Understanding Pennsylvania’S 
Agricultural Security Area Law

Purposes of the Agricultural Security Area Law

1.  Encourage Landowners to make long term 
     commitments to agricultural by providing 
     financial incentives.

2.  Protect farming operations from incompatible 
     nonfarm land uses.

3.  Protect the Agricultural Economy by assuring 
     permanent conservation of productive agricultural 
     land.

4.  Provide compensation to landowners in 
     exchange for the development rights to their 
     lands.

5.  Leverage State agricultural easement purchase
     funds and protect the investment of taxpayers
     in agricultural conservation easements.

	It is the goal of the Commonwealth to protect Pennsylvania’s agricultural lands from metropolitan development and other urban pressures.  There is a need to preserve these lands for the production of agricultural foods and other products, natural resources, open spaces, and other aesthetic purposes.  In order to provide a means to protect these lands, the Commonwealth passed the Agricultural Security Area (ASA) Law.  

	As a landowner, there are a variety of benefits to enrolling land in an Agricultural Security Area Program.  Lands within an Agricultural Security Area receive different treatment in relation to various local government laws and ordinances, especially in regard to public nuisances.  Government is restricted in its eminent domain powers when trying to condemn land within an Agricultural Security Area.  There are various financial benefits to enrolling land in an Agricultural Security Area, especially for selling Agricultural Conservation Easements.    

	This paper will discuss the necessary steps in creating a new Agricultural Security Area, the effect of an Agricultural Security Area upon local laws and ordinances, and the process for developing and selling Agricultural Conservation Easements within an Agricultural Security Area.

Benefits to Landowners of Joining an Agricultural Security Area.

1.	The local governments refrain from enacting ordinances and regulations which restrict farming operations and farm structures within an Agricultural Security Area.

2.	When defining a public nuisance, the local government will provide exceptions for normal agricultural activities occurring within an Agricultural Security Area unless the law is for public health and safety 

3.	Commonwealth agencies and programs that might negatively affect farmers shall conduct their programs in a manner that will encourage the continuance of viable agriculture in the areas.

4.	Limitations are placed on the use of land condemnation procedures – eminent domain – by Commonwealth and local agencies unless approval is obtained from the Agricultural Land Condemnation Approval Board.

5. 	There may be certain financial benefits for selling the development rights to the government in the form of Agricultural Conservation Easements.  

I.	Creating a New Agricultural Security Area.

	An Agricultural Security Area is 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.” An area fitting the correct criteria may already be designated an Agricultural Security Area by prior state legislation or through the procedures set forth in the ASA Law.  The ASA Law outlines six necessary steps for creating a new Agricultural Security Area:  proposal; notification; proposal review; hearing; decision; periodic review.

Step One:  Proposal
	First the landowners, must submit a proposal for the creation of a new Agricultural Security Area within a local government unit.  The proposed area must be at least 250 acres of viable agricultural land.  Alternatively, even a parcel of land which is located in more than one government unit may meet the statutory criteria for automatic inclusion of the parcel in the program.  Under the newly amended statute, a property owner is no longer penalized for owning a parcel of land situated in two government units.   The proposal must be submitted according to the regulations and requirements of the local governing body and must include a description of the proposed land and its boundaries.  It must be submitted by certified mail with a return receipt.  The return receipt serves as notice of the official submission date to the local governing body.   

Step Two: Notification 

The Notice of Proposal Must Contain

1.	a statement that a proposal for an Agricultural Security Area has been filed with the governing body pursuant to the ASA Law.

2.	A statement that the proposal will be on file open to public inspection in the office of the local government unit.

3.	A statement that any local government unit, or landowner with lands adjacent or near the proposed area may propose modifications to the proposed area.  Any objections must be filed within 15 days of the publication of the notice.

4.	A statement that at the termination of the 15 day period, the proposal and any proposed modifications will be submitted to the planning commission and the committee.  Thereafter a public hearing will be held on the proposal and proposed modifications.

Next, the governing body must acknowledge the receipt of the proposal at the next regular or special meeting and provide notice in a newspaper having general circulation within the proposed Agricultural Security Area.  The local government must also post the notice in five prominent places, within or near the proposed area.  If the governing body fails to provide the required notice within 15 days of receiving the proposal, a person who is adversely affected by the inaction may get a court order to force the local government unit to comply.  

