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RULES AND REGULATIONS

DEPARTMENT OF AGRICULTURE

[7 PA. CODE CHS. 137, 137a AND 137b]

Preferential Assessment of Farmland and Forest Land Under the Clean and Green Act

[31 Pa.B. 1701]

   The Department of Agriculture (Department) hereby rescinds the regulations in Chapter 137 (relating to preferential assessment of farmland and forest land), rescinds the interim regulations in Chapter 137a (relating to clean and green act--statement of policy) and adopts the regulations in Chapter 137b (relating to preferential assessment of farmland and forest land under the Clean and Green Act) to read as set forth in Annex A.

Authority

   The Department has the power and authority to adopt these regulations. Section 11 of the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (72 P. S. § 5490.11), commonly referred to as the Clean and Green Act (act), requires the Department promulgate regulations necessary to promote the efficient, uniform, Statewide administration of the statute. In addition, section 12 of the act of December 12, 1998 (P. L. 1255, No. 156) (Act 156) amended the act to allow the Department to implement the interim regulations which are currently in Chapter 137a without proceeding through the regulatory promulgation process ordinarily required by law. It also required the Department to replace this statement of policy with formal regulations by April 30, 2001.

Need for the Regulations

   There is an immediate need for the regulations. As stated, Act 156 requires the Department to replace the current statement of policy with formal regulations by April 30, 2001. In addition, the regulations replace current outdated and inadequate regulations and help bring about uniform interpretation and application of the act throughout this Commonwealth.

   In summary, the Department is satisfied that there is a need for the regulations, and that they are otherwise consistent with Executive Order 1996-1, ''Regulatory Review and Promulgation.''

Comments

   Notice of proposed rulemaking was published at 30 Pa.B. 4573 (September 2, 2000) and provided for a 30-day public comment period.

   Comments were received from the Chairpersons of the House and Senate Agriculture and Rural Affairs Committees (Legislative Committees), Representative Italo S. Cappabianca, Representative Robert W. Godshall, the Independent Regulatory Review Commission (IRRC), the Clean and Green Committee of the Assessors' Association of Pennsylvania (Assessors' Committee), the Chief Assessor for the County of Sullivan (Sullivan County), the Chief Assessor and Solicitor for the County of Montgomery (Montgomery County), the Director of Legislation for the Pennsylvania State Association of Township Supervisors (PSATS), the Pennsylvania Farm Bureau (PFB) and Attorney John S. Halsted from Chester County (Attorney Halsted). In addition, the Assessors' Association of Pennsylvania (Assessors' Association) met with representatives of IRRC after the close of the public comment period, and forwarded several comments to IRRC as a result of that meeting.

   Both the PFB and the Legislative Committees raised objections with respect to a version of the final-form regulations that were submitted to IRRC and the Legislative Committees in January 2001. As a result, the Department withdrew that version of the final-form regulations to consider the objections. Legislative Committee staff met with representatives of the PFB and drafted revisions, the substance of which are incorporated into the final-form regulations.

   The Department greatly appreciates the effort and analysis the commentators devoted to the comments they offered. The Department also acknowledges the assistance of many of these commentators in helping to review and draft earlier versions of the proposed regulations.

   A summary of the comments received by the Department, and the Department's response to each, follows:

   Comment:  The PSATS offered that the implementation of the revisions made to the act by Act 156 ''. . . has the potential to dramatically reduce the (tax) revenue stream to counties, school districts and townships.'' The commentator also noted the PSATS membership adopted a resolution at its April 2000 State convention calling for ''. . . a delay in implementation of Act 156 of 1998, and further, to require an examination of Act 156 of 1998 to determine the finalncial effects of the act on municipalities and make the necessary changes to relieve any finalncial strain inflicted upon them.'' The commentator also relayed the growing concern among townships regarding the ''. . . potential loss of revenue from land that would qualify for exemption under Act 156, but will never be used for agricultural purposes.''

   Response:  The Department is without authority to delay the final-form regulations. The act requires they be promulgated by April 30, 2001. The Department appreciates the concerns of the various taxing bodies that must deal with the preferential assessment of enrolled land within their particular jurisdictions.

   Comment:  Sullivan County offered several specific comments which are addressed as follows. In addition, it offered the general comment that the proposed regulations are an improvement over the prior regulations.

   Response:  The Department accepts the comment.

