          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Berner and Donna Berner,            :
Kendall Dobbins, Robert D. Clark            :
and Robert W. Webber,                       :
                        Appellants          :   No. 448 C.D. 2017
                                            :   Argued: December 4, 2017
             v.                             :
                                            :
Montour Township Zoning Hearing             :
Board and Scott Sponenberg                  :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION
BY JUDGE SIMPSON                            FILED: January 4, 2018

             This zoning case returns to us following our remand in Berner v.
Montour Township Zoning Hearing Board (Berner I) (Pa. Cmwlth., No. 881 C.D.
2015, filed February 8, 2016), 2016 WL 464225 (unreported). In Berner I, we
returned this matter to the Montour Township Zoning Hearing Board (ZHB) for
additional findings on Scott Sponenberg’s (Applicant) special exception application
for his proposed swine nursery barn and under building for manure storage. On
remand, the ZHB made additional findings and granted Applicant’s special
exception application. The Court of Common Pleas of the 26th Judicial District
(Columbia County Branch) (trial court) affirmed.


             In this appeal, Objectors1 argue the ZHB erred in granting Applicant’s
special exception request based on its determination that one of the special exception

      1
       Objectors are Russell and Donna Berner, Kendall Dobbins, Robert D. Clark, and Robert
W. Webber.
requirements for Applicant’s proposed use was subjective and vague, and, therefore,
not a specific requirement that Applicant was required to satisfy to obtain special
exception approval. They also contend the ZHB exceeded the scope of our remand
order in Berner I when it determined, in the alternative, that the Nutrient
Management Act (NMA), 3 Pa. C.S. §§501-522, preempted the disputed special
exception requirement. Upon review, we conclude the ZHB erred in determining
Applicant did not bear the burden of proof regarding compliance with the special
exception requirement at issue. Further, the ZHB erred in determining, in the
alternative, that the NMA’s regulations preempted this special exception
requirement so as to excuse Applicant’s non-compliance with that provision.
Therefore, we reverse.


                                 I. Background
             In Berner I, we set forth the following background to this matter.
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 (15,778½ square 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, 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

                                        2
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


              After the hearing, the ZHB issued a decision in which it granted
Applicant’s special exception application subject to two conditions. Objectors
appealed to 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 farmhouse, a cattle barn, two equipment sheds and several


       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).

                                               3
outbuildings. 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.


             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 determined
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



                                         4
regarding odor, manure application, potential contamination of groundwater,
disease, traffic and diminution in property value.


             Peters testified regarding increased truck traffic on Tower Drive from
the proposed use and its impact on the condition of 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



                                           5
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 relates to nutrient
management and manure application.


               The ZHB found the testimony presented by Applicant and Rush
credible. 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.




                                          6
               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.


               Without taking additional evidence, the trial court issued an order
denying Objectors’ appeal. Objectors appealed to this Court.


               Ultimately, this Court determined the ZHB did not clearly decide the
matter on the basis of preemption. Specifically, the ZHB made one finding in which
it quoted the language of Section 519(b) of the NMA. 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.” ZHB Op., Concl. of Law
No. 10. However, the ZHB offered no explanation or analysis in support of this
vague conclusion.


               To that end, this Court’s review of the ZHB’s decision revealed the
ZHB did not base its decision to grant Applicant’s special exception application on
the ground that the NMA or its regulations preempted the zoning ordinance. Indeed,
the ZHB did not identify any conflict between the NMA or its regulations and the
relevant zoning ordinance provisions. Rather, the ZHB based its decision to grant
Applicant’s special exception request on the ground that Applicant satisfied the

       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.

                                                 7
zoning ordinance’s specific and general criteria to obtain the requested special
exception. Further, the trial court did not base its affirmance of the ZHB’s decision
on preemption grounds. As a result, we examined the ZHB’s determinations that
Applicant satisfied the zoning ordinance’s special exception criteria.


             After setting forth the standards governing special exceptions, this
Court explained that 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 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


                                          8
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 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.

                             9
Section 402(1)(E) of the zoning ordinance (emphasis added).


            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 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.




                                         10
                    (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.


             In Berner I, this Court explained that the ZHB made three conclusory
findings. Specifically, the ZHB found: (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 in Section 402(1)(E)(1)-(7); and, (3)
Applicant’s proposal satisfies the general special exception criteria set forth in
Section 1101(3). Despite these three conclusory findings, the ZHB did not identify
the relevant special exception criteria, and it did not make any determinations that
explained how Applicant satisfied each of these criteria.




                                          11
               For example, Objectors asserted 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. Berner I, Slip Op. at 19, 2016 WL 464225 at *9. Objectors
argued such legally binding assurances with performance guarantees were not of
record.    They further asserted Applicant did not present substantive evidence
whether natural hazards, such as unstable soils, existed 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 v. Zoning Board of Adjustment,
410 A.2d 909, 912-13 (Pa. Cmwlth. 1980), 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.


               In the absence of necessary findings on these factual issues, we
remanded to the trial court with directions to remand to the ZHB for findings
regarding Sections 402(1)(E) and 1101(3) of the zoning ordinance.4




       4
          Further, based on our disposition, we deemed it unnecessary to 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 Drive when it determined Applicant satisfied
the special exception criteria in Section 402(1)(E) of the zoning ordinance.


