Opinion
No. 511 C.D. 2011 No. 512 C.D. 2011
09-20-2012
Daryl L. Beiler v. Buffalo Township Zoning Hearing Board, Buffalo Township, Buffalo Valley Neighbors Association, Carol R. Crago, Sam Crago, Keith E. Dunlap and Luann W. Dunlap Daryl L. Beiler and Gina L. Beiler, husband and wife v. Buffalo Township Planning Commission and Buffalo Township Appeal of: Daryl L. Beiler and Gina L. Beiler, husband and wife Daryl L. Beiler v. Buffalo Township Zoning Hearing Board, Buffalo Township, Buffalo Valley Neighbors Association, Carol R. Crago, Sam Crago, Keith E. Dunlap and Luann W. Dunlap Daryl L. Beiler and Gina L. Beiler, husband and wife v. Buffalo Township Planning Commission and Buffalo Township Appeal of: Daryl L. Beiler and Gina L. Beiler
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
This case was reassigned to the authoring judge on June 11, 2012.
Daryl L. Beiler and Gina L. Beiler, husband and wife (together, Landowners) appeal the Order of the Court of Common Pleas of the 17th Judicial District of Pennsylvania (Union County Branch) (trial court) that denied their land use appeal from the decisions of the Buffalo Township Planning Commission (Commission) and the Buffalo Township (Township) Zoning Hearing Board (Board). The Commission and Board denied Landowners' plans to construct a processing facility (Facility) to transform municipal bio-solids (also referred to as human sewage sludge) into a by-product for use in the agricultural, landfill, and mining sectors because the proposed Facility did not qualify as an agricultural business. An agricultural business is a permitted use under the Buffalo Township Zoning Ordinance (Ordinance) in the zoning district in which Landowners' property is located. At issue is whether Landowners' proposed use is an "agricultural business," which is defined in the Ordinance as "[a] business which offers at least twenty-five percent (25%) of its services to the agricultural sector including the processing and sale of agricultural products/supplies or the sale and/or repair of agricultural equipment." (Section 2.2 of the Ordinance.) Because Landowners did not satisfy their burden of proving that their business would offer at least 25% of its services to the agricultural sector, we affirm.
Buffalo Valley Neighbors Association is a group of neighboring property owners, and Carol R. Crago, Sam Crago, Keith E. Dunlap, and Luann W. Dunlap are neighboring property owners that were given party status before the Board and trial court and join, along with the Board, in the Township's brief to this Court.
The Commission denied Landowners' application for preliminary and final subdivision approval for the Facility and the Board denied Landowners' application for a zoning permit.
Landowners own a 110-acre farm (Property) in Buffalo Township (Township), which is located in the Township's Agricultural Preservation District (APD) and is presently being used for agricultural purposes. Currently there is a house, in which Landowners reside, and three barn structures on the Property. In 2007, Landowners filed a land development plan and obtained a zoning permit from the Township's Zoning Officer (Zoning Officer) to construct a new structure to operate an agricultural business on the Property (2007 Permit). The proposed structure would be 450-feet by 120-feet, and 45-feet high, with its floor and 6-foot high walls constructed of concrete and its roof constructed of metal framing and fabric. There was no explanation regarding the nature of the agricultural business in the 2007 Permit application. However, the 2007 Permit expired prior to any activity on the Property because Landowners did not obtain a necessary Department of Environmental Protection (DEP) permit.
Section 4.4.1 of the Ordinance states that the purpose of the APD is
to permit, protect and encourage the continued use of the land for agricultural purposes and to maintain agriculture as an ongoing economic activity in the [T]ownship. Agricultural business concerns and other uses supportive of the agricultural community are to be encouraged. This district is comprised of those areas in the [T]ownship whose predominant land use is agricultural. It is also the intent of the [a]gricultural [p]reservation [d]istrict regulations to protect and stabilize the essential characteristics of these areas, to minimize conflicting land uses detrimental to agricultural enterprises, to limit development which requires highways and other public facilities in excess of those required by agricultural uses and to maintain agricultural lots or farms in sizes which will permit efficient agricultural operations.(Section 4.4.1 of the Ordinance.)
Thereafter, on March 31, 2009, Landowners filed another land development plan and application for a zoning permit with the Zoning Officer seeking to construct the same structure for an agricultural business (2009 Permit). This time, however, Zoning Officer denied the permit on the basis that the proposed use was not an agricultural business. The land development plan was denied for failing to comply with the zoning requirements. Landowners filed with the Board a request for an interpretation of the Ordinance's definition of the term "agricultural business." The Board held a hearing at which Landowners, the Township, and neighboring property owners, who were permitted as parties of interest, presented evidence.
Mr. Beiler testified as follows regarding the proposed use of the Property as a bio-solids facility. He would be paid between $40 to $150 per ton to receive raw municipal bio-solids from outside the Township at the Facility, would take those bio-solids, and repeatedly blend and cure them with lime, which would result in a "new form of agricultural lime" ("Finished Product") that can be applied to the land to enhance pH levels and organic content. (Board Op. at 4.) This processing of the bio-solids reduces their volume by 80%, renders them safe for application onto farm lands and, by the end of the process, reduces their odor. The operation would produce between 90 to 100 tons of Finished Product daily, and DEP permits the placement of 60 tons of the Finished Product per acre per year. The entire process would take place within the proposed structure and the Finished Product would be free flowing with minimal or no metals or pathogens. The handling of bio-solids is regulated by DEP and, therefore, Landowners' proposed use required a DEP Municipal or Residual Waste Permit to operate. The bio-solids would be sent to the Facility from DEP-approved municipal sewage treatment facilities, would be approved by DEP for release to the Facility at the Property, and would be delivered in tri-axle trucks. The DEP permit Mr. Beiler sought would allow him to receive an average of 600 tons of bio-solids per day, but he could, on occasion, receive 800 tons per day. The requested DEP permit would allow Landowners to receive bio-solids from as far away as Canada. An average truckload of bio-solids is 23 tons and, therefore, there would be 20-30 truck deliveries of bio-solids each day of operation. In addition to the truckloads of bio-solids, the lime used to treat the bio-solids would be trucked into the site on the one public access road, Furnace Road, to the Property. On average, operations would run between 8:30 a.m. and 2:30 p.m. daily and there would be an attempt to avoid having deliveries when school buses would be using Furnace Road and local traffic would be heaviest. (Hr'g Tr. at 23-24, 31, 34-39, 44-48, 71, 85, R.R. at 245a-46a, 253a, 256a-61a, 266a-70a, 293a, 307a.)
Landowners' brief refers to the product resulting from the processing of the bio-solids in multiple ways; we will refer to it, as Landowners do, as the "Finished Product." (Landowners' Br. at 14.) The dissent expresses concern at the terms used by the Board and majority to describe the finished product, i.e., "by-product", "agricultural lime," and "finished product." Beiler v. Buffalo Township Planning Commission, slip op. at 3 (Pa. Cmwlth., Nos. 511 C.D. 2011, 512 C.D. 2012, filed September 20, 2012) (Leavitt, J., dissenting) (Beiler Dissent). However, these terms are used by Landowners in their brief and reply brief or by Mr. Beiler in his testimony. (Landowners' Br. at 4, 6-8, 12, 14; Landowners' Reply Br. at 2-3; Hr'g Tr. at 23, 27, 37, 47, 49, 52, 54, 58, 60-62, 82, R.R. at 245a, 249a, 259a, 269a, 271a, 274a, 276a, 280a, 282a-84a, 304a.)
