps.It was moved and seconded to accept the minutes as corrected. The motion carried.

III.Financial Report

First,Mr. Vickers askedCouncil to please notify him if there were any changes and/or updates in the new member list. Second, heasked Council to look at the Open Space Program Fund Summary. The remaining Realty Transfer Tax funds for FY07 are $1,342,038.10. There were three previously approved multi paymentprojects and new projects not yet settled, totaling$2,332,000.00, puttingthe Fund Summary in anegative balance of ($989,961.90).A Federal reimbursement of $1,400,000.00related to the acquisition of the Sheats Farm at Blackbird area is expected first quarter of 2007. This reimbursementis from the CELP program administered by NOAA and managed by the State’s Coastal Management Program. This would leave anavailable balance of $410,038.10 for FY2007.

FY2008 beginning Realty Transfer Tax funds are $9million minus project commitments for Glatfelter-Tunnell ($3million); Robinson ($470,000); Annicelli ($1,240,000) leaving a remaining balance of $4,290,000.00.

Representative Valihura asked if this was the total amount and would FY2009 get a clear $9million. Mr. Vickers said it was, assuming there were no further multi-payment purchases.

There was one settlement since last meeting: White Clay Creek State Resource Area, Robinson Property. Mr. Hayward said this was the best property ever bought. The firstpayment of $1million was paid at settlement and $470,000.00 will be paid from FY2008 funds.

The Open Space Inventory was discussed. Mr. Vickers pointed out that the total acreage protected to date was 44,845.7675 acres. The average cost per acre for land purchases now is about $20,000. About 5 years ago an acre cost around $10,000.

Mr. Hayward requested that as part of our public education process that staff make a bar chart of 5year increments that show X amount of acres purchased and the average cost per acre. One would see the number of acres going down and the cost going up. Mr. Vickers agreed to work on providing this information.

IVAgency and Public Presentation

Mr.Vickers referred to the following handouts:

  1. State Resource Area FAQ’s
  2. A Guide to Methods Used in the 2006 Update of State Resource Area Maps
  3. A series ofmaps for each County: One map shows the SRA for that County and what is already developed in that County. The second map shows the SRA for that County with that portion of the SRA already protected overtop of the SRA layer. Protected SRA is defined as conservation lands owned in fee simple by public agencies and private conservation organizations, land that has a conservation easement or an agricultural preservation easement, and tidal wetlands. In each County, approximately two thirds of the SRA is already protected.

Mr. Zimmerman gave a summary of a letter sent to the County Council/Levy Court members, administrators and planning directors for each County. The letter was signed by Secretary Hughes and Connie Holland, Director of theState Planning Office. This letter set out what SRA’s represent, why they are important, and what some of the threats are in terms of protecting the important features of the SRA’s. Most importantly, the letter lays out what the State will look for in each County’s upcoming Comprehensive Land UsePlan. The State is looking for two things in the plans: (1) incorporation of the SRA maps as part of the conservation element; and (2) the plan should include a series of strategies of how the County will go about protecting the SRA’s.The letter presented eight elements that the State is looking for:

  1. Maintain large areas of contiguous habitat and avoid fragmenting these areas
  2. Maintain meaningful wildlife corridors and potential non-consumptive bicycle and pedestrian connections between habitat areas and adjacent land uses
  3. Protect rare landscape elements, sensitive areas and associated species
  4. Allow natural patterns of disturbance to continue to maintain diversity and resilience of habitat types
  5. Minimize direct and indirect human disturbances and the introduction and spread of non-native species and favor native plants and animals
  6. Minimize human introduction of nutrients, chemicals and pollutants
  7. Avoid land uses that deplete natural resources over a broad area and allocating such land uses to areas of minimal natural resource impacts
  8. Compensate for adverse effects of development on natural processes

The Counties will have 18 months after the certification of the plans to devise any ordinances or overlay protection standards for the SRA’s. The Department hired consultants that are working on a set of guidelines to address this and provide examples of types of protection options. Open Space and related information can be found on a new and improved DNREC website:

Secretary Hughestold Council that he made a presentationon the SRA’s to the Sussex County Council and to the Kent County Levy Court. The Sussex County Council presentation received a somewhat negative reception. In the evening on the same day, he received a very positive reception from the Levy Court. He is scheduled to make the same presentation to New Castle County Councilin three weeks. He emphasized at the presentations that each County will chose their own methods of protection for the SRA’s and that the Department is offering the assistance of the consultants to accomplish this.

