[27 Pa.B. 3751]
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STATE BOARD REVIEW OF A PURCHASE RECOMMENDATION § 138e.91. Application for review.
Application for State Board review of a proposed purchase of an easement is made by submitting the following documents to the Director, Bureau of Farmland Protection, Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408:
(1) Twenty-two copies of the summary report prepared in accordance with § 138e.70 (relating to summary report), including the following items:
(i) A cover letter from the county (optional).
(ii) A narrative summary report.
(iii) A legible United States Geological Survey (USGS) topographical map showing the subject property location and boundaries, location of neighboring easements, and exclusions withheld from the subject property.
(iv) The Soil Report Form C (a form provided by the Department), both pages. See Appendix B (relating to Form C Soils Report).
(v) The list of soil mapping unit names, symbols and land capability classes on the subject property.
(vi) A legible, uncolored soil map of the subject property.
(vii) A tax map showing the subject property location and boundaries, exclusions withheld from the subject property, utility rights-of-way and access road rights-of-way.
(viii) A summary table showing the individual farmland ranking scores by category for applications selected for county appraisal, including an indication of the easement purchase status of higher-ranking applicants.
(ix) A copy of Exhibit B, from the agreement of sale, modified to include interest, total acres and per acre easement cost.
(x) Twenty-two copies submitted shall be individually collated and three-hole punched, but not stapled.
(2) The appraisal reports.
(3) The signed agreement of sale, including the proposed legal description, a statement of cost, the proposed deed of agricultural conservation easement, a contractor integrity clause and a nondiscrimination clause.
(4) The title insurance report or commitment.
(5) A letter certifying that the adjoining landowners were provided with notice and opportunity to be heard in a manner consistent with administrative agency law with respect to the proposed easement purchase, including one copy of the notification letter required under § 138e.71 (relating to notification of owners of land adjoining proposed easement purchase) and a list of the adjoining landowners.
(6) A completed and signed IRS Form W-9, Request for Taxpayer Identification Number and Certification for individual grantors.
(7) A letter from the grantors stating the percent of ownership of each grantor for the purpose of issuing IRS Form 1099.
(8) A copy of the approved soil conservation plan that is required to be in place with respect to the land under § 138e.241(2) (relating to deed clauses).
(9) A copy of the nutrient management plan that has been developed, certified, reviewed and approved in accordance with the Nutrient Management Act (3 P. S. §§ 1701--1718), if the nutrient management plan is required under the Nutrient Management Act for any portion of the property that is the subject of the application.
§ 138e.92. Review and decision.
(a) The State Board will acknowledge receipt of the application for review. The State Board will notify the county board if the application is incomplete or incorrect and request that additional necessary clarification, information or documentation be supplied.
(b) Within 60 days of receipt of a complete application for review, the State Board may approve, disapprove or table the purchase. The State Board may delay its action on a complete application beyond this 60-day deadline if one or more of the conditions excusing the delay, as set forth in section 14.1(e)(2) of the act (3 P. S. § 914.1(e)(2)), occur. If State Board action is delayed as a result of any of these conditions, the 60-day period shall be extended until applicable issues set forth in § 14.1(e)(2) of the act are resolved to the satisfaction of the State Board, whereupon the State Board will act on the recommendation of the county board at its next scheduled meeting.
(1) If the application is approved, the State Board will execute the agreement of sale.
(2) If the application is disapproved or tabled, the State Board will notify the county board in writing of the reasons for disapproval or tabling. The State Board shall mail this written notification within 10 days of the disapproval or tabling. If the application has been disapproved, the county board may resubmit the application if the purchase recommendation has been revised to address the State Board's reasons for disapproval. The resubmittal shall be treated as a new application.
(3) The county board may withdraw its application from the State Board prior to action by the State Board. The county board may resubmit the application for consideration. The resubmittal will be treated as a new application.
(4) Failure of the State Board to act on an application within 60 days of its receipt constitutes approval by the State Board.
(c) Following the end of each 7-year period within which recertification of a county program is required under section 14.1(b)(4) of the act, the State Board will not approve a county board's recommendation to purchase until the county program has been approved for recertification in accordance with that section and the procedure described in § 138e.44 (relating to periodic recertification of county programs). The State Board may postpone the deadline for recertification of any county's program by up to 12 months and, during the period of postponement, may approve a county board's recommendation to purchase.
(d) A decision of the State Board to disapprove a purchase shall be an adjudication subject to 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law). The owner of the farmland tract proposed for easement purchase or the county board may appeal a decision of the State Board to disapprove the purchase of an easement. An appeal shall be made to the Secretary and shall be filed in writing within 30 days of the State Board's action. An appeal from the decision of the State Board shall be governed by 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
ALLOCATION OF FUNDS § 138e.101. Annual easement purchase threshold.
