Are Horse Farms Agriculture? Berks County Battle May Set Precedent in Pennsylvania
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Are Horse Farms Agriculture?
Berks County Battle May Set Precedent in Pennsylvania
by Suzanne Bush - November 2010

Are Horse Farms Agriculture?  Berks County Battle May Set Precedent in PennsylvaniaRon Samsel's broodmare Gutsy Gal is back home in Berks County after spending six months in Kentucky. Samsel was forced to sell the mare he "dreamed about nightly" when Jefferson Township supervisors sued him to prevent him from operating his 46 acre farm as a boarding facility. The outcome of the case may set precedent affecting horse farms across Pennsylvania.

Ron Samsel wasn’t thinking about setting precedents when he purchased 46 acres of land in Berks County. He wasn’t thinking about spending years in court fighting to prove that the horse farm he established is an agricultural enterprise. He wasn’t thinking that his 13-year-old son would learn about government and laws by watching how the local government and the state law seem locked in perpetual conflict. Samsel thought that his farm would be the perfect place for him to establish a state-of-the-art facility for boarding and training horses. And, as the owner of thoroughbred racehorses, he dreamed that one day his farm would be home to a Kentucky Derby champion.

He discovered that there’s not always a straight line between dreams and reality. And he’s not happy. He has been engaged in a protracted battle with the Jefferson Township Supervisors for two years. At issue: whether a horse farm open to boarders qualifies as agricultural use in Pennsylvania law.

A Costly Battle
Samsel’s battle has cost him in more ways than he can count. There were several acres of hay he lost when the township refused to permit him to build a shed to protect it. There are the customers he’s lost because prospective boarders are reluctant to bring horses to a facility that may ultimately be prohibited from doing business. There are the legal fees, not to mention the persistent limbo in which he has found himself.

“When I first went to the township to get a building permit, I had submitted plans to the zoning board. They gave me a list of things I needed to change on the plan,” Samsel says. But his architect told him that farms in Pennsylvania are exempt from building permits. The planning commission gave him the go ahead, and his attorney told him he could just start building, which he did. Four days into construction, the township put up a stop work order, preventing any further work.

Samsel took his case to Berks County Court, where President Judge Jeffrey L. Schmehl agreed that the horse farm qualified as agricultural use. The township appealed, and Schmehl again sided with Samsel. Construction resumed on Samsel’s farm and the barn and stable are now finished. But the township appealed again, this time taking the case to Pennsylvania’s Commonwealth Court. The case was heard in Philadelphia before a three-judge panel on October 14. Samsel expects a ruling by the end of the year.

What Constitutes Agricultural Use?
The township contends that Samsel’s property doesn’t qualify for the agricultural exemption, because people other than the owner will be on the property. The township’s attorney on this matter, Elizabeth Magovern, told a reporter at the Reading Eagle that the public’s safety is the issue. Veterinarians, blacksmiths, horse owners and others will be there, and township officials believe that means the horse farm is a public place that must conform to the township’s building codes.

But Pennsylvania’s Uniform Construction Code Statute specifically excludes agricultural buildings from building permits. Rob Davidson, Special Assistant to the Secretary of the Department of Agriculture, says that Samsel’s building is clearly a barn. “The greater issue here is not whether it is agriculture or not, but does it meet the qualifications for an agricultural building,” he says. The wording of the statute explicitly defines an agricultural building this way: “A structure utilized to store farm implements, hay, feed, grain or other agricultural or horticultural products or to house poultry, livestock or other farm animals, a milk house and a structure used to grow mushrooms.”

Larry Miller, Jr., Samsel’s attorney, says that this case has implications that go far beyond Jefferson Township. “This is what is called a case of first impression. It will set a precedent for Pennsylvania.” He says that he has heard from several attorneys in other jurisdictions around the state, who are dealing with the same or similar conflicts. He says the township is arguing something that defies logic. “The township’s argument came down to two basic points. Under the definition of agricultural building, a building open to the general public cannot be called agricultural. The other is the building can only house livestock or other farm animals.”

