Green 'N Grow Composting, LLC & S.R. Lehman v. Martic Twp. ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Green ‘N Grow Composting, LLC :
and Stephen R. Lehman, :
Appellants :
: No. 1002 C.D. 2018
v. :
: Submitted: April 9, 2019
Martic Township :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 3, 2019
Green ‘N Grow Composting, LLC, and Stephen R. Lehman (collectively
Appellants) appeal from the June 19, 2018 order of the Lancaster County Court of
Common Pleas (trial court), affirming the decision of the Martic Township Zoning
Hearing Board (Board), which upheld an enforcement notice finding that Appellants
violated the zoning ordinance in failing to obtain the necessary permits to erect new
structures and to compost commercial residual waste in the agricultural district of
Martic Township (Township).
Green ‘N Grow Composting, LLC, through its sole owner, Stephen R.
Lehman, owns property at 266 Douts Hill Road, Lancaster County, Pennsylvania (the
Property), which is located in the Township’s Agricultural District. On a part of
Property that is approximately five acres in size, Appellants have three structures,
characterized by the Board as “Greenhouse Structures,” that were used to compost
materials. (Board’s Findings of Fact (F.F.) Nos. 1-4, 19-21.)
From 2008, when the Board first issued Appellants a permit, to 2014,
Appellants conducted a manure composting operation on the Property. (F.F. Nos. 29-
30.) In March 2014, the Pennsylvania Department of Environmental Protection
(Department) issued Appellants a “General Permit for Processing/Beneficial Use of
Residual Waste . . . authorizing composting of packaged pre[-]consumer food prior to
the removal of packaging.” (F.F. No. 27.)1
On December 22, 2014, the Township’s Zoning Officer, Dennis Shenk,
issued Appellants an updated/corrected Zoning Certificate and Use and Compliance
Permit (Use Permit). The Use Permit authorized the three Greenhouse Structures to
be used “solely for agricultural use in accordance with the definition of ‘normal
agricultural operation’ in [s]ection 2 of the Act of June 10, 1982 (P.L. 454, No. 133),
commonly referred to as the Right to Farm Act, 3 P.S. [§]952, when conducted in
accordance with Pennsylvania law, including [what is commonly referred to as] the
Nutrient Management [Act (NMA)[2]] and [the Department’s] regulations.”
1
With respect to this permit, in May 2014, the Department conducted an inspection and
found that Appellants committed multiple violations of the Solid Waste Management Act (SWMA),
Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003. Following numerous
complaints from neighbors and a notice of violations, the Department and Appellants engaged in
litigation that eventually resulted in a consent decree “that established additional conditions and
time for Appellants to terminate composting operations and included a provision that all solid waste
and compost is to be removed from [the Property] by December 31st, 2017.” Department of
Environmental Protection v. Green ‘N Grow Composting, LLC, __ A.3d __, __ (Pa. Cmwlth., No.
367 C.D. 2018, filed December 31, 2018), slip op. at 3. After Appellants failed to comply, the
Department filed a petition to enforce the consent decree and the trial court granted the petition,
which this Court recently affirmed on further appeal. See id., slip op. at 6-12.
2
3 Pa.C.S. §§501-522.
2
(Reproduced Record (R.R.) at 29-30;3 F.F. No. 22.) Notably, in the Agricultural
District, “agriculture” is listed as a permitted use, and the Zoning Ordinance of
Martic Township (Ordinance) defines the term “agriculture” as being synonymous
with the term “normal agricultural operation” in section 2 of the Right to Farm Act.
(Trial court op. at 24.)
By Enforcement Notice dated December 8, 2016, the Zoning Officer
cited Appellants for violating sections 402.B, 703.A, and 704.A of the Ordinance.
