R.B. McNew v. E. Marlborough Twp. & E. Marlborough Twp. Bd. of Supers. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R. Bruce McNew, :
Petitioner :
:
v. :
:
East Marlborough Township and :
East Marlborough Township :
Board of Supervisors, : No. 29 M.D. 2022
Respondents : Submitted: April 3, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: April 26, 2023
Before this Court are East Marlborough Township’s (Township) and
East Marlborough Township Board of Supervisors’ (Board) (collectively,
Respondents) preliminary objections (Preliminary Objections) to R. Bruce
McNew’s (McNew) petition for review filed in this Court’s original jurisdiction
seeking to invalidate and/or enjoin the enforcement of Section 1821 of the East
Marlborough Township Zoning Ordinance of 2019 (Ordinance),1 relating to local
forestry and timber harvesting (Petition). After review, this Court sustains the
Preliminary Objections in part and overrules them in part.
Background2
McNew owns approximately 20 acres of land located at 921 Wawaset
Road, Kennett Square, in the Township in Chester County, Pennsylvania (Property).
1
The Township significantly amended and/or added to Section 1821 of the Ordinance in
2019.
2
The facts are as McNew alleged in the Petition.
See Petition ¶ 1. Forestry Services Corporation, Inc. (FSC) purchased the right to
conduct timbering activities on the Property. See Petition ¶ 5. In accordance with
the Pennsylvania Department of Environmental Protection’s (DEP) Regulations,
locally administered by the Chester County Conservation District (CCCD), FSC
prepared an Erosion & Sedimentation Plan (E&S Plan) and, on September 18, 2020,
submitted the E&S Plan to the Township with an application on McNew’s behalf for
a zoning permit to allow timbering at the Property (Application).3 See Petition ¶ 6;
see also Petition Ex. A.
By September 25, 2020 letter, the Township’s Zoning Officer, Charles
Shock (Zoning Officer), notified FSC, inter alia, that despite oversight and
permitting by the CCCD and DEP, the Application must also comply with Section
1821.E of the Ordinance. See Petition ¶¶ 8-9; see also Petition Ex. B. The Zoning
Officer warned FSC that, pursuant to Section 1821.D.2 of the Ordinance, FSC had
to file the Application at least 45 days before commencing timber harvesting
operations, and if the Application was complete and met the Ordinance’s
requirements, the Township had 30 days to issue a permit, so no timber harvesting
could take place at the Property before November 6, 2020. See Petition ¶¶ 10-11.
By October 9, 2020 letter, the Zoning Officer denied the Application
for the following reasons:
1. [Ordinance] Section 1821.D.1.[] [r]equires an applicant
to provide [a] written agreement to comply with the
regulations established in [] Ordinance Section 1821. No
such agreement was provided by [FSC].
2. [Ordinance] Section 1821.E.1.[] [r]equires an applicant
to submit a Timber Harvesting Plan, signed by a
Professional Forester. [FSC] has not submitted a Timber
Harvesting Plan signed by [FSC], [McNew,] or a
3
McNew did not include the E&S Plan or the Application with the Petition.
2
Professional Forester. Additionally, [FSC’s] narrative and
mapping are vague.
3. [Ordinance] Section 1821.E.1.b.[] [r]equires that
feature maps are to be drawn to scale. [FSC] submitted
only website-based documents, which do not appear to be
drawn to scale, nor detailed in nature.
4. [Ordinance] Section 1821.E.1.b.i., ii., iii., and iv.[]
[r]equires an existing features map, drawn to scale,
containing a complete legend of all symbols used on the
map. [FSC] has not provided a suitable existing features
map. Rather, the purported Soil Map, Site Map, and
Topographic Map are website-based documents, marked
up in unintelligible fashion. The provided maps do not
provide clear descriptions, locations or details as to the
proposed Timber Harvesting activities. Additionally, []
Ordinance Section 1821.E.1.b.iv[.] requires that the
topographical survey of the site and immediate
surrounding areas depicting topographic features be
prepared by a registered surveyor or registered engineer,
including a boundary line survey, among other unfulfilled
express requirements.
5. [Ordinance] Section 1821.E, 1.c.[] [r]equires a logging
plan for the proposed Timber Harvesting Operation, which
is to include items listed in Subsections i., ii., iii., iv., v.,
and vi. [FSC] has not provided a[n Ordinance]-compliant
logging plan.
6. [Ordinance] Section 1821.E.1.d.[] [a]llows an applicant
to combine the requisite existing features plan with the
requisite logging plan, provided all required information
for each plan is clearly shown. [FSC] can address several
Application deficiencies in utilizing this provision’s
allowance.
7. [Ordinance] Section 1821.E.2.[] [r]equires a Plan for
Forest Regeneration. [FSC] has not submitted a Plan for
Forest Regeneration. It is assumed, given the nature of the
Application, that the Timber Harvesting is not proposed as
a Conversion to Agricultural Activity, as otherwise
described within [] Ordinance Section 1821 [(Forestry and
Timber Harvesting)] and covered under [the erosion and
sediment control provisions in DEP’s Regulations, 25 Pa.
Code §§ 102.1-102.51]. The failure to provide a Plan for
3
Forest Regeneration results in non-compliance with a
multitude of [Ordinance] Section 1821 requirements,
including, [Ordinance] Section 1821.E.2.a.i., ii., iii., iv.,
and v., as well as [Ordinance] Section 1821.E.2.b.i. and ii.
