• Local Zoning Setback Provisions Survive Preemption Challenge by Miner
  • February 3, 2009 | Author: John R. Embick
  • Law Firm: Thorp Reed & Armstrong, LLP - Philadelphia Office
  • In a recent decision by Judge Dan Pellegrini, in Hoffman Mining Co., Inc. v. ZHB of Adams Township, Cambria County, et al,, No. 2122 C.D. 2007 (October 15, 2008), Commonwealth Court affirmed the validity of a 1,000 foot local zoning setback requirement (from residences) which exceeded a 300 foot setback requirement (from residences) authorized by the Pa Non-Coal Surface Mining and Conservation Act (“SMCRA”), 52 P.S. 1396.1, et seq.

    Hoffman Mining Co., Inc. (“Hoffman Mining”) had applied to the Zoning Hearing Board (“ZHB”) for a variance from the local zoning ordinance setback requirement, which was denied.

    At the ZHB hearing, a witness for Hoffman Mining testified that the consequence of applying the 1000 foot set back requirement as opposed to the 300 foot set back requirement, was that only 33,000 tons of coal could be extracted out of an estimated 250,000 tons of coal. Accordingly, over $8,000,000.00 in mineral value would become unrealizable.

    Among other arguments, Hoffman Mining asserted that section 17.1 of SMCRA, 52 P.S. 1396.17a, acted to preempt local zoning requirements that dealt with any aspect of mining.

    Section 17.1 of SMCRA clearly indicates the intention of the General Assembly to preempt all local regulation of surface mining, but contains a specific exception which preserves ordinances which are adopted pursuant to the Pa. Municipalities Planning Code (“MPC”) (which includes zoning ordinances).

    In Hoffman, as well as in a number of predecessor cases, a central question has been what subjects of mining regulation are appropriately contained in zoning ordinances.

    In Hoffman, Commonwealth Court maintained the Supreme Court’s general holding of Miller & Sons Paving, Inc. v. Wrightstown Twp., 451 A.2d 1002 (Pa), ruling that the preemption exception in SMCRA (which, by the way, is similar to the preemption provisions contained in the Pa Non-Coal Surface Mining and Conservation and Reclamation Act) preserves the right of local governments to determine what land uses were permitted in certain zones, where the uses could be located on the parcel, and how approval to conduct the uses would be granted. However, in cases subsequent to Miller, a number of zoning ordinance provisions were reviewed which appeared to be ambiguous.

    The Court described the basic analytical problem as being one of determining whether a challenged zoning provisions could be characterized as regulating surface mining operations, or whether they regulated land use primarily.

    Relying upon the statutory definition of “Surface Mining Activities,” the Court held that putative zoning requirements which actually addressed the methods by which mineral was extracted from the ground (including such things as drainage structures and reclamation plans) were “integral to mining”, and thus out of bounds to local control.

    Alternatively, a setback requirement which contains numerical distances from which mining could be conducted from residential structures, is a “quintessential land use control” logically connected to land use planning, and therefore is not preempted.

    Accordingly, setback requirements in local zoning ordinances seemed to have survived another preemption challenge at the intermediate appellate level.