ACRE: Help(?) for AG Zoning

In 2005, Governor Rendell signed into law the “Agricultural Communities, and Rural Environment or “ACRE” Act. The Act was created as a response to the perception that municipalities were adopting local ordinances that unfairly restricted farming, particularly concentrated ag operations such as large-scale hog or poultry farming. See Penn State University, College of Agricultural Sciences, Agricultural Research and Cooperative Extension publication: “Questions and Answers about the “ACRE” Program”, U. Ed. AGR 06-07 (2005). Under ACRE, a landowner who thinks that a local ordinance is unfairly restrictive to normal agricultural operations can petition the state attorney general’s office to review the ordinance. The AG’s office is empowered to bring action in Commonwealth Court to repeal ordinances that it finds to be unduly restrictive or unfair to farming, or pre-empted by state law.

Understandably, ACRE has created an increasing body of caselaw as municipalities seek to balance the needs of farmers and their neighbors by placing municipal controls on farming operations. The AG’s office initially took an expansive position of its authority to challenge ordinances, claiming that the mere existence of a limiting ordinance “on the books” was sufficient to give the AG standing to seek review. The Commonwealth Court, however, has limited the scope of the AG’s review to matters where there is an actual controversy, that is, where the municipality seeks to enforce the limitations of its ordinance against a landowner. Attorney Gen’l ex rel. Corbett v. Lower Oxford Tp., and v. Locust Tp., Pa.Commw. Ct. 2006. However, in the same case, the Court ruled that the AG has standing to challenge ordinances even if they were enacted prior to the existence of the ACRE law.

ACRE continues in 2009 to affect municipalities across the Commonwealth. Locally, Peach Bottom Township has been subjected to scrutiny by the AG’s office for ordinance limitations placed on the type of soils which can be used for concentrated animal operations. ACRE will continue to impact municipalities for the foreseeable future, and those townships which seek to create or enforce ordinances effecting agricultural operations would do well to review the limitations already placed on such operations by state laws such as the Nutrient Management Act, and have care to make the ordinance restrictions correspond to those imposed by State law.

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