January 2016 | Newlin Township Lawyers Up
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Newlin Township Lawyers Up

Suzanne Bush - January 2016

Susan HoffmanSusan Hoffman, spokesman for the Concerned Citizens of Newlin Township

Newlin Township’s Board of Supervisors has apparently decided that more attorney fees will solve the problems created by the so-called Equestrian Ordinance passed in October 2014. The Township has retained two attorneys from a West Chester law firm to meet with Pennsylvania’s Senior Attorney General Susan Bucknam. Bucknam had notified the Supervisors in November that the Equestrian Ordinance violates the state’s 2005 Agriculture, Communities and Rural Environment Act (ACRE), and that the state was prepared to bring legal action to prevent enforcement of the ordinance.

The ordinance at issue, passed unanimously by the three-person board of supervisors, 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.

The rural Chester County township is home to many of the country’s most accomplished equestrians, who felt their livelihoods and property values—and even the rural nature of the township--were threatened by the restrictions.

No Action, No Comment
At the December 14th meeting, Supervisors Chair Janie Baird announced that in the six weeks since receiving Bucknam’s letter, no action had been taken, and the board would have no comments on the issue. “Our solicitors were given a copy of the Attorney General’s letter and they have reviewed the letter and will be discussing with the board tonight in executive session,” she said. “Since this is a legal issue, the board will not comment on the content of the Attorney General’s letter at our regular meeting tonight nor address the way forward. When we have something to share with you we will do so.”

Baird did not respond to a phone call and two email requests for information in the days after the meeting. But the silence from the Board of Supervisors has not discouraged residents from speaking out and seeking solutions.

“They’ve Lost Our Trust”
The residents who opposed the ordinance formed a committee called Concerned Citizens of Newlin Township, to help coordinate responses to this ordinance and other actions the Board of Supervisors might take. Susan Hoffman, the group’s spokesman, said they are curious about why the Supervisors hired additional lawyers, at township expense, when the township already has a solicitor paid to represent its interests. "They (the Supervisors) say they don’t have money for things. They can find money for things they want to find money for.”

She says her group is confused about why the Supervisors are not being more forthcoming with information, and why they don’t accept the most obvious solution as far as this ordinance is concerned. “I don’t know if the township’s goal is to try to save this ordinance, or to see if they can bow out as gracefully as possible. Susan Bucknam made it very clear how the township could fix this.” The Attorney General’s 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.

The Board did announce a proposal to fund open space conservation by enacting a new tax. Questioned about how this would work, and how much research had been done about alternatives, Supervisor Bob Pearson said “Well, if you vote against this tax, then you’re voting against open space.”

Beside the fact that horse owners are among the most passionate defenders of open space, Hoffman and her group found Pearson’s statement condescending and insulting. In multiple email exchanges among the Concerned Citizens group after the meeting, it was clear that the Board’s latest proposal was not embraced enthusiastically. Hoffman and her group say that Pearson’s comment reflects a Board that is out of touch with the residents it represents. “Nobody wants that kind of representation in their township,” she says. “You can’t have a Board that doesn’t communicate and is not transparent. Unfortunately they’ve lost our trust. They could come up with something that’s better than sliced bread, but we won’t trust them.”

An Issue with Far-Reaching Implications
In the public comment period of the meeting on December 14th, Hoffman formally presented a number of requests to the Board of Supervisors on behalf of the Concerned Citizens of Newlin Township. She asked that Bucknam’s letter be posted on the Township’s website as a matter of public record. Additionally, she wanted the Supervisors to estimate a time frame for responding to that letter, and to let residents know whether and when a meeting would be scheduled with Bucknam. She also asked that the Concerned Citizens’ requests and questions be entered into the meeting minutes. “I speak for many, if not all of the residents,” she explained, “when I say we support the findings and recommendations of the Office of the Attorney General 100 per cent.”

The Board’s minutes from the November meeting didn’t reveal much about the level of concern voiced by residents about the disputed ordinance, and the Attorney General’s findings. In fact, the minutes divulged few details about the comments by two of the residents who spoke. “Residents Steve Siepser and Laura Maurer had questions and comments for the Board in regards to copies they had received of a letter addressed to Newlin Township by the PA Attorney General’s office in reference to Ordinance 2014-1. Janie Baird replied the Board will not make any comments tonight as they were just presented with the letter and will need time to review.”

Hoffman says that the lack of transparency is unacceptable and reflects a lack of understanding of the importance of the Supervisors’ work. “This is a very important issue that goes far beyond our little neck of the woods and I don’t think they understand that. I hark back to the very first arguments about this and they said they had no choice but to do this. They had lots of choices, and the choice they picked spent money we didn’t have, but it didn’t even address the issue.”

The Problems with the Ordinance
Senior Deputy Attorney General Susan Buckman found the following problems with the Newlin Township ordinance:

  • 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.” 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 a common and appropriate practice and is not contained under the definition of ‘commercial equine activity’ in the ordinance,” and therefore the ordinance does not apply.