PROPOSED RULEMAKING
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CHS. 138, 138e AND 138l]
Agricultural Area Security Program; Agricultural Conservation Easement Purchase Program; Agricultural Security Area Program
[32 Pa.B. 775] The Department of Agriculture (Department) proposes to delete Chapter 138 (relating to agricultural area security program), amend Chapter 138e (relating to agricultural conservation easement purchase program) and add Chapter 138l (relating to agricultural security area program) to read as set forth in Annex A.
Statutory Authority
The Agricultural Area Security Law (act) (3 P. S. §§ 901--915) provides the legal authority for this proposed rulemaking. In particular, section 15 of the act (3 P. S. § 915) requires the Department to promulgate regulations necessary to promote the efficient, uniform and Statewide administration of the act.
Purpose
The proposed rulemaking would accomplish the following regulatory objectives:
1. Replace the outdated regulations in Chapter 138 with an entirely new regulatory chapter (Chapter 138l) that: (a) more accurately tracks with the act; (b) reflects the experience the Department has gained in administering the provisions of Chapter 138 over many years; (c) implements the numerous amendments that have been made to the act over the years; and (d) provides the regulated community with a more user-friendly set of standards and procedures with respect to agricultural security areas.2. Revise the regulations in Chapter 138e to: (a) reflect various amendments of the act--most recently by the act of May 30 2001 (P. L. 103, No. 14) (Act 14); and (b) reflect the experience the Department has gained in administering the Agricultural Conservation Easement Purchase Program and Chapter 138e since that chapter was last revised.Background
The act addresses two critical prongs of the Commonwealth's farmland preservation effort: agricultural security areas and agricultural conservation easements. The act provides definitions, standards and procedures for each, and makes it the responsibility of the Department to implement the act through regulations.
In summary, an agricultural security area is an area of 250 acres or more of farmland so designated by a local government unit. This designation affords landowners limited protections against nuisance suits based upon agricultural activities conducted on the land, limited protections against condemnation of the land and other limited benefits. It also makes an owner of farmland located in agricultural security areas comprised of 500 or more acres eligible to sell an agricultural conservation easement with respect to that farmland. An agricultural conservation easement restricts the subject land to agricultural production.
The Department's regulations relating to agricultural security areas have not been revised since 1982--the year in which they were originally promulgated. The provisions of the act relating to agricultural security areas have been revised numerous times since 1982--most recently by Act 14. Given the extensive regulatory revisions that would be necessary to bring the current agricultural security area regulations into conformity with the act, the Department proposes to delete Chapter 138 and replace that chapter with an entirely new Chapter 138l.
The Department's regulations relating to agricultural conservation easements also need to be revised to reflect amendments to the act. This proposed rulemaking would implement these necessary revisions. In addition, a number of the revisions offered in the proposed rulemaking would fine-tune current provisions to make for the more effective and efficient administration of the Commonwealth's agricultural conservation easement purchase program. More often than not, these revisions simply formalize informal procedures that have evolved over the course of the Department's administration of this program, or that appear in the technical guidebook the Department was required to develop under section 14.1(a)(3)(xv) of the act (3 P. S. § 914.1(a)(3)(xv)).
Need for the Proposed Rulemaking
The proposed rulemaking is driven by the need to implement various revisions to the act that have occurred since the agricultural security area and agricultural conservation easement regulations were last amended. In addition, the proposed rulemaking contains provisions intended to resolve questions and ''gray areas'' encountered by the Department in its administration of these regulations over the years. It would also formally implement a number of effective informal procedures that have evolved over the years.
The Department is satisfied of the need for the proposed rulemaking, and believes the document is consistent with the principles outlined in Executive Order 1996-1, ''Regulatory Review and Promulgation.''
Overview of the Major Provisions of the Proposed Rulemaking
Proposed § 138e.3 (relating to definitions) would revise the definitions of several terms to reflect statutory revisions.
The act was revised by the act of December 21, 1998 (P. L. 1056, No. 138) (Act 138) to allow for local government units to participate in the agricultural conservation easement purchase process. A number of the provisions of this proposed rulemaking would reflect and implement this statutory change. These include §§ 138e.11, 138e.67(g) and (i), 138e.201 and 138e.204.
