Title 7--AGRICULTURE DEPARTMENT OF AGRICULTURE [7 PA. CODE CH. 138e] Agricultural Conservation Easement Purchase Program [27 Pa.B. 6782] The Department of Agriculture (Department), Bureau of Farmland Protection, amends Chapter 138e (relating to agricultural conservation easement purchase program).
The amendments are offered under authority of section 15 of the Agricultural Area Security Law (act) (3 P. S. § 915), which requires the Department to promulgate regulations necessary for the efficient, uniform and Statewide enforcement of the act. That same section allows for the use of interim guidelines by the Department until no later than December 31, 1997, by which time the Department is to have regulations in place to supplant the interim guidelines.
The interim guidelines permitted under section 15 of the act were published at 25 Pa.B. 5253 (November 25, 1995) as the ''Interim Guidelines for Implementation of the Agricultural Area Security Law'' (Interim Guidelines), and have been used by the Department to effectively implement various provisions of the act with respect to which there were no attendant regulations or with respect to which regulations had been rendered inadequate as a result of statutory amendment.
These final-form regulations accomplish two objectives: 1) They supplant the various provisions of the Interim Guidelines with identical regulatory provisions; and 2) They accomplish an updating and streamlining of the Interim Guidelines to reflect the experience of the Department in administering the Agricultural Conservation Easement Purchase Program to date.
Comments
Notice of proposed rulemaking was published at 27 Pa.B. 3751 (July 26, 1997) and provided for a 30-day public comment period.
Comments were received from the House Agriculture and Rural Affairs Committee (House Committee), the Minority Chairperson of the House Committee (Minority Chairperson), the Independent Regulatory Review Commission (IRRC) and the Pennsylvania Builders Association (PBA).
Comment: The House Committee suggested that § 138e.3 (relating to definitions) be revised to include the definition of ''agricultural security area'' from section 3 of the act (3 P. S. § 903). IRRC also raised this comment, noting the use of this term in § 138e.16(a)(1) (relating to minimum criteria for applications).
Response: The Department has made the suggested addition in the final-form regulations.
Comment: The House Committee expressed concern over the definition of ''conservation plan'' in § 138e.3. The primary concern was with the requirement that the plan have a ''nutrient management component.'' The House Committee noted there is no authority in the act to require the implementation of a nutrient management plan as a prerequisite to the sale of an agricultural conservation easement. A separate statute, the Nutrient Management Act (3 P. S. §§ 1701--1718), sets forth the circumstances under which a nutrient management plan is required. The House Committee believed the requirement of a nutrient management component in a conservation plan might be interpreted as requiring a landowner to develop a nutrient management plan that would not otherwise have been required under the Nutrient Management Act.
The House Committee also noted references to ''nutrient management'' in proposed §§ 138e.15(e)(4)(iii), 138e.61(b)(9), 138e.70(b)(6) and 138e.241, and suggested consideration be given to modifying the definition of ''nutrient management plan'' or deleting references to nutrient management.
Response: Section 14.1(d)(1)(iii) of the act (3 P. S. § 914.1(d)(1)(iii)) requires consideration be given to nutrient management practices in assessing the stewardship of the land with respect to which an agricultural conservation easement purchase is proposed. In light of this requirement, the Department declines to remove the references to nutrient management described in the two preceding paragraphs. The Department agrees the regulations should not require a landowner to develop a nutrient management plan if the plan is not required under the Nutrient Management Act. Rather than deleting references to ''nutrient management'' in the final-form regulations, though, the Department has revised the definition of ''conservation plan'' in § 138e.3 of the final-form regulations to describe the required nutrient management component of the plan.
Comment: The House Committee suggested § 138e.3 be revised so the term ''farmland tract'' reads ''farmland tract or tract.'' IRRC concurred with this comment.
Response: The Department has implemented the House Committee's suggestion in the final-form regulations.
Comment: Proposed § 138e.14(4) (relating to county statement of purpose) provided that one of the purposes of a county agricultural land preservation program (county program) is to protect normal farming operations from complaints of public nuisance against normal farming operations. The House Committee noted this regulatory requirement predated the proposed rulemaking, but questioned whether it is appropriate or legal to impose this requirement on county programs. Although the House Committee noted section 11(b) of the act (3 P. S. § 911(b)) imposes a similar restriction with respect to public nuisance ordinances enacted by municipalities or political subdivisions, it did not feel this statutory provision justified the referenced regulatory language.
Response: The Department declines to revise or delete the requirement in § 138e.14(4). Section 15 of the act (3 P. S. § 915) grants the Department authority to adopt regulations necessary to promote the ''efficient, uniform and Statewide'' administration of the act. Section 11(b) of the act requires that political subdivisions protect normal farming operations in agricultural security areas from being legally defined as public nuisances. A county program is a creation of the county governing body. The requirement that a county program protect normal farming operations from complaints of public nuisance is consistent with the duty placed upon counties by section 11(b) of the act.
Comment: IRRC recommended deleting the comma that appeared in proposed § 138e.15(a) (relating to farmland ranking system).
Response: The Department implemented this recommendation in the final-form regulations.
Comment: IRRC noted the acronym ''LESA'' is used only once--in proposed § 138e.15(c)--and suggested deleting it and using only full words in its place.
Response: The acronym ''LESA'' is a well-known acronym used throughout this Commonwealth. Although the term ''Land Evaluation and Site Assessment'' is used only once, the Department believes the insertion of the acronym ''LESA'' following that term adds clarity for the benefit of those county program personnel who are affected by the final-form regulations. For this reason the Department declined to implement IRRC's suggestion.
Comment: IRRC recommended adding the phrase ''site assessment'' beneath ''clustering potential'' in the chart in proposed § 138e.15(c). This would be consistent with the other entries on that chart.
Response: The Department agrees the chart in proposed § 138e.15(c) is unclear. The ambiguity was the result of the format of the chart as it was published in the proposed rulemaking, rather than its substantive content. This chart has been revised in the final-form regulations, without adding or deleting language, to make it identical to the chart which appeared in the corresponding subsection of the Interim Guidelines, and which the Department submitted to the Legislative Reference Bureau for publication in the proposed rulemaking.
Comment: IRRC suggested the headings of proposed §§ 138e.15(d), (d)(4), (e)(1)(i)--(iii), (e)(3) and (4)--(6) be revised to include both the complete term and the acronym, as is done at proposed § 138e.15(c).
Response: The Department accepts IRRC's suggestion and has implemented it in the final-form regulations.
Comment: IRRC recommended deleting the word ''total'' from where it first appears in proposed § 138e.15(d)(3), for the reason this would add clarity to that paragraph.
Response: The Department believes the use of the word ''total'' is appropriate in each of the two instances it is used in this paragraph, and that implementing IRRC's suggestion would not add clarity. In addition, the Department has not encountered any confusion over the use of this word in this paragraph in the nearly 2 years it has administered the Interim Guidelines. For these reasons, the Department declined to implement IRRC's suggestion.
Comment: Both IRRC and the House Committee noted the use of the term ''commercial agriculture'' in proposed § 138e.15(e)(1)(iii) and (5)(iii), and suggested that term either be defined or replaced with the term ''normal farming operation.''
Response: The Department accepted the commentators' suggestion, and has replaced the term ''commercial agriculture'' with ''normal farming operations''--a term that is defined in § 138e.3 of the final-form regulations.
Comment: The PBA reviewed proposed § 138e.15 (e)(3)(ii) and (iv), and questioned the appropriateness of assigning a higher ranking to farmland in an area which has or will have access to public water and sewer, and assigning a higher ranking to farmland adjoining or in the area of nonagricultural uses. The PBA opined that the agricultural conservation easement purchase program should not be used as a tool to halt growth and economic development by purchasing easements in growth areas.
Response: Section 14.1(d)(1)(ii) of the act requires a county program to consider the likelihood that farmland will be converted to nonagricultural use in assessing whether to recommend the purchase of an agricultural conservation easement with respect to that farmland. The market for nonfarm use or development of the farmland is relevant in this consideration.
The farmland ranking system in § 138e.15 provides a county program with a basic framework addressing all of the topics which the act requires a county program to consider in determining whether to recommend the purchase of a particular agricultural conservation easement. A county program is then free to customize its county program to give greater proportional emphasis to those areas it feels are the most important. Although a county program must rank farmland on a 100 point scale, it has a great deal of flexibility in determining the emphasis it will put on land evaluation (between 40% and 70%), development potential (between 10% and 40%), farmland potential (between 10% and 40%) and clustering potential (between 10% and 40%). In addition, a county program is free to develop additional factors under each of the foregoing categories.
