Contents of Main Description

Introduction
ASA Protection from Condemnation
   Review by the Agricultural Lands Condemnation Approval Board
   Agricultural Conservation Easements
   Steps to Create an Agricultural Security Area Within a Single Local Government
      Proposals For Creation
      Participation
      Submitting The Proposal
      Fees
      Notice
      Agricultural Security Area Advisory Committee
      Modification Of The Proposal
      Evaluation Criteria
      Report By Planning Commissions and The Agricultural Security Area Advisory Committee
      Decision On Proposed Area
Creation of Agricultural Security Areas Located In More Than One Local Governmental Unit
      Automatic Inclusion Of Property In An Agricultural Security Area
Additions to Agricultural Security Areas During The Seven-Year Period
   Proposals For Addition
   Addition of Land beyond ASA's municipal boundaries
   Review Of Added Land
7-Year Review Of Area
Appeals

Introduction

The Agricultural Area Security Law (Act of June 30. 1981, P.L. 128, No. 43)(3 P.S. §§ 901-915), last amended in 2006, allows for the creation of agricultural security areas.  An agricultural security area (ASA) designates a unit of 250 or more acres of land under the ownership of one or more persons in which agriculture is the primary activity.  Cropland, pasture and woodland can all be included in an ASA.  The continuity, development and viability of agriculture within an ASA is promoted through the following means:

• Local governments cannot enact local laws or ordinances within the ASA that would unreasonably restrict farm structures or farm practices, unless they bear a direct relationship to public health or safety.
• Local governments must exclude agricultural activities or operations conducted using normal farming operations within an ASA from laws or ordinances defining or prohibiting a public nuisance, unless they bear a direct relationship to public health and safety.
•  State agencies will encourage the maintenance of viable farming in ASAs.  Their administrative regulations and procedures will be modified to accomplish this, as long as they are consistent with the promotion of public health and safety and with the provisions of any Federal rules and policies.
• Farmers receiving loans through the Small Business First Program and the Machinery and Equipment Loan Fund may receive a 1% reduction in their interest rate if their property is located within an ASA.

Participation in an ASA is purely voluntary.  There are no penalty provisions for an individual who changes land use while in an ASA.  An ASA is not zoning.  There are no restrictions placed on land use as a result of being in an ASA; a landowner retains the right to subdivide, sell, or change the use of his/her land regardless of his/her participation in an ASA.   However, landowners are not exempt from laws such as zoning ordinances, deed restrictions, or current state environmental laws.  Farms in an ASA are not required to be in current operation.  As long as the farms consist of viable land, are at least 10 acres in size (or meet the $2000 anticipated production value criterion), and have not been diverted to residential or nonagricultural commercial use, the farms do not need to be currently operating to remain in an ASA.

Landowners are not required to survey their parcels to join an ASA, except for when an individual puts a portion and not his/her entire acreage into an ASA. 

ASA Protection from Condemnation

Land in an ASA receives additional protections from condemnation.  No state agency shall condemn, for any purpose, land within an ASA that is being used for productive agricultural purposes (not including the growing of timber), unless prior approval has been obtained from the Agricultural Lands Condemnation Approval Board. 

No political subdivision, authority, public utility or other body having or exercising powers of eminent domain shall condemn any land within any ASA for any purpose, unless prior approval has been obtained from the Agricultural Lands Condemnation Approval Board and from each of the following bodies: the governing bodies of the local government units encompassing the ASA, the county governing body and the Agricultural Security Area Advisory Committee.

• This does not apply to an underground public utility facility that does not permanently impact the tilling of soil.
• This does not apply to any facility of an electric cooperative corporation or for any public utility facility for which the Pennsylvania Public Utility Commission or the Federal Energy Regulatory Commission has reviewed the necessity and environmental impacts of, and ratified or approved.

Review by the Agricultural Lands Condemnation Approval Board

All state-funded development projects that might affect land in established ASAs will be reviewed by the appropriate local agricultural advisory committee and by the Agricultural Lands Condemnation Approval Board. Each reviewing body may suggest project modifications to ensure the integrity of the ASAs against non-farm encroachment.

