Ross H. Pifer, L.L.M

Director, Agricultural Law Resource and Reference Center, Penn State University
& The Dickinson School of Law

Biographical Sketch
Ross H. Pifer joined Penn State Law in 2008 to direct the Agricultural Law Resource and Reference Center. The Center conducts research, provides presentations, and prepares educational materials on agricultural law and policy issues. Professor Pifer brings extensive agricultural and legal expertise to the classroom and to his role as center director.

Professor Pifer’s current work focuses on natural gas development, food safety, and the interface between agriculture and residential development. He has given numerous presentations on these topics and has provided invited testimony to the Pennsylvania House of Representatives Environmental Resources and Energy Committee. He is also an inaugural member of the Pennsylvania Governor’s Food Safety Council on which he advises the Governor on issues related to food safety and food defense.

Prior to joining Penn State Law, Professor Pifer was an attorney with the U.S. Department of Agriculture’s Office of General Counsel. In this capacity, he advised the Farm Service Agency, the Rural Housing Service, the Rural Utilities Service, the Rural Business Service, and the Natural Resources Conservation Service. Professor Pifer received an LL.M. in Agricultural Law from the University of Arkansas School of Law. While earning this degree, he was a research fellow at the National Agricultural Law Center where he conducted research on a variety of agricultural, environmental, and food law topics, including the Food Security Provisions of the Bioterrorism Act of 2002, Country of Origin Labeling, and Food Traceability.

Professor Pifer also has legal experience with a private law firm in Gettysburg, Pennsylvania, and with the U.S. Army Judge Advocate General’s Corps. While on active duty, he was stationed at the Netherlands Law Center in support of the NATO Regional Headquarters, Allied Forces Central Europe (AFCENT) where he provided advice and representation to military personnel and commands in the Netherlands, Belgium, Luxembourg, Great Britain, and Germany.

Professor Pifer’s agricultural background includes a B.S. in Agricultural Business Management and sales experience with an international agricultural company. Additionally, he was born and raised on a fifth-generation farm near Punxsutawney, Pennsylvania.

Presentation Summary
A number of conflicts arise when we have agriculture and development occurring alongside it. Among those issues are the neighbor issues. People move out into housing built in the country but then they start smelling things and seeing things that are not what they were expecting. There is also the tension farmers feel when they sell land for development. On the one hand, it is profitable but on the other they have higher taxes. From a public policy standpoint lawmakers and regulators have to decide how to regulate he issues that arise with development in farm country.

The question often is “Are we going to implement laws or programs that give some special status to agriculture?” For the most part they have decided that special protections are needed not only to preserve farmland but also to preserve farmers. The reasons for doing this range from preserving agriculture’s place in economic development, to ensuring food security, to respecting our nation’s agrarian roots. Pennsylvania has four major statutes that regulate the interface between development and agriculture:

Pennsylvania Right to Farm Act
This act, enacted in Pennsylvania in the 1980s, and similar laws in a number of other states grew out of a national study in the 1970s that found we were losing farmland at a rapid clip and if these trends continued, we were in danger of not having enough farmland. This protects farmers from nuisance lawsuits where, for example a neighbor who moved out to the country doesn’t like the smell of manure. Such suits might also come from a neighbor who has lived next to a 50 cow dairy herd but then the herd expands to 300 cows.

There is an old legal precedent called “coming to the nuisance”. Under this defense the early user such as a farmer has greater rights than, say a neighbor who just moved next door. In the 1960s and 1970s that precedent was being applied less and less. On one well-known case, a hog farm was forced to relocate when neighbors filed a nuisance lawsuit even though the hog farm was there first. These types of suits and the national agricultural land study gave rise to the idea that there had to be something else to protect farming.

There are three main protections in the right to farm law:

  1. When municipalities define what a nuisance is they have to exclude farming.
  2. Provides a one-year time period in which neighbors can file a nuisance lawsuit against a farm. After one year has expired, any nuisance lawsuit filed will not be successful.
  3. Restricts municipalities’ ability to restrict farmers from selling direct to the public.

