PROPOSED RULEMAKING
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 138e]
Agricultural Conservation Easement Purchase Program
[27 Pa.B. 3751] The Department of Agriculture (Department), Bureau of Farmland Protection, proposes to amend Chapter 138e (relating to agricultural conservation easement purchase program).
The proposed amendments are offered under authority of section 15 of the Agricultural Area Security Law (act)(3 P. S. § 915), which requires the Department to promulgate regulations necessary for the efficient, uniform and Statewide enforcement of the act. That same section of the act allows for the use of ''interim guidelines'' by the Department until no later than December 31, 1997, by which time the Department is to have regulations in place to supplant the interim guidelines.
The interim guidelines permitted under section 15 of the act were published at 25 Pa.B. 5253 (November 25, 1995) as the ''Interim Guidelines for Implementation of the Agricultural Area Security Law'' (Interim Guidelines), and have been used by the Department to effectively implement various provisions of the act with respect to which there were no attendant regulations or with respect to which regulations had been rendered inadequate as a result of statutory amendment.
The proposed amendments are intended to accomplish two objectives: 1) supplant the various provisions of the Interim Guidelines with identical regulatory provisions; and 2) accomplish an updating and streamlining of the regulations to reflect changes in the act and the experience of the Department in administering the Agricultural Conservation Easement Purchase Program to date.
Overview of Major Provisions
An overview of some of the major provisions of the proposed amendments follows:
Proposed § 138e.3 (relating to definitions) includes virtually all of the definitions used in the Interim Guidelines, and refines current definitions.
Proposed § 138e.15 (relating to farmland ranking system) restates the system set forth in the Interim Guidelines, under which a county agricultural conservation easement purchase program (county program) evaluates and assigns a numerical ranking to prospective agricultural conservation easement purchases based upon factors which relate to the considerations for easement purchase set forth in section 14.1(d)(1)(i)--(iv) of the act (3 P. S. § 914.1(d)(1)(i)--(iv)). This system was developed and approved by the State Agricultural Land Preservation Board (State Board), in consultation with county program administrators.
Proposed §§ 138e.44 and 138e.92(c) (relating to periodic recertification of county programs; and review and decision), respectively, describe the county program review requirements and the consequences of failing to comply with these requirements, which were added to section 14.1(b)(4) of the act by the act of November 23, 1994 (P. L. 621, No. 96).
Proposed § 138e.63 (relating to order of appraisal) requires a county program to select farmland tracts for appraisal in descending order of farmland ranking score. This is intended to cause a county program to focus its appraisal efforts on those farmland tracts that are the most worthy subjects of agricultural conservation easement.
Proposed § 138e.64 (relating to appraisal) requires appraisals be performed in accordance with the Uniform Standards of Professional Appraisal Practice, published by the Appraisal Standards Board of the Appraisal Foundation. These are the standards to which State-certified general real estate appraisers are required to adhere under 49 Pa. Code § 36.51 (relating to Uniform Standards of Professional Appraisal Practice). Other provisions of this section are revised for the purposes of establishing Statewide uniformity in appraisals and ensuring that appraisals of prospective agricultural conservation easement purchases accurately reflect the value of the easement.
Proposed § 138e.66 (relating to offer of purchase by county board) allows a county board to bypass a farmland tract with a relatively higher farmland ranking score in favor of making an offer to purchase an agricultural conservation easement on a farmland tract with a relatively lower farmland ranking score if the the circumstances under which this would be done are in the county program itself, or if the decision to bypass the higher-ranked farmland is based upon the availability of funds.
Proposed § 138e.70 (relating to notification of owners of land adjoining proposed easement purchases) formalizes a notification procedure that was implemented by the Department and county programs as a result of the Commonwealth Court's decision in Lenzi v. Agricultural Land Preservation Board, 602 A.2d 396 (Pa. Cmwlth. 1992).
Proposed § 138e.102 (relating to allocation of funds to counties) reflects the current requirement of the act that allocated funds be available to an eligible county for 2 consecutive county fiscal years.
Proposed § 138e.104 (relating to installment sales) clarifies the installment sales procedures permitted under section 14.1(h)(11) of the act.
Proposed § 138e.224 (relating to construction of one additional residential structure) is restated verbatim from the Interim Guidelines. As was the case with all of the provisions of the Interim Guidelines, this language was developed by the State Board, in consultation with county program directors.
Proposed § 138e.226 (relating to procedure for review of request to subdivide restricted land) expands upon the procedure described in section 14.1(i)(2) of the act.