Act 14 amended the act to describe a narrow set of circumstances under which an agricultural conservation easement may be purchased with respect to a parcel of farmland that straddles a county or local government unit boundary line, with part of the parcel being within an agricultural security area and the remainder outside of the agricultural security area. A number of the provisions of the proposed rulemaking would reflect and implement this statutory change. Proposed § 138e.16(a) (relating to minimum criteria for applications) would revise the eligibility criteria for agricultural conservation easement purchases to allow for this type of acquisition. Proposed § 138e.61(b) (relating to application) would revise the application form to require the basic information necessary to determine whether a proposed agricultural conservation easement purchase meets the revised eligibility criteria.
Proposed §§ 138e.65(b) and 138e.66 (relating to easement value and purchase price; and offer of purchase by county board) would reflect that the former $10,000-per-acre cap on the expenditure of State funds in an agricultural conservation easement purchase transaction has been rescinded (by Act 14).
Proposed § 138e.73 (relating to survey requirements) would be an entirely new section. This section is not driven by revisions to the act but, instead, by the need to have a uniform Statewide set of minimum criteria for a survey of a proposed agricultural conservation easement purchase. This section would provide needed guidance to county agricultural conservation easement purchase programs, and would provide the Department the data it needs to maintain an accurate computerized record of the location and the metes and bounds of agricultural conservation easements purchased under authority of the act. The technical requirements of this section are consistent with modern survey practices and reflect the typical quality of surveys the Department has accepted over the years. Since this section would formalize an informal standard that has been in effect for some time, the Department believes it will have minimal impact on the regulated community.
Proposed § 138e.93 (relating to postsettlement recording and reporting procedures) would be an entirely new section. There was some initial inconsistency and confusion within both the regulated community and the Department as to the appropriate documentation and post settlement follow-through that should be attendant to each agricultural conservation easement purchase under the act. Over years of administering the Statewide agricultural conservation easement purchase program, though, the basic recordkeeping, recording and reporting procedure in this proposed section evolved. The proposed section would formalize this procedure and provide a step-by-step explanation of the necessary record retention, recording and reporting requirements.
Proposed § 138e.104 (relating to installment sales) would add new language to address long-term installment purchases of agricultural conservation easements that defer the payment of principal for up to 30 years. The Department is currently involved in an effort to encourage the purchase of agricultural conservation easements by a method that allows for the purchaser to leverage purchase funds and allows the seller to gain favorable tax consequences (such as, favorable capital gains tax treatment). The proposed language addresses this effort. This long-term installment purchase effort has been facilitated by an allocation of up to $500,000 for this purpose by Act 14.
The proposed rulemaking would place increased emphasis on the importance of a conservation plan to the Statewide agricultural conservation easement purchase effort. In summary, a conservation plan is a written description of land management practices which, when implemented, will improve and maintain the soil, water and related plant and animal resources of the land. Although the current regulation requires that a conservation plan exist with respect to a parcel of farmland before an agricultural conservation easement is sold with respect to the parcel, the Department believes it necessary to place greater regulatory emphasis on the requirement a landowner actually implement the conservation plan. To this end, proposed § 138e.222 (relating to conservation plan) would revise that section to require a landowner to execute a ''conservation plan agreement'' acknowledging the need to implement the conservation plan. The conservation plan agreement would also acknowledge that failure to implement and follow-through on the requirements of a conservation plan would constitute a violation of the terms of the deed of agricultural conservation easement.
The proposed rulemaking would add several new sections describing the Land Trust Reimbursement Grant Program. This program was originally authorized under section 1716 of The Administrative Code of 1929 (71 P. S. § 456(a)(3)), which took effect in 1999. The procedures and standards for the program were established by a notice published at 29 Pa.B. 6342 (December 18, 1999), and were revised by a notice published at 30 Pa.B. 5546 (October 28, 2000). Act 14 continued this program under its authority (3 P. S. § 914.5), and required the program be formalized through regulation. Proposed §§ 138e.251--138e.256 essentially restate the procedures and standards of this ongoing program.
Proposed § 138e.253 (relating to registration of eligible land trust) would describe the documentation and procedures necessary to the registration of a land trust with the Department. The application process described in subsequent sections is rather straightforward. One of the few substantive differences between the standards and procedures for the Land Trust Reimbursement Grant Program established earlier by notice and the standards and procedures that would be established by this proposed rulemaking is found in § 138e.255(b)(3)(i)(B) (relating to State Board review of applications). That provision would allow reimbursement with respect to an agricultural conservation easement purchase involving as few as 25 acres of land, when the previous standards required at least 50 acres of land.