In § 138e.15, the least amount of emphasis a county program could put on a farmland tract's proximity to sewer and water lines, or its proximity to nonagricultural uses, in arriving at a numerical ranking for that tract would be 1%. This would occur if a county program contained 10 development potential factors (as it is permitted to do under § 138e.15(e)(3)(i)) and afforded only 10% of its overall ranking score to development potential (as it is permitted to do under § 138e.15(c)). Each of the 10 development potential factors would then account for 1% of the overall numerical ranking score.
Under § 138e.15, the greatest amount of emphasis a county program could put on a farmland tract's proximity to sewer and water lines, or its proximity to nonagricultural uses, in arriving at a numerical ranking for that tract would be 13.33%. This would occur if a county program contained only three development potential factors (the minimum required under § 138e.15(e)(3)(i)) and afforded 40% of its overall ranking score to development potential (as it is permitted to do under § 138e.15(c)). Each of the three development potential factors would then account for 13.33% of the overall numerical ranking score.
The Department believes proximity of a farmland tract to sewer and water lines and proximity of a farmland tract to nonagricultural uses are two good indicators--but certainly not the only indicators--of the development potential of that tract. The act requires a county program to give consideration to development potential in assessing whether to recommend the purchase of an agricultural conservation easement with respect to that tract. The Department believes § 138e.15 of the final-form regulations strikes a reasonable balance: it requires a county program to consider all of the factors prescribed by the act, but allows a county program to give the greatest emphasis to those factors which the county board determines are most important in that particular county. In light of the foregoing, the Department declines to revise this numerical ranking system in response to PBA's comment.
Comment: Both IRRC and the Minority Chairperson noted the use of the term ''productive farmland'' in proposed § 138e.15(e)(4)(ii), and asked whether that term refers to the capability of the land or its actual use. Both commentators requested this term be clearly defined.
Response: The term ''productive farmland'' refers to the actual use to which land is put--and not its potential. The Department believes the term is sufficiently clear in the context within which it is used. The term is followed by the clarifying phrase ''--harvested cropland, pasture and grazing land--.'' ''Harvested cropland'' is defined in § 138e.3, and relates to the use to which land is being put. Although the term ''pasture and grazing land'' is not defined, the Department is satisfied the term is commonly accepted as referring to the present use of land, rather than its potential use. In light of the foregoing, the Department declined to further define this term.
Comment: The House Committee noted that § 14.1(d)(1)(iii) of the act requires a county program consider the extent to which best land management practices are used in its evaluation of a prospective agricultural conservation easement purchase. In light of this statutory language, both IRRC and the House Committee recommended the word ''best'' precede ''land management practices'' in § 138e.15(e)(4)(iii).
Response: The Department agreed the recommended revision is consistent with the act, and has implemented it in the final-form regulations.
Comment: Both IRRC and the House Committee suggested the term ''optimum acreage'' be defined or otherwise clarified. This term is used in § 138e.15(e)(4)(iv).
Response: The Department accepted this suggestion and has deleted the term ''optimum acreage'' from § 138e.15(e)(4)(iv) of the final-form regulations and clarified that a county program must consider the acreage of a tract in determining its farmland potential under the farmland ranking system.
Comment: IRRC and the House Committee suggested the semicolon in § 138e.15(e)(5)(ii) be removed.
Response: The referenced semicolon has been removed from the final-form regulations.
Comment: Proposed § 138e.15(e)(5)(iii) required a county program consider--in evaluating the proposed easement purchase--the proximity of the proposed easement purchase to other lands already subject to the easements. Although that subparagraph addressed the possibility that nearby easements might be owned by the State, county, joint State/county or nonprofit land conservation organization, it did not address the possibility an agricultural conservation easement might be held by a unit of local government. This is provided for in the definition of ''agricultural conservation easement'' in section 3 of the act. The House Committee recommended § 138e.15(e)(5)(iii) be revised to address the possibility a unit of local government might own an agricultural conservation easement.
Response: The recommended revision has been implemented in the final-form regulations.
Comment: IRRC recommended the example in proposed § 138e.15(e)(6) be reworked from a narrative format into a tabular format.
Response: The Department declined to implement this recommendation. Although the Department agreed the table proposed by IRRC was clear and easy to follow, it believed the current narrative example more clearly describes the process by which an SA score is to be calculated.
Comment: The Minority Chairperson suggested that proposed § 138e.17 (relating to planing and development map) be revised to require that the map be an officially adopted map, to preclude the possibility that a farmland tract would be rejected from consideration for agricultural conservation easement purchase on the basis of a temporary or pending map that had not yet been adopted as the official map.
Response: The Department accepted this suggestion and has revised § 138e.17(a) of the final-form regulations accordingly.
Comment: IRRC noted that proposed § 138e.61(d) (relating to application) would require a color-coded soils map of the farmland tract being offered for agricultural conservation easement purchase, while proposed § 138e.91(1)(vi) (relating to recommendation for purchase) would require an uncolored soils map. IRRC recommended the Department review these two sections to determine whether they should be modified so that one soils map could meet the requirements of both sections.
Response: The Department declined to revise the separate requirements of the sections referenced in the comment. The referenced soils maps are required in two separate contexts. The color-coded map is required in the context of county board review of an agricultural conservation easement purchase application. The uncolored map is required in the context of State Board review of an easement purchase recommendation. The Department noted the section heading of proposed § 138e.91, ''application for review,'' erroneously described the function of the State Board and might cause a reader to confuse that section with the ''application'' referenced in § 138e.61. For this reason, the Department has retitled and revised § 138e.91, and revised § 138e.92 (relating to review and decision), to more accurately describe the function of the State Board.
Comment: Both IRRC and the House Committee noted the erroneous insertion of a comma in proposed § 138e.62 (relating to evaluation of application) and suggested it be removed.
Response: The Department has implemented this suggestion in the final-form regulations.
Comment: IRRC recommended revising the second sentence of proposed § 138e.66(a)(3) (relating to offer of purchase by county board) to delete language that also appears in the first sentence and add a beginning such as ''An example would be the landowner...''. IRRC believed this revision would add clarity.
Response: The Department declined to implement this suggested revision. Although the Department agrees the language of the second sentence restates language appearing in the first sentence, this repetition is by design, and should preclude any confusion.
Comment: The House Committee concluded proposed § 138e.67(f)(1) and (2) (relating to requirements of the agricultural conservation easement deed) did not belong within the context of the other material in that section, and suggested the substance of those paragraphs be set forth elsewhere in the final-form regulations.
Response: The Department accepted this suggestion and has set forth the substance of the referenced paragraphs in a new § 138e.72 (relating to transactions affecting ownership of easement).
Comment: In the context of its comment with respect to proposed § 138e.67, the House Committee suggested language be added to the final-form regulations to require that money restored to the Agricultural Conservation Easement Purchase Fund as a result of condemnation of an agricultural conservation easement be redirected to easement purchases in the county in which the condemnation occurred.
Response: The Department does not believe the act provides adequate legal authority for the Department to earmark funds returned to the Agricultural Conservation Easement Purchase Fund as the result of the condemnation of an agricultural conservation easement for expenditure for easement purchases in the county in which the condemnation occurred. For this reason, the Department declined to implement the House Committee's suggestion.
Comment: IRRC recommended paragraph (8) under proposed § 138e.70(c) (relating to summary report) be deleted and that § 138e.70(c) be revised to characterize the items listed in paragraphs (1)--(7) as comprising the minimum information to be included in the appendix of the summary report.
Response: The Department accepted this recommendation, and has implemented it in the final-form regulations.
Comment: IRRC recommended § 138e.71 (relating to notification of owners of land adjoining proposed easement purchase) be revised to specify a deadline by which a county board must notify owners of land adjoining a proposed agricultural conservation easement purchase of the State Board meeting at which the easement purchase is to be considered. IRRC also suggested the Department consider the same 14-day advance notice requirement § 138e.226(9) (relating to procedure for review of request to subdivide restricted land).
Response: The Department declined to implement these suggestions in the final-form regulations. Although § 138e.91(5) (relating to recommendation for purchase) of the final-form regulations requires a county board certify it has provided adjoining landowners adequate notice of the State Board meeting, the Department believes a measure of flexibility should be afforded a county board as to the appropriate time frame for this notice.
Comment: IRRC noted that proposed § 138e.91(1)(ii) required a ''narrative summary report'' as part of the summary report. IRRC could not discern whether the summary report referenced in this section is the same report which is described in detail in § 138e.70. If it is, IRRC recommended a cross reference to § 138e.70 so the county board will know what information to provide.
Response: The Department has deleted the term ''report'' from ''narrative summary report'' in § 138e.91(l)(ii) to clarify the summary is not intended to be the same ''summary report'' described in § 138e.70.
Comment: IRRC suggested proposed § 138e.91(1)(iii) be revised to clarify that the USGS map referenced in that section be a ''currently applicable'' USGS map that ''clearly and legibly'' shows the items specified.
Response: The Department accepted this suggestion, and has implemented it in the final-form regulations.
Comment: The House Committee suggested the phrase ''the approval or disapproval of'' be deleted from § 138e.226(9) (relating to procedure for review of request to subdivide restricted land). IRRC added the recommendation that, in the event the Department adopts the House Committee's suggestion, it also include language addressing whether the notice described in that provision would be required if the State Board intended to table consideration of the agricultural conservation easement purchase recommendation.
Response: The Department accepted the House Committee's suggestion, and has revised the final-form regulations accordingly. The Department declined to implement IRRC's suggested revision.
The Department believes § 138e.226(9) clearly states the degree of State Board consideration of an easement purchase recommendation which would trigger the requirement of advance notice: consideration of the approval or disapproval of the recommendation. In the few instances the State Board has tabled its consideration of an easement purchase recommendation, that action has not been a planned action on the meeting agenda. Notice that the State Board plans to consider a particular easement purchase at a particular meeting always leaves open the possibility that consideration will be tabled at that meeting. As a practical matter, if there is some mistake, deficiency, question or objection with respect to a particular easement purchase recommendation, Department personnel routinely raise and resolve that mistake, deficiency, question or objection with the county program before the recommendation is placed on the agenda for the State Board's consideration.
Comment: IRRC suggested § 138e.226(9) be revised to contain a provision requiring notification of owners of lands adjoining farmland under an agricultural conservation easement in the event the State Board intends to consider approving a subdivision of that restricted farmland.
Response: The Department declined to implement this suggestion. The State Board's approval of the subdivision of restricted land is but one of several approvals that would be required in order for the restricted farmland to be subdivided. The Department is satisfied the concerns of adjoining landowners regarding subdivision are more properly addressed before the local authorities charged with reviewing and approving or disapproving subdivision plans. In addition, adjoining landowners have the opportunity to appear before the State Board at the time that body considers the initial easement purchase recommendation. The Department is not inclined to extend, by regulation, the requirements imposed upon it by the Commonwealth Court's decision in Lenzi v. Agricultural Land Preservation Board, 602 A.2d 396 (1992) any further than are set forth in that decision.
Comment: The House Committee forwarded several general comments it received from Committee members and other Legislators. Suggestions were made that the Agricultural Conservation Easement Purchase Program place greater emphasis on the preservation of farm buildings, that it not allow restricted farmland to lie idle and that it compel landowners to use the money they receive from the sale of an agricultural conservation easement for purposes related to agricultural production in this Commonwealth.
Response: Although the Department will consider these comments from the Legislature as it administers the Agricultural Conservation Easement Purchase Program, it declines to attempt to implement any of the suggested changes in the final-form regulations. Each of the suggestions represents a pronounced change from the way the Department has administered the Program to date. In addition, the Department may be without statutory authority to implement these changes. On balance, the Department believes it advisable to consider these comments outside of the context of this final-form regulations.
On its own initiative, the Department modified several provisions in the final-form regulations to add clarity without enlarging the purpose of the proposed amendments. These revisions are described as follows:
The definition of ''applicant'' in § 138e.3 was revised to reflect the possibility an applicant might wish to donate an agricultural conservation easement.
Section 138e.64(a) (relating to appraisal) was revised to clarify that a county board may ordinarily expect to be reimbursed for the costs of appraising an agricultural conservation easement that is ultimately purchased.
Section 138e.70(b)(2) has been revised to make appropriate reference to ''soils available for agricultural production''--as the term is defined in § 138e.3.
Section 138e.70(c)(4) and (5) has been revised to reflect the Department's current practice of not requiring a crop report or livestock report unless the report is required under the county program.
Statement of Need
These final-form regulations are needed for the Department to comply with the statutory requirement that it supplant the Interim Guidelines with regulations by December 31, 1997, to update its regulatory authority to reflect changes to the act and to further the efficient, uniform and Statewide administration of the act. The final-form regulations are consistent with Executive Order 1996-1 (relating to regulatory review and promulgation).
Fiscal Impact
Commonwealth The final-form regulations will impose no costs and will have no fiscal impact upon the Commonwealth.
Political Subdivisions The final-form regulations will impose no costs and will have no fiscal impact upon political subdivisions.
Private Sector The final-form regulations will impose no costs and will have no fiscal impact on the private sector.
General Public The regulations will impose no costs and will have no fiscal impact upon the general public.
Paperwork Requirements
The regulations are not expected to result in an appreciable increase in paperwork.
Contact Person
Further information is available by contacting the Department of Agriculture, Attention: Raymond C. Pickering, Director, Bureau of Farmland Protection, Pennsylvania Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 16, 1997, the Department submitted a copy of the notice of proposed rulemaking published at 27 Pa.B. 3751 to IRRC and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Commit-tees with copies of the comments received as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House and Senate Committees on November 13, 1997, and were approved by IRRC on November 20, 1997, in accordance with section 5(c) of the Regulatory Review Act.
Findings
The Department of Agriculture finds that:
(1) Public notice of intention to adopt the regulations encompassed by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) Public comment period was provided as required by law and that the comments received were considered.
(3) The modifications that were made to these regulations in response to comments received do not enlarge the purpose of the proposal published at 27 Pa.B. 3751.
(4) The adoption of the final-form regulations in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 138e, are amended by amending §§ 138e.1, 138e.2, 138e.11--138e.14, 138e.16, 138e.18--138e.20, 138e.41--138e.43, 138e.61, 138e.63, 138e.65, 138e.66, 138e.68, 138e.69, 138e.101--138e.103, 138e.201--1383.206, 138e.221--138e.225, 138e.241 and Appendix A; and by adding §§ 138e.21, 138e.44, 138e.71, 138e.104, 138e.207, 138e.227 and Appendix B to read as set forth that 27 Pa.B. 3751; and by amending §§ 138e.3, 138e.15, 138e.17, 138e.62, 138e.64, 138e.67, 138e.91, 138e.92 and 138e.226; and by adding §§ 138e.70 and 138e.72 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order, 27 Pa.B. 3751 and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify this order, 27 Pa.B. 3751 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
SAMUEL E. HAYES, JR.
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6385 (December 6, 1997).)
Fiscal Note: Fiscal Note 2-97 remains valid for the final adoption of the subject regulations.
Annex A TITLE 7. AGRICULTURE PART V-C. FARMLAND AND FOREST LAND CHAPTER 138e. AGRICULTURAL CONSERVATION EASEMENT PURCHASE PROGRAM GENERAL § 138e.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Agricultural Area Security Law (3 P. S. §§ 901--915).
Agreement or agreement of sale--A document executed by a landowner and the county board to purchase a specific agricultural conservation easement as part of the county board's recommendation for purchase, and that includes all of the materials referenced and incorporated into the agreement, in accordance with section 14.1(h)(8.2) of the act (3 P. S. § 914.1(h)(8.2)).
Agricultural conservation easement or easement--An interest in land, less than fee simple, which interest represents the right to prevent the development or improvement of the land for a purpose other than agricultural production. The easement may be granted by the owner of the fee simple to a third party or to the Commonwealth, to a county governing body or to a unit of local government. It shall be granted in perpetuity, as the equivalent of covenants running with the land. The exercise or failure to exercise any right granted by the easement will not be deemed to be management or control of activities at the site for purposes of enforcement of the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
Agricultural production--The production for commercial purposes of crops, livestock and livestock products, including the processing or retail marketing of the crops, livestock or livestock products if more than 50% of the processed or merchandised products are produced by the farm operator.