                                               12
             On remand, the ZHB held a hearing limited only to oral argument.
Because this Court did not direct the ZHB to take additional evidence, the ZHB’s
Solicitor allowed counsel for Applicant and Objectors to file proposed findings of
fact and conclusions of law, which they did.


             After argument, the ZHB members read the parties’ proposed findings
and conclusions, and the ZHB voted 3-0 to adopt Applicant’s proposed supplemental
findings and conclusions, thereby granting Applicant’s special exception
application. In its supplemental findings and conclusions, the ZHB determined that
the language of Section 402(1)(E) of the zoning ordinance, which requires uses such
as hog raising to “submit facility designs and 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” was subjective and vague. As a result, the ZHB determined Applicant
did not bear the burden of proving it complied with this requirement; rather,
Objectors bore the burden of proving that Applicant’s proposed use would generate
adverse impacts not normally expected from this type of use. Alternatively, the ZHB
determined the NMA and its regulations preempted this zoning ordinance provision,
and, therefore, Applicant was excused from complying with this provision.
Objectors appealed to the trial court.


             Without taking additional evidence, the trial court upheld the ZHB’s
decision. This appeal by Objectors followed.


                                         II. Issues

                                            13
               On appeal,5 Objectors argue the ZHB erred in determining that the
requirement to submit “facility designs and legally binding assurances with
performance guarantees which demonstrate all facilities … will be conducted
without adverse impact upon adjacent properties” was “aimed at avoiding a general
detrimental impact, is subjective, and vague” and therefore was not a specific
criterion for Applicant to satisfy for special exception approval. Appellants’ Br. at
2. They further assert the ZHB exceeded the scope of this Court’s remand order in
Berner I when it adopted Applicant’s proposed findings and conclusions that the
requirements in Section 402(1)(E) of the zoning ordinance were preempted by
Section 519(6) of the NMA, 3 Pa. C.S. §519(6).




                                   III. Discussion
                    A. Section 402(1)(E) of the Zoning Ordinance
                                   1. Contentions
               Objectors first assert that in Berner I, this Court observed that the ZHB
made three conclusory findings regarding Applicant’s compliance with the
applicable special exception criteria. In Berner I, this Court determined that, despite
these three conclusory findings, the ZHB did not identify the relevant special
exception criteria, and it did not make any determinations that explained how
Applicant satisfied each of these criteria.

       5
         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).

                                               14
             To that end, as an example of a specific criterion that was not identified
by the ZHB, this Court pointed to Objectors’ argument regarding the required
submission of facility designs and legally binding assurances as set forth in Section
402(1)(E) of the zoning ordinance. Objectors asserted 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 would be
conducted without adverse impact upon adjacent properties because of surface and
groundwater contamination,” as required by Section 402(1)(E). Objectors maintain
such legally binding assurances with performance guarantees are not of record.


             On remand, Objectors argue, the trial court affirmed the ZHB’s
adoption of Applicant’s contention that “the portion of [z]oning [o]rdinance §
402(1)(E) requiring that facility designs for manure management not cause ‘adverse
impacts’ is aimed at avoiding a general detrimental impact, is subjective, and
vague.” Reproduced Record (R.R.) at 707a-08a. To the contrary, Objectors assert
the zoning ordinance provides specific examples of adverse impacts. Section
402(1)(E) states “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.” Id.


             Objectors further contend that whether a particular special exception
criterion is specific or general is a question of law under Bray. Objectors assert there
is no basis to defer to the ZHB’s interpretation of whether the requirement to submit



                                          15
facility designs and legally binding assurances with performance guarantees is a
specific or a general requirement. They further maintain that, from a common sense
standpoint, placing the burden on Objectors to submit facility designs and legally
binding performance guarantees is not practical or likely even possible.


                 Applicant6 responds that in its original findings the ZHB found:
“Section 402(1)(E) lists seven specific criteria that an Intensive Agriculture and
Agricultural Use must meet.” R.R. at 15a. Further, in its supplemental findings after
remand, the ZHB clarified that Section 402(1)(E)(1)-(7) listed “seven objective
criteria,” R.R. at 655a, and that “[t]he only objective criteria set forth in § 402(1)(E)
of the [z]oning [o]rdinance are the seven enumerated criteria listed in subparagraphs
(1)-(7).” R.R. at 661a. Applicant argues the ZHB made numerous findings showing
how his proposed swine nursery satisfied the seven specific criteria. R.R. at 655a-
57a.


                 Applicant asserts Pennsylvania courts hold that a ZHB’s interpretation
of its zoning ordinance is entitled to great weight as representing the construction of
a statute by the agency charged with its execution and application. In re Brickstone
Realty Corp., 789 A.2d 333 (Pa. Cmwlth. 2001). He argues the ZHB expressly found
that the portion of Section 402(1)(E) concerning the submission of facility designs
and legally binding assurances with performance guarantees that activities will be
conducted without “adverse impacts” upon adjacent properties did not define the
term “adverse impact” or explain what was an acceptable impact. R.R. at 657a.
Applicant contends the ZHB expressly found that “[t]he portion of [z]oning


       6
           The ZHB did not file a brief in this matter.


                                                  16
[o]rdinance § 402(1)(E) requiring that facility designs for manure management not
cause ‘adverse impacts’ is aimed at avoiding a general detrimental impact, [and] is
subjective, and vague.” R.R. at 662a.