8. [Ordinance] Section 1821.F.[] [s]ets forth requirements
applicable to all Timber Harvesting applicants. [FSC] has
failed to comply with requirements of [Ordinance] Section
1821.F. Until additional information, documentation, and
Plans are provided (as outlined above), the Township
cannot adequately assess compliance with [Ordinance]
Section 1821.F.
At this time, given the above-identified Application
deficiencies, the Township cannot issue the requested
timber harvesting zoning permit. Until required,
supplemental information and documentation is provided
to the Township for further review, the timber harvesting
zoning permit request is hereby denied.
Petition Ex. C at 2-3; see also Petition ¶ 12.
McNew alleges that “[t]he Zoning Officer’s denial, and the reasons
stated therefor, advance a regulatory scheme by the Township which is intended to
duplicate, impede and frustrate the existing comprehensive statewide regulations
governing timber harvesting activities[,]” Petition ¶ 13, specifically, Section 603(f)
of the Pennsylvania Municipalities Planning Code (MPC),4 53 P.S. § 10603(f)
(which limits a municipality’s authority to regulate forestry activities including
timber harvesting); Sections 312 and 313 of Chapter 3 of the Agriculture Code
commonly referred to as the Agriculture Communities and Rural Environment Act
(ACRE),5 3 Pa.C.S. §§ 312, 313 (which prohibits a municipality from adopting
and/or enforcing local zoning regulations prohibited or preempted by state law); and
Sections 2 and 3 of what is known as the Right to Farm Act (RTFA),6 3 P.S. §§ 952,
4
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
5
3 Pa.C.S. §§ 101-11108. ACRE was enacted and was immediately effective on July 6,
2005.
6
Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§ 951-958.
4
953 (which precludes a municipality from regulating normal agricultural operations,
including forestry and forestry products). See Petition ¶¶ 15-18, 32-38.
Notwithstanding, McNew did not appeal from the Zoning Officer’s denial, nor did
he supplement the Application. See Prelim. Objs. ¶¶ 7-8; see also Answer to Prelim.
Objs. ¶¶ 7-8.
On October 26, 2020, McNew’s counsel submitted an ACRE review
request to the Commonwealth of Pennsylvania Office of Attorney General (OAG)
seeking a determination of whether the subject Ordinance provisions violated ACRE
and constituted an unauthorized local ordinance and unlawfully restricted timber
harvesting at the Property. See Petition ¶ 19; see also Petition Ex. D. On November
4, 2020, the OAG responded to McNew and the Township, recommending that the
Township enact Pennsylvania State University School of Agriculture’s September
2019 model ordinance entitled Forest Management and Timber Harvesting in
Pennsylvania (PSU Model). See Petition ¶¶ 20-21; see also Petition Ex. E.
By January 11, 2021 letter, the Township responded to the OAG’s
recommendation, stating that it had amended its timber harvesting ordinance in 2019
based in large part on the Brandywine Conservancy’s model timber harvesting
ordinance (Brandywine Model); reviewed each of McNew’s Ordinance challenges
and declared them baseless; and concluded that amending the Ordinance to conform
to PSU’s Model was unwarranted. See Petition ¶ 23; see also Petition Ex. F.
On October 1, 2021, the OAG issued its comprehensive review of the
Ordinance, see Petition ¶ 24, therein asserting that while the Brandywine Model was
a good template, “it has flaws[,]” and the PSU Model “is the gold standard.” Petition
Ex. G at 1. The OAG offered to work with the parties to determine how McNew
could proceed with timber harvesting at the Property and how the OAG could assist
the Township in bringing the Ordinance into compliance with state law. See Petition
Ex. G. The OAG further declared: (1) although the Township may require permits
5
and charge fees to secure them, the MPC prohibits the Township from assessing fees
to cover the Township’s engineering and technical consultant costs; (2) to the extent
that the Ordinance’s site map, logging plans, and E&S [Plan] best management
practices (BMPs) requirements are not duplicative of the state-mandated E&S Plan,
they are permissible; (3) because Pennsylvania’s Forest Stewardship Program is a
voluntary program, the Township cannot make a Forest Stewardship Plan a
requirement for securing a timber harvesting permit; (4) although the Ordinance
references regeneration, pursuant to the PSU Model, the Township should seek to
achieve reforestation; (5) blanket steep slope forestry activity restrictions violate the
MPC because it conflicts with BMPs in the field of forestry, and both an E&S Plan
and timber harvesting plan would address steep slope harvesting; (6) blanket
prohibitions on timber harvesting within floodways and wetlands or riparian buffer
zones conflict with DEP’s erosion and sediment control and waterway management
regulatory schemes, which allow timber harvesting near water sources using BMPs
that take a property’s unique conditions into consideration; and (7) ordinances
attempting to place uniform percentage standards on forestry activities are
unreasonable where timber harvesting is a well-recognized forest management
practice that can renew and improve a forest. See Petition ¶ 25; see also Petition Ex.
G at 2-5. In addition, the OAG inquired of McNew and the Township:
Can you let the OAG know three things: 1) what are your
thoughts on the information [the OAG] provided . . . ; 2)
would you like to use the OAG’s “good offices” to see if
there is a way to have the timber harvest proceed; and 3)
is [the Township] willing to work with the OAG to
produce a timber harvesting ordinance that complies with
state law?