Statement of Need
The amendments are needed for the Department to comply with the statutory requirement that it supplant the Interim Guidelines with regulations by December 31, 1997, to update its regulatory authority to reflect changes to the act and to further the efficient, uniform and Statewide administration of the act.
Fiscal Impact
Commonwealth The proposed amendments would impose no costs and have no fiscal impact upon the Commonwealth.
Political Subdivisions The proposed amendments would impose no costs and have no fiscal impact upon political subdivisions.
Private Sector
The proposed amendments would impose no costs and have no fiscal impact upon the private sector.
General Public
The proposed amendments would impose no costs and have no fiscal impact upon the general public.
Paperwork Requirements
The proposed amendments would not result in an appreciable increase in paperwork.
Regulatory Review
The Department submitted a copy of the proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs on July 16, 1997, in accordance with section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)). The Department also provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1982-2. A copy of this material is available to the public upon request.
If IRRC has an objection to any portion of the proposed amendments, it must notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act sets forth detailed procedures for review of these objections by the Department, the General Assembly and the Governor prior to final publication of the proposed amendments.
Contact Person
All interested persons are invited to submit written comments regarding the proposed amendments within 30 days of publication in the Pennsylvania Bulletin. Comments are to be submitted to the Department of Agriculture, Bureau of Farmland Protection, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: Raymond C. Pickering, Director.
Effective Date
The proposed amendments will become effective upon final adoption.
SAMUEL E. HAYES,
Secretary(Editor's Note: The Department is proposing to delete the current version of Chapter 138e, §§ 138e.1--138e.3, 138e.11--138e.20, 138e.41--138e.43, 138e.61--138e.69, 138e.91, 138e.92, 138.101--138e.103, 138e.201--138e.206, 138e.221--138e.226 and 138e.241 as they currently appear in the Pennsylvania Code at the pages 138e-1--138e-42 (serial pps. (202897)--(202938) and replace it with the version which appears in Annex A.)
Fiscal Note: 2-97. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART V-C. FARMLAND AND FOREST LAND
CHAPTER 138e. AGRICULTURAL CONSERVATION EASEMENT PURCHASE PROGRAM GENERAL
Sec.
138e.1. Purpose. 138e.2. Eligibility. 138e.3. Definitions. REQUIREMENTS FOR CERTIFICATION OF COUNTY PROGRAM
138e.11. General requirements. 138e.12. Authorization of program by county governing body. 138e.13. County board; membership; occupations. 138e.14. County statement of purpose. 138e.15. Farmland ranking system. 138e.16. Minimum criteria for applications. 138e.17. Planning and development map. 138e.18. Schedule for submission of applications. 138e.19. Purchasing procedures. 138e.20. Public information. 138e.21. Inspection and enforcement of an easement. STATE BOARD REVIEW OF COUNTY PROGRAM
138e.41. Application for review of county program. 138e.42. Review, certification and approval of a county program. 138e.43. Revision of county program. 138e.44. Periodic recertification of county programs. PROCEDURE FOR PURCHASING AN EASEMENT
138e.61. Application. 138e.62. Evaluation of application. 138e.63. Order of appraisal. 138e.64. Appraisal. 138e.65. Easement value and purchase price. 138e.66. Offer of purchase by county board. 138e.67. Requirements of the agricultural conservation easement deed. 138e.68. Title insurance. 138e.69. Statement of costs. 138e.70. Summary report. 138e.71. Notification of owners of land adjoining proposed easement purchase. STATE BOARD REVIEW OF A PURCHASE RECOMMENDATION
138e.91. Application for review. 138e.92. Review and decision. ALLOCATION OF FUNDS
138e.101. Annual easement purchase threshold. 138e.102. Allocation of funds to counties. 138e.103. Expenditure of matching funds. 138e.104. Installment sales. PROCEDURES FOR MONITORING, INSPECTING AND ENFORCING AN EASEMENT
138e.201. Responsibility. 138e.202. Inspections. 138e.203. Annual report. 138e.204. Enforcement. 138e.205. Notification to owner. 138e.206. Enforcement actions. 138e.207. County board's duties with respect to change of ownership. RESPONSIBILITY OF OWNER
138e.221. Permitted acts. 138e.222. Conservation plan. 138e.223. Construction of buildings; changes in use. 138e.224. Construction of one additional residential structure. 138e.225. Subdivision of restricted land. 138e.226. Procedure for review of request to subdivide restricted land. 138e.227. Landowner's duties with respect to change in ownership. DEED OF AGRICULTURAL CONSERVATION EASEMENT
138e.241. Deed clauses.
