IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Russell Berner and Donna Berner, :
Kendall Dobbins, Nathan Roberts, :
Roberts Realty, LLC, Robert D. :
Clark, and Robert W. Webber, :
Appellants :
:
v. : No. 881 C.D. 2015
: Submitted: December 11, 2015
Montour Township Zoning :
Hearing Board and Scott Sponenberg :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: February 8, 2016
In this zoning appeal, Objectors1 ask whether the Court of Common
Pleas of the 26th Judicial District (Columbia County Branch) (trial court) erred in
affirming a decision of the Montour Township Zoning Hearing Board (Board) that
granted Scott Sponenberg’s (Applicant) special exception application for a
proposed swine nursery, subject to conditions. Objectors argue the ZHB erred in:
(1) failing to decide whether there was a conflict between the Nutrient
Management Act (NMA), 3 Pa. C.S. §§501-522, and the Montour Township
Zoning Ordinance (zoning ordinance) that required preemption of the zoning
ordinance; (2) determining Applicant presented substantial evidence to satisfy the
1
Objectors are Russell and Donna Berner, Kendall Dobbins, Nathan Roberts, Roberts
Realty, LLC and Robert D. Clark and Robert W. Webber.
zoning ordinance’s objective criteria for a special exception; and, (3) capriciously
disregarding competent evidence of the unsuitability of the soil for application of
manure and the condition of a local road that abuts a portion of Applicant’s
property. Upon review, we vacate and remand.
I. Background
Applicant owns the property located at 140 Tower Drive (property) in
Montour Township (Township), Columbia County. The property lies in an
agricultural zoning district.
In April 2013, Applicant filed an application for a special exception
with the ZHB for his proposed intensive agricultural use. Specifically, Applicant
seeks to construct a 78½ foot by 201 foot swine nursery barn with under building
concrete manure storage with a usable capacity of approximately 645,000 gallons.
Applicant’s special exception application included a completed application form,
detailed site plans prepared by TeamAg, Applicant’s consultant, a Manure
Management Plan prepared by Todd Rush of TeamAg, who is a state certified
nutrient management specialist, correspondence from Rush, and the Pennsylvania
Department of Environmental Protection’s (DEP) Manure Management Plan
Guidance document. A hearing ensued before the ZHB at which Applicant and
Rush testified.2
2
In July 2015, this Court upheld a decision of the Montour Township Board of
Supervisors that approved, subject to conditions, Applicant’s land development application and
plan. See Berner v. Montour Twp., 120 A.3d 433 (Pa. Cmwlth. 2015) (Simpson, J.).
2
After the hearing, the ZHB issued a decision in which it granted
Applicant’s special exception application subject to two conditions. Objectors
appealed to the trial court. Ultimately, the trial court determined public notice of
the ZHB hearing was deficient. Thus, the trial court remanded to the ZHB for the
purpose of taking additional testimony from any person who was not present at the
ZHB hearing, after proper public notice of the new hearing was provided.
On remand, the ZHB held two hearings at which it heard testimony
from several Objectors, Dennis R. Peters, P.E. of Peters Consultants regarding the
condition of Tower Road, Brian Oram, a professional geologist and soil scientist,
and Rush concerning manure application.
After the remand hearings, the ZHB unanimously reaffirmed its prior
decision granting Applicant’s special exception application subject to two
conditions. In a written opinion in support of its decision, the ZHB made the
following findings and conclusions.
The property is currently used as a livestock and crop farm. It is
improved with a farm house, a cattle barn, two equipment sheds and several out
buildings. The proposed swine nursery would include a swine nursery barn with
under building manure storage. The manure from the swine nursery will be spread
on portions of the property and on other leased fields as indicated in the Manure
Management Plan included with the application.
3
Rush prepared the Manure Management Plan and provided testimony
detailing the proposed use and its compliance with applicable state and federal
statutes and regulations.
Section 402(1)(E) of the zoning ordinance provides that “Intensive
Agriculture and Agricultural Support,” which specifically includes hog raising, is
permitted by special exception in an agricultural district. The ZHB concluded
Applicant’s proposed swine nursery qualifies as an Intensive Agriculture and
Agricultural Support use as defined by the zoning ordinance.