   Comment:  IRRC raised the general comment that the Department has not provided any estimate concerning the fiscal impact of these regulations on local government, and asked: ''What will be the economic impact of this regulation on municipalities and school districts?''

   Response:  It must be emphasized that the final-form regulations implement the requirements of the act and that any finalncial impacts are the result of the statute, rather than the final-form regulations. It is not the final-form regulations that establish preferential assessment or require recalculation of preferential assessment in accordance with the most recent revisions to the act--it is the act itself that requires this. The Department simply cannot provide a good-faith estimate of the finalncial impact upon municipalities or school districts resulting from the implementation of the act.

   Comment:  Several comments were received with respect to proposed § 137b.1(b) (relating to purpose). Sullivan County quoted the last sentence of that subsection, which states it is the ''. . . intent of the act is to protect the owner of enrolled land from being forced to go out of agriculture, or sell part of the land to pay taxes.'' The commentator asked whether it was the intention of the act to preserve open space, rather than preserve agricultural land.

   The Legislative Committees, Representative Cappabianca and IRRC were also critical of this provision, and recommended the entire finall sentence of proposed § 137b.1(b) be deleted.

   Response:  The Department accepts these comments and has deleted the finall sentence of proposed § 137b.1(b). The Department believes the statement of purpose set forth in proposed § 137b.1 is consistent with PA. CONST. art. 8, § 2. That section authorizes the Legislature to make special provisions for the taxation of forest, agricultural reserve and agricultural lands. This Constitutional authority is restated, in part, in the formal title of the act, which references the establishment of a procedure ''. . . under which an owner may have land devoted to agricultural use, agricultural reserve use, or forest reserve use, valued for tax purposes at the value it has for such uses . . .''

   Comment:  Sullivan County also offered the following comment with respect to proposed § 137b.1: ''. . . shouldn't those utilizing their properties as second or vacation homes be excluded from Clean and Green? Maybe there should be income guidelines for enrollment.''

   Response:  Although the Department understands the commentator's point, there is no statutory basis for the Department to discriminate against a person seeking to enroll agricultural, agricultural reserve or forest reserve land on the basis that the residential structure on that land is a second home for the landowner, and for this reason declines to revise the regulation.

   Similarly, the Department does not believe it could--in the absence of explicit statutory authority--establish a requirement that a tract of enrolled land generate a particular annual income from agricultural production as a prerequisite to enrollment.

   Comment:  PFB recommended the term ''rate'' in the first sentence of proposed § 137b.1(b) be replaced with the phrase ''value for tax assessment purposes'' or ''tax assessment value.'' PFB offered that this term would help readers understand the term is not referring to ''millage rate,'' but to the assessment value assigned by the county.

   Response:  The Department has implemented this recommendation in the final-form regulations, inserting the replacement phrase ''value for tax assessment purposes.''

   Comment:  IRRC offered a general comment with respect to terms that are defined in section 2 of the act (72 P. S. § 5490.2) (relating to definitions) and repeated in proposed § 137b.2 (relating to definitions). It suggested that rather than repeating definitions from the act, the final-form regulations should simply replace the regulatory definition with a phrase such as ''As defined in the Act.''

   Response:  Although IRRC's point is well-taken, the Department declines to implement the suggestion. The Department prefers to have the statutory definitions repeated in the final-form regulations. This approach will spare persons referring to the final-form regulations from having to cross-reference the regulation with the act to determine definitions of terms used throughout the final-form regulations.

   Comment:  The Assessors' Committee suggested the various terms used in subparagraph (i) of the definition of ''agricultural commodity'' in proposed § 137b.2 be separately defined. These terms include apicultural, aquacultural, horticultural, floricultural, silvicultural and viticultural.

   Response:  The Department declines to implement this suggestion in the final-form regulations.

   Comment:  The Assessors' Committee noted the use of the phrase ''on farms'' in subparagraphs (vi) and (vii) of the definition of ''agricultural commodity'' in proposed § 137b.2, and suggested the phrase ''on the farms'' be inserted in its place. The Assessors' Committee offered that the recommended change would make clear that, for purposes of the regulation, the production of agricultural commodities would have to occur on the enrolled farm.

   Response:  Although the commentator's point is well-taken, the Department declines to implement commentator's suggestion since the referenced definition is from section 2 of the act.