            Applicant notes that Objectors dispute the ZHB’s interpretation and
argue that Section 402(1)(E) identifies specific criteria, pointing only to the non-
exclusive list of potential adverse impacts.     Applicant counters that Section
402(1)(E) does not even identify all of the types of impacts that are considered
adverse, much less provide a standard for determining when an impact becomes
“adverse” under the zoning ordinance. Applicant argues that in Williams Holding
Group, LLC v. Board of Supervisors of West Hanover Township, 101 A.3d 1202,
1212 (Pa. Cmwlth. 2014), this Court found that a similar provision requiring that a
use be “minimally invasive” was aimed at avoiding a generally detrimental impact,
which shifted the burden of proof to the objectors. Id. at 1216. Applicant maintains
that in Williams Holding Group this Court reasoned that by defining “minimally
invasive” vaguely, the ordinance “place[d] an unfair burden on developers who have
no way to know whether a proposal will be ‘minimally invasive’ in the eyes of the
adjudicator.” Id.


            Here, Applicant argues, the phrase “adverse impact” is just as vague
and subjective as the phrase “minimally invasive” that the Court in Williams found
was aimed at avoiding a generally detrimental impact that shifted the burden to the
objectors. According to Bray and Williams, Applicant asserts, because Section
402(1)(E) of the zoning ordinance is general, subjective, and vague, it was
Objectors’ responsibility to show the proposed use would have an “adverse impact”



                                        17
on adjoining properties.    Applicant contends Bray places the initial evidence
presentation duty of showing the use will have a general detrimental effect on the
objectors. Applicant further argues Bray does not permit the ordinance to shift the
initial evidence presentation duty from objectors where the ordinance provision is
aimed at avoiding a general detrimental effect. Applicant asserts in Berner I, this
Court pointed out that Objectors, and not Applicant, bore the initial evidence
presentation duty or persuasion burden as to some of the zoning ordinance provisions
at issue. Applicant contends the ZHB’s supplemental findings and conclusions
determined Objectors had the initial evidence presentation duty as to Section
402(1)(E), and they failed to meet that burden.


             Applicant further maintains Objectors incorrectly suggest that the
ZHB’s interpretation of Section 402(1)(E) requires them to submit facility designs
and legally binding performance guarantees. He argues Objectors’ assertion ignores
the fact that the requirement for facility designs and legally binding performance
guarantees are related to “adverse impacts” on adjoining properties. Applicant
asserts Objectors had the duty and burden of presenting evidence showing the
proposed use would cause “adverse impacts” on adjacent properties. Williams;
Bray.


             To meet this heavy burden, Applicant contends, the evidence presented
by Objectors had to show, to a high degree of probability, that the proposed use
would generate adverse impacts not normally generated by this type of use, and that
the impacts would pose a substantial threat to the health and safety of the community.
See Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002).



                                         18
Applicant contends the ZHB here specifically found: “Objectors did not present any
evidence indicating how the proposed use compared to other intensive agricultural
uses.” R.R. at 659a-60a. Further, the ZHB found: “Objectors did not present any
credible evidence that the hog nursery and manure storage facility would adversely
affect health, safety, and welfare of the public in a way not normally expected from
an intensive agricultural use allowed … by special exception.” R.R. at 660a.
Because no adverse impact was established, Applicant maintains, the ZHB was not
required to consider whether building plans or legally binding performance
guarantees were appropriate.


             In their reply brief, Objectors argue the parties do not dispute the
standards for analyzing a special exception application. See Bray. Thus, if the
language in Section 402(1)(E) establishes an objective standard, the burden is on
Applicant. If, on the other hand, the language is deemed subjective, the burden is
on Objectors. Objectors focus on the portion of that provision that requires “facility
designs and legally binding assurances with performance guarantees” while
Applicant focuses on the phrase “adverse impacts.” Objectors contend the trial court
affirmed the ZHB’s adoption of Applicant’s proposed finding and conclusion that
the portion of Section 402(1)(E) requiring that facility designs for manure
management not cause “adverse impacts” is aimed at avoiding a general detrimental
impact and is subjective and vague.


             Objectors note that Applicant relies on Williams Holding Group as
support for his argument that the provision at issue is aimed at avoiding a general
detrimental impact, is subjective and vague, and that the phrase “adverse impact” is



                                         19
undefined and the zoning ordinance does not explain what constitutes an acceptable
impact. Objectors assert Williams Holding Group is distinguishable. To that end,
they point out, unlike the vague ordinance language at issue there (that utilized the
phrase “minimally invasive” without additional guidance), here Section 402(1)(E)
provides specific examples of “adverse impacts,” including groundwater and surface
water contamination, groundwater supply diminution, noise, dust, odor, heavy truck
traffic, and migration of chemicals offsite. Objectors contend that the zoning
ordinance language at issue here is clear and provides sufficiently objective criteria
for a special exception applicant.


             Moreover, Objectors argue, if it is determined that Section 402(1)(E) is
subjective and vague, it does not make sense to require an objector to provide a
“facility design and legally binding assurances with performance guarantees ….” Id.
Objectors maintain the trial court erred when it affirmed the ZHB’s adoption of
Applicant’s position on whether the provision is subjective and vague. They contend
the provision is clear in its examples of adverse impacts and the failure to provide
the facility design and legally binding assurances with performance guarantees
dictates that the trial court’s order be reversed, and the ZHB be directed to deny the
special exception application.


