Citation:

Berner v. Montour Twp., 120 A.3d 433 (Pa. Commw. Ct. 2015).

Summary:
The Nutrient Management Act regulates "the application of manure as it related to soils and . . . the protection of ground and surface water" did not preempt the relevant SALDO provisions protecting impact on soils.
Case Details:

Applicant owned property in the Township’s Agricultural Zone and sought preliminary/final plan approval for a barn and accessory uses to go along with its current agricultural use.  The plan was approved with conditions.  On appeal, Objectors, who were concerned with runoff from manure piles infiltrating into the groundwater, asserted that the Nutrient Management Act did not preempt the Township’s subdivision and land development ordinance (SALDO) insofar as the SALDO regulated impact on soils.  Objectors argued “the state does not regulate soil quality where liquid manure is applied to land.  The state regulates the ability of a crop to handle certain amounts of manure, but does not address whether the soil itself is suitable for manure application.”  Applicant responded that the SALDO did not expressly regulate soil, and if it did, it would be preempted by the Nutrient Management Act.  Specifically, Applicant noted that the “SALDO is focused on hazardous conditions that exist prior to development, while Objectors allege a hazardous condition will be created by a new use after development.”  On appeal, the trial court affirmed the Board of Supervisors’ decision approving the plan on the basis the SALDO was preempted by the Act.

The Commonwealth Court determined there was no conflict between the Act and the SALDO.  However, even though neither party discussed the matter, the Commonwealth Court further determined that the Act’s regulations relating to the preparation of “nutrient management plans” regulate the “application of manure as it relates to soils and, more importantly, the protection of ground and surface water, which appears to be Objectors’ primary concern.”  Consequently, while the SALDO does not conflict with the Act nor regulate operations affecting Objectors’ concerns, the Act’s “regulations address Objectors’ concerns regarding soil quality as it relates to potential groundwater contamination.”  Regardless, the Commonwealth Court determined Applicant’s plan did not violate the SALDO for various reasons.  Thus, it correctly was approved.

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