There is a common misconception among municipal officials and planners in Pennsylvania, something similar to the following:  “The State told us we have to update our comprehensive plan.”

While the Pennsylvania Municipalities Planning Code (“MPC”), the Commonwealth’s enabling legislation, certainly permits municipalities to plan and regulate land use and development, the MPC does not require municipalities to either:  (i) adopt local comprehensive plans or ordinances; or (ii) revise such plans or ordinances.

But when municipalities choose to prepare and adopt local land use or development plans or ordinances, the MPC sets forth certain procedures, timeframes and contents to which municipalities must adhere or incorporate.

While Section 301(c) of the MPC states “[t]he municipal … comprehensive plan shall be reviewed at least every ten years,” nowhere does the MPC require municipalities to revise local comprehensive plans. [Emphasis added].

Interestingly, while the MPC does not require municipalities to adopt or revise local comprehensive plans, counties on the other hand, are required by the MPC to not only prepare and adopt county comprehensive plans, but also revise such plans.

Continue Reading Quit Bossin’ Us Around: Oh Wait, You’re Not.

In Pennsylvania, agriculture has provided approximately $83.8 billion in direct economic output, 280,500 jobs and $10.9 billion in earnings. Needless to say, agriculture is a major industry in the Commonwealth. The Agricultural, Communities, and Rural Environmental Act, commonly referred to as “ACRE,” is one of several statutes that protects agriculture at the state level. ACRE was enacted on July 6, 2005 to address municipal regulation of normal agricultural operations as written or as applied. There are two components to qualify as a normal agricultural operation: (1) it is an activity, practice, equipment, and/or procedure utilized in the production, harvesting, and preparation for market, and (2) the property is at least ten acres in size or produces at least $10,000 of annual gross income.

Under ACRE, “[a] local government unit shall not adopt nor enforce an unauthorized local ordinance.” An “unauthorized local ordinance” is one that either: (i) prohibits or limits a normal agricultural operation unless the local government unit has authority under state law to adopt the ordinance and it is not prohibited or preempted under state law, or (ii) restricts or limits the ownership structure of a normal agricultural operation.

Continue Reading Pennsylvania’s ACRE Law Protects Farmers from Unauthorized Municipal Regulation

On June 7, 2022, Taco Bell opened its newest location in Brooklyn Park, Minnesota, a suburb of Minneapolis. Unlike other Taco Bell locations, the Brooklyn Park restaurant offers exclusively drive-through services with no accompanying dining option. Even more intriguing, the kitchen is designed above, as opposed to next to, the drive-through pick-up windows.

Dubbed “Taco Bell Defy”, the new “floating” restaurant represents the first location of the international chain’s quest to “redefin[e] drive-thrus as customers know it.” Specifically, the goal of Taco Bell Defy is to reduce drive-through service times from an average of 4.5 minutes to 2 minutes or less. In pursuit of this objective, the new location gives each service lane a specific purpose, including three pre-order pick-up lanes for third-party delivery services and customers using the Taco Bell app, and one traditional on-site order and pick-up lane. The two-story model boasts a proprietary “vertical lift” that delivers Taco Bell menu items from the kitchen above to the car below.

Continue Reading Floating Restaurants: One and Done or More to Come?

In an earlier blog post, we discussed how the Commonwealth Court found that a Stroud Township ordinance prohibiting the unauthorized discharge of firearms in the Township did not pass constitutional muster. The Township only permitted shooting ranges in two of the Township’s zoning districts and required a minimum lot size of five acres for a shooting range. The Commonwealth Court stated that the Second Amendment not only protects an individual’s general right to keep and bear arms but also the related right to “acquire and maintain proficiency in firearm use.” However, the Commonwealth Court did clarify that the rights protected by the Second Amendment are not unlimited and do not entitle every person to have a shooting range on his or her own property. The Commonwealth Court provided examples of reasonable restrictions that might pass constitutional muster including minimum lot size requirements, setback requirements and safety and design requirements. This week, the Pennsylvania Supreme Court agreed to hear the appeal from the Commonwealth Court’s decision that was filed by the Township.

Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.

Several polls indicate that housing affordability continues to be a major issue across the nation.

As discussed in past blog posts, the Federal and state and local governments continue pushing for changes in zoning regulations to ensure that more housing units are affordable to more people in more areas.

