The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Balady Farms, LLC, :
Appellant :
:
v. :
:
Paradise Township Zoning Hearing :
Board :
:
v. :
: No. 171 C.D. 2016
Paradise Township : Argued: September 13, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge (P.)
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COVEY FILED: October 4, 2016
Balady Farms, LLC (Balady Farms) appeals from the York County
Common Pleas Court’s (trial court) January 11, 2016 order affirming Paradise
Township (Township) Zoning Hearing Board’s (Board) interpretation of the
Township’s Zoning Ordinance (Ordinance) to prohibit Balady Farms from operating
a commercial poultry processing facility. The sole issue before the Court is whether
the Board erred in its interpretation of the Ordinance.
The facts of this case are not in dispute. Balady Farms owns
approximately 23 acres1 of real property located at 380 Moulstown Road in
Abbottstown, Pennsylvania (Property), in the Township’s Rural Conservation (RC)
District. The Property contains ten outbuildings, including an office/residence, a
1
There is a discrepancy in the record as to whether Balady Farms has 23 or 28 acres.
Notwithstanding, the total acreage was not a reason for the Board’s interpretation.
garage, two storage buildings, four livestock barns and two, two-story poultry barns,
as well as fenced grazing areas.
Balady Farms, by and through its owner/manager Hafedh Ali Abbes
(Abbes) and two part-time employees, raises cattle, goats, and organic, free-range
chickens on the Property. In its poultry barns, Balady Farms raises chicks (delivered
about every two weeks) for approximately five to six weeks, at which time they are
transported off-site for processing and public sale/consumption. At any one time,
there are approximately 28,000 chickens (7,000 chickens on each poultry barn floor)
on the Property.
Due to the rising costs of off-site chicken processing, Balady Farms
proposed to convert and use the interior of one of the existing storage buildings
(approximately 3,200 square feet) to process the chickens raised on the Property. The
proposed facility would be fitted with state-of-the-art processing equipment housed
entirely within the building. Chicken processing would take place approximately two
times per week between 9:00 a.m. and 3:00 p.m. and would meet United States
Department of Agriculture (USDA) standards.2 Balady Farms would hire up to six
full-time employees due to its increased operation. Processing by-products and waste
would be stored in refrigerated containers, and then regularly removed and
transported off-site for recycling by Valley Proteins, Inc.
By September 9, 2014 letter, Balady Farms’ professional engineer Eric
Johnston, PE (Johnston) sought Township Zoning Officer Wayne Smith’s (Smith)
interpretation as to whether the Ordinance permitted the proposed conversion and
use. See Reproduced Record (R.R.) at 6a-16a. On October 13, 2014, Smith
2
Although approximately 40,000 chickens could be slaughtered, cleaned and cut within four
to six hours, Balady Farms estimated that it will process approximately 40,000 chickens per year
and, thus, it is a small-scale operation. See Reproduced Record (R.R.) at 26a. By comparison of
“[t]he number of chickens processed by Perdue or Tyson[,] the 40,000 number would not look so
large.” Balady Farms Br. at 9.
2
concluded: “It would be my opinion that the current zoning does not address and
permit a commercial use such as a chicken processing operation.” R.R. at 5a. On
October 13, 2014, Balady Farms filed an application with the Township seeking the
Board’s Ordinance interpretation (Application) relative to whether it could add “a
chicken processing facility for chickens raised and bred on the farm.” R.R. at 1a; see
also R.R. at 2a-18a. The Township’s Planning Commission (Commission) reviewed
the Application and submitted comments to the Board. The Board held a hearing on
January 21, 2015, at which the Board considered the Commission’s comments and
testimony provided by Johnston, Smith, Abbes and several local residents who were
both for and against the proposed use at the Property. See R.R. at 18a-57a. On
February 13, 2015, the Board declared that the Ordinance “does not include [Balady
Farms’] proposed use as a commercial chicken processing facility.”3 R.R. at 78a.
Balady Farms filed an appeal from the Board’s decision to the trial court.
