Russell Berner and Donna Berner, Kendall Dobbins, Robert D. Clark and Robert W. Webber, Appellants
Montour Township Zoning Hearing Board and Scott Sponenberg
Argued: December 4, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E.
COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge
zoning case returns to us following our remand in Berner
v. Montour Township Zoning Hearing Board (Berner
I) (Pa. Cmwlth., No. 881 C.D. 2015, filed February 8,
2016), 2016 WL 464225 (unreported). In Berner I, we
returned this matter to the Montour Township Zoning Hearing
Board (ZHB) for additional findings on Scott Sponenberg's
(Applicant) special exception application for his proposed
swine nursery barn and under building for manure storage. On
remand, the ZHB made additional findings and granted
Applicant's special exception application. The Court of
Common Pleas of the 26th Judicial District (Columbia County
Branch) (trial court) affirmed.
appeal, Objectors argue the ZHB erred in granting
Applicant's special exception request based on its
determination that one of the special exception requirements
for Applicant's proposed use was subjective and vague,
and, therefore, not a specific requirement that Applicant was
required to satisfy to obtain special exception approval.
They also contend the ZHB exceeded the scope of our remand
order in Berner I when it determined, in the
alternative, that the Nutrient Management Act (NMA), 3 Pa.
C.S. §§501-522, preempted the disputed special
exception requirement. Upon review, we conclude the ZHB erred
in determining Applicant did not bear the burden of proof
regarding compliance with the special exception requirement
at issue. Further, the ZHB erred in determining, in the
alternative, that the NMA's regulations preempted this
special exception requirement so as to excuse Applicant's
non-compliance with that provision. Therefore, we reverse.
Berner I, we set forth the following background to
this matter. Applicant owns the property located at 140 Tower
Drive (property) in Montour Township (Township), Columbia
County. The property lies in an agricultural zoning district.
April 2013, Applicant filed an application for a special
exception with the ZHB for his proposed intensive
agricultural use. Specifically, Applicant seeks to construct
a 78½ foot by 201 foot (15, 778½ square foot)
swine nursery barn with under building concrete manure
storage with a usable capacity of approximately 645, 000
gallons. Applicant's special exception application
included a completed application form, site plans prepared by
TeamAg, Applicant's consultant, a Manure Management Plan
prepared by Todd Rush of TeamAg, who is a state certified
nutrient management specialist, correspondence from Rush, and
the Pennsylvania Department of Environmental Protection's
(DEP) Manure Management Plan Guidance document. A hearing
ensued before the ZHB at which Applicant and Rush
the hearing, the ZHB issued a decision in which it granted
Applicant's special exception application subject to two
conditions. Objectors appealed to trial court. Ultimately,
the trial court determined public notice of the ZHB hearing
was deficient. Thus, the trial court remanded to the ZHB for
the purpose of taking additional testimony from any person
who was not present at the ZHB hearing, after proper public
notice of the new hearing was provided.
remand, the ZHB held two hearings at which it heard testimony
from several Objectors, Dennis R. Peters, P.E., of Peters
Consultants regarding the condition of Tower Road, Brian
Oram, a professional geologist and soil scientist, and Rush
concerning manure application.
the remand hearings, the ZHB unanimously reaffirmed its prior
decision granting Applicant's special exception
application subject to two conditions. In a written opinion
in support of its decision, the ZHB made the following
findings and conclusions.
property is currently used as a livestock and crop farm. It
is improved with a farmhouse, a cattle barn, two equipment
sheds and several outbuildings. The proposed swine nursery
would include a swine nursery barn with under building manure
storage. The manure from the swine nursery will be spread on
portions of the property and on other leased fields as
indicated in the Manure Management Plan included with the
prepared the Manure Management Plan and provided testimony
detailing the proposed use and its compliance with applicable
state and federal statutes and regulations.
402(1)(E) of the zoning ordinance provides that
"Intensive Agriculture and Agricultural Support, "
which specifically includes hog raising, is permitted by
special exception in an agricultural district. The ZHB
determined Applicant's proposed swine nursery qualifies
as an Intensive Agriculture and Agricultural Support use as
defined by the zoning ordinance.
