Our Energy and Environmental Practice Group issued a client alert today related to a rule released by the EPA and USACE that deals with “waters of the United States.”  The rule will impact land development and permitting.  The first two paragraphs of the article are reproduced below and additional details and the full text of the alert are available here.

On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“USACE”) announced the long-awaited replacement rule for the 2015 “waters of the United States” rule (“WOTUS I”).  In effect, the 2015 WOTUS I rule expanded EPA and USACE jurisdiction over wetlands and similar features (and created uncertainty) under the federal Clean Water Act (“CWA”), which complicated permitting for land development.  As written into the regulatory text from 2015, the agencies’ “case-by-case” interpretation of their jurisdiction had the tendency of placing landowners, developers, farmers, and other stakeholders in the precarious position of not knowing whether a given body of water was jurisdictional under the CWA.  In practice, landowners could find themselves on the wrong end of an enforcement action if either EPA or USACE determined that the waterbody was jurisdictional, even if such a determination was only made after the landowner’s allegedly offending activity (e.g., construction, plowing, backfilling) had ceased.

Now, the replacement rule (“WOTUS II”) proposes to scale back the scope of EPA and USACE jurisdiction over wetlands and similar features under the CWA.  WOTUS II will be published in the coming weeks for public comment.  Because the proposed rule will impact land development and permitting, and will be hotly contested, regulated stakeholders should seriously consider participating in the process and submitting comments on the important proposal.

Please read the full alert here.

In a prior post on the history of zoning in Pennsylvania, Jamie Strong cited the Pennsylvania Department of Community and Economic Development, stating less than a third of Pennsylvania’s 2,561 municipalities have no zoning regulations.  He wrote that, in general, it is the “more rural, less developed and less populated municipalities” in Pennsylvania that lack zoning.  As of 2015, 98.2% of Pennsylvania’s urban population was zoned while only 68.9% of the rural population was zoned.

Such is not the case in Texas, where Houston, the state’s largest city, is “without” zoning.  Houston is the butt of many zoning jokes – all of which are as dull as you’d expect a zoning joke to be.  Nonetheless, it is a fascinating case study showing us how our cities and towns might look without the Pennsylvania Municipalities Planning Code and local land use ordinances.  (Google “pictures of Houston zoning.”)  I recently read a few articles examining the effects of how Houston has handled development over the last 100 years.  Two of the articles led me to the conclusion that Houston’s land use problems, whether real or perceived, have more to do with its historical lack of a comprehensive scheme – most notably, a comprehensive plan, than with a lack of zoning regulations. Continue Reading Houston, We Have a (Planning) Problem

Perhaps consistent with the spirit of giving this time of year, the General Assembly recently provided a gift to homeowner associations (“HOA”) across the Commonwealth by signing Act 84 into law.  Act 84, which was enacted and signed into law on October 19, 2018, made some notable changes to the Pennsylvania Uniform Planned Communities Act and the Uniform Condominium Act (“Acts”).  Before discussing the details, it is important to note that whether Act 84 will have retroactive effect is unclear; thus, it is possible the changes it brings apply only prospectively.

The key changes made by Act 84 involve (1) additional enforcement options for HOAs against their unit owners (i.e. homeowners) and (2) timing limitations to enforce the warranty against structural defects.  This blog post addresses the new enforcement options for HOAs and a later post will discuss the changes involving the warranty against structural defects. Both changes take effect December 18, 2018.

Act 84 broadened the rights available to HOAs when enforcing delinquent assessments or violations of a declaration, bylaws, or rules and regulations by unit owners. Continue Reading Act 84 – You Don’t Want To Be On An HOA’s Naughty List

This is the second post in a two-post series on small cell facilities and the implications of the Declaratory Ruling and Third Report and Order (the “FCC Order”) that was adopted by the Federal Communications Commission (the “FCC”) in September.  The first post described small cell facilities, the reasons for the FCC Order, and included a discussion regarding the review standard adopted by the FCC.  This post discusses the fee standards and “shot clocks” that were adopted by the FCC in response to concerns raised by the wireless industry regarding excessive and unreasonable fees charged by municipalities, unequal treatment of small cell facilities compared to other utility facility installations, and lengthy review time periods for applications.

The FCC recognized that the fees charged by municipalities with respect to the deployment of small cell facilities can materially limit or inhibit the ability of the wireless service providers to compete.  Such fees are a critical issue for the industry since it is estimated that hundreds of thousands of small cell facilities will be deployed in the near future.  Excessive or unreasonable fees could serve to effectively prohibit the deployment of small cell facilities by rendering the proposed deployment economically infeasible.

The FCC Order addresses three types of fees charged by municipalities: (1) fees for access to the public rights-of-way; Continue Reading Small Cell Facilities in the Public Rights-of-Way – The FCC Weighs In (Part II)

In an earlier blog post, we looked at distributed antenna system (DAS) networks, a technology that wireless service providers are deploying to address the increasing demand for additional network capacity.  Another technology that is being deployed is the small cell facility.  This is the first post in a two-post series on small cell facilities and the Declaratory Ruling and Third Report and Order (the “FCC Order”) that was adopted by the Federal Communications Commission (the “FCC”) in September.  This post describes small cell facilities, provides the reasons the FCC adopted the FCC Order and discusses the review standard adopted by the FCC.  The next post will review the fee standards and “shot clocks” that were adopted by the FCC and some typical ordinance requirements.