Mr. Hayward referred to Mrs.Williams’s point of correction to add Revised SRA Maps of 2006 and thatunder the legend maybe it would be helpful to say State Designated Resource Area maps. Also, it may be more appropriate to use developed or developing lands, since some of the lands do not have any structures on them yet. Secretary Hughes said we should include both concepts.Mr. Vickers said the SRA’s are final and have already been sent to the Counties as of September 27, 2006 but will use the developed and developing concept.

Mr. Powers asked about the County process and schedules.

Mr. Zimmerman said he tries to make sure when meeting with the County planning directors to understand the schedules and processesthey have established to update their Comprehensive Plans. Each of the schedules is different.New CastleCounty’s draft plan wasalready reviewed by the Office of State Planning. Kent and Sussex still have a long way to go.

Mrs. Williams opened the meeting to the public and invited them to speak:

Frances Aviles: Has land southwest of Camden and complained that it has been difficult getting information from DNREC. She did not know anything about SRA and only just recently found what was going on. She said the meetings on the SRA’s were notadvertised, nothing was published in the paper. That is why she is attending the meeting today, to find out more. She feels that she is being discriminated against because she has a lot of trees on her property. Her property is in the green area and even though they have been protecting their property all these years they feel penalized. She will meet with Mr.Vickerson 3/14/07 to get a better understanding.

Ricardo Torres: (brother of Frances Aviles)Said the letter he received from the Secretary’s office did not tell him a whole lot about what it really meansto have ones property in the SRA. The letter just says ones property has been put in an SRA. He is concerned because his property is mostly wooded and wants clarification on what the restrictions are.

EdJestice: From the DE Farm Bureau, Inc., was also concerned about the SRA’s. In November 2006, the delegate body from New Castle, Kent and SussexCounties came together for their annual conventionwhereby a resolution was passed. He proceeded to read it:

Resolution 2006-4:

WHEREAS, the State of Delaware has promulgated a new set of maps known as “state resource area maps;” and

WHEREAS, there are significant and long term impacts on citizens who live and work in areas designated on these maps, but most specifically small and large landowners; and

WHEREAS, the Delaware General Assembly passed Senate Bill No. 397, which directed that DNREC notify in writing property owners that were included in these maps so they can be given an opportunity to opt out;

THEREFORE, BE IT RESOLVED, that the Farm Bureau supports an effort to require landowner notification by the Department of Natural Resources and Environmental Control.

(Approved as Amended)

In the “Therefore, Be It Resolved” it was amended to read:

THEREFORE, BE IT RESOLVED that the Farm Bureau requires landowner notification by the Department of Natural Resources and Environmental Control to include the right of landowners the option to remove the “state resource area” designation from their property or properties and remove said designation from any and all maps.

Mr.Jesticeattended the SussexCountymeeting and heard about the KentCounty meeting. He said this was a grassrootsissue and that he has never seen so many landowners come out on anythingand on any subject in years. This is a big issueand it’s not going away. Senate Bill 397 was acted on last year and another Bill could come out again this year. He felt that something was wrong when a bill was supported by both the Senate and House and then vetoed by the Governor. He said the SRA situation still needed to be addressed further.

Representative Valihura said something is wrong when a Bill is passed at 3:30 in the morning.

Mr. Holden said that as a member of the Open Space Council and an owner of two farms and a member of the Kent County Farm Bureau he wished to register his opposition to the Farm Bureau resolution. As a former Chairman of the Delaware Chapter of the Nature Conservancy, and having served on this body, he considered himself knowledgeable and extremely well informed. He has examined very closely the process, examined the properties that were chosen, and can attest that the land that was selectedand placed in the SRA designation is exactly what should have been placed in the designation. There was no overstepping of boundaries as to what should be preserved. Due process was carried out. Herealizes that there are those that object but there are also those members that object to the position that the Farm Bureau has taken.The Farm Bureau does not speak for him when it saysthe process should be reversed by a bill going through the legislature.He disagrees with the Farm Bureau’s position on this and wanted to publicly state it for the record.

Mr. Powers said he is also a member of the Farm Bureau and he was at the meeting when the resolution passed. He said Mr. Holden should have been there to raise an objection.

Mr.Jestice said as the leader of the Farm Bureau, he is not trying to be negative. Farmers take care of their land. Owners, who pay mortgages on their land for years and years,are disappointed when they get a letter saying that the State is designating their land in such a way. The Farm Bureau has a delegate body that comes from each county and each county is differentand also different in opinions. But when the resolutions are passed in November 2007, it is his job to bring them out and present them. This subject will be pursued in the House and Senate and he promises Council will see this Bill again. It is a big issue to the Farm Bureau.