Further, Section 402(1)(E) of the zoning ordinance sets forth seven
specific criteria that an Intensive Agriculture use must satisfy. The ZHB
concluded Applicant satisfied each of these criteria through his application,
exhibits and testimony. Additionally, Section 1101(3) of the zoning ordinance sets
forth six general criteria for the granting of a special exception. The ZHB
concluded Applicant satisfied each of those general criteria through his application,
exhibits and testimony.
Objectors presented the testimony of neighboring property owners,
Dennis Peters and Brian Oram. Objectors raised concerns about the proposed use
regarding odor, manure application, potential contamination of groundwater,
disease, traffic and diminution in property value.
Peters, a professional engineer, testified regarding the increased truck
traffic on Tower Road from the proposed use and its impact on the condition of
4
Tower Road. On cross-examination, Peters acknowledged he had not consulted
with the Township regarding its upcoming scheduled road repairs and maintenance
for Tower Road. Further, on cross-examination, it was revealed that Peters used
incorrect finish weight data for the hogs from the proposed nursery for his truck
calculations resulting in incorrect and overstated truck traffic calculations. The
correct finish weight data was included in the application.
Oram, a soils scientist, presented testimony on the soil suitability of
the property and the leased fields for land application of manure. Oram concluded
the soils on the property and the leased fields were not suitable for manure
application from the proposed swine nursery based on the Natural Resources
Conservation Service’s (NRCS) Websoils Survey.
However, on cross-examination, it was revealed that Oram: (1) is not
a state-certified nutrient management specialist; (2) did not conduct any soil or
groundwater sampling on the property; (3) did not review Applicant’s testimony or
exhibits from the initial hearing regarding the proposed use; (4) did not reference
or utilize the NRCS website’s seasonal high water table data when forming his
opinion regarding soil suitability; (5) did not consult with any NRCS representative
in interpreting the information on the NRCS website; (6) did not consult with any
representative of the State Conservation Commission in forming his opinion
regarding soil suitability for manure application; (7) has only performed this type
of soil analysis on one other occasion for a hog operation; and, (8) does not have a
working knowledge of the NRCS’ Code 590, which specifically concerns nutrient
management and manure application.
5
The ZHB found credible the testimony presented by Applicant and
Rush. Further, it found not credible certain aspects of the testimony presented by
Peters and Oram, although it did not identify which parts of that testimony it
discredited.
Ultimately, the ZHB concluded Applicant’s proposed swine nursery
qualified as an Intensive Agricultural and Agricultural Support use under the
zoning ordinance. The ZHB further concluded Applicant met the zoning
ordinance’s objective criteria for such a use under Section 402(1)(E) of the zoning
ordinance and the general requirements for a special exception under Section
1101(3) of the zoning ordinance. Thus, the ZHB determined, Applicant’s special
exception application was entitled to approval under those sections of the zoning
ordinance, subject to conditions. Without explanation, the ZHB also concluded the
preemption language in Section 519(b) of the NMA applied to Applicant’s
proposed use.
Based on these determinations, the ZHB granted Applicant’s special
exception request pursuant to Sections 402(1)(E) and 1101(3) of the zoning
ordinance subject to two conditions.3 Objectors again appealed to the trial court.
3
Specifically, the ZHB attached the following conditions: (1) Applicant shall secure the
deceased animal disposal composting area so as to make the same inaccessible to scavengers;
and, (2) Applicant shall produce an annual report in January 2015 and every year thereafter that
certifies to the Township’s Zoning Officer that Applicant’s animal equivalent units do not meet
or exceed the current level of 2.0 which would render Applicant ineligible for the current special
exception and would place Applicant’s use into the category of a Concentrated Animal
Operation or a Concentrated Animal Feeding Operation.
6
Without taking additional evidence, the trial court issued an order
denying Objectors’ appeal. The trial court determined the ZHB did not commit an
error of law or abuse of discretion in reaching its decision. Objectors appealed to
this Court, and the trial court directed them to file a concise statement of the errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b), which they did.
The trial court subsequently issued a brief opinion pursuant to Pa.