Step Three:  Proposal Review
The governing body must submit the proposal and any proposed modifications to a planning commission within 15 days from publication of the notice. The planning commission then has 45 days to review the proposal. If the proposal is submitted to a county planning commission, the commission shall report to the governing body its recommendations concerning the proposal.  If it is not a county planning commission, the commission must  merely report to the governing body the potential effects of the proposal upon the local governments. Failure of the planning commission to report after 45 days constitutes their approval of the proposal.

The governing body must also submit the proposal to the Agricultural Security Advisory Committee within 15 days from the notice publication.  The Agricultural Security Advisory Committee is formed by the local governing body and its members serve without pay.  The advisory committee has 45 days to review the proposal and report its recommendations to the governing body.  If the advisory committee fails to submit a report after the 45 days, the failure will constitute their approval of the proposed area.

The Hearing Notice must contain the following information

1.	A statement of the time, date and place of the public hearing.

2.	A description of the proposed area, any proposed additions or deletions and any recommendations of the planning  commission and advisory committee.

3. 	A statement that the public hearing will be held concerning the original proposal, any written amendments to the proposal, and any recommendations of the planning commission and advisory committee.

Step Four: Public Hearing 
	Once the planning committee and advisory committee submit their reports back to the local governing body or after 45 days, a hearing must be held.  The hearing must be held in a municipal building or other place which is easily accessed by the public in the proposed area.  The local governing body must publish a hearing notice in a newspaper with general circulation in the proposed area and in five prominent places throughout the area.  

Evaluation Factors to be used by the Planning Commission, Advisory Committee, and at Any Public Hearing.

1.	Land proposed for the inclusion shall have soils which are favorable to agriculture. 

2.	Use of land proposed for inclusion 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 agricultural security area.

4.	The land proposed for inclusion and any additions which are subsequently proposed, shall be viable agricultural land.

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.

	The ASA Law sets forth various evaluation factors and resource materials to be used by the planning commission, the advisory committee and at any public meeting.  These factors help guide these groups to coming to an informed decision regarding the creation of the Agricultural Security Area.  

Step Five: Decision
	After the hearing is held, the local governing body must then come to a decision regarding the creation of the Agricultural Security Area.  The governing body must reach its decision within 180 days.  Failure to reach a decision after 180 days will constitute acceptance  of the proposed area without adoption of any proposed modifications.  

If the proposal is rejected or modified, the local governing body has 10 days to submit to the owner or owners of all affected lands written notification of the decision.  The written notification must include a finding of fact, review of the necessary evaluation criteria, and a discussion of reasons for the rejection or modification.

Steps in Creating an
 Agricultural Security Area

1.	A proposal is submitted to the local governing body.

2.	The local governing body provides notice for 15 days.

3.	After 15 days, the proposal is submitted to the planning commission and Agricultural Security Advisory  Committee for review.  A report must be submitted by these groups within 45 days.

4.	Upon receipt of the reports, the local governing body has 45 days to hold a hearing.  Notice of the hearing must be given.

5. 	The local governing body has 180 days after the hearing to reach its decision over the proposal.  Failure to decide constitutes acceptance.

•	If the proposal is rejected, written notification must be given to affected landowners
•	If the proposal is accepted, then the description of the area must be recorded.  The local governing body has 10 days to notify the Secretary of Agriculture.

6. 	Review of the Agriculture Security Area must occur every seven years.

	   If the local governing body accepts the proposal or fails to decide after 180 days, the Agricultural Security Area automatically is created and becomes immediately effective.  Within 10 days of creation of an Agricultural Security Area, the local governing body must file a description of the area with the recorder of deeds and with both the local planning commission and county planning commission.  The recorder of deeds, upon receiving the description of the area, must record the description in a manner which is sufficient to notify all people who may be affected or interested in the creation of the area. 	Once the description of the Agricultural Security Area has been recorded, the local governing body has 10 days to notify the Secretary of Agriculture. The notification must include – in writing – the number of landowners in the area, the total acreage of the area, the area approval date, and the date of recording of the area. 