(F.F. No. 5.) The Zoning Officer alleged that Appellants had used the Property and
Greenhouse Structures in a manner beyond that which was permitted in the Use
Permit by bringing “discarded packaged food and beverages, including plastic,
cardboard, Styrofoam and aluminum packaging, dissolved air flotation (DAF) sludge
from processing operations,” and “other items classified as residual waste” by the
Department, and processing these materials through, inter alia, a composting
operation. (R.R. at 33.) The Zoning Officer determined that, under the Ordinance,
such a use was not permitted in the Agricultural District; a zoning permit was
required to change the use authorized in the Use Permit; and it was unlawful to utilize
land for which a zoning permit is required and no certificate of use and occupancy
had been issued. The Zoning Officer further determined that three “hoop structures”
were installed on the Property to facilitate and effectuate the unlawful composting
operation and that this constituted a violation of the Ordinance as well. (R.R. at 32-
34.)4
3
Appellants’ reproduced record does not include the lower case “a” as required by
Pa.R.A.P. 2173.
4
In Green ‘N Grow Composting, this Court affirmed the trial court’s determination that
materials located within the hoop structures, such as plastic bottles, metal cans, furniture, and food
packaging material constituted “solid waste” as that term is defined under the SWMA.
3
Appellants appealed the Enforcement Notice to the Board, which
conducted a hearing where, inter alia, the Zoning Officer, Lehman, and an expert
witness for Appellants testified and various exhibits were entered into the record.
Following the conclusion of the hearing on June 8, 2017, the Board issued a decision
on September 14, 2017, denying Appellants’ appeal. (Trial court op. at 2-3.)
In pertinent part, the Board found as follows. Appellants composted
waxed cardboard, tough plastics, tin, aluminum, Styrofoam, and packaged foods,
including meat products and hot dogs, on the Property inside the Greenhouse
Structures. Appellants also composted materials and placed them in the windrows
outside the Greenhouse Structures, i.e., the hoop structures, including cans, bottles,
plastic buckets, sheets of plastics, and utensils. Described by Lehman as
“slaughterhouse waste,” poultry DAF is a residual waste from poultry processing
operations and consists of “anything that comes from a poultry processing plant.”
(F.F. Nos. 49-50.) Appellants incorporated poultry DAF into the hoop structures for
composting and also outside the Greenhouse structures. The poultry DAF rotted and
produced odors, and neighboring property owners experienced significant adverse
impacts caused by the foul odors and air pollution. (F.F. Nos. 33-37, 51-52, 77-78.)
The Board further found that crops were not grown on the Property or in
the Greenhouse Structures; no livestock was raised or present on the Property; no
timber was grown or harvested on the Property; nothing was produced on the
Property that could be intended for human consumption; and none of the materials
composted on the Property were grown on or originated from the Property.
Regarding the compost manufactured on the Property, a slight portion of it was
applied to a small area on the Property, approximately one-half of an acre, at a
location where crops were not grown. The remainder of the compost manufactured
4
on the Property was either removed from the Property, stored on the Property, or sold
to third parties. (F.F. Nos. 38-45; Trial court op. at 28.) Notably, Appellants’ expert
witness agreed that if there were a five-acre tract “where items are brought to be
composted,” like the composting operation at the Property, and the items were
“composted and sold with nothing grown on the tract,” then “such operation is not a
normal agricultural operation.” (F.F. No. 66.)
In addition, the Board found that Appellants “presented no credible
evidence or testimony that the Township was aware, prior to 2016, that [they were
not] composting principally manure.” (F.F. No. 67.) In other words, although the
Township was aware in 2014 that Appellants were using the Greenhouse Structures
for the composting of manure, the Township and the Zoning Officer were unaware
that Appellants were composting packaged food and other residual waste materials.
(F.F. Nos. 29-30, 61, 67; Trial court op. at 10.)
Based on these facts and others, the Board determined that the evidence
demonstrated that Appellants composted and processed residual waste on the
Property and concluded that this conduct was not a “normal agricultural operation”
under the Right to Farm Act and, therefore, was impermissible under the Use Permit
and the Ordinance. For support, the Board cited Tinicum Township v. Nowicki, 99
A.3d 586 (Pa. Cmwlth. 2014), and Clout, Inc. v. Clinton County Zoning Hearing
Board, 657 A.2d 111 (Pa. Cmwlth. 1995). In those cases, this Court generally
concluded that when materials are transported to a property, and do not come from
the property itself, and are then processed into a new or different material, including
compost, the new or different material must be used to benefit the property itself, as
opposed to being transported or used off-site, in order to qualify as a “normal
5
agricultural operation” for purposes of section 2 of the Right to Farm Act. (Board’s
Conclusions of Law (COL) Nos. 6-11.)