Upon questioning, Mr. Beiler did not specify a particular market demand for the Finished Product, but did compare it to the use of other lime products in agriculture in general. Although stating that he did not know the exact amount he would spread on his own farm, Mr. Beiler indicated that he could "use up almost half of it --- I shouldn't say half . . . but a large quantity of what we're producing . . . myself." (Hr'g Tr. at 47, R.R. at 269a.) Mr. Beiler stated that he had not calculated any exact figures, but he intended to offer this Finished Product at either minimal or no cost to farmers so that he can move it off-site in order to accommodate the receipt of more bio-solids to process. Mr. Beiler stated that the Finished Product would be "100 percent for agricultural use," (Hr'g Tr. at 27, R.R. at 249a); however, he also stated that the Finished Product could be used in mine reclamation projects and he had contacted landfills about using the Finished Product as top cover. Mr. Beiler acknowledged that, in Pennsylvania, there are no other privately owned bio-processing facilities like the Facility proposed here and there are no bio-processing facilities that are not adjacent to municipal sewage treatment facilities. Mr. Beiler admitted that his profits will come from receiving the bio-solids from the municipal authorities and that, in order "to be profitable in this business, the more tons we bring in the front side, the more potential we have, so we can't be backlogged by having a bunch of inventory of" the Finished Product. (Hr'g Tr. at 36, 46-47, 60, 71, 73-74, 79, 103-04, 228-30, R.R. at 258a, 268a-69a, 282a, 293a, 295a-96a, 301a, 325a-26a, 450a-52a.)
Landowners offered the testimony of Preston Boop, owner of Briar Patch Organic Farms, which did not obtain a zoning permit after getting the same type of DEP permit Landowners were required to obtain for their Facility. However, Mr. Boop testified that, despite the fact that both he and Landowners have a "General Permit for Processing/Beneficial Use of Municipal Waste," his permit allows him to accept only non-liquid waste including "uncontaminated waste, manure, yard waste, source separated food scraps from food markets, grocery stores, food banks . . . source separated newspaper and source separated corrugated paper." (Hr'g Tr. at 122, R.R. at 344a.) Mr. Boop further indicated that he was limited to receiving 500 tons of source separated food per year, the entire operation could not exceed 3,000 cubic yards per acre of total material and, unlike Landowners' proposed use, his compost facility relied upon active biological decomposition. Additionally, Mr. Boop noted that his composting facility pre-existed any zoning in the Township and there has not been any change in his operation as a result of his DEP permit. (Hr'g Tr. at 124-28, R.R. at 346a-50a.)
The Zoning Officer testified that he granted the 2007 Permit based on the information contained in that permit application, which was the dimensions of the proposed structure, the representation that the use would be an agricultural business, and verbal notes from a planning meeting. The Zoning Officer stated that, although he initially believed that the use proposed in the 2009 Permit application was permitted as an agricultural business, he revised his opinion upon receiving additional information regarding the nature of the use, namely Landowners' land use application indicating that Landowners were developing a bio-solids processing facility. Reviewing the new information, the Zoning Officer rejected the 2009 Permit application concluding that the proposed use, the Facility, did not qualify as an agricultural business under the Ordinance. Instead, the Zoning Officer concluded that Landowners' proposed use was offering its services to municipal sewage treatment facilities and was more akin to a solid waste transfer facility under the Ordinance. The Zoning Officer testified regarding an agreement, which was introduced into evidence, between Landowners and "Ag Lime Processing, Inc." (Ag Lime), which Mr. Beiler owns, for Ag Lime to use Landowners' Property for its "agricultural processing facility." Additionally, the Zoning Officer agreed that, in his opinion, the proposed use was contrary to the purpose of the APD. (Hr'g Tr. at 112-15, 119, 136, 140, 142, 147, R.R. at 334a-37a, 341a, 358a, 362a, 364a, 369a.)
The Township's Engineer (Engineer) testified as an expert in professional and environmental engineering regarding Landowners' proposed use, as well as Ag Lime's 2008 DEP permit application (DEP Application). Engineer explained that the description of the proposed use, at least for the purpose of the DEP Application, was "as [a] processing facility to convert wastewater treatment plant bio[-]solids to a useable end product for land application" for agricultural uses, mine reclamation, and site remediation. (Hr'g Tr. at 154, R.R. at 376a.) Like Mr. Beiler, Engineer did not believe that there were any for-profit bio-solid processing facilities in Pennsylvania that receive bio-solids from various municipal sewage treatment facilities. Engineer questioned the method proposed by Mr. Beiler to treat the bio-solids, expressing concerns about, inter alia, ventilation, the amount of liquid created in the process, and whether the limes Landowners propose to use would produce the reaction required to properly process the bio-solids. In Engineer's opinion, the proposed use constitutes an industrial activity and not an agricultural activity or business as defined by the Ordinance because "99 percent of it is relative to [municipal sewage treatment facilities] and taking advantage of what was called in the industry the avoidance cost." (Hr'g Tr. at 173, R.R. at 395a.) On cross-examination, Engineer acknowledged that some of his technical concerns regarding the proposed use were more relevant to the DEP-permitting process and not the grant or denial of Landowners' subdivision plan and zoning permit. (Hr'g Tr. at 154-55, 158-66, 173, 175, 178-80, 189, R.R. at 376a-77a, 380a-88a, 395a, 397a, 400a-02a, 411a.)
Engineer explained that municipal sewage treatment facilities would pay Landowners slightly less than what the facilities would pay to dispose of the bio-solids in a landfill, thereby allowing Landowners to take advantage of the facilities' desire to reduce their disposal costs. (Hr'g Tr. at 173-74, R.R. at 395a-96a.)
The Township offered the DEP Application as evidence. The DEP Application describes the "project [as being] for the processing/conditioning of bio[-]solids, not the beneficial use of bio[-]solids for land application" and as a processing facility. (DEP Application at 5, S.R.R. at 466a.) In response to the question "[i]s this project for the beneficial use of bio[-]solids for land application within Pennsylvania," Mr. Beiler, via Ag Lime, answered "no" and further indicated that, while it would produce usable bio-solids, the 2009 Permit was not for the beneficial use of such bio-solids. (DEP Application at 5, S.R.R. at 466a.) The Narrative Response attached to the DEP Application indicated that the purpose of the Facility is "to provide their customers with an alternative treatment and disposal method for [bio-solids], and to provide a product that can be land applied for agricultural purposes and for industries requiring material for site remediation, reclamation, or cover." (DEP Application, Narrative Response at 1, S.R.R. at 477a.)
Neighboring property owners also testified regarding the impact of the Facility and cited numerous reasons why they believed it was not an agricultural business, including that the Finished Product would be used outside the agricultural sector and would be, quantitatively, significantly less than the amount of bio-solids being brought in and processed. Additionally, a neighboring farm owner believed that having 30 or 50 trucks hauling bio-solids and lime to the Property would make it difficult and unsafe for those who have to move farm equipment along Furnace Road. (Hr'g Tr. at 198-205, 219, R.R. at 420a-27a, 441a.)
