Articles

Agricultural Security Areas Help to Ensure Agriculture’s Future in Pennsylvania

By Lamb McErlane attorneys Mark Thompson, Esq. & Melissa Rheinstadter, Esq.

Pennsylvania produces $10 billion in agricultural products annually according to census data released earlier this year. This is not surprising; Pennsylvania is home to over 50,000 farm operations. In fact, the majority of mushroom farm operations in the United States, as well as top ranking dairy farm production and equine facilities are located in southeastern Pennsylvania. Given the economic impact of these operations, Pennsylvania provides significant protection for properties used for agricultural production. One way to obtain such protection is by way of an application to join an Agricultural Security Area.

The purpose of Agricultural Security Areas (“ASAs”) is to “conserve and protect and to encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.” PA Act 43, P.L. 128, No. 43, the Agricultural Security Area Law (1981). ASAs are registered pieces of land protected from the reach of local ordinances, such as those addressing nuisance complaints about noises and smells that are part of normal farming operations, or from condemnation actions. To join an ASA a landowner must submit an application to their local municipality. Joining an ASA does not restrict the landowners’ ability to sell or develop their land, nor does status in an ASA place any additional restrictions on the land. Landowners may join and withdraw from ASAs at any time. The goal of an ASA is simply to protect normal agricultural farming operations.

In order to join an ASA in any municipality in Pennsylvania, a landowner must follow the procedures outlined in the Agricultural Security Area Law, PA Act 43, P.L. 128, No. 43 (1981), which are explained, in part, below.

I. What is Required to Join an Agricultural Security Area?

All Agricultural Security Areas are overseen by an Agricultural Security Area Advisory Committee (the “Committee”) established by the governing body of the municipality in which the agricultural land is located. The Committee reviews proposals for the creation, modification and termination of agricultural security areas. The Committee may also render expert advice as to the nature of farming and farm resources.

An ASA consists of (i) at least 250 acres of viable agricultural land or (ii) any number of noncontiguous tax parcels provided that each parcel consists of at least ten acres or has an anticipated yearly gross income of at least $2,000 from the agricultural production of crops, livestock and livestock products. In sum, as long as the landowner’s plot of land is used for viable agricultural purposes and has a yearly anticipated gross income of at least $2,000, the landowner may submit a proposal to join an ASA.

In the event that the landowner does not reside in a municipality which already has an established ASA, that landowner may propose the creation of an ASA. The landowner may contact the municipality or his or her county Department of Open Space Preservation, or similar office, to determine whether there is an established ASA already in effect in the landowner’s municipality.

If the landowner owns properties in multiple municipalities, the landowner may seek to have all of his or her properties included in an ASA, as long as the proposal is submitted to and approved by each of the municipalities in which the properties are located.

II. How to Apply to be in an Agricultural Security Area.

A. Application

Each municipality has its own form to create or join an ASA. In the proposal, the landowner must provide a map or description of the proposed area and the boundaries thereof. The proposal must be sent to the municipality via certified mail with return receipt requested.

B.  Notice

Once a proposal is properly submitted by the landowner to the municipality, the municipality must acknowledge receipt of the proposal at the next regularly scheduled, or special, meeting. It is the responsibility of the municipality to publish notice of the meeting in a newspaper of general circulation within the proposed ASA and it must post notice in 5 conspicuous locations within, adjacent to or near the proposed area. Notifications must be published within 15 days of receipt of the proposal.

The notice must include the following information: (i) a statement that a proposal for an ASA has been filed with the governing body of the municipality pursuant to the Agricultural Security Area Law; (ii) a statement that the proposal will be on file and open to public inspection in the office of the municipality; (iii) a statement outlining the adjoining landowners’ ability to join the proposal by amendment, via submission to the governing body and planning commission within 15 days of the notice; (iv) a statement that, after the 15 day period has expired, the proposal and any additions to the proposal will be submitted to the planning commission and advisory committee in the municipality and (v) that there will be a public hearing.

C. Referral from Governing Body to Planning Commission and the Agricultural Security Area Advisory Committee

After proper notice has been timely submitted to a newspaper of general circulation, and posted on the property, the municipality must wait 15 days before reviewing the application. Once the 15-day waiting period has expired, the governing body of the municipality must refer the proposal, and any additions to the proposal, to both the planning commission and the Committee. The planning commission and the Committee have 45 days to review the proposal and provide their report to the governing body. Failure to provide this report within 45 days results in a deemed approval of the ASA by either the planning commission or the committee.

After the 45 days are up, or both the planning commission and the Committee have provided their reports, the governing body shall hold a public hearing, noticed in accordance with all applicable Sunshine Act requirements.