GENERAL § 138e.1. Purpose.
(a) It is the policy of the Commonwealth to conserve and protect agricultural lands. A sound, Statewide farmland preservation program will assure that farmers in this Commonwealth have sufficient agricultural lands to provide farm products for the people of this Commonwealth and the Nation.
(b) Agricultural conservation easements restrict and limit the conversion of farmland to nonagricultural use. Easements may be purchased when they are offered voluntarily by the landowner and shall be purchased only in perpetuity.
§ 138e.2. Eligibility.
Only a county board that has a county program is eligible to submit recommendations for the purchase of easements to the State Board.
§ 138e.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Agricultural Area Security Law (3 P. S. §§ 901--915).
Agreement or agreement of sale--A document executed by a landowner and the county board to purchase a specific agricultural conservation easement as part of the county board's recommendation for purchase, and that includes all of the materials referenced and incorporated into the agreement, in accordance with section 14.1(h)(8.2) of the act (3 P. S. § 914.1(h)(8.2)).
Agricultural conservation easement or easement--An interest in land, less than fee simple, which interest represents the right to prevent the development or improvement of the land for a purpose other than agricultural production. The easement may be granted by the owner of the fee simple to a third party or to the Commonwealth, to a county governing body or to a unit of local government. It shall be granted in perpetuity, as the equivalent of covenants running with the land. The exercise or failure to exercise any right granted by the easement will not be deemed to be management or control of activities at the site for purposes of enforcement of the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
Agricultural production--The production for commercial purposes of crops, livestock and livestock products, including the processing or retail marketing of the crops, livestock or livestock products if more than 50% of the processed or merchandised products are produced by the farm operator.
Agricultural value--The sum of the following:
(i) The farmland value determined by the applicant's appraisal.
(ii) One-half of the difference between the farmland value determined by the State or county board's appraiser and the farmland value determined by the applicant's appraiser if the farmland value determined by the State or county board's appraiser exceeds the farmland value determined by the applicant's appraiser.
Allocation--The State Board's designation of funds to eligible counties under section 14.1 of the act. An allocation is an accounting procedure only and does not involve certifying, reserving, encumbering, transferring or paying funds to eligible counties.
Annual easement purchase threshold--An amount annually determined by the State Board which equals at least $10 million to be allocated among eligible counties.
Applicant--A person offering to sell an easement on a farmland tract.
Appropriation--The irrevocable commitment of a specific amount of money by the county governing body exclusively for the purchase of easements.
Comparable sales--Market sales of similar land. In locating comparable sales, first priority will be given to farms within the same municipality as the subject land. The second priority will be farms located within other municipalities in the same county as the subject land. The lowest priority will be given to farms located outside the same county as the subject land.
Conservation plan--A plan describing land management practices, including an installation schedule and maintenance program and a nutrient management component, which when completely implemented, will improve and maintain the soil, water and related plant and animal resources of the land.
Contiguous acreage--All portions of one operational unit as described in the deed whether or not the portions are divided by streams, public roads, bridges, and whether or not described as multiple tax parcels, tracts, purparts or other property identifiers. The term includes supportive lands such as unpaved field access roads, drainage areas, border strips, hedgerows, submerged lands, marshes, ponds and streams.
Contract of sale--A legally enforceable agreement in a form provided by the State Board obligating the landowner to sell, and the Commonwealth or a county, or both, to purchase an agricultural conservation easement on a specific farmland tract.
County board--The county agricultural land preservation board as appointed by the county governing body under the act.
County fiscal year--The period running from January 1 through December 31 of a particular calendar year.
County governing body--The county board of commissioners or, under home rule charters, another designated council of representatives.
County matching funds--Money appropriated by the county governing body for the purchase of easements.
County program--A county agricultural land preservation program for the purchase of easements authorized and approved by the county governing body, and approved by the State Board under section 14.1(a)(3)(xi) and (xiv) of the act.
Crops, livestock and livestock products--The term includes:
(i) Field crops, including corn, wheat, oats, rye, barley, hay, potatoes and dry beans.
(ii) Fruits, including apples, peaches, grapes, cherries and berries.
(iii) Vegetables, including tomatoes, snap beans, cabbage, carrots, beets, onions and mushrooms.
(iv) Horticultural specialties, including nursery stock ornamental shrubs, ornamental trees and flowers.
