Nutrient Management Act; Preemption of Local Zoning Ordinances
Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058 (Pa. Cmwlth. 2018), allocatur granted Aug. 1, 2018, 39 MAP 2018
Objectors sought judicial review of the Montour Township Zoning Hearing Board’s (ZHB) grant of Scott Sponenburg (Owner)’s special exception application for a proposed swine nursery barn and under building for manure storage in an agricultural zoning district as an intensive agricultural use. Berner and others (Objectors) appealed to Columbia County Court of Common Pleas which remanded to the ZHB. On remand the ZHB reaffirmed its earlier decision. Objectors again appealed to common pleas court and then to Commonwealth Court, which remanded to the ZHB for findings concerning Owner’s compliance with the relevant special exception requirements of the zoning ordinance. Berner v. Montour Township Zoning Hearing Board (Berner I), 2016 WL 464225 (Pa. Cmwlth. 2016) (unreported). On remand, the ZHB determined that Owner satisfied the special exception requirements, but in the alternative that Pennsylvania’s Nutrient Management Act (NMA), 3 Pa. C.S. §§501-522 and its regulations preempt the special exception provisions of the Township’s zoning ordinance. The ordinance provides:
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. …
The ZHB determined that the ordinance, which could be interpreted to impose greater burdens on a landowner than one of the NMA’s regulations, 25 Pa. Code § 83.351 (“Minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities.”) is preempted by the NMA, so as to excuse Owner from complying with the ordinance’s requirement to submit facility designs and legally binding assurances with performance guarantees that demonstrate that all facilities necessary for manure management will be conducted without adverse impact on adjacent properties. Objectors appealed this determination to common pleas court, which affirmed the ZHB’s determination. The NMA’s preemption provision is broad, and provides as follows:
(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 36 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.
Objectors again appealed to Commonwealth Court, which disagreed that the Owner satisfied the special exception requirements of the ordinance. It also rejected the ZHB’s alternative preemption determination, explaining that “a careful reading of that regulation reveals that the standards set forth within it apply only to ‘new manure storage facilities and the expansion of existing manure storage facilities, as part of a plan developed for an [Nutrient Management Plan] NMP operation.’” Slip Op. at 40 (emphasis in original). Therefore, Commonwealth Court reasoned, the NMA and its regulations do not apply to Owner’s proposed facility and thus do not preempt the zoning ordinance’s stricter requirements. The court therefore held the ZHB erred in granting Applicant’s special exception application.
The Owner sought discretionary review by the Supreme Court, supported by would-be amici Office of Attorney General, the Pennsylvania Farm Bureau and the PennAg Industries Association.
The Supreme Court denied the applications of the would-be amici but granted allocatur on the preemption issue, as follows:
Whether the Commonwealth Court erred by holding that the Nutrient Management Act (“NMA”), 3 P.S., §519, only preempts local ordinances as applied to farms that have an approved nutrient management plan and that small farms that are not required to submit nutrient management plans can be subjected to more stringent regulation than larger more intensive agricultural operations that are required to obtain approval of a nutrient management plan under the Nutrient Management Act.
For more information, contact Kevin McKeon or Dennis Whitaker.