ACRE Briefing Paper

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Briefing Paper
Rendell Administration’s Proposal to Establish an Agricultural Review Board
With Legal Authority to Override Local Control

Prepared for State Representatives by
The Quality of Life and Local Control Caucus of Township Supervisors

Introduction:

On August 10, 2004, the Rendell Administration unveiled a new initiative – entitled “ACRE” (Agriculture, Communities, and Rural Environment). Part of that new initiative consists of a proposal to create an Agricultural Review Board composed of political appointees empowered to overturn local laws adopted by rural communities. That Board would be composed of the Dean of Penn State’s School of Agricultural Sciences, the Secretaries of the Department of Agriculture, Department of Environmental Protection, and the Department of Community and Economic Development (DCED); and a member appointed by the Governor. See “Rendell Administration Unveils ‘ACRE’ Initiative” (Rendell Administration Press Release, August 10, 2004).

As drafted, the proposal enables the State Board to nullify local Ordinances adopted to control the siting and operation of corporate factory farms. It also appears that the Board would have the authority to review Ordinances adopted to regulate the land application of sewage sludge.¹ In all instances, the Board would be empowered to issue administrative orders stopping municipal governments from adopting or enforcing factory farm or sludge Ordinances. Decisions by the Board would be appealable to the Commonwealth Court, but review by that Court would not be de novo, and deference would be given to the Board’s decision. No appeal as of right would be allowed by the municipality to the Pennsylvania Supreme Court. The Attorney General would enforce the orders issued by the Board.

Statewide farm organizations are divided over the Administration’s proposal. The Pennsylvania Farmers Union (PFU) opposes the proposal. Almost all of the original members of the statewide coalition that opposed House Bill 1222 – including over four hundred Township government members – are actively opposing this proposal.

A copy of the Rendell Administration’s draft legislation has been attached to this Briefing Paper for your review.

¹The current proposal ostensibly exempts biosolids from its purview, but the language is both (1) vague and unclear, and (2) inevitably subject to revision in the legislative process.

The “Models” for the Proposal:

In drafting the proposal, the Rendell Administration relied on two administrative “models.” First, it relied on New York laws that empower the New York Department of Agriculture and Markets to override local laws adopted by rural communities. See New York Agriculture and Markets Law, Art. 25-AA at §305. Second, the Rendell Administration used the Agricultural Lands Condemnation Approval Board (ALCAB) – an already existing Board hosted by the Pennsylvania Department of Agriculture – as a structural template.

Both “models,” however, have had severe adverse impacts on rural communities and local control. The New York Department of Agriculture and Markets has gained a reputation for intervening on behalf of corporate farming interests to stop rural communities from protecting their environment and quality of life. Intervention of the Department has occurred regularly – usually at the request of the Farm Bureau or other agribusiness interests – and the mere threat of involvement by the Department on the side of those interests has been enough to “chill” rural communities from passing laws to protect residents’ health, safety, and welfare.

As Jack Ossont, an appointee to a committee formed to draft a local Ordinance in the Town of Barrington in Yates County, New York, and a member of the FARM/Yates organization, has explained:

“Wielding a ‘questionable’ legal power to strike down local Ordinances seeking to control corporate factory farming, New York’s Department of Agriculture and Markets has intervened repeatedly to stop rural communities in the Finger Lakes region of New York from protecting themselves from corporate hog farms. In essence, New York law places the future of rural communities in the hands of a regulatory agency with the unbridled power to deny those communities the ability to protect themselves. With this system of control, corporate agribusiness interests like the Farm Bureau only need to make a phone call to New York’s Ag and Markets, who eventually issues a cease and desist letter to rural governments who are merely trying to protect the health, safety, and welfare of their residents. The “chilling” effect of the State’s intervention to protect the interests of agribusiness corporations is usually enough for a local government – and rural community – to be forced to relinquish all local control.
If corporate farms can be forced into the Finger Lakes region of New York, no place is safe from these dangerous partnerships that put the force of the State behind eliminating family farmers and constitutional local control.”

The Commissioner of the New York Department of Agriculture and Markets, has been very aggressive in striking down local Ordinances dealing with concentrated animal operations. Beginning in 1993, the Commissioner began to overturn decisions by Zoning Hearing Boards of Appeal, when those Boards denied variances for setbacks for livestock housing (Town of Fremont, issued 1/21/93). In 1994, the Commissioner struck a Town’s requirement for an Environmental Assessment to be prepared prior to the issuance of building permits for concentrated operations (Town of Wilson, 5/26/94). In 2001, the Commissioner took action to overturn a local law that placed a moratoria on the issuance of building permits for new CAFO’s (Town of Varick, 6/19/01). In 2002, the Commissioner overturned a local law regulating intensive livestock operations (Town of Milo, 9/17/02). In 2003, the Commissioner struck a Town’s decision to deny a site plan for a new poultry facility (Town of Throop, 10/14/03). See Commissioner’s Orders Issued Under AML §305-a(1), or Former §305(2).