                                     2. Analysis
             In Berner I, we 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.



                                         20
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 to 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.
              In Bray, 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:



                                          21
               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).


              In Bray, we further explained, “our cases have repeatedly made clear
that the applicant has both the persuasion burden and the initial evidence
presentation duty to show that the proposal complies with the ‘terms of the
ordinance’ which expressly govern such a grant.” Id. at 910. This rule means that
the applicant must bring the proposal within the specific requirements expressed in
the ordinance for the use (or area, bulk, parking or other approval) sought as a special
exception. Those specific requirements, standards or “conditions” can be classified
as follows:
              1. The kind of use (or area, bulk, parking or other
              approval)—i.e., the threshold definition of what is
              authorized as a special exception;

              2. Specific requirements or standards applicable to the
              special exception—e.g., special setbacks, size limitations;
              and

              3. Specific requirements applicable to such kind of use
              even when not a special exception—e.g., setback limits or
              size maximums or parking requirements applicable to that
              type of use whenever allowed, as a permitted use or
              otherwise.

Id. at 911.


                                           22
             At issue here is a portion of Section 402(1)(E) of the zoning ordinance,
which permits by special exception in the agricultural zoning district:

             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 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. …

             In Berner I, the ZHB made no specific findings regarding Section
402(1)(E); therefore, we remanded for findings regarding this provision.


             On remand, the ZHB made the following findings and conclusions
concerning Section 402(1)(E) of the zoning ordinance:




                                         23
27. Section 402(1)(E) requires submission of facility
designs and legally binding assurances with performance
guarantees that demonstrate that manure management
facilities will be conducted without adverse impact upon
adjacent properties.

28. The term ‘adverse impact’ used in §402(1)(E) is not
defined and there are no standards in the [z]oning
[o]rdinance concerning what constitutes an ‘adverse
impact’ and what is an acceptable impact.

                         ****

36. The [ZHB] was presented with a hydrogeologic review
and opinion by Advantage Engineers, which opinion was
prepared for the Township by its retained hydrogeologist,
as to the proposed hog nursery barn at [Applicant’s]
property which concluded that ‘[o]verall, there should be
minimal risk to the underlying bedrock aquifer and nearby
wells from a well-managed facility of this kind with
properly applied manure and suitable storm water
management, barring a catastrophic manure tank failure or
substantial and ongoing leak from the manure tank.’
(ZHB, Ex. 07, February 26, 2014.)

37. The hydrogeologic report was based on, inter alia, a
review of Applicant’s manure management plan,
construction plans, land development plan, a geologic
study, and professional planner comments. (Id.)

38. Objectors did not present any evidence indicating how
the proposed use compared to other intensive agricultural
uses.

39. Objectors’ witness concerning soil suitability for
manure application was Brian Oram, who repeatedly
admitted that he could not confirm whether the
information he relied upon was accurate and could not
reach a conclusion about whether or not the soil was
suitable for application of manure absent further
investigation.



                           24
40. Despite testifying about the suitability of the soil for
manure application, Mr. Oram is not [a] certified nutrient
management specialist. (ZHB Tr., Vol II 143-44, April 2,
2014.)

41. Although he relied almost exclusively on the [NRCS]
[W]ebsoils [S]urvey, Mr. Oram stated that it was only a
planning tool and ‘it should not make the final decisions.’
(ZHB Tr. Vol. II, 170, April 2, 2014.)

42. In reference to the NRCS websoils survey he relied
upon, Oram stated ‘[m]aybe the soil mapping is incorrect.
Maybe it’s right.’ (Id. at 168.)

43. In response to a question whether it was possible that
the hog nursery would not contaminate wells, Mr. Oram
conceded that it was possible ‘with proper management.’
(Id. at 180.)

44. Oram’s testimony lacked credibility and was
speculative at best.

                          ****

51. Objectors did not present any credible evidence that
the hog nursery and manure storage facility would
adversely affect health, safety, and welfare of the public in
a way not normally expected from an intensive
agricultural use allowed as of right by special exception.

                          ****

53. Applicant’s proposed use qualifies as Intensive
Agriculture and Agriculture Support under the [zoning
ordinance] because it involves raising hogs.

                          ****

55. Applicant met his burden of proof and persuasion that
the proposed hog nursery met the objective requirements
of the [zoning ordinance].

                          ****

                             25
57. Because Applicant met his burden of proof and
persuasion that the proposed hog nursery met the objective
requirements imposed by the [zoning ordinance], a
presumption arises that it is consistent with the health,
safety, and general welfare of the community. [Manor
HealthCare].

58. ‘An applicant who satisfies this [prima facie] burden
is entitled to approval, unless objectors in the proceeding
offer credible and sufficient evidence indicating that the
proposed use would have a detrimental impact on public
health, safety, and welfare.’ [Williams Holding Group,
101 A.3d at 1212].

59. Because [Applicant] showed that his proposed use met
the objective criteria set forth in the [zoning ordinance],
the burden shifted to [Objectors] to present credible
evidence and persuade the ZHB that the proposed use will
have a generally detrimental effect on health[,] safety[,]
and welfare.

                         ****

62. The portion of [zoning ordinance] §402(1)(E)
requiring that facility designs for manure management not
cause ‘adverse impacts’ is aimed at avoiding a general
detrimental impact, is subjective, and vague.

