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IN THE COURT OF COMMON PLEAS
CUMBERLANDCOUNTY,PENNSYLVAN~
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RICHARD G. AND SHELVAJ.
MAINS,
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Appellant
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CUMBERLAND COUNTY
AGRICULTURAL LAND PRESERVATION
BOARD,
Appellee
NOTICE OF APPEAL
Richard G. Mains and Shelva J. Mains, Appellants, by their attorneys, Mette,
Evans & Woodside, hereby appeal the decision of the Cumberland County
Agricultural Land Preservation Board denying Appellants' request to subdivide an
approximately 13-acre tract of land and in support thereof, aver as follows:
1. Richard G. and Shelva J. Mains are the owners of a tract ofland located
at 191 LeFever Road, Newville, Pennsylvania, Cumberland County, West Pensboro
Township, consisting of approximately 129 acres ("Property"), and acquired by it by
Deed dated March 23,1998 and recorded in the Office of the Recorder of Deeds of
Cumberland County in Deed Book 173, page 1094 on March 23, 1998.
2. Appellants desired to subdivide the house, buildings and approximately
13 acres ("13-acre tract") under and around the buildings from the 129-acre parent
tract for the purpose of selling the 13-acre tract.
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3. Allor at least a large majority of the Property was enrolled in the
Pennsylvania Farmland Preservation Program, in which the ag conservation
easements for the property were conveyed to the Commonwealth of Pennsylvania and
to Cumberland County, by Deed of Agricultural Conservation Easement dated June
19,1995 and recorded in the Office of the Recorder of Deeds of Cumberland County
in Book 498, page 976 on June 28, 1995.
4. The Pennsylvania Farmland Preservation Program requires certain
conditions to be met for a subdivision to be approved as further described in 3 P.S.
~914.1(i) ~7 Pa Code H38e.225 and 226; Cumberland County's Agricultural Land
Conservation Easement Program materials; and the Subdivision Guidelines for Land
Subject to an Agricultural Conservation Easement attached as Exhibit A and
recorded in the Office of the Recorder of Deeds of Cumberland County in
Miscellaneous Book 566, page 457 on January 14, 1998.
5. Appellants made a written application dated January 30, 2000 ("Exhibit
B") and submitted it, together with the necessary map, indicating the proposed
subdivision to the Cumberland County Agricultural Land Preservation Board.
6. By letter, dated April 7, 2000, ("Exhibit C") the Appellee appears to have
denied the proposed 13-acre subdivision.
7 . Your Honorable Court has jurisdiction of this appeal by reason of 3 P .S.
~914.1(i)(2)(iv) and ~933 of the Judicial Code, as amended, 42 Pa. C.S.A. ~933.
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8. The April 7, 2000 letter does not specifically address the proposed 13-
acre subdivision and, therefore, is deemed to be deficient as a response to the
proposed subdivision of the 13 acres.
9. If the April 7, 2000 letter is an adequate denial of and response to the
proposed 13-acre subdivision, then Appellants assert that the decision is contrary to
the law, regulations and policy of the Farmland Preservation Program in that the
economic viability of the farmland tract would not be significantly harmed as a result
of the proposed subdivision of the 13-acre tract from the original 129 acre Property.
10. The criteria for determining the harm to or the lack of harm to the
economic viability offarrnIand for agricultural production is set forth in the materials
identified in Paragraph 4 above, which essentially requires both the subdivided tract
and the residual tract to each independently meet the criteria for enrollment in the
Program.
11. Appellants assert that both the 13-acre subdivided tract and the 116-
acre residual tract satisfy all the subdivision criteria of the Program and that the
Appellee has no legal basis to refuse the subdivision application of Appellants.
WHEREFORE, Appellant respectfully requests your honorable Court to
reverse the decision of the Cumberland County Agricultural Land Preservation Board
and order and direct that the applicants be granted the right to subdivide the
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buildings and approximately 13 acres under and around the buildings pursuant to the
application made by Appellants on January 30, 2000, attached and marked as
Exhibit B.
