Municipalities in Pennsylvania are “creatures of the state,” and thus, have only those powers that have been granted to them by the Commonwealth. One of the foundational statutes of Pennsylvania municipal law is the Pennsylvania Municipalities Planning Code (“MPC”), 53 P.S. § 10101 et seq. The MPC grants municipalities the right to regulate subdivision, land use, and zoning, and establishes the procedures and guidelines that govern local land regulation. However, the MPC is just a statute, and what powers the state has granted, it can just as easily take away. A recent opinion from the Commonwealth Court shows the dangers of relying solely on the MPC procedural rules when other statutes are also potentially in play and highlights the importance of understanding when the normal day to day protocols of the MPC may be superseded by other laws.
In R. Bruce McNew v. East Marlborough Township, No. 29-MD-2022, 2023 WL 3081354 (Pa. Cmwlth. Apr. 26, 2023), the Pennsylvania Commonwealth Court revisited the impact of the Agricultural Communities and Rural Environmental Act (“ACRE”), 3 Pa.C.S. § 101 et seq., and the Right to Farm Act, 3 P.S. §§ 951-958 (“RTFA”), on a municipality’s ability to regulate forestry and timber harvesting within its boundaries.
Fundamentally, Pennsylvania municipalities have no inherent power of their own; but rather, they possess only such powers of government as are expressly granted to them by statute and as are necessary to carry the same into effect. Through enactment of the MPC, the General Assembly authorized the governing body of each municipality to enact, amend, and repeal zoning and subdivision and land development ordinances to allow for local regulation of land use. However, Section 603(f) of the MPC specifically limits a municipality’s authority to regulate forestry activities including timber harvesting.
Subsequent to the adoption of the MPC, the General Assembly enacted ACRE, which prohibits a municipality from adopting and/or enforcing local zoning regulations prohibited or preempted by state law, and the Right to Farm Act, which specifically limited that authority in instances involving regulation of normal agricultural operations. Generally under the MPC, an appeal from a zoning officer permit denial and ordinance validity challenges shall be filed with the zoning hearing board and appeals from zoning hearing board decisions are to be filed in the Court of Common Pleas. However, under Section 315(b) of ACRE, the Commonwealth Court has original jurisdiction over landowner actions to invalidate an ordinance or enjoin its enforcement; notably, this section does not require landowners to first exhaust their MPC appeal process or to file a validity challenge against the municipality’s zoning ordinance.
In McNew, the Court reviewed a provision of the East Marlborough Township (“Township”) Zoning Ordinance, which included extensive regulations and requirements for timber harvesting within the Township. Bruce McNew (“Applicant”) relying on Section 603(f) of the MPC, Sections 312 and 313 of ACRE, and Sections 2 and 3 of the Right to Farm Act, alleged that the Zoning Officer’s denial of a forestry permit “advances a regulatory scheme by the Township which is intended to duplicate, impede and frustrate the existing comprehensive statewide regulations governing timber harvesting activities.” Before the court were four preliminary objections from the Township to Applicant’s petition for review filed in the Commonwealth Court’s original jurisdiction seeking to invalidate and/or enjoin the enforcement of the Township’s timber harvesting regulations.
The first preliminary objection asserted that McNew failed to exercise or exhaust his statutory remedy under the MPC’s existing statutory appeal process. As a matter of first impression, the Court considered the Township’s argument that the Applicant was required to exhaust his administrative remedies under the MPC prior to filing an ACRE action with the Court. Relying on the Pennsylvania Supreme Court’s decision in Office of Atty. Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263 (Pa. 2009), the Court concluded that an Office of Attorney General (“OAG”) action pursuant to ACRE does not conflict with the MPC, and that the Commonwealth Court has subject matter jurisdiction over the challenge to the ordinance pursuant to ACRE and Judicial Code. Therefore, the Court overruled this objection noting that “requiring McNew to first comply with the Ordinance to have the challenged provisions tested under the MPC, and then later having the OAG and this Court review the lawfulness of those provisions is illogical.” The Court saw minimal value in fact-finding completed by the local zoning hearing board and held that although McNew had not exhausted his administrative remedies provided through the MPC, he pled sufficient facts in the Petition to invoke the ordinance validity exception to the exhaustion requirement in the form of a challenge under Section 315(b) of ACRE. The Court overruled the Township’s argument that the matter was not ripe for disposition on essentially the same grounds and held that whether OAG review was sought or completed prior to a petition to the Court does not impact the ripeness of a claim under Section 315(b) of ACRE.
Next, the Court considered whether the Applicant failed to state a claim upon which relief could be granted because the OAG had not found that all provisions of the Ordinance were invalid, and that because Applicant could be in violation of provisions later determined by this Court to be valid, the Township properly denied the application. However, the Court noted that ACRE does not explicitly require a landowner to first seek the OAG’s review before filing an original jurisdiction action, Section 314(a) states that “an owner or operator… may request the Office of Attorney General review a local ordinance…” (emphasis added). Therefore, the Applicant was not prohibited from seeking both the OAG’s review of the Ordinance and filing the civil action before the Court. Furthermore, the Court noted that it was unable to find a provision in ACRE that requires either the OAG or the Court to determine that an ordinance is entirely invalid. The Applicant’s only options are to comply with an unauthorized ordinance or forego timber harvesting which he has a right to conduct on the Property, therefore the Court determined he has a valid legal claim under ACRE.
Finally, the Court considered whether the Applicant failed to state a claim upon which injunctive relief could be granted because the Applicant’s relief was for direct issuance of a permit to conduct timber harvesting at the property. The Township argued that the relief requested goes far beyond the authority and scope of ACRE. Specifically, Section 315(b) of ACRE authorizes an owner’s “action against the local government unit in Commonwealth Court to invalidate the unauthorized local ordinance or enjoin the enforcement of the Ordinance.” However, this section does not expressly permit the Court to direct the Township to issue an owner a timber harvesting permit. Importantly, the Court held that to the extent challenged provisions of the Ordinance survive the Court’s review, the Applicant will have to comply with those provisions in order to receive a permit to conduct timber harvesting at the property.
As the McNew opinion deals only with preliminary objections, it does not address the substantive issue of what regulations of normal agricultural operations, including those involving timber harvesting, are legally permissible under ACRE and the Right to Farm Act. However, there are two key takeaways from this case for municipalities to consider. The first is that the Commonwealth Court has asserted that it holds original jurisdiction in challenges to municipal zoning ordinances brought under ACRE, and that therefore, the barriers to a challenge in regarding agriculture and other related uses differs from actions governed by the MPC. Second, it should serve as a reminder that ultimately, you must be prepared to address all statutes that govern land use, not just the MPC, when creating a defensible zoning ordinance. Consult with your Solicitor on these issues early in the drafting process. The Babst Calland Public Sector group will continue to monitor this and other similar cases for further issues that may impact municipalities.
Michael T. Korns is senior counsel at Babst Calland Clements and Zomnir, P.C. and focuses his practice primarily on municipal permitting, planning, subdivision and land use, and zoning issues. He is also a member of the firm’s Energy and Natural Resources group. Contact him at 412-394-6440 or email@example.com.
Anna R. Hosack is an associate at the firm and focuses her practice primarily on municipal and land use law. Contact her at 412-394-5406 or firstname.lastname@example.org.
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Reprinted with permission from the June 15, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.