Preemption of Local Ordinances

Berner v. Montour Township Zoning Hearing Board, Pa. Commw., (2018)

The language of a provision of a zoning ordinance is objective and specific if it requires an applicant to make certain identified submissions. The relevant section of the Nutrient Management Act only preempts a provision of a zoning ordinance if the operation requires a Nutrient Management Plan.

Berner v. Montour Twp., 120 A.3d 433 (Pa. Commw. Ct. 2015).

Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058 (Pa. Commw. Ct. 2018)

Date of Decision: 1/4/18


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Commonwealth v. East Brunswick Township, Pa. Commw., (2009)

The Attorney General had standing to bring an action, at the request of a citizen, in original jurisdiction in the Commonwealth Court against the Township for an alleged “unauthorized local ordinance” under the Agricultural, Communities and Rural Environment Act (“Act 38”). The Court found that Act 38 was constitutional; however, the Court denied summary relief because it was unclear whether the application of sewage sludge was a normal agricultural operation.

Commonwealth v. East Brunswick Township, 956 A.2d 1100(Pa. Cmwlth. 2008).

Commonwealth v. East Brunswick Twp., 980 A.2d 720 (Pa. Commw. Ct. 2009).

Date of Decision: 9/23/08


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Walck v. Lower Towamensing Township ZHB (2008)

Landowner’s stockpiling of sewage sludge on his property was not a permitted agricultural use and the Nutrient Management Act did not preempt the Zoning Ordinance because Landowner did not have an approved voluntary plan in compliance with the NMA.

Walck v. Lower Towamensing Township ZHB, (Pa. Commw. Ct. 2008).

Date of Decision: 1/18/08


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Hoffman Mining Co. v. Zoning Hearing Bd., (Pa. Commw. Ct. 2009), aff’d Hoffman Mining Co., Inc. v. Zoning Hearing Bd. Of Adams Twp., (Pa. 2011)

Municipality not preempted by the Surface Mining Conservation and Reclamation Act from having setback requirements in the zoning ordinance for surface coal mining.

Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township, 958 A.2d 602 (Pa. Cmwlth. 2008).

Hoffman Mining Co. v. Zoning Hearing Bd., 958 A.2d 602 (Pa. Commw. Ct. 2009), aff’d Hoffman Mining Co., Inc. v. Zoning Hearing Bd. Of Adams Twp., 32 A.3d 587 (Pa. 2011).


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Huntley & Huntley, Inc. v. Borough Council (2008); Range Resources – Appalachia, LLC v. Salem Twp. (2009)

Municipalities not preempted by Oil and Gas Act from regulating traditional zoning concepts such as where a natural gas activity may occur, but will be preempted where local ordinance regulates operational aspects of the industry.

Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 929 A.2d 1252 (Pa. Commw. Ct. 2007).

Huntley & Huntley, Inc. v. Borough Council, 964 A.2d 855 (Pa 2008); Range Resources – Appalachia, LLC v. Salem Twp., 964 A.2d 869 (Pa. 2009).


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