BY~
GaryJ. Hei , s.
Sup. Ct. J.D. # 32774
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Appellants
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Respectfully submitted,
METrE, EVANS & WOODSIDE
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DATED: May 8, 2000
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CERTIFICATE OF SERVICE
Jacob L. Heisy
Cumberland County Agricultural Land
Preservation Board
One Courthouse Square
Carlisle, PA 17013
P A Dept. of Agriculture
Bureau of Farmland Protection
Farmland Preservation Board
2301 North Cameron Street
Harrisburg, PA 17110
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I certify that I am this day serving a copy of the foregoing document
upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
the same in the United States Mail at Harrisburg, Pennsylvania, with first-class
postage, prepaid, as follows:
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Robert G. Frey, Esquire
Frey & Tiley
5 South Hanover Street
Carlisle, P A 17013-3385
METrE, EVANS & WOODSIDE
BY:
Gary J. Heim, Esq.
Sup. Ct. I.D. # 32774
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Appellants
DATED: May 8, 2000
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RESOLUTION RESTRICTING AND 'ESTABLISHING CRITERIA FOR THE
SUBDIVISION OF LANDS SUBJECT TO AGRICULTURAL
CONSERVATION EASEMENTS IN CUMBERLAND COUNTY
WHEREAS, by Resolution No. 89-16, and pursuant to 3 P.S. ~ 914.1, the Cumberland
County Board of Commissioners created the Cumberland County Agricultura1 Land Preservation
Board for the purpose of administering the Agricultural Conservation Program;
WHEREAS, the purpose of the Agricultural Conservation Program of Cumberland
County is to protect viable agricultural lands through the acquisition of agricultural conservation
easements to prevent the development and improvement of land for any purpose other than
agricultural production;
WHEREAS, 7 Pa. Code ~ 138e.225 permits the subdivision offar'!!!s subject to an
Agricultural Conservation Easement, and further permits county boards to place restrictions or
conditions upon subdivision;
WHEREAS, all deeds of agricultural conservation easements recorded in the Office of
the Recorder of Deeds in and for Cumberland County permit the subdivision of farms subjll91 to an
Agricultura1 Conservation Easement, provided that the subdividing will not hann the .economic
viability of the land for agricultura1 production;
WHEREAS, the Cumberland County Agricultural Land Preservation Board has
determined that the protection of the economic viability of land subject to agricultura1 conservation
easements will be promoted by the establishment of criteria, restrictions and conditions for
subdivision or land development;
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WHEREAS, 7 Pa. Code ~ l38e,225(e)(1) requires that restrictions with respect to
subdivision be recorded among the records at the office of the recorder of deeds;
WHEREAS, 16 P.S, ~ 9731 authorizes the recording of writings concerning interests in
land;
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NOW THEREFORE, it is resolved that the Subdivision Guidelines attached hereto s
Exhibit "A", are hereby adopted for all lands subject to Agricultura1 Conservation Easements
previously recorded i,'1 t.~e Office of the Recorder of Deeds in and for Cumberland County or
.~ hereafter recorded.
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ADOPTED this 19th day of February, 1997.
Cumberland County Agricultural Land Preservation Board
J ~~ S ~'W\/wdrlV\/
Sam~.l Simm. ons, Vic;;;=r.e-. hairman
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Frederick Dillner
OTARIAL SEM.
t RT G. FREY. NOTARY I'UllllC
CAJll.ISU CUMBERLAIIll COUNTY.
MY COMMISSION EY,~IF.ES JUKE 27, 'SiNI
. BOOK 566 PAGE
Attest:
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COMMONWEALTIi OF PENNSYLVANIA
COUNTY OF CUMBERLAND
: SS:
Before me, the undersigned officer, Persomilly appeared Lynn Wingert, Donald
Mowery, Richard Adler, Samuel Si=ons and Frederick DiIlner, who acknowledged
themselves to to be all of the Board Members of the Cumberland County Agricultural Land
Preservation Board, and that as such Board Members, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by signing the name of the
Cumberland County Agricultural Land Preservation Board by themselves as Board
Members.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 19th day
of Feburary, 1997.
