Berner v. Montour Twp. Zoning Hearing Bd.

176 A.3d 1058

Russell BERNER and Donna Berner, Kendall Dobbins, Robert D. Clark and Robert W. Webber, Appellants

v.MONTOUR TOWNSHIP ZONING HEARING BOARD and Scott Sponenberg

No. 448 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued December 4, 2017

Decided January 4, 2018

William J. Cluck, Harrisburg, for appellants.

Matthew M. Hennesy, Lancaster, for appellee Scott Sponenberg.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE SIMPSON

This zoning case returns to us following our remand in Berner v. Montour Township Zoning Hearing Board (Berner I ) (Pa. Cmwlth., No. 881 C.D. 2015, filed February 8, 2016), 2016 WL 464225 (unreported). In Berner I, we returned this matter to the Montour Township Zoning Hearing Board (ZHB) for additional findings on Scott Sponenberg's (Applicant) special exception application for his proposed swine nursery barn and under building for manure storage. On remand, the ZHB made additional findings and granted Applicant's special exception application. The Court of Common Pleas of the 26th Judicial District (Columbia County Branch) (trial court) affirmed.

In this appeal, Objectors¹ argue the ZHB erred in granting Applicant's special exception request based on its determination that one of the special exception requirements for Applicant's proposed use was subjective and vague, and, therefore, not a specific requirement that Applicant was required to satisfy to obtain special exception approval. They also contend the ZHB exceeded the scope of our remand order in Berner I when it determined, in the alternative, that the Nutrient Management Act (NMA), 3 Pa. C.S. §§ 501 – 522, preempted the disputed special exception requirement. Upon review, we conclude the ZHB erred in determining Applicant did not bear the burden of proof regarding compliance with the special exception requirement at issue. Further, the ZHB erred in determining, in the alternative, that the NMA's regulations preempted this special exception requirement so as to excuse Applicant's non-compliance with that provision. Therefore, we reverse.

I. Background

In Berner I, we set forth the following background to this matter. Applicant owns the property located at 140 Tower Drive (property) in Montour Township (Township), Columbia County. The property lies in an agricultural zoning district.

In April 2013, Applicant filed an application for a special exception with the ZHB for his proposed intensive agricultural use. Specifically, Applicant seeks to construct a 78½ foot by 201 foot (15,778½ square foot) swine nursery barn with under building concrete manure storage with a usable capacity of approximately 645,000 gallons. Applicant's special exception application included a completed application form, site plans prepared by TeamAg, Applicant's consultant, a Manure Management Plan prepared by Todd Rush of TeamAg, who is a state certified nutrient management specialist, correspondence from Rush, and the Pennsylvania Department of Environmental Protection's (DEP) Manure Management Plan Guidance document. A hearing ensued before the ZHB at which Applicant and Rush testified.²

After the hearing, the ZHB issued a decision in which it granted Applicant's special exception application subject to two conditions. Objectors appealed to trial court. Ultimately, the trial court determined public notice of the ZHB hearing was deficient. Thus, the trial court remanded to the ZHB for the purpose of taking additional testimony from any person who was not present at the ZHB hearing, after proper public notice of the new hearing was provided.

On remand, the ZHB held two hearings at which it heard testimony from several Objectors, Dennis R. Peters, P.E., of Peters Consultants regarding the condition of Tower Road, Brian Oram, a professional geologist and soil scientist, and Rush concerning manure application.

After the remand hearings, the ZHB unanimously reaffirmed its prior decision granting Applicant's special exception application subject to two conditions. In a written opinion in support of its decision, the ZHB made the following findings and conclusions.

The property is currently used as a livestock and crop farm. It is improved with a farmhouse, a cattle barn, two equipment sheds and several outbuildings. The proposed swine nursery would include a swine nursery barn with under building manure storage. The manure from the swine nursery will be spread on portions of the property and on other leased fields as indicated in the Manure Management Plan included with the application.

Rush prepared the Manure Management Plan and provided testimony detailing the proposed use and its compliance with applicable state and federal statutes and regulations.