After reviewing the Board’s record and the parties’ briefs and hearing
argument, on January 11, 2016, the trial court denied Balady Farms’ appeal and
upheld the Board’s decision. Balady Farms appealed to this Court.4
Initially, Section 502A of the Ordinance permits “[a]griculture” uses by
right in the Township’s RC District. R.R at 144a; see also R.R. at 14a. Section 202
of the Ordinance defines “[a]griculture” as
[a]n enterprise that is actively engaged in the
commercial production and preparation for market or
3
Board Chairman Seibert and Board Vice-Chairman Burgard voted in favor of the
Ordinance’s interpretation to prohibit the proposed use. Board Secretary Eisenhart voted against
such an interpretation. See R.R. at 95a-96a.
4
The Township intervened.
“Where, as here, the trial court takes no additional evidence, our scope of review is limited
to determining whether the [Board] committed an abuse of discretion or an error of law.” Kohl v.
New Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961, 967 n.6 (Pa. Cmwlth. 2015). “Whether a
proposed use falls within a given category of permitted uses in a zoning ordinance is a question of
law.” Galzerano v. Zoning Hearing Bd. of Tullytown Borough, 92 A.3d 891, 894 (Pa. Cmwlth.
2014).
3
use of agricultural, agronomic, horticultural, silivicultural
and aquacultural crops and commodities and/or livestock
and livestock products. The term includes an enterprise
that implements changes in production practices and
procedures or types of crops, livestock, livestock products
or commodities produced consistent with practices and
procedures that are normally engaged by farmers or are
consistent with technological development within the
agricultural industry. . . .
R.R. at 116a (emphasis added). The Ordinance’s definition of “livestock”
specifically “includes poultry.” R.R. at 123a (emphasis added). The parties agree
that Balady Farms’ current operation meets all of the Ordinance’s requirements.
Therefore, the only question before us is whether the Ordinance’s definition of
“agriculture” permits Balady Farms to process chickens raised on the Property.
Balady Farms argues that the Board erred by concluding that the
Ordinance prohibits the proposed chicken processing facility at the Property.
Specifically, Balady Farms claims that the Board and the trial court erred by
classifying the proposed operation as a commercial chicken processing facility when,
in fact, it would only process chickens raised on the Property. Balady Farms
contends that the proposed processing facility meets the Ordinance’s definition of
“agriculture” and, thus, is a use permitted by right at the Property.
At the Board hearing, Johnston testified to the details of Balady Farms’
operation and how the proposed processing operation would satisfy the Ordinance’s
requirements. Smith agreed that Section 202 of the Ordinance defines “agriculture”
to include commercial production and preparation of poultry for market or use, see
R.R. at 28a-29a, but nevertheless concluded:
I cannot find anywhere in [the Ordinance’s] definitions or
in [Section] 1304 under agriculture to match a commercial
operation as such. I am not questioning how [Balady Farms
operates.] I am looking at the pure fact that I find no
reference in there for commercial operations in a chicken
processing plant in our zoning.
4
R.R. at 27a.
Commission Chairman Bob Nevins (Nevins) testified that the
Commission reviewed the Application at its December 22, 2014 meeting and
concluded that “[t]here is no mention in [Section 1304A of the Ordinance] of
slaughter house,” the proposed use “is not consistent with the [Township’s] definition
of agriculture,” and the processing of chickens “and selling the butcher[ed] meat and
meat products on the [P]roperty or off[-]site constitutes a commercial operation and is
not an allowed use.” R.R. at 29a. Nevins added: “It wasn’t unanimous by any
means, but it was what the Board felt and we have passed this on to you.” R.R. at
29a. Nevins clarified that he was the Commission’s lone dissenter, and admitted:
I know I am going against a lot of people here, but as
defined in our Ordinance the processing of . . . poultry to
market constitutes a lot of things eggs, feathers, the meat
products. It’s my belief that our [O]rdinance basically
allows this.
. . . . We are interpreting agriculture and the [O]rdinance, in
my mind, does seem to . . . allow [this] to exist in this
[T]ownship.
R.R. at 30a.
The Board also made a finding that
Smith wrote to [Balady Farms] on May 1, 2013[5] stating
that he believed the current use of the Property, i.e., raising
poultry, is compliant with the requirements of the
Ordinance. [] Smith went on to say that ‘a slaughter house
is not a farm operation unless [the owners] are only
butchering the animals that are raised there.’
