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Berner v. Montour Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

January 4, 2018

Russell Berner and Donna Berner, Kendall Dobbins, Robert D. Clark and Robert W. Webber, Appellants
v.
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

          OPINION

          ROBERT SIMPSON, Judge

         This 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.

         In this appeal, Objectors[1] 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.

         I. Background

         In 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.

         In 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 testified.[2]

         After 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.

         On 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.

         After 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.

         The 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 application.

         Rush prepared the Manure Management Plan and provided testimony detailing the proposed use and its compliance with applicable state and federal statutes and regulations.

         Section 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.

         Further, 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 testimony.

         Objectors 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.

         Peters 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.

         Oram, a 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.

         However, 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 manure application.

         The ZHB 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.

         Ultimately, 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 proposed use.

         Based 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.[3] Objectors again appealed to the trial court.

         Without taking additional evidence, the trial court issued an order denying Objectors' appeal. Objectors appealed to this Court.

         Ultimately, 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 vague conclusion.

         To that 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 exception criteria.

         After setting forth the standards governing special exceptions, this Court explained that Section 401(3) of the zoning ordinance states:

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 noxious effects.
(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 this chapter.
(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 unauthorized access.

Section 402(1)(E) of the zoning ordinance (emphasis added).

         In addition, Section 1101(3) of the zoning ordinance states, in pertinent part:

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 immediate vicinity;
(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 chapter;
(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 ….

Id.

         In 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 these criteria.

         For 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.

         In 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.

         In the 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.[4]

         On 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.

         After 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.

         Without taking additional evidence, the trial court upheld the ZHB's decision. This appeal by Objectors followed.

         II. Issues

          On appeal, [5] 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 ...


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