A.
IltlTAR1Al SElL
ROBERT G. FREY. NOTARY PUBLIC
CAftlISlE. CUMBERLAIIIl COUNTY. PA
MV COMMISSION EXPIRES JUNE 21. 1* .
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BOOK 566 PAGE 458
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SUBDIVISION GUIDELINES
FOR LAND SUBJECI'TO AN
AGRICULTURAL CONSERVATION EASEMENT
PURCHASED UNDER THE PROVISIONS OF THE
CUMBERLAND COUNTY
AGRICULTURAL LAND PRESERVATION PROGRAM
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PURPO~E:
The purpose of the Cumberland County Agricultural Land Preservation Board's (Board)
Subdivision Guidelines are to implement the subdivision provisions of Pennsylvania's Agricultural
Area Security Law, 3 P.S. ~901-9IS, as amended, (Act) and the Regulations promulgated thereunder
by the Pennsylvania Department of Agriculture (Regulations), and to provide for the administration
of said Act, Reguiations and Board's Program.. The Subdivision Guidelines are intended to preserve
as much fannland as possible in integral tracts or parcels, and to promote viable agricultural
enteqlIises.
DEFINITIONS(~ 138e.3l:
Economic viability of farmland for agricultural production:
The capability of a particular tract of restricted land, 'other than a tract of two acres or less
upon which construction and use of the landowner's principal residence or housing for seasonal or
full-time fann employees is pennitted pursuant to ~ 14.1(c)(6)(iv) of the Act (3 P.S. ~
9l4.1(c)(6)(iv), to meet all the criteria set forth at ~ 138e.16(a)(2),(3),(4) and (5) (relating to
minimum criteriaforapplications) of this chapter.
Harm the economic viability of the farmland for agricultural production:
To cause a particular tract of restricted land to fail to meet the criteria set forth at
~138e.16(a)(2),(3),(4) and (5) (relating to minimum criteria'for applications) of this chapter, or to
create, through subdivision a tract of restricted land, other than a tract of two acres or less upon
whiCh construction and use of the landowner's principal residence or housing for seasonal or full-time
fann employees is pennitted pursuant to ~ 14.1(c)(6Xiv) of the Act (3 P.S. ~ 914.I(c)(6)(I), that
would fail to meet the aforedescribed criteria.
Land development:
Either of the following activities:
(I) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for
any purpose involving a group of two or more residential buildings, whether proposed initially or
cumulatively; or
(2) A subdivision ofland.
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Land which has been devoted primarily to agricultural use:
That acreage which is a part of restrictei:lland and is harvested cropland, grazing or pasture
land, land used for the production of timber and wood products, land containing non-residential
structures used for agricultural production, or other acreage immediately available for agriCUltural i .
production and which excludes any acreage upon which immediate agricultural production is
impracticable due to residential structures and their curtilage, wetlands, soil quality, topography or
other natural or man-made features, and which further excludes any tract of two acres or less
designated as the site upon which the landowner's principal residence or housing for seasonal or full-
time employees is permitted pursuant to 9 14. I (c)(6)(iv) of the Act (3 P.S.9 914. I (c)(6)(iv)).
Pennsylvania Municipalities Planning Code:
The Act of December 21, 1988 (p.L. 1329, No. 170)(53 P.S. 99 10101-11201)
. .
Subdivision:
.
The division or reduction of a lot, tract. or parcel of land by any means int<;> two or more
lots, tracts, parcels or other divisions oflandincluding changes in existing lot lines for the purpose,
whether immediate or future, of lease, partition by the court for distribution to heirs or devisees,
transfer of ownership or building or lot development.