Davidson points out that Samsel’s property is not a public space in the way the township asserts. “Ron’s contention was that the building was not open to the general public, but only those people with whom they had a contractual relationship.” As for the argument that Samsel’s horses are not considered livestock by the township, Miller suggests that the township would exclude virtually every farm animal from their definition. “There are well established agricultural uses in the commonwealth. Basically if the township has their way the only way you could qualify as an agricultural building is to hook up a plow to a chicken and have him plow the land.”

A Farm is a Farm is a Farm
Davidson says that for many years, there were no building codes at all in Pennsylvania. “In 2004 Pennsylvania adopted the uniform construction code. They adopted the international building code. In adopting that, what Pennsylvania did not do was adopt any of the agricultural portions of the code. Pennsylvania did create an agricultural exemption from the building codes.” He says legislators understood that farmers building barns and stables to house their animals would do that with exceptional care, realizing that the animals are central to their livelihoods. “The legislature chose, realizing they’re not a significant threat, just chose to exempt agricultural buildings.”

He says that the uniform construction codes are not equipped to deal with farm buildings, citing, for instance, the fact that the codes prohibit building lofts. “Have you ever heard of a barn without a hayloft?” But he says a larger issue here is that regulators at every level of government often have the same blind spots as the general public. “Folks are so far removed from agriculture now, if it’s not cows, sows or plows, they don’t consider it farming. All agriculture or most agriculture is commercial. The whole idea is to make a profit, and that by nature is commercial.”

Samsel says that the judges at Commonwealth Court asked some of the same questions that he had. “Judge Leavitt said ‘you’re saying it’s (a horse) not a farm animal. It’s a pet. Where does the horse live?’” The township’s attorney agreed that a horse lives in a barn on a farm, but still maintained that Samsel’s horses, in his barn, on his farm, were not truly agricultural.

The City Slicker from Wyomissing
Samsel believes there’s a degree of personal animus toward him that is driving this conflict. “Leon Huey, the Jefferson Township Supervisors Chairman, said from day one ‘you’re a city slicker, and you’re not going to tell me how to run this township.’” Jefferson Township’s population is fewer than 3,000. Samsel lives in Wyomissing Township, with a population of just over 11,000.

“This is a real power struggle in Pennsylvania,” Miller says. “We’ve asked the township to be reasonable. They’ve absolutely refused to consider any alternatives.” Samsel points to his real estate assessment as something the township should be thrilled about. “My taxes were $600 a year for the 46 acres, before I put up the barn. I just got my assessment, and now the taxes will go up to $12,000 a year,” he says. But that new tax revenue seems less important than the battle the two sides are fighting. “This has been going on for over two years now. It was such a shame. My son has been with me, going to all these meetings. He’s 13, and I’m a single dad,” Samsel explains with a sigh. His son asked him why he didn’t just get the building permit. He tried to explain to his son that there were a lot of principles involved. “You can’t just give in to everybody. If you are right with the law, you will prevail.”

Miller says that the way townships are often organized, the township sees the tax revenue, but the individual township’s code enforcement office is usually managed by a private firm that generates revenue through the permitting process. “If the township fights an individual and makes them go through the permit process, which can be $15,000 or $20,000, it can easily be that expensive and time-consuming,” he says.

The Good Fight
Samsel is a realtor, and says he could have put a housing development on the 46 acres, but all he wanted was a horse farm where he and others could indulge their horses and enjoy them in a clean, safe facility. Miller says that Samsel is one of many would-be farm owners in the state that are struggling to get their operations going. He says the economic impact of the state’s equine industry is enormous, and growing, and this issue will not be going away any time soon.

Fortunately, neither will Samsel. “The law is clear. Most people don’t have the ability to fight the township in court,” Miller says. “We’re fighting the good fight here. I’m very proud of this case. I think farmers around Pennsylvania are going to be quoting this case for a long time.”