Petition Ex. G at 5. The OAG declared: “Regardless of whether the parties want to
engage [in discussions for a short-term permitting solution], the OAG and [the
6
Township] will work together on the longer issue of making sure the [Ordinance]
complies with state law.” Id. at 2.
By November 15, 2021 letter, the Township notified the OAG that it
was committed to working with McNew and the OAG, it retained Michael G.
Jacobson, Ph.D., from PSU, to review the Ordinance’s provisions, and it would offer
a comprehensive response to the OAG, which it did on December 15, 2021. 7 See
Petition ¶¶ 26-27; see also Petition Exs. H, I.
In its December 15, 2021 letter, the Township explained that, before
FSC filed the Application, the Township had approved McNew’s application to
change his lot lines to accommodate residential development at the Property that
would result in substantial elimination of existing woodlands to be replaced by
driveways and building areas. See Petition Ex. I at 2 n.1. The Township declared
its willingness to make certain changes to the Ordinance and to discuss how McNew
may proceed; however, it took issue with certain of the OAG’s interpretations,
remained steadfast regarding its duty to preserve its natural resources, found
McNew’s complaints inextricably intertwined with the Application’s significant
deficiencies, and felt the Ordinance should be fully discussed and analyzed before
the Township should have to disregard its timber harvesting requirements in
McNew’s favor. See Petition Ex. I. Despite the Township’s stated willingness to
do so, it has not revised any portions of Section 1821 of the Ordinance, nor adopted
the PSU Model as the OAG recommended, and the Township continues to prohibit
McNew from timbering at the Property. See Petition ¶¶ 29-31, 37-38; see also
Answer to Prelim. Objs. ¶¶ 14-15.
On January 24, 2022, McNew filed the Petition in this Court, alleging
therein that the Township continues to prohibit McNew from enjoying his timber
7
McNew does not state in the Petition whether he responded to the OAG’s queries.
7
harvesting rights in violation of ACRE, the Township has offered no legitimate
explanation as to why it has disregarded the OAG’s recommendation to adopt the
PSU Model, and the Township’s reliance on Section 1821 of the Ordinance to deny
the Application is unreasonable, invalid, and/or preempted by state regulations as
the OAG addressed. See Petition ¶¶ 29-38. McNew asks this Court to invalidate
Section 1821 of the Ordinance and enjoin its enforcement, direct that McNew may
proceed with timber harvesting on the Property consistent with the Application, and
award McNew attorney’s fees and costs pursuant to Section 317(1) of ACRE, 3
Pa.C.S. § 317(1). See Petition ¶ 39; see also Petition Ad Damnum Clause.
On March 4, 2022, Respondents filed the Preliminary Objections and
their supporting brief, therein arguing that McNew failed to exercise or exhaust a
statutory remedy (First Preliminary Objection); failed to state a valid legal claim
under ACRE (Second Preliminary Objection) (demurrer); failed to state a valid legal
claim for injunctive relief directing issuance of a timber harvesting permit (Third
Preliminary Objection) (demurrer); and failed to state a valid legal claim because the
matter is not ripe for disposition (Fourth Preliminary Objection) (demurrer). On
April 4, 2022, McNew filed an answer opposing the Preliminary Objections and his
brief in support thereof.
Discussion
Initially, Pennsylvania Rule of Appellate Procedure 1516(b) authorizes
the filing of preliminary objections to an original jurisdiction petition for review.
See Pa.R.A.P. 1516(b).
In ruling on preliminary objections, [this Court] must
accept as true all well-pleaded material allegations in the
petition for review, as well as all inferences reasonably
deduced therefrom. The Court need not accept as true
conclusions of law, unwarranted inferences from facts,
8
argumentative allegations, or expressions of opinion. In
order to sustain preliminary objections, it must appear with
certainty that the law will not permit recovery, and any
doubt should be resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review] and all
inferences reasonably deducible therefrom. It tests the
legal sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the [petition for review].
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
Nonetheless, “[c]ourts reviewing preliminary objections may not only consider the
facts pled in the [petition for review], but also any documents or exhibits attached to
it.” Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. Cmwlth. 2019) (quoting
Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014)).
First Preliminary Objection
In their First Preliminary Objection, Respondents argue that McNew
failed to exercise or exhaust a statutory remedy. Specifically, Respondents claim
that McNew is attempting to circumvent the MPC’s existing statutory appeal process
and use ACRE’s statutory challenge to secure permission to proceed with his timber
harvesting plans that do not comply with the Ordinance provisions not subject to the
OAG’s ACRE review. Respondents assert, inter alia, that without a forest
regeneration plan, “there is no assurance that [McNew] is engaging in silviculture[8]
- rather than land clearing for development - and no showing that ACRE applies[,]”
and such information would allow the Township to fulfill its obligation as trustee to
8
“‘Silviculture’ is defined as ‘a phase of forestry that deals with the establishment,
development, reproduction, and care of forest trees.’ Webster’s Third New Int[’]l Dictionary 2120
(2002).” Tinicum Twp. v. Nowicki, 99 A.3d 586, 590 n.8 (Pa. Cmwlth. 2014).