Based on this evidence, the Board concluded that Landowners' proposed use, a bio-solid processing facility, was not an agricultural business as defined by the Ordinance and, therefore, not permitted as of right in the APD. Citing Clout, Inc. v. Clinton Zoning Board, 657 A.2d 111 (Pa. Cmwlth. 1995), the Board likened the Facility, as this Court did the use at issue in Clout, to the DuPont Corporation or a manufacturer of pesticides whose products may be used by the agricultural sector, and rejected that use finding it inappropriate in an APD because its presence would be contrary to the purpose of the APD. The Board was not persuaded that the Ordinance intended such a broad definition of agricultural business that would, in effect, hinder the very purpose of the APD. The Board explained that the object of Landowners' business venture and the Facility is to accept bio-solids from municipal sewage treatment facilities, process those bio-solids, and dispose of the Finished Product so that they can accept more bio-solids. The Board held that this conclusion is supported by Mr. Beiler's explanation that maintaining an inventory of the Finished Product is a detriment to the business and Facility, such that he is willing to give away the Finished Product to ensure his ability to accept new loads of bio-solids. The Board interpreted that evidence as identifying "the intake and treatment of the bio-solids as the business service or business activity, not the supplying of [the Finished Product]. It is a conclusion reinforced by the fact the financial benefit to this business lies in the intake of bio-solids not the sale of" the Finished Product. (Board Op. at 7-8.) According to the Board, the identity of the user of the Finished Product is unimportant to the actual process of treating bio-solids, and Landowners' principal business goal is not to provide a service to the agricultural sector, but to provide a service to municipal sewage treatment facilities. (Board Op. at 8-9.) Finally, the Board noted Landowners' statements in the DEP Application that the project is not for the beneficial use of bio-solids for land application, but for the processing of bio-solids, and the Finished Product could easily be used for mine reclamation, site remediation, and other non-agricultural uses.
Landowners appealed to the trial court both the Board's order and the Commission's order that denied subdivision approval because the plan did not satisfy zoning requirements. The trial court, without taking any additional evidence, affirmed both orders in a single opinion. The trial court held that the Board's interpretation of the definition of agricultural business and determination that Landowners' Facility did not fall within that definition were not erroneous. Landowners now appeal to this Court, which has consolidated the two appeals.
In zoning appeals "where the trial court takes no additional evidence, our standard of review is limited to determining whether the Board's findings are supported by substantial evidence and whether the Board has abused its discretion or committed an error of law." Morris v. South Coventry Township Board of Supervisors, 898 A.2d 1213, 1217 n.3 (Pa. Cmwlth. 2006). A zoning hearing board abuses its discretion only where its findings of fact are not supported by substantial evidence. Heichel v. Springfield Township Zoning Hearing Board, 830 A.2d 1081, 1085 n.11 (Pa. Cmwlth. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
On appeal, Landowners argue that the Board erred as a matter of law because the proposed use does fall within the Ordinance's definition of agricultural business and, therefore, is permitted as of right in the APD. Landowners assert that the proposed use is "devoted 100% to the 'processing and sale of agricultural products/supplies'" because both the lime and bio-solids are agricultural products and the Finished Product is agricultural in nature. (Landowners' Br. at 10) See Gaspari v. Board of Adjustment of the Township of Muhlenberg, 392 Pa. 7, 14-16, 139 A.2d 544, 548 (1958) (holding that production of synthetic compost for mushroom farming is "well within the ambit of farming"); Hempfield Township v. Hapchuk, 620 A.2d 668, 672 (Pa. Cmwlth. 1993) (holding that the application of sewage sludge, i.e., bio-solids, on a farmer's field as fertilizer is an agricultural use). According to Landowners, the Board erred in focusing on the economics of the business model and Landowners' statements in the DEP Application to conclude otherwise. Landowners further assert that the Board erred in using an interpretation that differed from that related to the 2007 Permit. While acknowledging that the Board's interpretation of the Ordinance is entitled deference, Landowners maintain that "such deference cannot extend to a tortured reading of the ordinance to avoid its clear meaning." (Landowners' Br. at 11-12, citing Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265, 269 (Pa. Cmwlth. 2008).)
The outcome of this matter unquestionably depends upon the interpretation of the Ordinance's definition of agricultural business and whether the activity in which Landowners propose to engage falls within that definition. As acknowledged by Landowners, "a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference" because, "as the entity charged with administering a zoning ordinance, [it] possesses knowledge and expertise in interpreting that ordinance." City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006). Although this Court will interpret ambiguous language in a property owner's favor and against any implied extension of a restriction, such restrictive readings are unwarranted where "the words of the zoning ordinance are clear and free from any ambiguity." Isaacs v. Wilkes-Barre City Zoning Hearing Board, 612 A.2d 559, 561 (Pa. Cmwlth. 1992). In interpreting zoning ordinances, this Court relies upon the common usage of the words and phrases contained therein and should construe that language in a sensible manner. Ruley, 948 A.2d at 269.
The Ordinance creates multiple districts in the Township, including the APD. As cited above, the purpose of the APD is, inter alia, "to permit, protect and encourage the continued use of the land for agricultural purposes" and to encourage agricultural business concerns that are supportive of the agricultural community. (Section 4.4.1 of the Ordinance.) In addition, the APD also is designed "to protect and stabilize the essential characteristics of these areas, to minimize conflicting land uses detrimental to agricultural enterprises, [and] to limit development which requires highways and other public facilities in excess of those required by agricultural uses." (Section 4.4.1 of the Ordinance.) Consistent with these purposes, the Ordinance permits agricultural businesses as of right in the APD. (Section 4.4.2 of the Ordinance.) Agricultural business is specifically defined in the Ordinance as:
Permitted uses in the APD include: agricultural operations; agricultural businesses; residential dwellings; animal hospitals; bed and breakfast inns, subject to certain limitations; family-based group homes (consisting of three or fewer unrelated individuals); family day cares (residence-based childcare for a maximum of six unrelated children); and retail, office, service use, or restaurant operated by a farm owner. (Section 4.4.2 of the Ordinance.)
A business which offers at least twenty-five percent (25%) of its services to the agricultural sector including the processing and sale of agricultural products/supplies or the sale and/or repair of agricultural equipment.(Section 2.2 of the Ordinance.) Accordingly, the plain language of this definition requires that, in order to be a permitted use in the APD as an agricultural business, the proposed use must be: (1) a business that offers at least 25% of its services to the agricultural sector; and (2) those services can include the processing and sale of agricultural products or supplies.
Relying on Hempfield, Landowners assert that bio-solids are, per se, agricultural products and the Finished Product is an agricultural product and, therefore, the proposed use of the Property is an agricultural business under the Ordinance. In Hempfield, this Court addressed whether farmers could agriculturally use bio-solids as a fertilizer on their entire property where the zoning on part of the property had been changed from agricultural to residential prior to their purchase of the property. The zoning ordinance at issue permitted the spreading of bio-solids in the agricultural portion of the property, but not in the residential portion. However, because the entire property had been continually used for agricultural purposes both before and after the zoning change, this Court concluded that the agricultural use was essentially a preexisting, nonconforming use on the residential portion. Hempfield, 620 A.2d at 671. Then, based on Section 103 of the Solid Waste Management Act, which "defined 'normal farming operations' to include the 'agricultural utilization of septic tank cleanings and sewage sludges which are generated off-site,'" and because the courts had "used the terms 'agricultural' and 'farm' interchangeably," id. at 672, this Court held that the farmers' agricultural use of the bio-solids as fertilizer on their entire farm was permitted. In that context, we concluded that "the use of [bio-solids] is agricultural and the property has always been used for farming" and, therefore, the farmers could continue their use of bio-solids as fertilizer on the residential portion of the property. Id.
Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.103. Section 103 permits, as a "normal farming operation," the "agricultural utilization of septic tank cleanings and sewage sludges which are generated off-site" and the "collection, storage, transportation, use or disposal of . . . sludges on land where such materials will improve the condition of the soil, the growth of crops, or in the restoration of the land for the same purposes."
Undisputedly, pursuant to the holding in Hempfield, Landowners here would be able to agriculturally use the bio-solids on the Property as fertilizer with the appropriate permits. However, Landowners also want the Court to hold that, because they could agriculturally use the bio-solids as a fertilizer on their farm, they should also be permitted under the Ordinance to accept amounts of bio-solids from municipal sewage treatment facilities much greater than they can agriculturally use on their Property for processing in their Facility as an agricultural business. This Court rejected a similar argument in Clout, in which we distinguished Hempfield and held that a composting facility was not an agricultural activity permitted in an agricultural district under the specific provisions of the ordinance at issue.
