PRIOR PRINTER'S NO. 4295 PRINTER'S NO. 4554
No. 2801 Session of 2004
INTRODUCED BY HERSHEY, ROSS, DALEY, BUNT, NICKOL, GODSHALL, BAKER, BALDWIN, BARD, BARRAR, BASTIAN, CALTAGIRONE, CIVERA, CLYMER, S. E. CORNELL, COY, CRAHALLA, DAILEY, DiGIROLAMO, FICHTER, FLEAGLE, FLICK, GABIG, GILLESPIE, HARHART, HARPER, HENNESSEY, KILLION, LEH, MACKERETH, MAITLAND, MAJOR, McILHINNEY, MELIO, MICOZZIE, R. MILLER, NAILOR, O'NEILL, PICKETT, REICHLEY, SANTONI, SAYLOR, SCHRODER, SEMMEL, STAIRS, STEIL, TANGRETTI, E. Z. TAYLOR, VITALI AND WATSON, JULY 3, 2004
AS REPORTED FROM COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, HOUSE OF REPRESENTATIVES, AS AMENDED, OCTOBER 19, 2004
AN ACT 1 Amending the act of June 30, 1981 (P.L.128, No.43), entitled "An 2 act authorizing the creation of agricultural areas," further 3 providing for definitions, for limitation on local <-- 4 regulations AGRICULTURAL SECURITY AREAS, FOR EVALUATION <-- 5 CRITERIA and for the purchase of agricultural conservation 6 easements. 7 The General Assembly of the Commonwealth of Pennsylvania 8 hereby enacts as follows: 9 Section 1. The definitions of "agricultural conservation <-- 10 easement," "agricultural security area," "farmland value" and 11 "viable agricultural land" in section 3 of the act of June 30, 12 1981 (P.L.128, No.43), known as the Agricultural Area Security 13 Law, amended December 14, 1988 (P.L.1202, No.149), November 23, 14 1994 (P.L.648, No.100) and May 30, 2001 (P.L.103, No.14), are 15 amended and the section is amended by adding a definition to 16 read:
1 SECTION 1. SECTION 3 OF THE ACT OF JUNE 30, 1981 (P.L.128, <-- 2 NO.43), KNOWN AS THE AGRICULTURAL AREA SECURITY LAW, IS AMENDED 3 BY ADDING A DEFINITION TO READ: 4 Section 3. Definitions. 5 The following words and phrases when used in this act shall 6 have the meanings given to them in this section unless the 7 context clearly indicates otherwise: 8 * * * 9 "Agricultural conservation easement." An interest in land, <-- 10 less than fee simple, which interest represents the right to 11 prevent the development or improvement of a parcel for any 12 purpose other than agricultural production or a commercial 13 equine activity. The easement may be granted by the owner of the 14 fee simple to any third party or to the Commonwealth, to a 15 county governing body or to a unit of local government. It shall 16 be granted in perpetuity as the equivalent of covenants running 17 with the land. The exercise or failure to exercise any right 18 granted by the easement shall not be deemed to be management or 19 control of activities at the site for purposes of enforcement of 20 the act of October 18, 1988 (P.L.756, No.108), known as the 21 "Hazardous Sites Cleanup Act." 22 * * * 23 "Agricultural security area." A unit of 250 or more acres of 24 land used for the agricultural production of crops, livestock 25 and livestock products or a commercial equine activity under the 26 ownership of one or more persons and designated as such by the 27 procedures set forth in this act or designated as such pursuant 28 to the act of January 19, 1968 (1967 P.L.992, No.442), entitled 29 "An act authorizing the Commonwealth of Pennsylvania and the 30 counties thereof to preserve, acquire or hold land for open 20040H2801B4554 - 2 -
1 space uses," prior to the effective date of this amendatory act, 2 by the governing body of the county or governing body of the 3 municipality in which such agricultural land is located on the 4 basis of criteria and procedures which predate the effective 5 date of this amendatory act: Provided, That an owner of land 6 designated as such under the authority of the act of January 19, 7 1968 (1967 P.L.992, No.442) may withdraw such land from an 8 agricultural security area by providing written notice of 9 withdrawal to the county governing body or governing body of the 10 municipality in which such land is located within 180 days of 11 the effective date of this amendatory act. 12 "Commercial equine activity." The term includes the 13 following activities where a fee is collected: 14 (1) The boarding of equines. 