Farmland preservation effort faces defections

A high-end residential development off Triadelphia Road called Warfield II is adjacent to the Mullinex farm on Howard Road, which is visible behind the large house at right.
A high-end residential development off Triadelphia Road called Warfield II is adjacent to the Mullinex farm on Howard Road, which is visible behind the large house at right. (Amy Davis, Baltimore Sun)

There have been Mullinixes farming in western Howard County for more than a century. Nearly three decades ago, as a mark of their commitment to working the land, the family sold the development rights on their farms to the state of Maryland.

Now, though, brothers Mike, Stephen and Mark Mullinix say they want out. Not out of farming, necessarily, but out from under a state program that limits how they can use their land — a move that worries preservationists.

"We're trying to generate income from other things, and [state officials are] cracking the whip," said 55-year-old Mike Mullinix.

Less than a year after being threatened with a $50,000 fine for leasing some of their land to a landscaping business, the Mullinix brothers have applied to terminate deals made with the state in the 1980s that bar anything but farming on the 490 acres where they raise corn, soybeans, grain and cattle. They're also trying to lift restrictions on a 140-acre tract owned by their mother.

In their application to withdraw from Maryland's agricultural land preservation program — the first time any farmer has formally asked to drop out — the brothers contend that they have been losing hundreds of thousands of dollars a year on the farms, and that farming their three properties and their mother's is "not feasible."

The deck appears stacked against the Mullinixes, given legal restrictions on farmers reclaiming development rights. But there are hundreds of others eligible to try, and some worry more farmers might be tempted if the brothers succeed.

"It's a precedent-setting case that has huge ramifications," said Cathy Hudson, president of the Howard County Citizens' Association, which opposes the farmers' bid. A public hearing on the request for the Mullinix brothers' three farms is scheduled Thursday at the Howard County fairground.

Though one of the nation's most densely populated states, Maryland has long been a national leader in farmland preservation. In 1977, it set up one of the first state programs to buy "easements" from farm owners, who voluntarily give up development rights on their land.

Since then, using revenues from real estate transfer taxes, the Maryland Agricultural Land Preservation Foundation has spent $610 million to protect 284,000 acres on more than 2,000 farms statewide. That's about equal to the total acreage of Carroll County.

But roughly three-quarters of those easements have provisions allowing landowners to leave the program after 25 years if they can show it's no longer feasible to farm their property. Officials say there are now 380 easements old enough to opt out if the landowners can meet the seemingly stringent conditions.

While some farmers have asked about — and even threatened to seek — termination of their preservation deals, none has formally requested it until now, according to Carol West, the foundation's executive director.

Howard County is where many expected the first attempted defections from the preservation program. Once mostly rural, it is now a sprawling bedroom community to Baltimore and Washington, with McMansions, churches and schools spread among crop fields and pastures in the less densely developed western portion of the county. Farmers have more and more neighbors, and in some cases frictions have sprung up over such issues as the smells and noises of an agricultural operation, or slow-moving farm equipment on winding two-lane roads.

"This is no longer western Howard; this is western Columbia," said Mike Mullinix, referring to the populous if unincorporated center of the county, which has grown from nothing in the early 1960s to nearly 100,000 people. The county's overall population has grown nearly eightfold fold in the same time.

Just across Howard Road from the Mullinix home farm is a new housing development called The Warfields II, with more than 60 lots laid out atop a hill in what the real estate sales lingo describes as a "pastoral setting." A six-bedroom, five-bath brick house built there with cathedral ceilings is listed for $1.2 million.

Land values have soared in Howard, and so have property taxes, giving many landowners reason to consider selling out to developers. By selling development rights, farmers get substantial cash payments from the government and reduce their tax bill, since the land is no longer available for housing or other uses.

The Mullinixes were among the first wave of farmers in Howard to offer the state their development rights. They sold easements on their farms in 1984, and got paid about $450,000 at the time, according to the preservation foundation's director.

