In Pennsylvania, agriculture has provided approximately $83.8 billion in direct economic output, 280,500 jobs and $10.9 billion in earnings. Needless to say, agriculture is a major industry in the Commonwealth. The Agricultural, Communities, and Rural Environmental Act, commonly referred to as “ACRE,” is one of several statutes that protects agriculture at the state level. ACRE was enacted on July 6, 2005 to address municipal regulation of normal agricultural operations as written or as applied. There are two components to qualify as a normal agricultural operation: (1) it is an activity, practice, equipment, and/or procedure utilized in the production, harvesting, and preparation for market, and (2) the property is at least ten acres in size or produces at least $10,000 of annual gross income.
Under ACRE, “[a] local government unit shall not adopt nor enforce an unauthorized local ordinance.” An “unauthorized local ordinance” is one that either: (i) prohibits or limits a normal agricultural operation unless the local government unit has authority under state law to adopt the ordinance and it is not prohibited or preempted under state law, or (ii) restricts or limits the ownership structure of a normal agricultural operation.
For example, in Commonwealth v. Packer Township, a farmer owned and operated a 100-acre dairy and crop farm and the Department of Environmental Protection approved his application to use biosolids to fertilize his croplands. Packer Township then adopted an ordinance prohibiting the land application of biosolids by corporations and regulated the land application of biosolids by individuals within the Township. As a result, the farmer ceased using biosolids as a fertilizer and requested that the Attorney General (“AG”) review the ordinance and determine whether it violated ACRE. Upon review, the AG concluded that the ordinance constituted an “unauthorized local ordinance”. Subsequently, the AG filed suit against Packer Township, arguing that the Solid Waste Management Act and Nutrient Management Act already established uniform statewide standards regulating the application of biosolids to land; and therefore, the local ordinance was precluded by state law. Following court proceedings, the Township ultimately rescinded the ordinance and the lawsuit was dismissed.
ACRE recognizes the importance of agriculture in the Commonwealth by establishing a review process when there is reason to believe that a local ordinance unlawfully prohibits agricultural operations. What does this process look like? The first step is for the owner or operator of a normal agricultural operation to contact the AG and request a review of the local ordinance. Once the AG reviews the ordinance and all relevant information, the AG will notify the owner/operator and the local government of its decision within 120 days of the owner’s request. If the AG finds that the ordinance violates ACRE, the AG and local government will work together to bring the ordinance into compliance with state law. However, if a resolution with the local government cannot be reached, the AG or owner/operator may file a lawsuit in the Commonwealth Court to invalidate the ordinance.
Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.