by Stephen Wagner
Another suitable title for this conversation might be “Eminent domain challenges to Pennsylvania farmland,” particularly in light of Farmland Preservation exercises that have been making inroads in saving valuable acreage in recent years.
“If I put up some signs that say ‘No Trespassing’ on my property, and you enter, you are a criminal trespasser and I could call the police and have you removed from my property.” That was the opening volley by Attorney Sean High of the Penn State Center for Agricultural and Shale Law who was part of a panel at an annual meeting of the Pennsylvania Farm Bureau. “What I cannot do is to be willful, wonton or reckless. In other words, if you’re trespassing on my property, I cannot go out of my way to injure you. I can’t set up bear traps.”
High continued by saying he has property rights. But what if someone, “maybe the municipality or the fire department, wants a portion of my land? What do I have the right to do?” Governments may be able to access your land in certain instances. They may contact you and actually have the right to enter your property. “But I have to be notified 10 days in advance if they are coming in for such things as a survey of the land, appraisals and activities like that. What if PennDOT wants to take a road through my property? I cannot say no!” Should they come onto the property and cause some damage, you are then entitled to compensation. There is an actual law on the books for anyone being approached by a possible encroaching entity. “The idea is that if you are approached, you are eligible to receive $4,000 if you have actual expenses for appraisals, engineers and attorney fees associated with looking at the land,” he explained.
It is easy to look at the eminent domain issue with regard to agriculture as something fraught with worst-case scenarios. Another member of this panel was John Bell, senior government affairs counsel with the Pennsylvania Farm Bureau. “When landowners think of condemnations,” he said, “they think there really isn’t a whole lot there to prevent government agencies from condemning land.”
There is actually an entity that deals with these matters at the government level, called the Agricultural Land Condemnation Approval Board (ALCAB). Though he normally stays away from talking about specific cases, Bell did specify two actions involving Agriculture Security Areas (ASA) which he felt were significant. “The first is the Maryland and Pennsylvania Railroad Preservation Authority versus ALCAB. This body started out as a private organization that tried to preserve a rail line in York County by doing some economic and historic development.”
Trying to get the landowners to agree to grant easements through the old rail line which the owners took over seemed to be a lost cause. The organization litigated and lost the right of way created in the 1800s with the landowners winding up with the easement rights. So York County created an authority that tried by condemnation to take this easement and went to ALCAB – and ALCAB rejected it. “It was interesting,” said Bell, “because the authority argued ‘We’re only taking a little bit of land, not a whole lot. The impact on agriculture isn’t that significant.’ Commonwealth Court said ‘No!’”
The court’s reasoning was that this could not be judged on the amount of land being taken. The effect of the project also had to be considered – what would result in the taking, which was a historic/entertainment type of enterprise.
The second case, relatively old, was the Northwestern Lehigh School District versus ALCAB. “This school district tried to condemn farmland in an ag security area,” said Bell. “The district’s feeling was ‘We just have to show up.’ In other words, the burden of proof was not on them.” Commonwealth Court made it clear that it did, indeed, fall to the school district to prove that a viable purpose existed and that the ASA would not be impacted.
Doug Wolfgang with the Pennsylvania Agriculture Department asked the question “How good a job are we doing at protecting farms against other interests? Certainly it makes sense for us to do what we can to preserve farmland, protect it from eminent domain from other competing land use interests because of the economic impact and the number of jobs.” He was referencing Farmland Preservation. Also, an act amending the act of June 30, 1981, known as the Agricultural Area Security Law, was introduced on Sept. 5, 2018, further providing for limitation on certain governmental actions.