PROTECTING MONTGOMERY’S AGRICULTURAL RESERVE

FOR THE NEXT GENERATION

Royce Hanson*

A quarter of a century ago, the Montgomery County adopted a unique master plan that placed almost a fourth of the county’s land area in an Agricultural Reserve. The plan combined downzoning over 90,000 acres from five acres to 25 acres per residential unit with a system of that assigned one Transferable Development Right (TDR) for every five acres.

The master plan was the result of many months of study and debate over how to protect a great and endangered natural, economic, and cultural resource, stretching from the Great Seneca to the foot of Sugarloaf Mountain, and to maintain the integrity of the county’s Wedges and Corridors General Plan. The "Western Wedge" had heretofore been maintained only because the soils required large acreages to support septic systems, and public water and sewer had not reached it. Although shown on the 1960 General Plan as low density, prior councils had in fact zoned most of it half-acre residential. In the 1970s the council agreed to a comprehensive rezoning of the area to five-acres—the least dense zone then on the books--to correspond more closely to the highest achievable residential densities on the land, but everyone recognized that if it developed at those densities Montgomery County’s development pattern would contain neither wedges nor corridors.

The 1980 Master Plan for Agricultural Preservation was, then, the culmination of over thirty years of controversy about how to allow farmers at the edge of an urbanizing region to recover their equity in the land, some of which had been in the same families for many generations, without consigning it to development as was being done in Northern Virginia, maintain an agricultural economy in the county, and allow for development to occur in areas where the county’s existing and planned public facilities could reasonably and more efficiently accommodate it.

It represented an historic agreement among landowners and farmers in the area, builders, conservationists, and public officials. It could not have been achieved without the good will of all the interested parties, the creative work of planners and attorneys, and the vision, commitment, and steadfastness of the County Council. It marked the beginning of Maryland’s and the nation’s most successful experiment in using the private market to achieve an important public purpose.

The Reserve has worked. A satellite image of the National Capital Region clearly demonstrates its success when compared with development patterns of its neighboring counties on both sides of the Potomac. By allowing landowners in the Reserve to sell their development rights on an open market to builders to increase densities of projects in receiving areas of the county planned for higher densities, four important goals were achieved.

First, the transfer of the development rights from a farm in the Reserve to a residential development in a receiving area in an area with capacity to serve it is accompanied by an easement extinguishing the rights transferred. As a result, the most populous county in Maryland—Montgomery—leads the state in both the percentage of its land area that is preserved, as well as the percentage that has been developed. In the entire state, a half-million acres are protected by easements. More than ten percent of all eased land is in Montgomery County and most of that involves TDRs. A new study for the Maryland Agro-Ecology Center found less fragmentation of the agricultural land mass in Montgomery County than any urban or urbanizing county, and greater potential in than anywhere else in the State for successful resource conservation over the next 25 years because of the strength of the comprehensive program that supports it. If you have difficulty imagining an alternative future, drive out Ridge Road into Carroll County or along Brighton Dam Road in western Howard County. Or for a more dramatic vision, cross the Potomac and go back to the future in Fairfax or watch unmanaged growth consume Loudoun County.

Second, farmers who sold their development rights for their present value recovered equity invested in their land, without giving up the land itself. Moreover, because it is protected by both easements and zoning, the land has not only retained, but its value increased and any proceeds from the sale of TDRs that were invested have also appreciated.

Third, the Reserve has helped contain urban sprawl, not only conserving land, but also making more efficient use of public investments in public facilities and services. The great lure of the forces of local growth machines is that development brings new revenues for roads, schools, and other services citizens need and want. But all development is not equal. From a local fiscal perspective, housing subdivisions tend to generate less revenue than they require in services. Studies in Maryland, Minnesota, Pennsylvania, and Ohio found that farms generate more in local revenues than they cost in services. A 1995 study of Frederick County, for example, found that its farmland generated a dollar of revenue for every 53 cents the county spent in services to the farm community. In its residential subdivisions, the county spent $1.14 in services for every tax dollar it collected there.

And fourth, more than 40,000 acres have been protected in perpetuity at no cost to the county’s taxpayers. It has been achieved without the use of Eminent Domain, or taking land out of private ownership and production.

Looking again at this great landscape a generation after its creation, the Agricultural Reserve is one of three things to which I have contributed in my public life of which I am proudest. The other two are establishment of one-person-one-vote as a principle of constitutional law, which resulted in the reapportionment of the Maryland General Assembly, and the adoption of the 1968 County Charter.

