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Tinicum Twp. v. Nowicki

Commonwealth Court of Pennsylvania

September 9, 2014

Tinicum Township
v.
Allan J. Nowicki and River Road Quarry, LLC
v.
River Road Quarry, LLC and Pennswood Hauling, LLC
v.
Tinicum Township Zoning Hearing Board. Appeal of: River Road Quarry, LLC and Pennswood Hauling, LLC

Argued May 14, 2014

Appealed from No. 2011-07848 and 2012-01750. Common Pleas Court of the County of Bucks. Scott, President Judge.

Jeffrey S. Treat, Honesdale, and Robert W. Gundlach, Jr., Warrington, for appellants.

Stephen B. Harris, Warrington, for appellees.

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

OPINION

Page 587

RENÉE COHN JUBELIRER, Judge

River Road Quarry, LLC (River Road) and Pennswood Hauling, LLC (Pennswood) (collectively, Landowners) appeal from the Order of the Court of Common Pleas of Bucks County (trial court) that affirmed the Order of the Tinicum Township Zoning Hearing Board (Board) holding that River Road's operation of a business producing mulch on its property (the Property) located in Tinicum Township (Township) violated the Township Zoning Ordinance (Ordinance).[1] On appeal, Landowners argue that the trial court erred in holding that the mulching operation does not qualify as an agricultural operation or forestry activity such that it is protected by the Pennsylvania Municipalities Planning

Page 588

Code (MPC)[2] and the Act commonly known as the " Right to Farm Act," [3] in conjunction with Section 315(a) of the Agriculture Code, 3 Pa. C.S. § 315(a). Discerning no error, we affirm.

The Property is a three-acre former quarry located in the Township's E (Extraction) Zoning District. Pennswood hauls raw materials, including tree stumps, yard waste, and logs to the Property; some similar materials are brought to the Property by landscapers. River Road processes these materials into mulch using a tub grinder. Pennswood then hauls the finished mulch off the Property to buyers. (Trial Ct. Op. at 1-2; Board Decision, Findings of Fact (FOF) ¶ 11, 18.)

On June 26, 2009, the Township Zoning Officer sent an enforcement notice to River Road stating that its mulching operation was in violation of the Ordinance. In response, River Road ceased production and sale of the mulch. River Road resumed mulching operations in the Spring of 2011. The Township Zoning Officer issued a second Enforcement Notice (Notice) on October 13, 2011. This Notice stated that Landowners were in violation of Sections 601.2 and 1302 of the Ordinance for operating non-permitted mill, warehouse, and wholesale uses on the Property in the E (Extraction) Zoning District. (Trial Ct. Op. at 2; Notice at 2, October 13, 2011.)[4]

Landowners appealed the October 13, 2011 Notice and a hearing was held before the Board. The Township presented the testimony of its Zoning Officer and Herbert Cook, the owner of the parcel from which the Property had been subdivided. Landowners presented the testimony of Allan Nowicki, owner of River Road and co-owner of Pennswood, and Jonathan Nowicki, co-owner of Pennswood. Following the hearing, the Board issued its Decision upholding the October 13, 2011 Notice and concluding that the mulching operation was not a permitted use on the Property. In reaching this conclusion, the Board held that the mulching operation did not qualify as an A-1 crop farming/nursery use or an A-6 forestry use under the Ordinance. (Board Decision, Conclusions of Law (COL) ¶ 2.) It was important to the Board's holding that none of the raw materials from the mulching operation were derived from the Property itself. (COL ¶ ¶ 2-3.) The Board analogized the situation to the raising of sheep:

If a farmer raises sheep and shears the wool and then sells the wool to a factory which knits that wool into sweaters, the processing of the wool into sweaters at the factory is not an agricultural use but is a manufacturing use. The hauling of wood produced elsewhere onto the site for further processing is not an agricultural use or a forestry use.

(COL ¶ 4.) Landowners appealed the Board's Decision to the trial court.

Without taking new evidence regarding the appeal,[5] the trial court affirmed

Page 589

the Board's Decision and concluded that the mulching operation was not an agricultural or forestry use. Relying on this Court's decisions in Clout v. Clinton County Zoning Hearing Board, 657 A.2d 111 (Pa. Cmwlth. 1995) and Wellington Farms v. Township of Silver Spring, 679 A.2d 267 (Pa. Cmwlth. 1996), the trial court held that the mulching operation did not qualify as an agricultural use because the raw materials from which the mulch was made did not originate from the Property and none of the resultant mulch was used on the Property. (Trial Ct. Op. at 4-6.) Landowners appealed the trial court's Order to this Court.[6]

Before this Court, Landowners argue that the mulching operation is protected as an agricultural or forestry use under the definitions set forth in the MPC or as a normal agricultural activity under the Right to Farm Act and Section 315(a) of the Agriculture Code.[7]

We first address Landowners' argument that its mulching operation is protected as an agricultural or forestry use under the MPC. Section 603 of the MPC limits the restrictions municipal zoning ordinances may set on agricultural and forestry uses:

(f) Zoning ordinances may not unreasonably restrict forestry activities. To encourage maintenance and management of forested or wooded open space and promote the conduct of forestry as a sound and economically viable use of forested land throughout this Commonwealth, forestry activities, including, but not limited to, timber harvesting, shall be a permitted use by right in all zoning districts in every municipality.
. . . .
(h) Zoning ordinances shall encourage the continuity, development and viability of agricultural operations. Zoning ordinances may not restrict agricultural operations

Page 590

or changes to or expansions of agricultural operations in geographic areas where agriculture has traditionally been present unless the agricultural operation will have a direct adverse effect on the public health and safety. Nothing in this subsection shall require a municipality to adopt a zoning ordinance that violates or exceeds the provisions of . . . the [Right to Farm Act].

53 P.S. § 10603(f), (h). Accordingly, if the mulching operation qualifies as a forestry activity or an agricultural operation, then pursuant to Section 603, the Ordinance may not operate to prevent it on the Property. In determining whether the mulching operation falls into either of these two categories, we turn to the definitions of these terms provided by the MPC.

Section 107 of the MPC defines " forestry" as " the management of forests and timberlands when practiced in accordance with accepted silvicultural[8] principles, through developing, cultivating, harvesting, transporting and selling trees for commercial purposes, which does not involve any land development." 53 P.S. § 10107. Section 107 defines " agricultural operation" as:

an enterprise that is actively engaged in the commercial production and preparation for market of crops, livestock and livestock products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities. The term includes an enterprise that implements changes in production practices and procedures or types of crops, livestock, livestock products or commodities produced consistent with practices and ...

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