9
determine any impact on the public natural resources under article 1, section 27 of
the Pennsylvania Constitution.9
Section 615 of the MPC directs that “[a]ll appeals from decisions of the
zoning officer shall be taken in the manner set forth in [the MPC].”10 53 P.S. §
10615. Section 909.1(a) of the MPC11 states, in relevant part:
The zoning hearing board shall have exclusive jurisdiction
to hear and render final adjudications in the following
matters:
(1) Substantive challenges to the validity of any land use
ordinance, except those brought before the governing
body pursuant to [S]ections 609.1[12] and 916.1(a)(2) [of
the MPC, 53 P.S. §§ 10609.1 (relating to curative
amendments), 10916(a)(2) (relating to ordinance
validity)].
....
(3) Appeals from the determination of the zoning officer,
including, but not limited to, the granting or denial of any
permit, or failure to act on the application therefor . . . .
53 P.S. § 10909.1(a). Section 916.1(a) of the MPC13 specifies:
9
Article 1, section 27 of the Pennsylvania Constitution declares:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of the
environment. Pennsylvania’s public natural resources are the
common property of all the people, including generations yet to
come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
PA. CONST. art. I, § 27.
10
This Court acknowledges that Section 910.1 of the MPC, added by Section 87 of the Act
of December 21, 1988, P.L. 1329, provides: “Nothing contained in [A]rticle [IX of the MPC] shall
be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant
to the Pennsylvania Rules of Civil Procedure [] 1091[, Pa.R.Civ.P. 1091] (relating to action in
mandamus).” 53 P.S. § 10910.1.
11
Added by Section 87 of the Act of December 21, 1988, P.L. 1329.
12
Added by Section 10 of the Act of June 1, 1972, P.L. 333.
13
Added by Section 99 of the Act of December 21, 1988, P.L. 1329.
10
A landowner who, on substantive grounds, desires to
challenge the validity of an ordinance or map or any
provision thereof which prohibits or restricts the use or
development of land in which he has an interest shall
submit the challenge either:
(1) to the zoning hearing board under [S]ection
909.1(a) [of the MPC]; or
(2) to the governing body under [S]ection
909.1(b)(4), [of the MPC] together with a request
for a curative amendment under [S]ection 609.1
[of the MPC, 53 P.S. § 10609.1].
53 P.S. § 10916.1(a).
Section 1002-A of the MPC14 further provides:
(a) All appeals from all land use decisions rendered
pursuant to Article IX [of the MPC] shall be taken to the
court of common pleas of the judicial district wherein the
land is located and shall be filed within 30 days after entry
of the decision . . . .
(b) Challenges to the validity of a land use ordinance
raising procedural questions . . . shall be raised by appeal
taken directly to the court of common pleas of the judicial
district in which the municipality adopting the ordinance
is located in accordance with [Section 5571.1 of the
Judicial Code,] 42 Pa.C.S. § 5571.1 (relating to appeals
from ordinances, resolutions, maps, etc.).
53 P.S. § 11002-A. Thus, the MPC specifies that appeals from zoning officer permit
denials and ordinance validity challenges shall be filed with the zoning hearing
board, and appeals from zoning hearing board decisions are to be filed in the
common pleas court.
Moreover, “[i]t is well settled that when an adequate administrative
remedy exists, this Court lacks jurisdiction to entertain a suit in either law or
equity.”15 Pa. Indep. Oil & Gas Ass’n v. Dep’t of Env’t Prot., 135 A.3d 1118, 1129
14
Added by Section 101 of the Act of December 21, 1988, P.L. 1329.
15
This Court has declared that, generally,
11
(Pa. Cmwlth. 2015) (quoting Grand Cent. Sanitary Landfill, Inc. v. Dep’t of Env’t
Res., 554 A.2d 182, 184 (Pa. Cmwlth. 1989)). Thus, “where an adequate
administrative process is available, a party may not forgo that process in favor of
seeking judicial relief.” Se. Pa. Transp. Auth. v. City of Phila., 101 A.3d 79, 90 (Pa.
2014).
The doctrine of exhaustion of administrative remedies
requires that a person challenging an administrative
decision must first exhaust all adequate and available
administrative remedies before seeking relief from the
courts. The purposes of this exhaustion requirement are to
prevent premature judicial intervention in the
administrative process and ensure that claims will be
addressed by the body with expertise in the area. Thus,
where the legislature has provided an administrative
procedure to challenge and obtain relief from an agency’s
action, failure to exhaust that remedy bars this Court from
hearing claims for declaratory or injunctive relief with
respect to that agency action.
Propel Charter Sch. v. Dep’t of Educ., 243 A.3d 322, 327 (Pa. Cmwlth. 2020)
(quoting Funk v. Dep’t of Env’t Prot., 71 A.3d 1097, 1101 (Pa. Cmwlth. 2013)
(citations omitted)).
“the mere existence of a remedy does not dispose of the question of
its adequacy; the administrative remedy must be ‘adequate and
complete.’” Feingold [v. Bell of Pa.], 383 A.2d [791,] 794 [(Pa.
1977)] ([quoting] Phila[.] Life Ins[.] Co. v. Commonwealth, . . . 190
A.2d 111, 116 ([Pa.] 1963)). “[A]n administrative remedy is
inadequate if it either: (1) does not allow for adjudication of the
issues raised . . . or (2) allows irreparable harm to occur to the
plaintiffs during the pursuit of the statutory remedy.”
[Commonwealth ex rel.] Nicholas [v. Pa. Lab. Rels. Bd.], 681 A.2d
[157,] 161 [(Pa. 1996)]. A party claiming this exception must make
a “clear showing that the remedy is inadequate.” Commonwealth v.
