• Mineral Rights Are Trumped By Zoning Controls
  • May 14, 2003 | Author: Harris Ominsky
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • A recent case shows how ownership rights to underground minerals can, if you'll excuse the expression, be "undermined" by zoning laws. In Southdown Inc. v. Jackson Township Zoning Hearing Board, No. 1656 C.D. (Pa. Cmnwlth Crt.), October 29, 2002), Judge Mary Hannah Leavitt of the Pennsylvania Commonwealth Court upheld Jackson Township zoning hearing board's denial of a special exception to permit underground limestone mining in areas restricted to residential and agricultural use.

    The owner had extracted limestone in an underground operation on various parcels over a period of years. As part of its business plan, it had acquired an additional parcel to extend its operations, but it ran into a problem. The parcel it acquired was zoned agricultural, and mining was not permitted as a use in the agricultural zone. It also acquired another parcel which was partly zoned residential, and the ordinance also prohibited mining in residential areas. When the zoning hearing board turned down the owner's request for a special exception, the owner appealed to the courts.

    Among other arguments, the owner maintained that the zoning ordinance does not restrict underground mining since the ordinance regulates "excavations," and therefore only directs how an owner may use the surface of his land, and not underground uses. It also challenged the board's conclusion that it lacked the power to grant a special exception in agricultural or residential zones.

    Leavitt cited the relevant section of the Municipalities Planning Code which provided that:

    (b) Zoning ordinances except to the extent that those regulations of mineral extraction by local ordinances and enactments have heretofore been superseded and preempted by the . . . "Surface Mining Conservation and Reclamation Act," ¿ [and] the "Noncoal Surface Mining Conversation and Reclamation Act," . . . may permit, prohibit, regulate, restrict and determine:

    (1) Uses of land watercourses and other bodies of water. . . .

    (5) Protection and preservation of natural and historic resources and prime agricultural land and activities." (Emphasis added by the court.)

    Leavitt concluded from the Code that municipalities have broad authority to regulate land use in general and mineral extraction in particular, except where preempted by the specific statutes referred to in the quoted section of the Code. She rejected the owner's argument that the zoning ordinance did not intend to regulate underground mining and based that conclusion in part on the applicable provision that specifically regulated open "excavations" which it required to be enclosed by fences or walls of a certain height and specifications Also, it required slopes to the edge of the excavation not to exceed 20%. She held:

    "In short, 'excavation' is a term broad enough in scope to cover extraction by underground as well as surface operations. We find that the Ordinance was intended to address the underground excavation of limestone."

    She then rejected the owner's contention that the Noncoal Surface Mining Act preempts the Code. On that issue, she held that since the Act "does not even apply to underground mining, it cannot be construed to preempt a zoning ordinance that regulates underground mining."

    Leavitt also rejected the owner's argument that the action of the board would be "a taking" to which it would be entitled to fair compensation from the municipality. She rejected that argument on the basis that it was not ripe for consideration because the owner did not request either a variance or a zoning change. Also, the board had not yet issued a final decision denying the owner "all reasonable beneficial use of its property, which is required before we can consider Southdown's takings claim."

    At times, the owner of property who would like to develop that property for residential or other uses finds that someone has reserved subsurface rights to mine minerals in that property. While that may not occur very often in Philadelphia, reservations of these rights are frequently encountered in upstate Pennsylvania. Those reserved rights can easily impair the ability of the owner to design its project and to obtain financing for the proposed construction. The Southdown case is an important reminder that the owner of the reserved mineral rights may not be able to inhibit the proposed development, because the applicable zoning ordinance may effectively shut out the ability of the owner of subsurface rights to implement them.