In its decision, the Board also recognized that the Department issued
Appellants a permit in March 2014 and authorized the use of food processing
residuals. However, the Board determined that the Department’s permit did not
supersede or otherwise alter the definition of “agriculture” in the Ordinance as a land
use or its designation as being synonymous with the definition of “normal agricultural
operation” in section 2 of the Right to Farm Act. (COL No. 13.) As such, the Board
concluded that the “alteration of [Appellants’ operation] from composting solely
manure and agriculturally[-]generated waste to processing pre-consumer food waste,
DAF, and residual waste was a change in the use of the [] Property requiring a zoning
permit.” (COL No. 25.) The Board similarly concluded that permits were necessary
for Appellants to erect or install new structures in connection with the changed use.
Because Appellants failed to obtain such permits, the Board concluded that they
violated sections 402.B, 703.A, and 704.A of the Ordinance. (COL Nos. 21-24.)
As a final matter, the Board noted that Appellants did not request a
variance and determined that they failed to meet the requirements for a variance by
estoppel due primarily to the fact that they did not act in good faith. (COL Nos. 28-
29.)
On appeal to the trial court, Appellants contended that the Board erred
because Appellants (1) engaged in composting that constituted a “normal agricultural
operation” that was protected and permitted as a matter of right by the Right to Farm
Act and the act commonly referred to as the Agricultural Communities and Rural
Environmental Act;5 (2) obtained a vested right in previous permits issued by the
5
3 Pa.C.S. §§311-318.
6
Township; (3) established the criteria necessary for a variance by estoppel; and/or (4)
conducted the composting operation in accordance with the NMA and the SWMA,
which preempted the conflicting provisions and requirements of the Ordinance.
(Trial court op. at 22-23.)
In a thorough and commendable fashion, the trial court rejected these
contentions. First, the trial court concluded that Appellants’ composting operation
was not a “normal agricultural operation” under the Ordinance and the Right to Farm
Act. The trial court determined that “the fact that compost [was] used in agriculture
does not make the manufacture of compost a normal agricultural operation” and
noted that, “[w]hile undisputedly fertilizer can be used and applied in an agricultural
setting to enhance crop yields or growth, this does not transform what is otherwise
clearly a manufacturing process into an agricultural one.” (Trial court op. at 30-31.)
The trial court also discounted Appellants’ argument that the Department’s permit
authorized it to conduct its composting, reasoning that the method and manner used
to compost failed to meet the operational requirements in Chapter 8 of the
Department’s Food Processing Residual Management Manual for food processing
waste and residuals. (Trial court op. at 32-34.) Echoing the reasoning of the Board,
and citing case law from other states as additional support for its conclusion, the trial
court further concluded that the manufacturing of compost was not a “normal
agricultural operation” because “the raw materials used to create the compost were
not produced on the Property,” “but [were] instead brought in from outside sources,”
and the “resultant compost [was] created entirely for use by outside entities, and not
for farming operations (the production of livestock, crops or agricultural commodities
on the Property).” (Trial court op. at 34.)
7
Next, the trial court dismissed Appellants’ contention that they were
entitled to a variance by estoppel or possessed a vested right to continue their
composting operation. In doing so, the trial court determined that Appellants did not
demonstrate the elements for a variance by estoppel because Appellants “did not act
in good faith,” “violated the [] Ordinance by failing to get the necessary zoning
permits,” even though they were aware that such permits were needed, and “failed to
prove that [they] made substantial expenditures in reliance upon the belief that the
use was permitted.” (Trial court op. at 36-38.) The trial court further concluded that
Appellants did not have a vested right as a result of the Use Permit, finding that
Appellants failed to exercise due diligence in attempting to comply with the
Ordinance. Additionally, the trial court found that “the Zoning Officer was under the
mistaken belief that [Appellants were] still just composting chicken manure” and
explained that “a permit issued under a mistake of fact or law confers no vested right
or privilege on the person to whom the permit has been issued, and may be revoked at
any time.” (Trial court op. at 39-40.)
