Zoning for Agricultural Projects: Every Detail Matters

February 7, 2018
Aaron S. Marines

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.

The second point on which the case turned was whether the applicant or the objectors needed to provide testimony about an “adverse impact.”  In most special exception or conditional use hearings, the applicant needs to meet the objective requirements in the Zoning Ordinance.  Once the farmer does that, it is up to the objectors to prove that the operation would harm the surrounding area.  However, in this Zoning Ordinance, the farmer was required to prove that none of his operations would have an “adverse impact.”  The farmer testified generally that the operation would not adversely impact the surrounding area.  But because this little phrase was the farmer’s obligation, the Court decided he needed to provide much more specific evidence.

Anyone that has been through a hotly opposed zoning hearing for an agricultural project knows that the opponents pick at every possible detail of the application.  Unfortunately, if the farmer fails to meet even one of these criteria, the zoning application could be denied.  Because of this, it is tremendously important that the farmer and his team, attorneys, engineers, nutrient planners, etc., go through every potential requirement before the application is submitted.  In today’s legal climate, there is no benefit of the doubt for farmers, and there are no short cuts to approvals.

Aaron Marines is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Commercial Real EstateLand Use, Land Planning and Zoning matters.