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In recent months, the Coronavirus pandemic and reignited social unrest following the death of George Floyd have highlighted ongoing issues in our communities regarding unequal access to quality healthcare, affordable housing and educational opportunities. As society struggles with identifying all the causes of this disparate treatment, we sometimes forget the role in that system that land use ordinances historically played and continue to play to this day. Land use ordinances can be used to socially engineer a community under the guise of “planning.”

We are taught that zoning began as a community building tool in the United States as a way of ensuring “compatible” uses were near each other and incompatible uses were separated. The thought was that stronger communities could be built by keeping zones or districts of compatible uses together. But has this been the only use of zoning? Continue Reading Land Use Ordinances: Tools for Community Planning or Social Engineering?

Capitol

From our friends at Capitol Buzz:

As more counties move into the “yellow” and “green” phases of the Wolf administration’s plan to reopen the Commonwealth, Gov. Tom Wolf announced on Wednesday updated guidelines for dining services and professional sports. The governor also provided additional information and elaborated on general guidelines for “green” phase counties, issuing an updated order for those municipalities moving in the “green” phase on Friday.

Gov. Wolf said beginning June 5, restaurants and other retail food businesses located in “yellow” phase counties will be allowed to provide outdoor dine-in services, in addition to the already approved take-out and delivery options. Those offering outside dining will need to obey certain requirements, including maximum occupancy limits, closing off indoor areas of the business to customers except for through-traffic, and mandating customers to be seated at tables in order to receive service. The guidelines also prohibit self-serve food and drink options, such as buffets and drink stations.

In addition, Gov. Wolf issued guidelines for Pennsylvania’s sports teams to resume practices and competitions within the Commonwealth. The new guidance will allow pro teams to resume activities in “yellow” and “green” phases of the governor’s reopening plan, but without spectators and fans attending the events.

Read the full alert HERE.

The immediate and long-term effects of the COVID-19 pandemic are expected to change the way businesses operate and communities plan, zone and regulate land use and development.  Below is a summary of a few issues and trends facing communities and businesses.  Municipalities should proactively approach this “new normal” and consider modifying zoning and other land use ordinances to the extent necessary to meet the new needs of residents and workers.

  • Small cell antennas – More people than ever are remotely working or schooling from their homes. As a result, more devices are connected to telecommunications networks and more data is being used.  To help boost network coverage and capacity in high-volume usage areas, telecommunications service providers are installing more small (micro) cell antennas on utility, traffic light and other poles or buildings within or in close proximity to residential neighborhoods.
  • Drive-throughs, curbside pickup lanes, “to-go” parking spaces and “walk-up” windows – Retail and restaurants are adjusting their business practices and services to protect their employees’ and customers’ health. In addition to food and drink delivery services, more businesses are incorporating drive-throughs, curbside pickup lanes, “to-go” parking spaces or “walk-up” windows as accessory uses customarily incidental and subordinate to these businesses.
  • Distribution facilities – E-commerce is booming. The extent to which people order and receive goods and products that traditionally were purchased in person in a “brick-and-mortar” building has been increasing for years.  However, the pace at which e-commerce has been growing is even faster now because of the COVID-19 pandemic.  Customers want their orders to be delivered to their homes as quick as possible.  To meet these increasing demands, businesses are repurposing former big box retail buildings and shopping malls to establish smaller distribution or fulfillment centers that are in close proximity to residential neighborhoods.
  • Virtual restaurants –Online and mobile app food delivery services have grown quickly in recent months and may not go away even after restaurants can re-open in their traditional form. To meet these demands, restaurants are establishing virtual restaurants, commercial kitchens purely for processing, preparing and fulfilling food orders.  There are no in-restaurant ordering or dining facilities:  no registers, no servers, no money, no tables or chairs.
  • Home workspaces – Modern technology has enabled more office employees than ever to remotely work from their homes. As long as they have a computer and internet service, many employees can seamlessly perform nearly all of their work functions from the comfort of their homes.
  • Repurposing unused buildings – With more people working from home, and less people making in-person retail purchases or traveling and seeking overnight accommodations, there could be a potential reduction in the demand for space in “brick-and-mortar” office, shopping mall or hotel (motel) buildings. The corresponding increase in the amount of these unused buildings provides additional opportunities to repurpose these buildings for new uses.  While several studies indicate the demand for workforce housing continues to increase, there is a potential that some of these unused office, shopping mall or hotel buildings (or their surrounding parking areas) in certain areas could be repurposed to provide for new uses, including additional housing options.  Several of these buildings are located within or near business centers along major multi-transportation corridors with a full range of public utilities and services.

As communities and businesses look to begin recovering from the effects of COVID-19, we encourage developers, business owners and municipalities to collaboratively examine these and other issues and trends and get creative to ensure ordinances are up-to-date, flexible and sustainable.  By specifically permitting these desirable or necessary businesses and uses and removing unnecessary regulatory roadblocks, communities and businesses may be more resilient, impacted less, and quicker to recover from this or future crises.

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.

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The Governor vetoed HB 2412 today, but he also opened limited business transactions for real estate sales. From the Governor’s Office:

“Governor Tom Wolf today announced that starting today, businesses and employees in the real estate industry may conduct limited business-related activities statewide and provided guidance for this industry to operate in red phase and yellow phase counties.”

