“How“

In June 2015, Commonwealth Court continued a recent line of preemption cases, in Gibraltar Rock Inc. v. New Hanover Township, 1907 C.D. 2014, 2015 WL 3533839 (Pa. Commw. Ct. June 5, 2015).  In Gibraltar Rock, Commonwealth Court considered whether New Hanover Township’s Stormwater Management Ordinance was preempted by the Noncoal Surface Mining Conservation and Reclamation Act (“Noncoal Act”).  Gibraltar sought to develop property for a quarry and associated facilities, and received a Noncoal Surface Mining Permit from the Pennsylvania Department of Environmental Protection (“DEP”) authorizing it to operate the quarry.  When Gibraltar sought to begin quarrying operations, New Hanover Township sought to enjoin Gibraltar from quarrying, asserting that Gibraltar did not have the requisite approvals from the township—specifically land development approval, including compliance with the township’s stormwater management ordinance.

The question before Commonwealth Court was whether application of the stormwater management ordinance to quarry pit operations was preempted by the Noncoal Act.  In line with the 2013 Geryville Materials, Inc. v. Planning Commission of Lower Milford Township, 74 A.3d 322, 327 (Pa. Commw. Ct. 2013) decision, Commonwealth Court analyzed whether the stormwater management ordinance regulated “how” surface mining occurs or “where” surface mining occurs.

Under Geryville, regulation of “how” a surface mine operates is preempted by the Noncoal Act and DEP regulation.  Regulation of “where” a surface mine operates is not preempted, and is left to local municipalities.

Commonwealth Court determined that the stormwater management ordinance was preempted, as it regulated “how” the quarry would operate.  Specifically, Commonwealth Court concluded that the stormwater management ordinance would dictate how the quarry would manage stormwater—this is specific regulation of how the quarry operates, and is preempted by the Noncoal Act.

Click here to read: Gibraltar Rock, Inc. v. New Hanover Township, No. 1907 C.D. 2014 (Pa. Commw. Ct. May 4, 2015).

“Where”

Compare Commonwealth Court’s decision in Huckleberry Associates et al. v. South Whitehall Township, 1748 C.D. 2014 (Pa. Commw. Ct. July 15, 2015).  In Huckleberry, a quarry operator proposed to commence a solid waste recycling facility on the site of a former quarry.    The quarry was operated for almost 50 years as a nonconforming use.

The operator sought to switch the use to a solid waste recycling facility, without obtaining zoning relief (the use was permitted, but required a special exception) from South Whitehall Township (“Township”), where the quarry was located.  The operator did, however, obtain a permit from DEP to operate the facility.  The operator began operation, without Township approval.

The Township issued a notice of violation against the operator, for failing to obtain a zoning permit or the necessary zoning relief.

The operator argued that operation of the waste recycling facility was preempted by the Noncoal Act, the Solid Waste Management Act, and DEP regulation.

Commonwealth Court disagreed.  In this instance, the Township regulation at issue limited the use by requiring the operator to obtain a special exception.  This, Commonwealth Court concluded, was regulation of “where” the operation could occur, not “how”.  The local regulation was not, therefore, preempted.

Click here to read: Huckleberry Associates et al. v. South Whitehall Township, 1748 C.D. 2014 (Pa. Commw. Ct. July 15, 2015).

Gibraltar Rock, Huckleberry Associates, and Geryville allow practitioners the opportunity to raise preemption arguments when local regulation arguably affects the operation (the “how”) of a state-regulated use.  Prior precedent was inconsistent.  The “where versus how” test can be used to challenge this older precedent in arguing preemption.