Citizen organizations seeking to challenge the authority of the agency to issue orders defining factory farms as “sound agricultural operations” – and thus exempt from local control - have been dismissed by New York Courts. Those Courts have held that the agency operates within its legislative mandate when it acts to overturn local laws, prohibit the adoption of proposed Ordinances, and define concentrated farming operations as approved agricultural practices. In specific cases in Chemung County, New York, Courts have declared that factory farms are protected operations and that the decision of the agency to exempt them from local control was “rational, reasonable, and supported by the record.” See Pure Air and Water, Inc. of Chemung County v. Davidsen (Supreme Court, Albany Co., Index No. 3-96, Justice Teresi, issued September 23, 1996); affirmed, 246 A.D.2d 786, 668 N.Y.S.2d 248 (3rd Dept. 1998).

In perhaps the ultimate act of preemption, New York’s Department of Agriculture and Markets now issues “guidance” which outlines which Ordinances and policies the Department would accept, and which ones the Department would overrule. Thus, the “guidance” serves as advance notice to a municipality of what laws the municipal government can adopt and which ones the Department will override. In 2003, the Department issued guidance on factory farms and the land application of sewage sludge and septage. See Guidelines for Review of Local Laws Affecting Nutrient Management Practices (adopted 10/9/03). The Department has even unilaterally declared that municipalities cannot regulate any factory farm operation unless the municipality can carry a burden of proof that the local government’s regulations are not “unreasonably restrictive” under the agency’s own criteria. Through their “guidance,” the agency has specifically declared that zoning Ordinances determining proper locations for factory farm operations can be struck by the agency if the Commissioner determines that the zoning laws are “unreasonably restrictive.” Id. at 3.

Pennsylvania’s Agricultural Lands Condemnation Approval Board (ALCAB) – also used as an administrative template by the Rendell Administration – was originally established to review the “necessity” of proposed State condemnations of farmland. Use of the Board as a template suffers from infirmities similar to the use of New York’s Department of Agriculture and Markets. The ALCAB is an inappropriate template because it was not established with the authority to review and override local Ordinances. Instead, it was established to determine whether the taking of farmland is “necessary” for a given project. See the Agricultural Area Security Law of 1981, P.L. 128, Pa Act No. 43, §13, as amended, December 14, 1988, P.L. 1202, Pa Act. No. 149, §1, 3 P.S. §901 et seq.

Its determination thus rests solely on the gathering of facts, and an analysis of those facts as to whether the taking of farmland is legally “necessary” for a given project.

Members of the ALCAB thus do not review local laws or interpret State laws. It is generally recognized that ALCAB has been less than successful in its stated purpose of preserving farmland, for several reasons. First, ALCAB does not operate on the basis of legal precedent, which means that its decisions are not based on stare decisus, and members can use any reasons to support or oppose a finding of “necessity.” Second, ALCAB – and its hearing examiners – have exhibited a tendency to accept at face-value the evidence offered by State agencies seeking to condemn farmland. In one recent example, ALCAB approved the condemnation of approximately twenty acres of active farmland in Franklin County for the construction of a new Exit interchange off of I-81 to “open” other farmland for construction of a shopping mall and a residential housing development in a previously undeveloped area. The local municipality opposed the condemnation, as did the Pennsylvania Farm Bureau. The local municipality – Greene Township – expended over $1 million in attempts to stop the interchange in an effort to protect the municipality from sprawl. See In Re: Interstate 81 Interchange S.R. 0081, Section 001, Franklin County, Pennsylvania (ALCAB 2001) (declaring that “it appears to the Board that PennDOT has done all it can to minimize the impact to ASA land by the project.”).

Local Control and Ordinances at Risk:

Under the legislative proposal advanced by the Rendell Administration, several categories of Ordinances are at risk. Included among those would be the following:

Zoning Ordinances that provide for special uses, variances, or special exceptions for concentrated animal feeding operations (CAFO’s), other factory farms, or the land application of sewage sludge.
Subdivision and Land-Use Ordinances that regulate and control the siting and operation of concentrated animal feeding operations (CAFO’s), other factory farms, or the land application of sewage sludge;
Factory Farm Ordinances that regulate or control the siting and/or operation of factory farms;
Factory Farm Ordinances that regulate or control the involvement of agribusiness corporations in the ownership and operation of factory farms;
Moratorium Ordinances that seek to place temporary moratoria on the issuance of municipal building permits to factory farm facilities;
Any Ordinance that collaterally regulates the land application of sludge, factory farms, or any agricultural uses of land.

