Bill Text: GA HB916 | 2011-2012 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Bona fide conservation use property; covenants; change certain qualifications and restrictions
Spectrum: Moderate Partisan Bill (Republican 5-1)
Status: (Passed) 2012-05-01 - Effective Date [HB916 Detail]
Download: Georgia-2011-HB916-Introduced.html
Bill Title: Bona fide conservation use property; covenants; change certain qualifications and restrictions
Spectrum: Moderate Partisan Bill (Republican 5-1)
Status: (Passed) 2012-05-01 - Effective Date [HB916 Detail]
Download: Georgia-2011-HB916-Introduced.html
12 LC
34 3258
House
Bill 916
By:
Representatives Knight of the
126th,
England of the
108th,
McCall of the
30th,
Roberts of the
154th,
and Buckner of the
130th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 48-5-7.4 of the Official Code of Georgia Annotated, relating
to bona fide conservation use property, so as to change certain qualifications
and restrictions regarding covenants; to provide for exceptions; to provide for
a definition; to provide for an effective date; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 48-5-7.4 of the Official Code of Georgia Annotated, relating to bona
fide conservation use property, is amended by revising subsections (a), (b), and
(i) as follows:
"(a)
For purposes of this article, the term 'bona fide conservation use property'
means property described in and meeting the requirements of paragraph (1) or (2)
and paragraph (3) of this subsection, as follows:
(1)
Not more than 2,000 acres of tangible real property of a single person, the
primary purpose of which is any good faith production, including but not limited
to subsistence farming or commercial production, from or on the land of
agricultural products or timber, subject to the following
qualifications:
(A)
Such property includes the value of tangible property permanently affixed to the
real property which is directly connected to such owner's production of
agricultural products or timber and which is devoted to the storage and
processing of such agricultural products or timber from or on such real
property;
(A.1)
In the application of the limitation contained in the introductory language of
this paragraph, the following rules shall apply to determine beneficial
interests in bona fide conservation use property held in a family owned farm
entity as described in division (1)(C)(iv) of this subsection:
(i)
A person who owns an interest in a family owned farm entity as described in
division (1)(C)(iv) of this subsection shall be considered to own only the
percent of the bona fide conservation use property held by such family owned
farm entity that is equal to the percent interest owned by such person in such
family owned farm entity; and
(ii)
A person who owns an interest in a family owned farm entity as described in
division (1)(C)(iv) of this subsection may elect to allocate the lesser of any
unused portion of such person's 2,000 acre limitation or the product of such
person's percent interest in the family owned farm entity times the total number
of acres owned by the family owned farm entity subject to such bona fide
conservation use assessment, with the result that the family owned farm entity
may receive bona fide conservation use assessment on more than 2,000
acres;
(B)
Such property excludes the entire value of any residence located on the
property;
(C)
Except as otherwise provided in division (vii) of this subparagraph, such
property must be owned by:
(i)
One or more natural or naturalized citizens;
(ii)
An estate of which the devisees or heirs are one or more natural or naturalized
citizens;
(iii)
A trust of which the beneficiaries are one or more natural or naturalized
citizens;
(iv)
A family owned farm entity, such as a family corporation, a family partnership,
a family general partnership, a family limited partnership, a family limited
corporation, or a family limited liability company, all of the interest of which
is owned by one or more natural or naturalized citizens related to each other by
blood or marriage within the fourth degree of civil reckoning, except that,
solely with respect to a family limited partnership, a corporation, limited
partnership, limited corporation, or limited liability company may serve as a
general partner of the family limited partnership and hold no more than a 5
percent interest in such family limited partnership, an estate of which the
devisees or heirs are one or more natural or naturalized citizens, or a trust of
which the beneficiaries are one or more natural or naturalized citizens and
which family owned farm entity derived 80 percent or more of its gross income
from bona fide conservation uses, including earnings on investments directly
related to past or future bona fide conservation uses, within this state within
the year immediately preceding the year in which eligibility is sought;
provided, however, that in the case of a newly formed family farm entity, an
estimate of the income of such entity may be used to determine its
eligibility;
(v)
