Chapter 3.25A
WHATCOM COUNTY CONSERVATION EASEMENT PROGRAM
Sections:
3.25A.050 Designation of program administrator – Powers and duties.
3.25A.060 Conservation easement program oversight committee established – Powers and duties.
3.25A.070 Eligibility criteria.
3.25A.090 Conservation easement terms and conditions.
3.25A.100 Application and evaluation procedure.
3.25A.110 Purchase of conservation easements procedure.
3.25A.120 Restriction on buyback – Extinguishment and exchange of easements.
3.25A.010 Short title.
This chapter shall be known and may be cited as the “Whatcom County Conservation Easement Program.” For the purpose of this chapter this program shall be known as the “CEP.” (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2013-015 Exh. A; Ord. 2002-054 § 1).
3.25A.020 Purpose.
To establish a voluntary agricultural, forestry, and ecological conservation easement program for Whatcom County which will enhance the protection of the county’s farmland, forestland, and important ecosystem areas, enhance the long-term viability of the agricultural and forestry enterprises within the county and provide public benefit by retaining properties in permanent resource use, in addition to the protection of ecosystem functions and values. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.030 Applicability.
The CEP shall be available for all qualifying lands, as identified in the CEP guidelines, except those lands under the ownership or control of the United States of America, the state of Washington or an agency or instrumentality thereof. Any conservation easement acquired pursuant to this chapter shall be voluntarily offered by the owner. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.040 Definitions.
The following definitions shall apply in the interpretation and implementation of this chapter:
“Administrator” is that person placed in a managerial position over the daily operations of the CEP. The administrator shall serve as a direct liaison to the program.
The “CEP guidelines” shall be adopted by county council and contain the rules and regulations under which the CEP operates. They include eligibility criteria, site selection criteria, a standard conservation easement and other procedures and information necessary to ensure fair and consistent administration of the CEP.
“Conservation easement” means a nonpossessory interest in one or more parcels by one or more qualified easement holders under WCC 3.25A.090(B) acquired under RCW 64.04.130, whether the easement is appurtenant or in gross, voluntarily offered by an owner and acquired by purchase or donation pursuant to the CEP guidelines, imposing limitations or affirmative obligations for the purpose of retaining or protecting agricultural, forestry, and ecosystem values of the parcel or parcels.
“Development rights” means an interest in and the right to use and subdivide land for any and all residential, commercial and industrial purposes and activities which are not incident to agricultural, forestry, and/or ecosystem uses.
“Owner” means the owner or owners of the fee simple interest of the parcel.
“Parcel” means a legal lot of record, lawfully recorded in the Whatcom County auditor’s office. A conservation easement may contain one or more parcels; for purposes of this chapter the term “parcel” shall include all parcels covered by, or proposed to be covered by, the conservation easement.
“Qualifying lands” means those properties meeting the eligibility criteria established in the CEP guidelines for which conservation easements may be purchased pursuant to this chapter. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.050 Designation of program administrator – Powers and duties.
A. Designation. The administrator shall be designated by and report to the director of planning and development services.
B. Powers and Duties. The administrator or his or her designee shall administer the CEP and shall have powers and duties to:
1. Establish reasonable and standard procedures and forms consistent with this chapter and the CEP guidelines for the administration and implementation of the program.
2. Promote the program in cooperation with the CEP oversight committee by providing educational materials to the public and conducting informational meetings.
3. Investigate and pursue, in conjunction with the county, state, federal and other programs available, to provide additional public and private resources to fund the program and to maximize private participation.
4. Evaluate and rank all applications to determine their eligibility and provide assistance to the CEP oversight committee in ranking properties.
5. Coordinate the preparation of appraisals.
6. Negotiate conservation easement terms and value with the owner or owners.
7. Provide staff support to the county council, the CEP oversight committee, and the county’s authorized appraiser.
8. For each conservation easement accepted into the program, establish baseline data, and assure that the terms and conditions of the easement are monitored and complied with by coordinating a monitoring program with each easement holder. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.060 Conservation easement program oversight committee established – Powers and duties.
