R. Berner v. Montour Twp. ZHB and S. Sponenberg

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Berner and Donna Berner, :

Kendall Dobbins, Nathan Roberts, :

Roberts Realty, LLC, Robert D. :

Clark, and Robert W. Webber, :

Appellants :

:

v. : No. 881 C.D. 2015

: Submitted: December 11, 2015

Montour Township Zoning :

Hearing Board and Scott Sponenberg :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: February 8, 2016

In this zoning appeal, Objectors1 ask whether the Court of Common

Pleas of the 26th Judicial District (Columbia County Branch) (trial court) erred in

affirming a decision of the Montour Township Zoning Hearing Board (Board) that

granted Scott Sponenberg’s (Applicant) special exception application for a

proposed swine nursery, subject to conditions. Objectors argue the ZHB erred in:

(1) failing to decide whether there was a conflict between the Nutrient

Management Act (NMA), 3 Pa. C.S. §§501-522, and the Montour Township

Zoning Ordinance (zoning ordinance) that required preemption of the zoning

ordinance; (2) determining Applicant presented substantial evidence to satisfy the

1

Objectors are Russell and Donna Berner, Kendall Dobbins, Nathan Roberts, Roberts

Realty, LLC and Robert D. Clark and Robert W. Webber.

zoning ordinance’s objective criteria for a special exception; and, (3) capriciously

disregarding competent evidence of the unsuitability of the soil for application of

manure and the condition of a local road that abuts a portion of Applicant’s

property. Upon review, we vacate and remand.

I. Background

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 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,

detailed 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 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

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) (Simpson, J.).

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 the 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 farm house, a cattle barn, two equipment sheds and several out

buildings. 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.

3

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 concluded

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

regarding odor, manure application, potential contamination of groundwater,

disease, traffic and diminution in property value.

Peters, a professional engineer, testified regarding the increased truck

traffic on Tower Road from the proposed use and its impact on the condition of

4

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

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 concerns nutrient

management and manure application.

5

The ZHB found credible the testimony presented by Applicant and

Rush. 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.

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.

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.

6

Without taking additional evidence, the trial court issued an order

denying Objectors’ appeal. The trial court determined the ZHB did not commit an

error of law or abuse of discretion in reaching its decision. Objectors appealed to

this Court, and the trial court directed them to file a concise statement of the errors

complained of on appeal pursuant to Pa. R.A.P. 1925(b), which they did.

The trial court subsequently issued a brief opinion pursuant to Pa.

R.A.P. 1925(a) in which it explained its standard of review was limited to

determining whether the ZHB committed an abuse of discretion or made an error

of law. The trial court further explained that determinations of witness credibility

are within the exclusive province of the ZHB. Here, the ZHB made very specific

findings as to the credibility of the witnesses. Further, the ZHB’s determinations

were supported by substantial evidence. Thus, the trial court explained, it could

find no error of law or abuse of discretion.

The trial court further explained the parties spent considerable time

arguing over whether relevant portions of the zoning ordinance were preempted by

state statutes, including: the NMA; the Clean Streams Law4; the statute commonly

known as the Right to Farm Act5; and, the Domestic Animal Law.6 The trial court

explained it appeared the conditions the ZHB imposed on the approval of

Applicant’s special exception request were preempted by state law. However, it

4

Act of June 22, 1937, P.L.1987, as amended, 35 P.S. §§691.1–691.1001.

5

Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§951–957.

6

3 Pa. C.S. §§2301-2390.

7

was unnecessary to make such a determination because Applicant did not

challenge the conditions. This matter is now before us for disposition.

II. Issues

On appeal,7 Objectors raise three issues. First, they contend the ZHB

erred in failing to determine whether there was a conflict between the NMA and

the zoning ordinance that required preemption of the zoning ordinance.

Additionally, they maintain the ZHB erred in determining Applicant presented

substantial evidence to satisfy the objective criteria for a special exception.

Further, Objectors argue the ZHB capriciously disregarded competent evidence of

the unsuitability of the soil for application of manure and the condition of Tower

Road when it determined Applicant satisfied the special exception criteria in

Section 402(1)(E) of the zoning ordinance.

III. Discussion

A. Preemption

1. Contentions

Objectors first argue the ZHB concluded the NMA’s preemption

language applied to Applicant’s proposed swine nursery use. They contend

Section 519(b) of the NMA provides for preemption only where there is a conflict

between the state law and the zoning ordinance. Objectors assert the ZHB erred in

failing to identify any conflict between state law and the zoning ordinance. They

argue there is no conflict between the regulations or guidance promulgated under

7

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).

8

the NMA and the provisions of the zoning ordinance pertaining to whether

subsurface soils are unsuitable for the application of thousands of gallons of

manure. Objectors contend they submitted substantial evidence of the unsuitability

of the soils on the property, which the ZHB capriciously disregarded.

Applicant responds that the ZHB properly determined that the NMA

preempts relevant provisions of the zoning ordinance. Applicant argues the NMA

regulates the application of manure to soil to protect ground and surface water and

preempts local ordinances that conflict with the NMA and its regulations. He

asserts various regulations promulgated pursuant to the NMA set forth standards

for manure application to soil and the minimum standards for design, construction,

location, operation, and maintenance of manure storage facilities. Applicant

contends the portion of the zoning ordinance requiring that facility designs for

manure management must not cause “adverse impacts” on adjacent properties is

more stringent than the NMA, in conflict with the NMA and its regulations, and is

therefore preempted by the NMA.