Eisenberg, . . . 454 A.2d 513, 515 ([Pa.] 1982).
Keystone ReLeaf LLC v. Pa. Dep’t of Health, 186 A.3d 505, 517 (Pa. Cmwlth. 2018).
12
“However, the exhaustion doctrine is neither inflexible nor absolute.
There are narrow circumstances where exhaustion of remedies is not required.”
Keystone ReLeaf LLC v. Pa. Dep’t of Health, 186 A.3d 505, 513 (Pa. Cmwlth. 2018)
(citation omitted). In particular,
“the exhaustion of administrative remedies is not required
where a statutory scheme’s constitutionality or validity is
being challenged.” Giffin v. Chronister, . . . 616 A.2d
1070, 1073 ([Pa. Cmwlth.] 1992). Furthermore, such
exhaustion is not a necessary prerequisite for obtaining
judicial review if “[the challenged administrative]
regulation itself causes actual, present harm” prior to its
enforcement. Concerned Citizens [of Chestnuthill Twp. v.
Dep’t of Env’t Res.], 632 A.2d [1,] 3 [(Pa. Cmwlth. 1993)].
Pocono Manor Invs., LP v. Dep’t of Env’t Prot., 212 A.3d 112, 116 (Pa. Cmwlth.
2019). Here, McNew “is challenging the validity and enforceability of Section 1821
[of the Ordinance] . . .” under ACRE. McNew Br. at 7.
ACRE
governs local regulation of normal agricultural operations
so that such operations are consistent with state policies
and statutes. To that end, [S]ection 313 of ACRE, in
relevant part, provides:
(a) Adoption and enforcement of unauthorized
local ordinances.--A local government unit shall
not adopt nor enforce an unauthorized local
ordinance.
(b) Existing local ordinances.--[ACRE] shall
apply to the enforcement of local ordinances
existing on the effective date of this section and to
the enactment or enforcement of local ordinances
enacted on or after the effective date of this
section.
3 Pa.C.S. § 313.
13
Off. of Att’y Gen. ex rel. Corbett v. Richmond Twp., 917 A.2d 397, 399 (Pa. Cmwlth.
2007). Section 312 of ACRE defines unauthorized local ordinance as
[a]n ordinance enacted or enforced by a local government
unit which does any of the following:
(1) Prohibits or limits a normal agricultural operation
unless the local government unit:
(i) has expressed or implied authority under [s]tate
law to adopt the ordinance; and
(ii) is not prohibited or preempted under [s]tate law
from adopting the ordinance.
(2) Restricts or limits the ownership structure of a normal
agricultural operation.
3 Pa.C.S. § 312. Section 312 of ACRE adopts the following definition of normal
agricultural operation from Section 2 of the RTFA:
The activities, practices, equipment and procedures that
farmers adopt, use or engage . . . in the production,
harvesting and preparation for market or use of
agricultural, agronomic, horticultural, silvicultural and
aquacultural crops and commodities and is:
(1) not less than [10] contiguous acres in area; or
(2) less than [10] contiguous acres in area but has
an anticipated yearly gross income of at least
$10,000[.00].
The term includes new activities, practices, equipment and
procedures consistent with technological development
within the agricultural industry. . . .
3 P.S. § 952; see also 3 Pa.C.S. § 312.
Pursuant to Section 314(a) of ACRE, “[a]n owner or operator of a
normal agricultural operation may request the [OAG] to review a local ordinance
believed to be an unauthorized local ordinance and to consider whether to bring legal
14
action under [S]ection 315(a) [of ACRE] (relating to right of action).” 3 Pa.C.S. §
314(a). Section 315 of ACRE also specifies:
(a) Attorney General action.--The [OAG] may bring an
action against the local government unit in
Commonwealth Court to invalidate the unauthorized local
ordinance or enjoin the enforcement of the unauthorized
local ordinance.[16]
(b) Other party action.--Notwithstanding any provision
of [Chapter 85, Subchapter C of the Judicial Code,] 42
Pa.C.S. [§§ 8541-8564] (relating to actions against local
parties), any person who is aggrieved by the enactment or
enforcement of an unauthorized local ordinance may bring
an action against the local government unit in
Commonwealth Court to invalidate the unauthorized local
ordinance or enjoin the enforcement of the unauthorized
local ordinance.
3 Pa.C.S. § 315.
Although Pennsylvania courts have analyzed OAG original jurisdiction
ACRE actions, the issue of whether a landowner must first exhaust a municipality’s
review process under the MPC before filing an original jurisdiction ACRE action
appears to be one of first impression. However, “[m]unicipalities are creatures of
the state and have no inherent powers of their own. Rather, they possess only such
powers of government as are expressly granted to them and as are necessary to carry
the same into effect.” UGI Utils., Inc. v. City of Lancaster, 125 A.3d 858, 863 (Pa.
Cmwlth. 2015) (quoting Huntley & Huntley, Inc. v. Borough Council of Oakmont,
964 A.2d 855, 862 (Pa. 2009)). The General Assembly generally authorized “[t]he
governing body of each municipality, in accordance with the conditions and
16
The OAG “has the discretion whether to bring an action under [S]ection 315 [of ACRE
(right of action),]” Section 314(b) of ACRE, 3 Pa.C.S. § 314(b), and shall notify the requester of
its decision “[w]ithin 120 days after receiving a request . . . .” Section 314(c) of ACRE, 3 Pa.C.S.
§ 314(c). The Petition does not reflect that McNew received notice from the OAG within 120 days
of his October 26, 2020 request that the OAG intended to file an ACRE violation claim against the
Township.
15
procedures set forth in [the MPC], [to] enact, amend[,] and repeal zoning ordinances
to implement comprehensive plans and to accomplish any of the purposes of [the
MPC].”17 Section 601 of the MPC, 53 P.S. § 10601. Subsequently, the General
Assembly enacted ACRE, which specifically and further limited that authority in
instances involving regulation of normal agricultural operations.18 See 3 Pa.C.S. §
17
Section 105 of the MPC declares, in relevant part:
It is the intent, purpose and scope of [the MPC] . . . to promote the
preservation of this Commonwealth’s natural . . . resources and
prime agricultural land; . . . to ensure that municipalities enact
zoning ordinances that facilitate the present and future economic
viability of existing agricultural operations in this Commonwealth
and do not prevent or impede the owner or operator’s need to change
or expand their operations in the future in order to remain viable; . . .
and to permit municipalities to minimize such problems as may
presently exist or which may be foreseen and wherever the
provisions of [the MPC] promote, encourage, require or authorize
governing bodies to protect, preserve or conserve open land,
consisting of natural resources, forests and woodlands, any actions
taken to protect, preserve or conserve such land shall not be for the
purposes of precluding access for forestry.
53 P.S. § 10105. Section 603(f) of the MPC adds:
Zoning ordinances may not unreasonably restrict forestry activities.
To encourage maintenance and management of forested or wooded
open space and promote the conduct of forestry as a sound and
economically viable use of forested land throughout this
Commonwealth, forestry activities, including, but not limited to,
timber harvesting, shall be a permitted use by right in all zoning
districts in every municipality.
53 P.S. § 10603(f).
18
“Although the Statutory Construction Act [of 1972 (SCA)], 1 Pa.C.S. §§ [1501-1991],
is not expressly applicable to the construction of local ordinances, [Pennsylvania courts] apply the
principles contained therein in interpreting local ordinances. Thus, the rules of statutory
construction are applied to zoning ordinances with equal force and effect.” Metal Green Inc. v.
City of Phila., 266 A.3d 495, 507 (Pa. 2021).
The objective of statutory construction is to determine the
legislature’s intent. [See Section 1921(a) of the SCA,] 1 Pa.C.S. §
1921(a) (“The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General
16
313. This Court has ruled that ACRE is constitutional. See Off. of Att’y Gen., ex
rel. Kelly v. Packer Twp., 49 A.3d 495, 499 (Pa. Cmwlth. 2012) (“[T]he General
Assembly acted constitutionally when it restricted municipalities from adopting
‘unauthorized local ordinances’ that interfere with normal agricultural operations”
under ACRE.).
In addition, Section 761(a)(4) of the Judicial Code declares that the
Commonwealth Court shall have original jurisdiction of all civil actions or
proceedings “[o]riginal jurisdiction of which is vested in the Commonwealth Court
by any statute hereafter enacted.” 42 Pa.C.S. § 761(a)(4). Section 315(b) of ACRE
expressly authorizes a landowner, like McNew, to bring an action in the
Commonwealth Court to invalidate Section 1821 of the Ordinance or enjoin its
enforcement. ACRE does not require a landowner to first avail himself of the permit
denial or ordinance validity challenge appeal process under the MPC before filing
an action pursuant to Section 315(b) of ACRE. Moreover, the Pennsylvania
Supreme Court has ruled that an “[OAG] action pursuant to ACRE does not conflict
with the MPC, and the Commonwealth Court has subject matter jurisdiction over
the challenge to the [o]rdinance pursuant to ACRE and the Judicial Code.” Off. of
Assembly. Every statute shall be construed, if possible, to give
effect to all its provisions.”). Additionally, the language used by the
legislature is the best indication of its intent. [See Section 1921(b)
of the SCA,] 1 Pa.C.S. § 1921(b) (“When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.”). However,
when the terms of a statute are not explicit, various factors may be
considered in ascertaining legislative intent. [See Section 1921(c)
of the SCA,] 1 Pa.C.S. § 1921(c).
Metal Green Inc., 266 A.3d at 507. Section 1933 of the SCA provides that when there is a conflict
between general and special provisions of a statute, “the special provisions shall prevail and shall
be construed as an exception to the general provision, unless the general provision shall be enacted
later and it shall be the manifest intention of the General Assembly that such general provision
shall prevail.” 1 Pa.C.S. § 1933.
