Zoning

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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.
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

Every time my daughter gets to choose the show we watch on television she picks some variation of a show where prospective buyers are searching for a tiny house.  The programming on HGTV includes shows like Tiny House Living, Tiny House Hunters, and Tiny House Builders.  This programming, which seems to run constantly, is reflective of the wave of new consumer interest in bucking the American tradition of “bigger is better.”

The tiny house phenomenon makes sense for the consumer.  The initial investment is much smaller than what is needed for a typical single-family detached home, which is particularly appealing to new college graduates with high student debt and retirees on a fixed income.  Moreover, the ongoing costs of maintaining the tiny home are comparatively lower as well.  The tiny house options also create a much smaller carbon footprint, which is appealing to environmentally-conscious consumers.  Therefore, the interest in tiny houses likely will continue to grow at a rapid pace.

But like most new housing trends, the consumer interest is ahead of the land use regulations and municipalities are playing catch up.
Continue Reading Tiny Houses – Growing Fast

Most of us have heard the “Big Yellow Taxi” song that includes the memorable line “they paved paradise and put up a parking lot.”  But what if that paradise is not completely lost and communities started reclaiming their paradise by taking a different approach to their parking regulations?  This is the first in a three-post series discussing the current approach to parking regulations and solutions communities, especially urban communities, should consider to “right-size” their parking requirements to reflect a more sustainable approach.

Richard Florida, a well-respected expert in urban studies, recently posted an interesting article entitled Parking Has Eaten American Cities.  In his post, Florida discusses a recent study by Eric Scharnhorst of the Research Institute for Housing America confirming the findings of previous studies “that American cities devote far too much space and far too many resources to parking.” 
Continue Reading Reclaiming “Paradise”: One Parking Space at a Time (Part 1 of 3)

Meeting deadlines is something we all strive for. Whether you’re handing in a project at work, or meeting someone for coffee, making yourself aware of the time is something we do every day. And failure to meet such deadlines creates the potential for undesirable consequences. The same is true for municipalities and developers, as failure by either party to familiarize themselves with the time-restraints imposed by the Pennsylvania Municipalities Planning Code (the “MPC”) for land use hearings can create major headaches. This post is the second post of a four-part series (Post 1, Post 3, Post 4 to come) and follows our review, in Post 1, of the notice requirements that a zoning hearing board or governing body (the “Board”) must follow prior to a land use hearing.  This post explores two important deadlines to which the Board must adhere.

Under Section 908(1.2) of the MPC, the initial hearing before the Board must commence within 60 days from the date the Board receives the application, unless the applicant agrees in writing to an extension of time. If the Board fails to meet this requirement, one of two things can happen.
Continue Reading Tick Tock – You’re On the Clock: Navigating Time-Restraints for Zoning Hearings