Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin March 10, 2018 I Volume 12 I Issue 5 things, manure and wastewater management and water supply will be conducted without adverse impact on adjacent properties" was "not subjective or vague." Rather, the court found that the requirement was "a specific, objec- tive one" that Applicant bore the burden of meeting. The court explained that it's determination that the language in § 402(1)(E) constituted a specific requirement rather than a subjective, general one, was "bolstered by the facts that": (1) the provision require[d] an applicant to make certain clearly identified submis- sions; (2) the requirement for [those] submissions, by its own terms, applie[d] only to certain, identified intensive agriculture uses such as Applicant's proposed swine nursery rather than all intensive agriculture uses generally; and, (3) the pro- vision expressly enumerate[d] the categories of adverse impacts that it is aimed at avoiding. Since Applicant failed to prove he made the submissions identified in and required by § 402(1)(E), the court concluded that the ZHB erred in granting Applicant's special exception application in part on that basis. Moreover, in holding that the NMA regulation cited by the ZHB did not ap- ply here, and therefore did not preempt or excuse Applicant's compliance with § 402(1)(E)'s special exception requirements, the court noted that the NMA regulations identified by the ZHB as being in conflict with § 402(1)(E) applied only to "new manure storage facilities and the expansion of existing manure storage facilities, as part of a plan developed for a nutrient management plan [("NMP")] operation." (See 25 Pa. Cod § 83.351(a).) Here, Applicant's proposed use did not require the development of an NMP. Thus, the NMA regulation cited by the ZHB as preempting § 402(1)(E) did not, in fact, apply here, concluded the court. Because the cited regulation did not apply here, the court further concluded that the ZHB erred in determining that the regulation excused Applicant's non-compliance with § 402(1)(E). Thus, the court concluded that because Township zoning ordinance § 402(1)(E) was not preempted by the NMA or its regulations, and because Applicant bore the burden of proving he complied with § 402(1)(E) and did not do so, the ZHB erred in granting Applicant's special exception regulations. See also: Bray v. Zoning Bd. of Adjustment, 48 Pa. Commw. 523, 410 A.2d 909 (1980). Preemption —City ordinance prohibits the loading of crude oil onto tankers in city harbor Oil pipeline operator contends ordinance is preempted by numerous federal and state laws Citation: Portland Pipe Line Corporation v. City of South Portland, 2017 WL 6757556 (D. Me. 2017) MAINE (12/29/17)—This case addressed the issue of whether a city zon- © 2018 Thomson Reuters 7