Whenever a farmer needs zoning approval for an agricultural project, they cannot leave any detail to chance. If anyone opposes the project – be it the Zoning Hearing Board, the Board of Supervisors or a group of neighbors – anytime the farmer misses even the smallest detail, it could be grounds for getting the project denied.
In Berner v. Montour Township Zoning Hearing Board, the Zoning Hearing Board (twice) and the County Court of Common Pleas (twice) approved the farmer’s zoning application for a swine nursery barn. The Zoning Hearing Board in particular put a lot of faith in the work of Todd Rush from my friends at TeamAg. Unfortunately, there was an organized group of neighbors that opposed the application. The Commonwealth Court eventually ruled that the Zoning Hearing Board was wrong, and that the farmer should not have received the approval for the swine barn.
Most of the Commonwealth Court’s denial dealt with very small differences between the language of the Zoning Ordinance and the Nutrient Management Act. The Zoning Ordinance required the applicant to “submit facility designs and legally binding assurances with performance guaranties” to ensure that the operations will be “conducted without adverse impact upon adjacent properties.” Since this sentence appears to deal with the design of manure storage facilities and manure and waste water management, the Zoning Hearing Board decided that these requirements were preempted by the Nutrient Management Act. After all, the NMA does not allow a municipality to regulate practices related to storage or application of manure or the construction or operation of manure storage facilities.
On a closer look, however, the Court decided that the preemption only applies to operations where a Nutrient Management Plan is required. A NMP is only required for a concentrated animal operation or a concentrated animal feeding operation – a CAO or a CAFO. In this case, the use was neither a CAO nor a CAFO, so the farm only needed a Manure Management Plan, and not a NMP. Because a NMP was not required, the preemption in the Nutrient Management Act did not apply, and the Zoning Ordinance could require anything that it wanted.
Continue Reading Zoning for Agricultural Projects: Every Detail Matters