April 2016 | Newlin Township Residents Still Hunting for Resolution
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Newlin Township Residents Still Hunting for Resolution

Suzanne Bush - April 2016

The mood in Newlin Township, Chester County, PA is still fraught with anger and resentment over the Equestrian Ordinance passed by the Board of Supervisors in 2014. At the March 14 meeting of the township supervisors, residents hoping to see the ordinance rescinded were disappointed. The supervisors insisted that they have no control over the process.

“We are working with the Attorney General and following her direction to find a solution to this problem,” supervisor Bob Pearson said. “She is driving the boat. We are not driving the boat.”

Newlin Township’s infamous Equestrian Ordinance was passed in October 2014. The ordinance made distinctions between commercial and private equine facilities. Those facilities deemed to be commercial became subject to restrictions governing how many horses they could have on the properties. The ordinance requires a commercial operation—that is a facility which charges board for horses or offers lessons—to have three acres for the first horse and two acres for each additional horse on the property. 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.

Members of the Concerned Citizens of Newlin Township, a group formed in response to and opposed to the Equestrian Ordinance, were not appeased by the assertion that the supervisors’ hands were tied.

“I’m almost insulted that you could sit up there tonight and say ‘well, we’re just doing what the Attorney General asked,’” Susan Hoffman complained. “What’s YOUR problem? As if the problem is with us. The problem is not with us. You start off with a bad idea, against lots of protests. You went through with the bad idea. You fostered a situation where there’s no communication, and an adversarial relationship, in a small Mayberry township and that’s ridiculous.” Hoffman is spokesman for the Concerned Citizens.

The supervisors refused to engage in a discussion of the ordinance, other than to say that they are now following orders from the state. “We’re meeting with DEP (the Department of Environmental Protection) and Soil Conservation because that’s what the Attorney General told us to do,” Janie Baird explained. “We’re also supposed to meet with the Penn State Extension. And the ordinance in its entirety was not considered illegal. Portions of the ordinance were found to be illegal.”

Parts of the Ordinance Are Clearly Illegal
Senior Attorney General Susan Bucknum’s assessment of the ordinance was unambiguous. In November 2015, she informed the Newlin Township Supervisors that the ordinance conflicts with settled law in Pennsylvania in several ways. “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.” The so-called “3 and 2” regulation is not legal.

The ordinance’s special exception for so-called commercial operations also violates state law, according to Bucknum. While her 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.

Bucknum did suggest amending the part of the ordinance that requires setbacks for pasture areas. As written, the ordinance mandates setbacks for those pasture areas that fall within the Township’s Floodplain Conservation Overlay District. But Pennsylvania already requires farms to develop approved nutrient management plans, and that requirement is meant to protect waterways. In her letter Bucknum suggested that the Township amend the ordinance to require operators of horse farms to provide proof of written manure management plans. The ordinance as it currently stands also 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.”

The Township Supervisors seem to be working on the portion of the ordinance that requires setbacks, and they had no comments during the meeting about any of the other—more controversial-- provisions in the ordinance.

Lack of Communication Spurs Anger
“We really are in the dark,” Lisa Thomas said. “All I’m saying is I can’t stand coming to the meetings on Monday night and listening to the spite. It’s ridiculous. We all need to come to an agreement on this.” She said that the lack of communication from the supervisors creates frustration. “If you could just respond to us about what’s going on. Then when we come to the meetings, we wouldn’t be so up in arms.” The Concerned Citizens are angry because they believe that it is taking too much time for the supervisors to resolve the situation with the ordinance.

Janie Baird explained that the ordinance had been in the works for 18 months, and supervisor Bob Pearson pointed out that it took the Attorney General’s office a year to respond.

“I mean it’s really become, a comedy and something to cry over,” Thomas said. “I understand what you’re saying that the Attorney General’s office took a year to respond, but what I hear there when you say that is ‘they took their time, we’re going to stick our feet in the mud and take our time.’ That’s what I hear. That’s what I hear.”

“Why not just do what the state already has as their regulation and be done with it, instead of spending more money?” Ed Brown asked. “And we could be done with it once and for all.  The people who board horses are good stewards of the land, not bad stewards.”

Laura Shannon asked why the residents’ comments at the meetings and the letter from the Attorney General’s office were not posted on the township’s website. Baird responded by reading a portion of the state’s Sunshine Law, which requires only the names of residents who comment, not the actual comments, to be recorded in the minutes. “We can communicate whatever our attorney tells us to communicate.”

“What Problem Are You Solving?”
At the core of the residents’ concerns was the question of why the supervisors were not simply rescinding the ordinance. “What is the reason for not just rescinding the ordinance?” Shannon asked. Baird said that part of it is just not legal. “Well then, change it and be done with it. Why are we having to spend township financial resources. Your time, the time and money for attorneys, why is this necessary?” Shannon responded. “What are we fixing with retaining a piece of a bad ordinance? What are we protecting?”

Pearson suggested that Bucknum may not have a complete picture of the issues in Chester County. “That’s not to say the Attorney General may not revise her view of things when she receives certain information,” he said. “She may not be hard and fast in what she said when she comes to Newlin Township and looks around and talks to Chester County soil conservation and meets with DEP, and extension. She’s not informed about what goes on in Chester County. She’s informed about what’s going on in Harrisburg.”

Shannon wanted something more specific. “But what problem are you solving, gentlemen and lady? What problem are you solving with this insistence on working this ordinance?”

Baird explained that Bucknum made a number of suggestions to make the ordinance work, and that’s why the supervisors are meeting with Penn State about soil conservation. “It just takes time, and I’m sorry that it takes time.”

“If we could understand what you’re trying to fix, we would not be adversarial. We would work with you and be good citizens and friendly about it. We’d be on the same team,” Shannon said.

“Didn’t This All Start Because of Traffic?”
The Equestrian Ordinance grew from the township’s attempts to respond to a resident’s complaints about traffic on a road. It has become a cause celebre in Newlin Township, and a civics lesson for those opposed to the ordinance as well as those who created it. The money and time that have been invested in an ordinance that the state contends is illegal in several respects cannot be recaptured. The relationships between the elected supervisors and many residents may have been fractured forever. “You are really not the representatives of this township. I don’t want to make it personal, but I can not only not wait for this ordinance to be overturned, rescinded, amended, whatever is going to happen to it, and vote all of you out of office,” Hoffman said.