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
Continue Reading

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.
Continue Reading

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.
Continue Reading

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

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.
Continue Reading

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.
Continue Reading

This is the second post in a two-post series on small cell facilities and the implications of the Declaratory Ruling and Third Report and Order (the “FCC Order”) that was adopted by the Federal Communications Commission (the “FCC”) in September.  The first post described small cell facilities, the reasons for the FCC Order, and included a discussion regarding the review standard adopted by the FCC.  This post discusses the fee standards and “shot clocks” that were adopted by the FCC in response to concerns raised by the wireless industry regarding excessive and unreasonable fees charged by municipalities, unequal treatment of small cell facilities compared to other utility facility installations, and lengthy review time periods for applications.

The FCC recognized that the fees charged by municipalities with respect to the deployment of small cell facilities can materially limit or inhibit the ability of the wireless service providers to compete.  Such fees are a critical issue for the industry since it is estimated that hundreds of thousands of small cell facilities will be deployed in the near future.  Excessive or unreasonable fees could serve to effectively prohibit the deployment of small cell facilities by rendering the proposed deployment economically infeasible.

The FCC Order addresses three types of fees charged by municipalities: (1) fees for access to the public rights-of-way;
Continue Reading

In an earlier blog post, we looked at distributed antenna system (DAS) networks, a technology that wireless service providers are deploying to address the increasing demand for additional network capacity.  Another technology that is being deployed is the small cell facility.  This is the first post in a two-post series on small cell facilities and the Declaratory Ruling and Third Report and Order (the “FCC Order”) that was adopted by the Federal Communications Commission (the “FCC”) in September.  This post describes small cell facilities, provides the reasons the FCC adopted the FCC Order and discusses the review standard adopted by the FCC.  The next post will review the fee standards and “shot clocks” that were adopted by the FCC and some typical ordinance requirements.

Small cell facilities typically consist of a single antenna, attached either to an existing structure (e.g., a light pole, utility pole, traffic signal pole, etc.) or to a new structure, together with a small equipment cabinet.  Small cell facilities provide a much smaller coverage footprint than a traditional wireless antenna facility and are intended to provide additional network capacity in an area where wireless subscribers are more concentrated (e.g., a shopping center, an urban area, etc.).  Small cell facilities are often deployed within public rights-of way which has led to some tension between wireless service providers and municipalities.
Continue Reading

In our first post of this three-post series on parking (available here) we discussed Richard Florida’s informative, but not surprising, article which states “American cities devote far too much space and far too many resources to parking.”  Location, ownership and management of existing parking spaces are significant issues impacting parking in communities, and our first post focused on their impacts based on the current approach to parking regulations taken by most communities.  The current approach is unsustainable, as it contributes to sprawl and increases costs.  In this post, we will explore some of the factors causing and impacting the current general approach to parking regulations – specifically with respect to urban reuse and mixed-use projects.

More often than not, communities’ parking requirements, located in zoning ordinances, are onerous enough to derail desirable urban reuse and mixed-use projects.  Most communities’ requirements generally reflect a more suburban approach to parking that is reflective of planning and development trends of the 1950s and 1960s (i.e., separation of uses with an emphasis on accommodating automobiles).

In reviewing several Pennsylvania “urban” municipal zoning ordinances, a few common parking concepts and provisions become evident.
Continue Reading

On October 24, 2018, the Lancaster County Board of Commissioners will consider the adoption of Places2040, the new proposed comprehensive plan for Lancaster County.  Prepared by the Lancaster County Planning Commission (“LCPC”) and designed to replace Envision Lancaster County, the County’s current comprehensive plan, Places2040 seeks to establish land use and planning policy to guide the next 20 years of development in Lancaster County. Adoption of the proposed Plan would complete a 3-year planning process that engaged County residents, government entities and targeted stakeholders. Only 94 pages in length, Places2040 is surprisingly concise when compared to typical comprehensive plans and is centered around 5 “Big Ideas”: 1) Creating Great Places; 2) Connecting People, Place & Opportunity; 3) Taking Care of What We Have; 4) Growing Responsibly; and 5) Thinking Beyond Boundaries.

As Lancaster County continues to grow, one of the focuses of the Plan is establishing a path for the County to absorb and accommodate a projected population increase of 100,000 people between 2015 and 2040.  Some of the Plan’s recommendations include
Continue Reading