63. It was [Objectors’] burden to prove general detrimental
impacts and whether ‘adverse impacts’ would occur. See,
[Bray, 410 A.2d at 911]; see also [Williams Holding
Group, 101 A.3d at 1212].

64. To meet their heavy burden, the evidence presented by
[Objectors] must show, to a high degree of probability,
that the use will generate adverse impacts not normally
generated by the type of use and that the impacts will pose
a substantial threat to the health and safety of the
community. [Greaton Props].

65. Objectors have both the initial evidence presentation
duty (duty) and persuasion burden (burden) to prove

                            26
                general detrimental effects to the health, safety and
                welfare. Bray, 410 A.2d at 912-13.

                66. Objectors failed to demonstrate that the impact from
                the proposed hog nursery farm would be greater than
                would normally be expected from that type of use and that
                it would pose a substantial threat to the health, safety and
                welfare of the community.

ZHB Op., 5/24/16, F.F. Nos. 27-28, 36-44, 51; Concls. of Law Nos. 53, 55, 57-59,
62-66.


                The ZHB erred in determining that the language of Section 402(1)(E)
of the zoning ordinance at issue here is subjective and vague and, therefore, that
Objectors bore the initial evidence presentation duty and persuasion burden
regarding this provision. As set forth above, the language at issue states that
applications for uses such as Applicant’s proposed swine nursery “shall submit
facility designs and 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.” Section 402(1)(E) of
the zoning ordinance (emphasis added). Further, “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.” Id.


                Contrary to the ZHB’s determinations, the requirement that an
applicant submit facility designs and legally binding assurances with performance
guarantees that demonstrate that all facilities necessary for, among other things,


                                            27
manure and wastewater management and water supply will be conducted without
adverse impact on adjacent properties is not subjective or vague. Rather, the
requirement is a specific, objective one; therefore, Applicant bore the burden of
showing it made the required submissions. Bray. The ZHB did not find that
Applicant made these submissions here, and Applicant does not assert that it did so.


             Our determination that the disputed language in Section 402(1)(E)
constitutes a specific requirement rather than a subjective, general one, is bolstered
by the facts that: (1) the provision requires an applicant to make certain clearly
identified submissions; (2) the requirement for these submissions, by its own terms,
applies only to certain, identified intensive agriculture uses such as Applicant’s
proposed swine nursery rather than all intensive agriculture uses generally; and, (3)
the provision expressly enumerates the categories of adverse impacts that it is aimed
at avoiding. Thus, the zoning ordinance provision would apply to such items as, for
example: (a) performance criteria or warranty information from the supplier of a
manure tank, the supplier of any liners, the supplier of any pumps, or the suppliers
of other equipment; (b) proposed construction contracts containing binding
performance criteria or warranties of workmanship; (c) proposed contracts for
operations which include performance criteria or standards; and, (d) an approved
nutrient management plan, discussed more fully below. These types of items would
be in the primary control of an applicant.


             Further, Williams Holding Group, relied on by Applicant, does not
compel a different result. There, the conditional use criterion at issue stated: “Any
construction within any [environmental protection overlay district] shall be



                                         28
minimally invasive and use best management practices, as defined by [the
Pennsylvania Department of Environmental Protection and United States Army
Corps of Engineers].” Id. at 1207. This Court determined this provision, by its own
terms, related to construction rather than uses. In particular, we explained the
provision related “to the manner in which construction is performed, rather than …
a standard or requirement relative to [the] [d]eveloper’s initial burden regarding its
proposed use ….” Id. at 1215. This Court further determined the provision was
ambiguous because the phrase “minimally invasive” was not defined and contained
no definitive guidelines; as such, we interpreted the ambiguity in favor of the
developer. Id. We further held the provision was subjective as it was unclear what
standard a developer would need to meet to satisfy the provision’s terms; as a result,
under Bray, any objectors bore the burden to present evidence that the developer’s
proposed construction had an impact beyond that normally associated with the type
of conditional use at issue. Additionally, this Court determined, even if the criterion
was deemed an objective one and the developer bore an initial burden to show its
proposal satisfied the standard, the developer did satisfy its initial burden to prove
compliance, and no party offered evidence in opposition to the developer’s evidence.


             Here, unlike in Williams Holding Group, the language is not
ambiguous; rather, it requires an applicant to make certain identified submissions.
Additionally, unlike the criterion at issue in Williams Holding Group, Section
402(1)(E) of the zoning ordinance provides specific, illustrative examples of the type
of “adverse impacts” to which it refers. Also, unlike the developer in Williams
Holding Group, Applicant does not assert it submitted evidence to satisfy the
requirement at issue.



                                          29
                                   B. Preemption
                                   1. Contentions
             Objectors next argue that in Berner I, this Court held that the ZHB did
not clearly decide this matter on the basis of preemption. To that end, in its initial
written determination, the ZHB quoted Section 519(b) of the NMA, but it made no
specific findings as to whether the NMA preempted any zoning ordinance provision.
The ZHB further determined that the Section 519(b) preemption language applied
to Applicant’s proposed swine nursery; however, it failed to identify any zoning
ordinance provision that conflicted with state law. Objectors argue they may only
conclude that the ZHB assumed that Section 519(b) occupied the entire field and
totally preempted any local regulation of intensive farming, such as Applicant’s
proposed swine nursery use. Objectors maintain this was error.


