Background
R. Bruce McNew owns approximately 20 acres in Chester County’s East Marlborough Township. In 2020, he sought a permit under the Township’s Zoning Ordinance (Section 1821) to allow a professional forester to clear-cut timber on 10 of those acres for $35,000. The Township’s Zoning Officer denied the permit for a string of technical deficiencies—missing harvesting plans, unscaled maps, no forest regeneration plan—and McNew did not appeal the denial or cure the deficiencies. Instead, he challenged the Ordinance itself, invoking three interlocking state preemption frameworks.
His statutory arsenal: Section 603(f) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10603(f), which declares that zoning ordinances “may not unreasonably restrict forestry activities” and that timber harvesting “shall be a permitted use by right in all zoning districts”; the Agriculture Communities and Rural Environment Act (ACRE), 3 Pa.C.S. §§ 312–313, which prohibits municipalities from adopting or enforcing ordinances that prohibit or limit a “normal agricultural operation,” a term that by cross-reference to the Right to Farm Act (RTFA), 3 P.S. § 952, encompasses silvicultural activities on parcels of 10 or more acres; and the RTFA itself, which bars municipal regulation of qualifying normal agricultural operations.
In 2021, the Attorney General’s Office weighed in, identifying several provisions of the Ordinance it considered inconsistent with state law and recommending the Township adopt Penn State’s model timber harvesting ordinance as a template. The Township partially amended the Ordinance in June 2022 in response to OAG guidance, but McNew filed his petition for review in the Commonwealth Court’s original jurisdiction in January 2022—before the amendments—seeking to invalidate Section 1821 in its entirety, enjoin its enforcement, and recover attorney’s fees under ACRE Section 317. After the court partially sustained preliminary objections in McNew I, 295 A.3d 1 (Pa. Cmwlth. 2023), the parties conducted discovery, and McNew moved for summary relief in October 2025.
The Court’s Holding
The Commonwealth Court denied summary relief because a genuine dispute of material fact precluded a finding that McNew’s contemplated timber harvest constitutes a “normal agricultural operation” under ACRE—the threshold issue in any ACRE preemption challenge. Summary relief (the original-jurisdiction analog to summary judgment) is available only when the applicant’s right to relief is clear and there is no genuine issue of material fact.
The threshold ACRE question is fact-intensive: whether an ordinance “prohibits or limits a normal agricultural operation” depends on how the ordinance is applied to the specific practice at issue. Here, the Township disputed whether McNew’s one-time sale of timber to a forester constitutes genuine silviculture or, instead, is land-clearing in preparation for residential development. The MPC’s definition of “forestry” explicitly excludes tree removal for land development purposes. Several facts cut against McNew: he had previously sought Township approval to subdivide the property into additional residential lots; the Township Manager testified from secondhand knowledge that McNew intended to build on the parcel; and McNew himself—while disavowing current subdivision plans—testified that he “liked to keep his options open.”
Under the Nanty-Glo Rule, a court may not grant summary relief—including in Pennsylvania’s original-jurisdiction proceedings—based solely on the moving party’s oral testimony, even if uncontradicted, because credibility determinations remain for the fact-finder. McNew’s deposition denial of intent to develop rested entirely on oral testimony; the Township offered oral hearsay evidence of contrary intent that it asserted was admissible at trial. That conflict was enough to create a genuine issue, and the application was denied. The court also noted that even if McNew’s purpose were to harvest dead or dying trees (a theory raised for the first time at oral argument), the Ordinance’s own definition excludes removal of dead and dying trees from the category of “timber harvesting” in the first place.
Key Takeaways
- The threshold question in every ACRE preemption challenge is whether the relevant activity is a “normal agricultural operation.” In timber harvesting cases, courts must determine whether the harvest is a genuine silvicultural practice or tree removal incident to land development—a fact-specific inquiry that resists resolution at the summary-relief stage when there is evidence of a development motive.
- The Nanty-Glo Rule applies in Commonwealth Court original-jurisdiction summary-relief proceedings: oral testimony from the moving party alone—even uncontradicted deposition testimony denying a land development purpose—cannot establish the absence of a genuine issue of material fact. Documentary evidence or non-movant’s admissions are needed to carry summary relief.
- Under the MPC, “forestry” and “timber harvesting” do not include tree removal for purposes of land development (53 P.S. § 10107). A landowner who has an open file with the municipality proposing residential subdivision of the same parcel faces a serious evidentiary hurdle in characterizing a clear-cut operation as pure silviculture.
- Failing to appeal a permit denial and choosing instead to attack the underlying ordinance as preempted does not eliminate the need to engage with the ordinance’s permit requirements. The Township’s position that McNew’s challenge was pretextual—raised to evade the Ordinance’s technical requirements rather than to vindicate a genuine farming interest—was sufficient to preclude summary relief even in the face of OAG guidance that parts of the Ordinance were inconsistent with state law.
Why It Matters
Chester County and the surrounding suburban-rural fringe of southeastern Pennsylvania see regular friction between landowners seeking to monetize timber and municipalities defending forestry-management ordinances. McNew is a useful reminder that the ACRE/MPC preemption framework, while robust in protecting genuine agricultural and silvicultural operations, does not provide a shortcut past the fact-finding process when a landowner’s actual purposes are in dispute. Petitioners who seek summary relief on ACRE challenges should build a record—appraisals, forestry plans, consultant reports, evidence of no pending development applications—sufficient to establish the legitimate silvicultural purpose without relying on their own say-so.
For municipalities defending timber harvesting ordinances against ACRE challenges: McNew confirms that raising a plausible dispute about the landowner’s true purpose is sufficient to survive summary relief. Gather testimony, correspondence, subdivision application history, and any expert evidence that the contemplated harvest is economically or functionally indistinguishable from land clearing. That factual record, even if based on hearsay that can be made admissible at trial, is enough to keep the case from being decided on the papers.