Walck v. Lower Towamensing Township ZHB, (Pa. Commw. Ct. 2008).
Landowner’s stockpiling of sewage sludge on his property was not a permitted agricultural use and the Nutrient Management Act did not preempt the Zoning Ordinance because Landowner did not have an approved voluntary plan in compliance with the NMA.
Landowner owns property located in the R-1 Low Density Residential Zoning District. Responding to complaints, the Zoning Officer inspected Landowner’s property and discovered that there was a large stockpile of sewage sludge. The Zoning Officer issued an enforcement notice which required Landowner to cease using the property for stockpiling and to remove the waste within ten days. Landowner appealed to the ZHB arguing that the property was used for cultivation of soil and that the waste was for that purpose. The ZHB upheld the enforcement notice finding that the stockpiling of solid waste was not a permitted use in the subject district. The trial court affirmed. Landowner appealed to the Commonwealth Court arguing that his use was not prohibited under the Zoning Ordinance and that the Nutrient Management Act (NMA) preempted the Zoning Ordinance.
The NMA prevents a municipality from enforcing ordinances that are inconsistent or more stringent than the NMA. It requires a management plan for all operators of a concentrated animal operation (CAO) and permits non-CAO operations to develop a Nutrient Management Plan and have it reviewed by the ZHB. Landowner asserted that the NMA provides that manure shall be removed “as soon as feasible,” whereas the enforcement notice ordered them to remove it in ten days making it more stringent than the NMA. The ZHB had previously found that the NMA did not preempt the Zoning Ordinance because Landowner did not house animals, therefore his operation did not qualify as a CAO. Furthermore, Landowner did not have an approved nutrient management plan for a non-CAO operation.
The Commonwealth Court agreed that Landowner did not prove compliance with the NMA through submission of an approved nutrient management plan. Therefore, the Court rejected Landowner’s argument that local regulation was inconsistent with the NMA. Furthermore, the Court found that the Township’s order to remove the waste within ten days was not more stringent than the NMA because the Township was attempting to prevent the long term stockpiling of sewage waste and there is nothing in the NMA which indicates that the NMA endorses long term stockpiling of such waste.
Finally, the Commonwealth Court gave great deference to the ZHB’s interpretation of the ordinance and agreed that Landowner’s use of the property was not permitted as an agricultural use under the Zoning Ordinance.
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