A bona fide nonprofit conservation organization designated under Section
501(c)(3) of the Internal Revenue Code;
(vi)
A bona fide club organized for pleasure, recreation, and other nonprofitable
purposes pursuant to Section 501(c)(7) of the Internal Revenue Code;
or
(vii)
In the case of constructed storm-water wetlands, any person may own such
property;
(D)
Factors which may be considered in determining if such property is qualified may
include, but not be limited to:
(i)
The nature of the terrain;
(ii)
The density of the marketable product on the land;
(iii)
The past usage of the land;
(iv)
The economic merchantability of the agricultural product; and
(v)
The utilization or nonutilization of recognized care, cultivation, harvesting,
and like practices applicable to the product involved and any implemented plans
thereof; and
(E)
Such property shall, if otherwise qualified, include, but not be limited to,
property used for:
(i)
Raising, harvesting, or storing crops;
(ii)
Feeding, breeding, or managing livestock or poultry;
(iii)
Producing plants, trees, fowl, or animals, including without limitation the
production of fish or wildlife by maintaining not less than ten acres of
wildlife habitat either in its natural state or under management, which shall be
deemed a type of agriculture; provided, however, that no form of commercial
fishing or fish production shall be considered a type of agriculture;
or
(iv)
Production of aquaculture, horticulture, floriculture, forestry, dairy,
livestock, poultry, and apiarian products; or
(2)
Not more than 2,000 acres of tangible real property, excluding the value of any
improvements thereon, of a single owner of the types of environmentally
sensitive property specified in this paragraph and certified as such by the
Department of Natural Resources, if the primary use of such property is its
maintenance in its natural condition or controlling or abating pollution of
surface or ground waters of this state by storm-water runoff or otherwise
enhancing the water quality of surface or ground waters of this state and if
such owner meets the qualifications of subparagraph (C) of paragraph (1) of this
subsection:
(A)
Environmentally sensitive areas, including any otherwise qualified land area
1,000 feet or more above the lowest elevation of the county in which such area
is located that has a percentage slope, which is the difference in elevation
between two points 500 feet apart on the earth divided by the horizontal
distance between those two points, of 25 percent or greater and shall include
the crests, summits, and ridge tops which lie at elevations higher than any such
area;
(B)
Wetland areas that are determined by the United States Army Corps of Engineers
to be wetlands under their jurisdiction pursuant to Section 404 of the federal
Clean Water Act, as amended, or wetland areas that are depicted or delineated on
maps compiled by the Department of Natural Resources or the United States Fish
and Wildlife Service pursuant to its National Wetlands Inventory
Program;
(C)
Significant ground-water recharge areas as identified on maps or data compiled
by the Department of Natural Resources;
(D)
Undeveloped barrier islands or portions thereof as provided for in the federal
Coastal Barrier Resources Act, as amended;
(E)
Habitats as certified by the Department of Natural Resources as containing
species that have been listed as either endangered or threatened under the
federal Endangered Species Act of 1973, as amended;
(F)
River or stream corridors or buffers which shall be defined as those undeveloped
lands which are:
(i)
Adjacent to rivers and perennial streams that are within the 100 year flood
plain as depicted on official maps prepared by the Federal Emergency Management
Agency; or
(ii)
Within buffer zones adjacent to rivers or perennial streams, which buffer zones
are established by law or local ordinance and within which land-disturbing
activity is prohibited; or
(G)(i)
Constructed storm-water wetlands of the free-water surface type certified by the
Department of Natural Resources under subsection (k) of Code Section 12-2-4 and
approved for such use by the local governing authority.
(ii)
No property shall maintain its eligibility for current use assessment as a bona
fide conservation use property as defined in this subparagraph unless the owner
of such property files an annual inspection report from a licensed professional
engineer certifying that as of the date of such report the property is being
maintained in a proper state of repair so as to accomplish the objectives for
which it was designed. Such inspection report and certification shall be filed
with the county board of tax assessors on or before the last day for filing ad
valorem tax returns in the county for each tax year for which such assessment is
sought; and
(3)
The governing authority of a county in which the property that otherwise meets
the requirements for current use assessment is located may establish a minimum
number of acres as a condition for qualifying for the current use assessment.