Section 402(1)(E) of the zoning ordinance provides that "Intensive Agriculture and Agricultural Support," which specifically includes hog raising, is permitted by special exception in an agricultural district. The ZHB determined Applicant's proposed swine nursery qualifies as an Intensive Agriculture and Agricultural Support use as defined by the zoning ordinance.

Further, Section 402(1)(E) of the zoning ordinance sets forth seven specific criteria that an Intensive Agriculture use must satisfy. The ZHB concluded Applicant satisfied each of these criteria through his application, exhibits and testimony. Additionally, Section 1101(3) of the zoning ordinance sets forth six general criteria for the granting of a special exception. The ZHB concluded Applicant satisfied each of those general criteria through his application, exhibits and testimony.

Objectors presented the testimony of neighboring property owners, Dennis Peters and Brian Oram. Objectors raised concerns about the proposed use regarding odor, manure application, potential contamination of groundwater, disease, traffic and diminution in property value.

Peters testified regarding increased truck traffic on Tower Drive from the proposed use and its impact on the condition of Tower Road. On cross-examination, Peters acknowledged he had not consulted with the Township regarding its upcoming scheduled road repairs and maintenance for Tower Road. Further, on cross-examination, it was revealed that Peters used incorrect finish weight data for the hogs from the proposed nursery for his truck calculations resulting in incorrect and overstated truck traffic calculations. The correct finish weight data was included in the application.

Oram, a soils scientist, presented testimony on the soil suitability of the property and the leased fields for land application of manure. Oram concluded the soils on the property and the leased fields were not suitable for manure application from the proposed swine nursery based on the Natural Resources Conservation Service's (NRCS) Websoils Survey.

However, on cross-examination, it was revealed that Oram: (1) is not a state-certified nutrient management specialist; (2) did not conduct any soil or groundwater sampling on the property; (3) did not review Applicant's testimony or exhibits from the initial hearing regarding the proposed use; (4) did not reference or utilize the NRCS Website's seasonal high water table data when forming his opinion regarding soil suitability; (5) did not consult with any NRCS representative in interpreting the information on the NRCS website; (6) did not consult with any representative of the State Conservation Commission in forming his opinion regarding soil suitability for manure application; (7) has only performed this type of soil analysis on one other occasion for a hog operation; and, (8) does not have a working knowledge of the NRCS' Code 590, which specifically relates to nutrient management and manure application.

The ZHB found the testimony presented by Applicant and Rush credible. Further, it found not credible certain aspects of the testimony presented by Peters and Oram, although it did not identify which parts of that testimony it discredited.

Ultimately, the ZHB concluded Applicant's proposed swine nursery qualified as an Intensive Agricultural and Agricultural Support use under the zoning ordinance. The ZHB further concluded Applicant met the zoning ordinance's objective criteria for such a use under Section 402(1)(E) of the zoning ordinance and the general requirements for a special exception under Section 1101(3) of the zoning ordinance. Thus, the ZHB determined Applicant's special exception application was entitled to approval under those sections of the zoning ordinance, subject to conditions. Without explanation, the ZHB also concluded the preemption language in Section 519(b) of the NMA applied to Applicant's proposed use.

Based on these determinations, the ZHB granted Applicant's special exception request pursuant to Sections 402(1)(E) and 1101(3) of the zoning ordinance subject to two conditions.³ Objectors again appealed to the trial court.

Without taking additional evidence, the trial court issued an order denying Objectors' appeal. Objectors appealed to this Court.

Ultimately, this Court determined the ZHB did not clearly decide the matter on the basis of preemption. Specifically, the ZHB made one finding in which it quoted the language of Section 519(b) of the NMA. It also made one conclusion of law in which it stated: "The Section 519(b) preemption language of [the NMA] is applicable to [Applicant's] proposed swine nursery use." ZHB Op., Concl. of Law No. 10. However, the ZHB offered no explanation or analysis in support of this vague conclusion.

To that end, this Court's review of the ZHB's decision revealed the ZHB did not base its decision to grant Applicant's special exception application on the ground that the NMA or its regulations preempted the zoning ordinance. Indeed, the ZHB did not identify any conflict between the NMA or its regulations and the relevant zoning ordinance provisions. Rather, the ZHB based its decision to grant Applicant's special exception request on the ground that Applicant...