(v) Livestock and livestock products, including cattle, sheep, hogs, goats, horses, poultry, furbearing animals, milk, eggs and furs.
(vi) Timber, wood and other wood products derived from trees.
(vii) Aquatic plants and animals and their by-products.
Crops unique to the area--The term includes crops which historically have been grown or have been grown within the last 5 years in the region, and which are used for agricultural production in the region. For example, orchard or vineyard crops that have historically been produced in a particular county might be considered crops unique to the area.
Curtilage--The area surrounding a residential structure used for a yard, driveway, onlot sewerage system or other nonagricultural purposes.
Department--The Department of Agriculture of the Commonwealth.
Easement value--The difference between the nonagricultural value and agricultural value of a farm. If solely the county or State appraisal is used, nonagricultural value and agricultural value are equal to market value and farmland value, respectively. If the landowner obtains an independent appraisal, nonagricultural value and agricultural value shall be calculated according to section 14.1(f) of the act.
Economic viability of farmland for agricultural production--The capability of a particular tract of restricted land, other than a tract of 2 acres or less upon which construction and use of the landowner's principal residence or housing for seasonal or full-time farm employes is permitted under section 14.1(c)(6)(iv) of the act, to meet the criteria in § 138e.16(a) (relating to minimum criteria for applications).
Eligible counties--Counties whose county programs have been approved by the State Board. For the purpose of annual allocations, an eligible county shall have its county program approved by the State Board by January 1 of the year in which the annual allocation is made. Counties of the first class are not eligible.
Encumber--The reservation by the Commonwealth or a county of previously-allocated funds to pay all or part of the costs of purchasing a specific easement under a specific agreement of sale.
Farm--Land in this Commonwealth which is being used for agricultural production as defined in the act.
Farmland tract--Land constituting all or part of a farm with respect to which an easement purchase is proposed. A farmland tract may consist of multiple tracts of land that are identifiable by separate tax parcel numbers, separate deeds or other methods of property identification.
Farmland value--The price as of the valuation date for property used for normal farming operations which a willing and informed seller who is not obligated to sell would accept for the property, and which a willing and informed buyer who is not obligated to buy would pay for the property.
Fund--The Agricultural Conservation Easement Purchase Fund established by section 7.2 of the act of June 15, 1982 (P. L. 549, No. 159) (3 P. S. § 1207.2).
Grant funds--Funds allocated to a county by the State Board under section 14.1(h)(2) and (5)(ii) of the act, the expenditure of which is not contingent upon the appropriation and expenditure of county matching funds.
Grantee--The person or entity to whom an easement is conveyed under the act.
Grazing or pasture land--Land, other than land enrolled in the USDA Conservation Reserve Program, used primarily for the growing of grasses and legumes which are consumed by livestock in the field and at least 90% of which is clear of trees, shrubs, vines or other woody growth not consumed by livestock.
Harm the economic viability of the farmland for agricultural production--To cause a particular tract of restricted land to fail to meet the criteria in § 138e.16(a) or to create, through subdivision, a tract of restricted land, other than a tract of 2 acres or less upon which construction and use of the landowner's principal residence or housing for seasonal or full-time farm employes is permitted under section 14.1(c)(6)(iv) of the act, that would fail to meet the criteria in § 138e.16(a).
Harvested cropland--Land, other than land enrolled in the USDA Conservation Reserve Program, used for the commercial production of field crops, fruit crops, vegetables and horticultural specialties, such as Christmas trees, flowers, nursery stock, ornamentals, greenhouse products and sod. The term does not include land devoted to production of timber and wood products.
Immediate family member--A brother, sister, son, daughter, stepson, stepdaughter, grandson, granddaughter, father or mother of the landowner.
LCC--Land capability class--A group of soils designated by either the county soil survey, as published by USDA-NRCS in cooperation with the Pennsylvania State University and the Department, or the Soil and Water Conservation Technical Guide maintained and updated by USDA- NRCS.
Land development--One of the following activities:
(i) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving a group of two or more residential buildings, whether proposed initially or cumulatively.
(ii) A subdivision of land.
Land which has been devoted primarily to agricultural use--Acreage which is a part of restricted land and is harvested cropland, grazing or pasture land, land used for the production of timber and wood products, land containing nonresidential structures used for agricultural production, or other acreage immediately available for agricultural production, and which excludes any acreage upon which immediate agricultural production is impracticable due to residential structures and their curtilages, wetlands, soil quality, topography or other natural or manmade features, and which further excludes any tract of 2 acres or less designated as the site upon which the landowner's principal residence or housing for seasonal or full-time employes is permitted under section 14.1(c)(6)(iv) of the act.