5
Smith’s correspondence was issued several months before Balady Farms’ October 16,
2013 purchase of the Property. See R.R. at 17a; see also R.R. at 1a. While the record is unclear
that Smith’s opinion was in reference to the Property, it does show that it was sent to “Stacey
Houck.” R.R. at 17a. The record does not reveal why Smith rendered the opinion or whether
Stacey Houck is related to Balady Farms. Notwithstanding, the Board specifically found that Smith
issued the opinion to “Applicant” which, in the Board’s decision, is Balady Farms. R.R. at 68a.
5
R.R. at 71a; see also R.R. at 17a.
In reaching its decision, the Board reasoned:
It is important to note that the aforementioned definition of
agriculture is substantially similar to the definition of
‘agricultural operation,’ as that term is defined in the
[Pennsylvania Municipalities Planning Code (]MPC[)6], 53
P.S. § 10107(a). It is also important to note that while the
definition of agriculture within the Ordinance permits the
breeding, raising, or keeping of animals in compliance with
the terms of Section 1304 [of the Ordinance], it does not
specifically permit, nor deny, the processing operation as
proposed by [Balady Farms].
Black’s Law Dictionary defines ‘agriculture’ as follows:
‘‘[a]griculture’ is broader in meaning than ‘farming;’ and
while it includes the preparation of soil, the planting of
seeds, the raising and harvesting of crops, and all their
incidents, it also includes gardening, horticulture,
viticulture, dairying, poultry, bee raising, and ranching.’
Black[’s] Law Dictionary 16c (10th ed. 2014). Similarly,
Merriam-Webster’s Dictionary defines ‘agriculture’ as ‘the
science, art, or practice of cultivating the soil, producing
crops, and raising livestock and in varying degrees the
preparation and marketing of the resulting products.’
Agriculture Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/agriculture
(last visited February 9, 2015). Although these definitions
are not binding on the Board, they do offer some persuasive
guidance to support the Board’s interpretation of
agriculture.
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Section 107 of the
MPC defines “agricultural operation” as
an enterprise that is actively engaged in the commercial production
and preparation for market of . . . livestock and livestock products . . .
. The term includes an enterprise that implements changes in
production practices and procedures or types of . . . livestock,
livestock products . . . produced consistent with practices and
procedures that are normally engaged by farmers or are consistent
with technological development within the agricultural industry.
53 P.S. § 10107.
6
The Board must look to the plain language of the definition
of agriculture in the Ordinance, as well as the purpose of the
Ordinance in general, which is to preserve the quality of
agricultural lands, ‘they being the Township’s most
important natural resource.’ Ordinance § 102(A). The
Board is cognizant of the fact that the agricultural industry
is undergoing technological development, whereby farmers
are seeking to maximize productivity in an otherwise down-
economy. The plain language of the Ordinance, however,
emphasizes that agriculture is the production and
preparation of livestock and livestock products which are
consistent with the practices and procedures that are
normally engaged in by farmers. Id. (emphasis added).
Accordingly, the Board must decide first whether the
commercial processing of chickens, i.e, slaughtering,
cutting, and cleaning, constitutes the production and
preparation for market of livestock and livestock products,
and second, that even if the processing was production and
preparation, whether such activities are those which are
consistent with the procedures that are normally engaged in
by farmers in [the] Township.
Even assuming [Balady Farms’] proposed slaughter,
cutting, and cleaning of chickens is agriculture, it would fall
under the definition of ‘intensive agriculture,’ a use that is
not permitted by right or Special Exception in the [RC]
District. In fact, ‘intensive agriculture’ is only permitted in
the Agricultural Zoning District by Special Exception.
From the above, it is clear that the Board of Supervisors, the
legislative body that drafted the Ordinance, intended the
purpose of the [RC] District to protect, among other things,
groundwater and surface water, woodlands, and open space.
To that end, a processing operation does not fit into the
definition of ‘agriculture’ set forth in the Ordinance.
Based on the foregoing, the Board is of the opinion that the
Ordinance’s definition of agriculture does not include the
commercial processing of poultry. In coming to this
interpretation of the definition of ‘agriculture,’ the Board
must rely on the history and heritage of agriculture within
[the] Township. In the Board’s opinion, ‘processing’
livestock and livestock products is not ‘preparation and
production for market’ of livestock and livestock products.
To the contrary, the preparation and production of livestock
and livestock products deals more with getting the livestock
7
and livestock products ready to be transferred to a
processing facility.