Proposed Chapter 138l would supplant the current regulation in Chapter 138.
Proposed § 138l.1 (relating to definitions) would repeat definitions from the act and also repeats a number of definitions from § 138e.3 (relating to definitions) of the agricultural conservation easement purchase program regulations. This section would also allow for the use of ''ASA'' as an abbreviation for the term ''agricultural security area.''
Proposed § 138l.11 (relating to agricultural security area advisory committee) would provide guidance to a local government unit on the necessity of establishing an agricultural security area (ASA) advisory committee. Although the act does not require the formation of this committee until an application for the formation of an ASA is received by the local government unit, a local government unit is free to form an ASA advisory committee at any time.
Proposed § 138l.12 (relating to eligibility to propose the creation of an ASA) would set forth the eligibility criteria for the inclusion of land within an ASA. Paragraph (1) of that section would acknowledge that some portion of land within an ASA might not be farmland or viable farmland and should not have to be surveyed-out and excluded from the ASA. This is suggested in section 3 of the act (3 P. S. § 903), under the definition of ''description of the proposed area.''
Prior to Act 14, an ASA could not be located in more than one local government unit unless each affected local government unit approved its participation in that ASA. Act 14 added three other scenarios under which land might be included in the ASA of another local government unit without the consent of the local government unit in which the land is located. Proposed § 138l.15 (relating to ASA located in more than one local government unit) would summarize all four scenarios under which an ASA might include land in more than one local government unit.
Proposed § 138l.16 (relating to submitting an ASA proposal form to the local government unit) would emphasize that the only acceptable way by which to deliver an ASA proposal form to a local government unit is by certified mail, with return receipt requested. The local government unit's receipt of this notice triggers the commencement of the 180-day period within which review of the ASA proposal must be completed. The ''official date of receipt'' used in this section is referenced in several other sections of the chapter.
Proposed §§ 138l.17 and 138l.18 (relating to local government unit action upon receipt of an ASA proposal; and public hearing by local government unit on ASA proposal) provide step-by-step explanations of the actions a local government unit must take after receiving an ASA proposal.
The effective date of an ASA or a modification to an ASA can vary--depending on the particular circumstances involved. Proposed § 138l.21 (relating to effective date of the creation or modification of an ASA) would identify each set of circumstances and the appropriate effective date. For example, if land is added to an ASA by virtue of its being part of an agricultural conservation easement purchase, the land becomes part of the ASA as of the sale of the agricultural conservation easement. If land becomes part of an ASA because of the failure of a local government unit to approve or reject the ASA proposal within 180 days of receipt, the ASA becomes effective as of the expiration of this 180-day period. Proposed § 138l.21 would address each set of circumstances under which an ASA can be formed or modified, and assign the appropriate effective date for each ASA creation or modification.
Proposed § 138l.22 (relating to filing of ASA description by governing body; recording of ASA description) would clarify the obligation of a governing body of a local government unit to file a description of an ASA, or any modification thereof, with the county recorder of deeds, the county planning commission and the planning commission of the local government unit. In addition, it would clarify the obligation of a county recorder of deeds to properly record this information.
Proposed §§ 138l.24 and 138l.25 (relating to planning commission action with respect to an ASA proposal; and advisory committee action with respect to an ASA proposal) would describe the roles of the entities referenced in their respective titles. In summary, each of these entities must record the date of receipt of an ASA proposal or proposed modification, review the proposal within a 45-day review period, apply the same review criteria as are applied by the local government unit and report its conclusions to the local government unit. Failure to act within this 45-day review period is deemed to be a recommendation the local government unit approve the ASA proposal or proposed modification.
Proposed § 138l.26 (relating to factors to be considered by the governing body of the local government unit, the planning commission and the advisory committee) would restate review criteria prescribed by the act.
Proposed Subchapter C (relating to adding land to an existing ASA) would describe all of the various circumstances under which land may be incorporated into an existing ASA. Act 14 added several new methods by which land can be automatically incorporated into an existing ASA, and these new methods are set forth in the referenced sections.
Proposed §§ 138l.41 and 138l.42 (relating to removing land that has been in an ASA for 7 years or more; and removing land in the course of the 7-year review or interim review) would describe the two procedures by which land can be removed from an ASA. The first allows an owner of land that has been in an ASA for 7 or more years to simply notify the governing body of the land to be withdrawn from the ASA. This notice would be by certified mail, return receipt requested. Although the withdrawal would be effective upon receipt of this notice, the governing body would have the option to wait until its next review of the ASA (whether a regular 7-year review or an interim review) to record the withdrawal.