Finally, the trial court concluded that conflict preemption did not apply
because the NMA and the SWMA were entirely consistent and compatible with the
Ordinance. According to the trial court, the General Assembly’s regulation of
“nutrients” and “sewer sludge” in the NMA and the SWMA “did not preempt
regulation of the manufacture of nutrients such as compost.” (Trial court op. at 42.)
For these reasons, among others, the trial court denied Appellants’
statutory appeal. Appellants then filed an appeal to this Court.6
6
Where, as here, the trial court takes no additional evidence, our scope of review is limited
to determining whether the Board committed an abuse of discretion or an error of law. Hamilton
Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth.
2010).
8
Discussion
In their brief to this Court, Appellants have abandoned most of the legal
arguments and theories that they raised before the tribunals below and instead have
advanced contentions that they did not present for consideration to the tribunals
below. Neither the issues that Appellants previously raised, but have not briefed to
this Court, nor the issues that they currently seek to raise for the first time in this
Court, are cognizable on appellate review. Rather, they are waived. See Kohl v. New
Sewickley Township Zoning Hearing Board, 108 A.3d 961, 963 n.3 (Pa. Cmwlth.
2015) (“Because Intervenors do not advance such arguments, they are waived, and
we will not consider them sua sponte as a basis for reversal.”); Morrell v. Zoning
Hearing Board of the Borough of Shrewsbury, 17 A.3d 972, 976 n.6 (Pa. Cmwlth.
2011) (“Before the Board and the trial court, Objectors also asserted [an issue]. . . .
However, Objectors have not raised this issue before our Court and, therefore, have
waived it.”); Magyar v. Zoning Hearing Board of Lewis Township, 885 A.2d 123,
128 (Pa. Cmwlth. 2005) (“By failing to raise this issue before the trial court,
Objectors waived it.”).
Moreover, in the argument section of their brief, aside from failing to
include legal analysis, Appellants have not provided one single citation or reference
to either the Ordinance, a statute, an administrative regulation, or a judicial opinion.
See Browne v. Commonwealth, 843 A.2d 429, 435 (Pa. Cmwlth. 2004) (“At the
appellate level, a party’s failure to include analysis and relevant authority results in
waiver.”). They also have not specified a factual finding that the Board made that
was in error or lacked support in the record. See Munski v. Unemployment
9
Compensation Board of Review, 29 A.3d 133, 137 (Pa. Cmwlth. 2011)
(“Unchallenged findings are conclusive on appeal.”); see also American Rock
Mechanics, Inc. v. Workers’ Compensation Appeal Board (Bik and Lehigh Concrete
Technologies), 881 A.2d 54, 56 (Pa. Cmwlth. 2005) (concluding that where a party
cursorily contests findings of fact, but “does not specify which findings are
unsupported by substantial evidence,” a challenge to the findings “is waived”).
Overall, Appellants’ arguments are woefully inadequate and undeveloped for this
Court to conduct meaningful review. Consequently, the issues that Appellants assert
in their appellate brief are waived on this basis as well. See Ruiz v. Unemployment
Compensation Board of Review, 911 A.2d 600, 605 n.5 (Pa. Cmwlth. 2006) (“When
issues are not properly raised and developed in a brief, or when the brief is inadequate
or defective because an issue is not adequately developed, this Court will not consider
the merits of the issue.”).
Notwithstanding waiver, Appellants contend that the Zoning Officer
erred in issuing the Enforcement Notice for three reasons. First, the Zoning Officer
testified that, following the receipt of a complaint, he visited the Property in June
2016; however, a Township Supervisor stated that the Township was not made aware
of any complaints until September 2016. Second, the Zoning Officer testified that
during the June 2016 visit, he observed food-packaged waste for the first time;
however, when asked if he was aware that Appellants were “composting manure,
crop residue, and pre-packaged consumer food” on April 8, 2014, the Zoning Officer
testified, “Yeah. Probably did. [Lehman] was composting something. I know that.”
(R.R. at 67.) Third, the Zoning Officer essentially acquiesced to the composting
operation because he completed a written form in connection with Appellants’
10
application to the Department for the General Permit, did not state any objection, and
issued the Use Permit months later.