Section 402(1)(E) of the zoning ordinance sets forth seven
specific criteria that an Intensive Agriculture use must
satisfy. The ZHB concluded Applicant satisfied each of these
criteria through his application, exhibits and testimony.
Additionally, Section 1101(3) of the zoning ordinance sets
forth six general criteria for the granting of a special
exception. The ZHB concluded Applicant satisfied each of
those general criteria through his application, exhibits and
presented the testimony of neighboring property owners,
Dennis Peters and Brian Oram. Objectors raised concerns about
the proposed use regarding odor, manure application,
potential contamination of groundwater, disease, traffic and
diminution in property value.
testified regarding increased truck traffic on Tower Drive
from the proposed use and its impact on the condition of
Tower Road. On cross-examination, Peters acknowledged he had
not consulted with the Township regarding its upcoming
scheduled road repairs and maintenance for Tower Road.
Further, on cross-examination, it was revealed that Peters
used incorrect finish weight data for the hogs from the
proposed nursery for his truck calculations resulting in
incorrect and overstated truck traffic calculations. The
correct finish weight data was included in the application.
soils scientist, presented testimony on the soil suitability
of the property and the leased fields for land application of
manure. Oram concluded the soils on the property and the
leased fields were not suitable for manure application from
the proposed swine nursery based on the Natural Resources
Conservation Service's (NRCS) Websoils Survey.
on cross-examination, it was revealed that Oram: (1) is not a
state-certified nutrient management specialist; (2) did not
conduct any soil or groundwater sampling on the property; (3)
did not review Applicant's testimony or exhibits from the
initial hearing regarding the proposed use; (4) did not
reference or utilize the NRCS Website's seasonal high
water table data when forming his opinion regarding soil
suitability; (5) did not consult with any NRCS representative
in interpreting the information on the NRCS website; (6) did
not consult with any representative of the State Conservation
Commission in forming his opinion regarding soil suitability
for manure application; (7) has only performed this type of
soil analysis on one other occasion for a hog operation; and,
(8) does not have a working knowledge of the NRCS' Code
590, which specifically relates to nutrient management and
found the testimony presented by Applicant and Rush credible.
Further, it found not credible certain aspects of the
testimony presented by Peters and Oram, although it did not
identify which parts of that testimony it discredited.
the ZHB concluded Applicant's proposed swine nursery
qualified as an Intensive Agricultural and Agricultural
Support use under the zoning ordinance. The ZHB further
concluded Applicant met the zoning ordinance's objective
criteria for such a use under Section 402(1)(E) of the zoning
ordinance and the general requirements for a special
exception under Section 1101(3) of the zoning ordinance.
Thus, the ZHB determined Applicant's special exception
application was entitled to approval under those sections of
the zoning ordinance, subject to conditions. Without
explanation, the ZHB also concluded the preemption language
in Section 519(b) of the NMA applied to Applicant's
on these determinations, the ZHB granted Applicant's
special exception request pursuant to Sections 402(1)(E) and
1101(3) of the zoning ordinance subject to two
conditions. Objectors again appealed to the trial
taking additional evidence, the trial court issued an order
denying Objectors' appeal. Objectors appealed to this
this Court determined the ZHB did not clearly decide the
matter on the basis of preemption. Specifically, the ZHB made
one finding in which it quoted the language of Section 519(b)
of the NMA. It also made one conclusion of law in which it
stated: "The Section 519(b) preemption language of [the
NMA] is applicable to [Applicant's] proposed swine
nursery use." ZHB Op., Concl. of Law No. 10. However,
the ZHB offered no explanation or analysis in support of this
end, this Court's review of the ZHB's decision
revealed the ZHB did not base its decision to grant
Applicant's special exception application on the ground
that the NMA or its regulations preempted the zoning
ordinance. Indeed, the ZHB did not identify any conflict
between the NMA or its regulations and the relevant zoning
ordinance provisions. Rather, the ZHB based its decision to
grant Applicant's special exception request on the ground
that Applicant satisfied the zoning ordinance's specific
and general criteria to obtain the requested special
exception. Further, the trial court did not base its
affirmance of the ZHB's decision on preemption grounds.
