Burkholder v. Zoning Hearing Bd.

Page 1006

902 A.2d 1006

Stephen R. BURKHOLDER and Darleen G. Burkholder, Appellants v. ZONING HEARING BOARD OF RICHMOND TOWNSHIP and Richmond Township.

Stephen R. Burkholder and Darleen G. Burkholder v. Zoning Hearing Board of Richmond Township and Richmond Township.

Appeal of Richmond Township.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 5, 2006.

Decided July 14, 2006.

Christopher J. Hartman and Barbara J. Kern, Reading, for appellants.

Robert P. Grim, Kutztown and Daniel E. Brannen, Jr., Centre Hall, for appellee, Richmond Township.

John J. Bell, Camp Hill, for amicus curiae, Pennsylvania Farm Bureau.

Thomas A. Linzey, Chambersburg, for amici curiae, Pennsylvania Farmers Union and the Pennsylvania Family Farm Coalition.

Thomas L. Wenger, Harrisburg, for amicus curiae, Pennsylvania State Association of Township Supervisors.

BEFORE: COLINS, President Judge, McGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge SIMPSON.

In this land use case, we are asked whether the Nutrient Management Act¹ (NMA) and its implementing regulations preempt a setback requirement expressed in a local zoning ordinance. Stephen R. and Darleen G. Burkholder (Landowners)² and Richmond Township (Township) cross-appeal from an order of the Court of Common Pleas of Berks County (trial court) that determined the NMA preempts the local setback requirement as applied to one of two structures Landowners propose to construct in order to expand their existing hog raising operation. Concluding the NMA and its implementing regulations preempt the local setback requirement as applied to both of Landowners' proposed structures, we affirm in part and reverse in part.

Landowners own a 57-acre, triangular-shaped parcel in Richmond Township, Berks County (Subject Property). The Subject Property is bordered to the north by Fleetwood-Lyons Road, to the southeast by Norfolk Southern Railroad tracks, and to the southwest by Deka Road. The Subject Property, which is zoned R-A Rural Agricultural, shares a boundary with the R-1 Low Density Residential, L-I Light Industrial, and I Industrial zoning districts.

Landowners purchased the Subject Property in 1993 from Stephen Burkholder's parents, who previously subdivided a larger tract of 152 acres into the Subject Property and one other parcel. The entire 152-acre tract, including the Subject Property, lies within the Township's Agricultural Security Area (ASA) under the Agricultural Area Security Law (AASL),³ and is subject to an agricultural conservation easement.

Beginning in 1957, the elder Burkholders conducted a hog raising operation over the entire 152-acre property. Landowners assumed control of the operation in 1985 and continue to conduct the operation on the Subject Property.

Due to the intensity of the operation, Landowners' current operation is subject to the NMA and its implementing regulations.⁴ The NMA, which is concurrently administered and enforced by the Department of Environmental Protection (DEP) and the Pennsylvania State Conservation Commission (PSCC), requires operators of "Concentrated Animal Operations" (CAOs), to develop and implement nutrient management plans. See Sections 2, 4 and 6 of the NMA, formerly 3 P.S. §§ 1702, 1704, 1706. CAOs are farms with more than two animal units for each acre of land on which animal manure is applied. Former 3 P.S. § 1706; 25 Pa.Code § 83201.⁵

The preparation and implementation of nutrient management plans is the centerpiece of the NMA. See Michael M. Meloy, An Overview of Nutrient Management Requirements in Pennsylvania, 10 Penn St. Envtl. L.Rev. 249 (2002). Among other things, a nutrient management plan controls the storage and disposal of manure generated by a CAO, and regulates the amount and frequency of manure application to crops. Id. Notably, Landowners maintain a DEP-, PSCC-approved nutrient management plan.

Currently, Landowners operate a "partial" "all in/all out" hog raising operation. In the "all in/all out" method, a farmer raises hogs from birth to maturity before selling them. The "all in/all out" method consists of three stages. The first stage is the "farrowing" stage, during which a farmer provides oversight and care for the sows and newborn piglets during the birthing process. In the second stage, the newborns are weaned from the sows and moved to a nursery where they remain until they are eight to 10 weeks of age. In the third and final stage, the pigs are moved to a "finishing" area where they are cared for until they reach five to six months of age and are deemed "finished" and made available for sale. Landowners currently house 3,500 to 4,000 young pigs. They do not, however, possess sufficient facilities to "finish" all pigs birthed on the Subject Property. As a result, Landowners' operation is a "partial," rather than a "total," "all in/all out" hog raising operation.