15 (2) The training of equines. 16 (3) The instruction of people in handling or riding 17 equines. 18 (4) The use of equines for recreational riding purposes. <-- 19 * * * 20 "Farmland value." The price as of the valuation date for <-- 21 property used for normal farming operations or a commercial 22 equine activity which a willing and informed seller who is not 23 obligated to sell would accept for the property, and which a 24 willing and informed buyer who is not obligated to buy would pay 25 for the property. 26 * * * 27 "Viable agricultural land." Land suitable for agricultural 28 production or a commercial equine activity and which will 29 continue to be economically feasible for such use if real estate 30 taxes, farm use restrictions, and speculative activities are 20040H2801B4554 - 3 -
1 limited to levels approximating those in commercial agricultural 2 areas not influenced by the proximity of urban and related 3 nonagricultural development. 4 Section 2. Section 11 of the act, amended December 14, 1988 5 (P.L.1202, No.149), is amended to read: 6 Section 11. Limitation on local regulations. 7 (a) General rule.--Every municipality or political 8 subdivision within which an agricultural security area is 9 created shall encourage the continuity, development and 10 viability of agriculture within such an area by not enacting 11 local laws or ordinances which would unreasonably restrict farm 12 structures or farm practices or a commercial equine activity 13 within the area in contravention of the purposes of this act 14 unless such restrictions or regulations bear a direct 15 relationship to the public health or safety. 16 (b) Public nuisance.--Any municipal or political subdivision 17 law or ordinance defining or prohibiting a public nuisance shall 18 exclude from the definition of such nuisance any agricultural 19 activity or operation conducted using normal farming operations 20 or a commercial equine activity within an agricultural security 21 area as permitted by this act if such agricultural activity or 22 operation does not bear a direct relationship to the public 23 health and safety. 24 Section 3. Section 14.1(c) and (i), amended November 23, 25 1994 (P.L.621, No.96) and December 21, 1998 (P.L.1056, 26 No.138),are amended to read: 27 SECTION 2. SECTION 5(A) OF THE ACT, AMENDED OCTOBER 16, 1996 <-- 28 (P.L.703, NO.121), IS AMENDED TO READ: 29 SECTION 5. AGRICULTURAL SECURITY AREAS. 30 (A) PROPOSALS FOR CREATION.--ANY OWNER OR OWNERS OF LAND 20040H2801B4554 - 4 -
1 USED FOR AGRICULTURAL PRODUCTION MAY SUBMIT A PROPOSAL TO THE 2 GOVERNING BODY FOR THE CREATION OF AN AGRICULTURAL SECURITY AREA 3 WITHIN SUCH LOCAL GOVERNMENT UNIT, PROVIDED THAT SUCH OWNER OR 4 OWNERS OWN AT LEAST 250 ACRES OF VIABLE AGRICULTURAL LAND 5 PROPOSED TO BE INCLUDED IN THE AREA. THIS LAND SHALL INCLUDE 6 VIABLE AGRICULTURAL LAND USED FOR COMMERCIAL EQUINE ACTIVITY. 7 THE PROPOSED AREA MAY ALSO CONSIST OF ANY NUMBER OF 8 NONCONTIGUOUS TAX PARCELS OR ACCOUNTS: PROVIDED, THAT EACH TAX 9 PARCEL OR ACCOUNT IS AT LEAST TEN ACRES OR HAS AN ANTICIPATED 10 YEARLY GROSS INCOME OF AT LEAST $2,000 FROM THE AGRICULTURAL 11 PRODUCTION OF CROPS, LIVESTOCK AND LIVESTOCK PRODUCTS ON SUCH 12 PARCEL OR ACCOUNT. 13 * * * 14 SECTION 3. SECTION 7(A) OF THE ACT, AMENDED NOVEMBER 23, 15 1994 (P.L.648, NO.100), IS AMENDED TO READ: 16 SECTION 7. EVALUATION CRITERIA. 17 (A) FACTORS TO BE CONSIDERED.--THE FOLLOWING FACTORS SHALL 18 BE CONSIDERED BY THE PLANNING COMMISSION, ADVISORY COMMITTEE, 19 AND AT ANY PUBLIC HEARING: 20 (1) LAND PROPOSED FOR INCLUSION IN AN AGRICULTURAL 21 SECURITY AREA SHALL HAVE SOILS WHICH ARE CONDUCIVE TO 22 AGRICULTURE. THIS FACTOR WILL HAVE BEEN SATISFIED WITHOUT 23 FURTHER CONSIDERATION IF AT LEAST 50% IN THE AGGREGATE OF THE 24 LAND TO BE INCLUDED IN AN AGRICULTURAL SECURITY AREA FALLS 25 INTO ONE OF THE FOLLOWING CATEGORIES: LAND WHOSE SOILS ARE 26 CLASSIFIED IN SOIL CONSERVATION SERVICE CAPABILITY CLASSES I 27 THROUGH IV, EXCEPTING IV(E); LAND WHICH FALLS WITHIN THE SOIL 28 CONSERVATION SERVICE CLASSIFICATION OF "UNIQUE FARM LAND"; OR 29 LAND WHOSE SOILS DO NOT MEET CAPABILITY CLASSES I THROUGH IV 30 BUT WHICH IS CURRENTLY IN ACTIVE FARM USE AND IS BEING 20040H2801B4554 - 5 -