(a) On or before March 1 of each year in which money is available from the Fund, the State Board will meet and determine the annual easement purchase threshold for the current county fiscal year.
(b) The annual easement purchase threshold shall be at least $10 million, unless the total amount available in the Fund is less than $10 million, in which case the annual easement purchase threshold shall be the total amount available in the Fund.
§ 138e.102. Allocation of funds to counties.
(a) On or before March 1 of each year in which money is available from the Fund, the State Board shall determine and announce an allocation of grant funds and State matching funds to eligible counties
(b) An allocation of grant funds shall be made to all eligible counties.
(c) Grant funds allocated to an eligible county will be available to be expended or encumbered for easement purchases for 2 consecutive county fiscal years, commencing with the county fiscal year within which the allocation is made.
(d) A county that wishes to participate in the allocation of State matching funds shall:
(1) Appropriate county matching funds to be used exclusively for the purchase of easements.
(2) Submit to the State Board a certified copy of the resolution or other action of the county governing body appropriating county matching funds to be used exclusively for the purchase of easements.
(i) The certified resolution or other action shall be executed by the chief fiscal officer of the county and an authorized official of the county governing body.
(ii) The certified resolution or other action shall be in a form provided by the State Board.
(iii) The certified resolution or other action shall be received by the State Board by January 31 to be considered for an allocation of State matching funds for the year.
(iv) County matching fund appropriations shall be available for the same 2-consecutive-county-fiscal-year period during which grant funds allocated under subsection (c) are available to be expended or encumbered.
(e) State matching funds allocated to an eligible county will be available to be expended or encumbered for easement purchases if the expenditure or encumbrance occurs during the county fiscal year for which the allocation is initially made and for the following county fiscal year.
(f) Allocations will be made on an annual basis, concurrent with the calendar year beginning January 1.
(g) Funds allocated for easement purchases shall be expended or encumbered within the period in subsections (c) and (e). Funds shall be considered encumbered when the county board has submitted to the Department an application to purchase an easement on a specific farm for a specific amount of money expressed on a per acre basis or expressed as a total price based on the acreage contained in the deed of record. The application shall include all of the documents required by § 138e.91 (relating to application for review), except that multiple copies of the summary report and the final legal description are not required. Minor corrections may be made to the application as part of the review and comment process conducted by the Department without affecting the encumbrance of the funds.
(h) Grant funds that have not been expended or encumbered within the period specified in subsection (c) shall be restored to the Fund.
(i) State matching funds that have not been expended or encumbered within the period specified in subsection (e) shall be restored to the Fund.
§ 138e.103. Expenditure of matching funds.
(a) State matching funds may be expended in a county only upon the recommendation of the county board.
(b) A county board that recommends the expenditure of State matching funds for the purchase of a specific easement shall state the amount of county matching funds that will be used for the purchase of the easement.
(c) County matching funds shall be expended within the periods specified in § 138e.102(e) (relating to allocation of funds to counties).
(d) An easement purchased using solely county funds will be considered an expenditure of county matching funds under sections14.1(h)(3), (4) and (5)(i) of the act (3 P. S. §§ 914.1(h)(3), (4) and (5)(i)) if:
(1) The easement document recorded in the land records of the county in which the farmland tract is located contains the provisions in § 138e.241 (relating to deed clauses) and any more restrictive provisions required under the county program.
(2) Upon settlement of the purchase of an easement, the county board submits the following to the State Board:
(i) A copy of the signed deed of agricultural conservation easement.
(ii) A copy of the production report with respect to the farmland tract, if the report is required under § 138e.61(e) (relating to application).
(iii) A statement describing the nature and scope of compliance with the conservation plan for the farmland tract.
(iv) The date of approval of the conservation plan.
(e) An easement purchased using solely county funds shall be considered an expenditure of county matching funds unless the State Board notifies the county board in writing within 60 days of receipt of the documentation required by subsection (d)(2) that the purchase will not be considered an expenditure of county matching funds and the reasons for the determination.
(f) If the State Board notifies the county board that the purchase will not be considered an expenditure of county matching funds, the county board shall have 60 days to resubmit documentation. Upon resubmittal of documentation, the State Board shall determine whether the purchase meets the requirements of subsection (d). The county board shall be notified of the State Board's determination within 60 days of the resubmittal.
§ 138e.104. Installment sales.
(a) Options. Payment for an agricultural conservation easement may be made in a lump sum, in installments or in another lawful manner of payment.