• The Agricultural Lands Condemnation Approval Board shall review proposed condemnations of land within an ASA in the case of condemnation for highway purposes (but not including activities relating to existing highways such as, but not limited to, widening roadways, the elimination of curves or reconstruction, for which no approval is required) and in the case of condemnation for the disposal of solid or liquid waste material, the proposed condemnation will be approved only if there is no reasonable and prudent alternative to the utilization of the land within the ASA for the project.  In all other cases, the condemnation will be approved if: It will not have an unreasonably adverse affect upon the preservation and enhancement of agriculture or municipal resources within the area or upon the environmental and comprehensive plans of the county, municipality and the Commonwealth, or upon the goals, resource plans, policies or objectives thereof; or
• There is no reasonable and prudent alternative to the utilization of the lands within the ASA for the project. 

Agricultural Conservation Easements

The Agricultural Area Security Law also enables the Pennsylvania Agricultural Conservation Easement Purchase Program, a voluntary program that enables government entities to purchase development rights from eligible landowners for the purpose of protecting active farmlands.  Under this program, development rights can only be purchased on land within an ASA that is at least 500 acres.

Steps to Create an Agricultural Security Area Within a Single Local Government

Proposals For Creation

The process of establishing an ASA is initiated by petition by a farmland owner or owners with qualifying land. Landowners should contact their local agricultural land preservation office or township office to obtain ASA application forms. Applications for the creation of an ASA are reviewed, and subsequently approved, modified and/or rejected by a local government. Act 43 defines a local government as any city, borough, township or town or any home rule municipality, optional plan municipality, optional charter municipality or similar general purpose unit of government which may be created or authorized by statute.

Any owner or owners of land used for agricultural production may submit a proposal to the governing body for the creation of an ASA within such local government unit, provided that such owner(s) own at least 250 acres of viable agricultural land proposed to be included in the area. The proposed area may consist of any number of noncontiguous tax parcels or accounts, provided that each tax parcel or account is at least ten acres or has an anticipated yearly gross income of at least $2,000 from the agricultural production of crops, livestock and livestock products on such parcel or account.

Participation

Participation in the ASA is voluntary for landowners within the jurisdiction of the governing body, including those not among the original petitioners. The removal of land from an ASA shall only occur after seven years or whenever the ASA is subject to review by the governing body.

Submitting The Proposal

The proposal for the creation of an ASA should be submitted in the manner prescribed by the governing body of the local government unit where the proposed area is situated and should include a description of the proposed area, including the boundaries. Proposals must be submitted by certified mail with return receipt requested.

Fees

There are no fees for submitting an application.  However, a local governing body may, by resolution, impose reasonable filing fees for an application that proposes to include substantially the same lands as proposed in a previously submitted application that the governing body has rejected within the last 36 months.

Notice

The local governing body must acknowledge receipt of a proposal at the next regular or special meeting and must provide public notice of the proposal in a newspaper having general circulation within the ASA.In addition, notice must be posted in five conspicuous places within or near the proposed ASA.

If the local governing body fails to provide notice within 15 days of receiving the proposal, an adversely affected party may get a court order forcing the body to comply.

The notice shall contain the following information:

1. The proposal will be open to public inspection in the office of the local government unit.
2. Any local government unit encompassing or adjacent to the proposed area, or any landowner who owns land proposed to be included within the ASA or who owns land adjacent or near the proposed area, and who wishes such lands to be included or not included therein, may propose modifications of the proposed area in a manner prescribed by the governing body. Objections and modifications to the proposal must be filed with the governing body and the planning commission within 15 days of the date of publication of the notice.
3. At the termination of the 15-day period, the proposal and proposed modifications will be submitted to the planning commission and the Agricultural Security Area Advisory Committee. A public hearing will then be held on the proposal, proposed modifications and recommendations of the planning commission and advisory committee.

Agricultural Security Area Advisory Committee

When the ASA proposal is received by the local government, that body shall establish an Agricultural Security Area Advisory Committee. This committee will consist of three active farmers, each representing a different private or corporate farm, one citizen residing within the unit of local government and one member of the governing body of the local government, who shall serve as the chairman of the committee. The members will not receive a salary, but may be reimbursed for costs incurred for the work of the committee.