1 MAINTAINED IN ACCORDANCE WITH THE SOIL EROSION AND 2 SEDIMENTATION PLAN APPLICABLE TO SUCH LAND. 3 (2) USE OF LAND PROPOSED FOR INCLUSION IN AN 4 AGRICULTURAL SECURITY AREA SHALL BE COMPATIBLE WITH LOCAL 5 GOVERNMENT UNIT COMPREHENSIVE PLANS. ANY ZONING SHALL PERMIT 6 AGRICULTURAL USE BUT NEED NOT EXCLUDE OTHER USES. 7 (3) THE LANDOWNER MAY PROPOSE TO INCLUDE ALL OF HIS 8 LAND, REGARDLESS OF ZONING, IN AN AGRICULTURAL SECURITY AREA. 9 (4) THE LAND PROPOSED FOR INCLUSION IN THE AGRICULTURAL 10 SECURITY AREA, AND ANY ADDITIONS WHICH ARE PROPOSED 11 SUBSEQUENTLY, SHALL BE VIABLE AGRICULTURAL LAND, INCLUDING 12 VIABLE AGRICULTURAL LAND USED FOR COMMERCIAL EQUINE ACTIVITY. 13 (5) ADDITIONAL FACTORS TO BE CONSIDERED ARE THE EXTENT 14 AND NATURE OF FARM IMPROVEMENTS, ANTICIPATED TRENDS IN 15 AGRICULTURAL ECONOMIC AND TECHNOLOGICAL CONDITIONS AND ANY 16 OTHER MATTER WHICH MAY BE RELEVANT. 17 * * * 18 SECTION 4. SECTION 14.1(C) OF THE ACT, AMENDED NOVEMBER 23, 19 1994 (P.L.621, NO.96) AND DECEMBER 21, 1988 (P.L.1056, NO.138), 20 IS AMENDED TO READ: 21 Section 14.1. Purchase of agricultural conservation easements. 22 * * * 23 (c) Restrictions and limitations.--An agricultural 24 conservation easement shall be subject to the following terms, 25 conditions, restrictions and limitations: 26 (1) The term of an agricultural conservation easement 27 shall be perpetual. 28 (2) Unless otherwise authorized in accordance with 29 subsection (i), an agricultural conservation easement shall 30 not be sold, conveyed, extinguished, leased, encumbered or 20040H2801B4554 - 6 -
1 restricted in whole or in part for a period of 25 years 2 beginning on the date of purchase of the easement. 3 (3) Unless otherwise authorized in accordance with 4 subsection (i), if the land subject to the agricultural 5 conservation easement is no longer viable agricultural land, 6 the Commonwealth, subject to the approval of the State board, 7 and the county, subject to the approval of the county board, 8 may sell, convey, extinguish, lease, encumber or restrict an 9 agricultural conservation easement to the current owner of 10 record of the farmland subject to the easement after the 11 expiration of 25 years from the date of purchase of the 12 easement for a purchase price equal to the value at the time 13 of resale determined pursuant to subsection (f) at the time 14 of conveyance. A conveyance by the Commonwealth pursuant to 15 this subsection shall not be subject to the requirements of 16 Article XXIV-A of the act of April 9, 1929 (P.L.177, No.175), 17 known as "The Administrative Code of 1929." The purchase 18 price shall be payable to the Commonwealth and the county as 19 their respective legal interests in the agricultural 20 conservation easement appear, and a separate payment shall be 21 made to the Commonwealth and the county accordingly at the 22 time of settlement. Any payment received by the Commonwealth 23 pursuant to this provision shall be paid into the fund. 24 (4) Instruments and documents for the purchase, sale and 25 conveyance of agricultural conservation easements shall be 26 approved by the State board or the county board, as the case 27 may be, prior to execution and delivery. Proper releases from 28 mortgage holders and lienholders must be obtained and 29 executed to insure that all agricultural conservation 30 easements are purchased free and clear of all encumbrances. 20040H2801B4554 - 7 -