(b) Installment sales with a payment period of 5 years or less. Installment sales in which the final payment for the easement purchase is to be made no longer than 5 years from the date the contract of sale is fully executed are subject to the following requirements:
(1) Purchases may be made in the name of the Commonwealth, an eligible county or jointly by the Commonwealth and an eligible county.
(2) The Department will provide the agreement of sale for purchases made in the name of the Commonwealth solely or jointly by the Commonwealth and an eligible county.
(3) The installment payment terms, including the dates of payments, payment amounts and interest rate on the outstanding balance shall be negotiated between the landowner and the county board.
(4) The interest rate to be paid on the outstanding balance shall be established by the county board and shall be stated in the agreement of sale.
(c) Installment sales with a payment period of more than 5 years. Installment sales in which the final payment for the easement purchase is to be made more than 5 years from the date the contract of sale is fully executed are subject to the following provisions:
(1) Purchases may be made in the name of the Commonwealth, an eligible county or jointly by the Commonwealth and an eligible county.
(2) Notwithstanding the requirement of § 138e.66(d) (relating to offer of purchase by county board), the county board may, subject to approval by the Department, provide the agreement of sale for purchases made under this subsection.
(3) The agreement of sale and the deed of easement shall meet the same requirements and be subject to the same conditions as set forth in § 138e.66(c) and § 138e.67 (relating to requirements of the agricultural conservation easement deed).
(4) The installment payment terms, including the dates of payments, payment amounts and interest rate on the outstanding balance shall be negotiated between the landowner and the county board.
(5) The interest rate paid on the outstanding balance will be established by the county board and shall be stated in the agreement of sale.
(6) The State's share of the easement purchase price, exclusive of interest, shall be transferred to the county board for deposit into an irrevocable escrow account or deposit in another manner provided by law.
(7) Transfer of the Commonwealth's share of the easement purchase price, exclusive of interest, according to the terms of this paragraph shall relieve the Commonwealth of any obligation to pay or assure the payment of the easement purchase price and interest.
PROCEDURES FOR MONITORING, INSPECTING AND ENFORCING AN EASEMENT § 138e.201. Responsibility.
(a) The county board shall have the primary responsibility for inspecting restricted land and enforcing an easement.
(b) The State Board or its designee will have the right to inspect restricted land and enforce an easement on its own behalf or in conjunction with the county board.
§ 138e.202. Inspections.
(a) The county board shall inspect all restricted land within the county at least annually to determine compliance with the applicable deed of easement. The first inspection shall be completed within 1 year of the date of easement sale.
(b) Written notice of an inspection to be conducted under subsection (a) shall be mailed by certified mail to the owner at least 10 days prior to the inspection.
(c) An inspection conducted under subsection (a) shall be performed between the hours of 8 a.m. and 5 p.m. on a weekday that is not a legal holiday recognized by the Commonwealth, or a date and time agreeable to the county and the landowner.
(d) Within 10 days of conducting an inspection under subsection (a), the county board shall prepare a written inspection report setting forth the following information:
(1) The identification of the land inspected.
(2) The name of the owner of the farmland at the time the easement was originally acquired and the name of the current owner of the land inspected.
(3) A description of modifications in the number, type, location or use of any structures on the land since the date of the filing of the deed of easement.
(4) A description of deviations from the conservation plan observed on the restricted land.
(5) A statement of whether the provisions of the deed of easement are being observed.
(e) A copy of the inspection report shall be mailed by certified mail to the owner.
(f) The county board and the State Board may inspect the restricted land, jointly or severally, without prior notice if it has reasonable cause to believe that any provision of the easement has been or is being violated.
§ 138e.203. Annual report.
The county board shall file with the State board a copy of inspection reports for inspections conducted during the prior year, and compile an annual report which summarizes the number of inspections, violations detected, violations resolved and the circumstances surrounding unresolved violations.
§ 138e.204. Enforcement.
(a) The county board shall enforce the terms of each easement purchased within the county under the act, whether it be a county, State or joint purchase.
(b) The State Board may enforce the terms of State or jointly purchased easements.
(c) The right of the State Board to enforce the terms of an easement may be exercised either jointly with the county board or by the State Board acting on its own behalf.
§ 138e.205. Notification to owner.
(a) Within 10 days of the discovery of a violation of the terms of an easement, the county board shall send written notice of the violation to the owner of the restricted land, the county governing body and the State Board.
(b) The written notice required by this section shall be sent by certified mail and shall set forth the following information:
(1) A copy of the inspection report.
(2) A copy of the deed of easement.