Proposed § 138l.51 (relating to 7-year review) would describe the process by which the act requires an ASA be reviewed at regular intervals. Proposed § 138l.52 (relating to interim review) would describe the process to be exercised by a local government unit that opts to review an ASA before review would ordinarily be required.
Affected Individuals and Organizations
This proposed rulemaking would have some effect upon county agricultural conservation easement purchase programs, local government units, owners of land who have land in an ASA or who seek to include land in an ASA and owners of land who seek to sell agricultural conservation easements under authority of the act. Since many of the new provisions of this proposed rulemaking simply implement statutory requirements, though, the impact of these provisions is more the product of the underlying legislation than of the regulations itself.
Fiscal Impact
Commonwealth: This proposed rulemaking would impose no costs and have no fiscal impact on the Commonwealth.
Political Subdivisions: The proposed rulemaking is not expected to impose appreciable costs upon political subdivisions. Although local government units are required to absorb the costs associated with the formation and recording of an ASA, this requirement is imposed by the act, rather than the proposed rulemaking.
Private Sector: This proposed rulemaking would impose no costs and have no fiscal impact upon the private sector.
General Public: This proposed rulemaking would impose no costs and have no fiscal impact upon the general public.
Paperwork Requirements
The proposed rulemaking would not appreciably increase the paperwork burden of the Department, local government units, county agricultural land preservation programs or other affected entities.
Effective Date
The proposed rulemaking will be effective upon publication in the Pennsylvania Bulletin as a final-form rulemaking.
Sunset Date
There is no sunset date for this proposed rulemaking. The Department will review the efficacy of these regulations on an ongoing basis.
Public Comment Period/Contact Person
Interested persons are invited to submit written comments regarding this proposed rulemaking within 30 days following publication in the Pennsylvania Bulletin. Comments are to be submitted to the Department of Agriculture, Bureau of Farmland Preservation, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: Sandra Robison.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 29, 2002, the Department submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Committees on Agriculture and Rural Affairs. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of objections raised.
SAMUEL E. HAYES, Jr.,
SecretaryFiscal Note: 2-138. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART V-C. FARMLAND AND FOREST LAND
CHAPTER 138. AGRICULTURAL AREA SECURITY PROGRAM (Editor's Note: As part of this proposed rulemaking, the Department is proposing to delete the text of §§ 138.1--138.14 and Appendix A which currently appears in 7 Pa. Code pages 138-1--138-7, serial pages (276945)--(276951).)
§§ 138.1--138.14. (Reserved).
CHAPTER 138e. AGRICULTURAL CONSERVATION EASEMENT PURCHASE PROGRAM
GENERAL § 138e.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * 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] a parcel 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. The term includes use of land which is devoted to and meets the requirements of and qualifications for payments or other compensation under a soil conservation program under an agreement with an agency of the Federal government.
* * * * * County planning commission--A planning commission or agency which has been designated by the county governing body to establish and foster a comprehensive plan for land management and development within the county.
* * * * * Local government unit--Any city, borough, township or town or any home rule municipality, optional plan municipality, optional charter municipality or similar general purpose unit of government which may be created or authorized by statute.
Mansion house--The primary residential structure located upon a parcel.
* * * * * Parcel--A tract of land in its entirety which is assessed for tax purposes by one county, including any portion of that tract that may be located in a neighboring county. The county responsible for assessing an entire tract, on its own or in conjunction with the Commonwealth or a local government unit, or both, shall be eligible to purchase agricultural conservation easements covering the entire tract.
* * * * *
REQUIREMENTS FOR CERTIFICATION OF COUNTY PROGRAM § 138e.11. General requirements.
* * * * * (d) A county program shall contain provisions for the participation of local government units in the preservation of farmland through the purchase of agricultural conservation easements. These provisions shall address the following:
(1) Local government unit recommendations for joint county-local government unit purchases.
(2) Local government unit recommendations for joint Commonwealth-local government unit purchases.
(3) Local government unit recommendations for joint Commonwealth-county-local government unit purchases.
(4) Local government unit agricultural conservation easement purchases authorized under section 14.1(b.1)(4) of the act (3 P. S. § 914.1(b.1)(4)).
§ 138e.16. Minimum criteria for applications.
