Farmers Seek Protection from Public Utility by Enrolling in Agricultural Security Area

Written by M. Sean High – Staff Attorney

On December 17, 2015, LancasterOnline reported that PPL Electric Utilities was investigating the possibility of acquiring 40 acres of farmland in West Lampeter Township (Lancaster County, PA) for the purpose of erecting an electric substation.  According to the article, “[t]hree Amish farmers were so concerned that their land might be condemned that they requested the township add their farms to an ag security area.” 

The ability for inclusion in an Agricultural Security Area (ASA) is a potential statutory protection (3 Pa. Stat. §§ 901-915) that the Pennsylvania legislature has granted to qualifying farmland.  According to the language of the enacted ASA law, it is the declared policy of the Commonwealth “to conserve and protect and to encourage the development and improvement of its agricultural lands for the production of food and other agricultural products” and “to conserve and protect agricultural lands as valued natural and ecological resources which provide needed open spaces for clean air, as well as for aesthetic purposes.”

As a result of Pennsylvania’s ASA law, if farmland is included within an ASA, the landowner is entitled to the following benefits and protections: 1) a limitation on local regulations; 2) participation in the Agricultural Conservation Easement program; and 3) a limitation on the government’s eminent domain condemnation power.

First, where an ASA is in effect, municipalities are not permitted to enact laws that would unreasonably restrict farm structures or practices within the ASA.  Municipalities must also exclude all “normal farming operations” within an ASA from any public nuisance definition.  Nonetheless, municipalities are still permitted to act for the benefit of the public health and safety.

Second, farmland located within an ASA is eligible to participate in the Pennsylvania Agricultural Conservation Easement program.  Under this program, farmland owners are permitted to sell the development rights to their property in exchange for a perpetual agricultural easement being placed on the land.

Finally, and perhaps most significantly, participation in an ASA places a limitation on the ability of the government to seize land under the power of eminent domain.  Accordingly, if a property is enrolled in an ASA, before any land may be condemned and seized by eminent domain, approval must be granted by the Pennsylvania Agricultural Lands Condemnation Approval Board (ALCAB).  Significantly, ALCAB is only permitted to approve a condemnation of ASA farmland if there is “no reasonable and prudent alternative.”

ASA’s must be created and are not available to all types of land.  To create an ASA, farmland owners must first initiate the process by submitting a proposal to the local government unit.  Next, the proposal is submitted to the Pennsylvania Planning Commission and the Pennsylvania ASA Advisory Committee.  The municipality then holds a public hearing and arrives at a decision as to whether or not an ASA should be formed.

When deciding on whether or not to create an ASA, municipalities are required to consider whether land proposed for inclusion is viable agricultural land; whether the soils of the land proposed for inclusion are conducive to agriculture; and whether  an ASA is compatible with a comprehensive plan.  Additionally, municipalities must evaluate farm improvements, trends in economics and technology, as well as all other relevant factors.

For more information regarding Pennsylvania ASA law, please visit the Penn State Center for Agricultural and Shale Law’s Agricultural Security Area Law Resource Area. 

Understanding Pennsylvania’s Recreational Use and Water Act (RULWA) –Part I: The Duty of Care

Written by M. Sean High – Staff Attorney

In 1966, the Pennsylvania General Assembly enacted the Recreational Use of Land and Water Act (RULWA).  According to the statute (68 P.S. §§ 477-1 to 477-8), the purpose of RULWA “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability.” 

What does RULWA do?

RULWA provides a landowner with a potential immunity defense against claims that an individual was injured on a property as a result of the landowner’s negligence.  Landowner negligence occurs when a landowner fails to exercise the same level of care that a reasonably prudent and careful person would exercise under similar circumstances.  Different circumstances require landowners to exercise different levels of care towards the people that enter their property.  RULWA allows landowners the possibility of reducing the level of care owed whenever their land is made available to the public, free of charge, for recreational purposes.

What are the levels of care landowners owe those that enter their land?

When someone enters land without the consent of the landowner, that person is considered a trespasser.  Landowners normally owe this uninvited individual the low duty of care not to engage in any willful, wanton, or reckless conduct that could cause harm to the trespasser.  Nonetheless, if a landowner discovers or tolerates trespassers, the landowner then has an elevated duty to either warn the trespassers of known, hidden, man-made dangers or to make the premises safe.  For example, if a landowner discovers a foot path or litter near a section of a property used as a rifle range, the landowner may need to erect a sign warning of the potentially dangerous condition. 

Child trespassers require landowners to exercise a level of care greater than that owed to standard trespassers.  Known as the “Attractive Nuisance Doctrine,” children are considered unable to resist (or comprehend the danger of) things such as swimming pools, heavy machinery, or construction sites.  As a result, landowners have a duty to take reasonable precautions to protect child trespassers against the dangers of an attractive nuisance.  Often, this duty is fulfilled through erecting a secured fence around the danger. 

Generally, landowners that open their property to the public have a heightened duty of care towards the individuals that enter the property.  If a landowner invites persons onto the land, and the landowner receives no economic benefit, the invited persons are known as licensees.  A landowner has a duty of care to warn licensees of all known dangers on the property.  If the landowner invites persons onto the land (expressly or implied) for the economic benefit of the landowner, those invited persons are known as invitees. A landowner owes invitees a duty of protection and must inspect the land for dangerous conditions and warn the invitees of all known dangers on the property, and in certain situations, remedy the dangerous conditions.

RULWA provides qualifying landowners with an exception to the general duty of care owed towards those that enter their land.  If a qualifying property is made available to the public, free of charge, for recreational purposes, under RULWA, the landowner does not owe a duty to keep the property safe for the recreational users or to warn the recreational users of dangerous conditions.  In essence, RULWA only requires that landowners treat recreational land users with the same low duty of care that is owed to a trespasser (to not engage in willful, wanton, or reckless conduct that could cause harm to the recreational user). 

PDA Issues Correction to Clean and Green

Written by M. Sean High

On August 22, 2015, the Pennsylvania Department of Agriculture (PDA) issued a corrective amendment to the Pennsylvania Code to remedy § 137b.24 of the Preferential Assessment of Farmland and Forest Land under the Clean and Green Act.  The corrective amendment, published in the Pennsylvania Bulletin Volume 45, number34, stated that PDA had “discovered a discrepancy between the agency text of 7 Pa. Code § 137b.24 (relating to ineligible land)…and the official text as published at 31 Pa.B. 1701 (March 31, 2001)…” 

According to the official text published in 31 Pa.B.1701, the first sentence of the Pennsylvania Code under “ineligible land” should have stated: “A landowner seeking preferential assessment under the act shall include ineligible land on the application if the ineligible land is part of a larger contiguous tract of eligible land, and the use of the land which causes it to be ineligible exists at the time the application is filed.” (Emphasis added).  Instead, the first sentence of 7 Pa. Code § 137b.24 “Ineligible land” had stated: “A landowner seeking preferential assessment under the act shall include ineligible land on the application if the eligible land is part of a larger contiguous tract of eligible land, and the use of the land which causes it to be ineligible exists at the time the application is filed.” (Emphasis added).  The corrective amendment to Pennsylvania Code § 137b.24 now properly reflects the official text published in 31 Pa.B. 1701.

The corrective amendment to Pennsylvania Code § 137b.24 became effective upon the August 22, 2015 publication in the Pennsylvania Bulletin.