(3) A description of the action or condition which constitutes the alleged violation.
(4) A statement of the measures necessary to correct the alleged violation.
§ 138e.206. Enforcement actions.
(a) Sixty days after the mailing of a notice of violation under § 138e.205 (relating to notification to owner), the county board shall commence and prosecute an action in the court of common pleas of the county in which the restricted land is located seeking an order requiring correction of the violation, enjoining further violation of the terms of the easement, and other appropriate relief, unless the county board does one of the following:
(1) Determines with the State Board that the violation has been corrected.
(2) Completes the following requirements:
(i) Determines that the owner of the restricted land has commenced the necessary corrective measures, or determines that the necessary corrective measures cannot reasonably be completed within the 60-day period described in this subsection.
(ii) Established a period not to exceed 1 year within which the corrective measures shall be completed.
(b) The county board shall commence and prosecute the enforcement action described in subsection (a) if the violation is not corrected within the time established under subsection (a)(2)(ii).
(c) The owner of the restricted land shall bear the costs associated with the correction of a violation of the easement, including:
(1) Costs of work required and materials used to correct the violation.
(2) Administrative costs incurred by the county board and the State Board.
(3) Court costs and reasonable attorneys' fees incurred by the county board and the State Board in enforcing the easement.
(d) If the county board fails to institute and prosecute a timely enforcement action, the State Board may institute the action and recover costs incurred, including reasonable attorneys' fees, from the county board or the owner of the restricted land, or both.
§ 138e.207. County board's duties with respect to change of ownership.
(a) The county board is encouraged to provide the State Board with a copy of any proposed deed under which an ownership interest in restricted land is to be conveyed prior to execution of the deed. The county board shall provide the State Board with a copy of a deed conveying an ownership interest in restricted land no later than 20 days of learning of the change in ownership.
(b) As part of its enforcement responsibility, the county board shall ensure that a deed conveying an interest in the restricted land sets forth the language of the easement restrictions verbatim.
RESPONSIBILITY OF OWNER § 138e.221. Permitted acts.
During the term of the easement, the restricted land shall be used solely for agricultural production or other uses permitted by the act.
§ 138e.222. Conservation plan.
(a) To preserve the agricultural viability of the restricted land, the county board shall require, and the owner of the restricted land shall implement, a conservation plan approved by the county conservation district or the county board.
(b) In addition to the requirements established by the county conservation district or the county board, the conservation plan shall meet the definitional requirement of a conservation plan in § 138e.3 (relating to definitions) and also require that:
(1) The use of the land for agricultural production, such as growing sod, nursery stock, ornamental trees and shrubs does not remove excessive soil from the restricted land.
(2) The excavation of soil, sand, gravel, stone or other materials for use in agricultural production on the restricted land is conducted in a location and manner that preserves the economic viability of the restricted land for agricultural production.
(3) The mining of minerals is conducted only through the use of methods authorized in the act.
§ 138e.223. Construction of buildings; changes in use.
(a) New buildings or structures. The construction or use of a building or other structure on the restricted land other than a building or structure existing on the date of the granting of the easement is prohibited, except that:
(1) The erection of fences for agricultural production and protection of watercourses such as lakes, streams, springs and reservoirs is permitted.
(2) The construction of one additional residential structure is permitted under § 138e.224 (relating to construction of one additional residential structure).
(3) The construction or use of a building or other structure for agricultural production is permitted. The county program may restrict the maximum building coverage.
(4) The replacement of a residential structure existing on the restricted land on the date of the granting of the easement is permitted if the preexisting residential structure is razed or removed and the replacement residential structure is erected within the curtilage of the residential structure it replaces.
(b) Existing buildings or structures.
(1) A renovation or modification of an existing residential structure, or an addition to an existing residential structure, is permitted if it would not increase the curtilage of the residential structure.
(2) A renovation or modification of an existing agricultural building or structure, or an addition to an existing agricultural building or structure, is permitted. The county program may restrict the maximum building coverage.
§ 138e.224. Construction of one additional residential structure.
(a) General. In addition to the structures existing on the restricted land on the date of the granting of the easement, one additional residential structure may be constructed on the restricted land if the following apply:
(1) The residential structure is constructed and used as the landowner's principal residence or for the purpose of providing necessary housing for seasonal or full-time farm employes.
(2) No other residential structure has been constructed on the restricted land, under authority of section 14.1(c)(6)(iv) of the act (3 P. S. § 914.1(c)(6)(iv)) and this section, after the date of the granting of the easement.
(3) The residential structure and its curtilage occupy no more than 2 acres of the restricted land.