R.A.P. 1925(a) in which it explained its standard of review was limited to
determining whether the ZHB committed an abuse of discretion or made an error
of law. The trial court further explained that determinations of witness credibility
are within the exclusive province of the ZHB. Here, the ZHB made very specific
findings as to the credibility of the witnesses. Further, the ZHB’s determinations
were supported by substantial evidence. Thus, the trial court explained, it could
find no error of law or abuse of discretion.
The trial court further explained the parties spent considerable time
arguing over whether relevant portions of the zoning ordinance were preempted by
state statutes, including: the NMA; the Clean Streams Law4; the statute commonly
known as the Right to Farm Act5; and, the Domestic Animal Law.6 The trial court
explained it appeared the conditions the ZHB imposed on the approval of
Applicant’s special exception request were preempted by state law. However, it
4
Act of June 22, 1937, P.L.1987, as amended, 35 P.S. §§691.1–691.1001.
5
Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§951–957.
6
3 Pa. C.S. §§2301-2390.
7
was unnecessary to make such a determination because Applicant did not
challenge the conditions. This matter is now before us for disposition.
II. Issues
On appeal,7 Objectors raise three issues. First, they contend the ZHB
erred in failing to determine whether there was a conflict between the NMA and
the zoning ordinance that required preemption of the zoning ordinance.
Additionally, they maintain the ZHB erred in determining Applicant presented
substantial evidence to satisfy the objective criteria for a special exception.
Further, Objectors argue the ZHB capriciously disregarded competent evidence of
the unsuitability of the soil for application of manure and the condition of Tower
Road when it determined Applicant satisfied the special exception criteria in
Section 402(1)(E) of the zoning ordinance.
III. Discussion
A. Preemption
1. Contentions
Objectors first argue the ZHB concluded the NMA’s preemption
language applied to Applicant’s proposed swine nursery use. They contend
Section 519(b) of the NMA provides for preemption only where there is a conflict
between the state law and the zoning ordinance. Objectors assert the ZHB erred in
failing to identify any conflict between state law and the zoning ordinance. They
argue there is no conflict between the regulations or guidance promulgated under
7
Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).
8
the NMA and the provisions of the zoning ordinance pertaining to whether
subsurface soils are unsuitable for the application of thousands of gallons of
manure. Objectors contend they submitted substantial evidence of the unsuitability
of the soils on the property, which the ZHB capriciously disregarded.
Applicant responds that the ZHB properly determined that the NMA
preempts relevant provisions of the zoning ordinance. Applicant argues the NMA
regulates the application of manure to soil to protect ground and surface water and
preempts local ordinances that conflict with the NMA and its regulations. He
asserts various regulations promulgated pursuant to the NMA set forth standards
for manure application to soil and the minimum standards for design, construction,
location, operation, and maintenance of manure storage facilities. Applicant
contends the portion of the zoning ordinance requiring that facility designs for
manure management must not cause “adverse impacts” on adjacent properties is
more stringent than the NMA, in conflict with the NMA and its regulations, and is
therefore preempted by the NMA.
2. Analysis
As to the issue of preemption, in Berner v. Montour Township, 120
A.3d 433 (Pa. Cmwlth. 2015) (Berner I), we explained:
[T]he mere fact that the General Assembly has enacted
legislation in a field does not lead to the presumption that the
state has precluded all local enactments in that field; rather, the
General Assembly must clearly evidence its intent to preempt.
Such clarity is mandated because of the severity of the
consequences of a determination of preemption: If the General
Assembly has preempted a field, the state has retained all
9
regulatory and legislative power for itself and no local
legislation in that area is permitted. …
There are three generally recognized types of
preemption: (1) express or explicit preemption, where the
statute includes a preemption clause, the language of which
specifically bars local authorities from acting on a particular
subject matter; (2) conflict preemption, where the local
enactment irreconcilably conflicts with or stands as an obstacle
to the execution of the full purposes of the statute; and (3) field
preemption, where analysis of the entire statute reveals the
General Assembly’s implicit intent to occupy the field
completely and to permit no local enactments. Both field and
conflict preemption require an analysis of whether preemption
is implied in or implicit from the text of the whole statute,
which may or may not include an express preemption clause.
Id. at 441 (quoting Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams
Twp., Cambria Cnty., 32 A.3d 587, 593-94 (Pa. 2011)).