The dissent notes that farmers may accept payments from municipal authorities to use raw bio-solids in their fields and that this does not mean that the farmers are no longer farming, but are in the business of providing services to municipalities. Beiler Dissent, slip op. at 6, 10. We agree; however, Landowners are not applying the bio-solids they receive on their fields as part of their farming operations, which this Court has held as being part of a legitimate farming use. Hempfield, 620 A.2d at 671-72. Rather, Landowners are seeking permission to construct an agricultural business on their Property, which, under the Ordinance, requires them to prove certain criteria not applicable to typical farming uses.
In Clout, the property owner sought to construct a composting facility that would accept 120 tons of materials, including bio-solids, per day in the agricultural district in which the zoning ordinance permitted, inter alia, "[a]gricultural uses related to the tilling of the land, [and] the raising of farm products," but did not include the terms composting or compost facility. Clout, 657 A.2d at 112, 113. All of the materials would be brought in from off-site, and all of the finished compost would be shipped off-site. The property owner argued that, pursuant to Gaspari (in which the mushroom farmer made his own compost for use in his mushroom farm) and Hempfield, the making of compost was an agricultural activity under a broad interpretation of the zoning ordinance because it was "related to the tilling of the land and its plant is a structure necessary to the proper operation of agricultural activities," which were permitted in the agricultural district. Id. at 113-14. In other words, the property owner asserted that, because the end product could be used agriculturally, the production of that end product was a permitted agricultural activity. We rejected this argument, holding that, unlike in Gaspari and Hempfield, the compost was not a product of the property owner's land, would not be put to an agricultural use on the property owner's land and, therefore, was not an agricultural activity. Additionally, this Court cautioned that accepting the property owner's broad interpretation of the ordinance would result in permitting uses that made products that could be related to agricultural activities but were not, themselves, agricultural in the agricultural district, stating:
Under the broad interpretation espoused by [the property owner], a sewage treatment plant selling [bio-solids] to farmers would be a permitted use in the agricultural district as an activity related to the tilling of the soil. The manufacturers of pesticides, herbicides and farm tractors are also engaged in activities broadly related to farming. But it would be anomalous to classify a factory of the Dupont Corporation engaged in the manufacture of a pesticide or a factory of International Harvester producing farm tractors as an agricultural rather than an industrial use under the terms of this ordinance.Id. at 114. Thus, this Court in Clout considered the language of the ordinance and concluded that, even though the property owner was making a product that could be used in agriculture, the composting facility was not an agricultural activity, it was not permitted in the agricultural district and, to allow the facility in that district, would be "anomalous" to the terms of the ordinance. Id.
As Clout instructs, we cannot conclude that because the bio-solids can be used for an agricultural purpose, they become agricultural products for all purposes and that any business that processes them is a permitted use under every ordinance. We must consider the specific language of the Ordinance at issue to determine whether the proposed use meets the requirements of an agricultural business as set out in the Ordinance. Section 2.2 of the Ordinance provides that a business will qualify as an agricultural business if 25% of the business's services or products are offered to the agricultural sector. The Ordinance recognizes that a business may provide both agricultural and non-agricultural services and establishes a quantifiable minimum threshold of services, 25%, that a business must offer to the agricultural sector in order to meet the definition of an agricultural business. As the party requesting a zoning permit for the proposed use of the Property and the approval of the land development plan, Landowners bear the burden of proving that their business meets that quantifiable threshold. See Lamar Advantage GP Company v. Zoning Board of Adjustment City of Pittsburgh, 997 A.2d 423, 438, 442-44 (Pa. Cmwlth. 2010) (citing numerous cases holding that the proponents of requests for zoning relief, such as special exceptions (which are a permitted use), variances, equitable estoppel, and lawful nonconforming use status, bear the burden of proving their entitlement to such relief); Zubris v. Pennsylvania Assigned Claims Plan, 467 A.2d 1139, 1145 (Pa. Super. 1983) (holding that, in civil matters, the party asserting the affirmative of an issue bears the burden of proof). In order to do so here, Landowners needed to present evidence that their proposed business would meet the quantifiable threshold to qualify as an agricultural business.
The Board argues that the proposed use is not agricultural in nature because it is a solid waste transfer facility under the Ordinance. However, the Board did not find that the proposed use was a solid waste transfer facility and, even if it had done so, the Facility would not satisfy the definition of solid waste transfer facility because there is no evidence that it will "[facilitate] the transportation or transfer of municipal waste or residual waste to a processing or disposal facility." (Section 2.2 of the Ordinance.)
The difficulty in this case is that the Ordinance frames our inquiry as whether 25% of the services of Landowners' business will be offered to the agricultural sector, which requires us to define and quantify the services the proposed agricultural business will offer. The parties each take an absolute position. The Township argues that 100% of Landowners' business services are being offered to the municipal sewage treatment facilities because those are the services for which Landowners are being paid and that the Finished Product has no value, but is merely a residual product that Landowners are giving away or selling at minimal cost for agricultural and non-agricultural uses. (Board Op. at 9.) Conversely, Landowners contend that, because the bio-solids and the Finished Product are agricultural products and can be used in the agricultural sector, the proposed use dedicates 100% of its services to the agricultural sector. However, neither of these positions looks at the entire value of the services Landowners will offer. Landowners' business provides valuable services to the municipal authorities, from which Landowners anticipate nearly all of their profit will be derived, but, at the same time, they will also offer services to the agricultural sector because the Finished Product can be used for agricultural purposes.
The Board's conclusion was based on Landowners' evidence of the monetary value of all the services Landowners' business proposed to provide. Mr. Beiler testified that Landowners would receive between $40 and $150 per ton of bio-solids from the municipal authorities for their processing services and would be permitted to accept 600 tons of bio-solids per day. Based on these numbers, it appears that Landowners could receive between $24,000 (at $40 per ton) to $90,000 (at $150 per ton) per day from the municipal authorities for their services. Mr. Beiler also testified that the Finished Product, which he estimated would be produced at a rate of 90 to 100 tons per day, would be given away or sold for a minimal fee. (Hr'g Tr. at 36, 60, 87, R.R. at 258a, 282a, 309a.) It is the Finished Product that could be used for agricultural purposes in this model; although the bio-solids theoretically could have been used as fertilizer, Landowners are not doing so here. However, because Landowners presented no evidence of the monetary value of the Finished Product, there was no evidence of the monetary value of the services the proposed use would offer to the agricultural sector. Therefore, if the Board was correct that the Ordinance addresses the monetary value of the services provided by a Landowners' proposed use, then the Board correctly found that there is no evidence that Landowners will be offering 25% of the total value of their business's services to the agricultural sector.
Landowners focus on the Finished Product of the process, which has an agricultural use. Mr. Beiler testified that the Facility would produce 90 to 100 tons of Finished Product daily. (Hr'g Tr. at 39, 107, R.R. at 261a, 329a.) He testified that, although he was not sure of the exact amount, he believed he could spread almost half of the produced amount on Landowners' 110 acre Property, some of it could be used on other farmers' fields, and a portion of it would likely be used as cover for landfill operators, whom Mr. Beiler had already approached. (Hr'g Tr. at 47, 71, 78, 229, R.R. at 269a, 293a, 300a, 451a.) We note that Mr. Beiler also testified that DEP has approved the application of 60 tons of his finished product per acre, which would apparently permit Landowners to apply, at most, 6,600 tons of the Finished Product to their 110-acre Property per year. (Hr'g Tr. at 58, R.R. at 280a.) Mr. Beiler did not testify with specificity, or provide any other evidence, that Landowners have contracts with other farmers to use the Finished Product, stating only that he had spoken with a few about potentially using the Finished Product. (Hr'g Tr. at 73-74, R.R. at 295a-96a.) Mr. Beiler testified that the daily production of Finished Product would be 90 to 100 tons. Using that figure and the amount of Finished Product Landowners could spread on their own land, they would only be able to apply between 66 - 73 days' worth of Finished Product per year.