   Comment:  Sullivan County recommended the term ''open space lands'' be defined. The term is used in the definition of ''agricultural reserve'' in section 2 of the act. The commentator offered that, in the absence of a definition, the term might be interpreted as meaning wooded or field land that is free of any kind of improvement. The commentator further offered that in Sullivan County there are a number of private lake associations that own hundreds of wooded acres around their respective lakes ''simply to keep away development.'' The commentator asked whether this type of land might fit within the definition of ''agricultural reserve.''

   Response:  The Department declines to include a definition of ''open space lands'' in the final-form regulations. The Department notes the absence of a definition of this term in the act, and believes this suggests the term should be construed liberally.

   As to the question of whether the referenced wooded acreage qualifies as ''agricultural reserve'' land, the Department is unable to provide an answer with the limited information before it, but notes the land might also qualify for preferential assessment as forest reserve land.

   Comment:  The Assessors' Committee reviewed the definitions of ''capitalization rate'' and ''net return to land'' in proposed § 137b.2, and suggested that if the effective tax rate is to be considered in calculating the ''capitalization rate,'' then ''real estate taxes'' should be excluded from the calculation of operating expenses used in determining the ''net return to land.''

   Response:  The definitions of the terms ''capitalization rate'' and ''net return to land'' are repeated verbatim from section 2 of the act. Although the commentator's point is well-taken, the Department cannot change statutory definitions by regulation.

   Comment:  The Legislative Committees recommended the proposed definition of ''contributory value of farm building'' be revised to mirror the definition of that term in the act. It also suggested proposed subparagraphs (i) of that definition could be reworked into § 137b.54 (relating to calculating the contributory value of farm buildings).

   Representative Cappabianca offered essentially the same comment as the Legislative Committees on this issue, and recommended the deletion of subparagraphs (i) and (ii) under this definition.

   IRRC offered its agreement with the Legislative Committees' recommendation.

   Response:  The Department has revised the definition to mirror the definition appearing in section 2 of the act.

   Comment:  The Legislative Committees recommended the Department delete ''a'' from the definition of ''enrolled land'' in proposed § 137b.2.

   Response:  This recommendation is implemented in the final-form regulations.

   Comment:  The Legislative Committees recommended the definition of ''forest reserve'' in proposed § 137b.2 be made identical to the statutory definition of that term. The commentators further suggested the subject matter set forth in subparagraph (ii) of that proposed definition be moved to § 137b.14 (relating to forest reserve).

   IRRC concurs with the Legislative Committees' recommendation in this regard.

   Response:  The recommendation is implemented in the final-form regulations.

   Comment:  The Legislative Committees, Representative Cappabianca and Representative Godshall took issue with the definition of ''outdoor recreation'' in proposed § 137b.2. The definition of ''agricultural reserve'' land in section 2 of the act requires that land be ''. . . used for outdoor recreation or the enjoyment of scenic or natural beauty . . .''

   In its administration of the current regulations, the Department has repeatedly been presented with the question of whether certain activities on agricultural reserve land would constitute ''outdoor recreation'' for purposes of the act. The Department has consistently taken the position that ''outdoor recreation'' constitutes the passive use of the land, and should not entail the grading of the land, the establishment of athletic fields on the land, the erection of structures, parking areas or permanent facilities on the land or the taking of any other action that effectively eliminates the possibility the land would, at some point, be used for agricultural production.

   Although the Legislative Committees had not originally favored including a definition of ''outdoor recreation'' in the regulation, it has indicated it would agree to a revision of the proposed definition that would allow for athletic fields to be established on agricultural reserve land.

   Representative Cappabianca took issue with subparagraphs (i) and (ii) of the definition, and noted that the ''. . . examples provided by the department add further confusion and are more restrictive than the Act intended.''

   Along similar lines, the focus of the Representative Godshall's objection is the proposed language that would exclude ''the use of the land for baseball, soccer fields, football fields, golf courses or similar uses'' from being considered ''outdoor recreation.'' Representative Godshall noted that many of the youth recreational baseball and soccer league fields in the district he serves are on enrolled agricultural reserve land. Representative Godshall further commented as follows:

. . . The owners of the land recognize the need of these youth leagues for fields and their finalncial inability to pay for such. As good citizens of the community, they are happy to allow such a use free of charge. Were the land to become ineligible for Clean and Green, I can assure you that these recreational areas would no longer be made available and literally thousands of kids would be thrown out into the streets.
I request that changes be made to these proposed regulation which allow for this passive, and at-no-charge, use of Clean and Green property. To do otherwise would result in either removal of large tracts from Clean and Green, or the loss of a large number of baseball and soccer fields used by volunteer recreation organizations. I do not believe either scenario is acceptable.