The committee will advise the governing body and work with the planning commission in relation to the proposed establishment, modification, and termination of ASAs. In particular, the committee shall render expert advice relating to the desirability of such action, including advice as to the nature of farming and farm resources within the proposed area and the relation of farming in the area to the local government unit as a whole.

Modification Of The Proposal

The governing body shall receive any requests for modifications of the proposal from landowners or local government units up to seven days prior to advertisement of the required public hearing.

Evaluation Criteria

The following factors shall be considered by the planning commission, advisory committee, and at any public hearing:

1. Land proposed for inclusion in an ASA shall have soils which are conducive to agriculture. This factor will have been satisfied without further consideration if at least 50% in the aggregate of the land to be included in an ASA falls into one of the following categories: land whose soils are classified in Natural Resources Conservation Service Capability Classes I through IV, excepting IV(e); land which falls within the Natural Resources Conservation Service classification of “unique farm land”; or land whose soils do not meet Capability Classes I through IV but which is currently in active farm use and is being maintained in accordance with the soil erosion and sedimentation plan applicable to such land.
2. Use of land proposed for inclusion in an ASA shall be compatible with local government unit comprehensive plans.  Any zoning shall permit agricultural use but need not exclude other uses.
3. The landowner may propose to include all of his land, regardless of zoning, in an ASA.
4. The land proposed for inclusion in the ASA, and any additions that are proposed subsequently, shall be viable agricultural land. Viable agricultural land is defined as “Land suitable for agricultural production and which will continue to be economically feasible for such use if real estate taxes, farm use restrictions, and speculative activities are limited to levels approximating those in commercial agricultural areas not influenced by the proximity of urban and related nonagricultural development.
5. Additional factors to be considered are the extent and nature of farm improvements, anticipated trends in agricultural economic and technological conditions and any other matter which may be relevant.
6. The existence of utility facilities on the proposed area shall not prevent the approval of an ASA nor shall the rights of utilities with respect to the existing facilities be disturbed or affected by such approval.

Report By Planning Commissions and The Agricultural Security Area Advisory Committee

At the end of the 15 day comment period, the local and county planning commissions and the Agricultural Security Area Advisory Committee have up to 45 days to review the proposal and proposed modifications and report their recommendations to the governing body. The local planning commission shall specifically report on the potential effect that the proposal and proposed modifications will have upon the local government’s planning policies and objectives.  The failure of these groups to submit their reports within 45 days will constitute their approval of the ASA.

Public Hearings

Once the planning commission and advisory committee have reported back to the local governing body, or after 45 days have elapsed, a properly noticed public hearing must be held in a place within the proposed area or otherwise readily accessible to the proposed area, such as a municipal building. Notification of the hearing must be published in a newspaper having a general circulation within the proposed area and in five conspicuous places within, adjacent or near to the proposed area. Additionally, written notification must be given to landowners whose land is included in the ASA or proposed modifications.

The notice shall contain the following information:

1. The time, date and place of the public hearing.
2. A description of the proposed area, any proposed additions or deletions, the recommendations of the planning commissions and advisory committee and a statement that the public hearing will be held concerning them.

Decision On Proposed Area

The governing body, upon completion of these procedures and considerations, may adopt the proposal or any modification of the proposal it deems appropriate. Failure to adopt or reject the proposal, or any modification, within 180 days from the date the proposal was originally submitted shall be deemed adoption of the proposal without modification. An ASA shall become effective upon its adoption or upon expiration of the 180-days.

Within ten days of the governing body's decision to reject or modify the proposal, the governing body shall submit to the owner(s) of the land a written statement of the decision, including a finding of fact, review of the prescribed evaluation criteria and a discussion of reasons for rejection or modification of the proposal.

Within ten days of the creation of an ASA, a description of the area, including tax parcel identifier, shall be filed by the governing body with:

1. The recorder of deeds, who shall record the description in a manner which is sufficient to give notice to all persons who have, may acquire or may seek to acquire an interest in land in or adjacent to the created ASA.
2. The county planning commission.
3. The planning commission of the local government unit.

Upon the failure of the governing body to file a description or of the recorder of deeds to record the created ASA in accordance with the time or manner requirements prescribed, any person adversely affected may file a petition with the court of common pleas to compel immediate compliance with these provisions.

