|Local Government - ACRE
An Introduction to ACRE
In 2005, the PA legislature passed HB 1646, commonly referred to as "ACRE.” (ACRE stands for the Agriculture, Communities and the Rural Environment [ACRE] initiative.) ACRE provided new tools for individual farmers and agribusiness owners to fight local government ordinances deemed harmful to agriculture, and passed by townships and cities in violation of state law. Under ACRE, local government units (e.g. townships)are prohibited from adopting or enforcing an "unauthorized local ordinance.” ACRE defined an unauthorized ordinance as an ordinance which does any of the following:
(1) Prohibits or limits a normal agricultural operation, and
(2) Restricts or limits the ownership structure of a normal agricultural operation.
The Right to Farm Act
ACRE was passed to "give teeth,” in the words of Governor Ed Rendell, to the 1982 Right to Farm Act.
Under state law, all Pennsylvanians have a right to farm. The 1982 law defines a farm – an agricultural operation – as any operation that produces food and fiber or horticultural and silvicultural (trees) crops 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.
Challenges to Local Ordinances under ACRE
If an owner or operator of a normal agricultural operation is aggrieved by an ordinance he or she believes to be unauthorized, under ACRE, he or she may request a review by the Attorney General. The Attorney General then has the power to review the ordinance in question, and must respond to the person making the request within 120 days. The Attorney General has the discretion whether to bring an action against the local government unit in Commonwealth Court.
The Commonwealth Court has first jurisdiction in any ACRE case, and also is given the discretion to appoint a master to hear such cases. Regardless of whether or not the Attorney General files an action against a local government unit, any person who is aggrieved by an unauthorized local ordinance may bring an action in Commonwealth Court to invalidate the enforcement of the ordinance. The court may award attorney fees and costs to the farmer if it finds the local government unit acted with negligent disregard of the limitation of authority under state law. The local government law can ultimately be rescinded by the court.
The Net Effect of ACRE
Because of ACRE, townships in Pennsylvania have begun to curtail anti-agriculture actions. The Attorney General has filed suit under ACRE less than 30 times since 2005. Why such a small number of lawsuits? Because townships have heeded the advice of farmers and agribusiness owners, and have avoided costly legal fights that they cannot win. Because of ACRE, they have directly negotiated with farmers and agribusiness owners and have backed away from the enforcement of anti-ag ordinances. In some cases, they have rescinded the ordinances voluntarily. At last, ACRE has provided farmers and agribusiness owners with a way to fight back against unauthorized local government decisions.
Common Green Industry-Township Disputes
Drought regulations – Local government drought regulations hit the green industry especially hard in 2002. In August 2002 (during a declared drought emergency) the Saucon Valley Golf Club in Lehigh County, was ordered to stop watering their landscapes and fairways. This local government order took effect irregardless of common law riparian water rights – Saucon Valley was removing water from a creek on their property, not pumping from a municipal source – and the fact that the Club was set to host a PGA event. Saucon Valley contacted their StateSenator and others, seeking relief from the municipal watering ban. A partial variance was granted, but the amount of water permitted to Saucon Valley was insufficient to keep the course open – the fairways began to dry up, and, in the words of the club manager, "turn into dust bowls.” After multiple contacts to Saucon Valley was ultimately limited to an allotment representing far less than their minimum weekly water needs. In reaching this decision, the authorities stated that "rain may be in the forecast.”
Also during the drought of 2002, Mt. Joy Township, Lancaster County imposed a unilateral planting ban, virtually shutting down the green industry in their jurisdiction. In a season that is normally short, these bans all but eliminated an entire year of green goods sales before they could be reversed.
Arbitrary use of zoning – We have witnessed the use of zoning to restrict or halt attempts to build greenhouses by nursery growers, garden center retailers, and landscape contractors. Thornberry Township, Delaware County had prevented a PLNA member from constructing new greenhouses. In a meeting, the zoning enforcement officer had laughed at the business owner, and said "you can try to build, but we won't let you.” The Municipalities Planning Code §603(h) states:
Zoning ordinances may not restrict agricultural operations or changes to or expansions of agricultural operations in
geographic areas where agriculture has traditionally been present.
This statement is a part of what some refer to as the "preeminence of agriculture” section of the law. The bottom line is that, by law agriculture must be protected by municipalities, and ordinances must take that into account.
Taxation of greenhouses and other agricultural buildings as commercial structures rather than as agricultural structures -- Many counties have defined greenhouses as permanent structures rather than temporary structures in an attempt to increase property taxes. In one case, a Lancaster County company had to describe their greenhouse construction as commercial rather than agricultural due to zoning restrictions on agricultural development. This hit the company with increased development costs and higher property taxes.
Use of nuisance ordinances (such as noise ordinances) to restrict agricultural activities by landscape contractors -- An Allegheny County composting operation run by a landscape contracting company was regulated by noise ordinances – they were ordered to operate only from 7 a.m. to 7 p.m. Monday through Saturday, and no operations werepermitted on Sunday. The Township had originally tried to block the company from operating the composting facility at all, citing nuisance regulations governing excessive noise. However, the nuisance regulations apply only to commercial operations. The company went to the township, and cited the fact that under Pennsylvania case law composting is defined as an agricultural activity, rather than a commercial activity. A citizen's group fought back, demanding that the nuisance ordinances be enforced. A court adjudicated settlement between the Township and the company ultimately ensued, limiting the composting facility's ability to expand, and implementing the compromise noise rules.
Attempts to Construe Landscape Contracting Operations as Separate from Agricultural Operations, and thus in Violation of Land Zoned Agricultural Use – PLNA has long advocated that landscape contracting is a part of agriculture. Why do we argue this?
Some townships have asserted otherwise, and PLNA has defended many companies with landscape contracting operations adjacent to their nursery or on their farm property. Townships have ruled in favor of PLNA's arguments, and have ultimately avoided ACRE actions by the owners of the landscape contracting companies.
- Landscape Contracting is considered a part of Agriculture by academia, including the Penn State College of Agricultural Sciences
- The Standard Industrial Classifications (SIC) codes were developed by the federal government (U.S. Department of Labor) to classify all economic activities into similar groups. They are used widely by all levels of government and the private sector as a reference point for economic activities. The SIC codes classify landscape contracting as a part of agriculture.
- The Right to Farm Act defines a horticultural operation as an agricultural operation. Landscape contracting is a subset of horticulture.