AN ORDINANCE REQUIRING BEST FLY MANAGEMENT PRACTICES FOR CONCENTRATED AGRICULTURAL OPERATIONS

SECTION 1 GENERAL

1.1 Title. This Ordinance shall be cited as the “Codorus Township Best Fly Management Practices for Concentrated Agricultural Operations” Ordinance

1.2 Intent. Codorus Township Board of Supervisors have always encouraged the growth of small scale, sustainable farm operations in Codorus Township that do not interfere with the use and enjoyment of adjacent properties owned by Codorus Township residents. The Codorus Township Board of Supervisors has determined that it is in the interest of the general health, safety, and welfare to take prudent steps to control the flies produced by concentrated agricultural operations that interfere with the use and enjoyment of property by adjacent landowners. The intent of this Ordinance is to:

A. Promote the general health, welfare, and safety of the citizens of Codorus Township.

B. Minimize danger to public health by protecting Codorus Township residents from possible health effects and lost productivity caused by fly swarms produced by concentrated agricultural operations.

C. Minimize the impact of fly swarms from concentrated agricultural operations upon Codorus Township’s tourist industry.

D. Provide guidance, through a permitting process, for landowners that wish to engage in concentrated agricultural operations that may produce fly swarms.

E. Inform the operators and owners of concentrated agricultural operations that produce flies who do not follow the procedures and practices established in this Ordinance that they may be in violation of this Ordinance and other Commonwealth and Federal nuisance and health laws.

1.3 Applicability. This Ordinance requires all persons, partnerships, businesses and corporations who have constructed or are constructing concentrated agricultural operations which contain a certain number of livestock per acre to prepare and submit a Fly Control Plan to the Codorus Township Board of Supervisors for approval. Upon approval, a permit will be issued to the owner or operator of the concentrated agricultural operation. The contents of the Fly Control Plan shall be
established within this Ordinance and shall provide for the use of Best Management Practices (BMP’s) for the suppression of fly swarms. Approval of a Fly Control Plan and issuance of a permit for operations is necessary prior to the operation of the agricultural operation. All existing concentrated livestock or poultry operations shall only be subject to the provisions of this Ordinance when the Codorus Township Supervisors, upon inspection, discovers one of the following conditions:

A. A situation exists which is causing, or is substantially threatening to cause, the production of fly swarms which are affecting, or will affect, adjacent landowners to the concentrated agricultural operation.

B. A majority of Landowners physically adjoining a concentrated agricultural operation petition the Codorus Township Board of Supervisors to include the operator or owner of a concentrated agricultural operation under the provisions of this Ordinance.

1.4 Exceptions. Certain existing and proposed concentrated agricultural operations may be exempt from certain requirements of this Ordinance as follows:

A. To the extent that non-commercial farming operations are excluded from the definition of “concentrated agricultural operations”, such farms are exempt from the provisions of this ordinance.

B. All agricultural livestock operations are exempted from the requirements of this Ordinance if the density of the livestock is less than one animal unit per acre. These operations are exempted unless and until additional animal units are added to those operations.

C. To the extent that a commercial farming operation does not qualify as a “Concentrated Agricultural Operation” under the provisions of this Ordinance.

1.5 Statement of Law. It is hereby declared by the Codorus Township Board of Supervisors that production of fly swarms from Concentrated Agricultural Operations shall be deemed a violation of this Ordinance.

SECTION 2 - DEFINITIONS

2.1 General Definitions. For Purposes of this Ordinance, the following general terms shall have the corresponding interpretation:

A. Words in the singular include the plural and those in the plural include the singular.

B. Words used in the present tense include the future tense.

C. The words “person”, “Applicant”, “operator”, and “owner”, include a corporation, unincorporated association, partnership, or any other business form assembled to carry out any business purpose; as well as an individual engaged in activities governed by this Ordinance.

D. The word “concentrated agricultural operation” shall be construed as if followed by the phrase “or part thereof.”

E. The words “should” and “may” are permissive; the words “must”, “shall”, and “will” are mandatory and directive.

2.2 Specific Definitions. For the purposes of this Ordinance, the following terms shall have the corresponding interpretation:

(1) “Animal Unit”. A unit of measure to compare various animal types.

One animal unit, equals the following:
1 beef feeder or slaughter animal, .5 swine. 1 dairy cow, 100 broiler chickens, 50 turkeys, 30 laying hens, ten sheep, and 1 horse.

(2) “Application for Permit”. A completed form, signed by the Applicant, requesting a permit from the Codorus Township Supervisors to construct a Concentrated Agricultural Operation. Such Application shall be submitted with a Fly Control Plan that conforms to the requirements established by the Codorus Township Supervisors and satisfies the requirements set forth by this Ordinance.

