The affordability of housing in America is a well-documented growing issue. Some public officials have declared it a crisis. The recent spike in mortgage rates certainly will not improve the situation. Public officials and developers have been searching for policies and real world opportunities to provide more affordable housing, but there are no easy solutions. A recent article by Mike Bebernes on Yahoo! News looked at whether America’s growing vacant office space can be redeveloped to provide for more affordable housing options.
On December 8, 2022, McNees attorneys David Unkovic, Ryan Gonder and Timothy Horstmann will host a CLE class along side Christopher Houston (retired from the PA State Employees’ Retirement System) exploring the ethical and practical issues encountered by legal counsel to the board of a public body, including municipal solicitors.
The CLE class will include a review of relevant rules of professional conduct and applicable laws; an examination of the role of compliance in good governance; advice for board members who are ex officio or officials of other public bodies that may have interests which compete with those of the public body; and a look into when such officials should recuse themselves.
The class costs $5 and will take place from 12:00 p.m. to 1:00 p.m. on Thursday, December 8, 2022. Attendees may participate either in-person (Harrisburg) or online, and will earn 1.0 hour of ethics CLE credits. If you are interested in attending, you may register HERE.
We are not ashamed to admit that we LOVED Top Gun: Maverick (no spoilers, we promise). It’s been almost 30 years since Maverick and Iceman squared off in Top Gun. “You like to work alone,” Iceman accused Maverick. Yet, ninety minutes later, focused on a common goal, Maverick and Iceman teamed up to save the world. “You can be my wingman anytime,” the result of Maverick and Iceman’s collaboration.
While elected officials may not be saving the world from Mig-29s (or 5th Generation Fighters), they play a vital role in creating the envisioned growth of their communities. In many communities, the goal is controlled and collaborative development. As land use attorneys, we are fortunate to be part of that collaboration and, therefore, want to offer our top five ways to encourage controlled and collaborative development. This is the first post in a five-part series. First up, early collaboration between the stakeholders.
In an effort to preserve agricultural and forest land, Pennsylvania passed The Pennsylvania Farmland and Forest Land Assessment Act of 1974, also known as Clean and Green. Clean and Green provides qualified parcels of land with preferential assessment values, resulting in lower property taxes for the landowner. A Clean and Green qualified parcel generally must be more than 10 acres in size and devoted to agricultural use, agricultural reserve (i.e. open spaces used for outdoor recreation), or forest reserve. Rather than appraising the parcel based off of its Fair Market Value, Clean and Green allows the Department of Agriculture (DOA) to value parcels based on their use. The DOA provides county assessment offices with a list of use values annually. Each county’s assessment office is allowed to provide for lower assessment values for Clean and Green qualified parcels, but may not assess a parcel higher than the use values provided by the DOA. Currently, Pennsylvania has more than 9.3 million of its total 29 million (~32%) acres of land enrolled in Clean and Green.
While Clean and Green assists many Pennsylvania farmers that may otherwise face financial struggles, the program also disincentivizes those landowners from changing the use of their land or selling it for non-agricultural purposes. In the event a landowner violates the Clean and Green covenants or elects to remove the parcel from the program, the landowner is subject to up to seven years of rollback taxes at a 6 % interest rate per year (or, if the parcel was enrolled in Clean and Green for less than seven years, rollback taxes for the number of years the parcel was enrolled). Rollback taxes generally means the amount of taxes that would have been paid had the parcel not been enrolled in Clean and Green, less the taxes due by virtue of the program. In the event the parcel is sold to a third party, rollback taxes will not become automatically due because of the sale itself. If, however, a third party purchases the parcel and changes its use, the parcel—thus, the third-party purchaser—can become subject to the rollback tax penalty.
There is a common misconception among municipal officials and planners in Pennsylvania, something similar to the following: “The State told us we have to update our comprehensive plan.”
While the Pennsylvania Municipalities Planning Code (“MPC”), the Commonwealth’s enabling legislation, certainly permits municipalities to plan and regulate land use and development, the MPC does not require municipalities to either: (i) adopt local comprehensive plans or ordinances; or (ii) revise such plans or ordinances.
But when municipalities choose to prepare and adopt local land use or development plans or ordinances, the MPC sets forth certain procedures, timeframes and contents to which municipalities must adhere or incorporate.
While Section 301(c) of the MPC states “[t]he municipal … comprehensive plan shall be reviewed at least every ten years,” nowhere does the MPC require municipalities to revise local comprehensive plans. [Emphasis added].