17
Att’y Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263, 1271 (Pa. 2009); see also
Packer Twp., 49 A.3d at 500 (“ACRE does not require [a landowner’s normal
agricultural operation] to be affected by [an o]rdinance in order for [the landowner]
to make the request [for the OAG ACRE review].”); Richmond Twp., 917 A.2d at
401 (“[T]he MPC and ACRE do not conflict.”).19
Further, requiring McNew to first comply with the Ordinance to have
the challenged provisions tested under the MPC, and then later having the OAG and
this Court review the lawfulness of those provisions is illogical. This Court
recognizes that the exhaustion doctrine’s purpose is “to prevent premature judicial
intervention in the administrative process and ensure that claims will be addressed
by the body with expertise in the area.” Propel Charter Sch., 243 A.3d at 327
(quoting Funk, 71 A.3d at 1101). However, our Supreme Court has explained that
“[t]he more clearly it appears that the question raised goes directly to the validity of
the statute[,] the less need exists for the agency involved to throw light on the issue
through exercise of its specialized fact-finding function or application of its
administrative expertise.” Borough of Green Tree v. Bd. of Prop. Assessments,
Appeals & Rev. of Allegheny Cnty., 328 A.2d 819, 825 (Pa. 1974). “Here the []
proceedings before the [zoning hearing b]oard would be of little, if any, utility in
determining the [Ordinance’s validity]. Whatever benefit might be derived from
[McNew taking his challenges to the zoning hearing board] would be far outweighed
by the inconvenience, delay[,] and expense involved.” Id. In this instance, the
Township acknowledged that since McNew’s Ordinance challenges are inextricably
intertwined with the Application’s deficiencies, the Ordinance should be fully
19
This Court acknowledges that Locust Township, Packer Township, and Richmond
Township are distinguishable in that they involved review of the OAG’s role in ACRE challenges,
but finds that those cases are nevertheless instructive here.
18
discussed and analyzed before the Township should have to disregard its timber
harvesting requirements in McNew’s favor. See Petition Ex. I at 2, 14.
Based on the foregoing, although McNew has not exhausted his
administrative remedies at the Township’s zoning hearing board and the common
pleas court levels, he pled sufficient facts in the Petition to invoke the ordinance
validity exception to the exhaustion requirement in the form of a challenge under
Section 315(b) of ACRE. Accordingly, Respondents’ First Preliminary Objection
is overruled.
Second Preliminary Objection
In their Second Preliminary Objection, Respondents contend that
McNew failed to state a valid legal claim under ACRE. In particular, Respondents
argue that although McNew asserts that Section 1821 of the Ordinance is prohibited
as unauthorized, invalid, unenforceable, and preempted by state law, the OAG’s
review reflects that some, but not all, of Section 1821 of the Ordinance was
troublesome, so that the Ordinance was not entirely invalid. In addition,
Respondents argue that McNew’s failure to comply with the other Ordinance
provisions that the OAG did not find troublesome precludes the Township from
granting the Application.
McNew filed the Petition pursuant to ACRE for this Court to review
whether Section 1821 of the Ordinance is prohibited or preempted by state law,
including the RTFA and the MPC. Section 315(b) of ACRE does not explicitly
require a landowner to first seek the OAG’s review under Section 314(a) of ACRE
before filing an original jurisdiction action. Moreover, Section 314(a) of ACRE
reflects that “[a]n owner or operator . . . may request the [OAG] to review a local
ordinance . . . .” 3 Pa.C.S. § 314(a) (emphasis added). Therefore, although McNew
requested the OAG’s review under Section 314(a) of ACRE and the OAG
19
responded, McNew was not statutorily prohibited from also filing the instant action.
In addition, this Court has found nothing in ACRE that limits either the OAG or this
Court to determining that Section 1821 of the Ordinance is entirely invalid, and
Respondents do not cite to any authority to support such a claim.
Further, in the Petition, McNew alleged that “[t]he Zoning Officer’s
[d]enial[] and the reasons stated therefor[] advance a regulatory scheme by the
Township which is intended to duplicate[], impede[,] and frustrate the existing
comprehensive statewide regulations governing timber harvesting activities.”
Petition ¶ 13. In its October 1, 2021 review letter, the OAG explained, inter alia,
that the Ordinance’s timber harvesting documentation requirements duplicate,
encroach on, and/or exceed what a landowner must supply in an E&S Plan to comply
with state law. See Petition Ex. G at 2 (“A local municipality cannot duplicate a
state regulatory scheme[,] nor can it ‘impede a comprehensive, statewide scheme of
regulation.’ [] Off[.] of Att[’y] Gen. ex rel. Corbett v. E. Brunswick Twp., 908 A.2d
720, 733 (Pa. Cmwlth. 2009).”). The Township disagreed. See Petition Ex. I at 6.
Given that the crux of the Zoning Officer’s permit denial and the Township’s
ongoing argument is McNew’s failure to supply such documentation, that the
Township disagrees with the OAG as to what the Township may prescribe, and that
the Township has yet to meet with the OAG to discuss how to conform the Ordinance
to state law, McNew’s only options are to comply with an unauthorized Ordinance,
or forego timber harvesting which he has a right to conduct on the Property. Under
such circumstances, McNew has stated a valid legal claim under ACRE. Because
“it must appear with certainty that the law will not permit recovery, and any doubt
should be resolved by a refusal to sustain [preliminary objections,]” Torres, 997
A.2d at 1245, Respondents’ Second Preliminary Objection is overruled.
20
Third Preliminary Objection
In their Third Preliminary Objection, Respondents assert that McNew
failed to state a valid legal claim for injunctive relief directing issuance of a permit
to conduct timber harvesting at the Property. Specifically, Respondents argue that
such request goes beyond ACRE’s authority and scope, and McNew’s failure to
comply with other Ordinance provisions that the OAG did not find troublesome
prevents the Township from issuing a permit.20
Section 315(b) of ACRE authorizes McNew’s “action against the local
government unit in Commonwealth Court to invalidate the unauthorized local
ordinance or enjoin the enforcement of the [Ordinance].” 3 Pa.C.S. § 315(b)
(emphasis added). It does not expressly authorize this Court to direct the Township
to issue McNew a timber harvesting permit.21 To the extent the challenged portions
of Section 1821 of the Ordinance survive this Court’s review, McNew will have to
comply with them in order for the Township to assess his eligibility for a permit to
20
Respondents also argue that McNew has not availed himself of the MPC’s zoning review
and appeal procedure which could have resulted in the Township issuing a permit with conditions.
