Municipal Permitting

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In blog posts last year (available HERE and HERE), we reviewed the challenges that municipalities face in regulating short-term rentals under existing zoning ordinances that do not specifically address the use.  One case we discussed was Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 164 A.3d 633 (Pa. Commw. Ct. 2017).  The Commonwealth Court’s decision in Slice of Life was appealed and the Pennsylvania Supreme Court recently reversed the Commonwealth Court’s decision.

In Slice of Life, the Township issued an enforcement notice to the property owner alleging that the property was being used as a hotel or other type of transient lodging in violation of the zoning ordinance.  According to the zoning ordinance, single-family residential was the only permitted use in the underlying zoning district.  The Township’s zoning ordinance defined the term “family” as
Continue Reading **UPDATE** Regulating Short-Term Rentals – The Pennsylvania Supreme Court Weighs In

Recently, Frank Chlebnikow, AICP and I co-presented a program entitled “Finding Valuable Commercial Space Under Parking Lots” at the Pennsylvania State Association of Township Supervisors’ 97th Annual Educational Conference.  The program discussed problems (and potential solutions) many communities are experiencing due to the increasing amount of vacant retail spaces in shopping malls and big-box retail stores.  Most communities experience impacts such as a stagnating/declining tax base and operating revenue shortfalls, leading to a reduction in municipal services, loss of businesses and residents, limited property reinvestment, and increasing tax rates.  But mature, built-out suburban and urban communities must also deal with the lack of undeveloped land, aging and inadequately maintained infrastructure, traffic congestion and addressing stormwater runoff issues while complying with federal/state mandates.

One thing is certain, the traditional mall and suburban commercial corridor model (a “shopping mall”) that includes one or more sprawling, single-story buildings dominated by retail and department store tenants surrounded by seas of parking lots, is not the future.
Continue Reading Shopping Malls: This Ain’t the Dawn of the Dead

Wireless service providers, such as Verizon Wireless and AT&T, are continually upgrading their networks given the ubiquitous nature of smart phones and the incredible growth of mobile data traffic.  One technology that is being deployed to address this exponential growth and the resulting demand for additional network capacity is distributed antenna system (DAS) networks.  A DAS network is a network of antenna nodes that are deployed to provide wireless coverage to indoor (e.g., arenas, airports, etc.) or outdoor areas.  Some DAS networks are installed by companies that are not wireless service providers and are referred to as neutral host DAS networks since they provide the infrastructure (e.g., antenna nodes, fiber lines, etc.) that carries the wireless traffic of the wireless service providers.

In Pennsylvania, the Public Utility Commission (“PUC”) had recognized neutral host DAS network operators as public utilities and issued certificates of public convenience to the operators since 2005. 
Continue Reading Are Distributed Antenna Networks Public Utilities? The Commonwealth Court Weighs In

This post, which is the second in a two-part series exploring the scope of Pennsylvania’s Environmental Rights Amendment (the “ERA”), will delve deeper into the text of the ERA as analyzed and explained by the Pennsylvania Supreme Court in Pennsylvania Environmental Defense Fund (“PEDF”) v. Commonwealth, 161 A.3d 911 (Pa. 2017).

In PEDF, the Court ruled that the ERA grants citizens of the Commonwealth two distinct rights: 1) the right to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment; and 2) the right of common ownership by the people, including future generations, of Pennsylvania’s public natural resources. The Court noted that the first right, which comes directly from the text of the ERA itself, “places a limitation on the state’s power to act contrary to [the] right, and while the subject of the right may be amenable to regulation, any laws that unreasonably impair the right are unconstitutional.” Despite this declaration by the Court, the scope and meaning of the first right remains undefined. It remains to be seen how the courts will define “clean air” or “pure water” and even more intangibly, who will determine which “scenic” or “esthetic” values are worthy of preservation?
Continue Reading The PA Supreme Court’s Revival of the Environmental Rights Amendment – Part 2

Although the Environmental Rights Amendment (the “ERA”) to the Pennsylvania Constitution was ratified in 1971, for many years it was rarely a topic of discussion among land use practitioners. Recent Pennsylvania Supreme Court jurisprudence, however, has revived this long-dormant amendment, and is reason to reconsider the ERA’s potential impact on development projects. This two-part post will explore the history of the ERA, the current legal standard for evaluating ERA violations as articulated by the Supreme Court, and potential future implications of the Court’s decision.

The ERA, found in Article I, Section 27 of the Pennsylvania Constitution, provides as follows:

The people have a right to clean air, pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment.  Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.  As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of the people.
Continue Reading The PA Supreme Court’s Revival of the Environmental Rights Amendment – Part 1

A large-scale natural gas liquids pipeline project traversing the Commonwealth has shed light on an oft misunderstood legal principle regarding the municipal regulation of utilities. Municipalities typically operate under the assumption that essentially all land uses, including public utilities, are subject to municipal regulation to at least some degree (e.g., zoning ordinances, subdivision and land development ordinance, etc.). But, most public utility facilities actually are not subject to local regulation. A pair of recent Commonwealth Court cases reinforce this legal principle that is nearly sixty-five years old but rarely reflected in municipal ordinances.
Continue Reading What do you mean that pipeline isn’t subject to zoning regulations?

With four million Airbnb listings worldwide, this rapidly growing short-term rental (STR) site and others like it have property owners, neighborhood groups, local government, and the real estate industry running in circles – and looking for a vacation spot. In the case of STRs, hosts are enjoying extra income and municipalities are keeping properties on the tax roll, while some nearby property owners are seeing a spike in their local rental rates or disruption to neighborhoods. In this post, the second in a two-post series (See “Regulating Short-Term Rentals,” by Jamie Strong), we discuss a case out of Lackawanna County decided this past December. The case of interest in this post was decided approximately six months after a case out of Monroe County – now on appeal to the Pennsylvania Supreme Court – was decided by the Commonwealth Court.
Continue Reading Short-Term Rentals: When an AirBnB is not really a B&B

The short-term rental (STR) market for using peer to peer rental services such as Airbnb and VRBO has grown significantly in recent years. These services allow property owners to realize the economic benefit of renting all or part of their properties as an STR.   However, there are corresponding concerns raised by neighboring property owners who feel STRs could result in the loss of a sense of community given the transient nature of such a use. The biggest challenge for a municipality that wants to regulate STRs has been attempting to regulate the use under an existing zoning ordinance that does not specifically address the use.

Recent Commonwealth Court cases, most originating in Monroe County, highlight the difficulty that municipalities have in attempting to regulate STRs under zoning ordinances that do not specifically address the use.
Continue Reading Regulating Short-Term Rentals