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Pennsylvania takes the ax to North Coventry logging law

July 26, 2018
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In this undated photo, Gary Westlake Sr., owner of about 170 acres of forest land in Warwick and North Coventry townships, Pa., explains how lumber cut on the Warwick side of his property will be transported to the saw mill. Westlake, like other farmers who have objected to local ordinances across Pennsylvania, feels his logging operations are being illegally restricted by a North Coventry Township ordinance. (Evan Brandt/The Mercury via AP)

POTTSTOWN, Pa. (AP) — Gary Westlake would like you to imagine a township law that tells a farmer when to harvest his corn, or what kind of feed to use to fatten up her hogs.

He think’s you’ll agree with him that such a law would seem like a lot of government interference in a farmer’s operation.

Westlake is a farmer too, except his crop is trees.

And like other farmers who have objected to local ordinances across Pennsylvania, Westlake feels his logging operations are being illegally restricted by a North Coventry Township ordinance and, judging by a 163-page ruling issued a special office of the Pennsylvania Attorney General, he’s right.

True, Westlake’s is not a crop that gets harvested every year, it is on something closer to a 10-year-cycle. It is an operation he and his family have managed on 170 acres of woodland off North Hill Camp Road for three generations.

But in March of 2016, when Westlake informed the North Coventry Supervisors he intended to commence logging on 60 acres he owns, 30 of which are in North Coventry and 30 of which are in Warwick Township, he discovered that the local ordinances had changed since he did the same thing 10 years earlier, and there were many more requirements to meet before he could begin.

Since then, a special branch of the Pennsylvania Attorney General’s office set up under a state law to determine if local agriculture ordinances are too restrictive, has determined that many aspects of North Coventry’s ordinance are exactly that.

His land is adjacent to some protected land owned by the township and Westlake had asked for and received permission to use an existing logging road on township property rather than cut a new one, according to Township Manager Kevin Hennessey.

Westlake’s property is adjacent to the “Coventry Woods” acreage North Coventry purchased and preserved as part of its open space preservation efforts.

Hennessey said since the timbering ordinance was adopted, North Coventry has seen “a dozen or so different timber harvests without issues with any of the provisions of the law.”

But Westlake was upset that the supervisors had not consulted him or other owners of forested lands, before adopting the ordinance.

“If you’re going to make a law regulating widgets, you would think that you’d contact a widget maker first,” he said.

Ironically, Westlake’s property is part of North Coventry’s agricultural security area.

“They say they enacted ASAs to preserve the township’s rural character. Well, if you want rural character, you need to allow rural activities,” said Westlake. “If they tried to pass this law in central Pennsylvania, it would be considered a joke.”

North Coventry’s ordinance, he said, represents “agricultural discrimination” against those who practice “silvilculture” by requiring more permits, measurements and plans than any other kind of agriculture.

The U.S. Forest Service defines “silviculture” as “the art and science of controlling the establishment, growth, composition, health, and quality of forests and woodlands to meet the diverse needs and values of landowners and society such as wildlife habitat, timber, water resources, restoration, and recreation on a sustainable basis.”

What the state considers “normal agriculture operations” for everything from fish hatcheries, to orchards to traditional farms,” are all protected by the state and the municipalities planning code — “and the only exception is for a timber harvest. Even nursery’s and Christmas tree farms are exempted,” he said.

Westlake would know — his family operates a Christmas Tree farm on his property.

So on March 8, 2017, he turned to something called the ACRE law and asked for a review the North Coventry ordinance.

The ACRE law — which stands for Agriculture, Communities and Rural Environment — took effect on July 6, 2005, giving farmers the right to ask the attorney general’s office to review local ordinances that they feel unlawfully restrict “normal agricultural operations” or ownership.

Each year, the Attorney General’s ACRE office hears, rules and settles dozens of disputes regarding municipal ordinances that affect agriculture.

In its 2017 annual report, the ACRE office reported that since 2005, it has received 147 requests to review local ordinances; sent 58 notices to municipalities of legal problems with ordinances; brought seven legal actions against municipalities to invalidate or enjoin the enforcement of an unauthorized local ordinance; and resolved 48 out of the 58 reviews that were accepted due to legal problems with ordinances.

One month after Westlake filed his complaint, on April 26, 2017, North Coventry Township Solicitor Lawrence Sager responded to Westlake’s request for a review with a 16-page defense of the ordinance.

He wrote that North Coventry has seen 12 timber harvests since the logging law was adopted in 2009 ranging in scope from seven to 36 acres.

“Accordingly, it is difficult for one to argue that the North Coventry Timber Harvesting Ordinance precludes timber harvesting,” Sager wrote.

He also wrote that Westlake was “invited to meet with the solicitor to discuss the license” but chose instead to file his ACRE challenge.

“The township’s position is that a lot more is achieved by reasonable dialogue. Collaboration rather than confrontation is the key to good government and civic involvement,” Sager wrote.

But in this case, confrontation worked out pretty well for Westlake.

