Berner,et al v. Montour ZHB,et al Apl: Sponenberg ( 2019 )


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  •                               [J-7-2019] [MO: Baer, J.]
    IN THE SUPREME COURT OF PENNSYLVANIA
    MIDDLE DISTRICT
    RUSSELL BERNER AND DONNA                   :   No. 39 MAP 2018
    BERNER, KENDALL DOBBINS, NATHAN            :
    ROBERTS, ROBERTS REALTY, LLC,              :   Appeal from the Order of the
    ROBERT D. CLARK AND ROBERT W.              :   Commonwealth Court at No. 448 CD
    WEBBER                                     :   2017 dated January 4, 2018,
    :   Reversing the Order of the Columbia
    :   County Court of Common Pleas, Civil
    v.                              :   Division, at No. 2014-CV-684 dated
    :   March 7, 2017
    :
    MONTOUR TOWNSHIP ZONING                    :   ARGUED: March 5, 2019
    HEARING BOARD AND SCOTT                    :
    SPONENBERG                                 :
    :
    :
    APPEAL OF: SCOTT SPONENBERG                :
    DISSENTING OPINION
    JUSTICE DOUGHERTY                                       DECIDED: September 26, 2019
    Respectfully, I disagree with the majority’s conclusion the Nutrient Management
    Act (NMA), 3 Pa.C.S. §§501-522, preempts Montour Township’s zoning ordinance, which
    requires hog raising operations within the Township’s delineated agricultural districts to
    submit legally binding assurances their manure will be managed without adverse impact
    upon adjacent properties. See Montour Township, General Codes, Ch. 27 (Zoning),
    §402(1)(E). In reaching its conclusion, the majority determines Scott Sponenberg’s
    (Applicant’s) proposed lower-intensity agricultural operation, consisting of 4,800 swine, is
    both excused from the requirements of the NMA by virtue of its size,1 and, paradoxically,
    1As explained in greater detail herein, I do not dispute the NMA places no obligations on
    Applicant, whose farm is not a concentrated animal operation (CAO) or voluntary
    also immune from local regulation regarding the impacts of the farm’s manure
    management activities on surrounding properties. See Majority Opinion at 18. The
    majority’s construction of the NMA’s preemption provision thereby effectively leaves the
    localized health and environmental impacts of the manure practices of such farms —
    which Applicant and his amici contend comprise the vast majority of farms across the
    Commonwealth — outside of any regulation. In my view, not only is this result untenable,
    but it is based upon a flawed statutory construction analysis that undermines this Court’s
    jurisprudence with regard to preemption principles, and curtails long-established
    municipal authority to “make such additional regulations” in furtherance of state law as
    are reasonable and appropriate to the needs of the particular locality. See Hoffman Mining
    Co. v. Zoning Hearing Bd. of Adams Twp., 
    32 A.3d 587
    , 595 (Pa. 2011), quoting Mars
    Emergency Med. Servs., Inc. v. Twp. of Adams, Cambria Cty., 
    740 A.2d 193
    , 195 (Pa.
    1999) (citations omitted). Accordingly, I dissent.
    As an initial matter, I agree with the majority to the degree it determines local
    regulation of nutrient management is prohibited “only to the extent that it is more stringent
    than, inconsistent with, or in conflict with the [NMA] or its regulations.” See Majority
    Opinion at 15. However, I depart from the majority with respect to its construction analysis
    and resulting application of Section 519, which provides the preemptive effect of the NMA.
    As a precursor to applying the principles of statutory construction, I note Section 519 of
    the NMA is unquestionably ambiguous. In interpreting this provision, the Commonwealth
    Court has observed, “[t]he [NMA’s] preemption language is as perplexing as it is
    verbose[.]” Berner v. Montour Twp. Zoning Hearing Bd., 
    176 A.3d 1058
    , 1076 (Pa.