Agricultural security area--A unit of 250 or more acres of land used for the agricultural production of crops, livestock and livestock products under the ownership of one or more persons and designated as such by the procedures in the act or designated as such under the act of January 19, 1968 (1967 P. L. 992, No. 442) (32 P. S. §§ 5001--5012) prior to the February 12, 1989 effective date of the act of December 14, 1988 (P. L. 1202, No. 149), by the governing body of the county or governing body of the municipality in which the agricultural land is located on the basis of criteria and procedures which predate February 12, 1989: provided that an owner of land designated as such under the authority of the act of January 19, 1968 (1967 P. L. 1992, No. 442) may withdraw the land from an agricultural security area by providing written notice of withdrawal to the county governing body or governing body of the municipality in which the land is located within 180 days of February 12, 1989.
Agricultural value--The sum of the following:
(i) The farmland value determined by the applicant's appraisal.
(ii) One-half of the difference between the farmland value determined by the State or county board's appraiser and the farmland value determined by the applicant's appraiser if the farmland value determined by the State or county board's appraiser exceeds the farmland value determined by the applicant's appraiser.
Allocation--The State Board's designation of funds to eligible counties under section 14.1 of the act. An allocation is an accounting procedure only and does not involve certifying, reserving, encumbering, transferring or paying funds to eligible counties.
Annual easement purchase threshold--An amount annually determined by the State Board which equals at least $10 million to be allocated among eligible counties.
Applicant--A person offering to convey an easement on a farmland tract.
Appropriation--The irrevocable commitment of a specific amount of money by the county governing body exclusively for the purchase of easements.
Comparable sales--Market sales of similar land. In locating comparable sales, first priority will be given to farms within the same municipality as the subject land. The second priority will be farms located within other municipalities in the same county as the subject land. The lowest priority will be given to farms located outside the same county as the subject land.
Conservation plan--A plan describing land management practices which, when completely implemented, will improve and maintain the soil, water and related plant and animal resources of the land. A conservation plan shall include the following:
(i) An installation schedule.
(ii) A maintenance program.
(iii) A nutrient management component consisting of a statement of whether a nutrient management plan required under the Nutrient Management Act (3 P. S. §§ 1701--1718) and, if required, confirmation that a plan is in place or will be in place prior to conveyance of the agricultural conservation easement. If a nutrient management plan is not required under the Nutrient Management Act, the nutrient management component shall consist of a description of the amounts and types of nutrients generated on the farmland tract and a description of any current and planned measures or procedures for containment, use, disposal or other disposition of the nutrients described.
Contiguous acreage--All portions of one operational unit as described in the deed whether or not the portions redivided by streams, public roads, bridges, and whether or not described as multiple tax parcels, tracts, purparts, or other property identifiers. The term includes supportive lands such as unpaved field access roads, drainage areas, border strips, hedgerows, submerged lands, marshes, ponds and streams.
Contract of sale--A legally enforceable agreement in a form provided by the State Board obligating the landowner to sell, and the Commonwealth or a county, or both, to purchase an agricultural conservation easement on a specified farmland tract.
County board--The county agricultural land preservation board as appointed by the county governing body under the act.
County fiscal year--The period from January 1 through December 31 of a particular calendar year.
County governing body--The county board of commissioners or, under home rule charters, another designated council of representatives.
County matching funds--Money appropriated by the county governing body for the purchase of easements.
County program--A county agricultural land preservation program for the purchase of easements authorized and approved by the county governing body, and approved by the State Board under section 14.1(a)(3)(xi) and (xiv) of the act.
Crops, livestock and livestock products--The term includes:
(i) Field crops, including corn, wheat, oats, rye, barley, hay, potatoes and dry beans.
(ii) Fruits, including apples, peaches, grapes, cherries and berries.
(iii) Vegetables, including tomatoes, snap beans, cabbage, carrots, beets, onions and mushrooms.
(iv) Horticultural specialties, including nursery stock ornamental shrubs, ornamental trees and flowers.
(v) Livestock and livestock products, including cattle, sheep, hogs, goats, horses, poultry, furbearing animals, milk, eggs and furs.
(vi) Timber, wood and other wood products derived from trees.
(vii) Aquatic plants and animals and their by-products.
Crops unique to the area--The term includes crops which historically have been grown or have been grown within the last 5 years in the region, and which are used for agricultural production in the region. For example, orchard or vineyard crops that have historically been produced in a particular county might be considered crops unique to the area.
Curtilage--The area surrounding a residential structure used for a yard, driveway, onlot sewerage system or other nonagricultural purposes.
Department--The Department of Agriculture of the Commonwealth.
Easement value--The difference between the nonagricultural value and agricultural value of a farm. If solely the county or State appraisal is used, nonagricultural value and agricultural value are equal to market value and farmland value, respectively. If the landowner obtains an independent appraisal, nonagricultural value and agricultural value shall be calculated according to section 14.1(f) of the act.
Economic viability of farmland for agricultural production--The capability of a particular tract of restricted land, other than a tract of 2 acres or less upon which construction and use of the landowner's principal residence or housing for seasonal or full-time farm employes is permitted under section 14.1(c)(6)(iv) of the act, to meet the criteria in § 138e.16(a) (relating to minimum criteria for applications).
Eligible counties--Counties whose county programs have been approved by the State Board. For the purpose of annual allocations, an eligible county shall have its county program approved by the State Board by January 1 of the year in which the annual allocation is made. Counties of the first class are not eligible under any circumstances.
Encumber--The reservation by the Commonwealth or a county of previously-allocated funds to pay all or part of the costs of purchasing a specific easement under a specific agreement of sale.
Farm--Land in this Commonwealth which is being used for agricultural production as defined in the act.
Farmland tract or tract--Land constituting all or part of a farm with respect to which easement purchase is proposed. A farmland tract may consist of multiple tracts of land that are identifiable by separate tax parcel numbers, separate deeds or other methods of property identification.
Farmland value--The price as of the valuation date for property used for normal farming operations which a willing and informed seller who is not obligated to sell would accept for the property, and which a willing and informed buyer who is not obligated to buy would pay for the property.
Fund--The Agricultural Conservation Easement Purchase Fund established by section 7.2 of the act of June 15, 1982 (P. L. 549, No. 159) (3 P. S. § 1207.2).
Grant funds--Funds allocated to a county by the State Board under section 14.1(h)(2) and (5)(ii) of the act, the expenditure of which is not contingent upon the appropriation and expenditure of county matching funds.
Grantee--The person or entity to whom an easement is conveyed under the act.
Grazing or pasture land--Land, other than land enrolled in the USDA Conservation Reserve Program, used primarily for the growing of grasses and legumes which are consumed by livestock in the field and at least 90% of which is clear of trees, shrubs, vines or other woody growth not consumed by livestock.
Harm the economic viability of the farmland for agricultural production--To cause a particular tract of restricted land to fail to meet the criteria in § 138e.16(a) or to create, through subdivision, a tract of restricted land, other than a tract of 2 acres or less upon which construction and use of the landowner's principal residence or housing for seasonal or full-time farm employes is permitted under section 14.1(c)(6)(iv) of the act, that would fail to meet the criteria in § 138e.16(a).
Harvested cropland--Land, other than land enrolled in the USDA Conservation Reserve Program, used for the commercial production of field crops, fruit crops, vegetables and horticultural specialties, such as Christmas trees, flowers, nursery stock, ornamentals, greenhouse products and sod. The term does not include land devoted to production of timber and wood products.
Immediate family member--A brother, sister, son, daughter, stepson, stepdaughter, grandson, granddaughter, father or mother of the landowner.
LCC--Land Capability Class--A group of soils designated by either the county soil survey, as published by USDA-NRCS in cooperation with the Pennsylvania State University and the Department, or the Soil and Water Conservation Technical Guide maintained and updated by USDA-NRCS.
Land development--One of the following activities:
(i) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving a group of two or more residential buildings, whether proposed initially or cumulatively.
(ii) A subdivision of land.
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[Continued from previous Web Page] Land which has been devoted primarily to agricultural use--Acreage which is a part of restricted land and is harvested cropland, grazing or pasture land, land used for the production of timber and wood products, land containing nonresidential structures used for agricultural production, or other acreage immediately available for agricultural production, and which excludes any acreage upon which immediate agricultural production is impracticable due to residential structures and their curtilages, wetlands, soil quality, topography or other natural or manmade features, and which further excludes any tract of 2 acres or less designated as the site upon which the landowner's principal residence or housing for seasonal or full-time employes is permitted under section 14.1(c)(6)(iv) of the act.