This number does not take into account that some of the 110 acres are covered with Landowners' home, multiple farm buildings, and with the proposed structure. For example, Mr. Beiler testified that the structure for the proposed use would take up just over an acre. (Hr'g Tr. at 60, R.R. at 282a.)
Landowners' business, perhaps unusually so, offers a service at both ends - at the front end, to the municipalities which pay Landowners to accept the municipal bio-solids for processing, and at the back end, to whoever will take the Finished Product, whether for agricultural use or otherwise. Therefore, by the terms of the Ordinance, a quantification of the value of the services here must include both ends. Thus, where, as here, a business provides services to both agricultural and non-agricultural sectors, under this Ordinance we must look to whom the service is being offered to determine whether it is in the agricultural sector. There is no evidence that the services provided on the front end are offered to the agricultural sector. In addition, Mr. Beiler acknowledged that the services offered at the back end - the Finished Product - have both agricultural and non-agricultural uses, which Landowners will offer to farmers, landfill operators, and for mine reclamation or site remediation.
The problem with Landowners' position is that they failed to present evidence of the value of both services being offered. The most obvious way of quantifying the percentage of services Landowners' business will offer, as required by the Ordinance, is by the price a consumer is willing to pay for the services in the open market. Indeed, considering where the monetary value is derived is consistent with the terms of the Ordinance, which recognizes that agricultural services include "processing and sale of agricultural products," (Section 2.2 of the Ordinance (emphasis added)), and the definition of business, as a "commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain." Black's Law Dictionary 226 (9th ed. 2009) (emphasis added). Landowners presented evidence of the monetary value of the business's services to the municipalities, but have presented no evidence of the monetary value of the Finished Product. Having failed to do so, there was no quantifiable evidence of the value of the services the proposed use would offer to the agricultural sector (including Landowners' own agricultural interests). There may be another way to quantify the percentage of services offered by Landowners' business other than monetary value, but Landowners have not presented any that encompasses the entire business - both the very profitable front end as well as the Finished Product of the process produced at the back end. Because it was Landowners burden to do so, based on the evidence presented, we must agree with the trial court that the Board did not err in holding that Landowners' proposed use does not qualify as an agricultural business permitted as of right within the APD. However, if Landowners want to develop this business, they must present quantifiable evidence of the value of its services to the agricultural sector, and show that it is 25% of the value of the business's total services.
"Business" also is defined as "a usu[ually] commercial or mercantile activity customarily engaged in as a means of livelihood." Webster's Third New International Dictionary 302 (2002). "Commercial" is defined as being "from the point of view of profit: having profit as the primary aim." Webster's Third New International Dictionary 456.
In determining whether the evidence presented by Landowners satisfied their burden of proving that they would offer 25% of their business's services to the agricultural sector, so as to satisfy the definition of agricultural business, we used only the actual values that Mr. Beiler testified about. Although he wondered at one point if they would reach 600 tons, Mr. Beiler repeatedly testified that the Facility would receive and process 600 tons of bio-solids per day with the production of 90 to 100 tons of Finished Product per day. Similarly, the only number offered by Mr. Beiler regarding how much of the Finished Product could be used was 60 tons per acre per year. Thus, we rely on the only actual figures presented by Landowners, who bore the burden of proof in this matter. The dissent, on the other hand, states that the only estimate of the scale of Landowners' operation was Mr. Beiler's statement that he expected to use half of the fertilizer himself and, therefore, the Facility would produce only 12,000 tons per year. Beiler Dissent, slip op. at 5. First, we note that Mr. Beiler actually testified that he could "use up almost half of it - - - I shouldn't say half, I don't know the exact figure but a large quantity." (Hr'g Tr. at 47, R.R. at 269a (emphasis added).) Thus, the dissent's calculation is based on one imprecise statement. Second, we discern no error in considering the maximum amount permitted, as that is the amount that Landowners are authorized to receive from the municipal authorities and is the only specific value about which Mr. Beiler testified. In not considering the maximum permitted amount to determine whether the Facility qualifies as an agricultural business, the dissent's position could result in a situation where, having been approved as an agricultural business using figures less than their maximums, the Facility is constructed and, ultimately, reaches maximum capacity and becomes a use that does not fall within the definition of an agricultural business. Finally, in focusing solely on the fact that the Finished Product has an agricultural use, the dissent, like Landowners, discount the fact that Landowners are offering two services, one to municipal authorities and one, potentially, to farmers, landfill operators, and mine operators. The Ordinance specifically requires an applicant to establish that the percentage of the applicant's services being offered to the agricultural sector reach 25%; Landowners did not satisfy that burden with the evidence they offered at the hearing. Alternatively, the dissent would reverse the Board's decision because it believes that the proposed use qualifies as an "agricultural operation" under the Ordinance. Beiler Dissent, slip op. at 10. Landowners did not seek approval of the Facility as an agricultural operation, but as an agricultural business and they failed to provide the necessary evidence to establish the Facility as such.
Additionally, we note that the dissent characterizes Mr. Beiler's testimony as stating that it was "'impossible' to get 600 tons of bio[-]solids every day, five days a week." Beiler Dissent slip op. at 4. However, Mr. Beiler actually stated that it was "impossible to get exactly 600 tons every day, okay, so DEP allows us a variance." (Hr'g Tr. at 77, R.R. at 299a (emphasis added).) Mr. Beiler's statement was aimed at explaining the averaging system set forth in a DEP certificate. Moreover, the Beiler Dissent indicates that Mr. Beiler stated that he has no plans to sell the Finished Product to landfills. Beiler Dissent, slip op. at 5 n.8. However, Mr. Beiler repeatedly testified that the product could be used as landfill cover and that he had contacted landfills to use the Finished Product as top cover but that, as with most of his testimony regarding the disposal of the Finished Product, he did not know any specifics at the time of the hearing with respect to whether he would sell the Finished Product to landfills or give it away. Finally, the dissent states that Mr. Beiler, although operating six days per week, would only be accepting bio-solids five days per week. Beiler Dissent, slip op. at 3 n.6. Although an accurate statement from part of Mr. Beiler's testimony, he also stated that the Facility would produce 90 to 100 tons of Finished Product per day, and Landowners' Narrative filed with the DEP states that "[t]he [F]acility proposes to accept delivery of bio-solids generally between 8 a.m. and 2:30 p.m., although operating hours of the [F]acility may occur from 7 a.m. to 5 p.m., six days a week." (Narrative, Attachment P-1 at 5, S.R.R. at 486a; see also, Narrative, Attachment D-1 at 29, S.R.R. at 488a.)
Landowners next argue that the Board's interpretation of agricultural business is inconsistent with its granting Landowners the 2007 Permit and, therefore, we should not give deference to the Board's interpretation because "the 'local opinion' to which [we] seek[] to give deference is itself internally inconsistent." (Landowners' Br. at 13.) However, the Zoning Officer explained why he granted the 2007 Permit and denied the 2009 Permit - there was additional information available to him that described the proposed use in more detail in the 2009 Permit request than what was available in 2007. (Hr'g Tr. at 112-14, 138-39, R.R. at 334a-36a, 360a-61a.) Mr. Beiler acknowledged that the 2007 Permit was granted without providing a description of the process of the proposed use. (Hr'g Tr. at 28-29, R.R. at 250a-51a.)