   Response:  Although the Department disagrees with the commentators, it has revised the definition in accordance with the commentators' suggestions. Ultimately, the Department accedes to the interpretation of Legislators as to the intent of the act.

   Comment:  The Legislative Committees recommended the definition of ''roll-back tax'' in proposed § 137b.2 be revised to read exactly as it appears in section 2 the act. The Assessors' Committee noted this proposed definition did not include any reference to the requirement that a person liable for payment of roll-back taxes also pay interest on each year's roll-back taxes at the rate of 6% per annum. This language had appeared in earlier drafts of the proposed regulation that were circulated for review and comment.

   IRRC concurs with the Legislative Committees' recommendation.

   Response:  The Department has implemented the Legislative Committees' recommendation.

   In response to the comment offered by the Assessors' Committee, the Department agrees that it would be less cumbersome if the definition of ''roll-back tax'' included the required interest component. The definition, though, is repeated from section 2 of the act. The provision adding the interest component to roll-back taxes is found elsewhere in section 5a of the act (72 P. S. § 5490.5a) (relating to responsibilities of the county assessor in general). Although the Department cannot change statutory definitions by regulation, the comment prompted a review of the document to ensure that the phrase ''plus interest,'' or words to that effect, follow every reference to liability for roll-back taxes.

   Comment:  IRRC reviewed the definition of ''rural enterprise incidental to the operational unit'' in proposed § 137b.2. IRRC's entire comment follows:

This phrase is defined as a ''commercial enterprise or venture.'' Section 8(d) of the Act refers to this activity as ''direct commercial sales of agriculturally related products and activities or for a rural enterprise incidental to the operational unit.'' The definition should be amended to incorporate the language of the Act.

   Response:  The Department declines to implement this recommendation. The act does not define ''rural enterprise incidental to the operational unit.'' The quoted statutory provision refers to ''direct commercial sales of agriculturally related products and activities'' and a ''rural enterprise incidental to the operational unit'' as two separate things, but defines neither. The Department believes its definition of ''rural enterprise incidental to the operational unit'' is not inconsistent with any provision of the act. Significantly, the Department notes that the Legislative Committees, which offered extensive comments throughout the process of drafting the proposed regulations and with respect to the proposed regulations itself, have not objected to the proposed definition.

   Comment:  The Legislative Committees objected to the use of the term ''enrolled land'' in the definitions of ''separation'' and ''split-off'' in proposed § 137b.2. The act uses the phrase ''lands devoted to agricultural use, agricultural reserve or forest reserve and preferentially assessed under the provisions of this act'' instead of ''enrolled land.''

   IRRC recommended the referenced definitions mirror the definitions contained in the act.

   Response:  The Department has revised these definitions in response to the Legislative Committees' objection.

   Comment:  The Legislative Committees recommended the definition of ''transfer'' in proposed § 137b.2 be revised by eliminating the second sentence and deleting the word ''contiguous'' from the first sentence. The Legislative Committees offered that section 6(a.3) of the act (72 P. S. § 5490.6(a.3)) (relating to split-off, separation or transfer).

   IRRC endorsed the Legislative Committees' recommendation.

   The Assessors' Committee expressed its confusion with respect to this same definition, and requested an explanation.

   Response:  The recommendation has been implemented in the final-form regulations. The Department believes this revision makes the definition more clear.

   Comment:  The Legislative Committees and Representative Cappabianca recommended proposed § 137b.3(a) (relating to responsibilities of the Department) be revised to reflect that the Department would provide the referenced forms and use values by May 1 of each year.

   Response:  The recommendation has been implemented in the final-form regulations.

   Comment:  The Assessors' Committee reviewed proposed § 137b.3(a) and asked: ''Is a statewide, uniform application anticipated or is every county on their own for its development?''

   Response:  The Department will develop and distribute the referenced forms, in accordance with § 137b.41 (relating to application forms and procedures) of the final-form regulations.