Recommendations of the Townships’ Caucus:

Oppose the creation of the “Agricultural Review Board” under the Rendell Administration’s ACRE Proposal by refusing to co-sponsor and support this part of the ACRE Proposal;
Oppose any legislative attempts to hamper the ability of municipal governments to adopt local laws that control and regulate corporate farming and the land application of sludge.

Recommendations of the Townships’ Caucus to Amend the Proposal:

The Quality of Life and Local Control Caucus of Township Supervisors strongly opposes the creation of the Agricultural Review Board. However, the Caucus would not actively oppose the proposal if (1) the decisions of the Agricultural Review Board were not binding in any legal respect but merely advisory; (2) at least two members of the Agricultural Review Board were Township Supervisors in Townships impacted by corporate farming and at least one member of the Agricultural Review Board represented a rural community organization; (3) the Board was solely empowered to review those Ordinances regulating family farms, not corporate farms; and (4) advisory opinions could only be rendered for operations within Agricultural Security Areas (ASA’s).

ATTACHMENT A to the Briefing Paper
The Rendell Administration’s Legislative Proposal
To Establish an Agricultural Review Board

SUBCHAPTER C. AGRICULTURAL REVIEW

Section 19. Definitions.

The following words and phrases when used in this subchapter shall have the meanings given to them in this section, unless the context clearly indicates otherwise:

“Application.” An application for review of a local ordinance, as described in Section 22.

"Board." The State Agricultural Review Board created by section 21.

"Department." The Department of Agriculture of the Commonwealth.

“Local government unit.” A county, county institution, district, city, borough, incorporated town, township, school district or any similar, general or limited purpose unit of local government or any unit created by joint action of two or more local government units which is authorized to be created by law. The term does not include a city of the first or second class.

“Normal agricultural operation.” Unless otherwise defined in the act of June 10, 1982 (P.L. 454, No. 133), as amended, entitled “An act protecting agricultural operations from nuisance suits and ordinances under certain circumstances,” the term refers to the activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities and is:

(1) not less than ten contiguous acres in area; or

(2) less than ten contiguous acres in area but has an anticipated yearly gross income of at least $10,000.

The term includes new activities, practices, equipment and procedures consistent with technological development within the agricultural industry. Use of equipment shall include machinery designed and used for agricultural operations, including, but not limited to, crop dryers, feed grinders, saw mills, hammer mills, refrigeration equipment, bins and related equipment used to store or prepare crops for marketing and those items of agricultural equipment and machinery defined by the act of December 12, 1994 (P.L. 944, No. 134), known as the Farm Safety and Occupational Health Act. Custom work shall be considered a normal farming practice.

“Secretary.” The Secretary of the Department.

Section 20. Prohibition.

A local government unit shall not adopt or enact an ordinance that is unlawful under the act of June 10, 1982 (P.L. 454, No. 133), as amended, entitled “An act protecting agricultural operations from nuisance suits and ordinances under certain circumstances,” or is preempted by this act.

Section 21. State Agricultural Review Board.

Establishment and composition. There is established within the Department as a departmental board the State Agricultural Review Board. The Board shall consist of 5 members:
1. The Secretary or designee, who shall serve as Board chairman.
2. The Secretary of Environmental Protection, or designee.
3. The Secretary of the Department of Community and Economic Development, or designee.
4. The Dean of the College of Agricultural Sciences of The Pennsylvania State University, or designee.
5. A member appointed by the Governor, by and with the advice and consent of the Senate, to serve a two-year term. This member may be reappointed to successive terms.
Quorum. Three members shall constitute a quorum for purposes of conducting meetings and official actions pursuant to authority given to the Board under this subchapter.
Duties. It shall be the duty and responsibility of the Board to exercise the following powers:
1. To conduct administrative hearings required under this subchapter, or to delegate that authority to a hearing examiner and review proposed administrative adjudications prepared and recommended by hearing examiners.
2. To issue final administrative adjudications in those instances where an administrative hearing is conducted in accordance with this subchapter.
3. To be a resource of knowledge and expertise for the Department, and to provide such general assistance as is requested by the Secretary.
Compensation. Appointed members of the Board shall not receive compensation for their services, but shall be entitled to reimbursement in accordance with Commonwealth regulations for reasonable traveling, lodging and other necessary expenses incurred in the discharge of their duties.

