A Legal Victory for Farmers (Part 1)

July 28, 2017
Aaron S. Marines

Lancaster CountyPennsylvania Courts just announced an important victory for farmers in the case of Branton v. Nicholas Meat, LLC. This case helps farmers that generate and use food processing waste (“FPW”).  It also helps any agricultural use that is subject to any sort of state or federal permit.  In the case, the farmers operated a slaughterhouse which generates FPW.  The farmers applied the FPW to nearby farms.  They also constructed a new 2,400,000 gallon storage tank to hold the FPW. A number of neighboring property owners filed a lawsuit, saying that the spreading of FPW is a nuisance.  The farmers claimed that their operation was protected by the Right to Farm Act.

The Right to Farm Act provides that a neighbor cannot bring a nuisance action against a “normal agricultural operation.”  Most of the cases under the Right to Farm Act focus on whether a certain practice is a “normal agricultural operation.”  In a previous case, Gilbert v. Synagro, the Pennsylvania Supreme Court decided that the Court, and not a jury, was able to decide whether a practice was a normal agricultural operation.  The Court in Gilbert determined that the application of bio-solids was a normal agricultural operation.  In Branton, the Court found that the application of FPW is a normal agricultural operation. This means that the spreading of FPW is protected by the Right to Farm Act for all agricultural operations across the state.

The way that the Superior Court arrived at this decision is just as important as the holding itself.  First of all, the Court noted that the DEP regulates the spreading and storage of FPW as an agricultural operation. The Court said “we conclude that DEP’s experience and expertise in dealing with the regulation of FPW use and enforcement of the Right to Farm Act also supports a finding that the spreading of FPW is an accepted, well-regulated farming practice.”  This is very helpful because DEP regulations include a number of substances that are not traditionally seen as “fertilizer” by non-farmers.  In this decision, the Superior Court is saying that Courts and other tribunals should defer to the DEP’s judgment on these matters.

The second important outcome is that this decision contradicts a prior decision of the Pennsylvania Commonwealth Court with respect to the spreading of FPW.  In Walck v. Lower Towamensing Township Zoning Hearing Board (Pa. Cmwlth. 2008), the Commonwealth Court upheld a determination by the Township Zoning Hearing Board that said the storage of FPW was not a normal farming activity.  This should help to force local Zoning Hearing Boards to accept the spreading of FPW, and other materials that are regulated by the DEP, as normal farming operations in agricultural districts.

Whenever an agricultural project faces opposition, the opponents often argue that the practice in question is not “traditional” farming.  Courts in Pennsylvania are looking at modern agricultural practices, and are slowly adding new practices to the list of items that are protected by the Right to Farm Act.  Every case that turns out like Branton helps expand the list of the ways farmers can operate.

Aaron Marines is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works with a broad range of industries including farmers, planners and consultants in the agricultural industry.  He counsels clients in a variety of areas including Commercial and Residential Real Estate, Land Use, Land Planning and Zoning matters.