Landowner--The person holding legal title to a particular farmland tract.
Market value--The price as of the valuation date for the highest and best use of the property which a willing and informed seller who is not obligated to sell would accept for the property, and which a willing and informed buyer who is not obligated to buy would pay for the property.
Nonagricultural value--The sum of the following:
(i) The market value determined by the State or county board's appraiser.
(ii) One-half of the difference between the market value determined by the applicant's appraiser and the market value determined by the State or county board's appraiser, if the market value determined by the applicant's appraiser exceeds the market value determined by the State or county board's appraiser.
Nonprofit land conservation organization--A nonprofit organization dedicated to land conservation purposes recognized by the Internal Revenue Service as a tax-exempt organization under the Internal Revenue Code (26 U.S.C.A. §§ 1--7872).
Normal farming operations--The customary and generally accepted activities, practices and procedures that farmers adopt, use or engage in year after year in the production and preparation for market of crops, livestock and livestock products and in the production and harvesting of agricultural, agronomic, horticultural, silvicultural, and aquacultural crops and commodities. The term includes the storage and utilization of agricultural and food processing wastes for animal feed and the disposal of manure, other agricultural waste and food processing waste on land where the materials will improve the condition of the soil or the growth of crops or will aid in the restoration of the land for the same purposes.
Nutrient management plan--A written site-specific plan which incorporates best management practices to manage the use of plant nutrients for crop production and water quality protection consistent with the Nutrient Management Act.
Pennsylvania Municipalities Planning Code--53 P. S. §§ 10101--11201.
Person--A corporation, partnership, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person.
Restricted land--Land which is subject to the terms of an agricultural conservation easement acquired under the act.
Secretary--The Secretary of the Department.
Soils available for agricultural production--Soils on land that is harvested cropland, pasture or grazing land, or land upon which no structure, easement, roadway, curtilage or natural or manmade feature would impede the use of that soil for agricultural production.
Soils report--A report which identifies and sets forth the amount of each land capability class found on a farm land tract.
State Board--The State Agricultural Land Preservation Board.
State matching funds--Funds allocated to a county by the State Board under section 14.1(h)(3), (4) or (5)(i) of the act, the expenditure of which is contingent upon the appropriation and expenditure of county matching funds.
State-certified general real estate appraiser--A person who holds a current general appraiser's certificate issued under the Real Estate Appraisers Certification Act (63 P. S. §§ 457.1--457.19).
Subdivision--The division or redivision of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines for the purpose, whether immediate or future, of lease, partition by the court for distribution to heirs or devisees, transfer of ownership or building or lot development.
Title report--A report prepared by a person authorized by the Insurance Department to engage in the sale of title insurance or an attorney setting forth the existence of any liens, restrictions or other encumbrances on a farmland tract. The term does not include the title search, but does include the title binder or the title commitment, or both.
USDA--The United States Department of Agriculture.
USDA-NRCS--The Natural Resources Conservation Service of the USDA. This entity was formerly known as the Soil Conservation Service.
REQUIREMENTS FOR CERTIFICATION OF COUNTY PROGRAM § 138e.15. Farmland ranking system.
(a) System required. The county board shall adopt a farmland ranking system meeting the requirements of this section for use in prioritizing applications for the appraisal of properties meeting the minimum criteria in § 138e.16 (relating to minimum criteria for applications). This farmland ranking system may include additional or substitute criteria as approved by the State Board.
(b) Review and approval of system. The county board shall set forth its farmland ranking system in its county program and submit the county program to the State Board for review and approval in accordance with the act.
(c) Land Evaluation and Site Assessment (LESA) system. The farmland ranking system shall evaluate tracts being considered for appraisal on a 100-point scale, using the two-part LESA system described in this section. The weighted Land Evaluation (LE) score shall be calculated in accordance with subsection (d). The weighted Site Assessment (SA) score shall be calculated in accordance with subsection (e). The total of the weighted LE and weighted SA scores equals the farmland ranking score. The county board shall establish in the county program the weighted values to be given the LE score and the SA score, as well as the weighted values to be given the three general categories--development potential (DP), farmland potential (FP) and clustering potential (CP)--of factors to be considered in calculating the SA score. The weighted values set forth in the county program shall total 100%, and shall be within the following ranges:
Minimum Maximum Weighted Weighted Value Value Land Evaluation (LE) 40% 70% Site Assessment (SA)
Developmental Potential10% 40% Site Assessment
Farmland Potential10% 40% Site Assessment
Clustering Potential10% 40% A flow chart summarizing the farmland ranking system is set forth at Appendix A.
(d) Land Evaluation (LE).
(1) Source of soils data. A farmland ranking system shall designate either or both of the following as the source of the soils data used in LE:
(i) The county soil survey, as published by the USDA-NRCS in cooperation with the Pennsylvania State University and the Department.
(ii) The Soil and Water Conservation Technical Guide published and updated by the USDA-NRCS.
(2) Relative value of soil. The county program shall set forth a relative value for each soil mapping unit in the county. The relative value shall be on a 100-point-scale--with 100 points assigned to the best soils for agricultural production and all other soils assigned relative values of less than 100 points.
(3) Calculation of average relative value. The average relative value of the soils on a tract being considered for appraisal shall be calculated by multiplying the relative value of each soil mapping unit within the tract by the total acreage of the soil mapping unit within the tract, adding these products and then dividing that sum by the total acreage of the tract.
Example: A 60-acre tract has 10 acres within soil mapping units with relative values of 95, 20 acres within soil mapping units with relative values of 90 and 30 acres within soil mapping units with relative values of 80. The sum of the relative values is calculated as follows:
10 acres x 95 = 950 acres
20 acres x 90 = 1,800 acres
30 acres x 80 = 2,400 acres
Total 5,150 acresThe 5,150 acre sum is then divided by the total acreage of the tract (60 acres) to determine the average relative value:
5,150 acres divided by 60 acres = 85.83
In this example, the average relative value of the soils on the tract is 85.83.
(4) Calculation of weighted LE score. The weighted LE score of a tract being considered for appraisal shall be the product of the average relative value of the soils on the tract multiplied by the weighted value assigned to the LE score under the county program.
Example. The average relative value of the soils on the tract described in the example in paragraph (3) is 85.83. The county program assigns a weighted value to the LE score of 60% (.60) of the farmland ranking score. The weighted LE score for this tract would be 51.5, calculated as follows:
85.83 x .60 = 51.5
(e) Site Assessment (SA).
(1) General categories of factors. The county programs shall require the evaluation of three general categories of factors in determining the SA score, and shall specify the individual factors to be considered under each of these general categories. These categories are as follows:
(i) Development Potential (DP) factors. Factors that identify the extent to which development pressures are likely to cause conversion of agricultural land to nonagricultural uses.
(ii) Farmland Potential (FP) factors. Factors that measure the potential agricultural productivity and farmland stewardship practiced on a tract.
(iii) Clustering Potential (CP) factors. Factors that emphasize the importance of preserving blocks of farmland to support normal farming operations and help to shield the agricultural community from conflicts with incompatible land uses.
(2) Scoring scale. The county program shall require that each of the three general categories of factors described in paragraph (1) ranks tracts on a 100-point scale. The total combined maximum score under these categories shall be 300 points.
(3) Development Potential (DP) factors.
(i) Number. The county program shall specify no less than 3 and no more than 10 factors to be considered in scoring the DP of a tract being evaluated for appraisal. Three of these factors shall be the factors described in subparagraphs (ii)--(iv), unless substitute factors are approved by the State Board in accordance with subparagraph (v).
(ii) Required factor: availability of sanitary sewer and public water. The county program shall require that the availability of sanitary sewer and public water to a tract be considered in scoring its DP. A farmland tract is more likely to be surrounded by incompatible land uses or be converted to nonagricultural use if it is in an area which is suitable for onlot sewage disposal or if it is in an area which has access to public sewer and water service or is expected to have access to the service within 20 years. The tract shall receive a relatively higher score than a tract that does not have sanitary sewer and public water.
