In our first post on accessory uses, we introduced the value of accessory uses as a tool for permitting a land use that otherwise might not be permitted as a principal use.  We also discussed the two-part test for determining whether a use is accessory – is it (i) customarily incidental to and (ii) subordinate to the principal use?  In this post, we will conclude our discussion on accessory uses by looking at the “customarily incidental” part of the analysis.

The most important concept to remember when evaluating whether a use is “customarily incidental” to a principal use is not to assume that there must be evidence of a traditional relationship between the principal use and proposed accessory use.  All too often, zoning officers are inclined to take the position that something cannot be an accessory use because they have never seen the proposed accessory use together with a principal use.  This approach would lead to a stagnation of land uses that is not reflective of how uses evolve over time. Continue Reading Accessory Uses Part II: Worth Much More Than a Secondary Thought

Recently, one forward thinking Pennsylvania grocery retailer opened a new Ecommerce hub facility at the site of one of its former, traditional grocery store buildings in a mixed-use neighborhood. Rather than demolishing the existing “brick and mortar” building, it is adaptively reusing the building by converting it to a new “click and mortar” facility.

For many retailers, the traditional retail approach includes a commercial building with a significant retail display and sales area directly accessible by customers selecting and purchasing their goods onsite.  But new approaches are popping up every day.  The new approach referenced above allows customers to place orders online using their electronic devices or onsite using tablets located in the building’s vestibule area.  Orders are processed and fulfilled onsite and either picked up by customers or delivered to customers via a delivery service.

This local retailer is just one example of an emerging business trend whereby “shopping fulfillment centers” are occupying vacant, former retail store buildings located in close proximity to customers. Continue Reading Friendly Neighborhood Fulfillment Centers: Not Your Mama’s Fulfillment Centers

Late last spring we discussed how the 2017 Tax Cuts and Jobs Act (“TCJA”) negatively affected development by increasing the costs incurred by developers to install water and wastewater infrastructure (Part I and Part II). Effective January 1, 2018, the TCJA required that water companies include advances for construction (“Advances”) and Contributions in Aid of Construction (“CIAC”) in taxable income. Of course, water companies do not want to incur the tax directly, so it is passed on to developers thereby making their cost to install water and wastewater infrastructure even higher.

On February 28, 2019 the Pennsylvania Public Utility Commission (“PUC”) granted Pennsylvania American Water’s (“PAW”) Petition for Reconsideration of its order in Docket Nos. R-2018-3002502/R-2018-3002504. The order requires developers or builders to pay for the TCJA-imposed tax on CIAC and Advances. As a result of the PUC’s grant of reconsideration, there was a cautiously optimistic sigh of relief that the PUC might take a broader and deeper look at the positive impact of new development on the entire base of customers and spread the tax to all customers, not just the developer that installed the improvements. Continue Reading UPDATE! Developers Beware! Water lines may cost more thanks to the Tax Cut and Jobs Act – Part 3 (Potentially good news for developers!)

Pennsylvania’s local governments are on the front lines of providing for the needs and wants, and capturing information about, the likes and dislikes of the communities they serve.  Certainly, the decisions made by local government officials, planners and professional staff are the most likely to directly impact their constituencies’ daily lives because such decisions typically are at a more personal level than those made by state and federal officials.  However, there are state government opportunities and processes that should be considered by local leaders that may support their more pressing priorities for growth and development.

For example, Governor Tom Wolf’s budget address on February 5, 2019 identified many areas of increased focus and related funding that, if approved by the General Assembly later this year, should be primarily available to help Pennsylvania’s local governments meet many of their budgetary requirements.  Although the Governor continues to prioritize education funding, workforce development and new resources for the agricultural industry, many other areas of opportunity exist and are expected to continue to be available after this budget is negotiated.

This is the first in a series of blog posts in which we highlight a sampling of the funding sources planners and local government officials should consider when working with private and public sectors interested in infrastructure improvements, beautification and revitalization, attracting and/or expanding new businesses and industries to the area or, in some cases, trying to retain existing businesses.  This post focuses on the Act 13 suite of programs which is managed by the Pennsylvania Department of Community and Economic Development (“PA DCED”). Continue Reading Funding Sources: Working with the Commonwealth to Initiate Development

The definition of “accessory” is “a thing which can be added to something else in order to make it more useful, versatile, or attractive.”  This definition is particularly relevant in the zoning context where an accessory use is a useful, versatile and attractive tool for maximizing the use of property.