The NMA contains a provision titled, “Preemption of local
ordinances,” which states, in its entirety:
(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 chapter and the regulations or
guidelines promulgated under it.
10
(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 (emphasis added).
Contrary to the parties’ assertions, the ZHB did not clearly decide this
matter on the basis of preemption. Specifically, the ZHB made one Finding of
Fact in which it quoted the language of Section 519(b) of the NMA. See F.F. No.
37. It also made one Conclusion of Law in which it stated: “The Section 519(b)
preemption language of [the NMA] is applicable to [Applicant’s] proposed swine
nursery use.” Concl. of Law No. 10. However, the ZHB offered no explanation or
analysis in support of this vague conclusion.
To that end, our review of the ZHB’s decision reveals that the ZHB
did not base its decision to grant Applicant’s special exception application on the
ground that the NMA or its regulations preempt the zoning ordinance. Indeed, the
ZHB did not identify any conflict between the NMA or its regulations and the
relevant provisions of the zoning ordinance. Rather, the ZHB based its decision to
11
grant Applicant’s special exception request on the ground that Applicant satisfied
the general and specific criteria set forth in the zoning ordinance to obtain the
requested special exception. See F.F. Nos. 25-28, Concl. of Law No. 9
(“Applicant has met the objective criteria of the [z]oning [o]rdinance for an
Intensive Agricultural and Agricultural Support use under Section 402(1XE) of the
[z]oning [o]rdinance and the general requirements for a special exception under
Section 1101(3) of the [z]oning [o]rdinance and is therefore, entitled to approval,
subject to the imposition of reasonable conditions.”) (emphasis added); ZHB Op. at
3 (“Based on the foregoing Findings of Fact and Conclusions of Law, the [ZHB]
… grants Applicant’s special exception request per Sections 402(1)(E) and 1101(3)
of the [z]oning [o]rdinance subject to the following conditions ….”) (emphasis
added). Further, the trial court did not base its affirmance of the ZHB’s decision
on preemption grounds. As a result, we examine the ZHB’s determinations that
Applicant satisfied the special exception criteria in the zoning ordinance.
B. Special Exception
1. Contentions
Objectors assert the ZHB erred in approving Applicant’s special
exception application where Applicant did not present substantial evidence to
satisfy the objective criteria in the zoning ordinance. They contend the ZHB’s
conclusory findings do not set forth the relevant special exception criteria, and the
ZHB did not identify the record evidence that shows Applicant met its burden of
production and persuasion.
Applicant responds that the ZHB determined there were seven
specific criteria for a special exception as required by Section 402(1)(E) of the
12
zoning ordinance. Applicant contends he and Rush, a certified nutrient
management specialist, demonstrated through credible testimony and evidence that
the proposed hog nursery and manure storage facility met the zoning ordinance’s
specific requirements.
Applicant maintains that the portion of Section 402(1)(E) of the
zoning ordinance requiring that facility designs for manure management must not
cause “adverse impacts” on adjacent properties is a general condition that must be
proven by the objectors to the special exception. See Williams Holding Grp., LLC
v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202 (Pa. Cmwlth. 2014).
He further argues Objectors did not prove the hog nursery and manure storage
facility would adversely affect public health, safety, and welfare in a way not
normally expected from an intensive agricultural use allowed as of right by special
exception. Applicant asserts Objectors did not present any evidence concerning
how the proposed use compared to other intensive agricultural uses. Further, the
ZHB found Objectors’ witness testimony about soil suitability and road conditions
lacked credibility. Applicant contends the evidence presented by Objectors did not
meet their heavy burden required to overcome the substantial evidence showing
Applicant’s proposed use met the specific criteria under the zoning ordinance for
an intensive agricultural use by special exception.
2. Analysis
A special exception is neither special nor an exception, but rather a
use expressly contemplated that evidences a legislative decision that the particular
type of use is consistent with the zoning plan and presumptively consistent with the
13
health, safety and welfare of the community. Greth Dev. Grp., Inc. v. Zoning
Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007).
An applicant for a special exception has both the duty of presenting
evidence and the burden of persuading the ZHB that his proposed use satisfies the
objective requirements of the zoning ordinance for the grant of a special exception.