(a) The county program shall consider the quality of the farmland tract, including the USDA soil classification and productivity. The farmland tract shall:
(1) Be [located] one or more of the following:
(i) Located in an agricultural security area consisting of 500 acres or more.
(ii) Bisected by the dividing line between two local government units, having the majority of its viable agricultural land within an agricultural security area of 500 acres or more and the remainder in another local government unit outside of an agricultural security area.
(iii) Bisected by the dividing line between the purchasing county and an adjoining county, having the land located in the purchasing county within an agricultural security area of 500 acres or more and the remainder in another county outside of an agricultural security area, and with respect to which one of the following applies:
(A) A mansion house is on the tract and located within the purchasing county.
(B) When the mansion house on the tract is bisected by the dividing line between the two counties, the landowner has chosen the purchasing county as the situs of assessment for tax purposes.
(C) When there is no mansion house on the farmland tract, the majority of the tract's viable agricultural land is located within the purchasing county.
(2) Be [contiguous] one or more of the following:
(i) Contiguous acreage of at least 50 acres in size [unless the tract is].
(ii) Contiguous acreage of at least 10 acres in size and [is either] utilized for a crop unique to the area [or is].
(iii) Contiguous acreage of at least 10 acres in size and contiguous to a property which has a perpetual conservation easement in place which is held by a ''qualified conservation organization,'' as that term is defined in section 170(h)(3) of the Internal Revenue Code (26 U.S.C.A. § 170(h)(3)).
* * * * *
STATE BOARD REVIEW OF COUNTY PROGRAM § 138e.41. Application for review of county program.
A county board seeking State Board review, certification and approval of its county program shall submit one copy of its county program and its bylaws to the State Board at the following address: Director, Bureau of Farmland [Protection] Preservation, Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408.
§ 138e.42. Review, certification and approval of a county program.
* * * * * (c) A decision of the State Board to disapprove a county program shall be an adjudication subject to 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law). An appeal from a decision of the State Board to disapprove a county program may be made by the county board to the Secretary [of Agriculture] and shall be filed in writing with the Secretary within 30 days of the State Board's action. An appeal from a decision of the State Board [wll] will be governed by 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
§ 138e.43. Revision of county program.
* * * * * (b) A county board seeking review of a proposed revision to its county program shall submit one copy of the proposed revision to the State Board at the following address: Director, Bureau of Farmland [Protection] Preservation, Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408.
* * * * *
PROCEDURE FOR PURCHASING AN EASEMENT § 138e.61. Application.
(a) A separate application shall be required for each farmland tract offered for easement purchase. The application shall consist of a completed application form, locational maps and a soils report form. A copy of a soils report form is in Appendix B (relating to Form C Soils Report). If the county program contains minimum criteria for easement purchase that vary from those in § 138e.16 (relating to minimum criteria for applications), the application shall also include documentation [(such as a production report form contained in a guidebook authorized by the State Board under section 14.1(a)(3)(xv) of the act (3 P. S. § 914.1(a)(3)(xv))] to demonstrate the farmland tract meets these minimum criteria.
(b) The county board shall develop and make available to a county resident an application form which requires the following information:
* * * * * (2) [The] One of the following, as applicable:
(i) If the farmland tract is eligible to be considered for easement purchase under § 138e.16(a)(1)(i), the county, [municipality] local government unit and agricultural security area in which the farmland tract is located.
(ii) If the farmland tract is bisected by a dividing line between two units of local government and is eligible to be considered for easement purchase under § 138e.16(a)(1)(ii), the county and local government units in which the farmland tract is located, the agricultural security area in which a portion of that farmland tract is located, a breakdown of the acreage proposed for easement purchase in each local government unit and a breakdown of the number of acres of viable agricultural land in the acreage proposed for easement purchase in each local government unit.
(iii) If the farmland tract is bisected by the dividing line between two or more counties and is eligible to be considered for easement purchase under § 138e.16(a)(1)(iii), the counties and local government units in which the farmland tract is located, the agricultural security area in which a portion of that farmland tract is located, and one of the following:
(A) If there is a mansion house on the farmland tract, an acknowledgement of this fact and a designation of the county in which the mansion house is located.
(B) If there is a mansion house on the farmland tract, and the mansion house is bisected by the dividing line between two or more counties, an acknowledgement of this fact and a designation of the county the landowner has chosen as the situs of assessment for tax purposes.