CONSTRUCTION OF ONE ADDmONAL RlCSIDEIS:TIAL STRUCTURE (& 138e.224):
(A) General. In addition to the structures existing on the restricted land at the date of the
granting of the easement, one additional residential structure may be constructed on the restricted
land if the following apply:
(1) The residential structure is constructed and used as the landowner's principal residence
or for the purpose of providing necessary housing for seasonal or full-time farm employees.
(2) No other residential structure has been constructed on the restricted land, under authority
of 9 14.1 ( c)( 6)(iv) of the Act (P. S. 9 914.1 (c)( 6)(iv) and this section, after the date of the granting
of the easement.
.
(3) The residential structure and its curtilage occupy no more than two acres of the restricted
land.
(B) Replacement of structures. The replacement of a residential structure constructed under
authority of S 14.1 (c)( 6)(iv) of the Act and this section is pennitted.
{C) Reservation of right to construct after subdivision. If the restricted land is subdivided
prior to the construction of a residential structure under authority of S 14. 1 (c)( 6)(iv) of the Act and
this section, the landowner shall do the following:
(I) Infonn the county board of the specific subdivided tract with respect to which the right
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BOOK 566 PAGE 460
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to (".onstruct and use such a residential structure is reserved.
(2) Ensure that the deed to the subdivided tract with respect to which the right to construct
and use a residential structure is reserved clearly sets forth the reservation of this right.
.
(3) Ensure that the deeds to the remainiflg subdivided tracts recite that no such residential
structure may be constructed on the remaining sul>divided tracts.
SJIJl-P~ION QF,RESTRJCTED ~ (6 U8e.US):
(a) Authority to prohibit subdivision ofland.
A county program may prohibit the subdivision of restricted land if the land owner can
accomplish the construction and use of a principal residence or housing for seasonal full-time fann
employees in accordance with ~ 14.1(c)(6)(iv) of the Act (3 P.S. ~ 914.1(cX6)(iv), under the
applicable subdivision and land development ordinance, by aland development other than subdivision.
(b) Discretion to allow subdivision.
A county program may allow the subdivision of restricted land, and may place restriction or
conditions upon subdivision.
(c) Requisite: Preservation of economic viability for agricultural production.
.
Subsection (b) notwithstllllcling, a co~..pf'igt8In shall:not permit a subdivision which would
hann the economic viability of the farmland tract for agricultural production.
(d) Requisite: Prevention of conversion to non-agricultural use; exception.
Subsection (b) notwithstanding, a county program shall not permit a subdivision which would
convert land devoted primarily to agricultural use to another primary use except that, without regard
to this requirement, a county program may permit one tract to be created by subdivision fur the
purpose of construction of a principal residence for the landowner.
(e) Notice to landowner.
A county board shall do at least one of the following:
(1) File its county program, or that portion setting forth any prohibitions or restrictions with
respect to subdivision of restricted land, at the Office of Recorder of Deeds for the county, and
reference the place of filing of these prohibitions or restrictions in the deed of agricultural
conservation easement.
.
(2) Recite the prohibitions or restrictions with respect to subdivision verbatim in the deed of
agricultural conservation easement.
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. aoo~ 566 PACE 1161
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GENERAL PROVISIONS
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Land subject to an AgriculturaI Conservation Easement may be subdivided, provided the
owner or owners (applicant) meet the criteria contained in these guidelines. Any and all expenses
incurred in connec::tion with a request for subdivision shall be the sole responsibility of the applicant.
The burden of proof that any proposed subdivision of land subject to an agricultural conservation
easement conforms to and complies with the Act, the Regulations, and the Board's Subdivision
Guidelines shall rest with the applicant.
SPECIFIC CRITERIA:
The owner or owners of a tract of land subject to an Agricultural Conservation Easement may
subdivide such tra.ct ofland, provided: .
(1) The subdivision is consistent with the Statement of Purpose of the Cumberland County
Agricultural Land Preservation Board, as amended,
(2) Each farm1and tract created by subdivision shall remain economically viable for agricultural
production.
(3) Each farm1and tract created by subdivision shall consist of a minimum of fifty percent
(50%) harvested cropland, orchard, pasture or grazing land:.
