COALEX REPORT 240

	Coalex Report 240

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   

COALEX State Comparison Report - 240
December, 1992 (Revised, February, 1993)

Benny Wampler
Deputy Director for Mining
Department of Mines, Minerals and Energy
P.O. Drawer 900
Big Stone Gap, Virginia 24219

TOPIC: PROTECTION OF MINERAL RESOURCES: LOCAL ZONING ORDINANCES

INQUIRY: Virginia is contemplating promulgating rules which would require localities to consider
the economic viability and possible future mining of mineral resources when passing local zoning
ordinances. Please conduct a survey of IMCC member states, requesting the following
information:

1.   Does your state currently have any such mineral resource protection provisions?

2.   If your state has these regulations, please send a copy.

SURVEY RESULTS: Twelve states, including two non-coal states, responded to the questionnaire.
Of these twelve, only Maryland responded that it has regulations to protect mineral resources; the
name of the state contact person is provided below. Arkansas indicated that the City of Little Rock
has a zoning ordinance which recognizes the importance of the mineral resources; a copy of the
ordinance is attached.

   The summary of the results of the survey follows. Also attached are Pennsylvania state cases
and a Pennsylvania Environmental Hearing Board (EHB) decision that discuss state provisions vs
local zoning ordinances.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

TABLE OF RESPONSES (Reformatted from original)

Does your state have mineral resource protection provisions?

ALABAMA:  No.

ARKANSAS
There are no state-wide regulations protecting mineral resources. However, the City of Little Rock
has implemented a "Mining District" zoning ordinance that recognizes the importance of mining
operations and mineral reserves. There are large bauxite pits and granite quarries adjacent to or
within the city limits. (See attached ordinance.)

ILLINOIS: No.

INDIANA: No.

KENTUCKY: No.

MARYLAND: Yes. (See attached sections of COMAR.) 
Contact:  Office of State Planning; Mike Nortrup (410) 225-4550

MISSOURI: No. 

OHIO: No.

NORTH CAROLINA: Mining does not supersede local zoning regulations. 

PENNSYLVANIA   
Pennsylvania Municipalities Planning Code (PMPC) establishes authority for municipal land use
controls. PMPC currently does not contain such provisions.
Contact: 
Stephen Fehr
Bureau of Community Planning
Pa. Dept. of Community Affairs     
(717) 783-2459

SOUTH CAROLINA: No.

VIRGINIA: No.


PENNSYLVANIA STATE CASES
MILLER & SON PAVING, INC. v WRIGHTSTOWN TOWNSHIP, 499 Pa 80, 451 A 2d 1002 (Pa
1982).
   The court affirmed that the local 200 foot setback requirement for quarries was not superseded
by SMCRA's less stringent setback requirements because the ordinance became effective before
SMCRA.


MCCLIMANS ET AL. v BOARD OF SUPERVISORS OF SHENANGO TOWNSHIP, 107 Pa Commw Ct
542, 529 A 2d 562 (Pa Commw Ct 1987). 
   The court, relying on MILLER & SON, determined that SMCRA did not supersede the challenged
township zoning ordinance that regulated surface mining because the township enacted the
ordinance before the effective date of SMCRA. NOTE: In BOARD OF SUPERVISORS OF
SHENANGO TOWNSHIP V MCCLIMANS et al., 142 Pa Commw 470, 597 A 2d 738 (Pa Commw Ct
1991), the court affirmed the decision from Common Pleas (on remand) which found that the
zoning ordinance prevented McClimans from gaining access to their subsurface property, "thus
rendering the ordinance invalid as a taking without just compensation." The court noted that
Shenango Township amended its zoning ordinance to allow surface mining on the subject
property.


NALBONE v BOROUGH OF YOUNGSVILLE, 104 Pa Commonw Ct 623, 522 A 2d 1173 (Pa Commw
Ct 1987).
   A landowner challenged two amendments to existing ordinances that designated a district in
the borough where oil and gas wells could be drilled and operated, asserting that these local
efforts were preempted by the state's Oil and Gas Act. The court ruled that both ordinances
regulated land use, one of the primary purposes of zoning regulations.



WARNER CO. v ZONING HEARING BOARD OF TREDYFFRIN TOWNSHIP, 612 A 2d 578 (Pa
Commw Ct 1992).
   In this challenge of amendments, regulating quarrying operations, to existing zoning
ordinances, the court ruled that the local setback requirements and "the designation of uses
permitted by special exception are traditional land use regulations, those sections are not
preempted by the [Noncoal] Act."


PENNSYLVANIA EHB DECISION
HILLTOWN TOWNSHIP BOARD OF SUPERVISORS v COMMONWEALTH OF PENN. DEPT. OF
ENVIRONMENTAL RESOURCES (DER) AND BUX-MONT REFUSE SERVICES, INC., 1988 Pa Envirn
LEXIS 152, EHB Docket No. 87-201-W (1988).
   From "Synopsis": DER "did not abuse its discretion by issuing a solid waste management permit
for a trash transfer station where there were allegations that the facility did not comply with
applicable municipal zoning and land development ordinances."


ATTACHMENTS
A.   CITY OF LITTLE ROCK, ARKANSAS, CODE Sec. 36-339 M mining district.
B.   MILLER & SON PAVING, INC. v WRIGHTSTOWN TOWNSHIP, 499 Pa 80,  451 A 2d 1002
     (Pa 1982).
C.   MCCLIMANS ET AL. v BOARD OF SUPERVISORS OF SHENANGO TOWNSHIP, 107 Pa
     Commw Ct 542, 529 A 2d 562 (Pa Commw Ct 1987). 
D.   BOARD OF SUPERVISORS OF SHENANGO TOWNSHIP v MCCLIMANS et al., 142 Pa
     Commw 470, 597 A 2d 738 (Pa Commw Ct 1991).
E.   NALBONE v BOROUGH OF YOUNGSVILLE, 104 Pa Commonw Ct 623, 522 A 2d 1173 (Pa
     Commw Ct 1987).
F.   WARNER CO. v ZONING HEARING BOARD OF TREDYFFRIN TOWNSHIP, 612 A 2d 578 (Pa
     Commw Ct 1992).
G.   HILLTOWN TOWNSHIP BOARD OF SUPERVISORS v COMMONWEALTH OF PENN. DEPT.
     OF ENVIRONMENTAL RESOURCES (DER) AND BUX-MONT REFUSE SERVICES, INC., 1988
     Pa Envirn LEXIS 152, EHB Docket No. 87-201-W (1988).
H.   COMAR Art. 66B Secs. 3.05, 3.06, 3.07 and 3.08.


Survey conducted by: IMCC and Joyce Zweben Scall

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