Schwartz v. Chester County Agricultural Land Preservation Board

Commonwealth Court of Pennsylvania, Nos. 183 C.D. 2017, 226 C.D. 2017, March 2, 2018: Third-party can’t enforce easement or appeal county interpretation of easement.

This case concerns whether an industrial waste collection and processing facility comes within the definition of “agricultural production” in a Pennsylvania conservation easement and whether a third-party has rights to enforce the conservation easement.

The conservation easement (Easement) burdens a farm (Property) and was granted to the town and the Chester County Agricultural Land Preservation Board (Board) pursuant to a program to limit development and use of agricultural land for nonagricultural purposes. Arborganic Acres, LLP (Arborganic), after informing the Board of its plans, began operating an organic composting business on a portion of Easement land. (“The business accepts manure, yard waste, and some food processing waste from the surrounding area to create organic compost which is then used on the owner’s farm and other local properties.”)

Sally Schwartz (Appellant) submitted a “Formal Complaint” to the Board claiming that the operation is an industrial waste collection and processing facility in violation of the terms of the Easement and asking the Board to take action to enforce the Easement and bring the Property into compliance. Following an inspection visit and a meeting to allow members of the public to voice their concerns regarding Arborganic’s operations at the Property, the Board concluded, in a letter to the Appellant and Arborganic that “[t]he operations taking place upon the [Property] appear to be consistent with the terms of the [Easement] in place.”

Schwartz asked the county Court of Common Pleas (Trial Court) to review the Board’s action. The trial court denied the Board’s motion to dismiss the action but ruled that the composting business did not violate the Easement. The trial court reasoned that it is impossible to have agricultural production without normal farming operations and so the Easement necessarily permits normal farming operations, including composting.

Both sides appealed. The appellate court leaves in place the trial court’s interpretation of the Easement but also grants the Board’s motion to dismiss the petition for review of the Board’s decision not to take action against Arborganic.

The court agreed with the trial court that the composting use comes within the “ambit of `normal farming operations,’” as that term is defined by the Pennsylvania Agricultural Area Security Law (AASL; 3 P.S. §§ 901-915). The court also approved the trial court’s reliance

in part on the purpose identified in the Department of Agriculture Regulations in the Pennsylvania Code for this county easement purchase program, which includes to “protect normal farming operations in agricultural security areas from incompatible nonfarmland uses that may render farming impracticable,” and to “protect normal farming operations from complaints of public nuisance against normal farming operations.” (7 Pa. Code § 138e.14(3).)

The court also ruled that the Appellant does not have a third-party right to enforce the terms of the Easement or to appeal the Board’s decision embodied in its letter responding to Schwartz’s “Formal Complaint.”

The court noted that the terms of the Easement specifically provide the Board with the power to determine if there has been any actual or threatened violation of the Easement and the right to demand corrective action and other remedies, but they do not provide third-parties with an enforcement right. Similarly, the court said, the regulations governing the county’s easement program do not provide for a third-party right of enforcement, nor does the AASL or Pennsylvania’s Conservation and Preservation Easements Act (CPEA; 32 P.S. §§ 5051-5059).

Essential to the court’s rejection of the Appellant’s argument that the Board’s letter decision should be appealable in court, the court held that the letter was not an “adjudication.” The court cited earlier decisions holding that “when an agency considers whether or not to take an enforcement action, it exercises prosecutorial discretion that is beyond judicial review” [emphasis added by PLD]. It noted that the Pennsylvania Agricultural Area Security Law (AASL) places the Board in a prosecutorial role (3 P.S. § 914.1(a), (b)(2)(C)(xv), (xvii)) and does not create a forum where a landowner or other party has an opportunity to be heard concerning either allegations of a violation or violations found by the Board following inspection. In addition, the court wrote, the Pennsylvania Agricultural Code (7 Pa. Code. § 138e.206) reserves the judicial function to the court of common pleas and does not place it in the county boards. The court reasoned that even if the letter was not beyond judicial review, it would not meet the criteria of an adjudication under the Local Agency Law (2 Pa. C.S. § 101).  The Local Agency Law, the court said, applies only to a “final” order, decree, decision, determination or ruling, and the letter is not final because “the Board has a continuing duty to inspect the Property and to ensure compliance with the terms of the Easement. Even if the Board had found a violation and issued a notice to the [Property owner], the notice of violation would still not be a final action because the AASL requires the Board to provide the [Property owner] with the opportunity to take corrective action.”

The decision is available at

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