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?

On June 30, Governor Wolf signed Senate Bill 554, which amended Pennsylvania’s open meeting law more commonly referred to as the Sunshine Act.  The amendment places new requirements on municipalities for providing notice of business to be conducted at meetings and limits action on business that was not included in that notice.  What does that mean for developers who have business before those municipalities?

Senate Bill 554 generally amends the Sunshine Act (the “Act”) in two places.  First, Section 709(D) of the Act is amended to address the notice that is required for business to be conducted at any municipal meeting (this would include governing bodies, planning commissions, zoning hearing boards, etc.). The municipal agency must
Continue Reading More Sunshine? What Do Changes to the Sunshine Act Mean to Developers?

Hopefully, the title alone has George Harrison’s acoustic intro playing in your head.  If not, maybe this will help.

Here comes the sun (doo-doo-doo)
Here comes the sun, and I say
It’s all right

The Beatles’ classic was not foretelling of the arrival of solar energy development projects in Pennsylvania, but it could serve as an anthem now.

Last month, Rachel McDevitt of StateImpact Pennsylvania published an article about the emerging solar energy development “boom” in Pennsylvania.  The article is a wonderful deep dive into the recent growth of solar projects.  It outlines the usual questions and concerns surrounding those projects.

McDevitt notes that
Continue Reading Here Comes the Sun . . . Solar Development in Pennsylvania

A kaleidoscope is an optical instrument that presents an ever-changing view for those looking through it.  In many ways, this reminds me of life as a real estate developer in Pennsylvania.  The approval process landscape is ever-changing from project to project and municipality to municipality.  With every twist of the land use kaleidoscope the path to a successful project looks a little (or a lot) different than the last one.

There are approximately 2,500 municipalities in Pennsylvania.  Between 2,100 and 2,200 have their own set of zoning regulations – each different than the other – that shape how land can be developed in that municipality.  Think of those zoning regulations as one color of glass inside the kaleidoscope.  But picture looking through that kaleidoscope you had as a child – there are multiple colors, right?
Continue Reading Looking Through the Kaleidoscope – Land Use in Pennsylvania

In recent months, the Coronavirus pandemic and reignited social unrest following the death of George Floyd have highlighted ongoing issues in our communities regarding unequal access to quality healthcare, affordable housing and educational opportunities. As society struggles with identifying all the causes of this disparate treatment, we sometimes forget the role in that system that land use ordinances historically played and continue to play to this day. Land use ordinances can be used to socially engineer a community under the guise of “planning.”

We are taught that zoning began as a community building tool in the United States as a way of ensuring “compatible” uses were near each other and incompatible uses were separated. The thought was that stronger communities could be built by keeping zones or districts of compatible uses together. But has this been the only use of zoning?
Continue Reading Land Use Ordinances: Tools for Community Planning or Social Engineering?

The municipal regulation of public utility facilities continues to be a topic of litigation.  In April 2018, we discussed how municipalities cannot use zoning ordinances to regulate non-building facilities of public utilities.  Recently, the Pennsylvania Supreme Court weighed in on whether a municipality can regulate when and how a public utility installs its improvements within the municipality’s street rights-of-way.  Again, the litigation resulted in a favorable decision for the public utility.

In PPL Electric Utilities Corp. v. City of Lancaster, 2019 Pa. LEXIS 4611 (Pa. 2019), the City of Lancaster adopted an ordinance to regulate the installation of public utilities in City streets.  This effort was not surprising as many municipalities look at their street rights-of-way as a critical asset that must be protected. 
Continue Reading You Can’t Touch This? Supreme Court Hammers Away at Municipal Regulation of Public Utilities

For many years, the opinions of non-resident objectors – especially unsubstantiated opinions – were of little to no relevance in zoning hearings, including conditional use and special exception hearings.  However, applicants and municipal officials could see more objectors from other municipalities present testimony and evidence at hearings because the Pennsylvania Supreme Court has endorsed the relevancy of that testimony and evidence in certain situations.

In EQT v. Borough of Jefferson Hills, the applicant sought conditional use approval for a natural gas well site in the Borough of Jefferson Hills.  During the public hearing before borough council, objectors from other municipalities testified about the alleged negative effects on health and quality of life that they experienced from a similar well in a neighboring township that was operated by the conditional use applicant.
Continue Reading Pennsylvania Supreme Court Alters the Conditional Use and Special Exception Landscape

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

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

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