(iii) Required factor: road frontage. The county program shall require that the public road frontage of a tract be considered in scoring DP. Frontage on public roads increases the suitability of a tract for subdivision or development, and is a measure of the capability of a tract to be developed or improved for nonagricultural use. A tract with extensive road frontage shall receive a relatively higher score than a tract with less public road frontage.
(iv) Required factor: extent of nonagricultural use in area. The county program shall require that the extent of nonagricultural use adjoining or in the area of a tract be considered in scoring DP. Consideration shall be given to whether adjacent land uses affect normal farming operations and whether surrounding, but not necessarily adjoining, land uses affect the ability of the landowner to conduct normal farming operations on the tract, or whether the impacts are likely to occur within the next 20 years. Urban uses are generally considered incompatible with agricultural uses. A tract with extensive nonagricultural uses in the area shall receive a relatively higher score than a tract that is more distant from the nonagricultural uses.
Example: A county program may require that the percentage of adjacent land in nonagricultural use or the distance to urban centers or growth areas, or both, be considered in scoring DP.
(v) Substitute or additional factors. Subparagraphs (ii)--(iv) notwithstanding, a county program may set forth substitute or additional factors to be considered in scoring development potential, if the factors are reviewed and approved by the State Board.
(vi) Weight of individual factors. The county board shall establish and set forth in its county program the number of points that may be awarded under any individual factor in scoring DP. The number of points may vary from factor to factor.
(4) Farmland Potential (FP) factors.
(i) Number. The county program shall specify no less than 4 and no more than 10 factors to be considered in scoring the FP of a tract being evaluated for appraisal. Four of these factors shall be the factors described in subparagraphs (ii)--(v), unless substitute factors are approved by the State Board in accordance with subparagraph (vi).
(ii) Required factor: percentage of certain types of land. The county program shall require that the percentage of harvested cropland, pasture and grazing land on a tract be considered in scoring FP. Large amounts of productive farmland--harvested cropland, pasture and grazing land--make a farm more viable. If a large percentage of a tract is not used as productive farmland, the tract should receive a lower farmland potential score.
(iii) Required factor: stewardship of land. The county program shall require that the stewardship of the land and the use of conservation practices and best land management practices be considered in scoring the FP of a tract. A score will not be awarded under this factor unless sound soil and water conservation practices are in place with respect to at least 50% of the tract. The implementation of soil erosion control, sedimentation control, nutrient management and other practices demonstrating good stewardship of the tract shall be considered under this factor.
(iv) Required factor: size of tract on application. The county program shall require that the size of a tract described in the easement purchase application be considered in scoring the FP of the tract. In general, a farmland tract with higher acreage should be assigned a relatively higher value than a tract having less acreage.
(v) Required factor: historic, scenic and environmental qualities. The county program shall require that the designation or listing of a tract by local/State/Federal authorities as an historically or culturally-significant location, or a scenic area or open space be considered in scoring the FP of a tract. Tracts adjoining designated protected areas such as flood plains, wildlife habitat, parks, forests and educational sites shall also be considered under this factor. The county program shall specify whether a tract shall receive a relatively higher or relatively lower score based upon its historic, scenic or environmental qualities.
(vi) Substitute or additional factors. Subparagraphs (ii)--(v) notwithstanding, a county program may set forth substitute or additional factors to be considered in scoring FP, if the factors are reviewed and approved by the State Board. The additional factors may include a factor that awards points based upon the landowner's offer to sell the easement at a reduced price.
(vii) Weight of individual factors. The county board shall establish and set forth in its county program the number of points that may be awarded under any individual factor in scoring FP. The number of points may vary from factor to factor.
(5) Clustering Potential (CP) factors.
(i) Number. The county program shall specify no less than three and no more than ten factors to be considered in scoring the CP of a tract being evaluated for appraisal. Three of these factors shall be the factors described in subparagraphs (ii)--(iv), unless substitute factors are approved by the State Board in accordance with subparagraph (v).
(ii) Required factor: consistency with planning map. The county program shall require that the location of a tract with respect to those areas of the county identified as important agricultural areas of the county in the planning map described in § 138e.17 (relating to planning and development map) be considered in scoring the CP of the tract. A tract that is within an identified important agricultural area shall receive a higher score than tracts that are distant from these areas. Tracts located within the designated areas are more viable for agricultural use and are more likely to be compatible with county and local comprehensive plans.
(iii) Required factor: proximity to restricted land. The county program shall require that the proximity of a tract to land already under agricultural conservation easement--whether held by a county, the State, jointly by the county and State, a unit of local government, or by a nonprofit land conservation organization--be considered in scoring the CP of the tract. A tract that is close to the restricted land shall receive a higher score than tracts that are more distant from the restricted land. Clustering easement purchases will develop a mass of farmland which supports normal farming operations and reduces conflicts with incompatible land uses.
(iv) Required factor: percentage of adjoining land in an agricultural security area. The county program shall require that the percentage of a tract's boundary that adjoins land in an agricultural security area be considered in scoring the CP of the tract. The higher the percentage, the higher the score shall be. Areas where agriculture has been given protection by the municipality, at the request of the landowners, provides an environment conducive to farming.
(v) Substitute or additional factors. Subparagraphs (ii)--(iv) notwithstanding, a county program may set forth substitute or additional factors to be considered in scoring clustering potential, if the factors are reviewed and approved by the State Board. The additional factors may include a factor that awards points for the establishment of new clustering areas.
(vi) Weight of individual factors. The county board shall establish and set forth in its county program the number of points that may be awarded under any individual factor in scoring CP. The number of points may vary from factor to factor.
(6) Calculation of weighted Site Assessment (SA) score. The SA score of a tract being considered for appraisal shall be calculated as follows: The product of the DP score multiplied by the weighted value for that category is the weighted DP score. The product of the FP score multiplied by the weighted value for that category is the weighted FP score. The product of the CP score multiplied by the weighted value for that category is the weighted CP score. The sum of these three weighted scores is the weighted SA score.
Example: A county program assigns weighted values of 10% to DP, 20% to FP and 30% to CP. The DP, FP and CP scores for a particular tract are 92, 85 and 80, respectively. The weighted DP score equals the DP score (92) multiplied by its weighted value (10%): 9.2. The weighted FP score equals the FP score (85) multiplied by its weighted value (20%): 17. The weighted CP score equals the CP score (80) multiplied by its weighted value (30%): 24. The weighted SA score is the sum of these three weighted scores (9.2 + 17 + 24): 50.2.
(f) Calculation of farmland ranking score. The sum of the weighted LE score and the weighted SA score equals the farmland ranking score.
(g) Use of farmland ranking score. The farmland ranking score shall determine the order in which tracts are selected by the county board for appraisal. Selection for appraisal shall be made in descending order of farmland ranking score.
§ 138e.17. Planning and development map.
(a) The county board shall, in consultation with the county planning commission, prepare and adopt a map identifying the important agricultural areas of the county. The scale of the map shall be such that it can be used to locate specific land proposed for easement purchase.
(b) The county board shall encourage the formation of agricultural security areas in the important agricultural areas identified in the map described in subsection (a).
(c) The planning and development map shall identify areas in the county devoted primarily to agricultural use where development is occurring or is likely to occur in the next 20 years. The identification of these areas shall be made in consultation with the county planning commission, and any other body the county board deems appropriate.
PROCEDURE FOR PURCHASING AN EASEMENT § 138e.62. Evaluation of application.
(a) The county board shall review the application to determine if it is complete and meets the minimum criteria in §§ 138e.11--138e.21 (relating to requirements for certification of county program).
(b) If the application is complete and the minimum criteria are met, an agent or member of the county board shall view the farmland tract and discuss the county program with the applicant.
(c) The county board shall evaluate timely applications which meet the minimum criteria and rank them according to the county farmland ranking system.
§ 138e.64. Appraisal.
(a) An offer to purchase an easement shall be based upon one or more appraisal reports which estimate the market value and the farmland value of the farmland tract, as those terms are defined in § 138e.3 (relating to definitions). The initial appraisal shall be at the county board's expense. This expense may be reimbursed as a cost incident to easement purchase in accordance with section 14.1(h)(6) of the act (3 P. S. § 914.1(h)(6)) and § 138e.68 (relating to title insurance).