An important example came from the comments of Mr.
Craumer, a [] Township farmer.[7] Mr. Craumer raises
cattle and ships them to a processing facility to be processed
for consumption by the end consumer. Accordingly, the
‘preparation and production’ is the raising, breeding, and
keeping of the cattle, then sending them off to be processed
for consumption. To allow [Balady Farms] to process the
chickens as [it] proposes would open up the flood gates,
whereby any farmer raising any livestock would now be
entitled to process that livestock for consumption.
Regardless of the state and federal requirements for such an
operation, such operation is beyond the definition of
‘agriculture’ as set forth in the Ordinance.
Of particular importance, the Board cannot identify, nor
was any evidence[] presented to show, one farm or farmer
in [the] Township, or the surrounding townships . . . that
engage in processing. Processing is a commercial
endeavor, and as such, is not an activity normally engaged
in by farmers in the area. Although ‘agriculture’ does
include the commercial production and preparation for
market of livestock and livestock products, the Board is of
the opinion that such production and preparation does not
include processing, as discussed above. The Board takes
into consideration all of the comments made by property
owners surrounding the Property, as well as the comments
of those in [the] Township who are themselves farmers.
Based on those comments, the plain language of the
Ordinance, and the supporting definitions set forth above,
the Board believes that the proposed use as a commercial
chicken processing facility is not included within the term
‘agriculture’ as that term is defined in the Ordinance.
For these reasons, the Board determines that the
Ordinance’s definition of ‘agriculture’ does not include the
commercial processing of chickens.
R.R. at 75a-78a.
7
Notably, Mr. Craumer is also on the Township’s Board of Supervisors. See R.R. at 42a-
43a.
8
Based upon the Board’s record, the parties’ briefs and argument, the trial
court held:
In evaluating the plain language used in the [O]rdinance, we
do not find that the [Board] committed a manifest abuse of
discretion or error of law in finding that while raising
chickens certainly falls within the definition of agriculture,
a large[-]scale processing enterprise takes the business of
Balady Farms out of the definition of agriculture and
ultimately makes the business a commercial endeavor. We
do not find that it is a misapplication of law or against the
weight of the evidence for the [Board] to find that a
slaughtering and processing enterprise that may process an
estimated 40,000 chickens per year is not a business in
which most farmers engage, and that based on all the
evidence presented, it falls outside the definition of
agriculture.
R.R. at 108a.
The primary objective of statutory interpretation is to
determine the intent of the enacting legislation. Section
1921 of the Statutory Construction Act of 1972 (Act), 1
Pa.C.S. § 1921. In pursuing that end, we are mindful that a
statute’s plain language generally provides the best
indication of legislative intent and, thus, statutory
construction begins with examination of the text itself.
Malt Beverages Distrib[s.] Assoc[’n] v. Liquor Control
B[d.], 918 A.2d 171, 176 (Pa. Cmwlth. 2007) (en banc),
aff’d . . . 974 A.2d 1144 ([Pa.] 2009). In reading the plain
language of a statute, ‘[w]ords and phrases shall be
construed according to rules of grammar and according
to their common and approved usage.’ Section 1903(a)
of the Act, 1 Pa.C.S. § 1903(a).
Kohl v. New Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961, 968 (Pa. Cmwlth.
2015) (emphasis added). Moreover, “[e]very statute shall be construed, if possible, to
give effect to all its provisions.” 1 Pa.C.S. § 1921(a). This Court has declared that
“[t]he rules of statutory construction apply to ordinances as well as statutes.” Kohl,
108 A.3d at 968 (quoting In re Holtz, 8 A.3d 374, 378 (Pa. Cmwlth. 2010)).
9
Here, the parties agree that Section 202 of the Ordinance does not
expressly prohibit Balady Farms’ proposed chicken processing facility. See Board
Br. at 14 (“[T]he Ordinance does not specifically . . . deny[] the processing
operation.”); see also Smith testimony, R.R. at 27a. Rather, Section 202 of the
Ordinance defines “[a]griculture,” in relevant part, as [a]n enterprise that is actively
engaged in the commercial production and preparation for market or use of . . .
[poultry] and [poultry] products.” R.R. at 116a (emphasis added). However, the
Ordinance does not specifically define “commercial,” “production” or “preparation.”
