The Commonwealth of Pennsylvania enacted the Nutrient Management Act (NMA) (3 Pa. C.S. sec. 519) which provides, in part, that “No ordinance or regulation of any political subdivision or home rule municipality my prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients…if the municipal ordinance or regulation is in conflict with this chapter and the regulations or guidelines promulgated under it.”  In addition, the statute states, “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.”  The Township of Lower Towamensing adopted a zoning ordinance which prohibited “intensive agricultural activities” in an R-1 Low Density Residential Zoning District.  The ordinance defined intensive agriculture as specialized activities, “which due to the intensity of production or raw material storage needs, necessitates special control of operation, raw material storage and processing, and disposal of liquid and solid wastes.”  

After receiving complaints regarding sewage sludge stockpiling on the subject property, and an inspection of the premises, the zoning officer ordered the owners to cease using the property for the storing, dumping and stock piling of solid waste, and to remove or plow the waste located on the property within ten days. On appeal to the Zoning Hearing  Board, the Board determined that more than 100 tons of sewage sludge were on the subject property from May/June 2005 through October 2005, and concluded that this storage was beyond the purview of normal farming activity.  The property owners testified that the land was used for cultivation of soil and that the sludge, which consisted of treated municipal sewage, food processing waste (or slaughterhouse manure) provided nutrients for the soil. The Zoning Hearing Board also determined that the NMA did not prevent the municipality from adopting or enforcing its ordinance, and that there is nothing in the NMA that would indicate an endorsement of the long term stockpiling of sewage sludge with no definite plan for spreading the material.   As a result, the Board concluded, “The [T]ownship enfocement of its [O]rdinance in such as a manner so as to prevent the stockpiling of sewage sludge for an extended period of time is certainly consistent with, and no more stringent than the requirements of the [NMA] and the [Pennsylvania] Code.”   

On appeal, the Commonwealth Court noted that the centerpiece of the NMA is the preparation and implementation of nutrient management plans.  The property owners here did not prove voluntary compliance with the NMA through submission of an approved nutrient management plan. The Court rejected the implication that the NMA exempted large quantities of sludge and waste from all regulation, and noted that “the NMA shifts nutrient management from local control to broader state or county control…” and that “Any residual local regulation must be consistent with the NMA.  However nothing in the NMA evinces a legislative intent to entirely cease regulation of nutrient storage on farms.”   The Court continued, “In the absence of an approved plan under the NMA, we reject Applicants’ argument that local regulation is inconsistent with regulation under the NMA.”   The Court also determined that the enforcement of the Township’s ordinance to prevent the long-term stockpiling of sewage waste with no definite timetable for spreading the material, is not inconsistent with or more stringent than the NMA or its regulations.  Lastly, the Court agreed with the zoning hearing  board that the use of the subject property was not permitted as “agriculture” under the ordinance, but rather it constituted “intensive agriculture” which was prohibited in the R-1 district. 

Walck v. Lower Towamensing Tp. Zoning Hearing Board, 2008 WL 161011 (Pa. Cmwlth. 1/18/2008) 

The opinion can also be accessed at: http://www.courts.state.pa.us/OpPosting/CWealth/out/877CD07_1-18-08.pdf