If you have ever watched a live trial or law-related television show, you probably know a few general things about court proceedings: a judge presides over a case and the rules of evidence (Objection, your honor!) govern what parties can and cannot say and do.  While there are similarities in how court proceedings and land use hearings operate, key distinctions exist.  First, there is no separate judge and jury.  The governing body or the zoning hearing board (collectively, the “Board”) does both.  In addition, land use hearings, while structured, are designed to give the Board freedom in its decision process.  This includes the Board’s power to appoint a hearing officer, relaxed rules of evidence (including the hearsay rule), and the opportunity for parties to present arguments and evidence and to conduct cross-examination. 
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In January of this year, Governor Wolf put forth a series of Legislative Proposals meant to address critical infrastructure problems in Pennsylvania, including blight, particularly in rural Pennsylvania.  He called this series of proposals Restore Pennsylvania.  Governor Wolf simultaneously proposed paying for these initiatives through the imposition of a tax on the extraction of shale gas in the Commonwealth.  While many of the proposals to address the infrastructure problems were well received, the funding of the programs through a shale gas tax has been more controversial.  More information on the entire Restore Pennsylvania initiative can be found HERE.

Of interest to municipalities in the Commonwealth dealing with the problem of blighted properties is the section of the Governor’s proposal that deals specifically with that issue.  The Governor’s proposal acknowledged that nearly all communities within the state have some level of blight.  The cost of dealing with the problem varies, with small municipalities needing funding of perhaps $1 million dollars to address the issue, while larger municipalities, such as Altoona, having concluded that they need tens of millions of dollars to effectively combat the problem.    
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Recently, Frank Chlebnikow, AICP and I co-presented a program entitled “Finding Valuable Commercial Space Under Parking Lots” at the Pennsylvania State Association of Township Supervisors’ 97th Annual Educational Conference.  The program discussed problems (and potential solutions) many communities are experiencing due to the increasing amount of vacant retail spaces in shopping malls and big-box retail stores.  Most communities experience impacts such as a stagnating/declining tax base and operating revenue shortfalls, leading to a reduction in municipal services, loss of businesses and residents, limited property reinvestment, and increasing tax rates.  But mature, built-out suburban and urban communities must also deal with the lack of undeveloped land, aging and inadequately maintained infrastructure, traffic congestion and addressing stormwater runoff issues while complying with federal/state mandates.

One thing is certain, the traditional mall and suburban commercial corridor model (a “shopping mall”) that includes one or more sprawling, single-story buildings dominated by retail and department store tenants surrounded by seas of parking lots, is not the future.
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Solutions for Blight in Pennsylvania

Presented by McNees Attorneys Kandice Kerwin Hull, Dana Chilson and Jeffery Esch McCombie

Blight is a problem facing nearly every municipality in Pennsylvania.  Learn about win/win solutions that allow developers to assist communities in tackling blighted properties. This webinar will include a discussion of eminent domain options, redevelopment authorities,

Few things can sour the completion of an otherwise successful construction project more than a lingering mechanics’ lien claim—especially where the developer or project owner did not see it coming.  Pennsylvania’s General Assembly took steps to assist developers and project owners in preventing against this scenario when it passed Act 142 of 2014, which led to the establishment of Pennsylvania’s State Construction Notices Directory (the “Directory”) in December 2016.  This post, Part I of a two-part series, discusses the benefits of registering a project on the Directory. Part II will highlight how underutilized the Directory is in many parts of Pennsylvania.

The Directory is an online database that was developed and is now managed by the Pennsylvania Department of General Services.  It is used for the filing and dissemination of certain project-related information on qualifying construction projects in Pennsylvania.  When the cost of a private construction project meets or exceeds $1.5M, the project is eligible to be “registered” on the Directory.  Project registration is wholly voluntary, and whether to register is a decision for the owner or developer.  A project that is registered is known as a “searchable project” per the statutory terminology.  Registering a project offers important benefits to developers and owners.
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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.
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Recently, one forward thinking Pennsylvania grocery retailer opened a new Ecommerce hub facility at the site of one of its former, traditional grocery store buildings in a mixed-use neighborhood. Rather than demolishing the existing “brick and mortar” building, it is adaptively reusing the building by converting it to a new “click and mortar” facility.

For many retailers, the traditional retail approach includes a commercial building with a significant retail display and sales area directly accessible by customers selecting and purchasing their goods onsite.  But new approaches are popping up every day.  The new approach referenced above allows customers to place orders online using their electronic devices or onsite using tablets located in the building’s vestibule area.  Orders are processed and fulfilled onsite and either picked up by customers or delivered to customers via a delivery service.

This local retailer is just one example of an emerging business trend whereby “shopping fulfillment centers” are occupying vacant, former retail store buildings located in close proximity to customers.
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Late last spring we discussed how the 2017 Tax Cuts and Jobs Act (“TCJA”) negatively affected development by increasing the costs incurred by developers to install water and wastewater infrastructure (Part I and Part II). Effective January 1, 2018, the TCJA required that water companies include advances for construction (“Advances”) and Contributions in Aid of Construction (“CIAC”) in taxable income. Of course, water companies do not want to incur the tax directly, so it is passed on to developers thereby making their cost to install water and wastewater infrastructure even higher.

On February 28, 2019 the Pennsylvania Public Utility Commission (“PUC”) granted Pennsylvania American Water’s (“PAW”) Petition for Reconsideration of its order in Docket Nos. R-2018-3002502/R-2018-3002504. The order requires developers or builders to pay for the TCJA-imposed tax on CIAC and Advances. As a result of the PUC’s grant of reconsideration, there was a cautiously optimistic sigh of relief that the PUC might take a broader and deeper look at the positive impact of new development on the entire base of customers and spread the tax to all customers, not just the developer that installed the improvements.
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Pennsylvania’s local governments are on the front lines of providing for the needs and wants, and capturing information about, the likes and dislikes of the communities they serve.  Certainly, the decisions made by local government officials, planners and professional staff are the most likely to directly impact their constituencies’ daily lives because such decisions typically are at a more personal level than those made by state and federal officials.  However, there are state government opportunities and processes that should be considered by local leaders that may support their more pressing priorities for growth and development.

For example, Governor Tom Wolf’s budget address on February 5, 2019 identified many areas of increased focus and related funding that, if approved by the General Assembly later this year, should be primarily available to help Pennsylvania’s local governments meet many of their budgetary requirements.  Although the Governor continues to prioritize education funding, workforce development and new resources for the agricultural industry, many other areas of opportunity exist and are expected to continue to be available after this budget is negotiated.

This is the first in a series of blog posts in which we highlight a sampling of the funding sources planners and local government officials should consider when working with private and public sectors interested in infrastructure improvements, beautification and revitalization, attracting and/or expanding new businesses and industries to the area or, in some cases, trying to retain existing businesses.  This post focuses on the Act 13 suite of programs which is managed by the Pennsylvania Department of Community and Economic Development (“PA DCED”).
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In our first two posts (Part 1 and Part 2), we discussed current approaches used by many communities to regulate parking, factors contributing to those approaches, and how those approaches are not sustainable because they consume large amounts of space and money.  Great anecdotal evidence of what we described is provided annually in a post from “Strong Towns” titled “The Best of #BlackFridayParking.”  It is worth a look.

In this, our third and final post, we discuss a few solutions communities, especially those seeking to encourage and support mixed use reuse, infill and redevelopment projects, may wish to consider when “right-sizing” their parking regulations.  In order to gauge impacts and determine the success of the parking solutions, we suggest limiting the following solutions by area (e.g., parcels, blocks or neighborhoods) or zoning district:
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