In 2009, the Attorney General of Pennsylvania (hereinafter “AG”) initiated this action asserting Locust Township’s regulations of intensive animal agriculture are invalid as preempted by state law. Previously the Commonwealth Court of Pennsylvania, found the AG failed to state a ripe cause of action, as the local law had yet to be applied or enforced. The Supreme Court of Pennsylvania remanded the case, finding the AG “is explicitly empowered to invalidate enacted local ordinances without regard to enforcement.” On remand, the AG moved for summary judgment. The court sustained and denied various counts of the motion.
The Locust Township Ordinance challenged in this action regulates the specific use of land for “intensive animal agriculture” (hereinafter “IAA”). These regulations come into effect where an agriculture operation keeps, on an annual basis, more than 150 “Animal Equivalent Units.” An Animal Equivalent Unit (hereinafter “AEU”) is defined as 1,000 pounds of live weight of livestock or poultry. An agricultural operation (hereinafter “AO”) is broadly defined as a farm or other property use similar to farming. IAA also includes Concentrated Animal Operations, which are AO’s with a density of more than two AEU’s per acre of land suitable for annual manure application, as well as Concentrated Animal Feeding Operations, which are AO’s with more than 1,000 AEU’s and have the potential to discharge surface waters. The Ordinance permits IAA uses in the Rural Agricultural District, subject to eleven explicit conditions plus other “lawful criteria,” and requires the land owner to meet an expensive bond or insurance requirement. In addition, the Ordinance imposes setback and lot size requirements, as well as adopts the Pennsylvania Nutrient Management Act (hereinafter “NMA”).
The Commonwealth Court first addressed the AG’s claim that the Ordinance is preempted by the NMA. The court found the preemptive language expressly regulates the entire field of odor and nutrient management. The MNA provides municipalities are permitted to regulate “‘consistent with and no more stringent than’ the NMA.” The AG first argued that Section 1 of the Ordinance is preempted because it uses the term IAA, which is different than the terms used by the NMA, creating a new category. Locust rebutted that the AG did not specifically plead the preemption of Section 1, as it did for other sections. The court ruled that since Pennsylvania utilizes fact based pleading, requiring detailed factual allegations as to all claims, and the AG’s complaint did not specifically challenge Section 1, the AG failed to bring the issue before the court. The court denied this count of the motion for summary judgment.
Next, the AG asserted the section of the Ordinance requiring submission of a site plan violates the NMA as it duplicates and exceeds the site plan requirements of the NMA. Locust claimed there was no violation as the Ordinance is “less onerous than the NMA.” The court ruled the site plan section is not preempted as no conflict exists; the two different site plan requirements each have a “separate purpose with independent legal significance” – one a local concern for land use code compliance, the other the State’s interest in odor and nutrient management.
The AG also asserted that the Ordinance’s odor management section is preempted by state law as it exceeds the requirements of the NMA. Locust claimed there was no preemption, as the Ordinance regulates smaller operations than regulated by the NMA. The court found Locust’s defense unavailing, as it was premised on the invalid assumption that the NMA did not regulate these smaller farms. The NMA permits the voluntary submission of nutrient and odor management plans of these smaller operations, thus, the General Assembly consciously determined that these smaller farms should not be obligated to submit a plan. Locust’s requirement conflicts with this determination. Thus, the court granted summary judgment on this claim, finding this section of the Ordinance invalid.
Likewise, the court granted the AG’s motion for summary judgment concerning the Ordinance’s set back requirements, finding them more stringent than the NMA’s requirements. The court made this finding based on the Ordinance’s setback being more than two hundred feet deeper than the strictest NMA setback of three hundred feet, that it applies to all operations –not just manure storage, and it applies to operations the General Assembly excluded as too small to justify the requirement.
Next, the court addressed the AG’s assertion that the Ordinance is preempted by the Water Resources Planning Act (hereinafter “WRPA”). The WRPA “regulates water withdrawal and use and establishes registration, monitoring, record-keeping and reporting requirements,” and also includes a specific preemption provision. The court granted summary judgment, finding the water management section of the Ordinance preempted because it greatly exceeded the requirements of the Act.
The AG also challenged the Ordinance on the ground that one section is preempted by the Agricultural Area Security Law (hereinafter “AASL”). The AASL permits municipalities to create Agricultural Security Areas (hereinafter “ASA”) with the purpose of promoting agriculture. In order for the AG to show the Ordinance violates the AASL, the AG would need to show the Ordinance unreasonably restricts farming in the ASA, or the restrictions bear no direction relationship to the public health or safety. Locust has created an ASA within its jurisdiction. The AG contends that the sections of the Ordinance concerning odor and setback requirements are unreasonable. The court denied the motion for summary judgment, finding in agreement with Locust that a determination cannot be made about the reasonableness of the Ordinance until it is applied to the local ASA.
The court next found the AG could not prevail in their claim that the Ordinance violates the Right to Farm Law (hereinafter “RFL”). The court found this claim without merit as the RFL prohibits a municipality from declaring certain farming operations a nuisance, where as the Ordinance merely defines a land use, where it can be maintained, and upon which conditions.
The court then addressed the AG’s claim that the Ordinance violates the Agriculture Code on the basis that it “‘prohibits or limits a normal agricultural operation absent authority of state Law.’” The all important question is whether an Ordinance “prohibits or limits a ‘normal agricultural operation.’” In this case, the significant question is whether the large scale operations regulated by the Ordinance are considered “normal.” The court denied summary judgment as the parties did not adequately address this point.
Last, the court addressed the AG’s claim that the Ordinance violated the Municipality Planning Code, which permits local regulation unless they exceed the requirements of the AASL, RFL, or NMA. The court found that the sections violating the NMA also violate the Municipality Planning Code, and, thus, the court granted summary judgment as to those violative sections.
Commonwealth v. Locust Township, 49 A.3d 502 (Com. Ct. Pa., July 17, 2012).
This opinion can be accessed here.