Landowner--The person holding legal title to a particular farmland tract.
Market value--The price as of the valuation date for the highest and best use of the property which a willing and informed seller who is not obligated to sell would accept for the property, and which a willing and informed buyer who is not obligated to buy would pay for the property.
Nonagricultural value--The sum of the following:
(i) The market value determined by the State or county board's appraiser.
(ii) One-half of the difference between the market value determined by the applicant's appraiser and the market value determined by the State or county board's appraiser, if the market value determined by the applicant's appraiser exceeds the market value determined by the State or county board's appraiser.
Nonprofit land conservation organization--A nonprofit organization dedicated to land conservation purposes recognized by the Internal Revenue Service as a tax-exempt organization under the Internal Revenue Code (26 U.S.C.A. §§ 1--7872).
Normal farming operations--The customary and generally accepted activities, practices and procedures that farmers adopt, use or engage in year after year in the production and preparation for market of crops, livestock and livestock products and in the production and harvesting of agricultural, agronomic, horticultural, silvicultural, and aquacultural crops and commodities. The term includes the storage and utilization of agricultural and food processing wastes for animal feed and the disposal of manure, other agricultural waste and food processing waste on land where the materials will improve the condition of the soil or the growth of crops or will aid in the restoration of the land for the same purposes.
Nutrient management plan--A written site-specific plan which incorporates best management practices to manage the use of plant nutrients for crop production and water quality protection consistent with the criteria established in the Nutrient Management Act (3 P. S. §§ 1701--1718).
Pennsylvania Municipalities Planning Code--53 P. S. §§ 10101--11201.
Person--A corporation, partnership, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person.
Restricted land--Land which is subject to the terms of an agricultural conservation easement acquired under the act.
Secretary--The Secretary of the Department.
Soils available for agricultural production--Soils on land that is harvested cropland, pasture or grazing land, or land upon which no structure, easement, roadway, curtilage or natural or manmade feature would impede the use of that soil for agricultural production.
Soils report--A report which identifies and sets forth the amount of each land capability class found on a farmland tract.
State Board--The State Agricultural Land Preservation Board.
State matching funds--Funds allocated to a county by the State Board under section 14.1(h)(3), (4) or (5)(i) of the act, the expenditure of which is contingent upon the appropriation and expenditure of county matching funds.
State-certified general real estate appraiser--A person who holds a current general appraiser's certificate issued to him under the Real Estate Appraisers Certification Act (63 P. S. §§ 457.1--457.19).
Subdivision--The division or redivision of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines for the purpose, whether immediate or future, of lease, partition by the court for distribution to heirs or devisees, transfer of ownership or building or lot development.
Title report--A report prepared by a person authorized by the Insurance Department to engage in the sale of title insurance or an attorney setting forth the existence of any liens, restrictions or other encumbrances on a farmland tract. A title report does not include the title search, but must include the title binder or the title commitment, or both.
USDA--The United States Department of Agriculture.
USDA-NRCS--The Natural Resources Conservation Service of the USDA. This entity was formerly known as the Soil Conservation Service.
REQUIREMENTS FOR CERTIFICATION OF COUNTY PROGRAM § 138e.11. General requirements.
(a) A county program shall demonstrate that the county has fair, equitable, objective, nondiscriminatory procedures for determining easement purchase priorities.
(b) A county program shall contain written policies and procedures for determining easement purchase priorities and written procedures for purchasing easements. For example, a county program that would allow a farmland tract with a higher farmland ranking score (as described in § 138e.15 (relating to farmland ranking system)) to be bypassed in favor of making an offer to purchase an easement on a farmland tract with a relatively lower farmland ranking score shall set forth the priorities and procedures under which this determination is made.
(c) A county program shall address and meet the standards, criteria and requirements in §§ 138e.12--138e.21. A county program may propose additional standards, criteria and requirements for approval by the State Board. Additional provisions shall be designed to assure that selection of land for easement purchase is consistent with the purposes of the act.
§ 138e.12. Authorization of program by county governing body.
The county governing body shall submit to the State Board a certified copy of the resolution or other official action authorizing administration of the county program by the county board.
§ 138e.13. County board; membership; occupations.
(a) The county governing body shall submit to the State Board a list of the members of the county board which shall contain the following information concerning the composition of the county board:
(1) The name of each member.
(2) The address of each member.
(3) The occupation of each member.
(4) The length of the term of each member.