Manor HealthCare Corp. v. L. Moreland Twp. Zoning Hearing Bd., 590 A.2d 65
(Pa. Cmwlth. 1991). Once the applicant meets his burden of proof and persuasion,
a presumption arises that it is consistent with the health, safety and general welfare
of the community. Id. The burden then normally shifts to the objectors of the
application to present evidence and persuade the ZHB that the proposed use will
have a generally detrimental effect on health, safety and welfare. Id. The evidence
presented by objectors must show, to a high degree of probability, that the use will
generate adverse impacts not normally generated by this type of use and that these
impacts will pose a substantial threat to the health and safety of the community.
Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002).
In Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth.
1980), this Court outlined the rules regarding the “initial evidence presentation
duty (duty) and persuasion burden (burden) in special exception cases” as follows:
Specific requirements, e. g., categorical definition of the special
exception as a use type or other matter, and objective standards
governing such matter as a special exception and generally:
The applicant has both the duty and the burden.
General detrimental effect, e. g., to the health, safety and
welfare of the neighborhood:
14
Objectors have both the duty and the burden; the ordinance
terms can place the burden on the applicant but cannot shift the
duty.
General policy concern, e. g., as to harmony with the spirit,
intent or purpose of the ordinance:
Objectors have both the duty and the burden; the ordinance
terms cannot place the burden on the applicant or shift the duty
to the applicant.
Id. at 912-13 (emphasis added).
Section 401(3) of the zoning ordinance states:
Uses Permitted by Special Exception – A use listed in §402 is
permitted in any district under which it is denoted by the letter
‘S’, provided the [ZHB] authorizes the issuance of a zoning
permit by the Zoning Officer, subject to the specific
requirements contained in the table of use regulations and in
§1101(3), as well as all other applicable requirements of this
chapter and such further restrictions that [the ZHB] may
establish.
Id. In turn, Section 402 of the zoning ordinance provides, in pertinent part:
1. Agricultural Uses
****
E. Intensive Agriculture and Agricultural Support …
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
15
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. Intensive agriculture and agriculture
support uses shall be subject to the following:
(1) Where such uses adjoin a residential district or
highway commercial district the intensive
agriculture and agriculture support activity,
including manure management facilities, shall be
set back 400 feet from the property line.
(2) Disposal of deceased animals and birds shall
be within 24 hours of death in accordance with
State and Federal regulations. While awaiting
removal of deceased animals and birds, the facility
operator or farmer shall secure the location of the
deceased from unauthorized access or scavengers
and take precautions to minimize odor or other
noxious effects.
(3) Off-street parking and loading shall comply
with Part 8 of this chapter.
(4) Signs shall be permitted only as specified in
Part 7 of this chapter.
(5) A paved apron or gravel scraping area or other
effective means of cleaning of mud and manure to
prevent tracking off-site and onto public roadways
shall be provided.
(6) Manure management facilities shall be
designed, constructed and operated in compliance
with Bureau of Water Quality Management
16
Publication No. 43, ‘Manure Management for
Environmental Protection,’ and any revisions,
supplements, and replacement thereof, published
by [DEP]. Plans for manure management facilities
and any changes thereto during construction shall
be reviewed by the Columbia County Conservation
District, with proof of their review prior to
issuance of a zoning permit.
(7) Manure management facilities shall be secured
from unauthorized access.
Section 402(1)(E) of the zoning ordinance.
In addition, Section 1101(3) of the zoning ordinance states, in
pertinent part:
Special Exception Applications. … [S]pecial exceptions may be
granted or denied by the [ZHB] pursuant to express standards
and criteria. The [ZHB] shall hear and decide requests for such
special exceptions in accordance with such standards and
criteria. In granting a special exception, the [ZHB] may attach
such reasonable conditions and safeguards, in addition to those
expressed in the chapter, as it may deem necessary to
implement the purposes of this chapter. The [ZHB] shall
pursue the following procedure.
****
B. No application for a permit shall be granted by the [ZHB] for
any special exception use until [the ZHB] has first received and
considered an advisory report thereon from the Planning
Commission with respect to the location of such use in relation
to the needs and growth pattern of the area and, where
appropriate, with reference to the adequacy of the site area and
arrangement of buildings, driveways, parking areas, off-street
truck loading spaces and other pertinent features of the site
plan. The Planning Commission shall have 30 days from the
date of its receipt of the application within which to file its
report thereon. In the event that said Commission shall fail to
17
file its report within such 30 days, such application shall be
deemed to have been approved by said Planning Commission.
