Wicomico board upholds zoning administrator: proposed poultry biorefinery not an accessory use in A-1 agricultural district

The Wicomico County Board of Zoning Appeals on a unanimous voice vote affirmed the zoning administrator’s decision that a proposed poultry-litter biorefinery is not a permitted accessory use in the county’s A-1 agricultural district.

The board’s preliminary and ultimately affirmed finding came at the conclusion of a contested hearing in which residents, local environmental groups and county staff urged the board to treat the operation as industrial, citing permit language, potential odors and runoff risks. Applicant counsel and witnesses said the operation processes poultry litter generated on-site and therefore should be treated as an agricultural processing activity.

Why it matters: The decision prevents the applicant from operating the proposed processing facility at the contested A-1 site unless the owner obtains a different zoning designation or locates the facility in an industrially zoned area. Neighbors said the facility’s scale, permitting and equipment suggest manufacturing rather than an incidental farm activity, while the applicant argued the process is a farm-related method of handling poultry waste.

Applicants’ argument

Applicant counsel (identified in the hearing as Mr. Showalter) told the board the case was “about use,” saying the proposed activity processes poultry litter produced on the property. Showalter argued that, under the county code, poultry houses and appurtenances include equipment and structures used to process manure and related materials and that the proposed technology is a different method of accomplishing an agricultural task. “This is a case about use,” Showalter said during his closing.

Showalter and other applicant witnesses testified they would process only litter produced on the property and described the operation as a closed-loop thermal treatment intended to capture and reuse process energy. The applicant’s witness (identified in the record as Mr. Katheria) provided operational figures on the record; counsel said the proposal would handle “3 tons per day” as an on‑farm process and that any additional litter would end the activity until new on-site material was produced.

Opposition and public comment

Dozens of residents and representatives of local conservation groups urged the board to uphold the zoning administrator and deny an accessory-use designation. Matthew Olsen, a Salisbury resident who identified himself as a real estate agent, said: “The highest and best use for the properties in our neighborhood is for families, not refineries.”

Paul Shcherko, another resident, pointed to the Maryland Department of the Environment permit linked in the record and said the permit lists a higher annual throughput than the applicant stated in testimony: “Please refer to MDE permit that he filled out. It is 2,247 tons a year, 6.1 tons a day,” Shcherko said on the record.

Laura Leopret, who said she had reviewed the applicant’s registration paperwork and permits, listed NAICS classifications and the applicant’s permit components (including a propane-fired litter dryer, pyrolysis reactor, stacks and dust collection systems) and said the combination of machinery and the potential production of marketable materials supported the county’s determination that the proposal is industrial and not an A-1 accessory use.

Carol Donahue, representing the Wicomico Environmental Trust and Friends of the Nanticoke River, urged the board to apply the zoning code’s accessory-use test strictly and cited the county code provision referenced in testimony: Section 180-62 of the code, which the speaker said shows the right-to-farm provisions cannot be used to override zoning. Donahue told the board the chronology of the project—an MDE permit issued before the property purchase—indicated the biorefinery was planned as the principal use of the site rather than incidental activity.

Key technical and regulatory points raised in the hearing

- Permit throughput: Opponents cited the applicant’s MDE permit language (2,247 tons per year; reported in testimony as 6.1 tons per day) as inconsistent with the applicant’s on-the-record commitment to process only in‑house litter at 3 tons per day. The discrepancy was a central point of public concern.

- Products and NAICS codes: Testimony in opposition listed North American Industry Classification System (NAICS) codes and components included in the applicant’s permit application (including codes associated with biomass power, solid waste combustors/incinerators and fertilizer manufacturing), which opponents said showed the operation would produce processed products not included in the code’s definition of “agricultural products.”

- Right-to-farm and zoning: Several speakers, including county counsel and intervening parties, noted that right-to-farm protections do not alter zoning code use classifications. As Carol Donahue phrased it, the right-to-farm provisions “explicitly provide that they can’t be interpreted to modify or abridge zoning laws,” and she cited Section 180-62 of the county code as the transcript recorded.

Board deliberations and decision

During deliberations, multiple board members said their responsibility was to interpret the zoning code and its definitions. One board member summarized the issue as a narrow legal question about whether the proposed operation is customarily incidental and subordinate to on‑site poultry production; that member said the record did not show that standard was met and called the project “a technology testing operation.” Another member said, “I think zoning got it right,” and urged that the process should take place in an industrial zone if carried out at the scale and with the equipment proposed.

Motion and vote

The board voted to affirm the zoning administrator’s decision that the facility is not an accessory use in the A-1 district. The board instructed counsel to prepare formal findings of fact and indicated the final written decision must be completed within 45 days; after the findings are signed the statutory appeal period would begin.

Ending

The board closed the hearing and directed counsel to draft findings of fact consistent with the affirmed decision. The record shows the board’s preliminary vote to affirm and the instruction that a final written decision and the 45‑day record completion requirement would be handled in a subsequent meeting.