Step Six: Periodic Review
	The local governing body must review the newly created Agricultural Security Area every seven years.  The review must also request recommendations from the planning commission, the county planning commission, and an advisory committee.  Between 120 and 180 days prior to conducting the review, the local governing body must provide notification.  The ASA Law states that notification of review be published in a paper of general circulation within the Agricultural Security Area and in at least five conspicuous places in the same area.  All persons owning land within the Agricultural Security Area are to receive written notification of the review 30 days before the review is to begin.  Any person who wishes to modify the existing area must submit a proposed modification within 30 days of the date of notice. If 10% of the Agriculture Security Area is diverted to residential or non-agricultural uses, the local governing body may conduct an interim review.

	Finally, any person who may be hurt by the creation, composition, modification, rejection or termination of an Agricultural Security Area may take an appeal to the court of common pleas.  Such an appeal must be brought within 30 days of such action.  

II.  The Agricultural Security Area and Local Regulations.

	The ASA Law states that a main benefit to landowners in an Agriculture Security Area is the Law’s effect upon the creation and implementation of local laws and ordinances.  All municipal governments are encouraged to support the “continuity, development and viability” of agriculture within the Agricultural Security Area.   These governments are to encourage agriculture by not passing ordinances which would unreasonably restrict farm practices and farm structures.   
	
	Municipal and political subdivisions within the Agricultural Security Area are also to encourage agricultural operations when defining public nuisances.  These governing bodies, when defining public nuisances, are to exclude any agricultural activity or operation conducted using normal farming operations. Pennsylvania’s Right to Farm law also protects agricultural operations.  Under Pennsylvania’s Right to Farm Law, many agricultural operations are provided some protection from public nuisance suits even if they are not located within an Agricultural Security Area.  

	The local governing bodies are not completely barred from passing regulations and ordinances which affect farm operations or farm structures, if such regulation or restriction bears a direct relationship to the public health and safety.  The local governments can define public nuisances, including agricultural operations, if those operations bear a direct relationship to the public health and safety.  While these restrictions may seem very beneficial to the agricultural landowner, many local ordinances and regulations can be tied to the public health and safety.  

III.  The Agricultural Security Area and Condemnation of Land

It is the policy of the Commonwealth for all agencies to promote and encourage viable farming in Agricultural Security Areas.  Theses agencies are to modify their administrative regulations and procedures in order to meet this goal while still promoting public health and safety.  Such Commonwealth agency’s regulations are also to be consistent with federal laws, rules, and regulations.  

The ASA Law does not describe how these agencies are to accomplish this goal to promote agriculture in the Agricultural Security Area.  One aspect of promotion may be agencies’ limitation in their eminent domain power over Agricultural Security Areas.  The ASA Law requires the Agricultural Land Condemnation Approval Board’s (ALCAB) permission in order to condemn land within an Agricultural Security Area.  For more information regarding this aspect of the ASA Law, please refer to Condemnation of Agricultural Security Area Farmland, written by Jeffrey Feirick and available at the Agricultural Law Research and Education Center.

IV.  Agricultural Conservation Easements

	The ASA Law outlines the steps necessary for obtaining an Agricultural Conservation Easement.  Before obtaining a conservation easement, the area must first be declared an Agricultural Security Area of at least 500 acres in size.  Alternatively, the easement purchase can be a joint purchase with either a county or both a county and the Commonwealth that conforms to newly added statutory criteria. An Agricultural Conservation Easement is defined in the ASA Law as an “interest in land … which … represents the right to prevent the development or improvement of the land for any purpose other than agricultural production.”  The ASA Law goes on to say that “the easement may be granted by the owner of fee simple to any third party or to the Commonwealth, to a county governing body, or to a unit of local government.”  The effect of a conservation easement gives an interest in the land to a third party, preventing the development of land for non-agricultural uses.  With many prime and historic farmlands being converted into residential and industrial uses, this provides an excellent tool for preserving such farmlands for future generations.

Some Duties and Responsibilities of the State Agricultural Land Preservation Board

1.	To adopt rules and regulations pursuant to the Agricultural Security Area Law.

2.	To adopt rules of procedure and bylaws governing the operations of the State board and the conduct of the meetings.

3.	To review, and accept or reject, the recommendation made by a county board for the purchase of a conservation easement.

