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Commonwealth v. Richmond Township

May 22, 2009

COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL BY THOMAS W. CORBETT, JR., ATTORNEY GENERAL, PLAINTIFF
v.
RICHMOND TOWNSHIP, AND RICHMOND TOWNSHIP BOARD OF SUPERVISORS, DEFENDANTS



The opinion of the court was delivered by: Senior Judge Friedman

Argued: April 2, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Before this court is the motion for judgment on the pleadings (Motion) filed by Richmond Township and Richmond Township Board of Supervisors (together, Township) in response to the Amended Petition for Review (Petition) filed by the Commonwealth of Pennsylvania, Office of Attorney General By Thomas W. Corbett, Jr., Attorney General (Attorney General) in this court's original jurisdiction.

On August 14, 2000, the Township adopted Ordinance Number 81-2000 (Ordinance), which purports to regulate intensive agricultural activities (IAAs) differently from normal agricultural operations (NAOs) by requiring farmers who want to engage in IAAs to obtain a special exception from the Township Zoning Hearing Board (ZHB). (Petition, ¶¶6-10.) The Ordinance differentiates between IAAs and NAOs by setting forth distinct activities in each category. Specifically, section 201.4 of the Ordinance defines "Agriculture" as "[t]he cultivation of the soil and the raising and harvesting of the products of the soil, including but not limited to nursery, horticulture, forestry and animal husbandry"; "Agriculture (Intensive)" is defined as "[s]pecialized agricultural activities including, but not limited to, mushroom production, poultry production, and dry lot livestock production, which due to the intensity of production, necessitate development of specialized sanitary facilities and control." (Exh. A at 3.)

Section 804.7 of the Ordinance establishes the conditions necessary to qualify for a special exception to engage in IAAs as follows:

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 the land than found in normal farming operations.

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

..

c. Commercial composting is prohibited. Any on-site composting shall be limited for use on the 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.

.. (Exh. A at 114) (emphasis added).

In 2005, Kervin and Mary Jane Weaver (the Weavers), who own and operate a farm located in a Township Agricultural Security Area (ASA), entered into a contract to raise broiler chicks for sale. The Weavers' proposed chicken operation is an NAO as defined by section 2 of the act commonly known as the Right to Farm Law (RFL);*fn1 however, under the Ordinance, the Weavers' proposed operation would be characterized as an IAA. The Weavers filed a land use appeal challenging the Ordinance and asserting that section 804.7 of the Ordinance violates or is preempted by various state laws.*fn2 Subsequently, the Weavers received a stay in the proceedings before the ZHB so that the Attorney General could review the Ordinance and determine whether to bring an action against the Township. Such action would be pursuant to chapter three of the Agriculture Code (ACRE),*fn3 which prohibits local governments from adopting or enforcing unauthorized local ordinances, i.e., ordinances that prohibit or limit NAOs without the authority of state law. 3 Pa. C.S. §§312 and 313. (Petition, ¶¶12, 16, 22(a)-(c); Exhs. A, B.)

Following his review, the Attorney General filed the six-count Petition, asserting that certain sections of the Ordinance violate ACRE and other state laws and seeking declaratory and injunctive relief.*fn4 On September 19, 2008, the Township filed this Motion, maintaining that it is entitled to judgment on the pleadings because the Attorney General: (1) failed to allege a ripe case or controversy; (2) failed to demonstrate that the Ordinance is inconsistent with or preempted ...


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