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MILLER & SON PAVING v. WRIGHTSTOWN TOWNSHIP (10/28/82)

decided: October 28, 1982.

MILLER & SON PAVING, INC., APPELLANT,
v.
WRIGHTSTOWN TOWNSHIP, APPELLEE



NO. 470 January Term 1979, AN APPEAL FROM ORDER OF THE COMMONWEALTH COURT OF PENNSYLVANIA DATED AUGUST 10, 1979 AT NO. 1873 C.D. 1978 AFFIRMING AN ORDER OF THE COURT OF COMMON PLEAS, BUCKS COUNTY, CIVIL ACTION, LAW - ENTERED AT NO. 77-6551-09-5

COUNSEL

Stephen B. Harris, Doylestown, for appellant.

Terry Clemons, Sol., Doylestown, for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Hutchinson

[ 499 Pa. Page 84]

OPINION OF THE COURT

Appellant, Miller and Son Paving, Inc., asks us to hold that local zoning ordinances cannot impose setback requirements on quarrying operations because the Legislature intended the Surface Mining Conservation and Reclamation Act to preempt the field. See section 17 of the Act of November 30, 1971, P.L. 554, 52 P.S. § 1396.17. The Wrightstown Township Zoning Hearing Board held the local zoning provisions on this subject were preserved by a provision of the statute excepting local zoning ordinances from "supersession". The decision was affirmed in Bucks County Court of Common Pleas and that court was, in turn, affirmed by the Commonwealth Court. We disagree with appellant and affirm the Commonwealth Court, 45 Pa. Commw. 34, 405 A.2d 568.

Appellant owns a forty-seven acre tract of land located in a rural portion of Wrightstown Township which it has used for quarrying purposes since 1959. On November 16, 1962 the Township enacted its first zoning ordinance. It included quarrying operations as a permitted use in the district where the subject property was located, within specific setback requirements. At all times prior to December 13, 1971 appellant operated its quarry within the township's original setback lines and had at that time quarried at one point to within one hundred thirteen feet of an adjoining property. On December 13, 1971 the Township adopted a new zoning ordinance pursuant to the Pennsylvania Municipalities Planning Code of 1968, Act of July 31, 1968, P.L. 805, § 101 et seq., 53 P.S. 10101 et seq. The new ordinance extended the setback requirements from within one hundred feet of all

[ 499 Pa. Page 85]

    boundaries to two hundred feet from a property line and three hundred feet from a road.*fn1

Effective January 1, 1972, the Surface Mining Conservation and Reclamation Act*fn2 established for the first time quarrying setbacks as a matter of state law. Those setbacks provided setbacks of one hundred feet from the ultimate right-of-way of any highway, and three hundred feet from any occupied dwelling house. The Regulations promulgated thereunder additionally require a twenty-five foot setback from any property line.*fn3

Appellant having unsuccessfully challenged the validity of the Township's setback requirements pursuant to Section 1004(1)(a) and Section 910 of the Municipalities Planning Code, 53 P.S. §§ 11004*fn4 and 10910,*fn5 raises three questions ...


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