Small cell facilities typically consist of a single antenna, attached either to an existing structure (e.g., a light pole, utility pole, traffic signal pole, etc.) or to a new structure, together with a small equipment cabinet.  Small cell facilities provide a much smaller coverage footprint than a traditional wireless antenna facility and are intended to provide additional network capacity in an area where wireless subscribers are more concentrated (e.g., a shopping center, an urban area, etc.).  Small cell facilities are often deployed within public rights-of way which has led to some tension between wireless service providers and municipalities. Continue Reading Small Cell Facilities in the Public Rights-of-Way: The FCC Weighs In (Part I)

Earlier this year, Claudia Shank blogged about the revival of the Environmental Rights Amendment (the “ERA”) (available HERE) after the Pennsylvania Supreme Court’s decision in Pennsylvania Environmental Defense Fund v. Commonwealth, 161 A.3d 911 (2017).  The PEDF decision breathed new life into the 1972 amendment to the Pennsylvania Constitution, but also left many unanswered questions about the ERA.  The most relevant unanswered question for developers and municipalities was the meaning of the revived ERA in the land use context.  Last week, the Commonwealth Court provided some insight.

In Frederick v. Allegheny Twp. Zoning Hearing Board, 2018 Pa. Commw. LEXIS 593 (Commw. Ct. Oct. 26, 2018), the Court reviewed a substantive validity challenge to a zoning ordinance that permitted oil and gas wells by right in all zoning districts of a township.  In a 5 to 2 decision, an en banc panel rejected the challenge (and the accompanying land use appeal to a zoning permit) that was filed by objectors to an unconventional gas well project in a residential zoning district.  The Court dismissed the objectors’ argument that Continue Reading The Commonwealth Court Begins to Answer What the Environmental Rights Amendment Means to Land Use

In our first post of this three-post series on parking (available here) we discussed Richard Florida’s informative, but not surprising, article which states “American cities devote far too much space and far too many resources to parking.”  Location, ownership and management of existing parking spaces are significant issues impacting parking in communities, and our first post focused on their impacts based on the current approach to parking regulations taken by most communities.  The current approach is unsustainable, as it contributes to sprawl and increases costs.  In this post, we will explore some of the factors causing and impacting the current general approach to parking regulations – specifically with respect to urban reuse and mixed-use projects.

More often than not, communities’ parking requirements, located in zoning ordinances, are onerous enough to derail desirable urban reuse and mixed-use projects.  Most communities’ requirements generally reflect a more suburban approach to parking that is reflective of planning and development trends of the 1950s and 1960s (i.e., separation of uses with an emphasis on accommodating automobiles).

In reviewing several Pennsylvania “urban” municipal zoning ordinances, a few common parking concepts and provisions become evident. Continue Reading Reclaiming “Paradise”: One Parking Space at a Time (Part 2 of 3)

Whether you are a fan of John Wayne, Clint Eastwood or, to a much lesser extent, Will Smith, you are familiar with the Wild (Wild) West.  During my first year as an associate, the members of our Land Use Group described land use hearings, such as a hearing for a conditional use or a variance, as the Wild West as compared to proceedings in a courtroom.  They were not wrong; although, that is not to say land use hearings operate without procedural rules.

This is the third post in what has turned into a four-part series on land use hearings.  The first two posts explained the beginning and ending of hearings, including the public notice requirements and deadlines under the Pennsylvania Municipalities Planning Code (“MPC”) for conducting a hearing and reaching a decision.  This post and the next will cover the hearing itself.

Section 908(3) of the MPC describes the “parties to the hearing” as Continue Reading Land Use Hearings – The Wild West

On October 24, 2018, the Lancaster County Board of Commissioners will consider the adoption of Places2040, the new proposed comprehensive plan for Lancaster County.  Prepared by the Lancaster County Planning Commission (“LCPC”) and designed to replace Envision Lancaster County, the County’s current comprehensive plan, Places2040 seeks to establish land use and planning policy to guide the next 20 years of development in Lancaster County. Adoption of the proposed Plan would complete a 3-year planning process that engaged County residents, government entities and targeted stakeholders. Only 94 pages in length, Places2040 is surprisingly concise when compared to typical comprehensive plans and is centered around 5 “Big Ideas”: 1) Creating Great Places; 2) Connecting People, Place & Opportunity; 3) Taking Care of What We Have; 4) Growing Responsibly; and 5) Thinking Beyond Boundaries.

As Lancaster County continues to grow, one of the focuses of the Plan is establishing a path for the County to absorb and accommodate a projected population increase of 100,000 people between 2015 and 2040.  Some of the Plan’s recommendations include Continue Reading Places2040: Lancaster County to Adopt New Comprehensive Plan

Recently, the YMCA servicing my hometown was awarded a significant grant to construct a child care facility at the new YMCA building in Clarion County (https://bit.ly/2x6frxQ).  The award was huge for the community and had a special meaning to me because of all the time my parents put into starting and growing that YMCA.  That good news was followed by Emily Thurlow’s article in the Central Pennsylvania Business Journal (https://bit.ly/2xb96jZ) on September 13, 2018.  I started thinking about the under-utilization of alternative financing options and cost savings available through various statutes for development projects, including those combating blight.

This post is just a teaser.  (Sorry.)  But through the fall and winter you can expect to see follow up posts on our blog related to these topics.  Those posts will explain the purpose and benefits of working with the various development corporations in Pennsylvania, discuss grant and alternative financing options (they’re not just for non-profits!), and explain existing statutes that can help convert blighted properties into prosperous properties.  So stay tuned, and in the meantime, contact your local development corporations and think outside the box!