Such minimum shall be up to 25 acres and shall apply exclusively to qualified
property that is first made subject to a covenant required by subsection (d) of
this Code section or is subject to the renewal of a previous covenant required
by subsection (d) of this Code section on or after January 1,
2012;
provided, however, that if the owner of the subject property has filed with the
Internal Revenue Service a Form 4835 Schedule E or F pertaining to such
property, the provisions of this paragraph shall not apply to such
property."
"(b)
Except in the case of the underlying portion of a tract of real property on
which is actually located a constructed storm-water wetlands, the following
additional rules shall apply to the qualification of conservation use property
for current use assessment:
(1)
When one-half or more of the area of a single tract of real property is used for
a qualifying purpose, then such tract shall be considered as used for such
qualifying purpose unless some other type of business is being operated on the
unused portion; provided, however, that such unused portion must be minimally
managed so that it does not contribute significantly to erosion or other
environmental or conservation problems. The lease of hunting rights or the use
of the property for hunting purposes shall not constitute another type of
business. The charging of admission for use of the property for fishing
purposes shall not constitute another type of business;
(2)
The owner of a tract, lot, or parcel of land totaling less than ten acres shall
be required by the tax assessor to submit additional relevant records regarding
proof of bona fide conservation use;
provided,
however, that if the owner of the subject property has filed with the Internal
Revenue Service a Form 4835 Schedule E or F pertaining to such property, the
provisions of this paragraph shall not apply to such
property;
(3)
No property shall qualify as bona fide conservation use property if such current
use assessment would result in any person who has a beneficial interest in such
property, including any interest in the nature of stock ownership, receiving in
any tax year any benefit of current use assessment as to more than 2,000 acres.
If any taxpayer has any beneficial interest in more than 2,000 acres of tangible
real property which is devoted to bona fide conservation uses, such taxpayer
shall apply for current use assessment only as to 2,000 acres of such
land;
(4)
No property shall qualify as bona fide conservation use property if it is leased
to a person or entity which would not be entitled to conservation use
assessment;
(5)
No property shall qualify as bona fide conservation use property if such
property is at the time of application for current use assessment subject to a
restrictive covenant which prohibits the use of the property for the specific
purpose described in subparagraph (a)(1)(E) of this Code section for which bona
fide conservation use qualification is sought; and
(6)
No otherwise qualified property shall be denied current use assessment on the
grounds that no soil map is available for the county in which such property is
located; provided, however, that if no soil map is available for the county in
which such property is located, the owner making an application for current use
assessment shall provide the board of tax assessors with a certified soil survey
of the subject property unless another method for determining the soil type of
the subject property is authorized in writing by such board."
"(i)(1)
If ownership of all or a part of the property is acquired during a covenant
period by a person or entity qualified to enter into an original covenant, then
the original covenant may be continued by such acquiring party for the remainder
of the term, in which event no breach of the covenant shall be deemed to have
occurred.
(2)(A)
As used in this paragraph, the term 'contiguous' means real property within a
county that abuts, joins, or touches and has the same undivided common
ownership. If an applicant's tract is divided by a county boundary, public
roadway, public easement, public right of way, natural boundary, land lot line,
or railroad track, then the applicant has, at the time of the initial
application, a one-time election to declare the tract as contiguous irrespective
of a county boundary, public roadway, public easement, public right of way,
natural boundary, land lot line, or railroad track.
(B)
If a qualified owner has entered into an original bona fide conservation use
covenant and subsequently acquires additional qualified property contiguous to
the property in the original covenant, the qualified owner may elect to enter
the subsequently acquired qualified property into the original covenant for the
remainder of the ten-year period of the original covenant; provided, however,
that such subsequently acquired qualified property shall be less than 50
acres."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.