(C) If there is no mansion house on the farmland tract, an acknowledgement of this fact and a breakdown of the acreage proposed for easement purchase in each county and a breakdown of the number of acres of viable agricultural land in the acreage proposed for easement purchase in each county.
* * * * * § 138e.65. Easement value and purchase price.
* * * * * (b) Maximum purchase price. The purchase price offered for the purchase of an easement under § 138e.66(b) may not exceed, but may be less than, the value of the easement. [Regardless of the easement value, the State funds paid toward the purchase price of an easement will not exceed $10,000 per acre.]
§ 138e.66. Offer of purchase by county board.
* * * * * (c) Within 30 days of receipt of the written offer from the county board, an applicant may do one of the following:
* * * * * (3) Advise the county board that the applicant is retaining, at the applicant's expense, an independent State-certified general real estate appraiser to determine the easement value. The appraiser shall be qualified, and the appraisal shall be completed in accordance with the procedure in § 138e.64 (relating to appraisal). The appraisal shall be submitted to the county board within 120 days of receipt of the county board's offer to purchase. The county board may extend the time within which this appraisal shall be submitted. This extension shall be in writing and shall extend the 120-day deadline by no more than 60 days. Upon completion, three copies of the applicant's appraisal shall be submitted to the county board. The applicant's decision to obtain an independent appraisal under this paragraph does not constitute a rejection of the county board's offer. The county board's offer shall remain open unless increased by the county board under subparagraph [(ii)] (iv) or rejected by the applicant under subparagraph [(iii) or (iv)] (v).
* * * * * (iii) Regardless of the easement value, the purchase price may not exceed [$10,000 per acre of State funds] any overall purchase price limits established by the county in its county program.
* * * * * (v) The applicant shall, within 15 days of receipt of the county board's written offer under subparagraph [(ii)(A)] (iv)(A) or receipt of the county board's written notice under subparagraph [(ii)(B)] (iv)(B), notify the county board in writing that the applicant does one of the following:
* * * * * § 138e.67. Requirements of the agricultural conservation easement deed.
* * * * * (d) The farmland tract on which an easement is to be purchased shall be surveyed unless the legal description contained in the deed recorded in the land records of the county in which the farmland tract is located satisfies the requirements of subsections (b) and (c). A survey required by this paragraph shall [comply with the boundary survey measurement standards for a Class A-2 survey as published by the Pennsylvania Society of Land Surveyors] meet the requirements of § 138e.73 (relating to survey requirements).
* * * * * (g) [A copy of the proposed deed shall be submitted to the State Board for approval prior to execution and delivery.] For purchases made using a combination of State, county and local municipality funds, the grantees shall be the Commonwealth, the county and the local municipality providing the funds under joint ownership as defined in the act.
(h) For purchases made entirely with county funds, the county shall be the sole grantee.
(i) For purchases made entirely with local municipal funds, the municipality shall be the sole grantee.
§ 138e.68. Title insurance.
(a) The county board shall provide [a title report] the following to the State Board upon submission of its recommendation for the purchase of an easement [.]:
(1) A title insurance commitment.
(2) Copies of all recorded or unrecorded documents listed on the title insurance commitment as exceptions to the title insurance policy.
* * * * * § 138e.71. Notification of owners of land adjoining proposed easement purchase.
* * * * * (d) Correction of notice. If the date or time of the meeting at which an easement purchase recommendation is to be considered changes after the adjoining landowners receive the notice described in this section, the county board shall provide these landowners a corrective notice, providing notice of the changes, in the manner described in subsection (b) or (c).
§ 138e.73. Survey requirements.
(a) General requirement. If a survey of land being considered for agricultural conservation easement purchase is required under § 138e.67(d) (relating to requirements of the agricultural conservation easement deed) or is otherwise required to determine metes and bounds of any right-of-way or other interests in the land, the survey shall indicate that it has a closure error of not greater than 1 foot per 10,000 linear feet in the survey, and shall otherwise comply with the most current boundary survey measurement standards published by the Pennsylvania Society of Land Surveyors.
(b) Other requirements. A survey described in subsection (a) shall also contain the following:
(1) A recordable legal description setting forth the metes and bounds of the farmland tract or other subject of the survey.
(2) A copy of the survey for each traverse in digital electronic format that complies with the conservation easement Geographic Information System (GIS) technical standards maintained in the guidebook prepared by the Department in accordance with section 14.1(a)(3)(xv) of the act (3 P. S. § 914.1(a)(3)(xv)).