Key to interpreting the Ordinance’s meaning is determining what the Township
intended by those words/phrases.
Section 201 of the Ordinance states, in pertinent part: “Words, phrases,
and terms not herein defined shall be used in their ordinary context, unless otherwise
specified herein.” R.R. at 115a. Under Pennsylvania law, when defining ordinance
terms, “we may look at statutes, regulations, or dictionaries for assistance.” Hartman
v. Zoning Hearing Bd. of Cumru Twp., 133 A.3d 806, 810 (Pa. Cmwlth. 2016).
Merriam-Webster’s Collegiate Dictionary (11th ed. 2004)8 defines
“commercial,” in relevant part, as follows:
1 a (1) : occupied with or engaged in commerce or work
intended for commerce . . . (2) : of or relating to commerce
. . . (3) : characteristic of commerce . . . (4) suitable,
adequate, or prepared for commerce . . . 2 a : viewed with
regard to profit . . . b : designed for a large market . . . .
Id. at 249. “Commerce” is defined in Black’s Law Dictionary (9th ed. 2009) as “[t]he
exchange of goods and services, esp. on a large scale involving transportation
between cities, states, and nations.” Id. at 304. “Production” is defined, in pertinent
part, as “the making of goods available for use[.]” Merriam-Webster’s at 991.
8
Black’s Law Dictionary does not specifically define “commercial,” “production” or
“preparation.”
10
“Preparation” is defined, in part, as “the action or process of making something ready
for use or service or of getting ready for some occasion, test, or duty . . . a preparatory
act or measure[.]” Id. at 980. Based upon the above words’ “ordinary context”,
Balady Farms’ proposed processing of its chickens on the Property falls within the
Township’s definition of “agriculture.”9 R.R. at 115a, 116a.
The Board ruled that in determining whether Balady Farms’ proposed
use was permitted the use also had to be “consistent with the procedures that are
normally engaged by farmers in [the] Township.” R.R. at 77a. We also disagree
with the Board’s imposition of this requirement. Section 202 of the Ordinance states
that “[t]he term [‘agriculture’] includes an enterprise that implements changes in
production practices and procedures or types of . . . livestock [or] livestock
products . . . produced consistent with practices and procedures that are normally
engaged by farmers or are consistent with technological development within the
agricultural industry.” R.R. at 116a (emphasis added). The term “includes”
denotes that the Ordinance further defined the term, rather than created an additional
requirement. Velocity Express v. Pa. Human Relations Comm’n, 853 A.2d 1182,
9
The Board’s statement that “[e]ven assuming [Balady Farms’] proposed slaughter, cutting,
and cleaning of chickens is agriculture, it would fall under the definition of ‘intensive agriculture,’”
is without foundation. R.R. at 77a. Section 202 of the Ordinance defines “intensive agriculture” as:
The raising of livestock or poultry involving an average of 2 or more
animal equivalent units of live weight of livestock or poultry per acre
of lot area on an annualized basis. An animal equivalent unit is 1,000
pounds live weight of livestock or poultry animals, on an annualized
basis, regardless of the actual number of individual animals
comprising the unit. These units shall be calculated as provided under
[what is referred to as] the PA Nutrient Management Act[, 3 Pa.C.S.
§§ 501-522,] and accompanying regulations. This definition is based
on acreage of a lot and not acreage available for disposal of wastes.
R.R. at 122a. We acknowledge that intensive agriculture is not a use permitted by right in the RC
District. However, no evidence was presented to the Board to establish that Balady Farms’
proposed processing meets this definition.
11
1186 (Pa. Cmwlth. 2004) (the General Assembly’s use of word “includes” before a
specific list means the list plus others of same general kind or class).
In addition, if the Township intended for the terms “farmers” and
“agricultural industry” to be limited, as the Board suggests, to just the Township or its
immediately surrounding communities, it could have done so. In the absence of such
restriction, the fact that Mr. Craumer and other Township farmers send their livestock
off-site for processing does not here limit Balady Farms’ right to process chickens on
the Property.
Further, there is nothing in this record to support the Board’s conclusion
that such interpretation offends the RC District’s purpose
to protect those areas of the Township that have special
value due to scenic natural beauty and unique natural
environments and those areas that have natural features that
are important to a clean and sustainable environment. The
following objectives of this zoning district support its
overall purpose:
A. To protect the supply and quality of groundwater and
surface water.