2. Analysis

As to the issue of preemption, in Berner v. Montour Township, 120

A.3d 433 (Pa. Cmwlth. 2015) (Berner I), 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 preempted a field, the state has retained all

9

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 titled, “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 chapter and the regulations or

guidelines promulgated under it.

10

(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).

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. See F.F. No.

37. 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.” Concl. of Law No. 10. 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

11

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. See F.F. Nos. 25-28, Concl. of Law No. 9

(“Applicant has met the objective criteria of the [z]oning [o]rdinance for an

Intensive Agricultural and Agricultural Support use under Section 402(1XE) of the

[z]oning [o]rdinance and the general requirements for a special exception under

Section 1101(3) of the [z]oning [o]rdinance and is therefore, entitled to approval,

subject to the imposition of reasonable conditions.”) (emphasis added); ZHB Op. at

3 (“Based on the foregoing Findings of Fact and Conclusions of Law, the [ZHB]

… grants Applicant’s special exception request per Sections 402(1)(E) and 1101(3)

of the [z]oning [o]rdinance subject to the following conditions ….”) (emphasis

added). 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.

B. Special Exception

1. Contentions

Objectors assert the ZHB erred in approving Applicant’s special

exception application where Applicant did not present substantial evidence to

satisfy the objective criteria in the zoning ordinance. They contend the ZHB’s

conclusory findings do not set forth the relevant special exception criteria, and the

ZHB did not identify the record evidence that shows Applicant met its burden of

production and persuasion.

Applicant responds that the ZHB determined there were seven

specific criteria for a special exception as required by Section 402(1)(E) of the

12

zoning ordinance. Applicant contends he and Rush, a certified nutrient

management specialist, demonstrated through credible testimony and evidence that

the proposed hog nursery and manure storage facility met the zoning ordinance’s

specific requirements.

Applicant maintains that the portion of Section 402(1)(E) of the

zoning ordinance requiring that facility designs for manure management must not

cause “adverse impacts” on adjacent properties is a general condition that must be

proven by the objectors to the special exception. See Williams Holding Grp., LLC

v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202 (Pa. Cmwlth. 2014).

He further argues Objectors did not prove the hog nursery and manure storage

facility would adversely affect public health, safety, and welfare in a way not

normally expected from an intensive agricultural use allowed as of right by special

exception. Applicant asserts Objectors did not present any evidence concerning

how the proposed use compared to other intensive agricultural uses. Further, the

ZHB found Objectors’ witness testimony about soil suitability and road conditions

lacked credibility. Applicant contends the evidence presented by Objectors did not

meet their heavy burden required to overcome the substantial evidence showing

Applicant’s proposed use met the specific criteria under the zoning ordinance for

an intensive agricultural use by special exception.

2. Analysis

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

13

health, safety and welfare of the community. 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 of 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., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002).

In Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth.

1980), 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:

14

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).

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

15

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. 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

16

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.

Section 402(1)(E) of the zoning ordinance.

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

17

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.

(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.

Here, the ZHB made three conclusory findings that: (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

18

set forth in Section 402(1)(E)(1)-(7); and, (3) Applicant’s proposal satisfies the

general special exception criteria set forth in Section 1101(3). F.F. Nos. 24, 26,

28; see also Concl. of Law. No. 9. Despite these three conclusory findings, the

ZHB did not identify the relevant special exception criteria, and it did not make

any determinations that explain how Applicant satisfied each of these criteria.

For example, Objectors assert 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. Objectors argue such legally binding assurances with

performance guarantees are not in the record. They further contend Applicant did

not present substantive evidence whether natural hazards, such as unstable soils,

exist 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, 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. Bray, 410 A.2d

at 912-13.

In the absence of necessary findings on these factual issues, we must

remand to the trial court with directions to remand to the ZHB for findings

19

regarding Sections 402(1)(E) and 1101(3) of the zoning ordinance. Thus, we

vacate and remand. See, e.g., Domeisen v. Zoning Hearing Bd. of O’Hara Twp.,

814 A.2d 851 (Pa. Cmwlth. 2003) (remand necessary where zoning board did not

make necessary findings regarding variance); Musgrave v. City of Pittsburgh Dep’t

of Planning (Pa. Cmwlth., No. 118 C.D. 2011, filed September 12, 2011), 2011

WL 10819543 (unreported) (remand necessary where, despite passing reference to

zoning code’s special exception criteria, zoning board did not make findings

regarding how applicant satisfied special exception criteria).8

ROBERT SIMPSON, Judge

8

Based on our disposition of this matter, we need not 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 Road when it determined Applicant satisfied

the special exception criteria in Section 402(1)(E) of the zoning ordinance.

20

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Berner and Donna Berner, :

Kendall Dobbins, Nathan Roberts, :

Roberts Realty, LLC, Robert D. :

Clark, and Robert W. Webber, :

Appellants :

:

v. : No. 881 C.D. 2015

:

Montour Township Zoning :

Hearing Board and Scott Sponenberg :

ORDER

AND NOW, this 8th day February, 2016, the order of the Court of

Common Pleas of the 26th Judicial District (Columbia County Branch) is

VACATED and this matter is REMANDED to the Court of Common Pleas for

further remand to the Montour Township Zoning Hearing Board for proceedings

consistent with the foregoing opinion.

Jurisdiction is relinquished.

ROBERT SIMPSON, Judge