Land Use

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The Pennsylvania Turnpike Commission, in consultation with the Pennsylvania Department of Transportation (PennDOT), is currently studying the viability of building a hyperloop tube that would transverse Pennsylvania from Pittsburgh to Harrisburg to Philadelphia and then northeast toward Scranton/Wilkes-Barre.  Pennsylvania House of Representatives Resolution 1057 authorized the Commonwealth to conduct a study for a hyperloop system that would facilitate the transportation of passengers and freight at speeds approaching 700 miles per hour in pods that move through low-pressure tubes.

House Resolution 1057 found that the concept of the hyperloop, first described by Elon Musk in 2012-2013, may no longer be a hypothetical notion, given the recent work of states and firms to study and develop the necessary technologies.  In 2018, transportation agencies in Ohio and Illinois announced a study involving a hyperloop that would connect Columbus, Ohio to Chicago, Illinois.  House Resolution 1057 explains that Elon Musk desires to build a hyperloop connecting New York City to Washington, D.C. with a projected travel time of 29 minutes with planned stops in Philadelphia and Baltimore.
Continue Reading A Hyperloop in Pennsylvania: More Than Just a Futuristic Notion?

In a series of posts last year (available HERE and HERE), I discussed the Pennsylvania Supreme Court’s revival of the long-dormant Environmental Rights Amendment (“ERA”) to the Pennsylvania Constitution.  This summer, the Pennsylvania Commonwealth Court authored another chapter in the ERA saga.  Stick with me, because it is about to get technical…

As you may recall, in Pennsylvania Environmental Defense Fund (“PEDF”) v. Commonwealth, 161 A.3d 911 (Pa. 2017), the Pennsylvania Supreme Court found that the ERA created a public trust, the corpus of which was all of Pennsylvania’s public natural resources.  In this analogy, the Commonwealth is the trustee and Pennsylvania’s citizens are the named beneficiaries of the trust.  When state park land is leased by Pennsylvania’s Department of Conservation and Natural Resources for oil and natural gas extraction, any royalties – monthly payments based on the gross production of oil and gas at each well – are proceeds received in exchange for trust assets.  As a result, royalties must be returned to the trust as part of its corpus.  In other words, they are earmarked for the conservation and maintenance of Pennsylvania’s natural resources.
Continue Reading PEDF v. Commonwealth Redux: The Commonwealth Court Weighs In

Some Pennsylvania municipalities are throwing out their zoning ordinances and designing fresh ones from scratch, with a little help from their neighbors.  These new and (hopefully) improved ordinances not only include modified zoning districts and adapted language and concepts, but also new zoning maps – sometimes more than triple the size of the old ones.  Although uncommon, this approach – which combines multiple municipal zoning jurisdictions into one, shared jurisdiction – is neither new nor unlawful.  In fact, the Pennsylvania Municipalities Planning Code (the “MPC”) dedicates an entire Article to the requirements and implementation of this concept, referred to as “joint municipal zoning.”

The crux of joint municipal zoning is the adoption of a joint zoning ordinance (“JZO”), which is exactly what it sounds like: under Article VIII-A of the MPC, two or more municipalities (“participating municipalities”) may agree to a single zoning ordinance pursuant to a joint comprehensive plan.  The JZO is subsequently prepared by a joint planning commission directed by the governing bodies of the participating municipalities.

The benefits of JZOs are readily apparent, at least in theory
Continue Reading Zoning, With A Little Help From Your Friends

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

Real estate developers, construction businesses, engineers, and others involved in development projects are subject to numerous permitting and approval requirements under local, state, and federal regulatory programs.  For example, development projects in Pennsylvania involving earthmoving of more than one acre (i.e. most projects) must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for construction-related stormwater discharges, also known as PAG-02.  The current PAG-02 expires on December 7, 2019.  Recently, the Pennsylvania Department of Environmental Protection (“PADEP”) announced the availability of supporting documents, such as an updated Fact Sheet, and a comment period on the draft revised PAG-02.  The comment period is open until only September 16, 2019.

Anyone engaged in construction, real estate development, or similar operations should review the draft revised PAG-02 permit and supporting documents, and should consider submitting comments to PADEP.   PADEP anticipates the revised PAG-02 having an effective date of December 8, 2019.
Continue Reading Attention Developers! Construction Stormwater Permitting Changes Imminent

We mentioned in a prior post that failing to follow procedural requirements for land use hearings can lead to unwanted results for all – or at least most – involved. In a recent example, the Commonwealth Court ruled that Lewis Township’s Zoning Ordinance was void from inception after finding that the Board of Supervisors failed to comply with the Municipalities Planning Code (the “MPC”) requirements for adopting zoning ordinances.

In Yannaccone v. Lewis Twp. Bd. of Supervisors, the Township formed a Zoning Ordinance Committee (“ZOC”) to create a proposed zoning ordinance to present to the Board for adoption. The Board published notice of a public hearing scheduled on the Ordinance. The Board held the hearing in accordance with the public notice and subsequently adopted the Ordinance at a later regularly scheduled meeting. Less than one month after the Ordinance became effective
Continue Reading No Notice: Commonwealth Court Scraps Township Zoning Ordinance

In an earlier blog post we discussed a zoning case from Lebanon County, Pennsylvania that involved the keeping of ducks as emotional support animals on a residential property.  In that case, the zoning hearing board determined that the ducks were permitted on the property as pets and that the keeping of ducks as pets was not an agricultural operation as alleged in the enforcement notice.  Last month, a zoning hearing board in a York County, Pennsylvania municipality was asked to determine whether the keeping of pot-bellied pigs as emotional support animals on a residential property is permitted.

According to an article published in the York Daily Record, a family acquired two pot-bellied pigs as emotional support animals for their son.  The family also has two dogs and three cats, and all the animals live in the house with the family.
Continue Reading Are Pot Bellied Pigs Pets Too?

In a world where technology and community needs frequently out-pace zoning updates, permitting zoning modifications by conditional use is an opportunity for municipalities and developers to collaborate to help ensure development projects are well designed, innovative, publicly supported and, therefore, approved.  Most people involved in zoning and development know that denied variances – (i.e., modifications of the strict application of zoning ordinance provisions) can sink otherwise well designed, innovative and publicly supported projects.  Regardless of the use, district or community, the rigid “hardship” criteria for variances, set forth in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (“MPC”), are extremely inflexible.  That inflexibility often stymies creativity and constrains innovation.  Indeed, the antiquated criteria is inconsistent with and contrary to other provisions of the MPC and, at times, the desires of many municipalities that wish to accommodate newer development innovations and trends.

Occurring more often are scenarios where variances are necessary to accommodate the preferences of the municipality and to permit innovative and sustainable mixed-use developments with design enhancements.  In such instances, zoning hearing boards, municipal elected and appointed officials, and the public all may agree
Continue Reading Requesting a Variance from Variances! Consider a Conditional Use

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. 
Continue Reading He Said, She Said: The Rules Surrounding Hearsay and Cross-Examination in Land Use Hearings

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.    
Continue Reading Governor’s Wolf’s Plan for Addressing Blight in Pennsylvania