(4) Eachfann1and tract created by subdivision shall contain a minimum offifty percent (50%)
ofit's soils in soils classes I through IV as defined by the United States Department of Agriculture,
Natural Resource Conservation Service.
(5) Applicant shall, by note on a map, sketch or plat plan, state on which tract the allowable
additional residential dwelling unit may be erected. In the event one additional dwelling unit has been
erected prior to the submission of the application, location of said dwelling shall be shown on the
map, sketch or plat plan.
.
(6) Approval of a subdivision shall not cause a reduction to, or the effectiveness of; any soil
or water conservation methods or practices which have been implemented by the farm operator.
(7) Approval of a subdivision shall not alter, diminish, divert or otherwise modify any water
access or water rights of others.
(8) The subdivision conforms to and is consistent with the Cumberland County
Comprehensive Plan, the Municipal Comprehensive Plan, and applicable municipal zoning.
(9) Nothing in the subdivision regulations shall relieve the landowner of an municipal, county
or state regulations, procedures or requiremnts necessary for the subdivision of land at the local
municipal level.
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aOOK ::)66 p~CE 462
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(10) Eacl1 newly created tract, in addition to tpe residual or parent tract, shaIl be, and continue
to be, subject to all terms and conditions of the Agricultural Conservation Easement. Each deed shall
recite verbatim all the prohibitions or restrictions of. the agricultural conservation easement and shall
be recorded in the Office of Recorder of Deeds for Cumberland County.
(II) A subdivision shall not create a tract or parcel ofland that is less than 100 acres unless
the following are met:
(a) The subdivided tract or parcel ofland is contiguous to a tract ofland that is subject
to an agricultural conservation easement.
(b) The residual tract or parcel ofland shall not be less than 100 acres.
1 through 10.
(c) The residual tract or parcel ofland shall meet all of the Specific Criteria
PROCEDURAL REOUIREMENTS:
A. INFORMAL SUBMISSION
.
Applicant shall submit to the Board, a sketch plan of the proposed subdivisi~n. The"Board
shall review the sketch plan to ensure the plan is consistent with and Conforms to the Board's
Subdivision Guidelines. To facilitate Board review, applicant shall also include with said sketch plan,
the following:
(1) A letter, signed by applicant, clearly stating the intent of the proposal. A complete
explanation that the economic viability of the Agricultural Conservation Easement will not be
. diminished and that no part or parts of any of the subdivided tracts will be converted to non-
agricultural uses.
(2) A soils map for each proposed tract, including the residual. Soils map shall include the
acreage of each proposed tract and the number of acres in each soils class.
(3) A statement that at least fifty percent of each farmland tract in the subdivision, including
the residual, be cropland, orchard, pasture or grazing llUid.
B. FORMAL SUBMISSION
(1) Aftbf approval by the county board, a copy of the application package, together with the
comments and recommendations of the reviewing agencies, shall be submitted by the county board
to the State Agricultural Land Preservation Board (state) for their review and approval or
disapproval. The state, in reviewing an application for subdivision, shall consider only whether the
application complies with the conditions under which subdivisions are permitted by the approved
county program. The state board shall notifY the county board of its decision regarding the
application,
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BOOK .566 PACE 463
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(2) If the application to subdivide is rejected by the county board, the application shaI1 'De
returned to the applicant with a written statement out1ining the reason or reasons for such rejection.
Within thirty (30) clays from receipt of the statemen.t of rejection, the applicant may appeal the
rejection as provided by 2 Pa.C.C. Ch. 5, Subch. B (relating to practice and procedure of local
agencies) and Ch. 7, Subch. B (relative to judicial review oflocal agency action.
.
.