    Cmwlth. 2018), quoting Com., Office of Atty. Gen. ex rel. Corbett v. Locust Twp., 49 A.3d
    agricultural operation (VAO), or otherwise required to implement a nutrient management
    plan (NMP).
    [J-7-2019] [MO: Baer, J.] - 2
    502, 506-07 (Pa. Cmwlth. 2012). Both Applicant and Objectors rely upon this
    characterization. See Appellee’s Brief at 11, quoting Locust Twp. at 506-07; see also
    Appellant’s Brief at 32 (“[T]he varied preemption language used by the General Assembly
    in §519 is ‘perplexing,’ and when viewed as a whole, unclear. . . . [T]he intent of the statute
    is not clear and free from all ambiguity based on its text[.]”); but cf. Appellant’s Brief at 26
    (“The General Assembly unambiguously preempted the field of nutrient management to
    the exclusion of all local regulation.”).
    Read in isolation, NMA subsection 519(a) appears to indicate the General
    Assembly intended to prohibit all local regulation of nutrient management. Majority
    Opinion at 13-14, quoting 3 Pa.C.S. §519(a) (“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.”). However,
    the preemption provision goes on to undermine its all-encompassing, exclusionary
    statement by commanding in subsection (b), “no [local regulation] may prohibit or in any
    way regulate [nutrient management] if the . . . regulation is in conflict with this chapter
    [and its regulations]” — a statement otherwise unnecessary if all local regulation of
    nutrient management is excluded pursuant to Subsection 519(a). 3 Pa.C.S. §519(b)
    (emphasis added). Section 519 further contradicts itself with the following proviso in
    subsection (d): “nothing in [the NMA] shall prevent [a locality] from adopting and
    enforcing ordinances or regulations which are consistent with and no more stringent than
    the requirements of this chapter [and its regulations or guidelines].” 3 Pa.C.S. §519(d)
    (emphasis added). Consequently, the preemption clause is facially contradictory and
    ambiguous, clouding the General Assembly’s intent.
    Despite its effort to construe these subsections together, see 1 Pa.C.S. §1921, the
    majority’s construction still excludes subsection 519(a) from the equation, determining the
    [J-7-2019] [MO: Baer, J.] - 3
    General Assembly did not intend to preclude all local regulation in the field of nutrient
    management. See Majority Opinion at 14-15. In my alternate view, subsection 519(a) is
    wholly irreconcilable with the subsequent provisions of Section 519. In such a case, our
    analysis is guided by other principles of statutory construction. Specifically, where a
    conflict between two provisions in a statute is irreconcilable, particular provisions prevail
    over the general ones. See 1 Pa.C.S. §1933. Additionally, clauses last in order of position
    shall prevail. See 1 Pa.C.S. §1934. Thus, the provisions of Section 519 which operate to
    guide the interpretation of this matter are subsections (b) and (d).2 Reading those
    provisions together, if a local regulation of nutrient management is more stringent than,
    or inconsistent with, or in conflict with the provisions of the NMA (or its regulations or
    guidelines), then the local government may not prohibit or regulate practices related to
    nutrient management. Stated otherwise, the local government may prohibit or regulate
    practices related to nutrient management if its regulation is not more stringent than,
    inconsistent with, or in conflict with the provisions of the NMA.
    However, the inquiry does not end at reaching this construction of Section 519,
    and my divergence from the majority stems from the remainder of its analysis. Initially,
    the majority determines the General Assembly did not, by enactment of Section 519,
    intend to preclude all local regulation in the field of nutrient management, but, rather,
    intended to prohibit such local regulation only if it “is more stringent than, inconsistent
    with, or in conflict with” the NMA or its regulations. Majority Opinion at 14-15. However,
    the majority then inconsistently proceeds to prohibit Montour Township’s local regulation
    because it “clearly regulate[s] nutrient management” (which, the majority previously
    determined, is not a reason to preclude a local regulation) and imposes obligations “in
    addition to” the obligations set forth in the NMA and its regulations. 
