Preemption of Local Ordinances

Berner v. Montour Twp. Zoning Hearing Bd.

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

Date of Decision: 1/4/18


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


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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)

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 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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Berner v. Montour Twp. (2015)

The Nutrient Management Act regulates "the application of manure as it related to soils and . . . the protection of ground and surface water" did not preempt the relevant SALDO provisions protecting impact on soils.

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


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Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township (2008)

Landowners applied for a variance to conduct surface mining within 300 feet of residences because the local ordinance required a setback of 1000 feet, and Landowners also argued that the ordinance was preempted by state law. The Commonwealth Court found that the local ordinance was not preempted because it regulated land use which is within the power of the local municipality and the landowners were not entitled to a variance because they did not show that there was no other reasonable use of the land.

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

Date of Decision: 10/15/08


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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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