Municipalities Planning Code

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
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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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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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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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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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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
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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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In a prior post on the history of zoning in Pennsylvania, Jamie Strong cited the Pennsylvania Department of Community and Economic Development, stating less than a third of Pennsylvania’s 2,561 municipalities have no zoning regulations.  He wrote that, in general, it is the “more rural, less developed and less populated municipalities” in Pennsylvania that lack zoning.  As of 2015, 98.2% of Pennsylvania’s urban population was zoned while only 68.9% of the rural population was zoned.

Such is not the case in Texas, where Houston, the state’s largest city, is “without” zoning.  Houston is the butt of many zoning jokes – all of which are as dull as you’d expect a zoning joke to be.  Nonetheless, it is a fascinating case study showing us how our cities and towns might look without the Pennsylvania Municipalities Planning Code and local land use ordinances.  (Google “pictures of Houston zoning.”)  I recently read a few articles examining the effects of how Houston has handled development over the last 100 years.  Two of the articles led me to the conclusion that Houston’s land use problems, whether real or perceived, have more to do with its historical lack of a comprehensive scheme – most notably, a comprehensive plan, than with a lack of zoning regulations.
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