Agenda - Planning Commission - 04/05/2018

Home

March 10, 2018 I Volume 12 I Issue 5 Zoning Bulletin tion requirement. A provision of the NMA provides that a municipal zoning ordinance may not prohibit or regulate the storage or handling of animal manure or nutrients "if the municipal ordinance or regulation is in conflict with [the NMA] and the regulations or guidelines promulgated under it." Here, the ZHB concluded that § 402(1)(E) was in conflict with an NMA regulation that provided minimum standards for the "design, construction, location, operation, maintenance and removal from service of manure storage facilities." (See 25 Pa. Code § 85.351.) Russell and Donna Berner, Kendall Dobbins, Robert D. Clark, and Robert W. Webber (the "Objectors") appealed the ZHB's grant of the special excep- tion to Applicant. The Objectors expressed concerns about the Applicant's proposed use regarding odor, manure application, potential contamination of groundwater, disease, traffic, and diminution in property value. The Objector's argued that the ZHB erred in granting the special exception based on its determinations that: (1) § 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; and (2) the NMA's regulations preempted § 402(1)(E)'s special exception requirement so as to excuse Applicant's non-compliance with that provision. The trial court upheld the ZHB's decision. 'The Objectors again appealed. DECISION: Judgment of Court of Common Pleas reversed. The Commonwealth Court of Pennsylvania agreed with the Objectors' arguments. The court held that the special exception requirement of § 402(1)(E) of the Township's zoning ordinance —requiring applicants submit facility designs and legally binding assurances with performance guarantees that demonstrate that all facilities necessary for manure management will be conducted without adverse impact on adjacent properties —was "specific and objective," and therefore had to be satisfied by the Applicant (and was not so satisfied here). The court also held that the NMA regulation cited by the ZHB did not apply here, and therefore did not preempt or excuse Applicant's compliance with § 402(1)(E)'s special exception requirements. In so holding, the court explained that "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 health, safety and welfare of the community." With regard to burden of proof, the court explained that an ap- plicant for a special exception "has both the duty of presenting evidence and the burden of persuading the ZHB that his [or her] proposed use satisfies the objective requirements of the zoning ordinance for the grant of a special exception." Once that burden is satisfied, it shifts to any objectors to the ap- plication, explained the court. Here, the court found that Applicant "bore the burden of showing" he made the required submissions under § 402(1)(E). Contrary to the ZHB's determina- tions, the court determined that § 402(1)(E)'s requirement that an applicant "submit facility designs and legally binding assurances with performance guarantees that demonstrate that all facilities necessary for, among other 6 ©2018 Thomson Reuters