PENNSYLVANIA APPELLATE COURT INTERPRETS
STATE NUTRIENT MANAGEMENT ACT
by
Elizabeth A. Magovern

Burkholder v. Zoning Hearing Board of Richmond Township
902 A.2d 1006 (Pa. Cmwlth. 2006)

Facts and History:

Plaintiffs (landowners) filed suit against Richmond Township (Township) after it denied their request for a special exception to expand their hog raising operations.

In order to expand their operation, the landowners proposed to construct new facilities. More specifically, the landowners sought to construct a 68-foot by 202-foot building that would house approximately 1,750 pigs during the "finishing stage" (finishing building). Landowners proposed to construct the finishing building directly above a nine-foot deep manure storage pit.

In addition, the landowners sought to construct a 70-foot by 42-foot addition to the end of an existing farrowing and nursery building. The addition would enable the landowners to consolidate their existing, separate nursery and farrowing operations into one building. Temporary manure storage would occur in shallow pits directly below the addition.

Because of the triangular-shape of the property, the landowners proposed to locate both structures less than 1,500 feet from adjoining residential properties and/or zoning district boundaries. The Richmond Township Zoning Ordinance of 1998 requires that intensive agricultural activities shall not be located within 1,500 square feet of another zoning district or existing residence located within the Agriculture or any other zoning district.

The Trial Court ruled that the Pennsylvania Nutrient Management Act (NMA), former 3 Pa. Stat. Ann. §§1701-1718 (current version at 3 Pa. Cons. Stat. §§501-522), preempted the Township's setback requirements as to the finishing building, but not the addition of the landowners' proposed buildings. The Trial Court found that the proposed finishing building was a "manure storage facility" as defined by regulations promulgated under the NMA, but the proposed addition was not.

The NMA contains a preemption provision that prohibits local regulation in the construction, location or operation of a manure storage facility as that term is defined in the NMA's implementing regulations. Under the NMA's regulations, the most stringent setback requirement for manure storage facilities is 300 feet.

The Commonwealth Court affirmed the Trial Court's determination that the NMA preempted the local setback requirement as applied to the proposed finishing building and reversed the Trial Court's determination that the NMA did not preempt the local setback requirement as applied to the proposed addition. The Commonwealth Court agreed that the NMA barred municipal ordinances regulating "manure storage facilities" that were more stringent than NMA regulations, and that the proposed finishing building was a manure storage facility.

The proposed addition would function as a "manure storage facility" because it would collect the manure through slatted floors. Thus, the Township's setback ordinance was preempted as to the proposed addition as well. As a result, the landowners could build the finishing building and the addition without regard to the 1,500-foot setback requirement.

Conclusion:

This case strengthens the NMA's preemption of the municipal regulations of local setback requirements. Furthermore, this is the first case where the Commonwealth Court sites ACRE indicating that any difference of language between ACRE (Act 38 of 2005) and the NMA is intended only to conform to the style of the Pennsylvania Consolidated Statutes, and is not intended to change or affect the legislative intent, judicial construction or administration and implementation of the NMA. Christopher J. Hartman, Esq., of our firm, represented the landowners in this case.