             To that end, Objectors contend Section 519(b) of the NMA provides for
“conflict preemption.” They assert this Court interpreted the NMA’s conflict
preemption provision in a number of cases. See Burkholder v. Zoning Hearing Bd.
of Richmond Twp., 902 A.2d 1006 (Pa. Cmwlth. 2006); see also Commonwealth v.
Locust Twp., 49 A.3d 502 (Pa. Cmwlth. 2012); Walck v. L. Towamensing Twp.
Zoning Hearing Bd., 942 A.2d 200 (Pa. Cmwlth. 2008).


             Here, Objectors argue, in Finding of Fact No. 36, the ZHB claimed
Oram’s testimony specifically dealt with the land application of animal manure and
nutrients. They assert the ZHB disregarded Oram’s testimony, apparently believing
state law preempted any local regulation of land application of manure. To the
contrary, Objectors contend, Oram testified to the suitability of the soil to handle the


                                          30
application of over one million gallons of manure annually. R.R. at 307a-19a, 341a-
64a. Objectors assert state law does not regulate soil suitability. Therefore, there is
no conflict between the zoning ordinance and the NMA. As a result, they maintain,
the zoning ordinance is not preempted. Objectors argue that, the ZHB, in its
adoption of Applicant’s proposed findings and conclusions, included determinations
based on preemption. They contend that, in so doing, the ZHB exceeded the scope
of this Court’s remand order in Berner I.


              Applicant responds that the ZHB’s supplemental findings and
conclusions were consistent with its prior findings and conclusions, addressed the
issues identified in Berner I, and were within the scope of this Court’s remand order,
which returned the case to the ZHB for additional findings.


              Applicant argues that in Berner I, this Court acknowledged that the
ZHB referenced the preemption language in Section 519(b) of the NMA without
explanation and offered no explanation or analysis for its finding that the Section
519(b) preemption language applied to the proposed use. Thus, Applicant asserts,
this Court identified that the ZHB relied on preemption, but indicated the ZHB did
not clearly decide this matter on the basis of preemption. Because the ZHB initially
relied on the NMA in explaining its decision, Applicant contends, the ZHB did not
err in adopting findings and conclusions explaining why it referenced those matters
in its initial decision.


              Applicant further maintains Objectors’ challenge to the ZHB’s
determinations regarding the NMA is based on faulty assumptions that are



                                          31
contradicted by the ZHB’s supplemental findings and conclusions. Applicant argues
the ZHB’s supplemental findings and conclusions explained that various aspects of
Section 402(1)(E) were inconsistent with and more stringent than the NMA’s
regulations that govern construction of manure storage facilities. R.R. at 663a-64a.


               Applicant also contends Objectors did not challenge the ZHB’s finding
of a conflict between the zoning ordinance and the NMA. Instead, Objectors assert
the ZHB disregarded Oram’s testimony apparently believing state law preempted
any local regulation of land application of manure. Applicant argues Objectors’
contention is contradicted by the ZHB’s supplemental conclusion of law expressly
acknowledging the existence of conflict preemption under the NMA. Applicant
further asserts the inclusion of the NMA and preemption-related findings and
conclusions in the ZHB’s supplemental decision, if improper, is harmless error. He
contends no remand or additional action by the ZHB is necessary because the ZHB’s
decision can be affirmed even if the findings addressing the NMA and preemption
are ignored.


               In their reply brief, Objectors argue that in their initial appeal in Berner
I, they asserted the ZHB erred in failing to decide whether there was a conflict
between the NMA and the zoning ordinance. The ZHB, without explanation,
concluded the preemption language in Section 519(b) of the NMA applied to the
proposed swine barn. In Berner I, this Court stated its review of the ZHB’s decision
revealed the ZHB did not base its decision to grant Applicant’s special exception
application on the ground that the NMA or its regulations preempted the zoning
ordinance. Objectors maintain it was beyond the scope of the remand for the ZHB



                                            32
to include additional findings and conclusions purporting to support preemption as
a basis for Applicant’s failure to comply with Section 402(1)(E) of the zoning
ordinance.


                                    2. Analysis
             On the issue of preemption under the NMA, in Berner I, this Court
explained:

                    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. 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.’
             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 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. 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.

Berner I, slip op., at 11-12, 2016 WL 464225 at *5 (record citations omitted).




                                         33
             As set forth above, in Berner I, we remanded to the ZHB for findings
concerning Applicant’s compliance with the relevant special exception requirements
set forth in the zoning ordinance. We did not specifically remand for additional
determinations regarding preemption under the NMA; however, we did not preclude
the ZHB from making such determinations. Therefore, contrary to Objectors’
assertions, the ZHB did not exceed the scope of our remand order in Berner I by
including determinations regarding preemption as it related to the relevant special
exception requirements set forth in the zoning ordinance.


             On remand, the ZHB made several determinations that the NMA and
its regulations preempted the language set forth in Section 402(1)(E), addressed
above. It is apparent that the ZHB made these determinations as an alternative to its
determination that Objectors bore the initial presentation duty and the persuasion
burden regarding the language in Section 402(1)(E), discussed above, and Objectors
failed to satisfy their burden. Because the ZHB erred in determining that Objectors
bore the initial presentation duty and the persuasion burden regarding the language
in Section 402(1)(E), we consider whether the ZHB properly determined that the
NMA and its regulations preempted the language in Section 402(1)(E).


