This Blog previously discussed the headaches created for municipalities and their residents when zoning ordinances are not updated to account for short-term rentals, such as AirBNB and VRBO. But what do municipalities need to do to update their zoning ordinances? What thought processes should be followed? And what other new uses are primed to create – or are already creating – interpretational issues like those created by short-term rentals? This post, and others that will follow, answers those questions. After reading this post, I encourage you to go back and read our prior posts on two short-term rental cases that are case studies for what happens when zoning ordinances are not updated to account for new uses. In addition, please continue to check back over the following months as I introduce our readers to new uses that may not be adequately considered by municipal zoning ordinances.

In general, Pennsylvania is a state known as a defender of property rights. Indeed, all valid and legal uses must be permitted somewhere in a municipality and, where a valid and legal use is not provided for, the zoning ordinance may be determined to be exclusionary. Such an ordinance may be found to be de jure (on its face) or de facto (when applied) exclusionary. But in either case, the exclusionary ordinance is invalid and unconstitutional. Under Pennsylvania law, the remedy for an applicant who proves a zoning ordinance is exclusionary sometimes is site specific relief for his or her use. Meaning, the use is permitted in whatever zoning district the applicant proposed, so long as it otherwise complies with the requirements of the relevant zoning district. To avoid such an outcome, many municipalities employ a “catch all” provision for uses not provided. Those provisions may permit such uses in any zoning district by special exception or conditional use if the proposed use meets the objective criteria established under the catch all provision. Even there, though, the municipality’s hands often are tied with respect to the location (from a zoning district perspective) of the excluded use. So, what is a municipality to do?

Municipalities should take a few steps. First, municipal officials and staff should stay up to date on new uses. Simply understanding the basics of newer uses, such as agritourism, urban agriculture, small cell sites, and medical marijuana processing and dispensing will help the municipality identify issues. Then, municipal leaders and staff must determine whether the use is to be encouraged or discouraged in the municipality. Each municipality has different community planning goals. Accordingly, what is encouraged in a larger college borough might be discouraged in a rural township. However, it is critical, even for uses to be discouraged, to be permitted somewhere.

Along those same lines, it might be appropriate to include additional regulations for a specific use. It is here, though, where municipalities must be careful. Ordinances regulating the use of private land must be rational, not arbitrary or capricious, and must be reasonably related to the protecting the public health, safety and welfare. Those concepts rest at the heart of our land use law. Regulations for a use that are too restrictive are unconstitutional. So, the municipality must perform a balancing act. Less regulation weakens the municipality’s control over the use but is less likely to be found unconstitutional or preempted by state or federal statutes, while more regulation may force conformance with the governing body’s vision for the municipality but might be unenforceable as unconstitutional or preempted.

In the end, the best approach is to make an informed decision. Governing bodies must understand new uses so that they can determine where to permit the use and how to regulate it, if at all. Further, understanding new uses often creates new opportunities for municipalities as something that was once feared becomes favored.

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.