The typical approach to determining whether land can be used for an intended purpose is to check the zoning ordinance to see what uses are permitted expressly in the zoning district.  For example, if the commercial zoning does not permit standalone convenience stores with fuel pumps, the developer may resign itself to seeking a use variance or requesting that the municipality amend the ordinance.  Neither of those approaches Continue Reading Accessory Uses Part I: Worth Much More Than a Secondary Thought

“Oh, don’t go that way.  You want to avoid the Beltway.” is a common chorus in many American cities.  Harrisburg is no exception and backups on its Beltway encroach onto Front Street and other arterial and connector roads on a daily basis.  In recent years, the issues have been exasperated as we continue to see populations trending from rural to urban locations while, at the same time, continue to experience aging and weakening transportation infrastructure.  But plans to bring relief to Harrisburg’s Beltway have been in the works for 15 years.  In 2003, the Pennsylvania Department of Transportation (“PennDOT”) prepared an I-83 Master Plan, the purpose of which was to identify, plan, and program future transportation improvement projects for the I-83 Capital Beltway.  The Master Plan proposed numerous improvements to the Beltway to address: (1) worsening road conditions; (2) high-traffic volumes and congestion; and, (3) safety. Continue Reading The I-83 Capital Beltway Project: PennDOT’s Right-of-Way Acquisition and Power of Eminent Domain

In an earlier blog post (available here), we discussed how the Commonwealth Court reversed the decision by the Pennsylvania Public Utility Commission (“PUC”) to no longer issue certificates of public convenience to neutral host DAS (i.e. “distributed antenna system”) network operators.  The PUC’s decision was based on its new interpretation of the statutory language which excludes any person or corporation that “furnishes mobile domestic cellular radio telecommunications services” from the general definition of a public utility.  The Commonwealth Court determined that interpretation was “not supported by the plain language of the Code or the principles of statutory construction, the precedent of this Court, the determination of public utility commissions in other jurisdictions, or the 2014 Wireless Infrastructure Order.”

Last week, the Pennsylvania Supreme Court agreed to hear the appeal from the Commonwealth Court’s decision that was filed by the PUC.  We will continue to follow this issue through the appellate process and provide an update when a decision is issued.  In the meantime, please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues

We’ll soon provide a post on PennDOT’s I-83 Beltway Construction Project, however, we wanted to make sure none of you missed the opportunity to register to gain even more detailed insight from McNees attorneys Kandice Hull and Dana Chilson during their free webinar on January 30, 2019 from 12:00 – 12:45 PM.  The title of the webinar is “PennDOT’s I-83 Construction Project in the Capital Region:  What Businesses Should Expect, From Compensation to Condemnation” and your can secure your spot by  REGISTERING HERE.

Section I of the project (on I-83 near I-81) is currently under construction. Sections II and III (near 283 and the Eisenhower Interchange) are in development and property owners are being contacted about the project and its proposed impacts. The webinar will discuss the basics of the project and what landowners can expect as the PennDOT right of way acquisition process moves forward.

Space is limited so register now!

 

In our first two posts (Part 1 and Part 2), we discussed current approaches used by many communities to regulate parking, factors contributing to those approaches, and how those approaches are not sustainable because they consume large amounts of space and money.  Great anecdotal evidence of what we described is provided annually in a post from “Strong Towns” titled “The Best of #BlackFridayParking.”  It is worth a look.

In this, our third and final post, we discuss a few solutions communities, especially those seeking to encourage and support mixed use reuse, infill and redevelopment projects, may wish to consider when “right-sizing” their parking regulations.  In order to gauge impacts and determine the success of the parking solutions, we suggest limiting the following solutions by area (e.g., parcels, blocks or neighborhoods) or zoning district: Continue Reading Reclaiming “Paradise”: One Parking Space at a Time (Part 3 of 3)

With 2018 quickly coming to an end, Top 5, 10 and 100 lists are everywhere.  For your education and amusement, below are our Top 5 posts of 2018 by clicks (ordered oldest to newest).