(5) The name of the chairperson.
(b) A county board shall be comprised of five, seven or nine members. Annually, the chairperson of the county governing body shall designate one member of the county board to act as chairperson of the county board. Members of the county board shall be appointed by the county governing body as follows:
(1) One less than the majority shall be active resident farmers of the county and shall serve initial terms of 3 years.
(2) One member shall be a current member of the governing body of a township or borough located within the county and shall serve an initial 2-year term.
(3) One member shall be a commercial, industrial or residential building contractor and shall serve an initial 1-year term.
(4) The remaining members shall be selected at the discretion of the county governing body and shall serve initial terms of 1 year.
(c) Upon expiration of the initial terms in subsection (b), the term of members shall be 3 years.
(d) Members of a county board shall comply with the act of October 4, 1978 (P. L. 883. No. 170) (65 P. S. §§ 401--413), known as the Public Official and Employee Ethics Law.
§ 138e.14. County statement of purpose.
The county program shall contain a statement which defines the purpose of the easement purchase program. It shall state the objectives of the program and include the following as the county program's purposes:
(1) To protect viable agricultural lands by acquiring agricultural conservation easements which prevent the development or improvement of the land for any purpose other than agricultural production.
(2) To encourage landowners to make a long-term commitment to agriculture by offering them financial incentives and security of land use.
(3) To protect normal farming operations in agricultural security areas from incompatible nonfarmland uses that may render farming impracticable.
(4) To protect normal farming operations from complaints of public nuisance against normal farming operations.
(5) To assure conservation of viable agricultural lands to protect the agricultural economy of this Commonwealth.
(6) To provide compensation to landowners in exchange for their relinquishment of the right to develop their private property.
(7) To maximize agricultural conservation easement purchase funds and protect the investment of taxpayers in agricultural conservation easements.
§ 138e.15. Farmland ranking system.
(a) System required. The county board shall adopt a farmland ranking system meeting the requirements of this section, for use in prioritizing applications for the appraisal of properties meeting the minimum criteria in § 138e.16 (relating to minimum criteria for applications). This farmland ranking system may include additional or substitute criteria as approved by the State Board.
(b) Review and approval of system. The county board shall set forth its farmland ranking system in its county program and submit the county program to the State Board for review and approval in accordance with the act.
(c) Land Evaluation and Site Assessment (LESA) system. The farmland ranking system shall evaluate tracts being considered for appraisal on a 100-point scale, using the two-part LESA system described in this section. The weighted Land Evaluation (LE) score shall be calculated in accordance with subsection (d). The weighted Site Assessment (SA) score shall be calculated in accordance with subsection (e). The total of the weighted LE and weighted SA scores equals the farmland ranking score. The county board shall establish in the county program the weighted values to be given the LE score and the SA score, as well as the weighted values to be given the three general categories--development potential (DP), farmland potential (FP) and clustering potential (CP)--of factors to be considered in calculating the SA score. The weighted values in the county program shall total 100%, and shall be within the following ranges:
Minimum Weighted Maximum Weighted Value Value Land Evaluation (LE) 40% 70% Site Assessment (SA) Development Potential 10% 40% Site Assessment Farmland Potential 10% 40% Site Assessment Clustering Potential 10% 40% A flow chart summarizing the farmland ranking system is set forth in Appendix A.
(d) LE.
(1) Source of soils data. A farmland ranking system shall designate either or both of the following as the source of the soils data used in LE:
(i) The county soil survey, as published by the USDA-NRCS in cooperation with the Pennsylvania State University and the Department.
(ii) The Soil and Water Conservation Technical Guide published and updated by the USDA-NRCS.
(2) Relative value of soil. The county program shall set forth a relative value for each soil mapping unit in the county. The relative value shall be on a 100-point-scale, with 100 points assigned to the best soils for agricultural production and all other soils assigned relative values of less than 100 points.
(3) Calculation of average relative value. The average relative value of the soils on a tract being considered for appraisal shall be calculated by multiplying the relative value of each soil mapping unit within the tract by the total acreage of the soil mapping unit within the tract, adding these products and then dividing that sum by the total acreage of the tract.
Example: A 60-acre tract has 10 acres within soil mapping units with relative values of 95, 20 acres within soil mapping units with relative values of 90 and 30 acres within soil mapping units with relative values of 80. The sum of the relative values is calculated as follows:
10 acres x 95 = 950 acres
20 acres x 90 = 1,800 acres
30 acres x 80 = 2,400 acres
Total 5,150 acres
The 5,150 acre sum is then divided by the total acreage of the tract (60 acres) to determine the average relative value:
5,150 acres divided by 60 acres = 85.83
In this example, the average relative value of the soils on the tract is 85.83.
