3 DE Code § 909. (2021)
2021 Delaware Code|Title 3 - Agriculture|Chapter 9. Delaware Agricultural Lands Preservation Act|Subchapter II. Agricultural Preservation Districts|§ 909. District restrictions.

§ 909. District restrictions. (a) The farmlands and forestlands included in an Agricultural Preservation District are subject to the following restrictions:  (1) No rezoning or major subdivision of the real property shall be allowed; (2) Activities conducted on the real property shall be limited to agricultural and related uses, and residential use of the real property shall be limited as follows:  a. No more than 1 acre of land for each 20 acres of usable land owned in a District or an expansion of a District, to a maximum of 10 acres, shall be allowed for dwelling housing; and b. The dwelling housing shall be limited to residential use of the owner, relatives of the owner and persons providing permanent and seasonal farm labor services; provided however, that the Foundation may, pursuant to regulations adopted after notice and public hearing, allow, from the effective date of an initial District Agreement, no more than a total of 3 dwellings or dwelling lots located in the Agriculture Preservation District to be transferred from an owner or relatives of an owner to any other person, subject to the following limitations and requirements:  1. The owner or relative of an owner seeking to make the transfer shall establish that a hardship condition exists, as defined pursuant to Foundation regulations, and obtain Foundation approval; 2. The dwelling or dwelling lot, after transfer, shall be used only for residential purposes; 3. The transferred property shall not qualify for District benefits or benefits of easement conveyance established under this chapter; and 4. If a preservation easement has been acquired by the Foundation on the real property subject to transfer, the owner or relatives of the owner shall, as a condition of Foundation approval, pay to the Foundation an amount equal to 25 percent of the then current fair market value of the land subject to transfer; and c. Any transfer of real property in a District or an expansion of a District to another person shall be preceded by the execution by the transferee of a document, in recordable form and as prescribed by the Foundation, which sets forth the acreage allowed for dwelling housing and the restrictions which apply to the real property under this chapter and the regulations of the Foundation. (3) The restrictions shall be deemed covenants which run with and bind the lands in the District for a period of 10 years or any extended period from the date of placement of the lands in the District. (4) For any new District or expansion of a District approved after August 23, 2004, the provisions of paragraph (a)(2)b. of this section shall be replaced by the following restrictions:  a. With respect to the acreage allowed for dwelling housing pursuant to paragraph (a)(2)a. of this section, there shall be a limit of 3 dwelling houses for residential use placed on the allowable acreage at 3 locations designated by the owner, unless there exists more than 3 dwelling houses on the real property at the time of approval of the new district or expansion of a District, in which case the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses shall be allowed. b. The dwelling housing utilized pursuant to paragraph (a)(4)a. of this section, above, for residential use shall not be restricted to owners, relatives of owners or persons providing permanent and seasonal farm labor services, and any person shall be entitled to use the dwelling housing for residential purposes. c. The owners of real property in any District or expansion of a District, which District is in existence on August 23, 2004, shall be entitled to be released from the restrictions of paragraph (a)(2)b. of this section, provided such owner executes an amendment to their District Agreement in a form designated and acceptable to the Foundation, subjecting the real property to the restrictions set forth in paragraphs (a)(1), (a)(2)a., (a)(4)a. and (a)(4)b. of this section. If an owner of real property in any District or expansion of a District has before August 23, 2004, conveyed a preservation easement to the Foundation, such owner shall be entitled to be released from the restrictions of paragraph (a)(2)b. of this section as contained in the preservation easement, provided the owner executes an amendment to the preservation easement in a form designated and acceptable to the Foundation subjecting the real property to the restrictions set forth in paragraphs (a)(1), (a)(2)a., (a)(4)a. and (a)(4)b. of this section. (5) The following uses shall be deemed “related uses” for purposes of paragraph (a)(2) of this section:  a. A farm market or roadside stand shall be allowed provided the products offered for sale are grown or produced on the property included within the District and such farm market or roadside stand complies with § 2601(b)(5), § 4901(b)(5), or § 6902(b)(5) of Title 9. b. Hayrides, horseback riding, guided tours, and petting zoos shall be allowed, provided that said activities are limited to no more than 50 persons on the premises at a time. Notwithstanding the foregoing, educational tours and agricultural demonstration events shall not be subject to the 50-person limitation.  