In Chester County’s Newlin Township, the year-long controversy pitting a number of horse owners against the Township’s supervisors has now captured the attention of the State’s Attorney General. Senior Deputy Attorney General Susan Bucknam has entered the fray on the side of the horse owners. At issue is an ordinance passed unanimously in October 2014 by the three-person board of supervisors. That ordinance makes a distinction between a commercial and a private equine facility and creates several regulations for those farms that are deemed to be commercial. The ordinance requires a commercial operation to have three acres for the first horse and two acres for each additional horse on the property—the so-called “3 and 2 rule”. Additionally, the ordinance places restrictions on the size and location of indoor arenas, limits outdoor equine activities to daylight hours and mandates off-street parking.
As supervisors chair Janie Baird explained at the October meeting last year, “if you have your own horses on your own property and do not offer lessons or boarding, etc., the proposed ordinance does not apply to you.” Owners of properties that are considered commercial under this ordinance are required to file for zoning exceptions, paying the Township $1500. But the property owner would also need legal representation for the process, so complying with the ordinance is a costly endeavor.
Township’s Acreage Rule Violates ACRE
Pennsylvania’s 2005 Agriculture, Communities and Rural Environment (ACRE) Act was meant to provide a measure of protection for agricultural operations throughout the state, especially as suburban sprawl consumes more and more farmland. The act prohibits local municipalities from enacting laws or ordinances that restrict agricultural activities in violation of state law. Pennsylvania’s Municipal Planning Code, adopted in 1968, was predicated on the goal of protecting the state’s natural resources and farm land. It specifies that state law may supersede municipal regulations where agricultural activities are concerned. The State Supreme Court in 2010 ruled that equine activities are considered normal agricultural operations; thus, local ordinances that seek to arbitrarily restrict certain equine activities are likely to be challenged by the state.
Bucknam, who administers the ACRE program in the Attorney General’s office, undertook a review of Newlin Township’s ordinance after receiving complaints from several horse farm owners. Her letter to the Township, dated November 5, 2015 highlights several points in the Township’s ordinance that violate ACRE by unlawfully prohibiting or limiting normal agricultural activities.
“We Are Prepared to Bring Legal Action”
Bucknam’s letter is unambiguous in its analysis of Newlin Township’s ordinance and the ways that ordinance conflicts with settled law in Pennsylvania. The specific problems with the ordinance include:
- Horse stocking rate and pasture requirements: Bucknam points out that the “3 and 2” regulation in the ordinance directly conflicts with state law. “The Township cannot permit agriculture as a use in a zone and then limit the amount of animals an operator can have based on acreage because that is not a valid zoning purpose and the State regulates animal density levels through nutrient management requirements.”
- Setbacks from watercourse and steep slope requirements: The ordinance as written mandates setbacks for pasture areas that fall within the Township’s Floodplain Conservation Overlay District. However, the state’s existing requirement for farms to develop approved nutrient management plans addresses the issue of protection of waterways. Bucknam suggests that the Township amend the ordinance to require horse farms to provide proof of written manure management plans. The ordinance further requires horse farm owners to employ Best Management Practices within the Steep Slope Conservation Overlay District. The state contends that requirement is invalid because “it is vague and ambiguous and DEP already regulates erosion and sediment control on agricultural operations.”
- Special exception requirement for commercial equine operations: The Newlin Township ordinance requires so-called “commercial” operations to apply for special exceptions in order to comply with the ordinance. While Bucknam’s analysis points out that townships do have the authority to designate certain land uses that require special exception, Newlin Township’s ordinance is not acceptable, because it creates a zoning paradigm that is “irrational, unreasonable, confiscatory or discriminatory.” State courts have previously overturned zoning that appears to draw distinctions that have no apparent relationship to overarching plans within a municipality. In this case, the fact that the zoning distinction is based on whether or not a horse farm accepts money for boarding or lessons fails the test of reasonableness because the Township has not proved that there is a rational basis for the distinction. Instead, the Attorney General’s office suggests that the Township address the underlying concerns that led to the distinction, such as traffic or other issues.
- Horse training versus riding lessons: The Township’s zoning officer notified the owners of Laureleye Farm that they could not advertise the fact that they offer training at the farm. Bucknam’s letter points out that “the term ‘training’ is not contained under the definition of ‘commercial equine activity’ in the ordinance,” and therefore the ordinance does not apply. The Attorney General’s office researched the distinction between “training” and “riding lessons,” and found that training is a common practice at equine facilities, and is used to maintain condition and fitness of horses. Thus it was inappropriate for the zoning officer to preclude Laureleye Farm from advertising and offering training to boarders at their facility.
As a result of these conflicts with established Pennsylvania law regarding agricultural operations, Bucknam’s letter advised Township supervisors that “we are prepared to bring legal action against the Township pursuant to Section 315 of ACRE to invalidate or enjoin the enforcement of the Ordinance provisions.” The letter was partly an effort to point out the ordinance’s deficiencies, and partly an offer to the Township for some kind of dialog that might alter the ordinance so that it complies with state law.
“What You Did Was Illegal”
Dr. Steven Siepser and his wife Susannah Small own Laureleye Farm. Siepser spoke at the Monday, November 10 meeting of the Newlin Township Supervisors. He had expected the ordinance to be on the agenda, since he and others had received copies of Bucknam’s letter, dated November 5, the previous week. But the supervisors declined to discuss the letter or the ordinance. John Good, the Township solicitor, was not present at the meeting; the board’s refusal to comment on or discuss the ordinance frustrated Siepser and other farm owners in attendance.
“Township leaders should use the expertise of your community,” he said. “Listen to the people. We’re not stupid. What you did was illegal.” When Supervisors Chair Janie Baird said that they had not reviewed the letter yet, Siepser was astonished. “So you get a letter from the Attorney General—do you get one of these every week?” he asked.
Laura Shannon, who owns Heather Hill Farm, asked the Supervisors whether they were planning to meet with the state, and if they were going to rescind the ordinance. Baird said she had no comment. “I would ask the board to please work with us better,” Shannon said. “Whatever you wind up doing regarding open space, it’s important that we be heard. This is a very good lesson for all of us.”
Siepser and others at the meeting were bewildered by the Supervisors’ response. He’s incredulous that somehow a local dispute turned into this community-wide conflict. “I don’t have the back story,” he says. “Why does a community like this with such skilled people around, why did they ignore our input with such disdain?” He said that the horse industry in the Township generates millions of dollars a year. “It’s all clean and green,” he says, wondering why the Township would jeopardize this revenue stream with an ordinance that could drive some of the horse farms away. “My concern going forward is I don’t want them to spend my tax dollars” litigating this ordinance with the state.
It appears that the horse owners will have to wait, possibly until 2016, for a resolution. Baird says that she has no plans to put the ordinance on the agenda for the December meeting, either. “At this point it will not be on the December agenda,” Baird says. “We just got this on Monday night (November 10). We have no plans for it at this point.” After reiterating that she did not wish to comment on the ordinance or its possible repeal, Baird suggested that time is not of the essence. “The Attorney General took a year to review it, so we do not plan to have a discussion on it.” She says that they have not had time to consult with the Township solicitor.