However, this Court has already addressed that issue and rejected Respondents’ contention.
21
Section 317 of ACRE does provide:
In an action brought under [S]ection 315(b) [of ACRE] (relating to
right of action), the court may do any of the following:
(1) If the court determines that the local government unit enacted or
enforced an unauthorized local ordinance with negligent disregard
of the limitation of authority established under [s]tate law, it may
order the local government unit to pay the plaintiff reasonable
attorney[’s] fees and other litigation costs incurred by the plaintiff
in connection with the action.
(2) If the court determines that the action brought by the plaintiff
was frivolous or was brought without substantial justification in
claiming that the local ordinance in question was unauthorized, it
may order the plaintiff to pay the local government unit reasonable
attorney[’s] fees and other litigation costs incurred by the local
government unit in defending the action.
3 Pa.C.S. § 317.
21
conduct timber harvesting at the Property. Accordingly, Respondents’ Third
Preliminary Objection is sustained.
Fourth Preliminary Objection
In their Fourth Preliminary Objection, Respondents argue that McNew
failed to state a valid legal claim because the matter is not ripe for disposition. In
particular, Respondents claim that “the process of [O]rdinance review by the OAG
has not been completed.”22 Prelim. Objs. ¶ 25. Respondents further assert that
McNew’s allegations regarding his efforts to seek OAG review and his apparent
failure to engage in discussion to resolve the parties’ differences (as discussed in the
OAG’s October 1, 2021 review letter) demonstrates that this controversy is not ripe
for this Court’s review. See Prelim. Objs. ¶ 24.
“The concepts of ripeness and exhaustion of
administrative remedies are similar but distinct.” Merriam
v. Phila[.] Hist[.] Comm[’]n, 777 A.2d 1212, 1219 (Pa.
Cmwlth. 2001). “Ripeness arises out of a judicial concern
not to become involved in abstract disagreements of
administrative policies. Exhaustion is concerned with
agency autonomy.” Id. (internal quotations omitted)
(citation omitted). Whether an issue is ripe depends on
whether[:] 1) the issue has been adequately developed for
judicial review; and 2) what hardship the parties will suffer
if review is delayed. Id. at 1220.
Indep. Oil & Gas Ass’n of Pa. v. Pa. Pub. Util. Comm’n, 789 A.2d 851, 857 n.8 (Pa.
Cmwlth. 2002).
22
This Court’s review is limited to the Petition and its attachments. See Foxe. Despite
that the OAG asked for the parties’ willingness to meet and discuss the issues, the OAG’s October
1, 2021 review letter appears to be a complete substantive review of the Ordinance. See Petition
Ex. G. The Petition reflects that the Township responded to the OAG, see Petition ¶¶ 26-28; see
also Petition Exs. H, I, but does not state whether McNew responded. In either event, although
the Township has yet to reach out to the OAG to work on bringing the Ordinance into compliance
with state law, the OAG’s queries do not render its October 1, 2021 Ordinance review incomplete.
22
Section 315(b) of ACRE does not explicitly require a landowner to first
seek the OAG’s review under Section 314(a) of ACRE before filing an original
jurisdiction action. Therefore, the fact that McNew requested the OAG’s review
before he filed the Petition, whether or not the OAG completed its review, and
whether the OAG offered to meet with the parties to review the matter but McNew
has yet to accept the offer, does not affect the ripeness of this matter under Section
315(b) of ACRE.
As observed, supra, the issue does not require agency
expertise or the development of a factual record but rather
the reading of an unambiguous [Ordinance]. The issue has
been adequately developed for this Court to consider the
applicability of [ACRE] to [the Ordinance]. Further, the
cost of the administrative procedure and delay before
obtaining judicial review has been previously recognized
as sufficient to demonstrate the existence of actual and
present harm. See Rouse & Assoc[s.]-Ship R[d.] Land
L[td.] P[’]ship v. P[a.] Env[’t] Quality B[d.], . . . 642 A.2d
642 . . . ([Pa. Cmwlth.] 1994). This matter is, therefore,
ripe for judicial review.
Indep. Oil & Gas Ass’n of Pa., 789 A.2d at 857 n.8. Accordingly, Respondents’
Fourth Preliminary Objection is overruled.
Conclusion
Based on the foregoing, Respondents’ Third Preliminary Objection is
sustained. Respondents’ First, Second, and Fourth Preliminary Objections are
overruled.
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R. Bruce McNew, :
Petitioner :
:
v. :
:
East Marlborough Township and :
East Marlborough Township :
Board of Supervisors, : No. 29 M.D. 2022
Respondents :
ORDER
AND NOW, this 26th day of April, 2023, East Marlborough Township’s
and East Marlborough Township Board of Supervisors’ (collectively, Respondents)
third Preliminary Objection to R. Bruce McNew’s Petition for Review is sustained.
Respondents’ first, second, and fourth Preliminary Objections are overruled.
Respondents are directed to file an answer to the Petition for Review within 30 days
of the date of this Order.
_________________________________
ANNE E. COVEY, Judge