A. Establishment. The CEP oversight committee is hereby established, as follows:
1. The committee shall consist of nine members appointed by the county executive and confirmed by county council. Each member shall be a resident in and of Whatcom County. The committee shall be comprised of two farmers, one farmer or forestry representative, one individual representing farm-supporting businesses, one individual possessing real estate experience, one individual (nonfarmer) from the unincorporated county, one individual (nonfarmer) from an incorporated city, one member with expertise in agricultural programs, and one conservation easement-holding entity. Any member who has an ownership interest in the land submitted for participation in the program shall recuse themselves from voting.
2. The members of the committee shall serve at the pleasure of the county council. Each term shall be for four years.
3. The members of the committee shall serve without pay, but the county council may, at its discretion, reimburse members for actual and necessary expenses incurred in the performance of their duties.
4. The committee shall elect a chairperson and vice-chairperson at its first meeting each calendar year.
5. The administrator shall be an ex officio member of the committee.
B. Purpose. To provide oversight and evaluation for the county CEP. The CEP oversight committee’s role is to advise the council in the selection of eligible lands offered for CEP acquisition.
C. Powers and Duties. The CEP oversight committee shall have the powers and duties to:
1. Promote the program, in cooperation and under the guidance of the administrator, by providing educational materials to the public and conducting informational meetings.
2. Review and make recommendations to the administrator and the county council as to which conservation easements should be purchased.
3. Annually review the CEP guidelines and recommend to the county council any changes needed to maintain the program’s consistency with the comprehensive plan, or to improve the administration, implementation and effectiveness of the program.
4. Provide an annual report of program accomplishments to the county council and county executive.
D. Organization – Meetings. Meetings of the committee shall be open and accessible to the public and shall be subject to the Open Public Meetings Act. The committee shall determine its own meeting schedule but shall meet at least annually. A public comment period will be provided at each meeting. Written records of meetings, decisions, findings, and recommendations shall be kept and such records shall be public. The committee shall adopt its own rules and procedures for the conduct of business. The committee shall elect a chairperson from among its members who shall preside at its meetings. A quorum shall consist of five members present and the committee shall operate on a “majority rule” basis.
E. Technical Advisory Committee. A technical advisory committee, without voting privileges, may be formed to advise the CEP oversight committee on technical/scientific matters as needed. Representatives may include but not be limited to individuals from the following agencies: Cooperative Extension Service, National Resource Conservation Service and Whatcom Conservation District. (Ord. 2024-008 § 1 (Exh. A); Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.070 Eligibility criteria.
In order for a parcel to be eligible for a conservation easement, it must meet eligibility criteria as defined in the CEP guidelines. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2011-025 § 1 Exh. A; Ord. 2002-054 § 1).
3.25A.080 Ranking system.
In order to effectuate the purposes of this chapter, parcels for which conservation easement applications have been received shall be evaluated by utilizing the site selection criteria as contained in the CEP guidelines. The ranking system shall be used to prioritize the acquisition of conservation easements. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.090 Conservation easement terms and conditions.
Each conservation easement shall conform with the requirements of this chapter. The deed of easement shall be in a form approved by the county attorney, and shall contain, at a minimum, the provisions incorporated in the standard agricultural, forestry, or ecological conservation easement. Central to the purpose of the CEP are the following:
A. Allowable Uses. Uses that are compatible with the long-term productivity of the soil for the pursuit of farming or forestry enterprises and/or protection of ecosystem functions and values.
B. Designation of Easement Holders. The county shall be the easement holder, and, if designated by the county council, one or more other public bodies or qualified organizations, as defined in RCW 64.04.130.
C. Conservation Easement Duration. A conservation easement acquired under the terms of this chapter shall be in perpetuity. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.100 Application and evaluation procedure.
Beginning in the first year following the adoption of the ordinance codified in this chapter and continuing thereafter, the county shall conduct a voluntary property selection process generally as follows and pursuant to the CEP guidelines:
A. Application. Owners of qualifying lands may apply to the CEP at any time. Application materials will be provided by the administrator and will include, at a minimum, a standard application form and information about the CEP. Applications shall be submitted to the administrator and reviewed for completeness.
