R. Berner v. Montour Twp. ZHB and S. Sponenberg, 176 A.3d 1058

Background

Scott Sponenberg (Applicant) applied for a special exception to build a swine nursery barn with under-building manure storage on property zoned agricultural in Montour Township. The application included site plans and a Manure Management Plan (not an approved Nutrient Management Plan).
Montour Township Zoning Hearing Board (ZHB) initially granted the special exception subject to conditions; objectors appealed and this Court remanded for more specific findings (Berner I) because the ZHB’s findings were conclusory.
On remand the ZHB (without taking new evidence) adopted Applicant’s proposed findings, concluded the zoning provision requiring “facility designs and legally binding assurances with performance guarantees” was vague/subjective (shifting burden to objectors), and alternatively found the Nutrient Management Act (NMA) preempted that provision.
The trial court affirmed the ZHB; objectors appealed to this Court. This Court reviews only for abuse of discretion or error of law because no new evidence was taken.
The Commonwealth Court held the ZHB erred: the ordinance provision is a specific, objective requirement (Applicant bore the burden to submit the identified materials and did not do so) and the NMA did not preempt the ordinance provision in this case because the NMA regulation cited by the ZHB applies only to manure storage facilities tied to approved NMP operations, which Applicant is not.

Issues

Issue	Plaintiff's Argument (Objectors)	Defendant's Argument (Sponenberg)	Held
Whether the zoning requirement to submit facility designs and legally binding assurances with performance guarantees is a specific objective criterion or a vague general one	The provision is specific and objective (lists required submissions and enumerates types of "adverse impacts"); Applicant failed to make required submissions, so special exception must be denied	The phrase "adverse impact" is vague/subjective (analogous to "minimally invasive"); under Bray/Williams objectors bear burden to prove general detrimental effects	Held: the requirement is a specific, objective criterion. Applicant bore the burden to submit the required materials and did not prove compliance; ZHB erred in shifting the burden to objectors
Whether the ZHB exceeded the scope of remand by addressing NMA preemption	ZHB improperly relied on preemption and ignored expert testimony about soil unsuitability; remand did not authorize new preemption findings to excuse Applicant	ZHB’s supplemental findings explaining preemption were within remand scope because preemption had been referenced earlier; any preemption findings are harmless if ZHB’s zoning findings stand	Held: ZHB did not exceed remand scope by addressing preemption, but its conclusion that NMA preempted the ordinance provision was erroneous in this case
Whether Section 402(1)(E) of the zoning ordinance is preempted by the NMA/regulations cited by ZHB	The NMA’s conflict preemption does not apply because the regulation ZHB cited governs manure storage tied to approved NMP operations; Applicant’s operation is not a CAO/CAFO and has no approved NMP	The NMA and its regulations occupy the field of nutrient/odor management and bar more restrictive local requirements; the ordinance’s requirement is more stringent than the regulations	Held: The specific NMA regulation cited (25 Pa. Code §83.351) applies only to manure storage constructed as part of an NMP operation; Applicant lacks an approved NMP, so the regulation does not apply and the NMA does not preempt the ordinance provision here
Whether ZHB reasonably credited or discredited expert testimony on soil suitability and traffic	Objectors point to flaws in ZHB’s credibility determinations and argue the ZHB capriciously disregarded competent evidence	Applicant relies on ZHB’s credibility findings that discredited objectors’ experts and found Applicant’s expert credible	Held: Court did not resolve credibility dispute (not necessary given disposition), but reversed because of the two legal errors above and remanded to require compliance with the zoning submission requirement rather than affirming based on preemption or burden-shifting

Key Cases Cited

Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth.) (allocation of initial evidence/persuasion burdens in special exception cases)
Williams Holding Group, LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202 (Pa. Cmwlth.) (analysis of vague conditional-use language and burden implications)
Manor HealthCare Corp. v. L. Moreland Twp. Zoning Hearing Bd., 590 A.2d 65 (Pa. Cmwlth.) (applicant’s burden to prove objective requirements for special exception)
Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth.) (objectors’ burden to show generally detrimental effects must be to a high degree of probability)
Burkholder v. Zoning Hearing Bd. of Richmond Twp., 902 A.2d 1006 (Pa. Cmwlth.) (NMA and role of nutrient management plans in preemption analysis)
Commonwealth v. Locust Twp., 49 A.3d 502 (Pa. Cmwlth.) (construction of NMA preemption clauses)
Walck v. L. Towamensing Twp. Zoning Hearing Bd., 942 A.2d 200 (Pa. Cmwlth.) (preemption analysis where no approved NMP exists)
Greth Dev. Group, Inc. v. Zoning Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth.) (characterization of special exceptions)