Agriculture, Communities and Rural Environments Act (ACRE)
This was enacted because of perceived problems in the Right to Farm law which only addresses nuisances. Municipalities were taking steps to limit agriculture outside the Right to Farm law. One example is the issue of setbacks. The state establishes setbacks for nutrient management facilities such as manure storage. Yet municipalities were establishing setbacks that exceeded the state’s. The basic concept behind ACRE is that a local government or municipality shall not adopt an unauthorized local ordinance that prohibits or limits a normal agricultural operation. Of course, the law goes on to say this applies unless the local government unit has authority under state law to adopt the ordinance and the local government unit is not prohibited nor preempted by state law from adopting it.

The procedure under ACRE is that a farmer submits a written request to the Attorney General’s Office for review of the ordinance in question. The Attorney General then has 120 days to determine whether to accept the case. If he or she accepts the case, the municipality is given the opportunity to discuss the ordinance before suit is filed. The Attorney General will file suit in Commonwealth Court if unable o resolve the issue with the municipality. This is a big benefit for farmers because the Attorney General is paying the legal bills and this is in a statewide court with the potential to establish statewide precedent. The law has been in effect for five years and close to a 100 requests for reviews have been submitted. The pattern has been that the Attorney General accepts about half the cases and about eight cases have been litigated where the issues have not been resolved with the local governmental body.

Agricultural Area Security Law
This law provides certain protections and benefits to landowners within an Agricultural Security Area (ASA). It is the broadest of the laws protecting farmers. It applies to agricultural districts and preserves a farmer’s right to participate in an agricultural district. Also called Agricultural Security areas, these districts are where agriculture is given certain preferences. The three main benefits are limitations on local regulations, limitations on the power of eminent domain and it makes farmers eligible to participate in the Agricultural Conservation Easement Program. This is where farmers can sell the development rights to their property. For farms to participate, they have to be in an ASA.

Municipalities are not permitted to enact laws that would unreasonably restrict farm structures or practices within an ASA. They shall also exclude normal farming operations within ASAs from their definition of a public nuisance. Municipalities are, however, permitted to act for the benefit of public health and safety. When enforcing condemnation of agricultural land within these areas, approval must be granted by an Agricultural Lands Condemnation Approval Board (ALCAB). This board can approve condemnation only if there is “no reasonable and prudent alternative.”
Landowners can initiate the process of establishing an ASA by submitting a proposal to the local government unit. It is also submitted to the Planning Commission and the ASA Advisory Committee. Ultimately, the municipality makes the decision. In doing so, they must consider factors such as whether the soils are conducive to farming, whether the ASA is compatible with the municipality’s comprehensive plan and other factors such as farm improvements, economic trends and the impact of technology.

Pennsylvania Farmland and Forest Land Assessment Act of 1974
Also known as the Clean and Green Program, this is a statewide preferential tax program that benefits owners of eligible farmland, forest land and open spaces. Fifty-five of the state’s 67 counties participate in it. Properties in this program are taxed on a use value rather than a fair-market value such as would be applied if the land were sold for development. The use value is established by the county assessor’s office which must adopt an income approach in reaching asset valuations. They do so in consultation with Penn State, the United States Department of Agriculture and the Pennsylvania Agricultural Statistics Service. To be eligible for agricultural use, the land in question must be either 10 acres in size or generate $2,000 in gross annual income. Two other categories of tax protection are Agricultural Reserves which must be 10 acres in size and Forest Reserves which also must be 10 acres in size.

This is a brief summary of the four laws by which Pennsylvania protects farming when we have non-farm development and farming occurring next to each other. Each has different approaches but ultimately, they work together to help farmers have viable operations well into the future.

In an effort to provide wide-ranging views and perspectives regarding the practice of and issues surrounding agriculture, the Philadelphia Society for Promoting Agriculture (PSPA) seeks speakers representing a variety of perspectives. The statements and opinions they present are strictly their own and do not necessarily represent the views of PSPA.