I concede that some things might have been done better. We were too late to save some land that had already been fragmented by scattered residential development. Some problems have emerged that we did not foresee. Others we did but lacked the votes to prevent them. I have always regretted that we could not set the residential density at a minimum of 50 acres per residence, as was achieved in Baltimore County. In 1980 it was hard to imagine that the value of the residual development rights—those that are retained to permit development at one unit per 25 acres, the land willing—would become as valuable as they have. We did expect that some people would use residual development rights to build houses and the all buyers of those homes would not be farmers, and that as a result some of the land in the reserve would not be farmed, at least for a time. We did, however believe, based on studies conducted at the time, that even if we ended up with a fairly large number of 25-acre parcels, such parcels can support farming. We were under no illusions that farming would be the principal source of income for every owner of 25 acres, or even of 100 acres. We expected some owners to be hobby farmers, others to grow flowers for the market or produce for themselves, keep and board horses, or lease their land to full-time farmers. Some land may lie fallow for years, providing nothing more than open space. We also understood that over generations and centuries, as agriculture and forestry change in method, products, and acreages needed, the one constant is that all these changing uses require a critical mass of land. Our purpose, therefore, was to provide a set of public policies that could protect in perpetuity the opportunity for a working landscape close in to a great urban region.

And we did not foresee that the provision to allow farmers to subdivide a lot for a son or daughter that wished to continue family farming might be used by a few to flip the "tot lot" to someone more interested buying the view than working the farm.

We foresaw that new septic technologies would encourage some landowners to seek to maximize the density allowed by the zoning. The Master Plan strongly warned against their use in the Reserve, explicitly recommending: " Support of a rural sanitation policy that does not encourage development within the critical mass of active farmland," and urging that the county "Deny private use of alternative individual and community systems in all areas designated for the Rural Density Transfer Zone." The Plan also noted that the holding capacity of the Reserve was determined by the suitability of the land to support septic systems, adding: "it is imperative to develop not only land use recommendations for this area, but a comprehensive public policy regarding the private use of alternative individual or community sewerage systems outside of the sewer envelope." The reason for this policy is that the principal use permitted in the zone is agriculture. The zone’s residential density does not create an entitlement to achieve that density on every parcel. Rather, it establishes a limit defined not only by a density limitation but also by the natural capacity of the land to absorb domestic waste.

We frankly did not imagine a subsequent county council would approve use of the alternative technology of sand mounds other than to deal with failing septics on existing farms or to permit creation of homes for family members to live on and continue to work the family farm.

Let me repeat: The objective of the Agricultural Reserve is simple: to protect the land so that a working rural landscape can continue to exist even as specific crops and agricultural practices change with technologies and markets. And I repeat: It has worked for a generation and worked better than any other effort in the nation. The question now is whether it can endure.

A recent Washington Post article on the loss of farm acreage in Montgomery County suggested that policies designed to protect farmland, farming, and the rural character of the Reserve were not effective and it faced inevitable shrinkage from development. ("In Montgomery, Farm Acres Wane: Agricultural Land Decreasing Despite ‘Reserve’ Program, Census Says", p. B-1, June 4, 2004)

Contrary to the article’s assertion, no other county in the region has adopted a similar plan, which involves a strategic combination of market-based incentives and more traditional low-density zoning for agricultural and rural uses. More recent regulations for rural and scenic roads have also helped maintain the character of the Reserve.

By combining market-based incentives to farmers to sell development rights, and to builders to buy them, the Reserve does not restrict opportunity for affordable housing. In the first instance, the availability of marketable development rights allows builders in designated urban areas of Montgomery County to increase density at lower cost per unit than would be possible if they had to purchase the additional land to build the same number of units. The current offer value of TDRs at $30,000 would seem to confirm that fact. A recent TDR task force has recommended additional policies that should enhance the use of TDRs in increasing the county’s supply of affordable housing. Those recommendations have been languishing without action before the County Council for many months.

No one is under the illusion that no farmland will be lost to residences or that some will become fallow, at least for a time. Speculators and other self-proclaimed "realists" will see only the price that could be obtained for individual parcels but ignore the value of the Reserve to the County and region as an enhancement of the environmental quality of the area. It protects important historical, natural and cultural amenities and values. It makes the county a better place to live and work, adding value to other land. It even seems to attract new farmers.

There are real threats to the integrity of the Reserve, from sand mounds to the region’s very own policy vampire—the "Techway"-- which keeps trying to pry open its coffin, sever the Reserve and increase its vulnerability to even further development. But perhaps the greatest of all dangers the Reserve faces is public or official complacency that allows incremental openings for the noses of acquisitive camels.

