“Oh, don’t go that way.  You want to avoid the Beltway.” is a common chorus in many American cities.  Harrisburg is no exception and backups on its Beltway encroach onto Front Street and other arterial and connector roads on a daily basis.  In recent years, the issues have been exasperated as we continue to see populations trending from rural to urban locations while, at the same time, continue to experience aging and weakening transportation infrastructure.  But plans to bring relief to Harrisburg’s Beltway have been in the works for 15 years.  In 2003, the Pennsylvania Department of Transportation (“PennDOT”) prepared an I-83 Master Plan, the purpose of which was to identify, plan, and program future transportation improvement projects for the I-83 Capital Beltway.  The Master Plan proposed numerous improvements to the Beltway to address: (1) worsening road conditions; (2) high-traffic volumes and congestion; and, (3) safety. Continue Reading The I-83 Capital Beltway Project: PennDOT’s Right-of-Way Acquisition and Power of Eminent Domain

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

We’ll soon provide a post on PennDOT’s I-83 Beltway Construction Project, however, we wanted to make sure none of you missed the opportunity to register to gain even more detailed insight from McNees attorneys Kandice Hull and Dana Chilson during their free webinar on January 30, 2019 from 12:00 – 12:45 PM.  The title of the webinar is “PennDOT’s I-83 Construction Project in the Capital Region:  What Businesses Should Expect, From Compensation to Condemnation” and your can secure your spot by  REGISTERING HERE.

Section I of the project (on I-83 near I-81) is currently under construction. Sections II and III (near 283 and the Eisenhower Interchange) are in development and property owners are being contacted about the project and its proposed impacts. The webinar will discuss the basics of the project and what landowners can expect as the PennDOT right of way acquisition process moves forward.

Space is limited so register now!

 

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)

With 2018 quickly coming to an end, Top 5, 10 and 100 lists are everywhere.  For your education and amusement, below are our Top 5 posts of 2018 by clicks (ordered oldest to newest).

Our Energy and Environmental Practice Group issued a client alert today related to a rule released by the EPA and USACE that deals with “waters of the United States.”  The rule will impact land development and permitting.  The first two paragraphs of the article are reproduced below and additional details and the full text of the alert are available here.

On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“USACE”) announced the long-awaited replacement rule for the 2015 “waters of the United States” rule (“WOTUS I”).  In effect, the 2015 WOTUS I rule expanded EPA and USACE jurisdiction over wetlands and similar features (and created uncertainty) under the federal Clean Water Act (“CWA”), which complicated permitting for land development.  As written into the regulatory text from 2015, the agencies’ “case-by-case” interpretation of their jurisdiction had the tendency of placing landowners, developers, farmers, and other stakeholders in the precarious position of not knowing whether a given body of water was jurisdictional under the CWA.  In practice, landowners could find themselves on the wrong end of an enforcement action if either EPA or USACE determined that the waterbody was jurisdictional, even if such a determination was only made after the landowner’s allegedly offending activity (e.g., construction, plowing, backfilling) had ceased.

Now, the replacement rule (“WOTUS II”) proposes to scale back the scope of EPA and USACE jurisdiction over wetlands and similar features under the CWA.  WOTUS II will be published in the coming weeks for public comment.  Because the proposed rule will impact land development and permitting, and will be hotly contested, regulated stakeholders should seriously consider participating in the process and submitting comments on the important proposal.

Please read the full alert here.

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

Perhaps consistent with the spirit of giving this time of year, the General Assembly recently provided a gift to homeowner associations (“HOA”) across the Commonwealth by signing Act 84 into law.  Act 84, which was enacted and signed into law on October 19, 2018, made some notable changes to the Pennsylvania Uniform Planned Communities Act and the Uniform Condominium Act (“Acts”).  Before discussing the details, it is important to note that whether Act 84 will have retroactive effect is unclear; thus, it is possible the changes it brings apply only prospectively.

The key changes made by Act 84 involve (1) additional enforcement options for HOAs against their unit owners (i.e. homeowners) and (2) timing limitations to enforce the warranty against structural defects.  This blog post addresses the new enforcement options for HOAs and a later post will discuss the changes involving the warranty against structural defects. Both changes take effect December 18, 2018.

Act 84 broadened the rights available to HOAs when enforcing delinquent assessments or violations of a declaration, bylaws, or rules and regulations by unit owners. Continue Reading Act 84 – You Don’t Want To Be On An HOA’s Naughty List

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)