In his June 8 response to Westlake’s challenge of North Coventry’s ordinance, Senior Deputy Attorney General Robert Willig found:

. numerous provisions that contradicted existing state rules, were at odds with “best management practices” developed by Penn State University College of Agricultural Sciences;

. that its $1,000 application fee is excessive;

. that’s its prohibition against logging on slopes in excess of 25 percent grade was excessive;

. and its prohibition against harvesting “specimen trees” could not be enforced because the term is not well defined — among other things.

Willig said North Coventry has two options — change its ordinance in all the ways he described; or rescind it and adopt Penn State’s “model ordinance” governing timber operations which has no points of conflict with state law.

Hennessey declined to provide the most recent copy of the township’s response to Willig, saying it may soon be the subject of litigation.

However, Westlake provided it and the three-page letter Sager wrote dated June 28 was much briefer and much more conciliatory, outlining 12 changes Willig had highlighted that the township would agree to make to its logging law.

What happens now is unclear.

But Westlake said when he attended the North Coventry Supervisors meeting Monday, it was evident to him that the township wants to work with him.

It’s too soon to say whether or not that means a complete revision of the law.

It’s already too late for Westlake to get his permit to harvest the trees on the North Coventry side of his property this year at the same time as harvesting that is now going on on the Warwick side of his property.

Luckily for Westlake, a similar ordinance in Warwick Township was not yet adopted when he applied, so he has been able, in recent months, to log the 30 acres of his land in Warwick under the older, less-restrictive ordinance.

Even under the older, less-restrictive Warwick ordinance, Westlake points out the many steps that must be undertaken before a chain saw touches a trunk.

He points to permits and plans that must be posted on-site, the consultations made with his forester and the “forest stewardship plan, which is how the harvester, or logger, goes about harvesting in a select manner, in and around select trees, in and around select areas, protecting riparian buffers.”

He adds that plan “is a living document. We may be looking at harvesting and area, look back at how it was done 10 years ago, decide certain things didn’t work and try to see if we can’t improve on what we did last time.”

But despite these steps, Warwick’s newer ordinance may become a problem for Westlake when he gets ready to harvest other acreage in that township.

But if the Warwick law is challenged as well, it won’t be the only Chester County town to run afoul of the attorney general’s ACRE office when it comes to timber harvesting.

. In 2016, the ACRE office began negotiations with East Nantmeal Township after land owner Jim Moore complained about logging restrictions there in an effort to resolve the problems through ordinance amendments and avoid a direct legal challenge.

In its 2017 annual report, the office announced it “intends to use the East Nantmeal case as a template in which to analyze other timber harvesting cases.”

. In the meantime, the office is investigating an East Brandywine ordinance that applies to selling lumber harvested from a landowner’s property.

. Also pending is ACRE complainant challenging ordinances concerning Natural Resource Protection Standards and Stormwater Management regulations as they pertain to timber harvesting in Pennsbury Township.

Other farming activities in Chester County have also attracted the office’s attention.

. In 2007, the office challenged an ordinance in Lower Oxford, Chester County, that regulated mushroom growers.

. Horse farmers in Newlin Township got together and requested an ACRE review of the township’s zoning regulations regarding equine operations and, “after extensive negotiations,” the township changed its zoning code, according to the annual report.

. The office also resolved issues with a West Fallowfield Township ordinance’s provisions for signs at roadside stands and restrictions on the keeping of livestock.

. In Highland Township, problems with that township’s water supply ordinance and requirements that ran afoul of a turkey farmer there were resolved without litigation.

. The report also highlighted a landowner’s complaints that Westtown Township is not permitting a landowner to have roosters on her property. The ordinance review is pending.

The Pennsylvania Attorney General’s office has also brought challenges against agriculture laws in Richmond Township, near Fleetwood, as well as a joint agriculture ordinance in the western Berks County municipalities of Heidelberg, North Heidelberg, Robesonia townships and Womelsdorf borough, according to the Attorney General’s office.

Also in Berks County, the office is currently reviewing zoning regulations regarding fencing for agricultural operations in Hereford Township, as well as a drilling and irrigation ordinance in Longswamp Township and ordinances in Maxatawny Township.

As suburbs push ever further from developed cities, those who live in them increasingly come into conflict with aspects of rural activity for which they were unprepared, like the smell and noises associated with farming.

Local governments can sometimes attempt to resolve these conflict with local ordinances that make farming more difficult.

That inhibits one of Pennsylvania’s largest industries.

Agriculture’s total annual economic impact in Pennsylvania is more than $70 billion, according to the ACRE office. One in seven Pennsylvania jobs is in some way relayed to agriculture.

Pennsylvania has more than 58,000 farms covering seven billion acres and, with more than 2,500 distinct districts and municipalities in the Commonwealth, “disagreements, misunderstandings and friction will occur,” according to the attorney general’s office

According to a 2015 discussion of the law delivered by the attorney general’s office at the Pennsylvania Farm Show, “the central purpose of ACRE is to protect normal agricultural operations from unauthorized local regulation. The intent of ACRE is to resolve conflicts that may arise from the regulation of normal agricultural operations at the local level.”

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Online:

https://bit.ly/2LMZ1ju

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Information from: The Mercury, http://www.pottsmerc.com

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