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Commonwealth of Pennsylvania, Office of Attorney General By Thomas W. v. Locust Township and Locust Township Board of Supervisors

July 17, 2012

COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL BY THOMAS W. CORBETT, JR., ATTORNEY GENERAL, PETITIONER
v.
LOCUST TOWNSHIP AND LOCUST TOWNSHIP BOARD OF SUPERVISORS, RESPONDENTS



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: June 6, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON

Before this Court is the Commonwealth of Pennsylvania, Office of Attorney General's (Attorney General) motion for summary judgment on its petition for review (Petition) of Locust Township Ordinance No. 4-2001 (Ordinance), which we shall treat as an application for summary relief pursuant to Pa. R.A.P. 1532(b). For the reasons that follow, we grant in part summary judgment on Counts II, III, and IV and deny summary judgment as to the remaining claims and counts.*fn1

I. BACKGROUND

In June 2006, the Attorney General*fn2 brought the Petition in our original jurisdiction against Locust Township and its Board of Supervisors (collectively, Township), a second-class township located in Columbia County, to invalidate or enjoin the Ordinance, captioned "An Ordinance Amending the Zoning Ordinance of Locust Township, Columbia County, Pennsylvania to Provide for and Regulate Intensive Animal Agriculture." The Petition alleges that the Ordinance violates Chapter 3 of the Agricultural Code (ACRE),*fn3 3 Pa. C.S. §§ 311-318, because it prohibits or limits normal agricultural operations where it is preempted from doing so by state law (Count I). The Petition also challenges Section 503(a), (d), (f), (h), (j), Part 3(b), and Part 5 of the Ordinance, alleging that they are preempted by Chapter 5 of the Agricultural Code, known as the Nutrient Management Act (NMA), 3 Pa. C.S. §§ 501-522 (Count II). The Petition challenges Section 503(g) of the Ordinance as preempted under the act known as the Water Resources Planning Act (WRPA), 27 Pa. C.S. §§ 3101-3136 (Count III).

The Petition also alleges that the Ordinance violates Section 603(h) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603(h) (Count IV), and the Agricultural Area Security Law (AASL), Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §§ 901-915 (Count V). The Attorney General's final contention in the Petition is that Part 3(a) of the Ordinance conflicts with the act commonly referred to as the Right to Farm Law (RFL), Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§ 951-957 (Count VI).

One cannot read the Ordinance without realizing that the underlying purpose of the Ordinance is to regulate comprehensively a class of farming, which Part 1 of the Ordinance defines as "intensive animal agriculture,"*fn4 within the Township. The Ordinance defines "intensive animal agriculture" as follows:

. . . Intensive Animal Agriculture is hereby defined as the keeping, housing, confining, raising, feeding, production, or other maintaining of livestock or poultry animals when, on an annualized basis, there exists more than 150 Animal Equivalent Units (A.E.U.'s) on the agricultural operation, regardless of the actual acreage owned, used, or otherwise available to the agricultural operation. An A.E.U. is defined as one thousand pounds live weight of livestock or poultry animals, regardless of the actual number of individual animals comprising the unit. An agricultural operation is defined as a farm or other property utilized for the management and use of farming resources for the keeping, housing, confining, raising, feeding, production, or other maintaining of crops, livestock or poultry.

Intensive agriculture also specifically includes:

1. Concentrated Animal Operations (CAO).

CAO's are defined as agricultural operations having an animal density of more than two (2) [A.E.U.'s] per acre of cropland or acre of land suitable for application of animal manure on an annualized basis; and

2. Concentrated Animal Feeding Operations (CAFO's).

CAFO's are defined as agricultural operations with either more that (sic) 1,000 A.E.U.'s, which have the potential to discharge to surface waters. When applicable, the number of AEU's on the agricultural operation shall be calculated in accordance with Act 6 by using the steps and tables located in 25 Pa. Code § 83.262, as amended from time to time. (Emphasis added.)

Part 2 of the Ordinance amends Section 503 of the Township Zoning Ordinance to allow intensive animal agriculture as a permitted use within the Rural Agricultural District by special exception subject to eleven (11) separate and express "conditions" and "such other lawful criteria as the Zoning Hearing Board deems necessary." Part 3 of the Ordinance imposes certain setback and minimum lot size requirements for intensive animal agriculture operations. Part 4 of the Ordinance adopts the NMA and the related regulations. Part 5 of the Ordinance imposes a bond or insurance requirement on all intensive animal agricultural operations: (1) $300,000 for CAOs or CAFOs, and (2) $150,000 for all others. A lower amount can be imposed at the discretion of the Township. Part 6 imposes penalties for noncompliance. Part 7 authorizes the zoning officer to enforce the ordinance. Part 8 provides that the Ordinance provisions are severable. Part 9 repeals a prior ordinance. Part 10 provides the effective date.