B. To protect woodlands[.]
C. To preserve watersheds, stream corridors, floodplains,
wetlands, and recharge areas.
D. To protect steep slopes and ridgelines.
E. To preserve natural wildlife habitats.
F. To prevent deterioration of air quality.
G. To preserve open space.
R.R. at 144a.
Finally, notwithstanding the Board’s and the Township’s
representations, this Court’s decision in Tinicum Township v. Nowicki, 99 A.3d 586
12
(Pa. Cmwlth. 2014), does not control our decision in the instant case. Therein, the
zoning board reviewed whether the property owner’s on-site mulching activity,
whereby raw materials were transported onto the property, ground and then
transported off the property to buyers was a permitted “agricultural operation” under
Section 107 of the MPC. The Tinicum Township zoning board used the following
analogy to support its conclusion that the operation was not a permitted use:
If a farmer raises sheep and shears the wool and then sells
the wool to a factory which knits that wool into sweaters,
the processing of the wool into sweaters at the factory is not
an agricultural use but is a manufacturing use. The hauling
of wood produced elsewhere onto the site for further
processing is not an agricultural use . . . .
Tinicum Twp., 99 A.3d at 588. The trial court agreed with the board “because the raw
materials from which the mulch was made did not originate from the [p]roperty
and none of the resultant mulch was used on the [p]roperty.” Id. at 589 (emphasis
added). This Court upheld the trial court’s order, concluding that “in order to qualify
as [] an agricultural operation . . . as defined by Section 107 of the MPC . . . , the use
in question must have some connection to or utilization of the land itself for
production of trees [or] livestock . . . .” Id. at 591 (emphasis added). Here, because
the chickens that Balady Farms intends to process at its proposed facility would be
those raised at the Property, they clearly “have some connection to or utilization of
the [Property]” and, thus, Tinicum Township is distinguishable. Id.
In reaching our conclusion, we acknowledge that “[a board’s]
interpretation of its own zoning ordinance is entitled to great deference and weight.”
Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1210 (Pa. Cmwlth.
2009).
However, a zoning board is not a legislative body, and it
lacks authority to modify or amend the terms of a
zoning ordinance. ‘[Z]oning boards . . . must not impose
13
their concept of what the zoning ordinance should be,
but rather their function is only to enforce the zoning
ordinance in accordance with the applicable law.’ Thus, the
[ZBA] is required to apply the terms of the Zoning
Ordinance as written rather than deviating from those
terms based on an unexpressed policy.
Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 918 A.2d
181, 187 (Pa. Cmwlth. 2007) (citation omitted; emphasis added) (quoting Ludwig v.
Zoning Hearing Bd. of Earl Twp., 658 A.2d 836, 838 (Pa. Cmwlth. 1995)).
The Board also has an obligation to construe the words of
an ordinance as broadly as possible to give the
landowner the benefit of the least restrictive use when
interpreting its own Zoning Code. Albert v. Zoning
Hearing B[d.] of N[.] Abington T[wp.], . . . 854 A.2d 401,
405 ([Pa.] 2004); Church of the Saviour v. Tredyffrin T[wp.]
Zoning Hearing B[d.], . . . 568 A.2d 1336, 1338 ([Pa.
Cmwlth.] 1989). Any doubt must be interpreted in favor
of the landowner. Kissell v. Ferguson T[wp.] Zoning
Hearing B[d.], 729 A.2d 194, 197 (Pa. Cmwlth. 1999). ‘It
is an abuse of discretion for a [b]oard to narrow the
terms of an ordinance and further restrict the use of
property.’ Church of the Saviour, 568 A.2d at 1338.
‘While the legislative intent of the governing body which
enacted the ordinance is of primary concern when
interpreting a zoning ordinance, the letter of the ordinance
is not to be disregarded under the pretext of pursuing its
spirit.’ Borough of Fleetwood v. Zoning Hearing B[d.] of
Borough of Fleetwood, . . . 649 A.2d 651, 656 ([Pa.] 1994);
see Beers ex rel. P/O/A Beers v. Zoning Hearing B[d.] of
Towamensing T[wp.], 933 A.2d 1067, 1069 (Pa. Cmwlth.