(3) “Board”. The Codorus Township Board of Supervisors.

(4) “Concentrated Agricultural Operation”. The management and use of farming resources for the production of livestock and poultry that utilizes, as a permanent population of animal units, over 200 animal units, and which is subject to regulation under the Nutrient Management Act, 3 P.S. ¤1701 et. seq.

(5) “Notice of Violation”. A written notice sent by certified mail from the Codorus Township Supervisors to the owner or operator of a Concentrated Agricultural Operation that, according to an on-site inspection, is in violation of certain provisions of this Ordinance.

(6) “Fly Control Plan”. A plan prepared by the owner or operator of a Concentrated Agricultural Operation that identifies the best management practices which will be implemented by the agricultural operation to eliminate any potential nuisance caused by fly swarms. Acceptable Best Management Practices (BMP’s are governed by this Ordinance.

(7) “Owner of a Concentrated Agricultural Operation”. Anyone who owns, either individually and/or with any other persons, any of the following
interests in the real property upon which a Concentrated Agricultural Operation is situated:

A. Fee simple title;
B. A leasehold interest;
C. Any interest in an entity which holds fee simple title; or
D. Any interest in any entity which has a leasehold interest.

(8) “Permit”. If the Fly Control Plan is approved by the Codorus Township Board of Supervisors, then the Board shall issue a permit to the owner or operator of the concentrated agricultural operation.

(9) “Permit Revocation”. A written statement issued by the Codorus Township Supervisors to the Owner or Operator of the Concentrated Agricultural Operation, declaring that the permit issued is being revoked for failure to comply with provisions of this Ordinance.

(10) “Production of Livestock and Poultry”. All persons, partnerships, businesses and corporations engaged in the business of raising any livestock or poultry for commercial production and sale of meat, eggs, milk, or other by-product, rather than for private consumption.

(11) “Variance”. The permission granted by the Codorus Township Board of Supervisors for a waiver of certain provisions of this Ordinance, or from the requirements of a notice of violation issued by the Township Supervisors, which, if strictly adhered to, would result in an unnecessary hardship, and where the permission granted would not be contrary to the public interest, and would maintain the spirit and original intent of this Ordinance.

SECTION 3 - FLY CONTROL PLANS

3.1. Contents. The Fly Control Plan shall include the following information:

A. The number, in animal units, of livestock or poultry that will be raised annually on the land tract owned or operated by the Concentrated Agricultural Operation;

B. A general description of the land that is the location of the Concentrated Agricultural Operation and the position of animal units on that land;

C. A copy of the nutrient management plan for the Concentrated Agricultural Operation;

D. Location and amounts of wastes that may produce fly swarms that may affect adjacent landowners.

E. Methods that will be utilized by the owner or operator to eliminate and minimize the production of fly swarms from the Concentrated Agricultural Operation, including a listing of processes and equipment to be used to achieve adequate control. The owner or operator shall select one of the options established by this Ordinance within Section 3.2 and install and operate such equipment within the guidelines offered by the manufacturer of the fly suppression system.

F. Scaled mapping or aerial photography indicating the location or expected locations of all structures where livestock or poultry will be raised and all structures and fields where nutrients or agricultural chemical products are proposed to be stored or applied. Such mapping shall be completed on a USGS Topography Map.

3.2. Best Management Practices and Acceptable Controls. Under Part (E) of the Fly Control Plan, each Concentrated Agricultural Operation shall be required to select one or more of the following Fly Control systems, which must be installed and operated according to manufacturer’s specifications:

(A) Fly Electrocution Systems - this system shall include the purchase, installation, and operation of adequate fly electrocution equipment to control fly swarms. Installation and operation of this system shall comply with manufacturer’s guidelines for the placement and extent of the installation of equipment necessary to operate this system. The Applicant shall select from a listing of manufacturers supplied by the Codorus Township Board of Supervisors.

(B) Pyrethrin Spray Systems - this system shall include the purchase, installation, and operation of overhead fly spray systems to control fly swarms. Installation and operation of this system shall comply with manufacturer’s guidelines for the placement and extent of the installation of equipment necessary to operate this system. The Applicant shall be required to select from a listing of manufacturers supplied by the Codorus Township Board of Supervisors.

(C) Fly Parasite Systems - this system shall include the purchase and use of fly parasites to control fly swarms. Purchase and use of these organisms shall comply with distributor’s guidelines. The Applicant shall be required to select from a listing of manufacturers supplied by the Codorus Township Board of Supervisors.

3.3 Presentation of Proof of Purchase and Installation to Township Supervisors. Following issuance of a permit as approval of the Fly Control Plan, the owner or operator of the Concentrated Agricultural Operation shall present proof of purchase and installation of the system represented within the approved Plan to the Board of Supervisors. Failure to produce such evidence of purchase and installation within sixty (60) days following issuance of the permit shall render such permit null and void.