1 (5) Whenever any public entity, authority or political 2 subdivision exercises the power of eminent domain and 3 condemns land subject to an agricultural conservation 4 easement, the condemnor shall provide just compensation to 5 the owner of the land in fee and to the owner of the easement 6 as follows: 7 (i) The owner of the land in fee shall be paid the 8 full value which would have been payable to the owner but 9 for the existence of an agricultural conservation 10 easement less the value of the agricultural conservation 11 easement at the time of condemnation. 12 (ii) The owner of the easement shall be paid the 13 value of the easement at the time of condemnation. 14 (iii) For easements owned jointly by the 15 Commonwealth and an eligible county, if the eligible 16 county commits its share of funds received under this 17 paragraph toward the purchase of agricultural 18 conservation easements, the condemnor shall provide the 19 Commonwealth's share of funds to the eligible county for 20 use in purchasing agricultural conservation easements in 21 accordance with this act. 22 (iv) For easements owned by the Commonwealth, the 23 condemnor shall provide the Commonwealth's share of funds 24 received under this paragraph to the eligible county for 25 use in purchasing agricultural conservation easements in 26 accordance with this act. 27 (v) Funds received by an eligible county under this 28 paragraph shall not be considered matching funds under 29 subsection (h). 30 (vi) If an eligible county which receives funds 20040H2801B4554 - 8 -
1 under this paragraph fails to spend the Commonwealth's 2 share of funds within two years of receipt of the funds, 3 the eligible county shall pay the Commonwealth the 4 Commonwealth's share of funds received under this 5 paragraph plus 6% simple interest. These funds shall be 6 deposited into the Agricultural Conservation Easement 7 Purchase Fund. 8 (6) An agricultural conservation easement shall not 9 prevent: 10 (i) The granting of leases, assignments or other 11 conveyances or the issuing of permits, licenses or other 12 authorization for the exploration, development, storage 13 or removal of coal by underground mining methods, oil and 14 gas by the owner of the subject land or the owner of the 15 underlying coal by underground mining methods, oil and 16 gas or the owner of the rights to develop the underlying 17 coal by underground mining methods, oil and gas, or the 18 development of appurtenant facilities related to the 19 removal of coal by underground mining methods, oil or gas 20 development or activities incident to the removal or 21 development of such minerals. 22 (ii) The granting of rights-of-way by the owner of 23 the subject land in and through the land for the 24 installation of, transportation of, or use of water, 25 sewage, electric, telephone, coal by underground mining 26 methods, gas, oil or oil products lines. 27 (iii) Construction and use of structures on the 28 subject land necessary for agricultural production or a 29 commercial equine activity. 30 (iv) Construction and use of structures on the 20040H2801B4554 - 9 -
1 subject land for the landowner's principal residence or 2 for the purpose of providing necessary housing for 3 seasonal or full-time employees: Provided, That only one 4 such structure may be constructed on no more than two 5 acres of the subject land during the term of the 6 agricultural conservation easement. 7 (v) Customary part-time or off-season minor or rural 8 enterprises and activities which are provided for in the 9 county Agricultural Conservation Easement Purchase 10 Program approved by the State board under subsection (d). 11 (VI) COMMERCIAL EQUINE ACTIVITY ON THE SUBJECT LAND. <-- 12 (7) Land subject to an agricultural conservation 13 easement shall not be subdivided for any purpose which may 14 harm the economic viability of the farmland for agricultural 15 production or a commercial equine activity. Land may be <-- 16 subdivided prior to the granting of an agricultural 17 conservation easement, provided that subdividing will not 18 harm the economic viability for agricultural production or a <-- 19 commercial equine activity of the land subject to the 20 easement. 