2007).
Riverfront Dev. Grp., LLC v. City of Harrisburg Zoning Hearing Bd., 109 A.3d 358,
366 (Pa. Cmwlth. 2015) (emphasis added).
Moreover, the General Assembly has enacted extensive legislation to
protect the Commonwealth’s agricultural operations. For example, Section 603(h) of
the MPC states, in pertinent part:
14
Zoning ordinances shall encourage the continuity,
development and viability of agricultural operations.
Zoning ordinances may not restrict agricultural operations
or changes to or expansions of agricultural operations in
geographic areas where agriculture has traditionally been
present unless the agricultural operation will have a direct
adverse effect on the public health and safety.
53 P.S. § 10603(h) (emphasis added).
In Section 1 of the Act commonly referred to as the Right to Farm Act,10
the General Assembly precluded nuisance actions against existing farms by
encroaching residential uses in an effort “to conserve and protect and encourage the
development and improvement of its agricultural land for the production of food
and other agricultural products.” 3 P.S. § 951 (emphasis added). To that end,
Section 3 of the [Right to Farm Act] provides that every
municipality that defines or prohibits a public nuisance
shall exclude from that definition any agricultural
operation conducted in accordance with normal
agricultural operations so long as the operation does not
have a direct adverse effect on the public health and safety.
Commonwealth v. Richmond Twp., 975 A.2d 607, 617 (Pa. Cmwlth. 2009) (emphasis
added). “Normal agricultural operations” are defined in Section 2 of the Right to
Farm Act as:
The activities, practices, equipment and procedures that
farmers adopt, use or engage in the production and
preparation for market of poultry, livestock and their
products and in the production, harvesting and preparation
for market or use of agricultural, agronomic, horticultural,
silvicultural and aquacultural crops and commodities and is:
(1) not less than ten contiguous acres in area; or
(2) less than ten contiguous acres in area but has an
anticipated yearly gross income of at least $10,000.
10
Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§ 951-957.
15
The term includes new activities, practices, equipment
and procedures consistent with technological
development within the agricultural industry. Use of
equipment shall include machinery designed and used for
agricultural operations, including, . . . those items of
agricultural equipment and machinery defined by [Section 2
of] the [A]ct of . . . known as the Farm Safety and
Occupational Health Act[, 3 P.S. § 1902].[11] Custom work
shall be considered a normal farming practice.
3 P.S. § 952 (emphasis added).
In Chapter 3 of the Agriculture Code, commonly referred to as the
Agricultural Communities and Rural Environmental Act (ACRE or Act 38),12 the
General Assembly likewise restricts “local regulation of normal agricultural
operations,” as defined in Section 2 of the Right to Farm Act. 3 Pa.C.S. § 311. Our
interpretation of the term “agriculture” used in the Ordinance in this case is consistent
with these statutes intended to protect the Commonwealth’s agricultural operations.
For all of the above reasons, we hold that Balady Farms’ proposed
“addition of a chicken processing facility for chickens raised and bred on the farm,”
R.R. at 1a, falls squarely within the Township’s definition of “agriculture” and, thus,
is permitted as of right in the Township’s RC District.
Because the Board erred in its interpretation of Section 202 of the
Ordinance, we reverse the trial court’s order.
___________________________
ANNE E. COVEY, Judge
11
Act of December 12, 1994, P.L. 944, 3 P.S. §§ 1901-1915. Although the Farm Safety and
Occupational Health Act (Act) is intended to establish farm safety and health programs, and its
definitions are limited to that context, we recognize that Section 2 of the Act notably defines
“agricultural production” as “[t]he production for commercial purposes of . . . livestock and
livestock products. The term includes the processing or retail marketing of such . . . livestock
or livestock products if more than 50% of the processed or merchandised products are
produced by the farmer.” 3 P.S. § 1902 (emphasis added).
12
3 Pa.C.S. §§ 311-318.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Balady Farms, LLC, :
Appellant :
:
v. :
:
Paradise Township Zoning Hearing :
Board :
:
v. :
: No. 171 C.D. 2016
Paradise Township :
ORDER
AND NOW, this 4th day of October, 2016, the York County Common
Pleas Court’s January 11, 2016 order is reversed.
___________________________
ANNE E. COVEY, Judge