Bethel Township Planning Commission seeks legal opinion on spot zoning

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The Bethel Township Planning Commission received a zoning change request but took no action on it during their Tuesday, Aug. 19 meeting. 

Instead, they passed a motion asking supervisors to direct the township solicitor to research legalities surrounding spot zoning. The motion was made since questions have been raised asking whether this zoning change request from Bell & Evans meets that legal definition. 

Planning commission member Tim Showers, whose land in the 100 block of Market Street, Fredericksburg, would be rezoned from rural residential to agriculture, abstained from voting on the measure. Planning commission member Christine Spangler did not attend the meeting.

The poultry producer wants to establish a grain mill and a second hatchery operation at 181 Market St. since the firm has encountered stormwater management issues at a previously approved site at Legionaire Drive along U.S. Route 22. 

The audience Tuesday spilled out of the conference room and into the hallway as Bell & Evans solicitor Beth Kohl presented the request to the planning commission.

She noted the company is the “equitable owner of the Showers’ property.”  When asked later what that means, she said an equitable ownership contract exists for Bell & Evans to purchase the farm, although the company doesn’t currently own the property.

The zoning request would change about 92 acres on the north side of I-78 between Pine Grove and Blue Mountain roads from rural residential to agricultural, according to Kohl, a real estate attorney with law firm Barley & Snyder.

She also addressed spot zoning, since the issue was raised at a prior meeting.

“The threshold issue in Pennsylvania for spot zoning is that you’re zoning something distinctly different from everything around it. There’s no industry back (there) now,” Kohl said, which led to simultaneous remarks from the audience. Commission chairman Dale Snader responded to the audible comments by saying, “Please.”

Kohl then continued with her explanation.

“So in this scenario, the agriculture district already touches the property. The property is already being used for an agricultural animal operation, and this would be continuing that,” Kohl said. “I’m not going to get into depth on all of the legal zoning analysis, but we are confident that the township would be certainly well within its rights to make this zoning change. We don’t want to put the township in a position where we would think that would be a question. And we wouldn’t be asking for this if we didn’t think it would sound very convincing.”

Snader said he had conducted research on spot zoning, which in short is when a local government singles out a small parcel of land and gives it a zoning rule different from the surrounding area.

Neither the township’s planning code nor township ordinances provide a definition of spot zoning, Snader said. That led him to do more research.

“So I went to Google, which is really dangerous, and I found something that said, ’Pennsylvania Supreme Court has identified spot zoning as’ and I forwarded that to our attorney, the township’s attorney, to just say, ‘Is this good?’ And I thought it was a simple question, but apparently it’s not,” Snader added.

Snader asked fellow commission member and township supervisor Dave Brubaker if he knew whether solicitor Andrew Morrow had followed up on the commission’s request. Brubaker said Morrow had not yet been authorized by supervisors to conduct research on what case law says regarding spot zoning. 

That eventually led, at the recommendation of township engineer Matthew Mack, to commission members making a motion to ask supervisors to have Morrow do the necessary legal research. 

Kohl offered additional comments regarding spot zoning.

“You would want to make sure that the township felt comfortable, but I’ve worked in this realm for decades, and the legal standard, I think, is very clear that the zoning, that preliminary threshold issue of, are you really creating an island?” said Kohl. “And in this scenario, that’s not the case. It is not distinct from the things around it. It is not arbitrary or unreasonable. There are factors related to this property and its location immediately adjacent to a major interstate that clearly could distinguish and support the decision if the board legislatively decided that it thought this rezoning was appropriate. I’ll leave it at that. It is a fact-specific analysis.”

Several planning commission members said they would rather wait for a legal opinion on spot zoning before issuing a decision on this zoning request.  

Commission member Bruce Light questioned whether allowing this to occur would open the township to others looking to place similar operations within the municipality.

“If we would zone it agriculture, I would call that normal agriculture practices. But a commercial feed mill that’s hauling hundreds of thousands of tons away, that’s not normal agriculture in my (opinion),” Light said. “And does that open up the township for the next egg factory that wants to break eggs on a farm out in the middle of Bethel Township?”

Kohl said the company’s position is that it isn’t a commercial operation. Light replied that he believes it’s a gray area and asked what is considered to be “normal farming practices.”

“I guess my point is just that it is part of a fully integrated operation that Bell & Evans would be transporting all of the feed to the farms. It is not open to other parties who want the feed,” Kohl replied. 

“Bell & Evans is a good neighbor,” Light said. “But I’m saying are you opening us up to other industries coming in and saying, ‘Well, we’re breeding eggs, we’re going to bring a whole lot of eggs from all over the country here and make liquid eggs out of them.’”

Kohl said the company is requesting language from the township that would say the feed mill is “appropriate within certain parameters.”

Snader noted that the financial considerations involving agricultural have changed over the past two decades when the township’s former comprehensive plan was implemented.

“I know that this township 25 years ago, when the comprehensive plan was done, it was very obvious that the township wanted the area to stay agriculture,” Snader said. “They liked seeing the fields and all that other good stuff, but unfortunately this is part of agriculture. You can’t just milk 50 cows anymore and make a living. Am I correct? So little chicken houses and all the other things that are going on.”

Snader asked about traffic and the company’s plans for the growth of additional chicken houses within the township over the next 10 years. Bell & Evans CEO Mike Bracrella said he would have growth information at the commission’s September meeting.

Earlier in the meeting, Kohl discussed traffic patterns that would emanate from the operation if approved. She said the westbound ramp to I-78 is right across the street from the property while eastbound traffic would go under I-78 to U.S. Route 22. 

“I think there is some feeling that, you know, land immediately next to 78 may not be the most prime residential development land, and so from the township’s perspective, this is allowing for use of the properties is the way that the farm keeps this close to the main (traffic) corridors,” Kohl added.

Public opposition

The zoning request did receive opposition during public comment. 

Amy Horst, who said she is a real estate agent, asked where people will live with so little land zoned residential within the municipality. She also said the operation will lower local property values, adding residents don’t want to see a 75-foot grain mill tower in their backyards.

Marcus Elshaug – who, like Horst, lives on Blue Mountain Drive – echoed Light’s sentiment, saying it would be a commercial operation, not agricultural.

Joyce Myers, who lives on Poplar Street, said Bell & Evans is a wonderful company, she loves their chicken, and the employees are great people, but she called for a halt to more development from the company in the Fredericksburg area. She cited traffic concerns, especially from trucks, and the availability of water for residents. 

“We are busting out of the seams. We don’t need any more development. And I’m sorry that Bell & Evans just thinks they need to grow, grow, grow,” Myers said. “We also don’t have any water.”

Myers said Fredericksburg Sewer & Water told her that 87% of their water each month is purchased by Bell & Evans, adding that the company has a “huge contract with the City of Lebanon (Authority) because they still don’t have enough water.”

“They put in all, they bought all kinds of land, have all kinds of wells everywhere, and these wells are not producing as much as they thought they would,” she said.

Farmer Dale Maulfair, whose property is along Center St., defended Showers’ right to do with his land as he pleases. He said farmers receive complaints – whether that be how and what they farm or if they decide to sell it for other uses.

Other planning commission business

In other business, the planning commission unanimously voted to:

• Grant a time extension to Dec. 11 for the Bell & Evans’ Plant 2 parking expansion plan project. 
• Provide a time extension to Palmyra Homes to Dec. 12 for a mobile home park expansion project.
• Approve their July 21 meeting minutes. 

Next meeting

The next scheduled meeting of the Bethel Township Planning Commission is Sept. 15 at 7 p.m. in the municipal building at 3015 S. Pine St., Fredericksburg.