“We continue to review our policies and the scientific data to determine the safest approach for all activities in the commonwealth,” Governor Wolf said. “While at this point more than two-thirds of the state will be in the yellow phase of th Continue Reading Governor Wolf: Real Estate Industry May Conduct Limited Business Transactions Statewide

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As you have undoubtedly heard, the COVID-19 pandemic caused countless businesses to turn to their insurance companies for assistance, making claims under their policies for business interruption coverage.  While every insured’s policy is different, insurance companies are almost universally denying such claims.  Business owners are left frustrated and wondering what exactly they have been paying for when it comes to business interruption coverage.

In denying claims, insurance companies argue that business interruption insurance is not meant to cover closures related to COVID-19.  Under most policies, business interruption coverage only applies if there has been a direct physical loss of use or damage to property related to a covered loss.  While many insureds argue that a virus contaminating the surface of their property is a loss of use, and thus covered, insurance companies have generally rejected such arguments, instead requiring direct physical damage. Continue Reading Business Interruption Insurance: An Uncertain Path

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On May 4th, 2020 ,the Governor’s Office issued new guidance for businesses as they become authorized to restart in-person operations pursuant to the Administration’s phased red-yellow-green plan.  The guidance, which can be found here, includes a series of mandatory protocols designed to reduce the spread of COVID-19 between and among employees and customers.  These protocols are binding upon “[a]ll businesses in all industries and sectors of the economy (including non-profit entities), in the Commonwealth, that are permitted to conduct-in person operations…unless they are otherwise more stringently regulated under separate industry-specific guidance”.

Recently, the Governor’s Office announced that twenty-four Pennsylvania counties will transition to the “yellow” phase on May 8th, thereby authorizing businesses in those counties to restart in-person operations on a limited basis.  Continue Reading May 8 Opening: Guidance (Portions Mandatory) From The Commonwealth For Businesses

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For most Pennsylvanians, it seems much longer than just over a month ago that Governor Wolf issued orders closing all “non-life-sustaining” businesses and directing all residents to “stay-at-home.”  While these orders have saved countless lives, they have also caused several businesses to either alter or shutdown their operations.  Many employees have been furloughed, laid-off or compelled to work from their homes.

Fortunately, modern technology has enabled certain office employees to continue working, not in their office buildings, but from their home offices.  These new home offices may be nothing more than unfinished basements or converted dining rooms, spare bedrooms or even kitchen tables.  These home office activities and functions are considered a form of home-based businesses or occupations (HBBs) as defined, permitted and regulated by most municipal zoning ordinances.  In many instances, new HBBs have been quite successful.  Therefore, while the Governor’s orders are not likely to remain in place in perpetuity, many businesses are considering modifying their operations to support increased use of HBBs even after the orders are lifted.

Many of the municipal HBB regulations were adopted several decades ago and may not reflect modern community planning, business or technology trends. Continue Reading Modernizing Home Occupation Standards So You Can Continue Video Conferencing In Your Shorts From Your Basement Outpost

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On April 22, Governor Wolf announced an amendment to his standing shutdown and shelter in place order that permits construction projects to resume statewide on May 1st.  This news comes just days after the Governor’s office released its “Plan for Pennsylvania,” which authorized “limited construction” activities beginning on May 8th.  Per the announcement, it appears that all construction will be permitted beginning on May 1st – a departure from the administration’s earlier plan to phase in “limited construction.”

Last night, the Governor issued guidance for all construction businesses and employees.  Per the Governor’s office: “The guidance, developed from guidance created by the General Contractors Association of Pennsylvania, provides universal protocols for all construction activity, as well as specific additional guidance for residential, commercial and public construction projects.”  We encourage all members of the construction industry, including those in new construction, renovation, and repair and in surveying, subdivision and land development, among all others, to review the new guidelines.  As always, please do not hesitate to contact attorneys in our Construction Law, Environmental Law, Labor & Employment, Government Relations, or Real Estate groups with any questions.

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Attending public meetings is a big part of any land use practitioner’s routine, and, if I’m being honest, one of my favorite parts of my job. Before the COVID-19 pandemic, I traveled one, two, sometimes even three nights a week to meetings of zoning hearing boards, municipal governing bodies, and planning commissions. While I understand that a township board of supervisors meeting might not be everyone’s idea of a fun Thursday night, I like watching government at work. In today’s world, how many spaces exist where citizens can engage directly with their elected officials?

Of course, when COVID-19 cases began to appear in Pennsylvania, all of this changed. Businesses (including ours) started to adapt to social distancing requirements by replacing in-person meetings with audio and video conference calls. Municipalities, however, bound by the Sunshine Act and other open meeting requirements, faced a unique set of challenges. How could boards, councils and committees continue to conduct business and ensure public participation while protecting the health and safety of residents? Continue Reading Public Meetings in Pajama Pants: Land Use in the Age of COVID-19

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With protestors afoot outside the Capitol building in Harrisburg, Governor Wolf provided additional information on the Commonwealth’s plans to begin reopening businesses, including construction sites, within Pennsylvania.  Per the Governor, “limited construction” activities will be permitted to resume on May 8, to the extent such activities can occur in compliance with job site regulations the Commonwealth has yet to release.  The May 8 date provides developers, contractors, business owners and potential home owners with some hope that their projects can begin (or continue) in a little under three weeks.  However, it is unclear what is meant by “limited construction” and what job site regulations will be required by the Commonwealth.

We will monitor the Commonwealth’s updates and, in the meantime, we encourage you to refer to guidance that has been issued by the Commonwealth and the McNees COVID-19 Resource Center.