(b) Replacement of structures. The replacement of a residential structure constructed under authority of section 14.1(c)(6)(iv) of the act and this section is permitted.
(c) Reservation of right to construct after subdivision. If the restricted land is subdivided prior to the construction of a residential structure under authority of section 14.1(c)(6)(iv) of the act and this section, the landowner shall do the following:
(1) Inform the county board of the specific subdivided tract with respect to which the right to construct and use such a residential structure is reserved.
(2) Ensure that the deed to the subdivided tract with respect to which the right to construct and use the residential structure is reserved clearly sets forth the reservation of this right.
(3) Ensure that the deeds to the remaining subdivided tracts recite that no residential structure may be constructed on the remaining subdivided tracts.
§ 138e.225. Subdivision of restricted land.
(a) Authority to prohibit subdivision. A county program may prohibit the subdivision of restricted land if the landowner can accomplish the construction and use of a principal residence or housing for seasonal or full-time farm employes in accordance with section 14.1(c)(6)(iv) of the act (3 P. S. § 914.1(c)(6)(iv)), under the applicable subdivision and land development ordinance, by a land development other than subdivision.
(b) Discretion to allow subdivision. A county program may allow the subdivision of restricted land, and may place restrictions or conditions upon subdivision.
(c) Preservation of economic viability for agricultural production. Subsection (b) notwithstanding, a county program may not permit a subdivision which would harm the economic viability of the farmland for agricultural production.
(d) Prevention of conversion to nonagricultural use; exception. Subsection (b) notwithstanding, a county program may not permit a subdivision which would convert land which has been devoted primarily to agricultural use to another primary use except that, without regard to this requirement, a county program may permit one tract to be created by subdivision for the purpose of the construction of a principal residence for the landowner or an immediate family member.
(e) Notice to landowner. A county board shall do at least one of the following:
(1) File its county program, or that portion setting forth prohibitions or restrictions with respect to subdivision of restricted land, at the Office of Recorder of Deeds for that county, and reference the place of filing of these prohibitions or restrictions in the deed of agricultural conservation easement.
(2) Recite the prohibitions or restrictions with respect to subdivision verbatim in the deed of agricultural conservation easement.
§ 138e.226. Procedure for review of request to subdivide restricted land.
A landowner may obtain review of a request for approval to subdivide a tract of restricted land in accordance with the following procedure:
(1) The landowner shall submit an application to the county board, in a form and manner prescribed by the county board, requesting review and approval of the subdivision of a tract of restricted land.
(2) The county board shall note the date upon which the application is received.
(3) Upon receipt of the application, the county board shall forward written notice of the application to the county zoning office (if such an office exists), county planning office and county farmland preservation office. For purposes of this subsection, the offices listed in this paragraph shall be referred to as the ''reviewing agencies.''
(4) The county board shall note the date upon which each reviewing agency receives the written notice described in paragraph (3).
(5) Each reviewing agency shall have 60 days from receipt of the written notice described in paragraph (3) within which to review, comment and make recommendations on the proposed application to the county board. The county board may not consider comments and recommendations received beyond this deadline unless the landowner agrees in writing.
(6) The county board shall have 120 days from receipt of the application for approval to subdivide within which to review the application, review comments and recommendations submitted by the reviewing agencies and approve or reject the application. This 120-day deadline may be extended by the mutual agreement of the landowner and the reviewing agencies. If the county board fails to approve or reject an application within the 120-day deadline or an extension thereof, the application shall be deemed approved.
(7) If the application is rejected by the county board, the county board shall return the application and a written statement of the reasons for the rejection to the landowner. Within 30 days after receipt of the statement of rejection, the landowner may appeal the rejection in accordance with 2 Pa.C.S. Chapter 5, Subchapter B and Chapter 7, Subchapter B (relating to local agency law). action).
(8) If the application is approved by the county board, the county board shall promptly forward a copy of the application and the comments and recommendations of the reviewing agencies to the State Board for review and approval or disapproval.
(9) The State Board will provide the county board and the landowner with written notice of the date, time and location of the meeting at which the State Board will review and consider the approval or disapproval of the application. This notice will be forwarded by regular mail at least 14 days in advance of the State Board meeting.
(10) In its review of an application requesting approval of the subdivision of a tract of restricted land, the State Board will consider only whether the application complies with the conditions under which subdivisions are permitted by the county program.
(11) The State Board will provide both the county board and the landowner with written notice of its decision regarding the application for approval of the subdivision of a tract of restricted land. If the application is disapproved, the notice shall contain a statement of the reasons the application does not comply with the conditions under which subdivisions are permitted by the county program.
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