Finally, Landowners assert that the Board erred in considering the DEP Application in determining that the proposed use does not constitute an agricultural business under the Ordinance. Landowners contend that the purpose of the DEP Application was to obtain a permit for the Facility as a bio-solid processing facility, did not apply to the overall use of the Property, and had no relevancy to the zoning permit process.
Initially, we note that Landowners did not object to the introduction of the DEP Application as being irrelevant to the matter before the Board. In fact, Landowners' attorney questioned Mr. Beiler about the DEP Application and how it revealed that Landowners were seeking the same DEP permit as Mr. Boop, who operated a compost operation in the APD. (Hr'g Tr. at 227, R.R. at 449a.) Moreover, the Facility Landowners sought to obtain permission to construct in the DEP Application is part of the proposed use and is the subject of the zoning permit. Absent the Facility, there would be no processing of bio-solids and no production of the Finished Product. (Board Op. at 4.) The DEP Application provided a description of the proposed use, its purpose, and development that offered insight into what types of services the proposed use would offer, which is relevant to the determination of whether the use was an agricultural business under the Ordinance. The DEP Application did not seek approval for "the beneficial use of bio[-]solids for land application"; rather, it identified the project as being "for the processing/conditioning of bio[-]solids." As Landowners assert that this is an agricultural business because the Finished Product can and will be applied to the Property and other farmland as fertilizer, this statement does go to the "overall use of the [P]roperty." (Landowners' Br. at 13.) Accordingly, we hold that the Board did not err in considering the DEP Application in making its determination as to whether Landowners' proposed use, which included the Facility to process the municipal bio-solids, was an agricultural business permitted in the APD.
For the foregoing reasons, we conclude that the Board did not err or abuse its discretion in its interpretation of the term "agricultural business" and did not err or abuse its discretion in holding that Landowners' proposed use did not fall within that definition. Accordingly, we affirm the trial court's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, September 20, 2012, the Order of the Court of Common Pleas of the 17th Judicial District of Pennsylvania (Union County Branch) entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE LEAVITT
Respectfully, I dissent. I believe that the Beilers' proposal for processing municipal biosolids into fertilizer is exactly the type of "agricultural business" that is authorized in the agricultural district where their 110-acre farm is located. The municipality agreed that manufacturing fertilizer constitutes an agricultural business the first time it reviewed and approved the Beilers' zoning application. In denying their application the second time around, the Zoning Board of Buffalo Township used standards nowhere expressed in the Zoning Ordinance. This was error, and for that reason I would reverse.
The Beilers filed this appeal as husband and wife. However, only Daryl Beiler appeared before the Buffalo Township Zoning Hearing Board.
The "Agricultural Preservation District," where the Beilers' farm is located, was established to "permit, protect and encourage the continued use of the land for agricultural purposes and to maintain agriculture as an ongoing economic activity ...." ZONING ORDINANCE FOR BUFFALO TOWNSHIP, UNION COUNTY, PENNSYLVANIA, adopted July 6, 1992, as amended, §4.4.1 (ZONING ORDINANCE). Accordingly, Section 4.4.1 states that "[a]gricultural business concerns and other uses supportive of the agricultural community are to be encouraged." Id. (emphasis added).
Section 4.4.1 of the Zoning Ordinance states, in full, as follows:
The purpose of the Agricultural Preservation District is to permit, protect and encourage the continued use of the land for agricultural purposes and to maintain agriculture as an ongoing economic activity in the township. Agricultural business concerns and other uses supportive of the agricultural community are to be encouraged. This District is comprised of those areas in the Township whose predominant land use is agricultural. It is also the intent of the Agricultural Preservation District regulations to protect and stabilize the essential characteristics of these areas, to minimize conflicting land uses detrimental to agricultural enterprises, to limit development which requires highways and other public facilities in excess of those required by agricultural uses and to maintain agricultural lots or farms in sizes which will permit efficient agricultural operations.ZONING ORDINANCE, §4.4.1.
The Zoning Ordinance identifies a number of uses that are consistent with the purpose of the Agricultural Preservation District. Not surprisingly operating a farm, as the Beilers do, is an expressly authorized use. In addition, the Zoning Ordinance permits an "agricultural business," which is defined as follows:
[a] business which offers at least twenty-five percent (25%) of its services to the agricultural sector including the processing and sale of agricultural products/supplies or the sale and/or repair of agricultural equipment.ZONING ORDINANCE, §2.2 (emphasis added). A business engaged in "the processing and sale of [an] agricultural product," such as fertilizer, is an "agricultural business." Id. This is consistent with our Supreme Court's holding that the term "agriculture" includes commercial activities incidental to preparing and cultivating the ground. Fidler v. Zoning Board of Adjustment of Upper Macungie Township, 408 Pa. 260, 264-65, 182 A.2d 692, 694-95 (1962). Stated otherwise, under Fidler, manufacturing fertilizer is itself a form of agriculture.
There are no limits on what may be considered an agricultural business. Indeed, activities usually considered industrial or commercial, such as the production of goods and the repair of equipment, may be considered "agricultural business[es]."
Under the Zoning Ordinance's definition of "agricultural business," a "service" is the "processing and sale of agricultural products." The Zoning Board studiously avoids this meaning of "service" by calling Beiler's agricultural product, i.e., fertilizer, "agricultural lime," "final product," or "by-product." Beiler also avoids using the term fertilizer, perhaps in recognition of public antipathy to municipal biosolids. There is no reason for squeamishness; human and animal waste have been used to replenish soil since humans discovered agriculture. Fertilizer is most assuredly an "agricultural product" that is used and required in the "agricultural sector." ZONING ORDINANCE, §2.2. Using biodegradable waste, as opposed to chemicals, to prepare the soil for cultivation is the hallmark of organic farming.
"By-product" is a manufacturing term used to identify something produced in the making of something else. The Beilers want to manufacture fertilizer; the record has not identified any incidental by-products. That the Beilers' manufacturing will use municipal biosolids as a raw material does not make their product, fertilizer, a "by-product."
At the hearing, which was very lengthy, Beiler referred to the use of his agricultural lime byproduct by different terms, including "final product," to emphasize that the Zoning Ordinance did not define an agricultural business by the raw materials it uses. The trial court referred to his product as a "lime-based by-product."
Daryl Beiler testified that he expected to use approximately half of the fertilizer he produced on his own 110-acre farm. The majority offers a series of calculations to refute this estimate. Specifically, the majority concludes that Beiler could use his fertilizer on, at most, 66 to 73 days out of the year, which is far less than half of his 260 days of annual production. In doing this calculation, the majority reports that Beiler testified that he "would" produce 90 to 100 tons of fertilizer per day but "could" apply, at most, 6,600 tons of fertilizer to his 110-acre farm per year. Slip Op. at 20-21. This is not an accurate summary of Beiler's testimony.
Beiler testified that he would operate six days a week but that the sixth day would be for clean up, not processing.
Beiler testified that 600 tons of raw biosolids could have been rendered in his facility to produce 90 to 120 tons of fertilizer. Beiler's permit from DEP allows him to accept a maximum of 600 tons of biosolids per day, averaged on a quarterly basis, and no more than 800 tons on any given day. Reproduced Record at 253a, 299a (R.R. ___). However, the figures in Beiler's DEP permit are not reflective of his expected production but, rather, the maximum allowed. To the contrary, Beiler testified that his production would be far less than the maximum allowed in his permit.
Beiler explained that deliveries of biosolids would vary from day to day. He might receive 200 tons one day and 800 another day. He clarified, however, that he did not "anticipate having 600 tons [of biosolids] coming in the first day" and did not "know if we're going to have 600 tons ever. We're just asking for a permit to that point." R.R. 265a. Beiler explained that it would be "impossible" to get "exactly 600 tons of biosolids every day, five days a week." R.R. 299a. Beiler also testified that he was willing to "cut back on the amount [of biosolids] coming in." R.R. 268a. Nevertheless, the majority's calculations assume that the Beilers' facility will be operating at maximum capacity, i.e., accepting 600 tons of biosolids per day, five days a week and 52 weeks a year.
