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 SI MPSON FILED: February 8, 2016

In this zoning appeal, Objectors 1 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 decid e whether there was a conflict between the Nutr ient

Management Act (NMA)

, 3 Pa. C.S. § §501

- 522, and the Montour Township

Zoning Ordinance (zoning ordinance) that requir ed preemption of the zoning

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

1 Objectors are Russell and Donna Berner, Kendall Dobbins, Natha n Roberts, Roberts Realty, LLC and Robert D. Clark and Robert W. Webber.2

zoning ordinance’s objective criteria for a speci al 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

wi th the ZHB for his proposed intensive agricultur al use. Specifically, Applicant

seek s to construct a 78 1⁄2 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,

detai led site plans prepared by Team Ag, Applicant’s consultant, a Manure

Management Plan prepared by Todd Rush of TeamAg, who is a state certified

nutrient management specialist, correspo ndence from Rush

, and the Pennsylvania

D epartment of E nvironmental P rotection’ s (DEP) Manure Management Plan

Guidance document. A hearing ensued before the ZHB at which Applicant and

Rush testified. 2

2 I n 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.)

.3 After the hearing, the ZHB issued a decision in which it granted

Applicant’s special exception application subject to two conditions. Object ors

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 t estimony

from several Objectors, Dennis R. Peters, P.E. of Peters Consultants regarding the

condition of Tower Roa d, Brian Oram, a professional geologist and soil scientist

,

and Rush concerning manure application

.

After the remand hearings, the ZHB unanimously reaffirm ed its prior

decision gr ant ing 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 current ly use d as a livestock and crop farm. It is

improved with a fa rm 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 th e p roperty and o n other leased fields as indicated in the Manure

Management Plan included with the a pplication.4 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 z oning o rdinance provides that “ Intensive

Agriculture and Agricultural Support, ” which specifically includes hog raising, is

permitted by special exception in an a gricultural district. The ZHB conclude d

Applicant’ s proposed swine nursery qualifies as a n Intensive Agriculture and

Agric ultural Support use as defined by the z oning o rdinance.

Further, Section 402(1)(E) of the zoning ordinance sets forth seven

specific criteria that an I ntensive Agriculture u se must satisfy

. The ZHB

concluded Applicant satisfied each of the se criteria through his a pplication,

exhibits and testimony. Additionally, Section 1101(3) of the z oning ordinance sets

forth six general criteria for the granting of a speci al exception. The ZHB

concluded Applicant satisfied each of th os e general criteria through his a pplication,

exhibits and testimony.

Objectors presented the testimony of neighboring property owners,

Dennis Peters and Brian O ram

. Objectors raised concern s about the proposed use

regarding odor, manure application, potential contamination o f groundwater,

disease, traffic and diminution in property value.

Peters, a professional engineer, testified regarding the increased truck

traffic on Tower Road from th e proposed use and its impact on the condition of5

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

- examin ation, 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

co rrect finish weight data was included in the a pp lication.

Oram, a soils scientist, presented testimony on the soil suitability of

the p roperty and the leased fields for land application of manure. O ram concluded

the soils on the p roperty and the leased fields we re not suitable for manure

application from the proposed swine nursery based on the Natural Resources

Conservation Service’s (NRCS) Websoils Survey.

However, o n 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 p roperty; (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 opini on

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.6 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 t hat testimony it

discredited.

Ultimately, the ZHB concluded Applicant’ s proposed swine nursery

qualifie d as an Intensive Agricultural and Agricultural Support use under the

z oning o rdinance. T he ZHB further concluded Applicant met the zoning

ordinance’s objective criteria for such a use under Section 402(1 )( E) of the z oning

o rdinance and the general requirements for a special exception under Section

1101(3) of the z oning o rdinance . 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, t he ZHB also concluded the

preemption language in Section 519(b) of the NMA applied to Applicant’ s

proposed use

.

Based on the se determinations , the ZHB grant ed Applicant’ s special

exception request p ursuant to Sections 402(1)(E) and 1101(3) of the z oning

o rdinance 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 l evel of 2.0 which would render Applicant ineligible for the current special exception and would p lace Applicant’ s use into the category of a C oncentrated A nimal

O peration or a Concentrated Animal Feeding O peration

.7 Without taking additional evidence, the trial court issued an order

den ying 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 tr ial court subsequently issued a brief opinion pursuant to Pa.