But development pressures in Howard inflated land values so much there that the state often couldn't offer farmers enough to get them to sell. The county created its own, more generous preservation program, and has bought the bulk of the 21,650 acres under agricultural easements there, according to Joy Levy, administrator of the county program. And unlike most of the state's easements, the county's are permanent, meaning landowners can't lift development restrictions under any circumstances.

Mullinix said the brothers have no plans right now to sell any of their land for development. But with the community changing and the future uncertain, they want to keep their options open.

"I personally think we can save the family farm outside the program," he said. "You can do different things."

The brothers also run a farm equipment and supply business on a small chunk of the family's home farm on Howard Road; it is not covered by the easement, which would otherwise bar most commercial enterprises. Mullinix said the business has done well, but it's been tough in recent years raising cattle and crops.

The brothers' application to get out of the preservation program says annual losses have ranged from $430,000 to more than $530,000 on the three farms combined from 2008 through 2010. But West, the foundation director, is not convinced that the Mullinixes did that poorly. She has commissioned an expert review of the partnership's profit-and-loss statements.

"They have to prove that no owner can farm that land successfully and make a profit," West said. That's the word in the law: 'profit.' It doesn't say you have to be able to farm in a manner that would sustain three families or households. ...

"It's a hard test, and it was intentionally made difficult.''

The Mullinixes have run afoul of the program a few times over the years with activities deemed non-agricultural. In 1999, they were denied a request to have a commercial landscaping business on their property, and two years ago they were forced to remove a topsoil screening machine, according to West. Last year, the foundation threatened to fine them up to $50,000 unless they shut down a second landscaping business operating from leased land on one of the farms.

"Over the years, some of our landowners struggle," said West. "Some of them need to do other things, and we understand that."

The foundation would permit the Mullinixes to run a landscaping business from one of the farms if it was their own company, she said, but not if they rent land to others. She said she told them they could remedy the situation last year by acquiring an ownership interest in the business, but added, "They tend not to always follow our advice."

"What difference does it make?" Mullinix countered. "Do I need to be a landscaper, too?" He contended that landscaping and farming go together, pointing out that the farms had sold some of the straw they produce to the contractors who rented space from them.

The head of the Howard County Farm Bureau, Howie Feaga, indicated he isn't inclined to endorse the Mullinixes' bid to reclaim their development rights. But he said the state farmland preservation program could perhaps be made more flexible.

"The state program is a little more restrictive than the county program, so to diversify it's a little harder,'' said Feaga, who converted his family's dairy farm in the 1990s to a horse-boarding operation.

"But there's a lot of farmers in the state program that are doing well, especially in a year like this," he added. "In Howard County, we've had one of the best growing seasons in probably a decade, with commodity prices at a record level."

It's not clear the Mullinixes will go through with pulling out of the farmland preservation program, even if they get approval from state and local officials, who also have a say. The brothers would have to reimburse the state for the money they received years ago, and it's likely to cost them far more than they originally got paid, noted West. Repayment is based on what the land is worth now — substantially more than it was in the 1980s — minus the value of the farming operation.

"We understand some of that," Mullinix said. "Cart before the horse."

Cathy Hudson, head of Howard's umbrella civic organization, said she finds it ironic the Mullinixes are claiming they can no longer make a go of farming. She recently began trying her hand at farming, raising vegetables, berries and chickens on her eight-acre property in Elkridge.

"There's a development going up next to me," Hudson said, "and I go, 'Oh! New customers!' I look at it differently. I see it as an opportunity to teach people where their food comes from. I think a lot of farms are having to switch their model to be compatible with the suburban influx. ... I don't think it's a bad accommodation at all."

Mike Mullinix acknowledges that some farms have changed what they raise and marketed their products directly to the public. But he questions how much demand there is for what he calls "agri-tourism."

"Farming's a disease," Mullinix said with a wry smile. "We love it," he said, but added "It's not as much fun. The fun's almost out of it. … We're so used to doing things — then to be told you can't…"

But West said the easements need to be restrictive to preserve the agricultural character of the land.

"When you take the state's dollars," she added, "you're giving permission for the state to tell you what to do."