AND NOW, this 10th day of August, 2010, it is hereby Ordered that the opinion filed May 28, 2010, in the above-captioned matter shall be designated Opinion rather than Memorandum Opinion, and it shall be reported.
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
The Commonwealth of Pennsylvania, Office of Attorney General By Thomas W. Corbett, Jr., Attorney General (Attorney General), has filed a motion for summary judgment (Motion) in connection with his "Amended Petition for Review in the Nature of a Complaint for Declaratory Judgment and Injunctive Relief" (Petition), which the Attorney General filed in this court's original jurisdiction pursuant to section 315 of the Agriculture Code*fn1 (Code) against Richmond Township and the Richmond Township Board of Supervisors (together, Township). We grant the Motion and enter summary judgment in favor of the Attorney General.
This court may enter summary judgment at any time after the filing of a petition for review in our original jurisdiction if the applicant's right to relief is clear. Pa. R.A.P. 1532(b). Under Pa. R.C.P. No. 1035.2(2), a court may enter summary judgment if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
Oral testimony of the moving party or his witnesses, by itself, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. Pa. R.C.P. No. 1035.2, Note (citing Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), and Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989)). Oral testimony that constitutes an adverse admission by a non-moving party does not fall within this rule.*fn2 Department of Environmental Resources v. Bryner, 613 A.2d 43 (Pa. Cmwlth. 1992).
The Attorney General argues that the Township violated section 313 of the Code*fn3 by enforcing sections 201.4 and 804.7 of the Township's Zoning Ordinance (Ordinance), which relate to intensive agriculture. The Attorney General contends that the definition of "intensive agriculture" in those provisions is arbitrary, vague and unreasonable and invites discriminatory enforcement. We agree.
A local government unit has no authority to adopt an ordinance that is arbitrary, vague or unreasonable or inviting of discriminatory enforcement. Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967). A vague ordinance is one that proscribes activity in terms so ambiguous that reasonable persons may differ as to what is actually prohibited. Scurfield Coal, Inc. v. Commonwealth, 582 A.2d 694 (Pa. Cmwlth. 1990).
A. Statutory Construction
Section 201.4 of the Ordinance defines "Agriculture (Intensive)" 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." (Petition, ex. A at 3) (emphasis added). Section 804.7 provides, in pertinent part, that "[i]ntensive 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." (Petition, ex. A at 114) (emphasis added).
Because these provisions relate to the same thing, viz., the meaning of intensive agriculture, we shall read them in pari materia. Section 1932 of the Statutory Construction Act of 1972, 1 Pa. C.S. §1932. Moreover, in reading the provisions, we shall construe the words and phrases according to the rules of grammar and their common and approved usage. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1903(a).
First, the definition in section 201.4 indicates that intensive agriculture involves "specialized" agricultural activities. This means that intensive agriculture is agriculture that is designed for a particular end, e.g., producing mushrooms, poultry, eggs or dry lot livestock. See Webster's Third New International Dictionary 2186 (2002) (defining "specialized"). Second, the "intensity" of the production must be greater than that found in normal farming operations. This means that there must be an "extreme degree" of production. Webster's Third New International Dictionary 1175 (2002) (defining "intense" and "intensity"). Third, production is not extreme enough to be included within the definition unless it requires the "development of specialized" sanitary facilities and control. This means that normal sanitary facilities and control will not suffice and that someone must make sanitary facilities and control "usable or available" for the degree of production. Webster's Third New International Dictionary 618 (2002) (defining "development").
Ultimately, then, whether a farming operation falls within the definition of intensive agriculture in the Ordinance depends on whether it requires the farmer to use "specialized sanitary facilities and control." The Ordinance does not define these terms. To the extent that reasonable persons may differ as to their meaning, and the definition of intensive agriculture, the Ordinance would be ambiguous and could not stand. In order to make that determination, we consider the deposition testimony of John E. Yoder, the Township's zoning officer, regarding his understanding of the terms "specialized sanitary facilities and control."
B. Specialized Sanitary Facilities and Control
Yoder is responsible for making the initial determination as to whether a farming operation falls within the definition of intensive agriculture. Yoder testified that, in construing the Ordinance's definition of intensive agriculture, he separates sanitary facilities from controls. (Yoder dep. at 41, 88.)
With respect to sanitary facilities, Yoder testified that: (1) sanitary facilities include manure pits and compost areas, both of which deal with waste products, but he does not know "the difference between a sanitary facility for [a normal] agriculture operation versus an intensive operation," (Yoder dep. at 43-44); and (2) a sanitary facility would be "specialized" if the operation generated so much manure or compost that the farmer could not use it all on his property, so that he needed to store it in a "facility of greater magnitude than . [a storage facility in] a normal agricultural operation" before trucking it somewhere else to be sold, (Yoder dep. at 46).
With respect to the word "control" in the definition, Yoder testified that the term includes: (1) noise, rodent and insect controls, but such controls would be the same for both normal and intensive agriculture, (Yoder dep. at 80-85); (2) water pollution control, but a nutrient management plan would sufficiently address that concern in both normal and intensive agriculture, (Yoder dep. at 84-85); (3) bringing specialized animal feed from outside the farm, but that would not make a farming operation intensive agriculture without a large number of animals, although "I don't have a set number," (Yoder dep. at 37-39); (4) needing to "suit up" when entering a sanitary facility to prevent the spread of disease, (Yoder dep. at 41); and (5) restricting access to a building, (Yoder dep. at 41-42). Yoder further testified that, in order to determine whether a control is "specialized" for a particular agricultural operation, he "would have to familiarize [himself] with [normal controls]." (Yoder dep. at 42.)
Considering Yoder's testimony about specialized sanitary facilities and control, reasonable people may differ as to what actually falls within the definition of intensive agriculture. As for specialized sanitary facilities, Yoder admitted that he could not explain the difference between sanitary facilities used in normal agriculture and those used in intensive agriculture. Yoder thought that a larger-than-normal storage facility for manure or compost would be "specialized," but Yoder did not testify regarding the dimensions of a normal storage facility, and, even if he had done so, they are not found in the Ordinance. Thus, no one could know the dimensions of a larger-than-normal sanitary facility from the Ordinance.
As for specialized controls, Yoder conceded that many controls are the same for both normal and intensive agriculture. Yoder also conceded that nutrient management plans for both normal and intensive agriculture are sufficient to control water pollution; thus, there would be no need to impose further controls under the Ordinance. Yoder gave other examples of controls, but Yoder stated that he could not identify a specialized control without investigating what is normal for a particular farming operation. Thus, no one else could know what sort of control would place a ...