    Id. at 15.
    But, under
    2   Subsection 519(c) is not implicated or addressed in this case. See 3 Pa.C.S. §519(c).
    [J-7-2019] [MO: Baer, J.] - 4
    the majority’s construction of the preemption provisions, “additional” requirements may
    be adopted if they are consistent with the NMA. Accordingly, an ordinance’s imposition of
    obligations “in addition to” those described within the NMA is not one of the delineated,
    express preemptive criteria contained in Section 519; neither is it, therefore, a valid basis
    for preemption. Furthermore, it is difficult to imagine the import of a local regulation that
    does not impose some “additional” local obligation, within any statutory framework.
    Moreover, it does not necessarily follow, as the majority reasons, that the
    Ordinance’s adverse impact requirement is in conflict with the NMA simply by nature of
    being “additional” to the minimum standards for manure storage facilities described in
    Section 83.351 of the NMA regulations. See 
    id. at 15,
    citing 25 Pa. Code §83.351(a) (“The
    minimum standards contained in this section apply to new manure storage facilities and
    the expansion of existing manure storage facilities, as part of a plan developed for an
    [Nutrient Management Plan (NMP)] operation.”). Notably, because Section 83.351
    applies only to NMP operations, it does not apply to non-NMP, lower-intensity agricultural
    operations, such as Applicant’s. Thus, absent local regulation, Applicant’s 4,800 swine
    facility operates without even minimum standards for its manure storage. As noted by the
    Commonwealth Court, where there are no applicable state-level standards for manure
    storage, there can be no conflict with additional obligations imposed by local manure
    storage regulation. See 
    Berner, 176 A.3d at 1078-79
    . This circumstance, however,
    underscores the wider problem posed by broadly applying Section 519’s preemption
    criteria: where the NMA and its regulations contain no provisions regarding a type of farm,
    no ordinance would be in conflict with the NMA (and thus is not preempted), but also,
    any plausible ordinance at all would be more stringent by requiring more than nothing
    (and thus is preempted). In my view, this problem is a complex one, and to avoid
    potentially unduly severe restrictions on local regulation, the Section 519 preemption
    [J-7-2019] [MO: Baer, J.] - 5
    analysis requires more than a superficial determination that requirements additional to
    those imposed by the NMA regulations are preempted.
    As previously noted, the NMA does not preempt the entire field of nutrient
    management, see Majority Opinion at 14-15; thus, a conflict preemption analysis is
    warranted. “[C]onflict preemption require[s] 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.” Hoffman 
    Mining, 32 A.3d at 594
    , citing Cellucci v. Gen. Motors Corp.,
    
    706 A.2d 806
    , 809 (Pa. 1998).
    Hoffman Mining is instructive regarding the long-standing principles, parameters,
    and wealth of authority supporting a conflict preemption analysis. “Under the doctrine of
    conflict preemption, a local ordinance that irreconcilably conflicts with a state statute is
    invalid.” 
    Id. at 602
    (emphasis added). The analysis requires a determination not only that
    a conflict exists, but whether such conflict is irreconcilable. See 
    id. at 603,
    quoting City
    Council of the City of Bethlehem v. Marcincin, 
    515 A.2d 1320
    , 1326 (Pa. 1986) (“Where
    an ordinance conflicts with a statute, the will of the municipality as expressed through an
    ordinance will be respected unless the conflict between the statute and the
    ordinance is irreconcilable.”) (emphasis added). Under this assessment, a conflict is
    irreconcilable, and thus the local regulation is invalid, if either of two conditions exist: (1)
    if simultaneous compliance with both the local ordinance and the state statute is
    impossible, i.e., if an actor is placed in a position of having to decide which enactment to
    follow, or, (2) if the local ordinance “stands ‘as an obstacle to the execution of the full
    purposes and objectives’ of a statutory enactment of the General Assembly.” 