In support of that goal, several communities, including Pittsburgh, are pursuing an approach called inclusionary zoning to ensure that residential developments include a minimum amount of housing units that are affordable to low- or moderate-income residents. The idea behind inclusionary zoning is to create mixed-income developments and neighborhoods. Municipalities are seeking to achieve inclusionary zoning by implementing either voluntary or mandatory zoning regulations.

Continue Reading Inclusionary Zoning: Carrots Taste Better and Aren’t as Painful as Sticks

The Pennsylvania Fish and Boat Commission (the “Commission”) recently announced that it is looking for Pennsylvania landowners with stream frontages to enter into conservation easement agreements in exchange for a one-time payment. The Commission is seeking these easements in furtherance of the Voluntary Public Access-Habitat Incentive Program (the “VPA-HIP”), a competitive grant program of the U.S. Department of Agricultural Natural Resources Conservation Service designed to provide funding to state governments for the benefit of public hunting, fishing, and other wildlife-dependent recreation. Portions of Pennsylvania’s VPA-HIP allocated funds are administered by the Commission for the purpose of providing Pennsylvania’s anglers with enhanced public fishing opportunities. Qualifying landowners who enter into a VPA-HIP conservation easement with the Commission will be awarded a one-time payment in consideration for permitting members of the public to access and fish on their properties. The amount of compensation for providing these easements depends on several factors, including (i) the length of the stream frontage that is made available for public access, (ii) the location of the property, and (iii) the fishing quality of the stream.

Continue Reading The Pennsylvania Fish and Boat Commission: Fishing for Landowners to Execute Conservation Easement Agreements

In its recent decision, Appeal of Best Homes DDJ, LLC, 239-40 C.D. 2020 (Dec. 23, 2021), the Pennsylvania Commonwealth Court considered, among other issues, whether MS4 fees imposed by the City of Chester Stormwater Authority constituted an impermissible tax. The case involved a challenge by certain rate/fee-payers that the Authority’s “fees” were actually “taxes” because, according to Appellants, the fees were revenue-generating and used for projects unrelated to stormwater management. Holding in favor of the Authority, the Court concluded that the evidence presented by the Appellants was insufficient to meet their burden of proving that the fees were invalid. The Court’s decision is important because it outlines the significant fact evidence required to overturn a stormwater user fee. A full explanation of the Court’s decision, including other legal challenges brought against the Authority, can be found HERE on our State and Local Tax Blog.

The quote above comes from my favorite attraction in Walt Disney World – the Tomorrowland Transit Authority PeopleMover located in the Magic Kingdom.  Most readers will not know this, but my family and I are Disney World fanatics.  We regularly trek down to Florida to visit the Mouse.  It’s rare for my professional and personal interests to intersect so directly, but when I read this it was – dare I say – magic?

Continue Reading “Paging Mr. Morrow – Mr. Tom Morrow.” Is a Disney Community Coming to Your Municipality Soon?

Pennsylvania recently created the Pennsylvania Broadband Development Authority (the “Authority”) to oversee broadband deployment to unserved and underserved areas in Pennsylvania and to authorize grant awards from the $100 million allocated to Pennsylvania by the Federal government.  The federal infrastructure bill (the Infrastructure Investment and Jobs Act), signed into law by President Biden in November 2021, is the source of the federal funds.  The Authority – located in the Department of Community and Economic Development – will serve as the single point of contact for entities desiring to deploy broadband in the Commonwealth.

Continue Reading Pennsylvania Broadband Development Authority to Oversee Disbursement of $100 Million in Federal Infrastructure Funds

Kicking off 2022, we can celebrate a win for builders and developers with the enactment of PA Senate Bill 208, which was signed into law by Governor Wolf on December 22, 2021.

SB 208 made numerous changes to Section 509 of the Pennsylvania Municipalities Planning Code (the “MPC”), which deals with posting financial security to guarantee completion of the public improvements depicted on a plat. Pursuant to Section 509, a municipality can require a developer to post financial security (usually in the form of a letter of credit or a bond) in an amount equal to 110% of the cost of the public improvements shown on the plan before releasing it for recording. These bonded improvements typically include roads, stormwater and drainage facilities, open space improvements, and required buffer landscaping.

Continue Reading Amendments to the MPC Clarify Municipal Bonding Requirements