As a result, we examined the ZHB's determinations that
Applicant satisfied the zoning ordinance's special
setting forth the standards governing special exceptions,
this Court explained that Section 401(3) of the zoning
Uses Permitted by Special Exception-A use listed in §
402 is permitted in any district under which it is denoted by
the letter 'S', provided the [ZHB] authorizes the
issuance of a zoning permit by the Zoning Officer, subject to
the specific requirements contained in the table of use
regulations and in § 1101(3), as well as all other
applicable requirements of this chapter and such further
restrictions that [the ZHB] may establish.
Id. In turn, Section 402 of the zoning ordinance
provides, in pertinent part:
1. Agricultural Uses
* * * *
E. Intensive Agriculture and Agricultural Support ...
Commercial feedlots, veal finishing, hog raising, poultry
breeding or egg or meat production operations, livestock
auctions, wholesale produce centers, fertilizer and seed
distributors, commercial horse farms, grain storage and feed
mills, and similar uses shall submit facility designs and
legally binding assurances with performance guarantees which
demonstrate that all facilities necessary for manure and
wastewater management, materials storage, water supply and
processing or shipping operations will be conducted without
adverse impact upon adjacent properties. For purposes of this
chapter, adverse impacts may include, but are not limited to,
groundwater and surface water contamination, groundwater
supply diminution, noise, dust, odor, heavy truck traffic,
and migration of chemicals offsite. Intensive agriculture and
agriculture support uses shall be subject to the following:
(1) Where such uses adjoin a residential district or highway
commercial district the intensive agriculture and agriculture
support activity, including manure management facilities,
shall be set back 400 feet from the property line.
(2) Disposal of deceased animals and birds shall be within 24
hours of death in accordance with State and Federal
regulations. While awaiting removal of deceased animals and
birds, the facility operator or farmer shall secure the
location of the deceased from unauthorized access or
scavengers and take precautions to minimize odor or other
(3) Off-street parking and loading shall comply with Part 8
of this chapter.
(4) Signs shall be permitted only as specified in Part 7 of
(5) A paved apron or gravel scraping area or other effective
means of cleaning of mud and manure to prevent tracking
off-site and onto public roadways shall be provided.
(6) Manure management facilities shall be designed,
constructed and operated in compliance with Bureau of Water
Quality Management Publication No. 43, 'Manure Management
for Environmental Protection, ' and any revisions,
supplements, and replacement thereof, published by [DEP].
Plans for manure management facilities and any changes
thereto during construction shall be reviewed by the Columbia
County Conservation District, with proof of their review
prior to issuance of a zoning permit.
(7) Manure management facilities shall be secured from
Section 402(1)(E) of the zoning ordinance (emphasis added).
addition, Section 1101(3) of the zoning ordinance states, in
Special Exception Applications. … [S]pecial exceptions
may be granted or denied by the [ZHB] pursuant to express
standards and criteria. The [ZHB] shall hear and decide
requests for such special exceptions in accordance with such
standards and criteria. In granting a special exception, the
[ZHB] may attach such reasonable conditions and safeguards,
in addition to those expressed in the chapter, as it may deem
necessary to implement the purposes of this chapter. The
[ZHB] shall pursue the following procedure.
* * * *
B. No application for a permit shall be granted by the [ZHB]
for any special exception use until [the ZHB] has first
received and considered an advisory report thereon from the
Planning Commission with respect to the location of such use
in relation to the needs and growth pattern of the area and,
where appropriate, with reference to the adequacy of the site
area and arrangement of buildings, driveways, parking areas,
off-street truck loading spaces and other pertinent features
of the site plan. The Planning Commission shall have 30 days
from the date of its receipt of the application within which
to file its report thereon. In the event that said Commission
shall fail to file its report within such 30 days, such
application shall be deemed to have been approved by said
Planning Commission ….
The [ZHB] may thereafter direct the Zoning Officer to issue
such permit if, in its judgment, the use meets all specific
provisions and criteria contained in this chapter and the
following general provisions.