             With regard to the issue of preemption generally, in Berner v. Montour
Township, 120 A.3d 433 (Pa. Cmwlth. 2015), 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

                                         34
             preempted a field, the state has retained all 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 entitled, “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



                                          35
            chapter and the regulations or guidelines promulgated
            under it.

            (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).


            Construing this provision, this Court previously stated (with emphasis
added):

                   The [NMA’s] preemption language is as perplexing
            as it is verbose. Nonetheless, we take the following
            legislative intent from the General Assembly’s chosen
            words. First, in passing the NMA, the General Assembly
            unmistakably intended to occupy ‘the whole field’ of
            nutrient and odor management in the Commonwealth
            (subsection (a)). To that end, the NMA prohibits the
            adoption and enforcement of any local ordinance that
            conflicts with the provisions of the NMA or ‘regulations
            and guidelines promulgated under it’ (subsections (b) and
            (c)). But, a municipality is free to adopt and enforce
            ordinances that ‘are consistent with and no more stringent
            than’ the NMA, its regulations, and its guidelines
            (subsection (d)).


                                        36
Locust Twp., 49 A.3d at 506-07.


            Significantly, “[t]he preparation and implementation of nutrient
management plans [(NMPs)] is the centerpiece of the NMA.” Burkholder, 902 A.2d
at 1008 (citing Michael M. Meloy, AN OVERVIEW          OF   NUTRIENT MANAGEMENT
REQUIREMENTS IN PENNSYLVANIA, 10 Penn St. Envtl. L. Rev. 249 (2002)). To that
end, preparation and implementation of a properly reviewed and approved NMP is
mandatory for operators of Concentrated Animal Operations (CAOs). 3 Pa. C.S.
§506(b).


            Here, in determining the NMA and its regulations preempted the
relevant portion of Section 402(1)(E) of the zoning ordinance, the ZHB made the
following determinations (with emphasis added):

            29. The [NMA] regulates the application of manure to soil
            to protect ground and surface water and pre-empts local
            ordinances that conflict with the [NMA] and regulations
            promulgated pursuant to the [NMA].

            30. Various regulations promulgated pursuant to the NMA
            set forth standards for manure application to soil and the
            minimum standards for the design, construction, location,
            operation, and maintenance of manure storage facilities.
            See, 25 Pa. Code §§ 83.251, 83.272, 83.281, 83.282,
            83.292, 83.293, 83.294, 93.311, 83.312, 83.321, 83.342,
            83.351, 83.381.

            31. 25 Pa. Code §83.202, titled ‘Scope’ indicates that the
            regulations provide the criteria and requirements for ‘[t]he
            construction, location, design, installation and operation
            of animal manure storage facilities on NMP operations.’
            25 Pa. Code §83.202.

            32. The requirements for a manure storage facility are set
            forth in 25 Pa. Code §83.351, titled ‘minimum standards

                                        37
for the design, construction, location, operation,
maintenance and removal from service of manure storage
facilities.’ See, 25 Pa. Code §83.351.

33. The NMA regulations concerning the design,
construction, location and operation of manure storage
facilities does not require the submission of legally
binding assurances with performance guarantees.

34. The regulations promulgated pursuant to the NMA
comprehensively set forth the standards for the design,
construction, location, operation, and maintenance of
manure storage facilities.

35. The NMA, 3 P.S. [sic] §519, states in pertinent part
that ‘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 and operation of facilities used for
storage of animal manure or nutrients ….’ 3 Pa. C.S. §
519(b).

                          ****

68. The portion of Zoning Ordinance §402(1)(E) requiring
that facility designs for manure management not cause
‘adverse impacts’ on adjacent properties is more
restrictive than the requirements set forth in the NMA,
conflicts with the NMA, and is pre-empted by the NMA.

69. The Commonwealth Court has stated that ‘the NMA
prohibits the adoption and enforcement of any local
ordinance that conflicts with the provisions of the NMA or
regulations and guidelines promulgated under it.’ Berner
v. [Montour] Twp., 120 A.2d 433, 442 (Pa. Cmwlth. 2015)
citing [Locust Twp., 49 A.2d at 506-07].

70. 25 Pa. Code §83.351, titled ‘minimum standards for
the design, construction, location, operation, maintenance
and removal from service of manure storage facilities,’
does not require individuals or entities building manure
storage facilities to provide legally binding assurances or

                            38
            performance guarantees demonstrating that manure
            management facilities will be conducted without ‘adverse
            impact’ on adjacent properties.

            71. The requirement in [zoning ordinance] §402(1)(E) that
            applicants submit legally binding assurances with
            performance guarantees that all manure management
            facilities will be conducted without ‘adverse impacts’ is
            more restrictive than the minimum standards set forth in
            the regulations promulgated pursuant to the NMA and is
            therefore in conflict with the NMA and its regulations.

            72. Because there is a conflict between the regulations
            promulgated pursuant to the NMA and §402(1)(E), that
            section of the [zoning ordinance] that is more restrictive
            than the NMA is pre-empted.

F.F. Nos. 29-35; Concls. of Law Nos. 68-72.


            In their brief to this Court, Objectors do not directly challenge the
ZHB’s determination that a conflict exists between the NMA and its regulations and
Section 402(1)(E) of the zoning ordinance. Rather, they assert the ZHB disregarded
the opinion testimony of their expert witness, Oram, regarding the unsuitability of
soils on the property for the land application of manure, based on the ZHB’s belief
that the NMA and its regulations preempted any local regulation of land application
of manure. Contrary to this assertion, the ZHB did not reject Oram’s testimony on
that basis. Rather, the ZHB determined Oram was not credible based on various
flaws and speculation in his testimony. See F.F. Nos. 39-43.


