Berner v. Montour Twp.

120 A.3d 433

Russell BERNER and Donna Berner, Kendall Dobbins, Nathan Roberts, Roberts Realty, LLC, and Robert D. Clark, Appellants

v.MONTOUR TOWNSHIP, Montour Township Board of Supervisors and Scott Sponenberg.

No. 1543 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued June 15, 2015.

Decided July 9, 2015.

William J. Cluck, Harrisburg, for appellants.

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

BEFORE: ROBERT SIMPSON, Judge, P. KEVIN BROBSON, Judge, and JAMES GARDNER COLINS, Senior Judge.

Opinion

OPINION BY Judge ROBERT SIMPSON.

In this land use appeal, Objectors¹ ask whether the Court of Common Pleas of the 26th Judicial District (Columbia County Branch) (trial court) erred in affirming a decision of the Montour Township Board of Supervisors (Supervisors) that approved, subject to conditions, Scott Sponenberg's (Applicant) land development application and plan that contemplate construction and operation of a swine nursery and manure storage facility. Objectors assert the trial court erred in determining the Nutrient Management Act (NMA), 3 Pa.C.S. §§ 501 –522, preempts Montour Township's Subdivision and Land Development Ordinance (SALDO) with regard to the suitability of the soil on Applicant's property for the application of pig manure. They also contend Applicant's land development plan did not satisfy mandatory design standards for the width of local roads. Upon review, we affirm on other grounds.²

I. Background

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 May 2013, Applicant filed a land development application seeking preliminary/final plan approval for “construction of a nursery barn with an underhouse [sic] manure storage structure. Related access drives, stormwater facilities, and a composter.... The current land use is agricultural use.” Reproduced Record (R.R.) at 5a.³ According to Applicant's land development plan, the property has a total area of 82.4 acres. In addition to the property, Applicant's proposal contemplates the lease of an additional 28 acres.

In support of his application, Applicant submitted numerous documents to the Montour Township Planning Commission (Planning Commission) and the Supervisors, including, among other things, site and engineering plans, a Department of Environmental Protection (DEP) Chapter 91 Manure Management Plan, a geologic report and a storm water management plan. The Township Engineer and the Planning Commission offered comments on Applicant's proposal. The Township also retained a professional geologist, who reviewed Applicant's proposal and offered comments.

In opposition to Applicant's proposal, Objectors submitted the report of a professional geologist and soil scientist, and a road condition survey of Tower Drive, a local road that abuts a portion of the property.

The Township retained a professional planner, who reviewed all of the documents and reports related to Applicant's proposal, including the expert geologic reports submitted by Applicant and Objectors. Ultimately, he recommended approval of Applicant's application and plan with conditions.

Thereafter, the Planning Commission recommended approval of the revised plan with conditions. Shortly thereafter, the Supervisors approved the plan subject to 10 conditions. One of the conditions requires Applicant to retain a certified water testing company to perform baseline well water tests for wells within a 2,500–foot radius from the property lines of the proposed manure application fields and to conduct additional testing 12 months after the first application of manure.

In addition, the Supervisors imposed a condition that requires Applicant to develop, maintain and implement a manure management plan that satisfies all applicable state requirements, including DEP Chapter 91 standards, to ensure the proper storage and land application of manure generated as a part of Applicant's proposed use. Additionally, the Supervisors required Applicant to annually secure a bond to cover potential damage to Tower Drive caused by overweight vehicles operating on that road as a result of Applicant's use. Objectors appealed the Supervisors' conditional approval to the trial court.

Before the trial court, the parties filed briefs. However, the trial court did not receive any additional evidence. The Supervisors did not participate in the proceedings before the trial court.

Ultimately, the trial court issued an opinion and order upholding the Supervisors' conditional approval. In its opinion, the trial court provided the following analysis, in its entirety:

Initially, this court concludes that its scope of review is whether the governing body has committed an error of law or abused its discretion.

Secondly, this court concludes that the [SALDO] cannot regulate the application on land of animal manure, as there is a specific pre-emption set forth in the [NMA], 3 Pa.[C.S. § 519(b) ]. [Objectors'] argument that the ... SALDO is not preempted because manure is a ‘pathogen’ is without merit.