4.	To purchase conservation easements if recommended by a county.

5.	To allocate state moneys among counties for the purchase of conservation easements

6.	To record conservation easements purchased by the Commonwealth or jointly owned with the recorder of deeds of the county wherein the conservation easements are located.

7.	To establish and publish standards criteria necessary for State board approval of county programs for purchasing conservation easements.

8.	The authorize the development of a guidebook defining all technical elements necessary for a complete application for purchase of a conservation easement.

	Within the Department of Agriculture, the State Agricultural Land Preservation Board is charged with administering the program for Agricultural Conservation Easements.  The board is made up of 17 members from various Commonwealth agencies and various appointees.    

	Each individual county has the responsibility to establish its own county-level conservation easement purchase program.  The county boards are made up of five, seven, or nine members who serve on a voluntary basis.  The individual county board shares many duties and responsibilities similar to those of the state Agricultural Land Preservation Board. Each county exercises primary enforcement authority with respect to agricultural conservation easements within the county and in adjacent counties if certain criteria apply. 

	Local governments may also participate in the purchasing of conservation easements, but only in conjunction with the county board.  The local government’s primary duty is to recommend to the county board where conservation easements should be purchased.  The local government board may purchase a conservation easement but only if certain ASA requirements are met.  If the local government board does purchase a conservation easement, the cooperation with the county is still necessary in order to meet the ASA Law requirements.  

	The Agricultural Conservation Easement has unlimited life.  As a general rule, it cannot be sold, conveyed, extinguished, leased, encumbered, or restricted in whole or in part for a period of 25 years from the date of purchase.  Only if the land is found to be no longer viable for agricultural purposes, may the state and county terminate the conservation easement before the 25 year period had expired.  Both the state and county boards must approve any termination or modification of a conservation easement.   

Agricultural Conservation Easements Shall Not Prevent the Following:

1.	the granting of conveyances or authorization for the exploration, development, storage or removal of coal by underground mining methods, oil or gas.  The development of adjoining facilities related to the removal of coal by underground mining methods, oil or gas development, or activities incident to the removal of these minerals shall not be prevented either.

2.	 The granting of rights-of-way by the owner of the subject land in and through for the installation of, transportation of, or use of water, sewage, electric, telephone, coal by underground mining methods, gas, oil or oil products lines.

3.	Construction and use of structures necessary for agricultural production.

4.	Construction and use of structures for the landowner’s principle residence or for the purpose of providing necessary housing for seasonal or full-time employees.  Only one such structure may be constructed on no more than two acres during the term of the easement.

5. 	Customary part-time or off-season minor or rural enterprises and activities which are provided for in the county Agricultural Conservation Easement Purchase Program, approve by the State board.  

V.  Purchasing Conservation Easements

	The ASA Law states that a recommendation may be rejected if clear title cannot be conveyed.  A farmer wishing to sell an easement must own the land in fee simple.  This means that there cannot be any conditions or limitations upon the land.  Proper releases from all mortgage holders and leinholders must be obtained in order to assure clear title.  There cannot be any encumbrances upon the land in order to purchase a conservation easement.  

	Once the county submits its request, the State Agricultural Land Preservation Board has sixty days to make its decision.  The ASA Law states a few situations where that deadline may be extended.  These situations include catastrophic events preventing the state board from meeting; pending legal decisions which may affect the decision; or the State board decides to hold administrative hearings.  

	If the State board disapproves the purchase of the conservation easement, it must give the county written notification within 10 days of the decision.  The written notification must include reasons why the recommendation was rejected.  If the State board fails to make a decision within 60 days, the recommendation is presumed to be approved.  

	If the State board decides to accept the county’s recommendation for purchasing a conservation easement, the next step is valuation.  The State or county board must select and retain an independent State-certified real estate appraiser.  The job of the appraiser is to determine the market value and the farmland value of the land in question.  The State or county board must also determine the agricultural value and nonagricultural value of the property subject to the conservation easement.  The landowner may elect to retain his own independent State-certified appraiser within 30 days of the State’s appraisal. 