R.A.P. 19 25(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 wi tnesses. Further, the ZHB’s determination s

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

find no error of law or abuse of discretion.

The trial court further explained t he parties spent considerable time

arguing over whether relevant portions of the zoning ordinance we re preempted by

state statute s, including : the NMA ; the Clean Streams L aw 4 ; the statute commonly

k nown as the Right to Farm Act 5 ; and

, the Domestic Animal Law. 6 The trial court

explained it appear ed the conditions the ZHB imposed on the approval of

Applicant’s special exception request were preempted by state law

. However, i t

4 Act of June 22, 1937, P.L.1987, as amen ded , 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

.8

was un necessary 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 preem ption of the zoning ordinance.

Additionally, they maintain the ZHB erred in determining Applicant presented

substantial evidence to satisfy the objective cri teria for a special exception.

Further, Objectors argue the ZHB capriciously disregarded competent evid ence 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 t he ZHB concluded the NMA’s preemption

language appli ed 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 t he zoning ordinance. Objectors assert the ZHB erred in

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

argue t here 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)

.9

the NMA and the provisions of the z o ning o rdinance 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 cap riciously disregarded

.

Applicant responds that the ZHB properly determined that the NMA

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

regulates the application of manure to soil to protect g round and surface water and

pre empts local ordinances that conflict with the NMA and its regulations

. He

asserts v arious regulations promulgated pursuant to the NMA set forth standards

for manure application to soil a nd the minimum standards for design, construction,

location, operatio n, and maintenance of manure storage facilities. Applicant

contends t he portion of the z oning o rdinance requiring that facility designs for

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

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

therefore pre empted 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 ha s 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 all10 regulatory and legislative power for itself and no local legislation in that area is permitted. ...

There are three generally reco gnized 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

e nactment 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 complete ly 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 (quotin g 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 nutrien ts 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

.11 (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 t han 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 P a. 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 q uoted the language of Section 519(b) of the NMA. S ee 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 n o explanation or

analysis in support of this vague conclusion.

To that end, o ur 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 to12

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]on ing [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 satis fied the special exception criteria in the zoning ordinance.

B. Special Exception

1. Contentions

Objectors assert t he Z H B erred in approving Applicant’s special

exception a

pplication where Applicant did not present substantial evidence to

satisfy the objective criteria in the z oning o rdinance. 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 persuas ion.

Applicant responds that t he ZHB determined there were seven

specific criteria for a special exception as required by Section 402(1)(E) of the13

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 t he 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 Gr p

. , LLC

v. B d. of Supervisors of W. Hanover Twp. , 10 1 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 t estimony about soil suitability and road condit ions

lacked credibility. Applicant contends t he 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 z oning o rdinance for

an inte nsive 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 cons istent with the zoning plan and presumptively consistent with the14

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 th e grant of a special exception.

Manor HealthCare Cor p. 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 burd en 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 hig h 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 healt h 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 detr imental effect, e. g., to the health, safety and welfare of the neighborhood :15 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 Agric ulture and Agricultural Support

...

Commercial feedlot s, 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 and16 legally binding assurances with performance guarantees which demonstrate that all facilities

necessa ry 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 limite d to, groundwater and surface water contamination, groundwater supply diminution, noise, dust, odor, heavy truck traffic, and migration of chemicals
offsite. Intensive agri culture 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 decease d 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 f

rom unauthorized access or scavengers and take precautions to minimize odor or other
noxious effects.

(3) Off

- street p arking 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

w ith Bureau of Water Quality Management17 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 state s , 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, driv eways, 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 to18 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 commu nity, 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 u se as defined in Section

402(1)(E); (2) Applicant’s proposal satisfies the specific special exception criteria19

set fo rth 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 proce ssing or shipping operations w ill be

conducted without adverse impact upon adjacent properties ... [including]

... groundwater and surface water contamination ... ” as required by Section 402(1)(E)

of the z oning o rdinance. Objectors argue such legally binding as surances with

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

not pr esent substantive evidence whether natural hazards, such as unstable soils,

exist in close proximity to the proposed swine nursery use, as required by Sec tion

604 of the z oning 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” a s to at least s ome 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 rem and to the ZHB for findings20

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 (unrep orted) (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 crite ria in Section 402(1)(E) of the zoning ordinance.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 :

O R D E R

AND NOW , this 8 th 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