With football season behind us, March arrives with bracket talk and the discussion of college basketball teams you have never heard of. Some of us spend hours researching or contacting that old college buddy to help fill our brackets, while others choose teams based on names or colors. No matter your strategy, March Madness and the brackets are here!

Anyone can fill out a bracket, and literally anyone can win a bracket pool no matter their knowledge base, which is what makes March Madness so much fun. This only works because the process and the rules are specific, definite, and predictable (not by which team wins but how the bracket game is played). While zoning ordinances are not nearly as exciting as March Madness, we can build off the success of the brackets in March Madness.

The last thing a municipality wants is to be hauled into court to debate the constitutionality of its zoning ordinance. But having a clear, specific, definite, and predictable zoning ordinance does not just help limit lawsuits, it helps stakeholders – including the municipality, residents, property owners and developers – create better projects.

A clear, specific, definite, and predictable zoning ordinance should provide a clear, specific, definite, and predictable process for land use applications. Such a process has many benefits. For example, and at a superficial but important level, it helps reduce the number of phone calls and questions received by the zoning officer and other staff members by making it easier for residents, property owners, and developers to answer their own questions. It also permits property owners and developers to better predict the timing and needs for a specific application. Moreover, it permits the reinforcement of municipal decisions because they become more consistent. That efficiency reduces municipal administrative costs, makes it easier for residents to engage in the process, and reduces the time and money required by property owners and developers to work through the process. It really is a win-win-win.

To create a clearly defined process, a municipality must critically review its ordinance, keep it up to date, and consider the steps a property owner must go through to secure various land use approvals. Remember, ordinances that are vague and indefinite are to be interpreted broadly and in favor of the applicant. As a result, vague and indefinite ordinances often lead to battles between various stakeholders, including the municipality, residents, and the applicant.

But there are also more practical and simplistic things that can be done to reduce the municipality’s administrative burden and make things easier for residents and applicants. For example, some municipalities provide on their websites submission deadlines and schedules, meeting schedules, or even flow-charts that depict the application process. Others make it easy to find relevant ordinances, maps, and form agreements by providing links on the website. Within those ordinances, some municipalities provide examples or illustrations and charts to assist with interpretation.

It also is important for municipalities to consider the necessity and efficiency of meetings. For example, what uses or requested changes do they want to go through the special exception, variance, or conditional use processes? It is no surprise that many smaller business and individuals do not have the time, money, or expertise to present an application at a hearing. There are times where a hearing is overkill. To support those stakeholders and limit the administrative burden, a trend in ordinances is to permit more uses by right while protecting the public with appropriate criteria for the zoning officer to review. Similarly, if the same variance or waiver has been approved several times (often because a provision is outdated), it might be time to reconsider that section of the ordinance to make it more permissive.

Perhaps most importantly, municipalities should encourage, and applicants should seek out, pre-application meetings. Those meetings not only allow for better designed projects, but they also provide an opportunity to discuss resident engagement – whether it is needed and, if it is, to what level. As we have discussed before, many issues can be nipped in the bud if addressed early in the process. Pre-application meetings are a great way to figure out what those issues might be. So, let’s work together to create a clear, specific, definite, and predictable process from the start. As importantly, let’s communicate it to the stakeholders so they do not create significant issues out of something that could easily have been addressed. And as always, please reach out to one of our members of the McNees Wallace & Nurick Land Use Group to learn more about these and other collaboration methods we use, or for any other land use questions.

This post is the second in a 5-part series. The first post can be accessed HERE.

Commonwealth and local officials recently announced that a new farm will soon begin operating in Northeastern Pennsylvania.  A farming operation may not seem like front page news given Pennsylvania’s long and rich agricultural heritage, or the fact that Pennsylvania has been one of the nation’s leading agricultural production states, including tops in the number and acreage of permanently preserved farms. But what makes this particular farm newsworthy is its departure from well-known, century-old farming techniques: this farm is a technology-based, indoor vertical farming operation located within an industrial business park that is in close proximity to an interstate highway.

Continue Reading Vertical Farming on the (Vertical) Horizon?

With 2023 underway, many businesses are gearing up to complete and submit their annual Tier II chemical inventory reports under the federal Emergency Planning and Community Right-to-Know Act (“EPCRA”).  Pennsylvania administers the program through the Department of Labor & Industry. Tier II reports are due by March 1 and therefore businesses should take the opportunity now to review their operations, purchases, and past reporting to ensure that all regulatory requirements under ECPRA are being met.  This blog post provides a brief overview of the Tier II chemical inventory reporting requirements under EPCRA and how those requirements may apply to your business and its operations.

Continue Reading What’s In Your Warehouse? Chemical Reporting Due March 1

Benjamin Franklin once wrote “nothing is certain except death and taxes.” While this famous quote still rings true, there are a few valuable exceptions. Under Article 8, Section 2 of the Pennsylvania Constitution, the General Assembly may enact laws exempting certain properties from taxation. For instance, Section 204(a)(2) of the General County Assessment Law (the “Act”) provides that “[a]ll actual places of burial, including burial grounds and all mausoleums, vaults, crypts or structures intended to hold or contain the bodies of the dead” shall be exempt from all county, city, borough, town, township, road, poor and school tax. In addition to cemeteries, there are 12 other types of properties that are exempt under Section 204(a) of the Act.