…
The [ZHB] may thereafter direct the Zoning Officer to issue
such permit if, in its judgment, the use meets all specific
provisions and criteria contained in this chapter and the
following general provisions.
(1) In accordance with the Comprehensive Plan
and consistent with the spirit, purposes and intent
of this chapter;
(2) In the best interest of the community, the
public welfare and a substantial improvement to
the property in the immediate vicinity;
(3) Suitable for the property in question and
designed, constructed, operated and maintained so
as to be in harmony with and appropriate in
appearance to the existing or intended character of
the general vicinity;
(4) In conformance with all applicable
requirements of this chapter;
(5) Suitable in terms of effects on highway traffic
and safety, with adequate access arrangements to
protect streets from undue congestion and hazard;
and
(6) In accordance with sound standards of
subdivision practice, where applicable. …
Id.
Here, the ZHB made three conclusory findings that: (1) Applicant’s
proposed use qualifies as an Intensive Agriculture use as defined in Section
402(1)(E); (2) Applicant’s proposal satisfies the specific special exception criteria
18
set forth in Section 402(1)(E)(1)-(7); and, (3) Applicant’s proposal satisfies the
general special exception criteria set forth in Section 1101(3). F.F. Nos. 24, 26,
28; see also Concl. of Law. No. 9. Despite these three conclusory findings, the
ZHB did not identify the relevant special exception criteria, and it did not make
any determinations that explain how Applicant satisfied each of these criteria.
For example, Objectors assert Applicant did not submit “facility
designs and legally binding assurances with performance guarantees which
demonstrated 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 … [including] …
groundwater and surface water contamination …” as required by Section 402(1)(E)
of the zoning ordinance. Objectors argue such legally binding assurances with
performance guarantees are not in the record. They further contend Applicant did
not present substantive evidence whether natural hazards, such as unstable soils,
exist in close proximity to the proposed swine nursery use, as required by Section
604 of the zoning ordinance. The ZHB made no specific findings on these issues.
In addition, despite its citation to Bray, the ZHB made no mention of
the fact that Objectors (and not Applicant) bore the “initial evidence presentation
duty” or “persuasion burden” as to at least some of these criteria. Bray, 410 A.2d
at 912-13.
In the absence of necessary findings on these factual issues, we must
remand to the trial court with directions to remand to the ZHB for findings
19
regarding Sections 402(1)(E) and 1101(3) of the zoning ordinance. Thus, we
vacate and remand. See, e.g., Domeisen v. Zoning Hearing Bd. of O’Hara Twp.,
814 A.2d 851 (Pa. Cmwlth. 2003) (remand necessary where zoning board did not
make necessary findings regarding variance); Musgrave v. City of Pittsburgh Dep’t
of Planning (Pa. Cmwlth., No. 118 C.D. 2011, filed September 12, 2011), 2011
WL 10819543 (unreported) (remand necessary where, despite passing reference to
zoning code’s special exception criteria, zoning board did not make findings
regarding how applicant satisfied special exception criteria).8
ROBERT SIMPSON, Judge
8
Based on our disposition of this matter, we need not address Objectors’ argument that
the ZHB capriciously disregarded competent evidence of the unsuitability of the soil for
application of manure and the condition of Tower Road when it determined Applicant satisfied
the special exception criteria in Section 402(1)(E) of the zoning ordinance.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Russell Berner and Donna Berner, :
Kendall Dobbins, Nathan Roberts, :
Roberts Realty, LLC, Robert D. :
Clark, and Robert W. Webber, :
Appellants :
:
v. : No. 881 C.D. 2015
:
Montour Township Zoning :
Hearing Board and Scott Sponenberg :
ORDER
AND NOW, this 8th day February, 2016, the order of the Court of
Common Pleas of the 26th Judicial District (Columbia County Branch) is
VACATED and this matter is REMANDED to the Court of Common Pleas for
further remand to the Montour Township Zoning Hearing Board for proceedings
consistent with the foregoing opinion.
Jurisdiction is relinquished.
ROBERT SIMPSON, Judge