Posted by: Patricia Salkin | August 8, 2009

PA AG Has Authority to Preemptively Challenge Local Regulation of Agricultural Uses as Inconsistent With State Policies

The Attorney General brought an action against Locust Township and Locust Township Board of Supervisors under chapter three of the Agricultural Code (ACRE) which addresses local regulation of normal agriculture operations and provides that they must be consistent with state policies and regulations. The Attorney General sought the invalidation of the ordinance on the grounds that it conflicts with and is preempted by state statute. The Township filed preliminary objections and the Commonwealth Court overruled the objection as to a lack of jurisdiction but sustained the objection as to justiciability and dismissed the Attorney General’s petition with prejudice. Both parties appealed.

In response to the Township’s appeal that the Commonwealth Court lacked subject matter jurisdiction, the Supreme Court held that the lower court properly overruled the Township’s preliminary objection. In reaching this conclusion, the court focused on language provided in chapter three which states in pertinent part that the “Attorney General may bring an action . . . in the Commonwealth Court . . . to enjoin the enforcement of the unauthorized local ordinance.” 3 Pa.C.S. § 315(a). Moreover, the court looks to the Judicial Code which provides the Commonwealth Court with original jurisdiction where such jurisdiction is provided by any statute, 42 Pa.C.S. § 761(a)(4).

With respect to the Attorney General’s appeal on justiciability, the Supreme Court held that the Attorney General’s petition fulfilled the case and controversy requirement of ACRE and remanded the case for further proceedings. The Court concluded that state statute permits the Attorney General to bring an action to invalidate an unauthorized local ordinance without waiting until the ordinance is enforced. 3 Pa.C.S. § 315(a). Having generally permitted pre-enforcement challenges to government regulations, the court adheres to precedent in concluding that the Attorney General was not required to wait for the Township to attempt to enforce the Ordinance before the Attorney General could challenge it in the Commonwealth Court.

Corbett v. Locust Twp., 2009 WL 1143282 (PA 4/29/2009).

The opinion can be accessed at:

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