   Comment:  The Legislative Committees recommended a new subsection--subsection (c) be inserted in proposed § 137b.3 to provide that the Department would act as an educational and advisory resource on matters related to the administration and interpretation of the act. Representative Cappabianca endorsed this recommendation, as well.

   Response:  The Department has added a subsection describing its educational outreach role. The Department conducts an active educational outreach effort and answers questions posed by interested landowners, county assessors, legislators and others regarding the act. The subsection does not require the Department to issue legal opinions or act as a court in resolving questions that arise under the act or the final-form regulations.

   Comment:  IRRC suggested proposed § 137b.4 (relating to contacting the Department) be revised to include an e-mail address for use in contacting the Department.

   Response:  Although the Department agrees this is a good suggestion, the Department's current e-mail system does not have an e-mail address for the Bureau of Farmland Protection, the Bureau to which questions relating to the act or this chapter would be referred. Individual employees of the Department have e-mail addresses, and will make use of e-mail in responding to questions and requests.

   Comment:  The Legislative Committees suggested proposed § 137b.12 (relating to agricultural use) be revised to include the term ''agricultural commodity,'' a term defined in section 2 of the act, rather than the undefined term ''agricultural production.''

   IRRC offered its endorsement of the Legislative Committees' suggestion.

   The Legislative Committees also suggested reference be made to the fact that agricultural use land may be enrolled in Federal soil conservation programs. This is specifically provided for in the definition of that term in section 2 of the act.

   Response:  The Legislative Committees' suggestion has been implemented in the final-form regulations.

   Comment:  Several comments were received with respect to proposed § 137b.13 (relating to agricultural reserve).

   The Legislative Committees and Representative Cappabianca suggested the requirement that at least 60% of the land be comprised of soils falling with USDA-NRCS land capability classes I--VI be deleted, offering that this requirement exceeded the authority of the act. Both IRRC and Montgomery County offered essentially the same comment.

   The Legislative Committees suggested the Department insert some reference to the fact that woodlots are considered part of agricultural reserve land. This reference is contained in the act, in the definition of ''woodlot'' in section 2 of the act.

   Response:  The suggestions of the commentators have been implemented in the final-form regulations.

   Comment:  The Legislative Committees and IRRC question whether the Department has authority under the act to impose the 25-cubic-foot-per-acre timber production capability requirement for forest reserve land in proposed § 137b.14.

   Response:  The Department has removed the referenced requirement from the final-form regulations.

   Comment:  IRRC suggested proposed § 137b.14 be revised by adding language from subparagraph (ii) of the definition of ''forest reserve'' in proposed § 137b.2. That language addresses land that is rented to another for the purpose of producing timber products.

   The Legislative Committees offered a similar recommendation.

   Response:  The recommendations have been implemented in the final-form regulations.

   Comment:  IRRC recommended proposed § 137b.22 (relating to landowner may include or exclude from the application tracts described in separate deeds) be revised by adding references to the fact that individual adjoining tracts may be combined to meet the minimum eligibility requirements, and that a tract that does not meet these minimum requirements may receive preferential assessment if it adjoins an enrolled tract owned by the same landowner.

   Response:  The Department declines to implement this recommendation. The suggested additions already appear in the final-form regulations, in §§ 137b.19(1)(i) and 137b.23(a) (relating to multiple tracts on a single application; and land adjoining preferentially assessed land with common ownership is eligible).

   Significantly, the Department notes that the Legislative Committees, which offered extensive comments throughout the process of drafting the proposed regulation and with respect to the proposed regulation itself, offered no objection to proposed § 137b.22.

   Comment:  PFB recommended proposed § 137b.22 be revised by adding language affirming that a county assessor cannot deny an application for preferential assessment simply on the basis of the landowner's decision to exclude a separately-deeded contiguous tract from the application, or deny an application on the basis that one of two or more contiguous tracts does not, by itself, meet the eligibility requirements for preferential assessment.

   Response:  The Department declines to implement this recommendation, since the basic subject matter of the recommended language is addressed in §§ 137b.19(1), 137b.21 (relating to exclusion of noncontiguous tract described in a single deed) and 137b.22.

   Comment:  The Legislative Committees recommended changing the title of proposed § 137b.24 (relating to ineligible land) to ''ineligible land.''

   Response:  The Department has implemented this recommendation in the final-form regulations.

   Comment:  The Legislative Committees and Representative Cappabianca recommended the Department delete the sentence preceding the example in proposed § 137b.24, since the ''. . . General Assembly determined eligibility requirements as stated in the act.''

