Every trial lawyer knows that credibility determinations are typically left to the finder of fact. Whether it’s a jury, a judge, or a zoning hearing board, the finder of fact has the opportunity to personally observe the witnesses who present evidence in a matter. As a result- so the theory goes- reviewing courts should defer to those first-person observers rather than trying to substitute their judgment after merely reading the transcript. But what are the limits of this deferential standard?

Recently, the Pennsylvania Supreme Court positioned itself to address this issue in the context of a land use appeal when it granted allocator in the case of Project PT v. Penn Township Zoning Hearing Board and Olympus Energy LLC. The Project PT case originated in Penn Township (“Township”), Westmoreland County, where unconventional natural gas development (often referred to as “fracking”) is permitted by Continue Reading PA Supreme Court to Consider Concept of “Credibility” in Fracking Case

Pennsylvania counties and municipalities could see a windfall from the nearly $14 billion in aid that will be delivered to the Commonwealth through the recently passed American Rescue Plan Act (“Rescue Act”).  While it will be welcome financial relief, counties and local governments should be aware of the rules and regulations regarding how those funds should be spent.  In fact, the Rescue Act rules and requirements will present similar challenges to the CARES Act requirements for local governments.

Last year, Zelenkofske Axelrod (“ZA”) helped nearly half of the state’s 67 counties navigate the regulatory issues related to the federal CARES Act financial relief package. Continue Reading With Great Funding Comes Great Responsibility: Assisting Municipalities with American Rescue Plan Compliance

If I told you that, in Pennsylvania, municipal (including county) planning agencies, such as planning commissions or planning department staff, are permitted to act on subdivision or land development plans (“SLD Plans”) and related waivers or modifications, most of you would likely say that I’m wrong, crazy, or flat out lying!  Most of you would say that planning agencies are to review and make recommendations on SLD Plans, and that governing bodies (e.g., councils, supervisors or commissioners) take action to approve or deny SLD Plans and waivers or modifications.  Well, most of you would be right, but only partially. Continue Reading You Can’t Do that in Pennsylvania! Or Can You?: Planning Commissions Approving Subdivision/Land Development Plans

Monetization is the process of converting assets into economic value. Looking for more options to generate revenue, municipalities have begun using solar projects to help monetize formerly “passive” or unused public assets, such as vacant land, rooftops, parking lots and storm basins. There is a tremendous upside for such development, and in recent years potential liabilities have shifted from municipalities to the solar companies.

Today’s common model for a municipal solar development is similar to a public-private partnership. The municipality provides the land or space for the project, and the solar company Continue Reading Monetizing “Passive” Public Assets with Solar Projects

Mr. McFeely 2 (A7882619)

Consider the following scenario: You have recorded your plan for a single-family residential development and begin to install infrastructure.  After streets, utilities and curbs are constructed, individual lots are sold off and residents begin to move into your development.  After a week or two, you receive several complaints that the Post Office is not delivering mail to the mailboxes you installed along the frontages of each home.  When you reach out to the Post Office, you are told that curbside mail delivery is not available for your development and instead you must install centralized mail in the form of cluster box units (“CBUs”).  What do you do?

The foregoing scenario (or something similar) is occurring more and more regularly throughout the country as the United States Postal Service (“USPS”) continues to prioritize its transition from traditional curbside mail delivery to CBUs in residential developments. Continue Reading Mr. McFeely’s Speedy Delivery – Now to Cluster Box Units Only

Solar Field and Goats (A7882614)

Hopefully, the title alone has George Harrison’s acoustic intro playing in your head.  If not, maybe this will help.

Here comes the sun (doo-doo-doo)
Here comes the sun, and I say
It’s all right

The Beatles’ classic was not foretelling of the arrival of solar energy development projects in Pennsylvania, but it could serve as an anthem now.

Last month, Rachel McDevitt of StateImpact Pennsylvania published an article about the emerging solar energy development “boom” in Pennsylvania.  The article is a wonderful deep dive into the recent growth of solar projects.  It outlines the usual questions and concerns surrounding those projects.

McDevitt notes that Continue Reading Here Comes the Sun . . . Solar Development in Pennsylvania

Thank you for following our Land Use Blog throughout 2020.  Without spending too much time on the past, please enjoy our Top 5 posts of 2020!

TOP 5 POSTS OF 2020

  1. Jon Andrews, Looking Through the Kaleidoscope – Land Use in Pennsylvania
  2. Claudia Shank, Simplified Zoning: Paradox or New Paradigm?
  3. Peter Wertz, Water Flows Downhill – Liability Flows Up
  4. Jon Andrews, Land Use Ordinances: Tools for Community Planning or Social Engineering?
  5. Scott Gould, Steve Matzura and Errin McCaulley, Important Notice – General Permit for Stormwater (PAG-02)

If you enjoyed these posts or others, please take a moment to click “Subscribe” to the right so that you do not miss any of our posts in 2021!

DAS on Lightpole (A7653633)

In two earlier blog posts from 2018, found here and here, we discussed the 2018 FCC Order, including the fee standards and “shot clocks” that were adopted by the FCC.  Of particular interest to municipalities were the fee standards and the safe harbor fees that municipalities are permitted to charge for small cell facilities.  To recap, the 2018 The FCC Order addressed three types of fees charged by municipalities: (1) fees for access to the public rights-of-way; (2) fees for the use of governmental property located in the public rights-of-way; and, (3) application review fees.  The safe harbor fees under the 2018 FCC Order are Continue Reading Small Cell Facilities in the Public Rights-of-Way: The Ninth Circuit Weighs In

McNees is hosting a Municipal Leader Roundtable to discuss ideas about how governments can address budget shortfalls expected to occur as a result of the COVID-19 Pandemic. The discussion will include an overview and update regarding options available to municipalities, and the efforts of the state’s elected officials to assist municipalities facing significant budgetary constraints.

Date:  December 7, 2020
Time:  12:00 – 1:00 pm

REGISTER HERE

Presenters:

  • C. Kim Bracey, Executive Director, PA Department of Community & Economic Development Governor’s Center for Local Government Services
  • Dan Connelly, Marathon Capital Strategies
  • David A. Greene, Esq., Executive Director, PA Local Government Commission

Moderated by: Timothy Horstmann and David Unkovic, Attorneys, McNees Wallace & Nurick

 

REGISTER HERE

Tomorrow is Halloween.  In honor of the holiday, I’d like to spend some time reflecting on a use that is ubiquitous this time of year: the cemetery. We don’t often talk about them in a planning context, but cemeteries are an important part of our built environment.  Unlike most other land uses, they are generally permanent in nature. However, despite the fact that cemeteries are present in nearly every community, they are often overlooked as a land use category in zoning ordinances. Similarly, they are rarely incorporated, or even referenced, in comprehensive plans.

Although admittedly dated, this 1950 article from the American Society of Planning Officials breaks the cemetery problem into two categories: maintenance and use of existing cemeteries, and planning for new ones. Continue Reading Cemeteries: Planning Perspectives and Modern Trends