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Berner v. Montour Township Zoning Hearing Board

Supreme Court of Pennsylvania

September 26, 2019


          Argued: March 5, 2019

          Appeal from the Order of the Commonwealth Court at No. 448 CD 2017 dated January 4, 2018, Reversing the Order of the Columbia County Court of Common Pleas, Civil Division, at No. 2014-CV-684 dated March 7, 2017



          BAER JUSTICE.

         The Nutrient Management Act (Act), 3 Pa.C.S. §§ 501-522, requires certain agricultural operations to comply with various standards regarding the management of livestock manure, among other "nutrients."[1] The Act also contains a provision outlining the manner in which the Act, as well as the regulations and guidelines promulgated pursuant to it, preempt local regulation of nutrient management. See id. § 519, infra at page 4. In this appeal, we are tasked with determining whether, and if so, to what extent, the Act preempts local regulation of nutrient management by agricultural operations that are not otherwise subject to the Act's requirements. For the reasons discussed below, we hold that the Act preempts local regulation of agricultural operations not subject to the Act's requirements to the extent that the local regulation is more stringent than, inconsistent with, or in conflict with those requirements. Because the Commonwealth Court reached a contrary result, we reverse the order of that court.

         I. Legal Background

         A. State Law

         In order to facilitate a better understanding of the issue before us, we begin by expanding upon our brief statements on the Act made above. At the heart of the Act is the mandate that certain agricultural operations adopt a "nutrient management plan" or "NMP." See Burkholder v. Zoning Hearing Bd. of Richmond Twp., 902 A.2d 1006, 1008 (Pa. Cmwlth. 2006) (observing that "[t]he preparation and implementation of [an NMP] is the centerpiece" of the Act). An NMP is "[a] written site-specific plan which incorporates best management practices to manage the use of plant nutrients for crop production and water quality protection consistent with the criteria established in [certain sections of the Act]." 3 Pa.C.S. § 503.

         Under the Act, operators of "concentrated animal operations" or "CAOs" must develop and implement an NMP.[2] Id. § 506(b). In contrast, smaller agricultural operations that are not intensive enough to meet the definition of a CAO may develop an NMP voluntarily.[3] Id. § 506(h). Non-CAOs that have voluntarily submitted an NMP are called "voluntary agricultural operations" or "VAOs." 25 Pa. Code § 83.201 (defining VAO, in relevant part, as "[a]ny operation that voluntarily agrees to meet the requirements of this subchapter even though it is not otherwise required under the [A]ct or this chapter to submit a nutrient management plan"). "CAOs, VAOs and operations required to develop compliance plans under section 506(j) of the [A]ct" are collectively referred to as "NMP operations." Id.

         NMP operations must meet the NMP requirements set forth in various regulations promulgated pursuant to the Act. Id. § 83.261. Among these regulations is the one at the center of this dispute, Section 83.351, which provides "[t]he minimum standards [for] new manure storage facilities and the expansion of existing manure storage facilities, as part of a plan developed for an NMP operation." Id. § 83.351(a). While these standards need not be set forth in detail for purposes of this appeal, it is worthwhile to note that they are aimed at protecting water quality and preventing migration of nutrients offsite. See, e.g., id. § 83.351(a)(1) (explaining that "[m]anure storage facilities shall be designed, constructed, located, operated, maintained, and, if no longer used for the storage of manure, removed from service, in a manner that protects surface water and groundwater quality, and prevents the offsite migration of nutrients").

         With respect to preemption, Section 519 of the Act sets forth the preemptive effect the Act, its regulations, and its guidelines have on local regulation of nutrient management. Section 519 provides, in relevant part, as follows:

(a) General.--This chapter and its provisions are of Statewide concern and occupy the whole field of regulation regarding nutrient 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.
(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.[4] We must determine whether, pursuant to Section 519, the Act and its attendant regulations and guidelines preempt the local ordinance at issue here, discussed below.

         B. Local Law

         The municipality involved in this dispute is Montour Township (Township), Columbia County. The Township has a zoning ordinance (Ordinance) under which the Township has been divided into different districts, including agricultural districts. Montour Township, General Codes, Ch. 27 (Zoning), § 300(1). The Ordinance further permits several "Intensive Agriculture and Agricultural Support" uses, including "hog raising, " in agricultural districts by special exception.[5] Id. §§ 401(3), 402(1)(E). While the Ordinance sets forth various criteria an applicant must meet to obtain special exception approval for hog raising, the criterion most relevant to this appeal requires the applicant 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.