   Montgomery County offered a similar comment, stating that the now-deleted sentence was confusing.

   IRRC also agreed with the commentators, noting that the ultimate determinants of eligibility for preferential assessment are the requirements and standards set forth in the act.

   Response:  The Department has implemented the recommendation of the Legislative Committees', Representative Cappabianca and IRRC in the final-form regulations. This also provides Montgomery County the changes it requested.

   Comment:  The Legislative Committees suggested the language appearing in the example in proposed § 137b.24 prohibiting a county from requiring ineligible land to be surveyed-out or deeded as a prerequisite to consideration of the application be deleted and restated in the text of that section.

   Montgomery County also found the referenced example confusing, and suggested the Department eliminate the reference to a tract being ''surveyed-out'' from the finall-form regulation.

   Response: The Department accepts these suggestions, and has implemented them in the final-form regulations.

   Comment:  The Legislative Committees offered several grammatical revisions to Examples 1 and 2 in proposed § 137b.26 (relating to land located in more than one tax district).

   The Legislative Committees also suggested language in Example 2 indicating that an application would have to be filed in each county in which the land was located be deleted.

   IRRC raised a similar concern with respect to Example 2, recommending it be made consistent with proposed § 137b.43 (relating to applications where subject land is located in more than one county).

   Response:  The requested revisions have been made in the final-form regulations.

   Comment:  The Legislative Committees ''strongly recommended'' proposed § 137b.27 (relating to assessment of ineligible land) be revised by deleting any reference to ''buildings'' in that section. The Legislative Committees offered that the inclusion of this word would be irrelevant and may cause misinterpretation of the act.

   IRRC endorsed this recommendation.

   Response:  The recommendation has been implemented in the final-form regulations.

   Comment:  The Legislative Committees offered several comments with respect to proposed § 137b.41. Initially, the Legislative Committees suggested the ''Clean and Green Valuation Application'' and ''Clean and Green Worksheet,'' referenced in proposed § 137b.41(a) and (b), be attached to the final-form regulations.

   IRRC offered an alternative to the inclusion of the referenced forms in an appendix to the regulation. IRRC suggested the final-form regulations set forth the type of information that will be requested on the referenced forms, rather than the forms themselves.

   Response:  The Department declines to implement the Legislative Committees' suggestion. The Department would prefer to be able to make necessary revisions or corrections to these forms outside the regulatory promulgation process. The Department will provide copies of the referenced forms to all county assessors, and will also provide them revised versions of these forms when/if revisions occur.

   With respect to IRRC's alternative, the Department has revised the final-form regulations to indicate the type of information that will be required on the Clean and Green Valuation Application. The Department believes the Clean and Green Worksheet is self-explanatory, and has not summarized it in the final-form regulations.

   Comment:  The Legislative Committees had no specific revisions to offer with respect to proposed § 137b.41(d), but noted that the required language set forth in that subsection, which is prescribed by section 4(c) of the act (72 P. S. § 5490.4(c)) (relating to applications for preferential treatment), does not appear in the Department's most recent draft of the application form.

   Response:  The application form has been revised to set forth this required language.

   Comment:  The Legislative Committees suggested that proposed § 137b.41(e) should be revised to make clear the requirement of section 3(e) of the act (72 P. S. § 5490.3(e)), which prohibits a county assessor from imposing conditions or requirements for eligibility for preferential assessment other than those prescribed by the act.

   IRRC also offered a comment with respect to this subsection. IRRC suggested the subsection be revised to include examples of the types of information a county assessor might request, and require the county assessor to conduct a ''completeness review'' of the application within 30 days of receipt.

   PFB offered a comment that was similar to one offered by IRRC. The PFB suggested this subsection be revised to designate various types of proof that would automatically be recognized as adequate proof for establishing eligibility for preferential assessment under each of the land use categories. The PFB also provided recommended language to accomplish this revision.

   Response:  The Department believes the referenced subsection does not authorize a county assessor to impose new or different eligibility requirements for preferential assessment under the act. The subsection does, though, afford a county assessor reasonable discretion to require that a landowner demonstrate that the land described in an application for preferential assessment meets the eligibility requirements prescribed by the act.

