Agenda - Planning Commission - 02/05/2009

Home

. ,.-;.:...,;;."", /;- 'i ,( -')' _./ ( t \ " I ...../ November 25, 20081 Volume 21 No. 22 ) Sections 4.5 (52 P.S. ~ 1396.4e) and 4.2 of the SMCRA (52 P.S. ~ 1396.4b(c)) provided that "surface mining operations" be setback 300 feet from occupied dwellings. Section 17.1 of the SMCRA (52 P.S. ~ 1396) provided that: "Except with respect to ordinances adopted pur- suant to ... the Pennsylvania Municipalities Planning Code, all local ordi- nances ... purporting to regulate surface mining are hereby superseded... [and the legislature in enacting the SMCRA] preempts the regulation of surface mining...." The Board eventually denied Hoffman's variance request. In doing so, it concluded that the Ordinance's setback provision was not preempted by the SMCRA. It also found that there were "substantial health, safety and welfare issues which would weigh against the reduction of the 1,000 foot setback." Hoffman appealed to the trial court. The trial court affirmed the Board's denial of the variance. Hoffman appealed. DECISION: Affirmed~ The Commonwealth Court of Pennsylvania concluded that the SM- CRA did not preempt the setback requirements of the Ordinance. In reaching its conclusion, the court explained that whether a state statute preempted -local regulation depended on the intent of the General Assembly. In order to find preemption, it must be clearly shown that it was the General Assembly's intent to preempt the field by legislation. The court concluded that the Legislature in enacting ~ 17.1 did not intend to preempt local land use control. The 'court found that the lan- guage in ~ 17.1 that excepted ordinances adopted under the Pennsylva- nia Municipalities Planning Code made it "clear that the Legislature did not intend to displace all existing and future local regulation of surface mining." Rather, the General Assembly by' not preempting local zon- ing "left to the local governments the right to determine' what land uses were permitted in certain zones, where they were to be located on the propt;j:ty, and how the approval was to be granted." To hold otherwise, noted the court, would result in surface mines b~ing permissible "every- whe,te and anywhere," including in centers of cities and in residentially- zon~d districts. Moreover, if a municipality could "create a use zone ex- chiding surface mining altogether, then it must surely be able to impose th~ lesser burden of requiring setbacks for such use in zones in which it it;p~.i.-mitted. " t:the court further concluded that in enacting ~ 17.1, the Legislature only intended to preempt local regulation of "surface mining activities." It said "surface mining activities" were those activities concerning the methods by which coal is deriv~d from the surface of the ground. @ 2008 Thomson ReuterslWest 5 --J' I I I I I I I I r ~/ 37