(1) In accordance with the Comprehensive Plan and consistent
with the spirit, purposes and intent of this chapter;
(2) In the best interest of the community, the public welfare
and a substantial improvement to the property in the
(3) Suitable for the property in question and designed,
constructed, operated and maintained so as to be in harmony
with and appropriate in appearance to the existing or
intended character of the general vicinity;
(4) In conformance with all applicable requirements of this
(5) Suitable in terms of effects on highway traffic and
safety, with adequate access arrangements to protect streets
from undue congestion and hazard; and
(6) In accordance with sound standards of subdivision
practice, where applicable ….
Berner I, this Court explained that the ZHB made
three conclusory findings. Specifically, the ZHB found: (1)
Applicant's proposed use qualifies as an Intensive
Agriculture use as defined in Section 402(1)(E); (2)
Applicant's proposal satisfies the specific special
exception criteria in Section 402(1)(E)(1)-(7); and, (3)
Applicant's proposal satisfies the general special
exception criteria set forth in Section 1101(3). Despite
these three conclusory findings, the ZHB did not identify the
relevant special exception criteria, and it did not make any
determinations that explained how Applicant satisfied each of
example, Objectors asserted Applicant did not submit
"facility designs and legally binding assurances with
performance guarantees which demonstrated that all facilities
necessary for manure and wastewater management, materials
storage, water supply and processing or shipping operations
will be conducted without adverse impact upon adjacent
properties ... [including] ... groundwater and surface water
contamination ..." as required by Section 402(1)(E) of
the zoning ordinance. Berner I, Slip Op. at 19, 2016
WL 464225 at *9. Objectors argued such legally binding
assurances with performance guarantees were not of record.
They further asserted Applicant did not present substantive
evidence whether natural hazards, such as unstable soils,
existed in close proximity to the proposed swine nursery use,
as required by Section 604 of the zoning ordinance. The ZHB
made no specific findings on these issues.
addition, despite its citation to Bray v. Zoning Board of
Adjustment, 410 A.2d 909, 912-13 (Pa. Cmwlth. 1980), the
ZHB made no mention of the fact that Objectors (and not
Applicant) bore the "initial evidence presentation
duty" or "persuasion burden" as to at least
some of these criteria.
absence of necessary findings on these factual issues, we
remanded to the trial court with directions to remand to the
ZHB for findings regarding Sections 402(1)(E) and 1101(3) of
the zoning ordinance.
remand, the ZHB held a hearing limited only to oral argument.
Because this Court did not direct the ZHB to take additional
evidence, the ZHB's Solicitor allowed counsel for
Applicant and Objectors to file proposed findings of fact and
conclusions of law, which they did.
argument, the ZHB members read the parties' proposed
findings and conclusions, and the ZHB voted 3-0 to adopt
Applicant's proposed supplemental findings and
conclusions, thereby granting Applicant's special
exception application. In its supplemental findings and
conclusions, the ZHB determined that the language of Section
402(1)(E) of the zoning ordinance, which requires uses such
as hog raising to "submit facility designs and legally
binding assurances with performance guarantees which
demonstrate that all facilities necessary for manure and
wastewater management, materials storage, water supply and
processing or shipping operations will be conducted without
adverse impact upon adjacent properties" was subjective
and vague. As a result, the ZHB determined Applicant did not
bear the burden of proving it complied with this requirement;
rather, Objectors bore the burden of proving that
Applicant's proposed use would generate adverse impacts
not normally expected from this type of use. Alternatively,
the ZHB determined the NMA and its regulations preempted this
zoning ordinance provision, and, therefore, Applicant was
excused from complying with this provision. Objectors
appealed to the trial court.
taking additional evidence, the trial court upheld the
ZHB's decision. This appeal by Objectors followed.
appeal,  Objectors argue the ZHB erred in
determining that the requirement to submit "facility
designs and legally binding assurances with performance
guarantees which demonstrate all facilities … will be
conducted without adverse impact upon adjacent
properties" was "aimed at avoiding a general
detrimental impact, is subjective, and vague" and
therefore was not a specific criterion for Applicant to
satisfy for special exception approval. Appellants' Br.
at 2. They further assert the ZHB exceeded the scope of this
Court's remand order in Berner I when it adopted
Applicant's proposed findings and ...