During the hearing, the governing body may consider the following criteria:

  • Soil Considerations such as:
    • Whether the soil is conducive to agriculture.
      • As long as 50% of the land has soils within the following categories, then it is conducive to agriculture: Soil Conservation Service Capability Classes I through IV, except IV (e).
      • If the soils do not meet Capability Classes I though IV, the governing body may also consider whether the land is currently in active farm use and is being maintained in accordance with soil erosion and sedimentation plan.
    • Whether the land falls within the Soil Conservation Service Classification of “unique farm land.”
  • Whether the land is compatible with municipal comprehensive plans.
  • Whether the landowner proposed to include all their land, regardless of zoning.
  • Whether the land is viable agricultural land.
  • Any additional factors such as the extent and nature of farm improvements, anticipated trends in agricultural economic and technological conditions.

A municipality may not deny a landowner from joining or creating an ASA solely because the governing body does not believe an ASA is needed in the municipality. See In re: Agric. Sec. Area in E. Lampeter Twp., 974 A.2d 1213 (Pa. Cmwlth May 27, 2009) (finding that the township may not make the determination whether an ASA is needed; it is solely at the discretion of the landowner whether an ASA is needed in the area). Nor may a municipality prohibit an ASA in order to specifically prohibit a certain agricultural activity from occurring in the municipality. See 41 Valley Assocs. v. Bd. of Supervisors of London Grove Township, 882 A.2d 5 (Pa. Cmwlth. 2005) (finding that ASAs are to be used to enable a broad use of farmland, not to prohibit certain uses, such as mushroom farming).

At the public hearing, adjoining neighbors may be given the opportunity to oppose the proposal. See Lenzi v. Agric. Land Preservation Bd., 602 A.2d 396 (Pa. Cmwlth. 1992) (finding that a neighboring property owner of a proposed ASA may object to the proposal if they will be adversely affected).

III. Final Decisions on the Proposal to Join the Agricultural Security Area and Appeals.

After the hearing is complete, the governing body has 180 days to either accept or reject the proposal measured from the date the proposal was originally submitted. Failure to act within 180 days from the submission will be deemed an approval of the proposal.  If the governing body rejects or modifies the proposal, the governing body must provide a written decision within 10 days of its decision. The written decision must include a finding of fact, review of the evaluation criteria and a discussion of reasons for rejection or modification. Parties may appeal any decision on the ASA in the court of common pleas 30 days after the decision.

If approved, the ASA will become effective upon adoption of the proposal or expiration of 180-day period. The municipality must file a description of the ASA with the recorder of deeds and the planning commissions of the county and the local government unit.

After approval, the governing body may review the ASA every seven years. At least 120 days prior to the end of the seventh year, a public hearing must be held. The public hearing must be duly advertised. If a review is not conducted every seven years, the ASA property is deemed approved for another seven years. If 10% or more of the ASA is converted to non-agricultural uses, then the ASA will be reevaluated by the governing body.

ASAs are a viable tool for many landowners and municipalities in the Commonwealth in order to protect valuable agricultural resources. By joining an ASA, landowners may protect their normal agricultural farming operations, by insulating the land from any nuisance complaints or condemnation. For municipalities, ASAs are a tool to foster cooperation with and strengthen local farming communities.

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Mark P. Thompson is a partner at Lamb McErlane and concentrates his practice on municipal, land use, environmental law and property tax assessment matters. Mark manages a wide variety of municipal, land use, property tax, administrative and environmental law matters and advises townships, boroughs, school districts and municipal authorities, as well as corporations and individuals. 610-701-4407. mthompson@lambmcerlane.com

Melissa A. Rheinstadter is an associate at Lamb McErlane and focuses her practice in Municipal and Environmental Law. Melissa handles various municipal, land use, and property tax matters. Melissa also assists in advising townships, boroughs, school districts and municipal authorities.610-701-3271. mrheinstadter@lambmcerlane.com

*This article is for educational purposes only and is not intended to be legal advice. Should you require legal advice on this or similar topics, contact Lamb McErlane attorneys Mark P. Thompson or Melissa A. Rheinstadter.

Lamb McErlane PC is a full service regional law firm based in West Chester, Pennsylvania, with additional offices in Philadelphia, Newtown Square, Oxford, Exton and Mt. Laurel, NJ. The Firm has built a reputation on delivering the highest caliber of legal service in an environment focused on personal attention and results. Bringing the sophistication and experience equated with large, metropolitan firms, Lamb McErlane’s highly efficient, goal oriented and focused approach produces results that clients deserve.