As a "partial" "all in/all out" operation, Landowners sell approximately half of the pigs birthed on the Subject Property as "feeder" pigs at eight to 10 weeks of age at a substantially lower price than could be obtained for "finished" pigs. Landowners seek zoning relief to expand their operation from a "partial" to a "total" "all in/all out" hog raising operation so they can "finish" all pigs birthed on the Subject Property. Expanding to a "total" "all in/all out" operation would enhance the health of Landowners' herd and would also result in a financial gain for Landowners. Further, because all pigs would remain on the Subject Property until "finished," the overall population would increase to approximately 5,300 pigs.

In order to expand their operation, Landowners propose to construct two new facilities. More specifically, Landowners seek to construct a 68-foot by 202-foot building that would house approximately 1,750 pigs during the "finishing stage" (Finishing Building). Landowners propose to construct the Finishing Building directly above a nine-foot deep manure storage pit.

In addition, Landowners seek to construct a 70-foot by 42-foot addition to the end of an existing farrowing and nursery building (Addition). The Addition would enable Landowners to consolidate their existing, separate nursery and farrowing operations into one building. Temporary manure storage would occur in shallow pits directly below the Addition.

Because of the triangular-shape of the Subject Property, Landowners propose to locate both structures less than 1500 feet from adjoining residential properties and/or zoning district boundaries. This aspect of the proposal is the basis for much of the litigation.

Under the terms of the Richmond Township Zoning Ordinance of 1998 (Ordinance), Landowners proposed expansion is considered "Intensive Agricultural Activity." See Section 201.4 of the Ordinance. To engage in this type of activity in the R-A zoning district, Landowners are required to obtain a special exception. See Section 402.3 a. of the Ordinance. Section 804.7 of the Ordinance sets forth five criteria an applicant must satisfy to obtain a special exception for intensive agricultural activity. That Section states, in its entirety:

804.7 Intensive Agricultural Activity

Intensive agricultural activities include, but are not limited to, mushroom farms, poultry and egg production, and dry lot farms, wherein the character of the activity involves a more intense use of land than found in normal farming operations.

a. Intensive agricultural activities shall not be located within one thousand five hundred (1,500) feet of another zoning district or existing residence located within the Agriculture or any other zoning district.

b. A minimum lot size of five (5) acres is required for intensive agricultural activities; which shall be so located on the lot as to provide front, side, and rear yards of one hundred (100) feet. The maximum height of [a] building used for intensive agricultural use is thirty-five (35) feet or two and one-half (2-1/2) stories, excluding appurtenances.

c. Commercial composting is prohibited. Any on-site composting shall be limited for use on premises on which such composting is made and produced.

d. Solid and liquid wastes shall be disposed of daily in a manner to avoid creating insect or rodent problems, or a public nuisance. No emission of noxious, unpleasant gases shall be permitted in such quantities as to be offensive outside the lot lines of the tract occupied by an intensive agricultural user.

e. Dry lot feeding stations shall be permanently paved.

Section 804.7 of the Ordinance, Reproduced Record (R.R.) at 159a (emphasis added). At issue here is the 1500-foot setback requirement in subsection "a."

In October 2002, Landowners filed an application with the Richmond Township Zoning Hearing Board (ZHB) seeking special exceptions for the proposed facilities pursuant to Section 804.7 of the Ordinance.⁶ In their amended application, Landowners asserted, among other things, the 1500-foot setback requirement was invalid because it conflicted with the NMA's less stringent setback requirements.⁷

After nine days of hearings, the ZHB issued a 2-1 decision rejecting all of Landowners' requested relief. Landowners appealed.

Without taking additional evidence, the esteemed trial court affirmed in part and reversed in part. The trial court addressed Landowners' contention that the NMA preempts the 1500-foot setback requirement contained in Section 804.7 a. It pointed out the NMA contains a preemption provision that prohibits local regulation of the "construction, location or operation" of a "manure storage facility" as that term is defined in the NMA's implementing regulations. Under the NMA's regulations, the most stringent setback requirement for manure storage facilities is 300 feet. Accordingly, the trial court determined that to the extent Section 804.7 a. of the Ordinance regulates manure storage facilities, it is more restrictive than the NMA,...