3.4 Inspection. In fairness to all owners and operators of Concentrated Agricultural Operations in the Township of Codorus, all existing Concentrated Agricultural Operations shall be required to allow an inspection of operations to be made by the Board of Supervisors. The issuance of a permit for a Concentrated Agricultural Operation shall be deemed an authorization to the Board of Supervisors to inspect installation and maintenance of fly control equipment. Owners and Operators shall be given a forty-eight (48) hour advance notice in writing, unless there is sufficient evidence that an emergency situation or violation exists. Failure to permit inspection may result in the Township obtaining a search warrant to inspect operations in the presence of a County or State officer of the law.

SECTION 4 PERMIT ISSUANCE

4.1 Permits Required. All existing and proposed concentrated agricultural operations that are subject to the provisions of this Ordinance shall be required to obtain approval of the Fly Control Plan. Approval of the Fly Control Plan shall result in the issuance of a permit to the owner or operator of the concentrated agricultural operation.

4.2 Application Procedure. An application form requesting approval of the Fly Control Plan shall be completed, signed, and filed by the owner or operator of the Concentrated Agricultural Operation. Upon request, the Board of Supervisors shall supply the owner or operator with a copy of this Ordinance and a listing of the necessary supporting documents to be submitted with the application. In addition, the Supervisors shall send the owner or operator a listing of manufacturers providing the equipment necessary for the installation and use of Best Management Practices (BMP’s) for fly swarm suppression.

4.3 Required Information. Applications for a permit, pursuant to the provisions of this Ordinance, shall be made to the Board of Supervisors on forms provided by the Supervisors. The owner or operator of the Concentrated Agricultural Operation shall submit the proposed Fly Control Plan and a permit fee to the Board of Supervisors

4.4 Issuance of Permits. The Board of Supervisors shall notify the Applicant, in writing, of the decision to approve or deny the request for a permit within ninety (90) calendar days after receiving a completed Fly Control Plan and the necessary supporting documents. A permit may be obtained in person, by the Applicant or Applicant’s agent, or the permit may be sent by certified mail, return receipt requested, if requested by the Applicant.

4.5 Grounds for Denial. The Board of Supervisors shall deny the application for approval of the Fly Control Plan if:

(1) The necessary supporting documentation is not submitted with the application; or

(2) The necessary supporting documents are inadequate and fail to comply with the provisions of this Ordinance; or

(3) The owner or operator has previously violated environmental protection statutes of the Commonwealth, or the environmental protection statutes of other states or of the federal government, including, but not limited to, any violations of the provisions of any state or federal statute relating to environmental protection or to the protection of public health, safety, and welfare or any rule or regulation, order or any condition of any license issued by any state or federal regulatory agency; or

(4) The owner or operator of the Concentrated Agricultural Operation has shown a lack of ability or intention to comply with the requirements of this Ordinance.

4.6 Grounds for Denial. The Board of Supervisors may deny the application for a Fly Control Permit if:

(1) The owner or operator of the Concentrated Agricultural Operation unduly delays in making an application for a Fly Control Permit.

4.7 Fees To obtain a permit and to defray the cost of investigations for the Board of Supervisors, the Applicant shall remit a fee to the Township of Codorus in the amount of One Thousand Dollars ($1,000), payable by cash or check. The fee shall be submitted with the Fly Control Plan and shall be non-refundable.

4.8 Effect of Permit. A permit granted pursuant to the provisions of this Ordinance shall entitle the Applicant or Operator to operate the Concentrated Agricultural Operation. The Applicant or Operator shall comply fully with all applicable provisions of this Ordinance.

SECTION FIVE - APPEALS FROM PERMIT DENIAL

5.1 Notice of Denial. Notice of denial of permit pursuant to the provisions of this Ordinance shall be sent to the Applicant, in writing, by certified mail, return receipt requested, and shall plainly set forth the reason for the denial, whether mandatory or discretionary.

5.2 Remedy and Appeal. The Applicant, upon receipt of notice of denial, shall have fifteen (15) calendar days to undertake one of the following steps:

A. Revise the Fly Control Plan according to the requirements specified in the denial notice.

B. Request an extension of time to revise the application. Such extensions may be granted by the Board of Supervisors for the minimum duration appropriate to the situation. Such an extension shall be granted in writing.

C. Request an appeal hearing before the Codorus Township Board of Supervisors.

5.3 Failure to Remedy or Appeal. If the Applicant fails to notify the Board of Supervisors of a decision to act pursuant to Section 5.2 within fifteen (15) calendar days, the denial shall become effective on the sixteenth (16) calendar day.