Once the description has been recorded, the local governing body has 10 days to provide written notification to the Secretary of Agriculture that includes: The number of landowners in the ASA, total acreage of the ASA, ASA approval date, and ASA recording date and a copy of the recorded document, which indicates the location of recording, (book and page or instrument number).

Creation of Agricultural Security Areas Located In More Than One Local Governmental Unit

If a proposed ASA lies in more than one governmental jurisdiction, a proposal must be submitted to each local governing body; joint or multi-municipal ASAs are not permitted. Each of the local governing bodies must follow the procedures described above to create an ASA located in a single local government unit.

For an ASA with properties located in more than one local government unit, the minimum acreage requirements of the proposal shall be based upon the entire proposal and not by the individual government units. The governing bodies may cooperate in the review of a proposed ASA and may provide joint public notices, a joint Agricultural Security Area Advisory Committee and a joint public hearing on the ASA. If a joint Agricultural Security Area Advisory Committee is established, its membership must reflect the requirements for each individual municipality. For example, a joint Agricultural Security Area Advisory Committee consisting of two local government units would have 10 members, and one with 3 municipalities would have 15. Each local government unit must approve the proposed ASA at a properly advertised meeting of that body. Each local government unit must independently approve the proposal.

A rejection by one governing body excludes only the portion of the proposal that is situated within that local government unit. The remaining portions of the proposed ASA may be approved by the other local governments if the total acreage approved is at least 250 acres and meets all other requirements.

Automatic Inclusion Of Property In An Agricultural Security Area

When a parcel of farmland is transected by the dividing line of two local governments, if the majority of the viable agricultural land lies within an approved ASA, all land of that parcel will automatically become part of the ASA. This will be true even if the local government unit in which the minority of the parcel is located has not approved an ASA.

Additions to Agricultural Security Areas During The Seven-Year Period

The addition of land to an ASA may occur at any time. If a local government has an existing ASA, new properties wishing to become part of an ASA will be considered to be additions to the original ASA, not a new one.

Proposals For Addition

Any owner or owners of land used for agricultural production may submit a proposal to the governing body for the addition of the land to an ASA. The proposed addition may consist of any number of noncontiguous tax parcels or accounts, provided that each tax parcel or account is at least ten acres or has an anticipated yearly gross income of at least $2,000 from the agricultural production of crops, livestock and livestock products.

A proposal for an addition to an existing ASA is submitted and reviewed using the same procedures used for creating a new ASA.

Addition of Land beyond ASA's municipal boundaries

If a municipality has not established an ASA, a landowner may petition the government body of another municipality to include eligible land in its established ASA, even if the land is located entirely outside the municipality's boundaries. This may only occur provided:

• The municipality in which the proposed land, prior to the request, adopts an ordinance or resolution allowing land within their municipality to be included in as ASA outside its jurisdiction; AND
• Each municipality included in the existing ASA have, prior to the request, adopted an ordinance or resolution allowing for land outside their municipal boundaries to be considered within their established ASA.

The submission, approval and evaluation processes for these proposed properties will follow all the procedures and requirements as described above in the section entitled Steps to Create an Agricultural Security Area Within a Single Local Government as well as what has been specified in the previous paragraph; however such additions will not be subject to the minimum requirement of 250 acres of viable agricultural land, as is required for the establishment of an ASA.

If the proposed land could be considered for inclusion by more than one existing ASA, or the land lies within more than one municipality, the proposal shall be considered as an addition to the ASA that was first approved.

Review Of Added Land

Land added to an existing ASA shall be reviewed at the same time as all other land in the ASA.

7-Year Review Of Area

The local governing body must review the ASA every seven years from the date of its creation. Also, the ASA may be reviewed at any time if 10% of the land is converted to non-agricultural uses. The review process uses the same steps as the initial designation process. The public hearing is arranged the same way as the first hearing, except that it is held in a 60-day period starting 180 days before the end of every seven years. Landowners who want their land excluded from an ASA must notify the local government unit of their intent at least 120 days before the end of the seven-year review process. If the governing body does not act, or if a modification of an area is rejected, the area shall be deemed to be readopted without modification for another seven years.

Appeals

Any party in interest aggrieved by a decision or action of the governing body relating to the creation, composition, modification, rejection or termination of an ASA may appeal to the court of common pleas within 30 days of a decision or action.

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