Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058 (Pa. Commw. Ct. 2018)
The language of a provision of a zoning ordinance is objective and specific if it requires an applicant to make certain identified submissions. The relevant section of the Nutrient Management Act only preempts a provision of a zoning ordinance if the operation requires a Nutrient Management Plan.
Objectors appealed the trial court’s decision affirming the Township Zoning Hearing Board’s (ZHB) approval of Applicant’s special exception application for a proposed swine nursery barn and under building manure storage on Applicant’s property, which was located in an agricultural zoning district. Objectors had two theories of appeal: (1) the ZHB improperly determined the Nutrient Management Act (NMA) preempted the Township’s Zoning Ordinance (Zoning Ordinance); and (2) the ZHB erred in determining a relevant section of the Zoning Ordinance was subjective and vague. The Commonwealth Court reversed the trial court’s decision.
The Court determined the Zoning Ordinance was not preempted by the NMA. The NMA regulation cited by the ZHB as preempting the Zoning Ordinance applies only to new manure storage facilities that are constructed as part of a plan developed for a Nutrient Management Plan (NMP) operation. The Court determined that, because the proposed swine facility did not require an NMP, the cited NMA regulation did not apply. Accordingly, the Court determined the NMA did not preempt the Zoning Ordinance and, therefore, Applicant should have been required to conform with the requirements of the Zoning Ordinance.
The Court also held the language of Section 402(1)(E) of the Zoning Ordinance was not subjective and vague and, therefore, Applicant bore the initial burdens of production and persuasion. Section 402(1)(E) provided that applicants for certain intensive agriculture operations, such as hog raising, “shall submit facility designs and legally binding assurances with performance guarantees that demonstrate that all facilities necessary for manure and wastewater management, materials storage, water supply, and processing or shipping operations will be conducted without adverse impact on adjacent properties.” The Zoning Ordinance defined adverse impacts as “groundwater and surface water contamination, groundwater supply diminution, noise, dust, odor, heavy truck traffic, and migration of chemicals offsite.” The Court found the Zoning Ordinance provision was objective and specific for three main reasons: (1) the provision required an applicant to make certain clearly identified submissions; (2) the requirement for these submissions, by its own terms, applied only to certain identified intensive agriculture uses rather than all intensive agriculture uses generally; and (3) the provision expressly enumerated the categories of adverse impacts that it was aimed at avoiding. Accordingly, the burden was on the Applicant to prove compliance with Section 402(1)(E).
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