However, while a portion of a property may be exempt from taxation under Section 204, other portions of the same property may not. The extent of a property’s exemption depends on the specific language employed in Section 204. Indeed, whereas Section 204(a)(2) exempts “actual places of burial”, Section 204(a)(1) exempts “churches, meeting-houses, or other actual places of regularly stated religious worship, with the ground thereto annexed necessary for the occupancy and enjoyment of the same.” Other exemptions under Section 204(a) include similar language that can make it difficult to pinpoint the extent of a property’s exemption. That said, it is clear that the use of all portions of the property must be considered, and not only the use of buildings or improvements.

Continue Reading “Nothing is certain except death and taxes”… unless a Pennsylvania Tax Exemption Applies

The affordability of housing in America is a well-documented growing issue.  Some public officials have declared it a crisis.  The recent spike in mortgage rates certainly will not improve the situation.  Public officials and developers have been searching for policies and real world opportunities to provide more affordable housing, but there are no easy solutions.  A recent article by Mike Bebernes on Yahoo! News looked at whether America’s growing vacant office space can be redeveloped to provide for more affordable housing options.

Continue Reading Is Part of the Solution to the Housing Problem Already Built?

On December 8, 2022, McNees attorneys David Unkovic, Ryan Gonder and Timothy Horstmann will host a CLE class along side Christopher Houston (retired from the PA State Employees’ Retirement System) exploring the ethical and practical issues encountered by legal counsel to the board of a public body, including municipal solicitors.

The CLE class will include a review of relevant rules of professional conduct and applicable laws; an examination of the role of compliance in good governance; advice for board members who are ex officio or officials of other public bodies that may have interests which compete with those of the public body; and a look into when such officials should recuse themselves.

The class costs $5 and will take place from 12:00 p.m. to 1:00 p.m. on Thursday, December 8, 2022. Attendees may participate either in-person (Harrisburg) or online, and will earn 1.0 hour of ethics CLE credits. If you are interested in attending, you may register HERE.

We are not ashamed to admit that we LOVED Top Gun: Maverick (no spoilers, we promise). It’s been almost 30 years since Maverick and Iceman squared off in Top Gun. “You like to work alone,” Iceman accused Maverick. Yet, ninety minutes later, focused on a common goal, Maverick and Iceman teamed up to save the world. “You can be my wingman anytime,” the result of Maverick and Iceman’s collaboration.

While elected officials may not be saving the world from Mig-29s (or 5th Generation Fighters), they play a vital role in creating the envisioned growth of their communities. In many communities, the goal is controlled and collaborative development. As land use attorneys, we are fortunate to be part of that collaboration and, therefore, want to offer our top five ways to encourage controlled and collaborative development. This is the first post in a five-part series. First up, early collaboration between the stakeholders.

Continue Reading “You Can Be My Wingman Anytime”: Top 5 Ways to Encourage Controlled and Collaborative Development (Part I of V)

In an effort to preserve agricultural and forest land, Pennsylvania passed The Pennsylvania Farmland and Forest Land Assessment Act of 1974, also known as Clean and Green. Clean and Green provides qualified parcels of land with preferential assessment values, resulting in lower property taxes for the landowner. A Clean and Green qualified parcel generally must be more than 10 acres in size and devoted to agricultural use, agricultural reserve (i.e. open spaces used for outdoor recreation), or forest reserve. Rather than appraising the parcel based off of its Fair Market Value, Clean and Green allows the Department of Agriculture (DOA) to value parcels based on their use. The DOA provides county assessment offices with a list of use values annually. Each county’s assessment office is allowed to provide for lower assessment values for Clean and Green qualified parcels, but may not assess a parcel higher than the use values provided by the DOA. Currently, Pennsylvania has more than 9.3 million of its total 29 million (~32%) acres of land enrolled in Clean and Green.

While Clean and Green assists many Pennsylvania farmers that may otherwise face financial struggles, the program also disincentivizes those landowners from changing the use of their land or selling it for non-agricultural purposes. In the event a landowner violates the Clean and Green covenants or elects to remove the parcel from the program, the landowner is subject to up to seven years of rollback taxes at a 6 % interest rate per year (or, if the parcel was enrolled in Clean and Green for less than seven years, rollback taxes for the number of years the parcel was enrolled). Rollback taxes generally means the amount of taxes that would have been paid had the parcel not been enrolled in Clean and Green, less the taxes due by virtue of the program. In the event the parcel is sold to a third party, rollback taxes will not become automatically due because of the sale itself. If, however, a third party purchases the parcel and changes its use, the parcel—thus, the third-party purchaser—can become subject to the rollback tax penalty.

Continue Reading Clean & Green & Sometimes…Mean?

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