Section 22. Review of local ordinances.

Application for review. A farm owner or operator or a local government unit may file a written application with the Board for review of a proposed local ordinance or a local ordinance that took effect after the effective date of this subchapter to determine the lawfulness of the ordinance under the act of June 10, 1982 (P.L. 454, No. 133), as amended, entitled “An act protecting agricultural operations from nuisance suits and ordinances under certain circumstances,” or whether the ordinance is preempted by this act.
Contents of application: Farm owners or operators. A farm owner or operator filing a written application under subsection (a) shall include the following in the application:
1. The name and address of the farm owner or operator.
2. An explanation of the determination sought.
3. A description of the location of the farm operation, in sufficient detail to facilitate an on-site inspection by the Department.
4. A description of the farm operation, including the following:
  1. The size of the farm.
  2. The type of agricultural production engaged in on the farm.
  3. The years the farm has been in operation.
5. A description of the specific farm buildings, equipment or practices involved and how they are or shall be affected by the ordinance.
6. A complete copy of the subject ordinance, with references to the specific provisions involved.
7. A listing of interested parties, including the local government unit, and addresses and telephone numbers for each.
8. Such other information as the Department might reasonably require.
Contents of application: Local government unit. A local government unit filing a written application under subsection (a) shall include the following in the application:
1. The name and address of the local government unit, identifying a person to be the primary contact for the Department.
2. An explanation of the determination sought.
3. A description of the specific proposed or existing ordinance with respect to which the opinion is sought.
4. A complete copy of the subject ordinance, with references to the specific provisions involved.
5. A listing of all interested parties, providing a brief general summary of the interests of each and the address and telephone number of each.
6. Such other information as the Department might reasonably require.
Department action upon receipt of an application. Within 30 days of receiving an application, the Department will do the following:
1. Provide notice of receipt of the application and a copy of the application, by mail, to the local government unit and the farm owner or operator (if a farm owner or operator is identified in the application).
2. Provide notice of the receipt of the application in the Pennsylvania Bulletin.
3. Contact (or mail notice to) all interested persons. If there are more than twenty interested persons, this contact may be through publication of notice in a newspaper of general circulation in the local government unit.
4. Provide interested persons a copy of the application, upon request.
Responses to application.
1. A local government unit or affected farm owner or operator shall respond to a notification from the Department under subsection (d) within 30 days of receipt of that notice, or within 30 days of publication of notice in the Pennsylvania Bulletin – whichever is later.
2. Any interested person who resides within the local government unit whose ordinance is the subject of an application and who has an articulable interest in the resolution of the application may respond to the notice. The Department is not required to consider any such response that is not received by the Department within 30 days of publication of notice in the Pennsylvania Bulletin.
3. The response shall be in writing, and shall be directed to the Department. The response shall address any issues the responder wishes the Board to consider, including information concerning the criteria listed in section 24. The Board is not required to consider any issues not contained in the response.
4. If the Department does not receive a response from the primary responder (whether a local government unit or affected farm owner or operator) within the required time frame, it may proceed to issue a decision without the hearing described in section 25.

Section 23. Settlement outreach by the Department.

Settlement outreach; general. The Department shall attempt to work with the local government unit and affected farm owners or operators to bring a dispute arising under this subchapter to a mutually-acceptable resolution and, failing that, to identify and narrow the issues of disagreement. This dispute resolution effort may include the use of an ombudsman (whether an employee of the Department or another third party), research, on-site inspections, and other reasonable measures.
General authority. The Department may, in furtherance of its responsibilities under subsection (a), consider any relevant Federal or State statutory or regulatory standards, and may consult with landowners, neighbors, Federal agencies, State agencies, local agencies, experts, treatises, research and other sources as it deems necessary to complete a thorough review and consideration of the ordinance or agricultural practice involved.
Right of access.-- A duly authorized agent of the Department shall have authority to enter any agricultural operation at reasonable times to conduct such investigations and to take such actions as are necessary to enforce the provisions of this subchapter or any order, rule or regulation issued hereunder.
Duty to grant access.-- Any person owning or operating an agricultural operation shall grant access to any duly authorized agent of the Department pursuant to subsection (c) and shall not hinder, obstruct, prevent or interfere with such agents in the performance of their duties, provided, however, that agents shall perform such reasonable measures and actions as directed by the owner or operator of an agricultural operation as will reasonably and substantially prevent the spread or outbreak of contagious diseases.

Section 24. Mediation or settlement conference.