   With respect to the comments offered by IRRC and the PFB, the Department declines to provide a list of examples of the type of information a county assessor might reasonably require. It has been the experience of the Department that when it provides such a list, a county assessor might either refuse to accept any documentation that is not contained on the list, or require a specific type of document on that list (such as a formal forestry management plan) in all instances.

   The Department also declines to implement IRRC's suggestion that the final-form regulations require a county assessor to conduct a ''completeness review'' of an application within 30 days of receipt of the application. The act imposes in section 4, a general requirement that a county assessor process applications in a timely manner. The Department believes this is sufficient to require a county assessor to move an application along through the review process, and that further regulation is not necessary. In addition, the Department does not believe it has statutory authority to impose any sanction or adverse consequences upon a county assessor who failed to meet such a deadline.

   Comment:  The PFB suggested that proposed § 137b.41(f) be revised by deleting the requirement that signatures on an application for preferential assessment be notarized:

. . . We feel the added protection that the requirement for notarization of signature may potentially bring is not worth the actual aggravation the requirement will cause for landowners.

   Response:  Although the Department acknowledges that it might be inconvenient for an applicant to affix a notarized signature to an application for preferential assessment, it is also aware that county recorders of deeds will not file approved applications unless the applicant's signature is notarized. For this reason, the commentator's suggestion has not been implemented.

   Comment:  The Legislative Committees suggested the Department be certain that proposed § 137b.43 be revised, if necessary, to be consistent with the finall-form version of § 137b.26 in terms of whether an application must be filed in each taxing district.

   Response:  The Department accepts this suggestion. The finall-form versions of each of these sections reflect the application need only be filed in the jurisdiction in which the landowner pays property taxes.

   Comment:  The Legislative Committees suggested the title of proposed § 137b.46 (relating to fees of the county board for assessment appeals; recording fees; processing fees) be revised to indicate the section also describes recording fees, and to indicate a distinction between recording fees and processing fees.

   The Legislative Committees renewed its earlier-stated position that: ''. . . the intent of the General Assembly is that no fees, other than the initial processing and necessary recording fees, are to be imposed on a landowner.'' The commentator recommended the Department delete language that would allow a county assessor to charge a $50 fee for processing changes other than those resulting from split-off, separation or transfer. The commentator also recommended a new subsection be added to state that a fee can not be charged if an application is denied.

   IRRC recommended the final-form regulations make specific reference to those provisions of the act relating to fees. These provisions are in section 4(d)--(f) of the act.

   Response:  The Department has revised the title of this section in accordance with the Legislative Committees' recommendation, and has made the recommended deletions in the final-form regulations.

   The Department has also added subsection (c), prohibiting the collection of a recording fee with respect to an application that is ultimately rejected. This is consistent with section 4(d) of the act.

   With regard to the comment offered by IRRC, the Department has included the recommended statutory references in the final-form regulations.

   Comment:  PFB also offered a comment with respect to proposed § 137b.46(a). It recommended the following sentence be added at the end of that subsection, to cross-reference the governing section on recording fees: ''The amount of recording fee that may be charged is subject to the limitations prescribed in § 137.82.''

   Response:  The Department believes the regulatory provision is sufficiently clear and declines to implement PFB's recommendation in the final-form regulations.

   Comment:  The Legislative Committees recommended several minor grammatical revisions to proposed § 137b.51(b)(1), (c)(1) and (2) (relating to assessment procedures).

   Response:  These recommendations have been implemented in the final-form regulations.

   Comment:  The Assessors' Committee reviewed proposed § 137b.51(d), which describes the mathematical process by which preferential assessment is determined. The commentator recommended the provision be revised to reflect that the finall number arrived at under the proposed formula should then be multiplied by the pre-determined ratio in effect for the particular county to arrive at the assessment, to which the millage rate is then applied.

   IRRC offered substantially the same comment, suggesting the term ''established predetermined ratio,'' as set forth in section 102 of the General County Assessment Law (72 P. S. § 5020-102), be incorporated into the basic formula described in this section.

   Response:  The recommendations have been implemented in the final-form regulations.

   Comment:  The PFB reviewed proposed § 137b.51(e) and (f), which describe the option of county assessors to establish and use lower use values than those provided by the Department. The PFB noted that subsection (e) allows county assessors to use lower land use values for land use subcategories, while subsection (f) allows county assessors to use lower land use values for land use categories. The commentator recommended subsection (f) be revised to consistently use the term ''land use subcategory'' rather than ''land use category.''

