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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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.
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In blog posts last year (available HERE and HERE), we reviewed the challenges that municipalities face in regulating short-term rentals under existing zoning ordinances that do not specifically address the use.  One case we discussed was Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 164 A.3d 633 (Pa. Commw. Ct. 2017).  The Commonwealth Court’s decision in Slice of Life was appealed and the Pennsylvania Supreme Court recently reversed the Commonwealth Court’s decision.

In Slice of Life, the Township issued an enforcement notice to the property owner alleging that the property was being used as a hotel or other type of transient lodging in violation of the zoning ordinance.  According to the zoning ordinance, single-family residential was the only permitted use in the underlying zoning district.  The Township’s zoning ordinance defined the term “family” as
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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,

We are accustomed to seeing some accommodations for emotional support animals in the housing context.  Recently, a Borough’s zoning hearing board and the Court of Common Pleas were asked to resolve a similar issue in a zoning case.  The facts and issues in the case touched on urban agriculture issues that are becoming increasingly more common in addition to the interpretation of certain terms in the Borough’s zoning ordinance.  Like short-term rentals, emotional support animals and urban agriculture are uses that are not typically addressed in zoning ordinances, thereby leading to cases just like this.

A young boy with autism lived with his mother and grandfather in a two-family residential building on property owned by the grandfather and located in the Borough’s commercial zoning district.  The boy’s family acquired eight ducks as therapeutic pets after he had a positive experience with a friend’s pet duck.  The ducks were kept at the residential property, living outside in a fenced yard but also spending some time inside the house.  The Borough had attempted to deal with the keeping of animals on a residential property in the past.
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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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