Requirement.
1. As a prerequisite to an administrative hearing under this subchapter, the applicant and primary responder (whether a local government unit or affected farm owner or operator) shall either participate in mediation, or shall attend a settlement conference.
2. Upon mutual agreement of the parties identified in paragraph (1), a mediator of their choosing may be used. If this occurs, the parties shall bear the expenses of mediation unless the Department, by regulation, provides for payment of some portion of these expenses. If the parties do not agree on a mediator, yet desire to pursue mediation rather than a settlement conference, the Department shall provide the mediator. The Department may, at its discretion, bear some portion of the expenses of mediation until two years from the effective date of this act or the date it promulgates regulations providing for the payment of some portion of these expenses, whichever occurs first.
Results of mediation or settlement conference. If the mediation does not result in a complete resolution of the application, the mediator shall provide a written report to the local government unit and the affected farm owner or operator within 10 days of completion of the mediation. If a settlement conference is held, the applicant shall, within 10 days of the conference, provide the Board and the parties to the settlement conference a written report as to the result of the settlement conference. If a primary responder (whether a local government unit or affected farm owner or operator) fails to appear for a scheduled settlement conference, the report shall state this fact and the matter may proceed to an administrative hearing.

Section 25. Board review.

Administrative hearing. The Board shall, within 30 days of receiving a written report from the mediator or applicant described in section 8(b) relating that there has been no settlement, mail the applicant, the primary responder (whether a local government unit or affected farm owner or operator) and any interested person who has filed a response with the Department pursuant to section 6(e) notice of the date, time and location at which an administrative hearing will be convened to address the application.
Hearing examiner. The Board shall have the discretion to appoint a hearing examiner to conduct an administrative hearing under this subchapter. The final administrative adjudication will be issued by the Board.
Hearing. The applicant, the primary responder (whether a local government unit or affected farm owner or operator) and any interested person who has filed a response with the Department pursuant to section 6(e) shall be the parties at an administrative hearing convened under this subchapter, and shall represent their respective interests. The Board shall have the discretion to appoint a hearing examiner to conduct an administrative hearing requested under this subchapter. The final administrative adjudication will be issued by the Board.
Criteria for review of applications. The Board shall consider the following, among other factors, in determining whether a local government unit’s proposed or existing ordinance is authorized by law:
1. Whether the farm operation is a normal agricultural operation.
2. Whether the ordinance prevents or limits a condition or practice that would otherwise have a direct adverse impact on public health or safety.
3. Whether the requirements of the ordinance have a direct adverse impact on a farm owner or operator’s ability to manage the farm operation effectively and efficiently and, if so, whether there are less-onerous means by which to achieve the objective of the ordinance.
4. Whether the ordinance contains a statement of purpose and, if so, whether the ordinance furthers that purpose.
5. Whether the agricultural operation is consistent with legally-authorized comprehensive plans and zoning ordinances.
6. Whether the ordinance would interfere with the implementation of a nutrient management plan or odor management plan implemented under applicable law.

Section 26. Enforcement.

If a final administrative adjudication issued under this subchapter determines that a particular proposed or existing local government unit ordinance is unlawful under the act of June 10, 1982 (P.L. 454, No. 133), as amended, entitled “An act protecting agricultural operations from nuisance suits and ordinances under certain circumstances,” or is preempted by this act, the adjudication shall also direct the local government unit to cease enactment or enforcement of the ordinance at issue. If a local government unit fails to comply with such an adjudication, the Secretary, on behalf of the Board, may request that the Attorney General initiate appropriate legal action on behalf of the Commonwealth to obtain compliance with the adjudication. The Attorney General may initiate action in the Commonwealth Court or any other forum, in law or in equity, that it deems appropriate in order to obtain compliance.

Section 27. Other statutes not affected.

This subchapter shall not be construed as modifying, rescinding or superceding any other statute, or as regulating biosolids, and shall be read in pari materia with other statutes. Nothing in this subchapter shall limit in any way whatever the powers conferred upon the Department, the Department of Environmental Protection and the State Conservation Commission under statutes other than this subchapter. All such powers are preserved and may be freely exercised.

Section 28. Regulations.

The Department is authorized to adopt such regulations as it deems necessary to its administration and enforcement of this subchapter. This includes the authority to establish, by regulation, such fees as are reasonably necessary to fund the implementation and enforcement of this subchapter.

Section 29. Appropriation.

There is hereby appropriated $____________ for the fiscal year following enactment of this subchapter to the Department for the administration and general expenses necessary to implementing this subchapter. This shall be a continuing appropriation and shall not lapse.

Section 30. Effective date.

This act shall be immediately effective.