(DATCP DOCKET # 12-R-03)
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to create chapter ATCP 49, relating to the farmland preservation program.
DATCP will hold four public hearings at the time and place shown below.
Hearing Information
Date: Thursday, February 14, 2013
Time: 2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.
Location: Outagamie County Highway Department
Conference Room
1313 Holland Road
Appleton, WI 54911
Date: Thursday, February 21, 2013
Time: 2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.
Location: DNR Service Center
Conference Rooms 158/185
1300 W. Clairemont Avenue
Eau Claire, WI 54701
Date: Tuesday, February 26, 2013
Time: 2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.
Location: Marathon County UW-Extension Office
Conference Room #5
212 River Drive
Wausau, WI 54403
Date: Thursday, February 28, 2013
Time: 2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.
Location: Board Room (1st Floor)
Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
Madison, WI 53718-6777
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by February 5, 2013, by writing to Alison Volk, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911; or by emailing
alison.volk@wisconsin.gov; or by telephone at (608) 224-4634. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Availability of Rules and Submitting Comments
DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until March 15, 2013 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, or to
alison.volk@wisconsin.gov, or to
http://adminrules.wisconsin.gov.
You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4712 or by emailing
alison.volk@wisconsin.gov. Copies will also be available at the hearing. To view the hearing draft rule online, go to:
http://adminrules. wisconsin.gov.
Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to
keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Statutes interpreted
Chapter. 91, Stats.
Statutory authority
Explanation of statutory authority
DATCP has specific and general authority to establish rules interpreting and clarifying provisions of ch.
91, Stats., the farmland preservation program. DATCP has general authority for promulgating rules under s.
93.07 (1), Stats., for all of its program areas, and under s.
91.02 for the administration of ch.
91, Stats. Under s.
91.02 (1), DATCP has specific authority to set forth technical specifications for farmland preservation zoning maps under s.
91.38 (1) (d), Stats. DATCP has specific authority under s.
91.02 (2), Stats., to identify additional uses that would qualify as accessory uses, agricultural uses, agriculture-related uses, and base farm tracts. DATCP also has specific authority under s.
91.02 (2), Stats., to specify requirements for certifications of farmland preservation plans under s.
91.18 (1) (b), Stats., as well as farmland preservation zoning ordinances under s.
91.38 (1) (i), Stats. Section
91.02 (2), Stats., also gives DATCP specific authority to require information in an application for certification of a farmland preservation plan or amendment under s.
91.20 (4), Stats., or zoning ordinance under s.
91.40 (5), Stats., and to specify the types of ordinance amendments for which certification is required under s.
91.36 (8) (b) 3, Stats. DATCP has authority under s.
91.02 (2), Stats., to authorize additional uses in a farmland preservation zoning district under s.
91.42 (4), including additional uses allowed as permitted uses under s.
91.44 (1) (g), Stats., and as conditional uses under s.
91.46 (1) (j), Stats. Finally, DATCP has the authority under s.
91.02 (2), Stats., to require information in an application for a farmland preservation agreement under s.
91.64 (2) (h), Stats.
Related statutes and rules
Chapter
91, Stats., governs the state's farmland preservation program. Landowners who participate in the zoning or farmland preservation agreement provisions of the program are eligible for farmland preservation tax credits under s.
71.613, Stats. Under ss.
91.80 and
91.82, Stats., landowners claiming those tax credits are required to comply with soil and water conservation standards promulgated by the department under ss.
92.05 (3) (c) and
(k),
92.14 (8), and
281.16 (3) (b) and
(c), Stats. Those standards are found primarily in ch.
ATCP 50, Wis. Adm. Code, as well as the Department of Natural Resources performance standards under ss.
NR 151.02 to
151.08, Wis. Adm. Code.
Plain language analysis
Background
Wisconsin's Farmland Preservation Program (FPP), ch. 91, Stats., was repealed and recreated under
2009 Wis. Act 28. Chapter 91, Stats., was updated to acknowledge the growing pressures on farmland across the state and to curb the increasing conversion of farmland out of agricultural use.
The farmland preservation law requires all counties to update their farmland preservation plans before January 1, 2016. The farmland preservation planning process ensures that local governments evaluate the agricultural land within their boundaries and consider the role that agriculture plays in their local economy. Counties must submit farmland preservation plans to DATCP for certification. In order to be certified by DATCP, the plan must meet certain requirements under ch.
91, Stats. Once a plan is certified, land that is identified as part of a farmland preservation area is then eligible for other parts of the FPP.
One such part of the FPP is farmland preservation zoning. Local governments may choose to adopt farmland preservation zoning ordinances to protect farmland. Similar to farmland preservation plans, zoning ordinances must also be submitted to the department for certification. To be certified, the ordinance must meet certain requirements under ch.
91, Stats. The certification process ensures that only compatible uses are allowed in the farmland preservation district to limit pressures on active agriculture created by the presence of incompatible uses. Once certified, landowners are eligible to claim farmland preservation tax credits.
Another component of the FPP is the farmland preservation agreement. Under ch.
91., Stats., any new agreement must cover land located in a landowner-initiated and state-designated Agricultural Enterprise Area (AEA). Landowners with farmland preservation agreements are eligible to collect farmland preservation tax credits. By clustering agreements in areas that are primarily devoted to agricultural use, farmland can be better protected because a concentration of agriculture provides landowners with the confidence that the surrounding land will remain in agriculture. This confidence encourages landowners not only to continue farming, but to make additional investments in their agricultural operations.
Rule Content
GENERAL
This rule does all of the following:
• Adds to definitions listed under s.
91.01, Stats., and further clarifies certain terms in ch.
91.
• Provides guidance for applying for and receiving certification of farmland preservation plans and ordinances.