    Id. at 594-
    95, 602-03, citing Council 13, Am. Fed’n of State, Cty. & Mun. Employees, AFL-CIO ex
    rel. Fillman v. Rendell, 
    986 A.2d 63
    , 81-82 (Pa. 2009) (irreconcilable conflict existed
    between federal law and Pennsylvania Constitution as former required timely payment of
    [J-7-2019] [MO: Baer, J.] - 6
    wages to state employees but latter barred expenditures from state treasury during
    budget impasse), 
    Marcincin, 515 A.2d at 1323
    , 1326 (ordinance limiting mayor to two
    consecutive terms not irreconcilable with a statute providing mayor shall be eligible for
    reelection), and Fross v. Cty. of Allegheny, 
    20 A.3d 1193
    , 1203-1207 (Pa. 2011)
    (ordinance restricting where convicted sex offenders could reside was impediment to
    objectives of Sentencing and Parole Codes setting forth policy of rehabilitation,
    reintegration, and diversion from prison of offenders based on individually-tailored
    assessments); quoting Fross at 1203 n.12. Additionally, the Hoffman Mining Court
    acknowledged local authorities’ responsibility to enact zoning ordinances for the “health,
    safety or general welfare of the community, giving ‘consideration to the character of the
    municipality, the needs of the citizens and the suitabilities and special nature of particular
    parts of the municipality,’” 
    id. at 603,
    605, quoting 53 P.S. §10603(a), and observed “the
    General Assembly must clearly evidence its intent to preempt. . . . [s]uch clarity is
    mandated because of the severity of the consequences of a determination of
    preemption[,]” that is, the complete preclusion of local legislation in that area. 
    Id. at 593
    (emphasis added).
    With regard to the matter sub judice, the General Assembly has not clearly
    established what it intended to preempt by enacting Section 519. Further, the
    consequence of preempting the Ordinance’s adverse impact requirement, and any local
    regulations enacting additional manure storage requirements affecting non-NMP
    operations, is considerable: in the absence of state law to accomplish the task,3
    3I note the Clean Streams Law, 35 P.S. §§691.1-691.1001, does subject lower-intensity
    agricultural operations to some regulation with regard to manure pollution control, for
    which violations a farm “may” be required to develop and implement an NMP. 3 Pa.C.S.
    §506(j). However, the extent to which the Clean Streams Law regulates Applicant’s
    manure management activities appears, based on this record, limited in two respects.
    First, though he must develop and keep on file a Manure Management Plan, such a plan
    [J-7-2019] [MO: Baer, J.] - 7
    municipalities are without recourse to mitigate anticipated local health and safety impacts
    of manure storage operations on the lands immediately surrounding approximately 91
    percent of the Commonwealth’s animal-raising farms.4
    Turning to application of the principles of conflict preemption, the first inquiry is
    whether Applicant’s compliance with both laws is possible. As the majority observes, the
    NMA imposes nutrient management requirements on NMP operations only — those being
    CAOs, VAOs, and operations otherwise required to implement NMPs as part of a Clean
    Streams Law compliance plan; it imposes no requirements on non-NMP operations, but
    gives them the option to comply. Majority Opinion at 16, citing 3 Pa.C.S. §506 and 25 Pa.
    Code §§83.201, 83.261. Consequently, as Applicant is a non-NMP operation, the NMA
    requires nothing of his farm. No conflict is apparent in this regard, as Applicant’s
    compliance with the Ordinance will not violate the NMA.
    The remaining inquiry is whether the adverse impact requirement of the zoning
    ordinance stands as an obstacle to the execution of the purposes of the NMA. Section
    502 of the NMA, titled “Declaration of legislative purpose,” provides, in pertinent part,
    is not a document reviewed or approved by any authority, but a workbook document which
    can be prepared by the farmer or by a person certified to write such plans. 
    Berner, 176 A.3d at 1078
    (quoting testimony of state-certified nutrient management specialist Todd
    Rush, who prepared Applicant’s Manure Management Plan). Applicant does not suggest
    his Manure Management Plan in any way provides assurances against adverse impacts
    to his surrounding properties. 
