Commonwealth Court Restricts Mulching

April 2015Articles In the Zone

In Tinicum Township v. Nowicki, the Pennsylvania Commonwealth Court held, in a four to three opinion, that a mulching operation does not qualify as an agricultural operation or a forestry activity entitling it to protection under the Municipalities Planning Code (MPC) and/or the Right to Farm Act.

The Nowicki case involved a three-acre property formerly used as a quarry and located in the township’s extraction zoning district. The applicant hauled in raw materials, including tree stumps, yard waste and logs to the property, with some similar materials being brought in by third party landscapers. The applicant processed these materials into mulch using a tub grinder, then delivered the finished mulch offsite to third party users.

The court first addressed the applicant’s argument that its mulching operation was protected as an agricultural or forestry use under the MPC. Specifically, Section 603 of the MPC limits the restrictions that a zoning ordinance may set on agricultural and forestry uses as follows:

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.

Zoning ordinances shall encourage the continuity, development and viability of agricultural operations. Zoning ordinances may not restrict agricultural operations or changes to an expansion of agricultural operations in geographic areas where agriculture has traditionally been present unless the agricultural operation will have a direct adverse effect on the public health and safety. Nothing in this subsection shall require a municipality to adopt a zoning ordinance that violates or exceeds the provisions of the Right to Farm Act.

Accordingly, if the mulching operation qualified as a forestry activity or an agricultural operation, then it would be protected by Section 603 of the MPC. Unfortunately for the applicant, the Commonwealth Court, in determining whether the mulching operation fell within either of these two categories, interpreted the words in the MPC, using prior case law, to hold that the mulching operating did not qualify as “agricultural operation” or “forestry activity” as those terms are defined and protected under the MPC.

The court next addressed the applicant’s argument that the mulching operation fell within the protection of the Right to Farm Act and the Agricultural Code. Specifically, Sections 313(a) of the Agricultural Code provides that local governments may not adopt or enforce “unauthorized local ordinance” which is defined, in part, as an ordinance that restricts or limits the ownership structure of a normal agricultural operation.

Section 312 of the Agricultural Code incorporates the definition of “normal agricultural operation” from Section 2 of the Right to Farm Act, which defines that term, in relevant part, as follows:

The activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities 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.

The term includes new activities, practices, equipment and procedures consistent with technological development within the agricultural industry. Use of equipment shall include machinery designed and used for agricultural operations, including, but not limited to, crop dryers, feed grinders, saw mills, hammer mills, refrigeration equipment, bins and related equipment used to store and prepare crops for marketing and those items of agricultural equipment and machinery defined by the Farm Safety and Occupational Health Act. Custom work shall be considered a normal farming practice.

The applicant argued that their mulching operation met the definition of “normal agricultural operation.” Unfortunately for the applicant, the Commonwealth Court did not agree.

It is important to note that the majority opinion interpreted the above-referenced statutes based upon the fact that the raw material from which the mulch was made did not originate from the property and that none of the mulch was used on the property. This was a very important point in the majority opinion. In essence, the majority opinion adopted the trial court’s position that the applicant’s mulching operation was a “manufacturing” activity and, as such, was only permitted in the township’s manufacturing zoning district.

In a very well written dissent, Judge Mary Hannah Leavitt, joined by Justices Simpson and McCullough, disagreed with the majority’s opinion and opined that they would have reversed the trial court and held that the mulching operation was protected under the Pennsylvania Supreme Court’s holding in a 1958 case, concerning the production of synthetic compost for growing mushrooms, known as Gaspari v. Board of Adjustment of Muhlenberg Township. In summary, the dissent found the facts in the subject case to be “right on point” with the facts contained in the Gaspari case, where the Pennsylvania Supreme Court found that the production of synthetic compost was not a manufacturing operation and permitted as an agricultural operation. Most importantly, the dissent noted that nothing in the MPC or the Right to Farm Acts specifically requires that forestry activity use trees from the property or use the product of that activity on the property.

The Pennsylvania Supreme Court denied the applicant’s petition to hear this case. Nevertheless, the case seems to leave open the question of whether, when an applicant uses some amount of trees from the subject property to create their mulch and/or uses some portion of the completed mulch product on their property, if the mulching activity would then be protected under the MPC or the Right to Farm Act.

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