21 (8) Nothing in this act shall prohibit a member of the 22 State board or county board or his or her family from selling 23 a conservation easement under this program, provided that all 24 decisions made regarding easement purchases be subject to the 25 provisions of section 3(j) of the act of October 4, 1978 26 (P.L.883, No.170), referred to as the Public Official and 27 Employee Ethics Law. 28 * * * 29 (i) Subdivision of land after easement purchase.-- <-- 30 (1) Each county program shall specify the conditions 20040H2801B4554 - 10 -
1 under which the subdivision of land subject to an 2 agricultural conservation easement may be permitted. In no 3 case, however, shall a county program permit a subdivision 4 which will: 5 (i) harm the economic viability of the farmland for 6 agricultural production or a commercial equine activity; 7 or 8 (ii) convert land which has been devoted primarily 9 to agricultural use or a commercial equine activity to 10 another primary use, except that a county program may 11 permit one subdivision for the purpose of the 12 construction of a principal residence for the landowner 13 or an immediate family member. 14 (2) The county board may agree to permit a parcel of 15 land subject to an agricultural conservation easement to be 16 subdivided after the granting of such easement as follows: 17 (i) The landowner of record may submit an 18 application, in such form and manner as the county board 19 may prescribe, to the county board requesting that a 20 parcel of the land subject to an easement be subdivided. 21 Upon receipt of the application, the county board shall 22 cause to be forwarded written notification thereof to the 23 county zoning office, county planning office and county 24 farmland preservation office, herein referred to as the 25 reviewing agencies. Each reviewing agency shall have 60 26 days from receipt of such notification to review, comment 27 and make recommendations on the proposed application to 28 the county board. 29 (ii) After reviewing the application and the 30 comments and recommendations submitted by the reviewing 20040H2801B4554 - 11 -
1 agencies, the county board shall approve or reject the 2 application to subdivide within 120 days after the date 3 of its filing unless the time is extended by mutual 4 agreement of the landowner and reviewing agencies. 5 (iii) If the application to subdivide land is 6 approved by the county board, a copy of the application, 7 along with the comments and recommendations of the 8 reviewing agencies, shall be forwarded to the State board 9 for review and approval or disapproval. When reviewing an 10 application to subdivide land subject to an agricultural 11 conservation easement, the State board shall consider 12 only whether the application complies with the conditions 13 under which subdivisions are permitted by the approved 14 county program. The State board shall notify the county 15 board of its decision regarding the application. 16 (iv) If the application to subdivide is rejected by 17 the county board, the application shall be returned to 18 the landowner with a written statement of the reasons for 19 such rejection. Within 30 days after the receipt of the 20 statement of rejection, the landowner may appeal the 21 rejection in accordance with 2 Pa.C.S. Ch. 5 Subch. B 22 (relating to practice and procedure of local agencies) 23 and Ch. 7 Subch. B (relating to judicial review of local 24 agency action). 25 Section 4. This act shall take effect in 60 days. 26 SECTION 5. THIS ACT SHALL BE RETROACTIVE TO JUNE 30, 1981. <-- 27 SECTION 6. THIS ACT SHALL TAKE EFFECT IN 60 DAYS. G1L03SFL/20040H2801B4554 - 12 -