Pennsylvania High Court Crushes Preemption Claims: Local Zoning Provisions Survive
John R. Embick, Esq. – February, 2012
On November 23, 2011, the Pennsylvania Supreme Court, issued a ruling which should help resolve continuing uncertainty about whether local zoning is preempted by the Pennsylvania Surface Mining Conservation and Reclamation Act (SMCRA)(which regulates surface coal mining), 52 P.S. §§ 1396.1, et seq. The case is Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township, Cambria County and Township of Adams, 32 A.3d 587; 2011 Pa. LEXIS 2825 (November 23, 2011). The decision was written by Justice McCaffery, and the holding includes two concurring opinions (one by Chief Justice Castille, and one by Justice Saylor).
The Hoffman Mining holding involved a challenge by a mining company to a 1,000 foot setback (from residences) provision contained in a municipal zoning ordinance. While the holding addressed a claim that SMCRA preempts local zoning, it likely applies with equal force to similar claims of preemption relating to the Pa Non-Coal Surface Mining Conservation and Reclamation Act (NCSMCRA), 52 P.S. §§ 3301, et seq. (which regulates mineral extraction from quarries, sand & gravel operations, etc.).
This is so because the provisions of the preemption clauses in both the SMCRA and the NCSMCRA are virtually identical, and the court's analysis in Hoffman Mining frequently compares various provisions of SMCRA and NCSMCRA.
SMCRA prescribes a 300 foot set back from "occupied dwellings", see, 52 P.S. §§ 1396.4b(c) and 1396.4e(h)(5). NCSMCRA prescribes an identical 300 foot set back provision from occupied dwellings, see, 52 P.S. § 3311(c)(1).
The Pa Supreme Court held that the local zoning 1,000 foot setback provision was not preempted by the SMCRA, because it represented a traditional zoning prerogative:
Setback requirements are a well-established aspect of zoning ordinances. See, e.g., Miller & Son Paving, Inc. v. Wrightstown Township, 499 Pa. 80, 451 A.2d 1002, 1005-06 (Pa. 1982); Scholl v. Borough of Yeadon, 148 Pa. Super. 601, 26 A.2d 135, 136 (Pa. Super. 1942) ("Set-back ordinances generally have received judicial sanction as lawful exercise of the police power, where the restriction has a substantial bearing on the health, safety, morals or general welfare of the public.").
Hoffman Mining, 2011 Pa. LEXIS 2825 at p.10.
Local zoning setback requirements were long ago approved in a matter involving the NCSMCRA, in Warner Company v. Zoning Hearing Board of Tredyffrin Township, 612 A.2d 578, 580 (Pa. Commw. Ct 1992) (a local 300 foot set back from a stream was upheld over the 100 foot stream setback requirement specified in the NCSMCRA, although this sometimes has been considered dicta).
In Hoffman Mining, the Court noted:
"We have also observed that this Court has "traditionally given local zoning power great play [, and has] been reluctant to strike down a local ordinance in cases where a state statute does not directly and inherently conflict with the zoning power." Benham, 523 A.2d at 315."
Hoffman Mining, 2011 Pa. LEXIS 2825 at p. 16.
The Hoffman Mining court also used or referred to the following terms or phrases in its decision upholding the local zoning 1,000 foot set requirement to describe the nature of this form of zoning control: a “traditional zoning regulation”; or a “traditional land use regulation”; or a “traditional land use control”; and a “quintessential land use control logically connected to land use planning”.
In summary, the Hoffman Mining court found the following:
1. The language of the preemption clause in SMCRA 52 P.S. § 1396.17a (virtually identical to that appearing in NCSMCRA, 52 P.S. § 3316) does not preempt municipal zoning control relating to mining under the MPC; and
2. Setback requirements are within the bounds of traditional zoning regulation;
In deciding whether the Surface Mining Act preempted the local setback provision, the Court noted there are three types of preemption: (1) express or explicit preemption, where the statute includes a preemption clause, the language of which specifically bars local authorities from acting on a particular subject matter; (2) conflict preemption, where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute; and (3) field preemption, where analysis of the entire statute reveals the General Assembly’s implicit intent to occupy the field completely and to permit no local enactments.
The Court then went on to evaluate whether the setback provision (1) was preempted by the doctrine of conflict preemption, and (2) was preempted by the doctrine of field preemption.
The Court resoundingly answered no to both questions
Be aware, however, that both the House and Senate of the Pennsylvania legislature have passed legislation (which the Governor has indicated that he will sign) that will absolutely restrict a local municipality from enacting zoning ordinance provisions in that relate to the Pa Oil and Gas Act, thereby providing a complete preemption of the Act over local regulation.
The Supreme Court's decision in Hoffman Mining may have ramifications beyond the surface mining industry. Limited preemption provisions exist in several environmental statutes. As it stands, the Hoffman Mining holding may serve as legal authority to support a number of municipal land use regulations which address the “where” and “how big” issues involved with commercial and industrial operations that the PaDEP also regulates under limited preemption powers.