(4) Calculation of weighted LE score. The weighted LE score of a tract being considered for appraisal shall be the product of the average relative value of the soils on the tract multiplied by the weighted value assigned to the LE score under the county program.
Example: The average relative value of the soils on the tract described in the example in paragraph (3) is 85.83. The county program assigns a weighted value to the LE score of 60% (.60) of the farmland ranking score. The weighted LE score for this tract would be 51.5, calculated as follows:
85.83 x .60 = 51.5
(e) SA.
(1) General categories of factors. The county program shall require the evaluation of three general categories of factors in determining the SA score, and shall specify the individual factors to be considered under each of these general categories. These categories are as follows:
(i) DP factors. Factors that identify the extent to which development pressures are likely to cause conversion of agricultural land to nonagricultural uses.
(ii) FP factors. Factors that measure the potential agricultural productivity and farmland stewardship practiced on a tract.
(iii) CP factors. Factors that emphasize the importance of preserving blocks of farmland to support commercial agriculture and help to shield the agricultural community from conflicts with incompatible land uses.
(2) Scoring scale. The county program shall require that each of the three general categories of factors described in paragraph (1) ranks tracts on a 100-point scale. The total combined maximum score under these categories shall be 300 points.
(3) DP factors.
(i) Number. The county program shall specify no less than 3 and no more than 10 factors to be considered in scoring the DP of a tract being evaluated for appraisal. Three of these factors shall be the factors described in subparagraphs (ii)--(iv), unless substitute factors are approved by the State Board in accordance with subparagraph (v).
(ii) Required factor: availability of sanitary sewer and public water. The county program shall require that the availability of sanitary sewer and public water to a tract be considered in scoring its DP. A farmland tract is more likely to be surrounded by incompatible land uses or be converted to nonagricultural use if it is in an area which is suitable for onlot sewage disposal or if it is in an area which has access to public sewer and water service or is expected to have access to the service within 20 years. The tract shall receive a relatively higher score than a tract that does not have sanitary sewer and public water.
(iii) Required factor: road frontage. The county program shall require that the public road frontage of a tract be considered in scoring DP. Frontage on public roads increases the suitability of a tract for subdivision or development, and is a measure of the capability of a tract to be developed or improved for nonagricultural use. A tract with extensive road frontage shall receive a relatively higher score than a tract with less public road frontage.
(iv) Required factor: extent of nonagricultural use in area. The county program shall require that the extent of nonagricultural use adjoining or in the area of a tract be considered in scoring DP. Consideration shall be given to whether adjacent land uses affect normal farming operations and whether surrounding, but not necessarily adjoining, land uses affect the ability of the landowner to conduct normal farming operations on the tract, or whether the impacts are likely to occur within the next 20 years. Urban uses are generally considered incompatible with agricultural uses. A tract with extensive nonagricultural uses in the area shall receive a relatively higher score than a tract that is more distant from the nonagricultural uses.
Example: A county program may require that the percentage of adjacent land in nonagricultural use or the distance to urban centers or growth areas, or both, be considered in scoring DP.
(v) Substitute or additional factors. Subparagraphs (ii)--(iv) notwithstanding, a county program may set forth substitute or additional factors to be considered in scoring development potential, if the factors are reviewed and approved by the State Board.
(vi) Weight of individual factors. The county board shall establish and set forth in its county program the number of points that may be awarded under any individual factor in scoring DP. The number of points may vary from factor to factor.
(4) FP factors.
(i) Number. The county program shall specify no less than 4 and no more than 10 factors to be considered in scoring the FP of a tract being evaluated for appraisal. Four of these factors shall be the factors described in subparagraphs (ii)--(v), unless substitute factors are approved by the State Board in accordance with subparagraph (vi).
(ii) Required factor. Percentage of certain types of land. The county program shall require that the percentage of harvested cropland, pasture and grazing land on a tract be considered in scoring FP. Large amounts of productive farmland--harvested cropland, pasture and grazing land--make a farm more viable. If a large percentage of a tract is not used as productive farmland, the tract should receive a lower farmland potential score.
(iii) Required factor: stewardship of land. The county program shall require that the stewardship of the land and the use of conservation practices and land management practices be considered in scoring the FP of a tract. A score will not be awarded under this factor unless sound soil and water conservation practices are in place with respect to at least 50% of the tract. The implementation of soil erosion control, sedimentation control, nutrient management and other practices demonstrating good stewardship of the tract shall be considered under this factor.