State of pennSYlVania} 86
County of Cumberland
Recorded in the office for tfJe recording of Deads
ect. in and for CU,mberland County, PazrS1
i~ BoowiL_ Vol. -=- Page_
wilness rry hand and1sq.a..'. of office of ~
Carlisle, PA this .-"'7 "'~~~T-m- . ._
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TYPEWRITTEN VERSION OF ATTACHED HANDWRITTEN JANUARY 30,2000 LETTER
1/30/2000
Richard & Shelva Mains
3345 Ritner Hwy
Newville, Pa 17241
Dear Jake & committee,
We would like to subdivide the Mac Nelson farm which has easement acreage of 119
acres. We would like to sell all buildings plus 13 acres to a couple from Connecticut.
They intend to keep 10 or more horses which are used in carriage competition. All
ground would be kept in agriculture use by growing hay and fenced off for the horses.
On the west would be bordered by Lefever Rd., north & east would be retained by us as
the original tract, south side is bordered by Ralph Wax who has 125 acres already in the
easement program.
We would like to proceed with this sale as soon as possible. Thanks for taking this into
consideration.
s/Shelva & Richard Mains
223526
MAY-0S-ee 12:49 PM
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CUMBERLAND GOUNTY
AGRICUL TURAL LAND PRESERVATION BOARD
One Courthouse Square
Carlisle, Pennsylvania 17013
717-240-6537
April 7, 2000
Richard G. and Shelva 1. Mains
3345 Ritner Highway
Newville, PA 17241
RE: SUBDIVISION OF AGRICULTURAL CONSERVATION EASEMENT
Dear Mr. & Mrs. Mains:
The Cumberland County Agricultural Land Preservation Board met on April 6, 2000ilt
which time formal action was taken on your request to subdivide the easement on yoUr property
located at 191 Lefever Road, Newville, P A.
The board considered your request to subdivide thirteen acres, including the land under
and around the existing house, bam and outbuildings. The board also considered your option of
subdividing the two-acre area that would include the buildings. After due deliberation, the board
unanimously agreed to permit the subdivision of a two-acre parcel that would include the
existing buildings. The basis for this decision is the economic viability of the farmland tract
would not be significantly harmed as a result of this action.
When West Pennsboro Township approves a final subdivision plan, a copy of the plan
should be forwarded to this office. When a deed is prepared for the conveyance of the
subdivided parcel, the same terms and conditions that are applicable to the residual tract shall be
recited verhatim in the new deed. A copy of this instrument shall also be forwarded to this
office.
Please contact me if you have questions concerning this matter.
Yours truly,
~;(~
Jacob 1. Heisey
Program Coordinator
Cc: Robert G. Frey, Esquire
Raymond C. Pickering
West Pennsboro Township
Planning Department
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RICHARD G. AND SHELVA J. MAINS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
CUMBERLAND COUNTY AGRICULTURAL
LAND PRESERVATION BOARD
NO. 00-2878 civil Tem
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY
OF
CUMBERLAND)
TO: Cumberland County Agricultural Land Preservation Board
We, being willing for certain reasons, to have certified a certain action
between
Richard G. and Shelva J. Mains VS, Cumberland County Agricultural
Land Preservation Board
pending before you, do command you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Common Pleas at Carlisle, within
20
days of the date hereof,
together with this writ; so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Commonwealth.
WITNESS, the Honorable George E. Hoffer f P. J .
our said Court, at Carlisle, Pa., the
9thday of
Mav
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US Postal Service
Receipt for Certified Mail
No Insurance Coverage Provided.
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Senlte CuJIlb C .
T~n"" . o. l;\.gn.cultura
street & Number
On", Courthouse Sallare
Post Office, State, & ZIP Code
Carli,;le PA 17013
Postage $
Certified Fee
Special Delivery Fee
Restricted Delivery Fee
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,. Cdmplet8ltem~ 1 andlbr 2 for addJUonalseMces. following .selVices (for an
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i :3, Article Addressed to: 4a. Allicle umbllr J
I Jacob L. Heisy 4b.Se~I~3.fyp~64 6777 ~.
Ii Cumberland. County Agricultural 0 Registered I
B Land PReservation Board..
Carlisle, PA 17013 0 ExpressMaIJ i
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