            Nevertheless, the ZHB erred in determining that Section 402(1)(E) is
preempted by the NMA’s regulations here so as to excuse Applicant’s compliance
with that ordinance provision. More particularly, in support of its finding of
preemption, the ZHB determined a conflict existed between Section 402(1)(E) and

                                        39
one of the NMA’s regulations, 25 Pa. Code §83.351 (“Minimum standards for the
design, construction, location, operation, maintenance and removal from service of
manure storage facilities.”). However, a careful reading of that regulation reveals
that the standards set forth within it apply only to “new manure storage facilities and
the expansion of existing manure storage facilities, as part of a plan developed for
an NMP operation.” 25 Pa. Code §83.351(a).


             Here, Applicant presented the testimony of Todd Rush of TeamAg, a
state certified nutrient management specialist.      Rush testified that Applicant’s
proposed use is neither a CAO or a Concentrated Animal Feeding Operation
(CAFO). R.R. at 28a. Rush further explained:

                     So to answer your question specifically, if
             [Applicant’s] operation would become a CAO,
             [Applicant] is required to notify [the] County
             Conservation District, and to also hire a Certified Plan
             Writer to develop a[n] [NMP] that meets the State
             Conservation Requirement for a CAO. That plan is
             submitted to the Conservation District and reviewed and
             approved by the Board of Directors. [Applicant] must
             maintain that plan and update it every three years versus
             now his proposed operation. Now he is not a CAO or a
             CAFO. So he is only required to do what any operation in
             the state that generates and handles manure does, and that
             is to have, maintain and implement a Manure Management
             Plan which we have developed for him. So he, that’s a one
             and done. …

R.R. at 28a-29a.


             In addition, when asked if Applicant’s Manure Management Plan was
approved by the state, Rush responded:


                                          40
               The Manure Management Plan, it differs from a[n] [NMP]
               whereas they [sic] do not get reviewed or approved. They
               [sic] could be written by a Certified Plan Writer such as
               myself, which is the case, or it could be actually completed
               by the farmer. It is a workbook that is developed by the
               Department of Environmental Protection with guidelines
               and instructions on how to complete them. That does not
               get reviewed and approved in this case.

R.R. at 33a.


               Because Applicant’s proposed use does not require development of an
NMP, the regulation cited by the ZHB, which applies only to new manure storage
facilities that are constructed as part of a plan developed for an NMP operation, does
not apply here.7 See, e.g., Walck (in the absence of proof that applicants had an
approved plan under the NMA, local zoning ordinance was not inconsistent with
regulation under the NMA, and, therefore, was not preempted). Further, because the
cited regulation does not apply here, the ZHB erred in determining that the regulation
excused Applicant’s non-compliance with Section 402(1)(E) of the zoning
ordinance’s requirement that Applicant 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.

       7
          While the NMA permits preparation and implementation of an approved nutrient
management plan on a voluntary basis, see 3 Pa. C.S. §506(h), there is no indication here that
Applicant has an approved voluntary nutrient management plan. Under the NMA’s regulations, a
voluntary nutrient management plan must comply with the detailed requirements set forth in the
NMA and Sections 261 and 271 through 381 of the NMA’s regulations, 25 Pa. Code §§83.261,
83.271-83.381. See 25 Pa. Code §83.272 (“Content of plans.”); see also 25 Pa. Code §83.201
(defining “Plan”). Applicant does not assert it submitted this required information to the ZHB.
As a result, Applicant did not prove compliance with the NMA through submission of an approved
nutrient management plan.

                                              41
               In addition, our independent research reveals that Applicant’s proposed
manure storage facility and planned land application of manure is governed by a
different regulation, 25 Pa. Code §91.36 (“Pollution control and prevention at
agricultural operations”), which was not promulgated pursuant to the NMA. As
such, the ZHB erred in determining the NMA’s regulations preempted Section
402(1)(E) of the zoning ordinance so as to excuse Applicant’s compliance with that
provision.


               Consequently, because Section 402(1)(E) is not preempted by the NMA
or its regulations and because, as discussed in our analysis above, Applicant bore the
burden of proving he complied with Section 402(1)(E) and did not do so, the ZHB
erred in granting Applicant’s special exception application.


               Based on the foregoing, we reverse the trial court’s decision, which
affirmed the ZHB’s decision granting Applicant’s special exception application.8




                                             ROBERT SIMPSON, Judge




       8
         In light of our disposition of this matter, we need not address Objectors’ final argument,
that the ZHB capriciously disregarded competent evidence of the unsuitability of the soil for
application of manure and the condition of Tower Road.


                                                42
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Berner and Donna Berner,      :
Kendall Dobbins, Robert D. Clark      :
and Robert W. Webber,                 :
                        Appellants    :   No. 448 C.D. 2017
                                      :
           v.                         :
                                      :
Montour Township Zoning Hearing       :
Board and Scott Sponenberg            :


                                  ORDER

           AND NOW, this 4th day of January, 2018, the order of the Court of
Common Pleas of the 26th Judicial District (Columbia County Branch) is
REVERSED.




                                     ROBERT SIMPSON, Judge