(iv) Required factor: size of tract on application. The county program shall require that the size of a tract described in the easement purchase application be considered in scoring the FP of the tract. A farm tract at or above the optimum acreage in the county should be assigned a relatively higher value than a tract having less than the optimum acreage.
(v) Required factor: historic, scenic and environmental qualities. The county program shall require that the designation or listing of a tract by local/State/Federal authorities as an historically or culturally significant location, or a scenic area or open space be considered in scoring the FP of a tract. Tracts adjoining designated protected areas such as flood plains, wildlife habitat, parks, forests and educational sites shall also be considered under this factor. The county program shall specify whether a tract shall receive a relatively higher or relatively lower score based upon its historic, scenic or environmental qualities.
(vi) Substitute or additional factors. Subparagraphs (ii)--(v) notwithstanding, a county program may set forth substitute or additional factors to be considered in scoring FP, if the factors are reviewed and approved by the State Board. The additional factors may include a factor that awards points based upon the landowner's offer to sell the easement at a reduced price.
(vii) Weight of individual factors. The county board shall establish and set forth in its county program the number of points that may be awarded under any individual factor in scoring FP. The number of points may vary from factor to factor.
(5) CP factors.
(i) Number. The county program shall specify no less than 3 and no more than 10 factors to be considered in scoring the CP of a tract being evaluated for appraisal. Three of these factors shall be the factors described in subparagraphs (ii)--(iv), unless substitute factors are approved by the State Board in accordance with subparagraph (v).
(ii) Required factor: consistency with planning map. The county program shall require that the location of a tract with respect to those areas of the county identified as important agricultural areas of the county in the planning map described in § 138e.17 (relating to planning and development map) be considered in scoring the CP of the tract. A tract that is within an identified important agricultural area shall receive a higher score than tracts that are distant from these areas. Tracts located within the designated areas are more viable for agricultural use; and are more likely to be compatible with county and local comprehensive plans.
(iii) Required factor: proximity to restricted land. The county program shall require that the proximity of a tract to land already under agricultural conservation easement, whether held by a county, the State, jointly by the county and State, or by a nonprofit land conservation organization, be considered in scoring the CP of the tract. A tract that is close to the restricted land shall receive a higher score than tracts that are more distant from the restricted land. Clustering easement purchases will develop a mass of farmland which supports commercial agriculture and reduces conflicts with incompatible land uses.
(iv) Required factor: percentage of adjoining land in an agricultural security area. The county program shall require that the percentage of a tract's boundary that adjoins land in an agricultural security area be considered in scoring the CP of the tract. The higher the percentage, the higher the score shall be. Areas where agriculture has been given protection by the municipality, at the request of the landowners, provides an environment conducive to farming.
(v) Substitute or additional factors. Subparagraphs (ii)--(iv) notwithstanding, a county program may set forth substitute or additional factors to be considered in scoring clustering potential, if the factors are reviewed and approved by the State Board. The additional factors may include a factor that awards points for the establishment of new clustering areas.
(vi) Weight of individual factors. The county board shall establish and set forth in its county program the number of points that may be awarded under any individual factor in scoring CP. The number of points may vary from factor to factor.
(6) Calculation of weighted SA score. The SA score of a tract being considered for appraisal shall be calculated as follows: the product of the DP score multiplied by the weighted value for that category is the weighted DP score. The product of the FP score multiplied by the weighted value for that category is the weighted FP score. The product of the CP score multiplied by the weighted value for that category is the weighted CP score. The sum of these three weighted scores is the weighted SA score.
Example: A county program assigns weighted values of 10% to DP, 20% to FP and 30% to CP. The DP, FP and CP scores for a particular tract are 92, 85 and 80, respectively. The weighted DP score equals the DP score (92) multiplied by its weighted value (10%): 9.2. The weighted FP score equals the FP score (85) multiplied by its weighted value (20%): 17. The weighted CP score equals the CP score (80) multiplied by its weighted value (30%): 24. The weighted SA score is the sum of these three weighted scores (9.2 + 17 + 24): 50.2.(f) Calculation of farmland ranking score. The sum of the weighted LE score and the weighted SA score equals the farmland ranking score.
(g) Use of farmland ranking score. The farmland ranking score shall determine the order in which tracts are selected by the county board for appraisal. Selection for appraisal shall be made in descending order of farmland ranking score.
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