SECTION SIX - ENFORCEMENT

6.1 Responsibility. Enforcement of the provisions of this Ordinance shall be the responsibility of the Board of Supervisors and any Code Enforcement Officer designated or hired by the Board of Supervisors.

6.2 Inspection and Notification of Violation. The Board of Supervisors shall inspect Concentrated Agricultural Operations throughout the Township. Any owner or operator suspected of being in violation of this Ordinance shall be sent, via certified mail, a written notice from the Board of Supervisors which shall clearly state the provisions of this Ordinance which appear to have been violated. Any operation notified of suspected violation of the provisions of this Ordinance shall have fifteen (15) calendar days to contact the Board of Supervisors.

6.3 Operator Response. The owner or operator shall have thirty (30) calendar days after contacting the Board of Supervisors to:

A. Demonstrate to the satisfaction of the Board of Supervisors that no violation exists.

B. Bring the operation into compliance with the provisions of this Ordinance as cited by the Board of Supervisors.

C. Request, in writing, an extension of time to bring the operation into compliance with the cited provision of this Ordinance.

The owner or operator shall notify the Board of Supervisors of the intent to act pursuant to either paragraph “A”, “B”, or “C” above within the fifteen days established to contact the Board of Supervisors.

6.4 Failure to Respond. Failure of the owner or operator to comply with the provisions of Section 6.3 to the full satisfaction of the Board of Supervisors shall result in the issuance of a Notice of Violation (NOV), which shall constitute a Cease and Desist Order. Other legal action may be taken, as necessary by the Codorus Township Board of Supervisors to halt said violation.

6.5 Rebuttable Presumption. It shall be presumed as a rebuttable presumption of law that the owner or operator of a Concentrated Agricultural Operation is liable and responsible for all damage caused by fly swarms within one-half mile of the boundaries of the Concentrated Agricultural Operation. In order to rebut this presumption, the owner or operator must affirmatively prove by clear and convincing evidence that the owner or operator did not contribute to the creation of fly swarms within that radius.

6.6 Emergency Procedure. In the event that a situation exists which is causing, or is substantially threatening to cause, either (a) damage to life or property, or (b) significant decreases in the quality of life for adjacent landowners, the Township may require an immediate response by the owner or operator to correct such situation, which action shall be specified by the Codorus Township Board of Supervisors. In the event that the owner or operator fails to comply with such requirement, the Township may undertake such necessary action to enjoin the production of fly swarms. Such costs for this action shall be reimbursed to the Township by the owner or operator of the Concentrated Agricultural Operation. The Township may take appropriate action to recover these costs from the owner or operator, and the owner or operator may face prosecution under the provisions of this Ordinance or under the appropriate Commonwealth Statute protecting against such injuries.

6.7 Penalties. Any owner or operator found in violation of the provisions of this Ordinance shall pay all court costs required to obtain enforcement, including the payment of all fines imposed. Any owner or operator, upon being found in violation of the provisions of this Ordinance shall pay a fine of not less than One Thousand ($1,000) and not more than Two-Thousand ($2,000) for each day the violation exists. This penalty shall exist independently of any monies assessed for damages caused by the creation of fly swarms.

SECTION SEVEN - APPEALS

7.1 Appeal Procedure. Any person aggrieved by the decision of the Board of Supervisors may file an appeal with the Chairperson of the Codorus Township Board of Supervisors to be heard at a duly advertised public hearing. Appeals to the Board shall be filed, in writing, with the Chairperson within thirty (30) days after notice of the decision of the Board of Supervisors. The Board shall hold a hearing upon the aggrieved person’s request within thirty (30) days after the request is filed with
the Chairperson. After submitting a challenge to the Board, and upon the decision by the Board, any party still aggrieved may appeal such decision to the Court of Common Pleas.

SECTION EIGHT - LEGAL EFFECT

10.1 Severability. Should any section, paragraph, or provision of this Ordinance be declared invalid by a Court of Record, such finding shall not affect the validity of the remaining provisions of this Ordinance as a whole or any part thereof, other than the part so declared invalid.

10.2 Repealer. Upon the taking effect of this Ordinance, all ordinances, parts of ordinances or resolutions conflicting with the provisions of this ordinance shall be and are hereby repealed.

10.3 Effect. The provisions of this Ordinance shall take effect immediately upon approval of this Ordinance by the Codorus Township Board of Supervisors.

10.4 Waiver of Liability. Whether through the implementation or enforcement of the provisions of this Ordinance, or through the issuance of a permit according to the provisions of this Ordinance, neither the Township of Codorus nor its agents or officers shall assume any liability for damage caused by the provisions of this Ordinance.