Likewise, the majority's assumption that the Beilers can use no more than 60 tons per acre per year is unfounded. Beiler testified that he had been involved in a similar facility located in Lancaster County; DEP allowed 60 tons of that facility's fertilizer to be applied per acre of "lawns and gardens and golf courses," which are residential in nature. R.R. 270a. There was no testimony about what quantity of the Beilers' fertilizer could be applied to agricultural land. The standards for application of untreated municipal biosolids are different for agricultural and residential properties. See, e.g., Hempfield Township v. Hapchuk, 620 A.2d 668 (Pa. Cmwlth. 1993). It is likely that the standards would be different for treated municipal biosolids and would allow greater application on agricultural land. Simply, it is not known what quantity of the Beilers' fertilizer can be applied to farm fields.
Given the unique nature of this process and final product, it would be more likely that DEP would permit each facility's fertilizer individually. See R.R. 291a (noting only two facilities in New Holland and Mount Joy, Lancaster County used similar processes); and R.R. 301a (there were no similar commercial facilities known to currently exist).
The majority suggests that the Beilers intend to sell their fertilizer as landfill cover. In actuality, Beiler testified that, while he had contact with landfills to gauge their interest in using his product as a top cover, he had "no plans" to sell any of his product to landfills. See R.R. 293a; 329a-330a.
The only estimate of the scale of the Beilers' manufacturing was that provided by Beiler. He stated that he expected to use half of the fertilizer he produced on his own farm. Assuming, arguendo, that Beiler would be able to apply 60 tons per year per acre (and that ten of his 110-acre farm is not tillable because it is used for his home, barn and outbuildings), then he will use 6,000 tons per year. This means he will produce 12,000 tons per year, not close to the 26,000 tons assumed by the majority in its calculation.
The majority also used these calculations to apportion the value of the Beilers' proposed fertilizer between the municipalities that produce biosolids in their sewage treatment systems and the farmers that will use Beiler's fertilizer. Apart from the fact that the Zoning Ordinance did not direct this kind of economic "value" analysis, it leads to inconclusive results.
Farmers can use raw municipal biosolids as fertilizer for their fields, and they are paid to do so. Beiler testified that the tipping fee swings between $40 and $150 per ton. It may be that a farmer could not economically grow corn if he had to pay for fertilizer instead of being paid to use municipal biosolids as fertilizer. This does not mean that he is not farming but, instead, in the business of providing a service to municipalities. Without doubt, the Beilers' fertilizer manufacturing operation will be useful to municipalities; this is true of any manufacturer that uses waste as a raw material. This is the essence of recycling.
The Zoning Ordinance authorizes a number of uses in the Agricultural Preservation District. They are:
4.4.2 Agricultural Preservation District Permitted Uses
4.4.2.1 Accessory Use or Structure
4.4.2.2 Agricultural Operation
4.4.2.3 Agricultural Business
4.4.2.4 Animal Hospital
4.4.2.5 Bed & Breakfast Inn
4.4.2.6 Communication Antennae and Equipment Buildings
4.4.2.7 Communication Tower
ZONING ORDINANCE, §4.4.2 (emphasis added) (parentheticals omitted). The only standards for these permitted uses are dimensional and are as follows:4.4.2.8 Cultivation of Crops
4.4.2.9 Dwelling, Multi-Family in Existing Farm Dwelling
4.4.2.10 Dwelling, Seasonal, Hunting or Fishing Club
4.4.2.11 Dwelling, Single Family Detached
4.4.2.12 Dwelling, Two-Family
4.4.2.13 Essential Services
4.4.2.14 Family Based Group Home
4.4.2.15 Family Day Care Home
4.4.2.16 Forestry Activities
4.4.2.17 Home Occupation
4.4.2.18 No Impact Home Based Business
4.4.2.19 Recreation Facility, Public
4.4.2.20 Retail, Office, Service Use, or Restaurant
4.4.2.21 Riding Stables, Commercial
4.4.2.22 Riding Stable, Private
4.4.6.2 Agricultural Business; Animal Hospital; Bed & Breakfast Inn; Dwelling, Seasonal; Dwelling, Single Family Detached; Dwelling, Two Family; Hunting or Fishing Club; Public or Quasi-Public Use; Recreation Facility, Commercial; Recreation Facility, Public; and Surface Mining
4.4.6.2.1 Minimum Lot Area: 1 acre
4.4.6.2.2 Minimum Lot Width: 100 ft.
4.4.6.2.3 Minimum Yards
ZONING ORDINANCE, §4.4.6.2. An "agricultural business" is a permitted use that is different from one of the specific uses listed, such as a Bed & Breakfast. An "agricultural business" is a business not expected to be conducted on a farm and, thus, the minimum one-acre lot was required.front: 25 ft.
side: 10 ft.
rear: 20 ft.
Section 2.2 of the Zoning Ordinance requires that 25 percent of the "services" offered by an "agricultural business" must serve the agricultural sector. An agricultural business might do multiple things, such as sell and service automobiles, trucks and tractors on a one-acre lot across the street from the Beilers' farm. So long as 25 percent of the "services" are used in the "agricultural sector," then that business is an agricultural business. ZONING ORDINANCE, §2.2.
The Beilers' agricultural business will not do several things. It will do one thing: manufacture fertilizer. Its sole "service" will consist of the "processing and sale of agricultural products," i.e., fertilizer. Business concerns that are "supportive of the agricultural community are to be encouraged." ZONING ORDINANCE, §4.4.1.
The majority construes the "25 percent" language to authorize a profit based analysis of Beiler's business and apportions the "service" between municipalities and the Beilers. The phrase "processing and sale of agricultural products" is at odds with a profit analysis. Because the Zoning Ordinance is silent on sales or profit, the only logical alternative is a type of volume analysis.
Rather, it shows that two separate and distinct operations such as the sale of ears of corn harvested off the stalk and the processing of corn into cans of kernel or cream style corn could both be considered agricultural businesses.
Even so, the majority's position ignores the business concept of "loss leaders," whereby a product is produced for little or no profit in order to stimulate a more profitable business. A business may sell seeds for little profit and sell a small number of automobile products at a high profit. The sale of seeds may represent 90 percent of the revenue but only 24 percent of the profit. Under the majority's analysis, the seed business would not be an agricultural business because the sale of seeds did not generate sufficient profits.
Here, the Beilers want to produce fertilizer. Beiler testified that up to half of the fertilizer will be used on his own farm. Under a volume analysis, Beiler's business meets the definition of agricultural business. But under the majority's profit analysis, the business would not be an agricultural business even if all the fertilizer was on Beiler's farm. In other words, unless the Beilers can show that the source of their profit comes from the sale of their fertilizer, they are not conducting an agricultural business. This defeats the goal of encouraging "technological development within the agricultural industry." ZONING ORDINANCE, §2.2. It is the revenue from accepting biosolids that allows the Beilers to provide a service to the agricultural sector by offering free or deeply discounted fertilizer. To put it another way, even if the Beilers purchased the biosolids, they would not be considered an agricultural business under the majority's analysis because the fertilizer would be used on their own farm and not generate a profit.
Beiler stated that he would use 50% on his own farm. If he sold it at a nominal fee or gave away 40% of the remaining fertilizer, he would be left with 10% of the product. If Beiler decided to sell that 10% to landfills at an inflated price, so that he could make enough of a profit to be able to carry on with his business, his business would not meet the majority's definition of an agricultural business even though 90% of the final product would be used in agriculture.