Lastly, this court concludes that the [Supervisors] did not abuse [their] discretion. In acting on [Applicant's] application, the [Supervisors] received extensive evidence, reviewed several expert reports, and imposed substantial conditions on [Applicant] before granting him conditional approval.

Accordingly, this court cannot conclude that the [Supervisors] made an error of law or abused [their] discretion.

Tr. Ct., Slip Op., 8/4/14, at 2 (citation and quotations omitted). Objectors appealed.

The trial court then directed Objectors to file a Concise Statement of the Errors Complained of on Appeal (Statement), which they did. The trial court issued a brief supplemental opinion in which it opined that Objectors waived the assertion that they sought a remand to the Supervisors or to conduct a de novo hearing because they did not raise that issue at argument before the trial court. The trial court further stated that in its prior opinion it addressed all other issues Objectors raised in their Statement. This appeal is now before us for disposition.⁴

II. Issues

On appeal,⁵ Objectors state two issues. Specifically, they ask:

Whether the [NMA], 3 Pa.[C.S.] § 519(b) preempted [the SALDO] with respect to the suitability of the soil on [Applicant's] property for the application of pig manure. The [trial] court held the State statute preempted the local ordinance.

Whether [Applicant's] land development application met the mandatory design standards for width of local roads. The [trial] court did not expressly analyze this issue. Instead, the [trial] court held the [Supervisors] received extensive evidence, reviewed several expert reports, and imposed ten substantial conditions on [Applicant] before granting him conditional approval.

Am. Br. for Appellants at 2.⁶

III. Discussion

A. NMA/Soils

1. Contentions

Objectors first argue the trial court erred in concluding Section 519(b) of the NMA preempted the SALDO. They assert there is no conflict between the NMA and the SALDO's provisions pertaining to hazardous conditions such as the unsuitability of soil for application of liquid manure, and the trial court did not identify any such conflict. Indeed, Objectors contend, there is no conflict as the state does not expressly regulate soil quality.

Objectors assert they submitted substantial evidence as to the unsuitability of the soils on Applicant's property for application of manure. They further maintain the Supervisors did not make any findings of fact or conclusions of law in their conditional approval. There was no formal hearing to enable the testimony and cross-examination of experts who prepared reports on the site geology and hydrogeology. Moreover, Objectors contend, where the trial court did not accept additional evidence, it was error to determine state law preempted the local ordinance without any analysis of the scope of preemption or whether there was a perceived conflict.

Objectors argue Section 519(b) of the NMA contemplates “conflict preemption.” They assert this Court interpreted the NMA's conflict preemption provision in several recent cases. See Office of Attorney General v. Locust Twp., 49 A.3d 502 (Pa.Cmwlth.2012) (en banc ); Walck v. L. Towamensing Twp. Zoning Hearing Bd., 942 A.2d 200 (Pa.Cmwlth.2008) ; Burkholder v. Zoning Hearing Bd. of Richmond Twp., 902 A.2d 1006 (Pa.Cmwlth.2006) (en banc ).

Objectors note that their research did not uncover any authority that addresses whether the NMA preempts local regulation of soil quality. However, the Supreme Court addressed the interplay between state and local law where state law purports to preempt local law. In the context of oil and gas operations, the Supreme Court addressed the preemption doctrine in Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009). There, Objectors argue, the Supreme Court recognized a “how” versus “where” distinction within the preemption doctrine. Thus, while state law may preempt the “how” of certain industry practices, zoning and land development ordinances enacted under the Pennsylvania Municipalities Planning Code (MPC)⁷ may regulate “where” these practices may occur.

Here, Objectors maintain, 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's consultant, TeamAg, acknowledged the state does not require an analysis of soil suitability for manure application. R.R. at 316a.

Objectors point out that they retained B.F. Environmental Consultants, Inc., to review the NMA plan and the soil quality for the proposed pig nursery. R.R. at 49a. The facility intends to house 4800 pigs for 319 days a year, which will generate 1,289,986 gallons of manure annually. Brian Oram, a professional geologist and soil...