(3) Geographic coordinates of at least two ground control points located sequentially along a traverse, with latitude and longitude expressed in decimal degrees. These geographic coordinates shall be based on the North American Datum of 1983 and shall be accurate to within 2 meters horizontally.
(4) A hardcopy of the plotted survey map from the digital file showing the course bearings and distances and other annotations and symbols as maintained in the guidebook prepared by the Department in accordance with section 14.1(a)(3)(xv) of the act.
(c) Monumentation. If a survey of land being considered for agricultural conservation easement purchase is required under § 138e.67(d) or is otherwise required to determine metes and bounds of any right-of-way or other interests in the land, the surveyor shall establish monumentation for at least the two ground control points referenced in subsection (b)(3). One point shall be a permanent, unmovable monument established with a concrete shaft, 5/8 inch steel reinforcing bar as a core with an alloy disk embedded with a stamped identification number. The second ground control point shall be a standard 5/8 inch rebar or similar concrete monument.
STATE BOARD REVIEW OF A PURCHASE RECOMMENDATION § 138e.91. Recommendation for purchase.
A county board shall make its recommendation for purchase of an easement by submitting the following documents to the Director, Bureau of Farmland [Protection] Preservation, Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408:
(1) [Twenty-two] Twenty-five copies of the summary report prepared in accordance with § 138e.70 (relating to summary report), including the following items:
* * * * * (x) The [22] 25 copies submitted shall be individually collated and three-hole punched, but not stapled.
* * * * * (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), and a fully-executed conservation plan agreement form as described in § 138e.222(a) (relating to conservation plan).
* * * * * § 138e.93. Postsettlement recording and reporting procedures.
(a) Retaining copies of essential documents. The county board shall make and retain photocopies of the following documents after settlement is held with respect to an agricultural conservation easement purchase, and prior to the recording of the deed of agricultural conservation easement in the appropriate recorder of deeds' office:
(1) The complete and fully-executed deed of agricultural conservation easement, including the complete legal description of the land subject to the agricultural conservation easement.
(2) A marked-up title insurance commitment document, reflecting that all listed title insurance exceptions have been addressed and resolved prior to the purchase of the agricultural conservation easement.
(3) Mortgage satisfaction pieces, subordination agreements and other documents to be recorded in connection with the agricultural conservation easement purchase.
(b) Prompt recording of the deed of agricultural conservation easement and other documents. The county board shall record the deed of agricultural conservation easement and any other documents (such as subordination documents, satisfaction pieces and releases) at the appropriate recorder of deeds' office promptly after settlement is held with respect to the easement purchase.
(c) Prompt recording of agricultural security area; reporting to the State Board. If the settlement triggers the automatic inclusion into an agricultural security area of some portion of the land subject to the agricultural conservation easement under section 14.1(b)(2)(i)(B) or (C) of the act (3 P. S. § 914.1(b)(2)(i)(B) or (C)), the governing body that created the agricultural security area into which the land is automatically included shall promptly record the addition of this land into the agricultural security area in accordance with the filing, recording and notification procedures in section 8(d) and (g) of the act (3 P. S. § 914.8(d) and (g)). The governing body shall then promptly transmit to the county board written confirmation that this recording, filing and notification has been accomplished. The county board shall mail or deliver a copy of that written confirmation to the State Board within 10 days of receipt.
(d) Reporting the agricultural conservation easement purchase to the State Board.
(1) General. The county board shall mail or deliver the following documents to the Department within 10 days following the date upon which settlement is held with respect to an agricultural conservation easement purchase:
(i) A complete notification of settlement, on a form available from the Department upon request, containing the following:
(A) The name of the landowners.
(B) The county in which the land is located.
(C) The date of settlement.
(D) A statement identifying any additional incidental costs.
(E) An indication (by check-off or other designation) of the other documents the county board is submitting to the Department along with the Notification of Settlement Form.
(F) The signature of the administrator or chief executive of the county board.
(ii) Copies of all of the documents described in subsection (b).
(iii) A copy of the settlement sheet.
(iv) A marked-up title insurance commitment document, reflecting that all listed title insurance exceptions have been addressed and resolved prior to the purchase of the agricultural conservation easement.