Although Appellants claim, based on the above assertions, that the
Zoning Officer proffered “contradictory testimony,” (Appellants’ brief at 8), such an
argument is meritless. “The Board, as fact finder, is the ultimate judge of credibility
and resolves all conflicts of evidence.” In re Appeal of Brickstone Realty
Corporation, 789 A.2d 333, 339 (Pa. Cmwlth. 2001). Because questions of
credibility and evidentiary weight are solely within the province of the Board as fact
finder, this Court cannot reweigh the evidence and find that the Zoning Officer
engaged in some sort of impropriety or was aware that Appellants were composting
residual waste in 2014. See Broussard v. Zoning Board of Adjustment of City of
Pittsburgh, 831 A.2d 764, 772 (Pa. Cmwlth. 2003) (“To hold otherwise, this Court
would be required to reweigh the evidence presented at the hearing . . . . This we will
not do.”). Here, the Board found that there was no credible evidence or testimony
that the Township was actually aware, prior to 2016, that Appellants were
composting material other than manure. (F.F. No. 67.) This finding is amply
supported by the testimony of the Enforcement Officer, who stated that he did not
observe residual waste on the Property until June 2016. (R.R. at 47-51; Notes of
Testimony (N.T.) at 55-56.)
With respect to the Zoning Officer’s testimony about the application to
the Department for the General Permit, this testimony, at best, merely confirmed that
the Board did not provide Appellants with zoning approval to conduct the specific
composting operation that Appellants requested to perform in their application to the
Department. (R.R. at 57-63.) Appellants do not cite where in the record the
application is located (assuming it was introduced into the record), and do not cite
11
any legal authority that would sustain the notion that the Township or Board forfeited
the right to apply and enforce the Ordinance based on the Zoning Officer’s
comments/lack of comments on the application. “It is not this Court’s function or
duty to become an advocate for [Appellants],” and it is Appellants who have “the
burden of establishing [their] entitlement to relief by showing that the ruling of the
trial court is erroneous under the evidence or the law.” Commonwealth v. Hakala,
900 A.2d 404, 407 (Pa. Super. 2006); see also Grosskopf v. Workmen’s
Compensation Appeal Board (Kuhns Market), 657 A.2d 124, 125 (Pa. Cmwlth. 1995)
(“[I]t is not our role to become the appellant’s counsel. When a brief is inadequate to
present specific issues for review, the court will not consider the merits of the case.”).
They have not done so.
Appellants also contend that “[n]owhere in the updated [Use Permit] was
there any statement concerning any compliance issues or non-compliance” and assert
that “the Township falsely alleged that the use of the [P]roperty had changed.”
(Appellants’ brief at 11.) However, these single-sentence statements are isolated and
cursory, and Appellants’ “failure to adequately develop [their] arguments or support
[their] bald assertions with sufficient citation to legal authority impedes meaningful
judicial review of [their] claims.” Commonwealth v. Rompilla, 983 A.2d 1207, 1210
(Pa. 2009). Again, it is not the role of this Court to develop an appellant’s argument
where the brief provides perfunctory legal discussion; to the contrary, these issues are
simply not reviewable on appeal. See Commonwealth v. Johnson, 985 A.2d 915, 925
(Pa. 2009) (concluding that the appellant’s “single-sentence ‘arguments’ for issues
three and four” lacked development and adequate discussion and, thus, were “wholly
inadequate to preserve an issue for appellate review”). Therefore, Appellants have
12
failed to provide this Court with any argument that could serve as a basis upon which
to grant them relief.
In essence, Appellants’ arguments contradict—or at the very least,
assume away—the Board’s factual findings and legal conclusions and do nothing
more than urge this Court to adopt their position. However, Appellants’ arguments in
support of their position are markedly deficient and do not establish that the Board, or
the trial court, committed an error of law or an abuse of discretion.
Accordingly, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Green ‘N Grow Composting, LLC :
and Stephen R. Lehman, :
Appellants :
: No. 1002 C.D. 2018
v. :
:
Martic Township :
ORDER
AND NOW, this 3rd day of May, 2019, the June 19, 2018 order of the
Lancaster County Court of Common Pleas is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge