Heisler's Egg Farm, Inc. v. Walker Twp. Zoning Hearing Bd.

232 A.3d 1024

HEISLER'S EGG FARM, INC., Appellant

v.WALKER TOWNSHIP ZONING HEARING BOARD and David Bensinger and Margaret Bensinger

No. 780 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued November 14, 2018

Decided May 28, 2020

Aaron S. Marines, Lancaster, for Appellant.

John E. Muir, Wyomissing, for Appellees David Bensinger and Margaret Bensinger.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge¹

OPINION BY JUDGE FIZZANO CANNON²

Heisler's Egg Farm, Inc. (Applicant) appeals from an order of the Court of Common Pleas of Schuylkill County (trial court), dated May 22, 2017, that affirmed the Walker Township Zoning Hearing Board's (Board) denial of Applicant's request for a special exception to expand its existing egg farm. Upon review, we affirm, albeit on other grounds.

Applicant is the owner and operator of the property known as 757 Valley Road, Tamaqua, Pennsylvania (Property). Board's Findings of Fact (F.F.) ¶ A. The Property, which comprises approximately 55.4 acres, lies in the Enhanced Agriculture Preservation (EAP) Zoning District. F.F. ¶¶ K & O. Applicant operates a chicken farm and egg production facility on the Property, which consists of approximately 140,000 laying chickens (layers). Application for Special Exception, Attachment at 1, Reproduced Record (R.R.) at 4a; see F.F. ¶¶ M & N(2). In addition to producing its own eggs, Applicant's facilities contain an egg wash system, which washes eggs produced on-site as well as eggs brought in by third parties and from another one of Applicant's layer facilities located in Catawissa, Pennsylvania. See Notes of Testimony (N.T.) 6/29/16 at 63 & 77, R.R. at 338a & 352a. The eggs are washed with water and the resulting "egg wash water" is spread onto a leach field on the Property. N.T. 6/1/16 at 49, R.R. at 177a. The facility utilizes two wells for water. N.T. 6/1/16 at 73, R.R. at 201a; see N.T. 6/29/16 at 39, R.R. at 314a.

Applicant seeks to expand its operations. F.F. ¶ N. Specifically, it proposes to: (1) remove its existing egg-packing building and replace it with a larger egg-processing building; (2) add two additional chicken laying barns to accommodate an increase in the number of chickens from the current 140,000 layers to a maximum of 468,000 layers;³ (3) transfer manure from the two additional layer barns to a new manure storage building; and (4) treat egg wash water with a 26,853-gallon wash water treatment facility in accordance with its Nutrient Management Plan (NMP) prepared pursuant to the Nutrient Management Act (NMA), 3 Pa. C.S. §§ 501 - 522. F.F. ¶ N(1-4).

Section 452.B of the Eastern Schuylkill Planning Region Zoning Ordinance (Zoning Ordinance) permits Intensive Agriculture in the EAP Zoning District subject to Section 1615 of the Zoning Ordinance. Board Decision, Discussion ¶ B; R.R. at 15a. Section 1615(D) of the Zoning Ordinance provides that for lands exceeding 40 acres, any Intensive Agriculture use in excess of 6.0 animal equivalent units (AEUs) per acre requires a special exception. Board Decision, Discussion ¶ C; R.R. at 15a. Because Applicant's proposed expansion would contain 15.79 AEUs per acre, Applicant applied for a special exception. See F.F. ¶¶ B & P. Hearings ensued before the Board. Board Decision at p. 1⁴ & F.F. ¶ C; R.R. at 9a.

Applicant presented the testimony of Matthew Hood, a professional engineer, and Ted Moncavage (Moncavage), a certified nutrient management planner; they testified regarding the proposed expansion, the NMP and Applicant's odor management plan. F.F. ¶ G; see generally N.T. 6/1/16 at 16-129, R.R. at 144a-257a; N.T. 6/29/16 at 5-34, R.R. at 280a-309a. Applicant also presented the testimony of its President, Todd Heisler (Heisler). F.F. ¶ F; see generally N.T. 6/29/16 at 34-89, R.R. at 309a-64a. David Bensinger and Margaret Bensinger (together, Objectors), who reside and own property immediately adjacent to the Property, appeared with counsel and David Bensinger testified. F.F. ¶ H; see N.T. 6/29/16 at 121 & 143, R.R. at 396a & 418a; see generally N.T. 6/29/16 at 121-43, R.R. at 396a-418a. Objectors also presented the testimony of Serena A. DiMagno (DiMagno) as an expert in the field of environmental regulation and compliance, with a sub-specialty in water and wastewater operation and compliance. F.F. ¶ I. Several other nearby residents also testified. See F.F. ¶ J; see generally N.T. 6/29/16 at 97-121, R.R. at 372a-96a.

Ultimately, the Board denied Applicant's special exception request. Board Decision at p. 14; R.R. at 21a. In so doing, the Board first rejected Applicant's argument that the Board lacked authority to deny Applicant's special exception request on the ground that the Zoning Ordinance was preempted by the NMA. Board Decision, Discussion ¶¶ D-I; R.R. at 15a-17a. To that end, the Board stated Applicant did not avail itself of the statutory procedure by which to challenge the Zoning Ordinance on the ground that it conflicted with the NMA,⁵ and therefore, it declined to usurp the authority of the Attorney General and the court to determine whether the Zoning Ordinance is preempted by the law of this Commonwealth. Id. ¶ H.

In addition, the Board found that Applicant did not proffer sufficient evidence to permit the Board to determine the proposed water consumption/use rates. F.F. ¶ W(2). The Board also found that egg wash water produces foul odors and attracts flies and rodents. F.F. ¶ W(9-10). The Board concluded that Applicant's expansion of its proposed use, including the increased severity and impact of foul odors, flies and commercial truck traffic, would adversely affect: the agricultural and residential character of the community; property values in the community; and the health and safety of the residents, workers and visitors of the adjacent properties and the general neighborhood. Board Decision, Discussion ¶¶ L-N; R.R. at 18a-19a. The Board also concluded that the resulting increased truck traffic would create undue congestion and hazards prejudicial to the surrounding neighborhood. Id. ¶ O. Additionally, the Board determined that the proposed expansion of the Intensive Agricultural use would not conflict with the direction of building development in accordance with the comprehensive plan. Id. ¶ P. Finally, and pertinent to our review, the Board concluded that services and utilities are available to adequately service the proposed use. Id. ¶ Q.

Applicant appealed to the trial court. Notice of Appeal, R.R. at 22a-26a. Without taking additional evidence, the trial court affirmed. See Trial Court Order dated 5/22/17 & Opinion, R.R. at 54a & 60a-72a. Applicant then appealed to this Court.⁶

On appeal,⁷ Applicant makes three arguments.⁸ First, it argues that the trial court erred in determining that Applicant was not entitled to a deemed approval of its application for a special exception. Applicant's Brief at 11-15. Second, Applicant argues the trial court erred in holding that the subject of flies, odors, and egg wash were relevant because those issues are governed solely by the NMA. Id. at 15-18. Third, Applicant argues that it satisfied all the objective requirements for a special exception set forth in Section 1615 of the Zoning Ordinance. Id. at 18-23. Applicant contends it was Objectors’ burden to rebut the presumption that Applicant's proposed use is consistent with the health, safety and welfare of the community, and they did not do so. Id. at 23-27.

I. Deemed Approval

Section 908(1.2) of the Pennsylvania Municipalities Planning Code⁹ (MPC) provides, in pertinent part, "[e]ach subsequent hearing before the [Board] ... shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record." 53 P.S. § 10908(1.2). Section 908(9) of the MPC requires that "[w]here the [Board] ... fails to commence, conduct or complete the required hearing as provided in subsection (1.2), the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time." 53 P.S. § 10908(9).

Applicant agrees that the Board held hearings in this matter on June 1 and June 29, 2016. Applicant contends that, after the June 29 hearing, Section 908(1.2) of the MPC required the Board to hold the next hearing within 45 days, i.e. , on or before August 13, 2016. Relying on our Supreme Court's decision in Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board , 592 Pa. 419, 925 A.2d 768 (2007), Applicant asserts that the proceeding on July 25, 2016 was a meeting and not a hearing. Consequently, Applicant argues that it is entitled to a deemed approval pursuant to Section 908(1.2) of the MPC. 53 P.S. § 10908(1.2). We disagree.

Contrary to Applicant's assertion, the facts and circumstances surrounding the "hearing" in question in Wistuk are not analogous to those found in the instant matter. In Wistuk , our Supreme Court held that a meeting, on October 22, 2003, that was scheduled solely for the purpose of "deliberation and decision" was not a "hearing" within the meaning of Section 908(1.2), as the parties did not have an " ‘opportunity to respond and present evidence and argument and cross-examine adverse witnesses.’ " Wistuk , 925 A.2d at 775 (quoting Section 908(5) of the MPC, 53 P.S. § 10908(5) ).

In concluding that the proceeding at issue in Wistuk was not a hearing, our Supreme Court relied on the following facts and circumstances. The Supreme Court noted that the board's solicitor all but stated at the prior hearing conducted on September 30, 2003 that the hearings on the matter were concluded, stating, "[w]e're going to close the record. Everybody is done. Good. Close the record." Wistuk , 925 A.2d at 769. The solicitor also stated that counsel for the parties could...