Id. § 402(1)(E) (further explaining that "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").[6] While the Ordinance contains this adverse impact requirement, it is undisputed that there is no such requirement contained in the Act or its regulations. It is this circumstance that forms the basis of the dispute herein.

         II. Factual Background and Procedural History

         Scott Sponenberg (Applicant) owns property used as a livestock and crop farm that lies in an agricultural district in the Township. In April 2013, Applicant filed an application for a special exception with the Montour Township Zoning Hearing Board (ZHB) based on his desire to build a swine nursery barn with under building concrete manure storage (i.e., a manure storage facility) on his property. Notably, Applicant's proposed use does not constitute an NMP operation, as it does not meet the criteria of an agricultural operation that is required to have an NMP, and Applicant has not voluntarily created an NMP for his proposed use. Thus, Applicant's planned use is not subject to the various requirements established under the Act, which apply to NMP operations.

         A prolonged procedural history involving litigation of various issues, most of which are irrelevant to this appeal, followed the filing of the special exception application. In short, the ZHB initially granted Applicant's special exception application subject to conditions. Following two appeals filed by various objectors, including Russell Berner, Donna Berner, Kendall Dobbins, Robert D. Clark, and Robert W. Webber (Objectors), the matter returned to the ZHB by way of order from the Commonwealth Court for the ZHB to render necessary findings regarding Applicant's compliance with the Ordinance's special exception requirements.

         On remand, the ZHB permitted the parties to file proposed findings of fact and conclusions of law, and it ultimately adopted those submitted by Applicant. Included in the findings and conclusions were determinations regarding the preemptive effect of the Act and its regulations on the Ordinance's adverse impact requirement. Specifically, the ZHB observed that the Act's regulations comprehensively set forth the standards regarding the design, construction, location, operation, and maintenance of manure storage facilities. The ZHB further explained that those regulations, and Section 83.351 in particular, do not include an adverse impact requirement as the Ordinance does. Relying upon Subsection 519(b), part of the Act's preemption provision, supra at page 4, and making no distinction between NMP and non-NMP operations, the ZHB thus concluded that the adverse impact requirement was more restrictive than, and in conflict with, the Act and its regulations. As a consequence, the ZHB concluded that the Act and its regulations preempted the Ordinance's adverse impact requirement, rendering it unnecessary for Applicant to comply with that requirement.

         Objectors appealed, and the trial court affirmed the ZHB's decision without taking additional evidence. Objectors further appealed to the Commonwealth Court, which concluded in a unanimous, published opinion that the ZHB erred in finding the Ordinance's adverse impact requirement preempted by the Act and its regulations. Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058, 1078 (Pa. Cmwlth. 2018). The Commonwealth Court first observed that, under Subsection 519(a) of the Act, the General Assembly clearly intended to occupy the whole field of nutrient management. Id. at 1077 (quoting Office of Atty. Gen. ex rel. Corbett v. Locust Twp., 49 A.3d 502, 506 (Pa. Cmwlth. 2012)). The court further explained that, under Subsections 519(b) and (d), the Act prohibits local regulation that conflicts with the Act, its regulations, and its guidelines, but allows local regulation that is consistent with and no more stringent than the state law. Id. (quoting Locust Twp., 49 A.3d at 506-07).

         Turning to the facts of this case, the Commonwealth Court reasoned that Section 83.351 applies only to certain manure storage facilities that are "part of a plan developed for an NMP operation."[7] Id. at 1078 (quoting 25 Pa. Code § 83.351(a)). The Commonwealth Court reasoned that Applicant's proposed use was not an NMP operation, as it did not have a mandatory or voluntary NMP; thus, the court concluded that Section 83.351 was inapplicable to the proposed use. According to the Commonwealth Court, because Section 83.351 did not apply to Applicant's proposed use, it was subject to the Ordinance's adverse impact requirement. In other words, the Court concluded that the Act and its regulations did not preempt the Ordinance's adverse impact requirement under the circumstances presented, where there was no NMP subjecting Applicant's use to the state law requirements. Accordingly, and for other reasons not relevant to this appeal, the Commonwealth Court reversed the trial court's decision affirming the ZHB's grant of Applicant's special exception application. Applicant then filed a petition for review with this Court.

         III. Issue

         We granted discretionary review to address the following question, as stated by Applicant:

Whether the Commonwealth Court erred by holding that the [Act] only preempts local ordinances as applied to farms that have an approved [NMP] and that small farms that are not required to submit [NMPs] can be subjected to more stringent regulation than larger more intensive agricultural operations that are required to obtain approval of a[n NMP] under the [Act].

Berner v. Montour Twp. Zoning Hearing Bd., 190 A.3d 593 (Pa. 2018) (per ...

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