II. DISCUSSION

A. NMA Preemption (Count II)*fn5

The General Assembly enacted the NMA for the purposes of, inter alia, regulating nutrient and odor management measures,*fn6 required and voluntary, on certain agricultural operations in the Commonwealth of Pennsylvania. See 3 Pa. C.S. § 502. We have observed that "[t]he preparation and implementation of nutrient management plans is the centerpiece of the NMA." Burkholder v. Zoning Hearing Bd. of Richmond Twp., 902 A.2d 1006, 1008 (Pa. Cmwlth. 2006) (en banc); 3 Pa. C.S. § 506. As the NMA also expressly requires preparation and implementation of odor management plans, 3 Pa. C.S. § 509, we consider this also to be a centerpiece of the NMA.

With respect to preemption of local ordinances, the NMA expressly provides:

(a) General.-This chapter and its provisions are of Statewide concern and occupy the whole field of regulation regarding nutrient management and odor management, to the exclusion of all local regulations.

(b) Nutrient management.-No ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients or to the construction, location or operation of facilities used for storage of animal manure or nutrients or practices otherwise regulated by this chapter if the municipal ordinance or regulation is in conflict with this chapter and the regulations or guidelines promulgated under it.

(c) Odor management.-No ordinance or regulation of a political subdivision or home rule municipality may regulate the management of odors generated from animal housing or manure management facilities regulated by this chapter if the municipal ordinance or regulation is in conflict with this chapter and the regulations or guidelines promulgated under it.

(d) Stricter requirements.-Nothing in this chapter shall prevent a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of this chapter and the regulations or guidelines promulgated under this chapter. No penalty shall be assessed under any such local ordinance or regulation under this subsection for any violation for which a penalty has been assessed under this chapter.

3 Pa. C.S. § 519 (emphasis added).

The preemption language is as perplexing as it is verbose.

Nonetheless, we take the following legislative intent from the General Assembly's chosen words. First, in passing the NMA, the General Assembly unmistakably intended to occupy "the whole field" of nutrient and odor management in the Commonwealth (subsection (a)). To that end, the NMA prohibits the adoption and enforcement of any local ordinance that conflicts with the provisions of the NMA or "regulations and guidelines promulgated under it" (subsections (b) and (c)). But, a municipality is free to adopt and enforce ordinances that "are consistent with and no more stringent than" the NMA, its regulations, and its guidelines (subsection (d)).

1. Preemption of Ordinance Definition

The Attorney General contends in her summary judgment motion that the definition of "intensive animal agriculture" set forth in Part 1 of the Ordinance is preempted under Section 519 of the NMA. The essence of the argument is that the NMA and associated regulations define two classes of agricultural operations-(1) those that are large enough to meet the definition of a "concentrated animal operation," or "CAO," or a "concentrated animal feeding operation," or "CAFO;" and (2) those that are not, which the Attorney General refers to as "non-CAO/CAFOs." With the definition of "intensive animal agriculture," the Attorney General argues, the Ordinance creates a new category of agricultural operation not set forth in the NMA. Thus, according to the Attorney General, the term and its definition are in conflict with the NMA and, therefore, preempted.

The Township, in response, argues that this issue is not before the Court because the Attorney General did not plead in her Petition that Part 1 of the Ordinance is preempted by the NMA. Alternatively, the Township argues that its definition of a category of agricultural operation separate and apart from those categories regulated by the NMA is not a conflict.

The pleading requirements for a petition for review addressed to this Court's original jurisdiction are set forth in Rule 1513(e) of the Pennsylvania Rules of Appellate Procedure. One requirement is that the petition plead "a general statement of the material facts upon which the cause of action is based." Pa. R.A.P. 1513(e) (emphasis added). In addition, Rule 1517 of the Pennsylvania Rules of Appellate Procedure provides that, "[u]nless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with appropriate Pennsylvania Rules of Civil procedure, so far as they may be applied." On these appellate rules, this Court has opined:

Our original jurisdiction provides for a cause of action cognizable at common law in the nature of equity, replevin, mandamus, quo warrantor, declaratory judgment or prohibition, and be commenced by filing a petition for review rather than a complaint. Accordingly, the petition for review, in our original jurisdiction, is a fact pleading document and detailed ...


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