VI.  Payment for Conservation Easements

	The price to be paid for an agricultural conservation easement cannot exceed the difference between the nonagricultural value and the agricultural value set by the landowner and State’s appraisers.    Under the 2001 statutory amendment, the maximum price of $10,000 per acre no longer exists.

Conservation Easement Valuation

The price to be paid for the conservation easement shall be:

	Nonagricultural value*
   -    agricultural value **
   = 	value of the conservation easement.

*  The nonagricultural value is:

1.	market value of the land determined by the State’s appraiser and
2.	one-half the difference between the market value set by the state and seller’s appraisers if the seller’s appraisal exceeds the State’s appraisal.

**  The agricultural value is: 

1.	the farmland value determined by the seller’s appraiser and
2.	one-half the difference between the farmland value set by the state and seller’s appraisers if the State’s appraiser exceeds the seller’s appraisal.

Payments for the easement may be made in either a lump sum, installments, or in any other lawful manner.  If payment is to be made in installments, the landowner is entitled to interest.  All payments are to be completed within 5 years from purchase.  The Supplemental Agricultural Conservation Easement Purchase Program allocates additional funds to provide technical assistance to eligible counties or groups of eligible counties regarding long-term installment purchases of agricultural conservation easements and to reimburse land trusts for expenses incurred to acquire agricultural conservation easements.

VII.  Change of Land Ownership

Reasons why the State Board may reject the request to purchase an Agricultural Conservation Easement.
 
1.	The recommendation does not comply with a county easement purchase program certified and approved by the State board.

2.	Clear title to the land cannot be conveyed.

3.	The farmland which would be subject to the agricultural conservation easement is not located within a duly established Agricultural Security Area of at least 500 acres or is not in compliance with the statutory criteria for parcels of land not within an agricultural security area.

4.	The allocation of county funds established the Agricultural Security Area Law is exhausted or is insufficient to pay the purchase price.

5.	Compensation is not provided to owners of surface-mineable coal disturbed or affected by the creation of the Agricultural Conservation Easement.

	In the event that the landowner wishes to convey or transfer the land to another person, the easement must be transferred as well.  The deed transferring the land must include, verbatim, the language of the easement set forth in the original deed executing purchase of the conservation easement.  The person selling the land has 30 days to notify the county board of the change of ownership.  The notification must include name, address of the new owners and the price per acre.  Easement restrictions are binding upon all subsequent owners of the Agricultural Conservation Easement.

VIII.  Conclusion

	Pennsylvania enacted the Agricultural Security Area Law in order to provide protection from the many urban pressures facing farmlands today.  An Agricultural Security Area is a designation of at least 250 acres of agricultural lands for a period of at least seven years.  In order to create a new Agricultural Security Area, the local government must approve its creation.  The ASA Law outlines the many steps in creating an Agricultural Security Area.  There are many benefits for the landowner who wishes to participate in this voluntary program.  One benefit is the exemption of land from certain local laws and ordinances, especially concerning public nuisance.  Another benefit to landowners is the protection from the State’s powers of eminent domain, by requiring permission from Agricultural Land Condemnation Approval Board before condemnation occurs.  Finally, landowners can reap financial benefits by selling the development rights of the land to the Commonwealth in the form of Agricultural Conservation Easements.  

For More Information

For anyone wishing to obtain more information regarding the Agricultural Security Area Law and Conservation Easements, contact:

Bureau of Farmland Protection
Pennsylvania Department of Agriculture
2301 North Cameron Street
Harrisburg, PA 17110
717-783-3167

For More Information

The Entire Text of the Agricultural Security Area can be found at: 

3 Pa. Cons. Stat. § 901 (2003)

Regulations pertaining to Agricultural Security Areas and Conservation Easements can be found at: 

7 Pa. Code § 138e.1 (2003)

(July 2003)

The purpose of this publication is to help you know and understand more about the Agricultural Security Area Law.  The material is general and educational in nature.  It is not intended to be legal advice.  If legal advice is what you need, you are encouraged to seek the aid of a competent professional in your area.  

Written By
Gene Carson Brucker
Graduate Research Assistant

The Agricultural Law Research and Education Center
The Dickinson School of Law Pennsylvania State University
150 S. College Street, Carlisle, PA 17013
717-241-3517
www.dsl.psu.edu