Given the actuarial probabilities, I do not expect to speak at the golden anniversary of the Reserve in 2030, although I promise to haunt any artful dodger whose lip service for it fails to be matched with a zeal for policies and actions necessary to protect and enhance it. So I am taking this opportunity to lay out what needs to be done, and because it needs doing, it can be done,

First: Plug the opening for subdivisions that will fragment the landscape and destroy its capacity to sustain agriculture. That requires three immediate actions:

1. The Planning Board should enforce the Master Plan by rejecting residential subdivision plans that are inconsistent with its explicit recommendations and provisions. There is ample authority to do it in existing law. If stronger authority is needed, draft it and ask the Council to approve it.
2. The County Council should reinforce the Master Plan by rescinding the language of the sand mound policy that suggests that every landowner is entitled to all the residential density zoning allows regardless of the natural soil conditions.
3. The County Council should amend the county 10-year Water and Sewerage Plan and the Health Regulations to make it clear that the use of new and non-traditional sanitary technologies in the Agricultural Reserve must be consistent with the intent and purpose of the Reserve to sustain agriculture and that any technology that could lead to fragmentation of the critical mass of land should be disapproved. Alternative sewerage technologies should be restricted to solving public health problems arising from failure of existing systems and, where necessary to support of family farms and agricultural activity.

Second: The County Council should schedule hearings and take action on recommendations from the TDR Task force that spent two years looking at means of improving the use of TDRs. Some of its recommendations may need tweaking, due to the lapse of time, but they are a good place to start ensuring the future of the Reserve and the utility of the remaining TDRs.

Third: The Planning Board should take a hard look at the use of cluster in the RTD Zone to determine the appropriate uses, location, and size of cluster development. Clusters may do more for preserving open space than facilitating the future of agriculture. They also increase the temptation to fragment the landscape with subdivisions that are not primarily interested in protecting the opportunity for farming.

Fourth: The Board and council should consider ways of extinguishing some of the residual development rights through the donation or purchase of easements, or if necessary, rezoning to 50 acre-minimum residential density. Moreover, the county and the Planning Board should consider co-holding its easements that extinguish development rights on the land with the Maryland Environmental Trust and local land trusts to strengthen their protection.

Fifth: The Board and council should carefully revisit issues of appropriate agricultural and rural land uses to ensure that the zoning regulations are sufficiently flexible to keep pace with different kinds of farming and animal husbandry that can keep them economically viable. And review the regulations that allow lots for children of farmers to ensure they are used as intended—to allow the continuation of family farming—rather than to evade restrictions on subdivision.

Sixth: Work closely with the farm community, the Maryland Center for Agro-Ecology, and the State and U.S. Departments of Agriculture to find ways to support and strengthen farming, but keep in mind that for farming to survive, there has to be a landscape to work, and other tools—zoning, subdivision regulations, transportation, environmental regulations, and tax policy--have to be coordinated.

Seventh, the local land trusts in the Reserve, working with the Maryland Environmental Trust, need to become more aggressive in securing conservation easements that limit use of residual development rights that can impair the agricultural future of the land. There are effective models elsewhere in the state and nation on which to draw that build a community conservation ethic and make effective use of federal and state tax incentives for voluntary donations, easement purchase programs, and conservation buyers. The County government should encourage these programs by leveraging these efforts with the funds it has available for agricultural easements and programs such as Legacy Open Space, to protect strategically important lands from being lost.

Eighth, The county government, in cooperation with farm, conservation, and other community organizations, should undertake an active program of public information and education about the value of the Reserve to the quality of life of the county and region. This needs to be a program that builds both a rural and an urban constituency that understands that the Reserve must adapt as agriculture changes, but that to do so we will need to safeguard the land. As Will Rogers said, they ain’t makin’ any more of it.

There are those that despair of sustaining the Reserve; who say the county will succumb to the persistent assertions of speculators that its conversion is inevitable; that its development would bring fiscal benefits and meet needs for affordable homes; and that some future council will rezone it if it thinks its urban constituency is indifferent to its future.

The creation of the Reserve was not based in nostalgia. The Reserve does not attempt to preserve itself, circa 1980, in amber, but to provide for a dynamic, ever changing working landscape that has continuity with its cultural heritage but is not an agricultural museum. The Reserve is a resource for the county that allows us to experience the connections of urban and rural life, to appreciate the landscape and the ways in which we have shaped it through the ages of human settlement and labor; and to enrich all our lives, whether it be enabling children to pick their own fruit at Benoni Allnutt’s Homestead Farm, buy a new variety of peaches or apples at Kingsbury’s Orchard; know where the turf for their lawns came from; or have local sources of other foods and fiber in some long distant future when that may be far more important than it is right now. Value is added to every home and household in the area when we know future generations can see Sugarloaf rise from fields instead of roofs; bike a country road on the weekend without having to drive to West Virginia; and learn that it is both possible and practical to grow smart. And, if we remain constant in purpose and inventive in spirit and policy, this broad wedge of piedmont will forever interrupt an unremitting urban advance. It will tomorrow, as today, give us a chance to catch our breath, enjoy a trace of what the county’s landscape once was, and realize a rare promise of how to reconcile urbanization and the environment.