Bar Association of Frederick County

Newsletter
June 2017


(articles continued from online version)

 


Mandatory Continuing Legal Education…The Conversation Continues (cont.)


The Commission on Professionalism, created by the Court of Appeals, has repeatedly recommended the adoption of rules requiring mandatory CLE which could be satisfied not just by physical attendance at classes, but also by teaching, writing a book, or taking an electronic CLE course. The Maryland State Bar Association (MSBA) electronically polled members and found that responders overwhelmingly (70%) oppose mandatory CLE, yet we are one of only three states and the District of Columbia that do not require CLE.

I was a prior board member of MICPEL (Maryland Institute for Continuing Professional Education of Lawyers) which provided legal education until closing for lack of funding in 2010. I clearly believe in the value of continuing education. Laws change substantively and regularly. It seems foolish and courting malpractice not to seek out regular continuing education; however, most lawyers do not regularly attend CLE. It is of note that the proponents of mandatory CLE are those who regularly engage in CLE – often not only attending, but also planning, moderating, and teaching.

Would you go to a physician or a tax accountant who did not attend continuing education?  I would venture to guess you would not. Shouldn’t our consumers (clients) be privy to whether we have attended CLE in the past year…five years…10? There is no way for the public to obtain this information, as it is not required or tracked.


However, even if CLE is required in Maryland, it does not ensure that our lawyers will be more competent, civil, or better prepared. I watched the parade of lawyers and mental health professionals walk into seminars last week, sign in, and walk right back out. I watched these professionals sit in seminars and play Angry Birds and Candy Crush, check emails, and shop online. Yet there is always the chance that those same lawyers (and mental health professionals for that matter) will tune in for a few minutes and walk with one new nugget of information that will benefit their clients. Or so we can hope.​




Recent Legislative Changes to the Maryland Agricultural Land Preservation Foundation: Tightening the Belt on Terminating Agricultural Preservation Easements in Maryland (Part 2 of 2)  (cont.)


With a goal of preserving farmland from development for non-farm-related uses, the MALPF provides financial incentives to encourage farmers to give up future property development rights in exchange for agricultural preservation easements. In order to encourage farmers not to sell or develop farmland for non-agricultural purposes, such as residential or commercial uses, some financial incentive is necessary, and one of those incentive methods is through the purchase of easements.

The Maryland Agricultural Preservation Fund was created as part of the MALPF to fund the purchase and acquisition of agricultural preservation easements. While the intent of the MALPF is for those preservation easements to remain in place in perpetuity, there were provisions in the original law to allow for easements to be terminated. Under the prior law, once 25 years had passed from the date of the State’s purchase of the easement, a landowner could request to have the easement terminated. The new law makes that termination process more stringent and difficult. 

Under the recent legislative changes, beginning on October 1, 2017, if a landowner wants to have an agricultural preservation easement terminated, the owner must first apply to the MALPF. The MALPF will then request a review by the governing body of the county in which the land under easement is located. An agricultural preservation easement may then be terminated only if the county governing body conducts a public hearing on the termination request, after adequate public notice of the hearing, and, after the public hearing, the county governing body approves the termination request by a written decision. The county’s review, findings and decision may be based on: (1) the county advisory board’s recommendation; (2) local comprehensive planning and zoning; (3) local priorities to preserve agricultural land; (4) local patterns of development; and (5) any other land use matters.  

If the county governing body denies the request for termination, the MALPF does not have to take any further action and the application fails. If the county approves the request for termination, then, after written notice from the county, the MALPF Trustees shall determine whether it is feasible to continue to farm the land under the easement in a profitable manner. There is a presumption that the land can be farmed profitably. The landowner has the burden to rebut that presumption. If the MALPF denies the request for termination, because, for example, it determines that it is feasible to farm the land profitably, the termination review process ends. If the MALPF approves the request, then the Secretary and State Treasurer must review the request and make a recommendation.

If approved, the value of the easement must be determined, which requires two (2) fair market value appraisals. These appraisals must be reviewed by the Department of General Services and are then subject to approval of the State Board of Public Works. Upon a written notification to the landowner of the determined value of the land, the owner then has thirty (30) days to elect to repurchase the easement from the State for the fair market value as determined by the Department of General Services. The owner then has one hundred eighty (180) days to repurchase the easement. 

The new legislation further limits the easement termination process by providing that all easements approved on or after October 1, 2004, are perpetual and are not eligible for termination.

With the recent legislative changes, it is now more difficult for farmers to repurchase agricultural preservation easement rights. Once the new law takes effect on October 1, 2017, there will be some additional speed bumps and road blocks in the way of any effort to terminate an agricultural preservation easement to “pave paradise to put up a parking lot.”