Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin March 10, 2018 I Volume 12 I Issue 5 Special Exception/Burden of Proof/ Preemption —Zoning board finds applicant need not prove "subjective and vague" special exception requirement Objectors argue requirement is "specific and objective" and therefore had to be satisfied by applicant Citation: Berner v. Montour Township Zoning Hearing Board, 2018 WL 280464 (Pa. Commw. Ct. 2018) PENNSYLVANIA (01/04/18)—This case addressed the issue of whether zoning ordinance requirements were "specific and objective" such that a special exception applicant had the burden of showing the requirements were met, or were "subjective and vague" such that the applicant did not bear the burden of proving compliance with the requirement. The case also addressed the issue of whether a state statute—Pennsylvania's Nutrient Management Act —preempted zoning ordinance requirements related to special exceptions for intensive agriculture uses so as to excuse a landowner's compliance with the local zoning ordinance. The Background/Facts: Scott Sponenberg (the "Applicant") owned prop- erty in an agricultural zoning district in Montour Township (the "Township"). In April 2013, the Applicant filed an application for a special exception with the Township's Zoning Hearing Board ("ZHB") for a proposed intensive agri- cultural use. Specifically, the Applicant sought to construct a swine nursery barn with an under building for manure storage. Under the Township's zoning ordinance, "intensive agriculture," including "hog raising," was permitted by special exception, subject to specific requirements. One such requirement, under § 402(1)(E) of the Township zon- ing ordinance, was that such intensive agriculture uses "shall submit facility designs and legally binding assurances with performance guarantees which demonstrate that all facilities necessary for manure and wastewater manage- ment . . . will be conducted without adverse impact upon adjacent properties." "Adverse impacts" were defined to include: "groundwater and surface water contamination, ground water supply diminution, noise, dust, odor, heavy truck traffic, and migration of chemicals offsite." Ultimately, the ZHB granted Applicant's special exception request. The grant of the special exception was based, in part, on the ZHB's determination that § 402(1)(E)'s special exception requirement was "subjective and vague" and therefore not a specific requirement that Applicant was required to satisfy to obtain special exception approval. The ZHB additionally concluded that Pennsylvania's Nutrient Management Act ("NMA"), 3 Pa. C.S. §§ 501-522, preempted § 402(1)(E)'s special excep- © 2018 Thomson Reuters 5