(b) An appraisal of market value and farmland value shall be based on an analysis of comparable sales, and shall be conducted in accordance with standards in the most recent edition of the Uniform Standards of Professional Appraisal Practice, published by the Appraisal Standards Board of the Appraisal Foundation. If an appraiser cannot practicably conduct an appraisal based on an analysis of comparable sales, the appraiser may conduct an appraisal using another methodology only if that methodology is an acceptable methodology under the Uniform Standards of Professional Appraisal Practice and the appraisal report clearly describes the information considered, the appraisal procedures followed and the reasoning that supports the analyses, opinions and conclusions.
(c) The value of a building or other improvement on the farmland tract will not be considered in determining the easement value.
(d) The appraiser shall be a State-certified general real estate appraiser who is qualified to appraise a property for easement purchase. An appraiser shall be selected by a county board on the basis of experience, expertise and professional qualifications.
(e) The appraiser shall supply a minimum of three copies of a narrative report which contains the following information and is in the following format:
(1) Introduction.
(i) A letter of transmittal.
(ii) The appraiser's certificate of value as to market value, farmland value and easement value.
(iii) A table of contents.
(iv) A summary of salient facts and conclusions.
(v) The purpose of the appraisal.
(vi) The definitions, including definitions of market value, farmland value and easement value.
(2) Description of property.
(i) A brief area of neighborhood description.
(ii) A description of appraised property.
(A) A legal description.
(B) Property data and zoning.
(C) A brief description of improvements.
(D) Color photos of subject property's fields and improvements.
(E) Tax map or official map used for tax assessment purposes showing the subject property and its relationship to neighboring properties.
(F) A legible sketch or aerial photograph of subject property showing boundaries, roads, driveways, building locations, rights of way and land use.
(G) A location map showing the location of the subject farmland tract in a county or municipality.
(H) Soils map showing property boundaries.
(3) Analyses and conclusions.
(i) An analysis of highest and best use.
(ii) The valuation methodology market value.
(A) Comparable sales data.
(B) An adjustment grid.
(C) A locational map of comparable sales showing the location of the subject farmland tract with respect to the comparables. A single locational map shall be submitted with respect to each county from which comparable sales are drawn.
(iii) The market value estimate.
(iv) The valuation methodology: farmland value.
(A) Comparable sales data.
(B) An adjustment grid.
(C) A locational map of comparable sales showing the location of the subject farmland tract with respect to the comparables. A single locational map shall be submitted with respect to each county from which comparable sales are drawn.
(v) A farmland value estimate.
(vi) The easement value.
(vii) An appendix containing a brief statement of the appraiser's professional qualifications and a copy of the appraiser's current certification issued in accordance with the Real Estate Appraisers Certification Act (63 P. S. §§ 457.1--457.19).
(f) The appraiser shall supply information concerning comparable sales as follows:
(1) At least three comparable sales shall be used for estimating market value and at least three comparable sales shall be used for estimating farmland value in an appraisal. If the appraiser cannot obtain sufficient comparable sales data within the same county as the subject farmland tract, the appraiser may use comparable sales from other counties, with the approval of the county board. The use of comparable sales which require adjustment of 50% or more is permitted only with the approval of the county board.
(2) Pertinent data for each comparable sale used in the preparation of the appraisal shall be stated in the appraisal report, including the date of sale, the purchase price, zoning, road frontage in feet (for determining market value) and soil mapping units (for determining farmland value). The appraisal shall include an analysis comparing the pertinent data for each comparable sale to the subject farmland tract. This analysis shall be in the form of a narrative statement of the information considered and the reasoning that supports the analyses, opinions and conclusions, and an adjustment grid assigning, when practicable and within the Uniform Standards of Professional Appraisal Practice referenced in subsection (b), approximate dollar values to adjustment shown on the adjustment grid.
(3) The location of each market value comparable sale used in the appraisal report shall be shown accurately on a comparable sales map depicting the entire county in which the comparable sale is located, and shall be sufficiently identified and described so it may be located easily. If the comparable sales map depicts the county in which the property that is the subject of the appraisal is located, that property shall also be sufficiently identified and described so it may be located easily.
(4) The location of each farmland value comparable sale used in the appraisal report shall be shown accurately on a comparable sales map depicting the entire county in which the comparable sale is located, and shall be sufficiently identified and described so it may be located easily. If the comparable sales map depicts the county in which the property that is the subject of the appraisal is located, that property shall also be sufficiently identified and described so it may be located easily. If a farmland value comparable sales map and a market value comparable sales map would depict the same county, they may be combined in a single map.
(5) For comparable sales used to estimate the farmland value, the appraiser may use sales of land that are confined to agricultural use because of agricultural conservation easements or other legal restrictions or physical impairments that make the land valuable only for agricultural use. Comparable sales shall be in primarily agricultural use. Data may also be gathered from farm real estate markets when farms have no apparent developmental value.
(6) The appraiser shall set forth the reasons the farmland comparable sales are confined primarily to agricultural use. Examples of these reasons include:
(i) The farmland tract has public or private land use restrictions.
(ii) The farmland tract is within a flood plain or a wetland (in whole or in part).
(iii) The farmland tract is landlocked, subject to additional easements, subject to restrictive zoning or has other physical attributes which limit its developmental capability.
(7) The appraiser shall provide at least one original and two copies of each report to the county board. The original of each report and all copies shall be bound with rigid covers.
(8) The appraisal shall include the entire acreage offered for easement sale. If, following completion of the appraisal, acreage is added to or deleted from the proposed easement sale for any reason, the appraisal shall be revised accordingly or the appraiser shall agree in writing to the use of a per acre value to account for the change in easement value resulting from such a change in acreage.
(9) If acreage is voluntarily withheld from the easement sale by the landowner through subdivision accomplished in accordance with the Pennsylvania Municipalities Planning Code, the appraiser shall, in making the estimate of agricultural conservation easement value, take into account any increase in the value of the subdivided acreage because of the placement of the easement on the remaining farmland.
§ 138e.67. Requirements of the agricultural conservation easement deed.
(a) The owners of the subject farmland tract shall execute a deed conveying the easement. This deed shall include the provisions of § 138e.241 (relating to deed clauses).
(b) The deed shall be in recordable form and contain:
(1) A legal description setting forth the metes and bounds of the farmland tract subject to the easement.
(2) At least one course and distance referencing affixed marker or monument of a type commonly placed in the field by a surveyor. Fixed markers may include iron pins, pk nails, spikes, concrete monuments or stones.
(c) The legal description may not contain a closure error greater than 1 foot per 200 linear feet in the survey.
(d) The farmland tract on which an easement is to be purchased shall be surveyed unless the legal description contained in the deed recorded in the land records of the county in which the farmland tract is located satisfies the requirements of subsections (b) and (c). A survey required by this paragraph shall comply with the boundary survey measurement standards for a Class A-2 survey as published by the Pennsylvania Society of Land Surveyors.
(e) For purchases made entirely with State funds, the Commonwealth shall be the sole grantee.
(f) For purchases made using a combination of State and county funds, the grantees shall be the Commonwealth and the county providing the funds under joint ownership as defined in the act.
(g) A copy of the proposed deed shall be submitted to the State Board for approval prior to execution and delivery.
§ 138e.70. Summary report.
(a) General. A recommendation by the county board for the purchase of an easement shall be accompanied by a summary report consisting of a narrative report and appendix as described in subsections (b) and (c).
(b) Narrative report. The narrative report shall consist of the following:
(1) A description of the farm, including the name of all landowners, location in relation to the nearest town, number of acres proposed for purchase and type of agricultural production on the farm.
(2) A description of the quality of the farmland tract, including the soil capability classes of the soils available for agricultural production.
(3) The farmland ranking score, including a statement of the relative ranking of the farmland tract among other tracts considered by the county in the same round of applications.
(4) A description of the likelihood of conversion to other uses if the easement is not purchased.
(5) A description of the nature and scope of developmental pressure in the municipality or area.
(6) A description of the nature and scope of conservation practices and best land management practices, including soil erosion and sedimentation control and nutrient management.
(7) A discussion of the purchase price summarizing the appraisals, including the agricultural and nonagricultural value, negotiations for purchase and the percentage of the appraised easement value accepted by the landowner.
(8) A statement of costs as described in § 138e.69 (relating to statement of costs).
(9) A certification by the county board that the information presented to the State Board is true and correct.
(c) Appendix. The appendix of the summary report shall, at a minimum, consist of the following:
(1) The application form.
(2) Locational maps, including tax, topographic and soils maps.
(3) A soils report.
(4) Any crop report required by the county program.