B. Evaluation. The administrator shall review and determine eligibility and priority classification of applications. The applications ranked by the administrator shall be forwarded to the CEP oversight committee. The committee shall review the applications and establish parcels for easement purchase based on selection criteria contained in CEP guidelines. The committee shall then forward the parcels to the county council which shall review and prioritize parcels on which it will seek to purchase conservation easements.
C. Appraisal. Based on anticipated funding, the administrator shall estimate the number of appraisals that can be completed during the fiscal year. The committee shall select applications to be appraised in accordance with CEP guidelines.
D. Requirements and Deadlines May Be Waived. Any requirement or deadline set forth in this chapter or the CEP guidelines may be waived by the county council if, for good cause, it is shown that urgent circumstances exist that warrant consideration of an application. Under such circumstances the council may purchase a conservation easement at any time and through any process it deems necessary.
E. Reapplication. An owner of a parcel not selected by the county council for purchase of a conservation easement may reapply in the future. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2013-015 Exh. A; Ord. 2002-054 § 1).
3.25A.110 Purchase of conservation easements procedure.
Each application for a conservation easement shall be processed and evaluated pursuant to the requirements as contained in the CEP guidelines which will include at a minimum the following:
A. Conservation Easement Sale. The administrator shall arrange for an appraisal of the value of placing a conservation easement on the property, to be completed by an independent county-authorized appraiser. The value of the conservation easement will include the value from eliminating select development rights and imposing certain use restrictions in perpetuity in order to protect the agricultural, forestry, and ecosystem values of the property. The CEP oversight committee and administrator shall review the results of the appraisal. The administrator shall, in writing, invite the property owner(s) to grant a conservation easement to the county for the amount of the appraised value of such conservation easement, subject to the terms and conditions of a proposed deed of easement. Property owners desiring to grant a conservation easement shall submit a written acceptance of the offer. Nothing in this chapter shall compel an owner to submit an acceptance of the offer.
B. Acceptance. Requests to purchase conservation easements shall be made to the county council for acceptance.
C. Conservation Easement Established. A conservation easement shall be established when the owner and an authorized representative of the holder of the easement have each signed the deed of easement. The deed shall be recorded in the Whatcom County auditor’s office.
D. Costs. If the county council approves the purchase of a conservation easement, the county may pay all other costs including environmental site assessments, surveys, recording costs, if any, and other charges associated with closing. However, the county shall not pay expenses or fees incurred by the property owner for independent appraisals or legal, financial, or other advice, or expenses or fees in connection with the release and subordination of liens to the easement purchased by the county. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.120 Restriction on buyback – Extinguishment and exchange of easements.
If circumstances arise that render the purpose of this easement impossible to accomplish, the easement can be extinguished only by judicial proceedings. In the event of such an extinguishment or the taking of the property by the exercise of the power of eminent domain, grantors shall pay to Whatcom County an amount determined by subtracting the fair market value of the property subject to this easement from the fair market value of the property unrestricted by this easement, at the time of extinguishment or condemnation, if Whatcom County is not compensated for its property interests at the time of the extinguishment or condemnation. Other details regarding restrictions on buyback or extinguishment as may be deemed necessary shall be contained in the CEP guidelines, and/or the easement deed. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2013-015 Exh. A; Ord. 2002-054 § 1).
3.25A.130 Authorization.
A. The county is hereby authorized to acquire conservation easements from lands described and prioritized in WCC 3.25A.080. Such acquisition may be accomplished by purchase, gift, grant, bequest, devise, covenant or contract but only at a price which is equal to or less than the appraised value determined as provided in this chapter and the CEP guidelines.
B. If the owner so elects, the county is authorized to pay the purchase price in a lump-sum single payment at time of closing, or to enter into contract for installment payments against the purchase price. When installment purchases are made, the county is authorized to pay interest on the declining unpaid principal balance at a legal rate of interest consistent with prevailing market conditions at the time of execution of the installment contract and adjusted for the tax-exempt status of such interest. (Ord. 2021-037 Exh. A; Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).