Interestingly, while the MPC does not require municipalities to adopt or revise local comprehensive plans, counties on the other hand, are required by the MPC to not only prepare and adopt county comprehensive plans, but also revise such plans.
In Pennsylvania, agriculture has provided approximately $83.8 billion in direct economic output, 280,500 jobs and $10.9 billion in earnings. Needless to say, agriculture is a major industry in the Commonwealth. The Agricultural, Communities, and Rural Environmental Act, commonly referred to as “ACRE,” is one of several statutes that protects agriculture at the state level. ACRE was enacted on July 6, 2005 to address municipal regulation of normal agricultural operations as written or as applied. There are two components to qualify as a normal agricultural operation: (1) it is an activity, practice, equipment, and/or procedure utilized in the production, harvesting, and preparation for market, and (2) the property is at least ten acres in size or produces at least $10,000 of annual gross income.
Under ACRE, “[a] local government unit shall not adopt nor enforce an unauthorized local ordinance.” An “unauthorized local ordinance” is one that either: (i) prohibits or limits a normal agricultural operation unless the local government unit has authority under state law to adopt the ordinance and it is not prohibited or preempted under state law, or (ii) restricts or limits the ownership structure of a normal agricultural operation.
On June 7, 2022, Taco Bell opened its newest location in Brooklyn Park, Minnesota, a suburb of Minneapolis. Unlike other Taco Bell locations, the Brooklyn Park restaurant offers exclusively drive-through services with no accompanying dining option. Even more intriguing, the kitchen is designed above, as opposed to next to, the drive-through pick-up windows.
Dubbed “Taco Bell Defy”, the new “floating” restaurant represents the first location of the international chain’s quest to “redefin[e] drive-thrus as customers know it.” Specifically, the goal of Taco Bell Defy is to reduce drive-through service times from an average of 4.5 minutes to 2 minutes or less. In pursuit of this objective, the new location gives each service lane a specific purpose, including three pre-order pick-up lanes for third-party delivery services and customers using the Taco Bell app, and one traditional on-site order and pick-up lane. The two-story model boasts a proprietary “vertical lift” that delivers Taco Bell menu items from the kitchen above to the car below.
In an earlier blog post, we discussed how the Commonwealth Court found that a Stroud Township ordinance prohibiting the unauthorized discharge of firearms in the Township did not pass constitutional muster. The Township only permitted shooting ranges in two of the Township’s zoning districts and required a minimum lot size of five acres for a shooting range. The Commonwealth Court stated that the Second Amendment not only protects an individual’s general right to keep and bear arms but also the related right to “acquire and maintain proficiency in firearm use.” However, the Commonwealth Court did clarify that the rights protected by the Second Amendment are not unlimited and do not entitle every person to have a shooting range on his or her own property. The Commonwealth Court provided examples of reasonable restrictions that might pass constitutional muster including minimum lot size requirements, setback requirements and safety and design requirements. This week, the Pennsylvania Supreme Court agreed to hear the appeal from the Commonwealth Court’s decision that was filed by the Township.
Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.
Several polls indicate that housing affordability continues to be a major issue across the nation.
As discussed in past blog posts, the Federal and state and local governments continue pushing for changes in zoning regulations to ensure that more housing units are affordable to more people in more areas.
In support of that goal, several communities, including Pittsburgh, are pursuing an approach called inclusionary zoning to ensure that residential developments include a minimum amount of housing units that are affordable to low- or moderate-income residents. The idea behind inclusionary zoning is to create mixed-income developments and neighborhoods. Municipalities are seeking to achieve inclusionary zoning by implementing either voluntary or mandatory zoning regulations.
The Pennsylvania Fish and Boat Commission (the “Commission”) recently announced that it is looking for Pennsylvania landowners with stream frontages to enter into conservation easement agreements in exchange for a one-time payment. The Commission is seeking these easements in furtherance of the Voluntary Public Access-Habitat Incentive Program (the “VPA-HIP”), a competitive grant program of the U.S. Department of Agricultural Natural Resources Conservation Service designed to provide funding to state governments for the benefit of public hunting, fishing, and other wildlife-dependent recreation. Portions of Pennsylvania’s VPA-HIP allocated funds are administered by the Commission for the purpose of providing Pennsylvania’s anglers with enhanced public fishing opportunities. Qualifying landowners who enter into a VPA-HIP conservation easement with the Commission will be awarded a one-time payment in consideration for permitting members of the public to access and fish on their properties. The amount of compensation for providing these easements depends on several factors, including (i) the length of the stream frontage that is made available for public access, (ii) the location of the property, and (iii) the fishing quality of the stream.