(5) Any livestock report required by the county program.
(6) An evaluation of the farmland ranking score, showing how the farm scored in comparison to other farms.
(7) A quitclaim deed, or a subordination, release or letter approving the purchase from a mortgagee, lienholder or owner of rights in surface mineable coal.
§ 138e.72. Transactions affecting ownership of easement.
(a) General prohibition. Neither the Commonwealth nor the county may sell, convey, extinguish, lease, encumber or restrict in whole or in part its interest in an agricultural conservation easement for 25 years from the date of the purchase of the easement. This prohibition will not be construed to prevent a public entity, authority or political subdivision from exercising the power of eminent domain and condemning restricted land in accordance with section 14.1(c)(5) of the act (3 P. S. § 914.1(c)(5)).
(b) Disposition of proceeds. Upon the sale, conveyance, extinguishment, lease, encumbrance or other disposition of the easement, the Commonwealth and the county shall receive a pro rata share of the proceeds based upon their respective contributions to the purchase price.
STATE BOARD REVIEW OF A PURCHASE RECOMMENDATION § 138e.91. Recommendation for purchase.
A county board shall make its recommendation for purchase of an easement by submitting the following documents to the Director, Bureau of Farmland Protection, Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408:
(1) Twenty-two copies of the summary report prepared in accordance with § 138e.70 (relating to summary report), including the following items:
(i) A cover letter from the county (optional).
(ii) A narrative summary.
(iii) A current United States Geological Survey (USGS) topographical map that clearly and legibly shows the subject property location and boundaries, location of neighboring easements and exclusions withheld from the subject property.
(iv) The Soil Report Form ''C'' (a form provided by the Department), both pages. See Appendix B (relating to Form C Soils Report).
(v) The list of soil mapping unit names, symbols and land capability classes on the subject property.
(vi) A legible, uncolored soil map of the subject property.
(vii) A tax map showing the subject property location and boundaries, exclusions withheld from the subject property, utility rights-of-way and access road rights-of-way.
(viii) A summary table showing the individual farmland ranking scores by category for applications selected for county appraisal, including an indication of the easement purchase status of higher-ranking applicants.
(ix) A copy of Exhibit B from the agreement of sale, modified to include interest, total acres and per acre easement cost.
(x) The 22 copies submitted shall be individually collated and three-hole punched, but not stapled.
(2) The appraisal reports.
(3) The signed agreement of sale, including the proposed legal description, a statement of cost, the proposed deed of agricultural conservation easement, a contract or integrity clause and a nondiscrimination clause.
(4) The title insurance report or commitment.
(5) A letter certifying that the adjoining landowners were provided with notice and opportunity to be heard in a manner consistent with administrative agency law with respect to the proposed easement purchase, including one copy of the notification letter required under § 138e.71 (relating to notification of owners of land adjoining proposed easement purchase) and a list of the adjoining landowners.
(6) A completed and signed IRS Form W-9, Request for Taxpayer Identification Number and Certification for individual grantors.
(7) A letter from the grantors stating the percent of ownership of each grantor for the purpose of issuing IRS Form 1099.
(8) A copy of the approved soil conservation plan that is required to be in place with respect to the land under § 138e.241(2) (relating to deed clauses).
(9) A copy of the nutrient management plan that has been developed, certified, reviewed and approved in accordance with the Nutrient Management Act (3 P. S. §§ 1701--1718), if the nutrient management plan is required under the Nutrient Management Act for any portion of the property that is the subject of the recommendation for purchase.
§ 138e.92. Review and decision.
(a) The State Board will acknowledge receipt of the recommendation for purchase of an easement. The State Board will notify the county board if the recommendation for purchase is incomplete or incorrect and request that additional necessary clarification, information or documentation be supplied.
(b) Within 60 days of receipt of a complete recommendation for purchase, the State Board may approve, disapprove or table the purchase. The State Board may delay its action on a recommendation for purchase beyond this 60-day deadline if any of the conditions excusing the delay, as set forth in section 14.1(e)(2) of the act (3 P. S. § 914.1(e)(2)), occur. If State Board action is delayed as a result of any of these conditions, the 60-day period shall be extended until applicable issues in section 14.1(e)(2) of the act are resolved to the satisfaction of the State Board, whereupon the State Board will act on the recommendation of the county board at its next scheduled meeting.
(1) If the recommendation for purchase is approved, the State Board will execute the agreement of sale.
(2) If the recommendation for purchase is disapproved or tabled, the State Board will notify the county board in writing of the reasons for disapproval or tabling. The State Board will mail this written notification within 10 days of the disapproval or tabling. If the recommendation for purchase has been disapproved, the county board may resubmit the recommendation if the purchase recommendation has been revised to address the State Board's reasons for disapproval. The resubmittal shall be treated as a new recommendation for purchase.
(3) The county board may withdraw its recommendation for purchase from the State Board prior to action by the State Board. The county board may resubmit the recommendation for consideration. The resubmittal will be treated as a new recommendation for purchase.
(4) Failure of the State Board to act on a recommendation for purchase within 60 days of its receipt constitutes approval by the State Board.
(c) Following the end of each 7-year period within which recertification of a county program is required under section 14.1(b)(4) of the act, the State Board will not approve a county board's recommendation for purchase until the county program has been approved for recertification in accordance with that section and the procedure described in § 138e.44 (relating to periodic recertification of county programs). The State Board may postpone the deadline for recertification of any county's program by up to 12 months and during the period of postponement, may approve a county board's recommendation for purchase.
(d) A decision of the State Board to disapprove a purchase shall be an adjudication subject to 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law). The owner of the farmland tract proposed for easement purchase or the county board may appeal a decision of the State Board to disapprove the purchase of an easement. An appeal shall be made to the Secretary and shall be filed in writing within 30 days of the State Board's action. An appeal from the decision of the State Board shall be governed by 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
RESPONSIBILITY OF OWNER § 138e.226. Procedure for review of request to subdivide restricted land.
A landowner may obtain review of a request for approval to subdivide a tract of restricted land in accordance with the following procedure:
(1) The landowner shall submit an application to the county board, in a form and manner prescribed by the county board, requesting review and approval of the subdivision of a tract of restricted land.
(2) The county board shall note the date upon which the application is received.
(3) Upon receipt of the application, the county board shall forward written notice of the application to the county zoning office (if such an office exists), county planning office and county farmland preservation office. For purposes of this subsection, the foregoing offices shall be referred to as the ''reviewing agencies.''
(4) The county board shall note the date upon which each reviewing agency receives the written notice described in paragraph (3).
(5) Each reviewing agency shall have 60 days from receipt of the written notice described in paragraph (3) within which to review, comment and make recommendations on the proposed application to the county board. The county board may not consider comments and recommendations received beyond this deadline unless the landowner agrees in writing.
(6) The county board shall have 120 days from receipt of the application for approval to subdivide within which to review the application, review comments and recommendations submitted by the reviewing agencies and approve or reject the application. This 120-day deadline may be extended by the mutual agreement of the landowner and the reviewing agencies. If the county board fails to approve or reject an application within the 120-day deadline or an extension thereof, the application shall be deemed approved.
(7) If the application is rejected by the county board, the county board shall return the application and a written statement of the reasons for the rejection to the landowner. Within 30 days after receipt of the statement of rejection, the landowner may appeal the rejection in accordance with 2 Pa.C.S. Chapter 5 Subchapter B (relating to practice and procedure of local agencies) and Chapter 7 Subchapter B (relating to judicial review of local agency action.)
(8) If the application is approved by the county board, the county board shall promptly forward a copy of the application and the comments and recommendations of the reviewing agencies to the State Board for review and approval or disapproval.
(9) The State Board will provide the county board and the landowner with written notice of the date, time and location of the meeting at which the State Board shall review and consider the application. This notice will be forwarded by regular mail at least 14 days in advance of the State Board meeting.
(10) In its review of an application requesting approval of the subdivision of a tract of restricted land, the State Board will consider only whether the application complies with the conditions under which subdivisions are permitted by the county program.
(11) The State Board will provide both the county board and the landowner with written notice of its decision regarding the application for approval of the subdivision of a tract of restricted land. If the application is disapproved, the notice shall contain a statement of the reasons the application does not comply with the conditions under which subdivisions are permitted by the county program.
[Pa.B. Doc. No. 97-2077. Filed for public inspection December 26, 1997, 9:00 a.m.]