   Response:  The suggestion has been implemented in the final-form regulations.

   Comment:  The Assessors' Committee suggested proposed § 137b.52 (relating to duration of preferential assessment) be revised by deleting the finall sentence of subsection (b) and deleting Examples (3) and (4). The commentator noted that there is no provision in the act allowing for the unilateral withdrawal from preferential assessment by a landowner. In short, preferential assessment ends when the use of the enrolled land is changed to something other than agricultural, agricultural reserve or forest reserve. The commentator believes the inclusion of the referenced provisions is not appropriate. The Assessors' Association offered substantially the same comment.

   The substance of this comment was restated by the Legislative Committees. In addition, the Legislative Committees recommended the deletion of the finall sentence of proposed § 137b.52(b) and Examples (1) and (2).

   IRRC recommended the deletion of the finall sentence of proposed § 137b.52(b) and Examples (3) and (4).

   Sullivan County also offered its general disagreement with proposed § 137b.52(b).

   Representative Cappabianca recommended the deletion of the finall sentence of subsection (b), and the deletion of Examples (3) and (4) under that subsection.

   Attorney Halsted noted that Example (3) did not indicate which ''landowner'' is liable for the payment of roll-back taxes plus interest.

   Montgomery County also suggested the final-form regulations delete the proposed language relating to voluntary payment of roll-back taxes plus interest in advance of change-of-use. Representative Cappabianca endorsed Montgomery County's suggestion.

   Both Montgomery County and Attorney Halsted offered comments in favor of allowing a landowner to voluntarily end preferential assessment without changing the use of the enrolled land. Attorney Halsted referenced a situation where an owner of enrolled land seeks to convey the enrolled land for some use other than agricultural, agricultural reserve or forest reserve. Montgomery County offered the following:

. . . In any other covenant/contract, one party may voluntarily breach the covenant and bear the consequences. There should be a provision to allow the owner of a property enrolled in Act 319 to voluntarily request termination from Clean and Green. There is nothing in the Act to preclude this.

   Response:  The Department has deleted language describing the advance payment of roll-back taxes plus interest from the final-form regulations, in accordance with the suggestions offered by the Assessors' Committee, the Legislative Committees, IRRC, Montgomery County and Sullivan County. The Department notes that, as written, the proposed section did not allow a landowner to unilaterally terminate preferential assessment. Instead, it allowed a landowner to make advance payments toward the roll-back taxes and interest that would be due upon subsequent change to an ineligible use.

   The Department has not implemented Attorney Halsted's suggestion or Montgomery County's suggestion that language be added to allow for the voluntary termination of preferential assessment without change of use of the enrolled land. The Department believes the section 4(b) of the act requires that preferential assessment continue until land use change takes place.

   Comment:  The PFB also offered extensive comments with respect to proposed § 137b.52(c) and (d). In summary, the PFB expressed concern that:

. . . the proposed regulations do not give sufficiently clear guidance on the effect of a change in use of one portion of enrolled land that triggers roll-back taxes, plus interest, on all of such land will have in terminating preferential assessment of the ''remainder'' that is not directly affected by the land use change.

   The PFB takes the position that preferential assessment of enrolled land must end when roll-back taxes, plus interest, are due with respect to that enrolled land. If the land or some portion thereof remains eligible for preferential assessment, the landowner may reapply for preferential assessment. The PFB strongly recommended the proposed subsections be revised to state that preferential assessment of enrolled land is terminated when roll-back taxes plus interest, are triggered.

   Following the Department's withdrawal of an earlier version of this final-form regulations, however, the PFB and Legislative Committee staff met and reached agreement as to the substance of the revisions appearing in § 137b.52 of the final-form regulations.

   Response:  The Department has revised proposed § 137b.52(c) and (d) to clarify that where a split-off occurs on some portion of enrolled land and roll-back tax liability is triggered on the entirety of the enrolled land as a result, the landowner may terminate preferential assessment of the entirety of the enrolled land by providing the county assessor the written notice of termination required under section 3(d) of the act. Where the landowner does not seek to terminate preferential assessment of the remaining land, and the remaining land continues to be eligible for preferential assessment, though, preferential assessment of the remaining land shall continue uninterrupted.

   As stated, the revisions of the referenced subsections were drafted with the assistance of Legislative Committee staff and PFB.

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