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 Continue Reading Accessory Uses Part I: Worth Much More Than a Secondary Thought

In an earlier blog post (available here), we discussed how the Commonwealth Court reversed the decision by the Pennsylvania Public Utility Commission (“PUC”) to no longer issue certificates of public convenience to neutral host DAS (i.e. “distributed antenna system”) network operators.  The PUC’s decision was based on its new interpretation of the statutory language which excludes any person or corporation that “furnishes mobile domestic cellular radio telecommunications services” from the general definition of a public utility.  The Commonwealth Court determined that interpretation was “not supported by the plain language of the Code or the principles of statutory construction, the precedent of this Court, the determination of public utility commissions in other jurisdictions, or the 2014 Wireless Infrastructure Order.”

Last week, the Pennsylvania Supreme Court agreed to hear the appeal from the Commonwealth Court’s decision that was filed by the PUC.  We will continue to follow this issue through the appellate process and provide an update when a decision is issued.  In the meantime, please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues

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: Continue Reading Reclaiming “Paradise”: One Parking Space at a Time (Part 3 of 3)

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 Houston, We Have a (Planning) Problem

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 Small Cell Facilities in the Public Rights-of-Way – The FCC Weighs In (Part II)

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 Small Cell Facilities in the Public Rights-of-Way: The FCC Weighs In (Part I)

Earlier this year, Claudia Shank blogged about the revival of the Environmental Rights Amendment (the “ERA”) (available HERE) after the Pennsylvania Supreme Court’s decision in Pennsylvania Environmental Defense Fund v. Commonwealth, 161 A.3d 911 (2017).  The PEDF decision breathed new life into the 1972 amendment to the Pennsylvania Constitution, but also left many unanswered questions about the ERA.  The most relevant unanswered question for developers and municipalities was the meaning of the revived ERA in the land use context.  Last week, the Commonwealth Court provided some insight.

In Frederick v. Allegheny Twp. Zoning Hearing Board, 2018 Pa. Commw. LEXIS 593 (Commw. Ct. Oct. 26, 2018), the Court reviewed a substantive validity challenge to a zoning ordinance that permitted oil and gas wells by right in all zoning districts of a township.  In a 5 to 2 decision, an en banc panel rejected the challenge (and the accompanying land use appeal to a zoning permit) that was filed by objectors to an unconventional gas well project in a residential zoning district.  The Court dismissed the objectors’ argument that Continue Reading The Commonwealth Court Begins to Answer What the Environmental Rights Amendment Means to Land Use

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 Reclaiming “Paradise”: One Parking Space at a Time (Part 2 of 3)

Whether you are a fan of John Wayne, Clint Eastwood or, to a much lesser extent, Will Smith, you are familiar with the Wild (Wild) West.  During my first year as an associate, the members of our Land Use Group described land use hearings, such as a hearing for a conditional use or a variance, as the Wild West as compared to proceedings in a courtroom.  They were not wrong; although, that is not to say land use hearings operate without procedural rules.

This is the third post in a four-part series on land use hearings.  The first two posts (Post 1 and Post 2) explained the beginning and ending of hearings, including the public notice requirements and deadlines under the Pennsylvania Municipalities Planning Code (“MPC”) for conducting a hearing and reaching a decision.  This post and the next will cover the hearing itself.

Section 908(3) of the MPC describes the “parties to the hearing” as Continue Reading Land Use Hearings – The Wild West

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 Places2040: Lancaster County to Adopt New Comprehensive Plan