CLEVELAND TOWNSHIP - Disgruntled R2 District residents of Cleveland Township may have been feeling like they're fighting an uphill battle against concentrated animal feeding operations (CAFO), but the executive director of Peach Bottom Concerned Citizens Group (PBCCG) said there are options for those in similar situations.
It's been argued by Cleveland Township supervisors that the Acre Law (Act 38) supersedes any local ordinance, but Maria Payan, who was contacted by township residents this past week to discuss how to proceed with their problem, said there are ways to get around the law.
"We cannot write regulations that are more stringent than the state, but we can write health ordinances," said Payan, who has been fighting against CAFOs since 2006.
The mission of PBCCG is to encourage all citizens to educate themselves and become involved in all matters pertaining to their quality of life. Her organization has advised residents in more than 25 communities in six years on how to handle CAFOs. Additionally, they advocate to support farming in relation to Marcellus Shale and the natural gas industry, among any other perceived threats to farms.
Stephen L. Weber Jr., a legal research assistant at the Agriculture Law Resource and Reference Center at Penn State University, wrote in 2005 that the state passed House Bill 1646, commonly known as the Act 38, or ACRE, which was part of a larger plan to address certain issues affecting agriculture litigation in the state.
The two issues the law deals with are "conflicts between agricultural operations and local ordinances and odor management for concentrated animal feeding operations," Weber wrote.
Essentially, the ACRE program is the state's answer to the conflict between local government ordinances and the interest of farmers by prohibiting unauthorized local ordinances, he wrote.
Aggrieved farmers can also request the state attorney general's review of potentially unauthorized ordinances, he wrote.
Act 38 addresses management practices, but not potential health issues, such as pathogens problems, water contamination or air quality, Payan said.
Health issues have been addressed in local ordinance, like in the case of Linn County, Missouri, in 1999.
The Missouri Court of Appeals in 1999 held that Linn County has the power to make additional health ordinances in relation to CAFOs to enhance the public health and to prevent the entrance to dangerous diseases, and state law does not preempt the conversional ordinance because it is not in conflict with any state law.
According to the court documents, "The ordinance was not a zoning ordinance but was indeed a health ordinance. The provisions in the ordinance as to building locations and setback provision were to protect nearby water and ground, as well as the air."
The Linn County ordinance also includes a land application setback, which restricted CAFOs from being built within 100 to 1,000 feet for dwellings, public areas, sinkholes, strip pits, wells, springs, streams and water supply sources.
A person wanting to establish a CAFO would have to apply for a health permit and be subject for review, Payan said.
Furthermore, a local government can establish a special or conditional-use permit so a public hearing will be held.
Local leadership and public are more savvy to the situations at the local level, she said.
"Harrisburg has no idea what's happening in our area. The people we elect know if we have a school or nursing home nearby. There needs to be conditions that are more sensitive," she said.
Otherwise, residents should take it upon themselves to stay educated and make noise, Payan added.
A petition was presented to the Cleveland Township Board of Supervisors in April asking for an amendment to the zoning ordinance to ban large-scale animal farms within 500 yards of a residential dwelling in their district.
The petition started when Joel Knoebel, of 110 Center School Road, spread pig manure on his farmland surrounding Wynn School, Middle and Polk roads.
The residents approached township supervisors to complain about the "overwhelming" stench and presented the petition to the planning department. The supervisors are expected to act on the petition at their next public meeting on May 15.
The amendment is to the zoning ordinance that permits agriculture and horticulture within the R2 Residential Medium Density District, which is designated by the township zoning ordinance to provide orderly expansion to residential development.
The amendment, which bans a CAFO from exceeding 100 livestock animals within 500 yards of a residential dwelling in the R2 District, was supported by the petition signers who say a large-scale pig operation would be detrimental to the health of the residents and the value of their properties.
Payan said it's not paranoid thinking because her community in York County dealth with health concerns when a 100,000-bird chicken farm was constructed near her house, which Payan says continues to cause problems for her family.
The smell has left her dizzy. In addition, her son has suffered blisters while bathing, liquid manure has been spilled and dead chickens have been brought to her yard by predators, she said.
"At what point do you allow someone to come in and negatively affect the businesses and residents? These are industrial businesses. They don't belong among a lot of people," she said.
By the time she and other residents were made aware of the incoming CAFO, it was too late, she said. The process had already begun.
Payan has two major problems with ACRE. First, it was initially passed under a one-line item "piggybacked on House Bill 1222 at midnight over Christmas" on a bill focusing on child protection act Megan's Law.
"Who's going to vote against that?" she said.
Second, the only requirement to informing local residents of incoming CAFOs is a notice of intent in the weekly Pennsylvania Bulletin and a three-week public comment period, which she said leaves residents little recourse.
"People don't know they need to look there. By the time communities finds out, it's in the process of being approved, or they don't know how to go about challenging it and what to do to protect themselves," she said.
There's little transparency and no one knows, she added.
Residents of Catawissa and Franklin townships did their best to fight the law when they learned Mark Rohrbach's plan to create a 4,800-pig farm, located off Rider Road.
"We tried our best with what we had. We raised money. We hired a lawyer from Harrisburg. He advised us, but to no avail," John Carlin, of Quarry Drive, Catawissa.
The process to build the farm had already begun, and the residents stopped fighting in late 2010 when the plans were approved for a smaller, 2,400-pig farm.
Carlin credits the residents' efforts against the CAFO for Rohrbach halving his farming operation.
Despite a smaller number of animals, Carlin said the quality of life has still decreased.
"It's brutal. It's not a normal manure odor. I don't mind that (regular manure), but this stuff, it smells like something is sick. It's a big problem over here," he said.
Township Chairman Chad Sokol and Vice Chairman James Molick both said there weren't many options for their residents.
"The township's hands are tied. We could only relay the message our residents were giving us," Sokol said.
Molick said the board was advised by their solicitor that state law would supersede their efforts.
"The law is the law. There is nothing the townships can do to stop it. State law said they can, they may and they shall," he said.
Sokol said being a government official is a balancing act for everyone in the municipality, a sentiment Molick agreed with.
"I always remember that supervisors were elected by taxpayers. We work for the taxpayers, but we do what the law says," Molick said.
And unless residents convince lawmakers to change state laws, current guidelines will remain, Payan said.
"There's no political will to change it. This legislation needs amendments to address health, safety and public welfare," she said.
Despite the law, Sokol relates to the residents' concerns.
"I come from a long family of farmers. Do I really want a CAFO in my backyard? Not completely," he said. "It can be very frustrating to be restricted in what we can do."