Agenda - Planning Commission - 03/01/2012

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January 10, 2012 1 Volume 61 No. 1 Zoning Bulletin The court explained that there are three generally recognized types of preemption: "a) express or explicit preemption, where the statute in- cludes a preemption clause, the language of which specifically bars local authorities from acting on a particular subject matter; (2) conflict preemp- tion, 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." "Both field and conflict preemption require an analysis of whether preemption is implied in or implicit from the text of the whole statute, which may or may not include an express preemption clause," said the court. To determine whether there was preemption here, the court analyzed the statutory language in the Surface Mining Act's preemption provision. It found the first sentence of the preemption clause applied to local en- actments already in existence at the time the Surface Mining Act took ef- fect. Since the Ordinance was enacted after the effective date of the Surface Mining Act, the first sentence of the preemption clause did not apply here. The court found the second sentence of the preemption clause did in- tend to bar local authorities from enacting regulations of "surface mining" after the effective date of the Act, as that term was defined under "surface mining activities." The court noted that missing from the Surface Mining Act's definition of "surface mining activities" was any mention whatsoever of either the location of surface mining or traditional land use regulation. The court ultimately concluded: "The Surface Mining Act's preemption clause expressly preempts the regulation of surface mining; however, the clause does not preempt local regulation of land use via zoning ordinances, which may affect where surface mining is located or sited." Thus, conclud- ed the court, the Township Ordinance's residential setback provision for mining activities fell clearly within the purview of traditional zoning regu- lations, merely regulating where surface mining can be sited, and therefore was not expressly preempted by the preemption clause of the Surface Min- ing Act. Hoffman Mining had also argued that, if not expressly, the General Assembly had, in the Surface Mining Act's preemption clause, implicitly intended to preempt local enactments, such as the zoning ordinance's set- back provision. The court disagreed. Such implicit preemption would re- quire both conflict preemption and field preemption, and the court found neither here. The court found that there was no conflict preemption between the Or- dinance setback provision and the Surface Mining Act setback provision of 300 feet; it was possible to comply with both setback provisions. Moreover, the Ordinance's residential setback provision did not "stand as an obstacle to the execution of the full purposes and objectives of the Surface Mining Act" which were: "to provid[e] for the conservation and improvement of areas of land affected in [ ] surface mining "; and "the protection and maintenance of the water supply." Moreover, the court did not interpret the Surface Mining Act "to have removed all force from general zoning consid- 6 © 2012 Thomson Reuters