(v) A complete verification, executed by the settlement agent at settlement, on a form available from the Department upon request, containing the following:
(A) A statement reading substantively as follows:
As Settlement Agent for ______ County, I hereby verify that I have submitted (or will take responsibility for submitting) the appropriate IRS 1099-S form(s) for the agricultural conservation easement identified below in accordance with the Internal Revenue Code, section 6045. I further verify that I have reported (or will report) the gross proceeds in the case of a joint purchase by the Commonwealth and the county. If this verification is not submitted to the Commonwealth within 30 days of closing, I further verify that the 1099-S form(s) will be sent to the IRS and the transferor by the deadline established by the IRS.(B) The name and Federal taxpayer I.D. number of each person who sold an interest in the agricultural conservation easement.
(vi) An invoice from the county for any additional incidental costs related to the agricultural conservation easement purchase, on a form available from the Department upon request, containing the following:
(A) The name, address and Federal taxpayer I.D. number of the county.
(B) The date of the application.
(C) The name, address and telephone number of the person designated by the county to act as a contact person if the Department requires further information.
(D) The name of the farm owner, address of the farm and the number of acres under agricultural conservation easement.
(E) A breakdown of the purposes for which reimbursement of additional incidental expenses is requested, and the amount of each expense.
(vii) A revised statement of costs, as described in § 138e.69 (relating to statement of costs), if the incidental costs are higher or lower than originally reported.
(2) Exception for agricultural conservation easements purchased by a local government unit solely. Paragraph (1) notwithstanding, if an agricultural conservation easement is purchased by a local government unit solely, the county board shall mail or deliver the following documents to the Department within 30 days after recording the deed of agricultural conservation easement:
(i) A copy of the complete and fully-executed deed of agricultural conservation easement, including the complete legal description of the land subject to the agricultural conservation easement.
(ii) A current United States Geological Survey (USGS) topographical map that clearly and legibly shows the subject property location and boundaries, location of neighboring easements and exclusions withheld from the subject property.
(iii) An invoice as described in paragraph (1)(vi).
(e) Certified copies of filed documents. The county board shall mail or deliver certified copies of the recorded documents described in subsection (b) to the Department within 30 days following the date upon which these documents are recorded at the appropriate recorder of deeds' office. The appropriate recorder of deeds' office shall issue this certification.
(f) Title insurance policy. The title insurance policy should be mailed or delivered to the State Board within a reasonable time after settlement--preferably within 60 days of settlement.
ALLOCATION OF FUNDS § 138e.102. Allocation of funds to counties.
* * * * * (h) If an eligible county seeks to encumber State matching funds for an agricultural conservation easement purchase to be made by the county alone, the State matching funds shall be considered encumbered when the county board has submitted to the Department a signed agreement of sale and the written certification of the county governing body that the specific amount of county matching funds necessary for the purchase of the agricultural conservation easement by the county is available and intended for this purchase.
(i) * * *
[(i)] (j) * * *
§ 138e.103. Expenditure of matching funds.
* * * * * (d) An easement purchased using solely county funds will be considered an expenditure of county matching funds under [sections] section 14.1(h)(3), (4) and (5)(i) of the act (3 P. S. [§]§ 914.1(h)(3), (4) and (5)(i)) if:
* * * * * (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] complete and fully-executed deed of agricultural conservation easement, including the complete legal description of the land subject to the agricultural conservation easement.
* * * * * (iv) The date of approval of the conservation plan, a copy of the conservation plan and a copy of the executed conservation plan agreement as described in § 138e.222 (relating to conservation plan).
(v) A completed Soil Report Form ''C'' (a form provided by the Department), both pages. See Appendix B (relating to Form C Soils Report).
(vi) A current United States Geological Survey (USGS) topographical map that clearly and legibly shows the subject property location and boundaries, location of neighboring easements and exclusions withheld from the subject property.
(vii) A statement of costs, as described in § 138e.69 (relating to statement of costs).
(viii) An invoice as described in § 138e.93(d)(1) (vi) (relating to postsettlement recording and reporting procedures).
* * * * * § 138e.104. Installment sales.
* * * * * (c) Installment sales with a payment period of more than 5 years. Installment sales, other than those installment sales described in subsection (d), 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:
* * * * * (d) Installment sales deferring the payment of principal for up to 30 years. Installment sales in which payment of principal is deferred to the end of a specific period of up to 30 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), 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.
(4) The installment payment terms shall be negotiated between the landowner and the county board. These terms shall include the amount of cash (if any) to be received at closing, the interest rate, the period over which interest is to be paid and the point at which principal is to be paid.
(5) If landowner is responsible for the transaction costs associated with the type of purchase described in this subsection unless the county program provides otherwise.
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