• Specifies types of ordinance amendments for which certification is required under s.
91.36 (8) (b) 3, Stats.
• Authorizes additional uses allowed in a farmland preservation zoning district.
• Specifies information required in an application for a farmland preservation agreement under s.
91.64 (2) (h), Stats.
DEFINITIONS
This rule:
• Clarifies types of uses that may be listed by a political subdivision as accessory uses and agriculture-related uses.
• Defines crops and forest management.
• Adds a definition of base farm tract to provide political subdivisions flexibility in administering this density restriction if they choose to utilize it.
Farmland Preservation Plans
This rule:
• Clarifies that a county has one year after the expiration date to have its farmland preservation plan certified by the department.
• Clarifies when counties may request an extension to the expiration of their farmland preservation plan to facilitate coordination with other planning and zoning efforts that may be occurring in the county.
• Clarifies that any amendment to a certified farmland preservation plan must be submitted to the department for certification.
• Clarifies that the rationale used for identifying the farmland preservation area must be based on objective criteria. Describes the relationship between the farmland preservation plan and any county's comprehensive plan.
• Provides technical specifications for the farmland preservation plan map and states that the county must provide the department with the data used to create the map.
Farmland Preservation Zoning
This rule:
• Clarifies that nonfarm residences existing at the time an ordinance is certified may be considered permitted uses rather than prior nonconforming uses.
• Authorizes single-family nonfarm dwellings as conditional uses subject to density restrictions that are as restrictive, or more restrictive, than the density standards under ch.
91, Stats.
• Describes the types of uses that would qualify as governmental, institutional, religious, or nonprofit community uses.
• Clarifies that an ordinance expires according to the statutory schedule in s.
91.34, Stats., and a political subdivision has a year after the expiration date to have its ordinance certified by the department to prevent landowners from losing eligibility to collect farmland preservation tax credits.
• Clarifies that local governments may request an extension to the expiration of their farmland preservation zoning ordinance to facilitate coordination with other planning and zoning efforts that may be occurring in the town or county.
• Describes the relationship between a political subdivision's farmland preservation zoning ordinance and the county's farmland preservation plan.
• Provides technical specifications for the farmland preservation zoning map and states that the political subdivision must provide the department with the data used to create the map.
• Specifies that the department may withdraw certification of an ordinance if the county farmland preservation plan expires or if the political subdivision adopts an ordinance that fails to comply with ch.
91, Stats.
• Specifies when an amendment to a farmland preservation zoning ordinance must be submitted to the department for certification.
Farmland Preservation Agreements
This rule:
• Requires landowners to include in an application for a farmland preservation agreement those lands that the landowner owns yet intends to exclude from coverage under the agreement.
Summary of, and comparison with, existing or proposed federal statutes and regulations
There are no federal regulations or statutes related to this rule.
Comparison to rules in adjacent states
Michigan, Illinois, and Minnesota have statewide programs in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits. These programs require local governments to engage in planning efforts prior to allowing landowners to enter into these agreements.
Michigan allows farmers voluntarily to enter into a Farmland Development Rights Agreement with the state. In exchange for income tax credits and exemptions from special assessments, landowners agree not to develop the land for a specified number of years.
In Illinois, any single landowner, or two or more contiguous landowners with over 350 acres of land, may form an Agricultural District. The county government is responsible for approving and implementing these areas, however the Illinois Department of Agriculture may advise those county governments interested in forming or expanding these areas. Once land is within an Agricultural District, the area remains protected for ten years. Landowners can request additions to, deletions from, or dissolution of the area. Land within the area is protected from local laws that might restrict farming practices and from special assessments.
In Minnesota, counties outside of the metropolitan area can participate in the Greater Minnesota Agricultural Preserves Program. Counties that want to participate must develop an agricultural land preservation plan for review and approval by the commissioner of the Minnesota Department of Agriculture. The plan must identify land for long-term agricultural use and anticipate expected growth around urbanized areas. The designated areas must be adopted as part of the county's comprehensive plan. Landowners that are located within these areas may then place a restrictive covenant on their land, agreeing to limit the land to agricultural or forestry use. The covenant is recorded on the title to the land. In exchange for agreeing to preserve land for long term agricultural use, the landowner receives property tax credits of $1.50 per acre, per year.
Summary of factual data and analytical methodologies
To develop this rule, DATCP consulted a group of stakeholders familiar with and potentially affected by the provisions of the rule. DATCP also collected feedback from local government officials who had experience working with, understanding, and implementing the farmland preservation law.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
This rule will have a generally positive impact on agriculture-related businesses. As part of the farmland preservation planning process, counties are required to inventory and evaluate agriculture-related businesses and services, including agricultural production and enterprises related to agriculture. This process helps to ensure that the impact of agriculture-related business can be measured within the community. By clarifying this requirement in the planning process, the rule may aid communities in accurately capturing the breadth of agriculture-related businesses within the area.
This rule also clarifies farmland preservation zoning standards, encouraging local governments to include agriculture-related enterprises in the zoning district. Most agriculture-related businesses may be allowed in a farmland preservation zoning district either as an agriculture-related use or an accessory use. Though such businesses may or may not collect tax credits, their presence in the district may add additional economic certainty to farmers within the certified farmland preservation district.
There are currently over 15,000 farm owners on approximately 2.8 million acres of farmland claiming farmland preservation income tax credits. There is a statutory cap of $27 million for tax credits claimed for lands subject to farmland preservation zoning.
Effect on Small Business /Initial Regulatory Flexibility Analysis
Rule Summary
This rule interprets the Wisconsin Farmland Preservation Program administered by the Department of Agriculture, Trade and Consumer Protection (“DATCP"). Among other things, this rule does all of the following:
General