    Id. at 1072.
    Second, on review of the Clean Streams Law
    regulation Applicant asserts governs his farm, it is questionable whether he is in fact
    subject to any of its enforcement provisions, which apply to illegal pollutant discharges by
    an operation “that meets the definition of . . . [a concentrated animal feeding operation
    (CAFO).]” See 25 Pa. Code §91.36(c)(2). It is undisputed Applicant’s farm does not meet
    the definition of a CAFO. 
    Berner, 176 A.3d at 1079
    (“[Applicant] is not a CAO or a
    CAFO.”).
    4In its brief supporting Applicant, the Commonwealth relates, “[o]f the 59,000 farms in the
    Commonwealth, approximately 23,000 raise animals. The vast majority of those farms —
    approximately 91% — are like [Applicant’s], too small to necessitate a nutrient
    management plan under the NMA.” Commonwealth’s Amicus Curiae Brief at 17.
    [J-7-2019] [MO: Baer, J.] - 8
    “[t]he purposes of this chapter are as follows: [inter alia] (1) [t]o establish criteria, nutrient
    management planning requirements and an implementation schedule for the application
    of nutrient management measures on certain agricultural operations which generate
    or utilize animal manure.”5 3 Pa.C.S. §502(1)(emphasis added). As explained above,
    those “certain agricultural operations” regulated by the chapter include, expressly and
    only, NMP operations. Accordingly, local regulation impacting non-NMP operations
    presents no obstacle to the execution of the purposes of the NMA as articulated by the
    General Assembly.
    Furthermore, although, as noted by the majority, the NMA’s inclusion of voluntary
    provisions and financial assistance for lower-intensity operations to develop NMPs may
    reflect a legislative purpose to spare smaller farms from the onerous requirements of
    implementing an NMP, see Majority Opinion at 16-17, the NMA’s silence with regard to
    non-NMP operations does not reflect a legislative intent to spare smaller farms from all
    nutrient management regulation. In my view, the Ordinance’s adverse impact requirement
    does not pose an obstacle to this purpose. As a prerequisite to receiving a special
    exception for Applicant’s intended hog-raising use, the contested portion of the Ordinance
    requires Applicant to provide “legally binding assurances with performance guarantees”
    demonstrating the operation’s manure and wastewater management facilities “will be
    conducted without adverse impact upon adjacent properties.” 
    Id. at 5;
    Montour Township,
    General Codes, Ch. 27 (Zoning), §402(1)(E). Applicant has made no attempt to submit
    such assurances, and, consequently, has not demonstrated the Ordinance’s adverse
    impact requirement imposes obligations as burdensome as NMP implementation.
    Notably, the Commonwealth Court suggests the adverse impact requirement would be
    5 The additional four purposes enumerated in NMA Section 502 have no bearing on the
    circumstances of this case. See 3 Pa.C.S. §502(2)-(5).
    [J-7-2019] [MO: Baer, J.] - 9
    met by simply providing the performance criteria or warranty information from Applicant’s
    manure tank and equipment suppliers, and any proposed construction or operations
    contracts and workmanship warranties. 
    Berner, 176 A.3d at 1072-73
    . These minimal
    requirements suggested by the Commonwealth Court for compliance with the Ordinance
    appear to be much less burdensome than the NMP requirements imposed by the NMA.
    Thus, based on the record, or lack thereof, before the Court, I disagree with the majority’s
    elevation of the Ordinance’s requirements to “standards more burdensome” than NMP
    requirements. See Majority Opinion at 17, 18 n.17.
    For the foregoing reasons, I discern no irreconcilable conflict between the
    Ordinance’s adverse impact requirement and the NMA. Thus, I would conclude the NMA
    does not preempt Montour Township’s zoning ordinance.
    [J-7-2019] [MO: Baer, J.] - 10