Agricultural Law Weekly Review—November 22, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Zoning: Court Says Horse Farm Excluded from Land Development Requirement

On November 21, 2016, the Commonwealth Court of Pennsylvania filed an unreported opinion ruling that  a proposed Upper Saucon Township (Lehigh County, Pennsylvania) equine operation qualifies as a farm under the Township’s ordinances and is therefore exempt from submitting a land development plan (Ebert v. Upper Saucon Township, 2016 WL 6833081).  According to the court, under the Township’s Subdivision and Land Development Ordinance (SALDO) farms are excluded from the requirement of submitting a land development plan.  Additionally, both SALDO and the Township’s Zoning Ordinance contain language defining a farm to include the raising of livestock and that “[a] ‘farm’ shall be understood to include a dwelling unit as well as all structures necessary for the housing of animals, storage of feed and equipment, and other operations customarily incidental to farm use.” The Township argued that because the proposed equine operation only consisted of a barn, six permanent horse run-ins, and access roads, but did not include a dwelling, a land development plan must be submitted in order to obtain a zoning permit for the proposed barn construction.  The court disagreed and held that “[r]ead as a whole, it is clear the intent of the definition was to ensure that a property was not excluded from the definition of a farm merely because it contained a dwelling unit.”

Realty Transfer Tax: Governor Signs Law Exempting Preserved Farms

On November 21, 2016, Pennsylvania Governor Tom Wolf signed into law legislation clarifying recent changes made to the Tax Reform Code regarding the taxation of Agricultural Conservation Easements (Act 175).  According to the House Co-Sponsorship Memoranda, previously, “the Department of Revenue [had] taken the position that agricultural conservation easements were not subject to the Realty Transfer Tax [RTT] since they were not “true easements.” Nevertheless, in 2014 a Tax Appeal decision found that a conservation easement was subject to RTT and “cast doubt on whether other agricultural conservation easements would also be subject to the RTT.” To provide clarity, “the tax code portion of this year’s budget added language to specifically exempt agricultural conservation easements from the RTT…[but] the new language did not include a retroactive effective date.” Under Act 175, the RTT exemption for agricultural conservation easements applies retroactively to January 1, 2013.

Dairy: PA Milk Marketing Board Reschedules Meeting

On November 19, 2016, the Pennsylvania Milk Marketing Board published notice in the Pennsylvania Bulletin that the December 7, 2016, meeting of the Milk Marketing Board has been rescheduled for December 8, 2016, at 12 p.m. in Room 202, Agriculture Building, Harrisburg, PA 17110 (46 Pa.B. 7422). 

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Recent AgLaw HotLinks include:

•          This year’s Thanksgiving turkey will cost 24 cents less than last year - Brownfield
•          Price-fixing allegations hit chicken industry - Feedstuffs
•          Court ruling issued on Hawaii GMO ban - Agri-Pulse
•          Arrest made in Miami for illegal sale of horse meat - Miami Herald

New updates on our website! The FDA Food Safety and Modernization Act Library Guide is up-to-date and ready to be viewed!

Connect with us on Facebook.

Stay informed with our monthly Agricultural Law Brief.

Agricultural Law Weekly Review—October 13, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Zoning: Court Rules Poultry Processing Included in Ordinance’s Definition Agriculture

On October 4, 2016, the Commonwealth Court of Pennsylvania determined that Paradise Township (Township), York County, Pennsylvania must permit a commercial poultry processing facility under the Township Zoning Ordinance’s (Ordinance) definition of agriculture (Balady Farms, LLC, v. Paradise Township, No. 171 C.D. 2016).  The court stated that the Ordinance defines agriculture as “[a]n enterprise that is actively engaged in the commercial production and preparation for market or use of…livestock and livestock products…[and that] livestock specifically includes poultry.” According to the court, the “proposed addition of a chicken processing facility for chickens raised and bred on the farm…falls squarely within the Township’s definition of ‘agriculture’ and, thus, is permitted in the Township’s [Rural Conservation] District.” The court asserted that this interpretation of agriculture is consistent with Pennsylvania’s Municipalities Planning Code, Right to Farm Act, and Agricultural Communities and Rural Environment Act (ACRE) which are intended to provide statutory protect for the Commonwealth’s agricultural operations. 

Animal Welfare: FSIS Proposal to hold Livestock Transporters and Haulers Liable for Abuse

On October 7, 2016, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) issued an advance copy of a document submitted to the Office of the Federal Register entitled Inhumane Handling of Livestock in Connection with

Slaughter by Persons Not Employed by the Official Establishment (Docket No. FSIS-2016-0004).  The document announces FSIS’s “intent to hold livestock owners, transporters, haulers and other persons not employed by an official establishment responsible if they commit acts involving inhumane handling of livestock in connection with slaughter when on the premises of an official establishment.”  FSIS stated that “[t]he Agency intends to initiate civil or criminal action, in appropriate circumstances, against individuals not employed by an official establishment, if these individuals handle livestock inhumanely in connection with slaughter when on the official premises.”