Simply, the profit analysis lacks support in the words of the Zoning Ordinance. Indeed, there is nothing in the Zoning Ordinance that requires an agricultural business even to generate profits. In holding that the Beilers' proposed facility did not meet the definition of an agricultural business, the Zoning Board went through a number of gyrations. It stated that
the financial benefit to this business lies in the intake of the bio-solids not the sale of a type of agricultural lime.Board Adjudication at 8; Supplemental Reproduced Record at 499a (S.R.R. ___). It then identified the factors relevant to its conclusion:
Added reinforcement to the conclusion the operation is a direct form of manufacturing, and not an agricultural service, comes from the facts that, (1) the process is conducted entirely inside a structure and is not conducted outdoors nor will it involve contact with the land or soils; (2) the volume of material involved requires an inordinate amount of truck traffic because nothing in the process comes from the land and very little is used on the Applicant's land; and (3) the process begins with an agricultural product trucked in and a non-agricultural product trucked in, and ends with a product trucked out that can be used agriculturally the same way as the original agricultural product that was trucked in.Id. The Zoning Board offered a flawed analysis.
First, the Zoning Board limited its consideration of Beiler's financial benefit to the sale of his "agricultural lime," not his crops. It did not consider the financial benefit of producing crops without having to purchase fertilizer from a third party.
Second, none of the factors identified by the Zoning Board appear in the Zoning Ordinance. It does not require that 25 percent of revenues or profits be derived from the sale of the product used in the agricultural sector. ZONING ORDINANCE, §2.2. As we explained in Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265, 270 (Pa. Cmwlth. 2008), "[i]t is the purpose of the establishment that determines [its use], not [how its revenue is derived]." Beiler's unrebutted testimony is that he is producing quality fertilizer for use on his farm and on the farms of his neighbors. Beiler's testimony was not deemed incredible by the Zoning Board, and it was not rebutted by the Township. Beiler did not testify that his fertilizer would be sold for use in landfills or mine reclamation. He only testified that it could be used for such purposes.
In Ruley, this Court found that Ruley's purpose in opening an animal rescue was to save animals from euthanization, not to make a living. Thus, the rescue was not considered a "kennel" under the plain language of the local zoning ordinance. In reaching our holding we noted that: (1) it was irrelevant that the rescue received donations in order to fund its operations; and (2) the zoning hearing board erred in making an unsupported assumption that Ruley was "boarding" animals in order to characterize the rescue as a "kennel."
Manufacturing requires raw materials, and in this case, the raw materials are municipal biosolids and lime. It just so happens that one of those raw materials, biosolids, is a particularly unpleasant and undesirable substance and, thus, farmers are paid to use it. By the Zoning Board's logic, farmers who accept and spread raw biosolids on their fields are not engaged in agricultural operations but providing a service to municipalities. In any case, there is no requirement in the Zoning Ordinance that the Beilers purchase their raw materials.
Even the Zoning Board would concede that if the Beilers spread raw biosolids on their fields and then placed lime on top of it, they would be engaged in an agricultural operation. The Zoning Ordinance defines an "agricultural operation" as
[a]n enterprise that is actively engaged in the commercial production and preparation for market of crops, livestock and livestock products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities. The term includes an enterprise that implements changes in production practices and procedures or types of crops, livestock, livestock products or commodities produced consistent with practices and procedures that are normally engaged by farmers or are consistent with technological development within the agricultural industry. For the purpose of this Ordinance, the word Agricultural Operation shall not include "Kennels" nor "Agricultural Business".ZONING ORDINANCE, §2.2 (emphasis added). I believe the Beilers' enterprise of pre-mixing biosolids and lime in a building meets the definition of an agricultural operation.
First, in Fidler, 408 Pa. at 264-65, 182 A.2d at 694-95, our Supreme Court explained that "agriculture" includes commercial activities incidental to farming. The Beilers' facility is just such a commercial activity.
Second, the Beilers are implementing a "technological development within the agricultural industry" that will improve their crop production. ZONING ORDINANCE, §2.2. Mixing lime and biosolids inside a building, instead of on the field, produces an effective fertilizer and in a safer way. It will be a part of the farm's existing operations; only fertilizer that cannot be used by the Beilers will be sold.
In sum, the Beilers' facility meets the definition of an "agricultural operation" as well as an "agricultural business," both of which are expressly permitted in the Agricultural Preservation District. The purpose of an establishment determines its use. Ruley, 948 A.2d at 270. The purpose of the Beilers' facility is to manufacture fertilizer, which is a product used in the agricultural sector. All of their product, not just 25 percent, is a product used in the agricultural sector.
The Beilers' 2007 permit approval is relevant to the meaning of the Zoning Ordinance because it shows that the Township's Zoning Officer believed that their proposed business was an "agricultural business" prior to learning about its scale. On the other hand, the Beilers' DEP permit application is a red herring and is not relevant to the meaning of the Zoning Ordinance. In any case, the Beilers noted throughout the DEP permit application that the purpose of the facility was to produce a fertilizer for agricultural use. See S.R.R. 462a-463a.
A permit for land application of either untreated biosolids or the final fertilizer product, if one is even needed, is a separate issue. See, e.g., Liverpool Township v. Stephens, 900 A.2d 1030 (Pa. Cmwlth. 2006) (reviewing, inter alia, DEP's regulation of the land application of sewage sludge and municipal biosolids). No testimony was given regarding what DEP's permitting standards were in this case or whether the Beilers had obtained, or were in the process of obtaining, a permit for the land application of the fertilizer. The Beilers sought a DEP permit for their facility, not for the land application of the fertilizer produced by the facility.
The Zoning Board acknowledged that the Beilers' proposed facility required a DEP permit. Board Adjudication at 3; S.R.R. 494a. The facility cannot spread the final product; it can only produce it.
"When interpreting zoning ordinances, this Court relies on the common usage of words and phrases and construes language in a sensible manner." Ruley, 948 A.2d at 269 (quoting City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143-44 (Pa. Cmwlth. 2006)). Further, the widest and most permissive use of land is the rule, requiring that restraints on land be stated in specific and unequivocal terms. Fidler, 408 Pa. at 265, 182 A.2d at 695. Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC) directs that "where doubt exists as to the intended meaning of the language written" it shall be interpreted "in favor of the property owner...." 53 P.S. §10603.1. This is particularly appropriate where the restraint is imposed upon those who use the land itself to make their living. To the extent the definition of "agricultural business" is ambiguous, we must construe its restrictive effect in favor of the Beilers and against the Township.
Act of July 31, 1968, P.L. 805, 53 P.S. §10603.1, added by the Act of December 21, 1988, P.L. 1329.
This is why Section 603(h) of the MPC provides that zoning ordinances should encourage agricultural operations and may not restrict "expansions of agricultural operations ... unless the agricultural operation will have a direct adverse effect on the public health and safety." 53 P.S. §10603(h). --------
The Beilers' facility meets the criteria for an "agricultural business" because it will offer "at least twenty-five percent (25%) of its services to the agricultural sector including the processing and sale of agricultural products/supplies." ZONING ORDINANCE, §2.2. The Zoning Ordinance says nothing about the source of revenue or profit. The Zoning Ordinance could have regulated the odors and truck traffic associated with an agricultural business, but it did not. Nor did the Zoning Ordinance limit the scale of an agricultural business. The Zoning Board erred in considering these factors because they do not appear in the Zoning Ordinance. See Ruley, 948 A.2d at 270. Under the words actually used in the Zoning Ordinance, the Beilers will conduct an agricultural business, however unpopular.
Accordingly, I would reverse.
/s/_________
MARY HANNAH LEAVITT, Judge