c. Horse stabling and training and caring for horses is permitted; provided however, quasi-public horse events such as polo fields and horse shows, shall not be permitted. d. Hunting, trapping, and fishing shall be allowed provided said activities are limited to private noncommercial activities and do not adversely affect the agricultural use of the property. e. Spray irrigation designed to replenish soil nutrients and improve the quality of the soil is allowed provided that the spray effluent is treated pursuant to the best available treatment technology, is disposed of on property utilized for the production of conventional cash crops, and all storage and treatment of the effluent disposed of on the District property takes place on property other than District property. f. Easements, licenses and other property interests for utility, telecommunications, and access uses are allowed provided that:  1. The property subject to the easement, license or other property interest is limited to only the area necessary to accommodate the utility, telecommunications or access use; 2. The area affected by the use is located so as to minimize, to the maximum extent practicable, the impact on farming activities and operations; 3. No commercial advertising or commercial activities unrelated to the utility, telecommunications or access use shall be conducted on the area of the utility, telecommunications or access use; 4. Any document used to grant an easement, license or other property interest shall limit the activities to utility, telecommunications or access uses and shall contain the prohibitions of commercial advertising or commercial activities unrelated to the permitted use; and 5. The written approval of the Foundation shall be obtained in accordance with the rules and regulations of the Foundation. g. Farm structures in existence at the time of approval of a District or expansion of a District that are no longer used in farming operations may be used for the enclosed storage of property belonging to others. h. A restricted landing area utilized for the personal use of the owner or tenant of the owner is permitted provided that said use does not require any rezoning of the property or conditional use allowing for commercial use. As used herein, “restricted landing area” means any area of land, water or both which is used for the landing and takeoff of aircraft. i. A “bed and breakfast” may be operated in any allowed dwelling located on the property. j. A daycare center for the care of no more than 5 children under the age of 16 shall be allowed in any allowed dwelling located on the property. k. Farm structures in existence at the time of approval of a District or expansion of a District that are no longer used in farming operations, and any related temporary ancillary structure used in conjunction with the existing farm structures, may be used for public and private gatherings, such as weddings, parties, conferences, fundraising ceremonies and other similar events, provided that all of the following requirements are satisfied:  1. The property with improvements on which the allowed activities are conducted must be owned by the person subject to the District Agreement or preservation easement. 2. The area on which the allowed activities are conducted cannot be subdivided from the agricultural lands.  3. A. The area on which the allowed activities are conducted must be limited, to the extent feasible, to avoid impacts on current and beneficial agricultural use of the agricultural lands. Farmland that is in current and beneficial agricultural use may be used for events under this paragraph (a)(5)k.3.A. if all of the following apply:  I. One acre or less of land is used. II. An area of land equal or greater to the amount in paragraph (a)(5)k.3.A.I. of this section is converted to active beneficial agricultural use. B. The exterior dimensions of the existing farm structures may be increased in size as follows:  I. By no more than 50% of the footprint area of the existing farm structure at the time the structure became part of a District. II. A canopy attached to the allowed farm structure may not exceed more than 30% of the farm structure's footprint area. 4. The person seeking to conduct activities allowed under this paragraph (a)(5)k. shall submit to the Foundation Board, in advance and on an application form provided by the Foundation, a detailed description and plan of the proposed activities.  5. The application shall have been approved by the Foundation, subject to such terms and conditions deemed necessary and desirable to protect the agricultural value of the property, which terms and conditions shall be subject to the enforcement provisions set forth in §  920(a) of this title.  6. The person seeking to conduct activities allowed under this subsection shall have agreed, in writing, to comply with the terms and conditions set forth in the Foundation Board's approval.  l. Annual and semi-annual events related to agricultural commodities and agricultural enterprises during the growing season, and other annual and semi-annual events during the nonprimary growing season, subject to case by case review and approval by the Foundation Board, and if approved subject to such terms and conditions imposed to protect the agricultural value of the property, which terms and conditions shall be subject to the enforcement provisions set forth in §  920(a) of this title.  m. A private restricted landing area used for agricultural spraying and applications, including spraying and applications conducted under government sponsored programs, subject to the written approval of the Foundation Board. (b) Farmlands and/or forestlands included in an Agricultural Preservation District shall be released from such District at the expiration of 10 years from the date such lands are initially placed in the District if the owner of the farmlands and/or forestlands provides written notification to the Foundation of intent to withdraw such lands from the District at least 6 months prior to the expiration of the referenced 10-year period; otherwise, such lands shall remain in the District for additional 5-year periods until such time that the owner provides prior to the expiration date of any such additional period at least 6 months prior written notice to the Foundation of intent to withdraw the lands from the District. (c) In event of a purchase of an agricultural lands preservation easement by the Foundation, the restrictions set forth in subsection (a) of this section shall become permanent and subject to release only under § 917 of this title, or in the case of the restrictions set forth in paragraph (a)(2)b. of this section, under paragraph (a)(4)c. of this section. 68 Del. Laws, c. 118, §  2;  71 Del. Laws, c. 257, §  1;  74 Del. Laws, c. 423, §§  1, 2;  80 Del. Laws, c. 233, § 1;  80 Del. Laws, c. 344, § 1;  81 Del. Laws, c. 441, § 1;  83 Del. Laws, c. 26, § 1;