Labor:  EEOC Settles Disability Discrimination Lawsuit with Harrison Poultry

On October 4, 2016, the United States Equal Employment Opportunity Commission (EEOC) issued a press release announcing that the agency had reached a settlement agreement with Harrison Poultry, Inc., regarding alleged employment disability discrimination at the company’s Bethlehem, Georgia poultry hatchery.  According to the press release, EEOC filed suit in 2014 charging that Harrison Poultry violated federal law when it failed to provide a manager with a reasonable accommodation for his disability and instead fired him.  As part of the settlement, Harrison Poultry will pay the employee $100,000 and adopt an employee accommodation policy consistent with the American with Disabilities Act.

Litigation: EPA Announces Complaint and Settlement Regarding Alleged Violations of Renewable Fuel Standard

On October 4, 2016 the United States Environmental Protection Agency (EPA) issued a press release announcing that the agency and the United States Department of Justice (DOJ) had “filed a complaint against NGL Crude Logistics, LLC and Western Dubuque Biodiesel, LLC and a settlement with Western Dubuque to address alleged violations of the Renewable Fuel Standard.”  According to EPA, “[t]he complaint, filed in the U.S. District Court for the Northern District of Iowa in Cedar Rapids, Iowa, alleges that NGL entered into a series of transactions with Western Dubuque in 2011 that resulted in the generation of approximately 36 million invalid renewable identification numbers (RINs)… [which] are credits created when a company produces qualifying renewable fuel and can be traded or sold to refineries and importers to use for compliance with renewable fuel production requirements.” EPA stated that “[u]nder the settlement, Western Dubuque has agreed to pay $6 million to resolve alleged Renewable Fuel Standard program violations for generating RINs for renewable fuel that was produced using unapproved feedstocks and production processes.  According to EPA, “[t]he consent decree does not resolve any claims against NGL.”

PA Township Corrects Right to Farm Violation

Written by Tyler R. Etter

On August 20, 2015, Pennsylvania’s Mount Joy Township (Adams County) amended a zoning ordinance that was found to be in violation of the state’s Right to Farm Act. Review of the ordinance was first requested in March of 2014, with a finding of violations in September.

The Pennsylvania Right to Farm Act is designed to protect normal agricultural operations from local regulations that exceed the state’s regulations on activities. The ordinance in question forbade farmers from using on-site slaughtering operations. Further, the ordinance required 50 acres minimum for a farm-related business, well in excess of the state’s requirement of 10 acres.

In May of 2015, the Attorney General Kathleen Kane sent a letter of recommendations to the township to correct the violations of the Act, which the township appeared to have taken into consideration for the revisions. The revisions consisted of the township adopting the definition of “normal agricultural operations” as used by the Act. Second, the revisions allowed for the processing and sale of poultry on a farm, originally not permitted, which gave rise to the review of the ordinance.

Everett Ramsburg, the farmer that initially requested the review, stated that he doesn’t believe that the township would have acted without the pressure applied by the attorney general. Susan Smith, the township solicitor, denied that the Attorney General’s letter was in direct relation to the changes made to the ordinance, but stated that the specifics “may have been influenced” by the letter.

PA Governor Signs Bill Requiring Biennial Inspection of Agricultural Conservation Easements

The Governor of Pennsylvania signed House Bill 84 into law as Act No. 19 on June 24, 2013.  This bill amends the Agricultural Area Security Law.  These amendments require county governing bodies to inspect all agricultural conservation easements to ensure compliance with the terms of the easement.  The amendments contained within this bill will take effect immediately.

Act No. 19 requires county agricultural land preservation boards conduct biennial inspections of all agricultural conservation easements for compliance with the deed of the easement.  The first inspection must occur within one year of the easement sale.  The bill further requires that land owners be notified of a pending inspection and the inspection time and date must be agreed upon beforehand by the county and landowner.  Following the inspection, reports of the findings must be provided, within 10 days of the inspection, to the landowner.  Violations found during the inspection must be reported to the land owner via certified mail.  Furthermore, the county board and the State Agricultural Land Preservation Board may inspect the land, without prior notice, if there is reasonable belief that a violation of the deed has taken place.

For the full text of the bill, please see the PA General Assembly’s website. 

 

For more information, please visit the Agricultural Law Resource and Reference Center Agriculture Area Security Law Resource Center.

Written By Gaby Gilbeau – Research Assistant

The Agricultural Law Resource and Reference Center

June 25, 2013

Main St. Dev. Group, Inc. v. Tinicum Township Bd. of Supervisors

On March 21, 2011, the Commonwealth Court of Pennsylvania affirmed a trial court’s decision that found Section 806(i) of the Tinicum Township’s Zoning Ordinance invalid as applied to Township areas zoned as Controlled Commercial, Commercial, Limited Commercial, and Planned Industrial.  Section 806(i) is an overlay district that limits development on agricultural prime soils and prevented Main Street Development Group, Inc. (“Developer”) from building in a commercial zoned district.  Developer challenged the validity of Section 806(i) in pertaining to non-agricultural zoned areas.  The court concluded that “because the effect of Section 806(i), combined with the underlying zoning, causes the entire Township to become a de facto agricultural zone, it unduly disturbs the expectations created by the existing zoning ordinance, disrupts the balancing between preserving agriculture and allowing development as mandated by the MPC [Pennsylvania Municipalities Planning Code], and unreasonably restricts Developer’s use of its land.”  For the complete court opinion please view Main St. Dev. Group, Inc. v. Tinicum Township Bd. of Supervisors.

Written by Jay Angle, Research Assistant