Is there preemption?
Generally, there is no preemption for zoning. However, there may be certain uses in Pennsylvania where the state has determined are of such statewide significance that local zoning is preempted.
What is zoning?
Zoning is a power granted to municipalities by state law that authorizes municipalities to plan for the development and build out of their communities. Generally, local zoning ordinances establish zones (e.g., residential, commercial, industrial) where certain types of uses are allowed. The zoning ordinances also place restrictions on the allowable uses in a particular zone (e.g., height, setback, and lot size restrictions), and they also establish the approval process required for each type of use. Among other purposes, zoning ordinances are intended to ensure that allowable uses in the municipality are compatible with nearby uses.
How can zoning be used?
Municipalities cannot entirely prevent a certain type of use or business from operating within their borders. However, municipalities are generally able to regulate where certain uses or businesses can be located. Municipalities can and should be proactive about establishing a zoning ordinance so when particular projects are proposed within their jurisdictions, the municipality can ensure that these projects are compatible with neighboring land uses.
Nonconforming uses
Nonconforming uses are uses that no longer comply with the current zoning in a municipality. A nonconforming use is a use that was legal when established, but because of a change in the zoning ordinance, is no longer allowed in its present location. The nonconforming use passes with the land, which means that the use can legally continue indefinitely, until the use lapses or is abandoned.
Example where zoning ordinance upheld despite preemption challenge
In Hoffman Mining Co. v. Zoning Hearing Bd., 612 Pa. 598 (2010), the PA Supreme Court considered a zoning ordinance that required a minimum setback of 1,000 feet between a
mining use and any residential structure. Mining in Pennsylvania is regulated by the Surface Mining Conservation and Reclamation Act (SMCRA), 52 Pa. Stat. Ann. §§ 1396.1- 1396.19a, which has express preemption language: “the Commonwealth by this enactment hereby preempts the regulation of surface mining as herein defined.” Notwithstanding this preemption provision, the PA Supreme Court upheld the setback requirement. The court found that while the Mining Act preempted any regulation of mining activities themselves, the setback provision was not so preempted and represented a quintessential land use control by the municipality that logically connected to land use planning.