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.