Mrs. Torres felt that her property was designated an SRA because of the forested areas and the resources that are there. Her property has been preserved since her parents and before them. She feels she is being discriminated against for preserving her property.

Mrs. Williams said there are a lot of features, natural, geological or historical on the lands that were here long before people were here and will be here long after people are gone. What people do with the land is another thing, some of which has shown up in the SRA’s just how they have treated the land in the last 400 years - what they can do and what they cannot do with it, what they might do and what they might not do with it. These maps from the Open Space Council’s point of view, have tried to note on a scientific basis, what qualities and natural resources are inherent in that land. And, in some cases, it is trees which are there naturally and in some cases it is trees that are planted. Council has been trying to map the natural resources of the land, the water supply, the mineral attributes, the agricultural attributes, and soils and it doesget confusing sometimes.Mrs. Williams said the Council has tried to do a scientifically based assessment of the important natural resources.

Mr.Torres said there are a lot of people who do not understand what all the restrictions are. He was not sure if his property could be logged. It’s just that everyone is getting up in age and the property is like having money in the bank. In case of illness his property could be sold to pay for medical bills. He worried that any restrictions that the SRA’s have put on his property have devalued it.

Mrs. Williams said she hoped Mrs. Aviles and Mr.Torres meet with RonVickers on 3/14/07 to get a clearer understanding of the SRA’s.

Mrs. Williams said she wanted to acknowledgethat theConservation Coalition had appealedto the Joint Finance Committee on behalf of the Open Space Council. She said there are many private citizens and nongovernmental organizationsworkingto the benefit of the Open Space Council to secure more acquisition funds.

Rating Sheets (i) Project Summary; (ii) Open Space Rating Criteria. Mr. Vickers said the documents are used to rate properties considered for acquisition. Specific staff members provide the rating numbers. This information is brought before the Interagency Working Group Meeting (a technical group from across several departments) and reviewed for recommendations of properties to bring before the Council. Staff is looking to review the rating sheets to see if all appropriate criteria and number values are correct. With the increasing land costs it is important to use as much appropriate information as possible to prioritize protection efforts. Mr. Vickers asked the Council to review the information and provide him with any comments. The Interagency Working Group is also reviewing this and will present a revised version to the Council at a later meeting.

Secretary Hughes asked for information regarding a property known as Gibraltar. The State purchased a conservation easement on it several years ago and now there is a proposal to amend the easement to allow for an additional building on the property.

Mr. Salkin said he had discussions about the Gibraltar property as recently as yesterday morning. The Open Space Council approved the purchase of the development rights on the Gibraltar property and the front portion of the adjoining Shaw property. Both were owned by the Sharp family. The remaining fee simple interest in the Gibraltar property was donated to Preservation Delaware. Preservation Delaware’s initial plan was to lease the building for a small hotel or inn and retain the gardens for public use. The structure would have to be restored following restrictions in the conservation easement. Unfortunately that deal fell through. Preservation Delaware has spent the last seven years trying to find other alternatives for the use of the property. At the time of this first deal, the Director of HistoricalandCultural Affairs, Dan Griffith, agreed to a minor modification on the conservation easement to allow for a slightly larger addition to the historic house. This was actually anticipated when the project was first brought before this Council for endorsement and funding. The original easement called for a 4,000 square foot addition. And the amendment to the easement allowed a 6,500 square foot addition. And now Preservation Delaware has a tentative contract with a private company that wants to increase the square footage to build a 10,000 square foot detached office building at the back of the property. At this point, the Division of Historical & Cultural Affairsis going through a public process to seek input from neighbors, citizens, elected officials and others for their comments about this proposal. As of yesterday (3/12/07), they still did not have specific recommendations whether to approve the change or not.If they decide that thisis in the bestinterestof the property to allow for the new building in order to provide capital and ongoing resources to Preservation Delawareto maintain the rest of the property, then Historical and Cultural Affairs may agree to change the easement. The major issues are whether it is allowable or whether it can be rationalized to amend the easementin order to preserve the historic fabric of the propertyorif it is a violation of the current easement. The issue could come back to the Secretary and possibly the Council for consideration. Under the law, if the land is converted from itsopen space or protective use, the change must be approved by the General Assembly. If it comes out of its protected status, then the Open Space Program must be compensatedfor its pro-rated share. At this pointDNREC has no further informationbut it is possible that this issue may come back to the Council for guidanceanda decision.