PENNSYLVANIA'S ANTI-SPRAWL LEGISLATION
by
Robert J. Yarbrough
©2000
Introduction
The Governor signed companion bills HB 14 and SB 300
into law on June 22, 2000 as Acts 67 and 68. Together, Acts 67
and 68 form coordinated amendments to the Municipalities Planning
Code. While Acts 67 and 68 may not serve to stop sprawl, they
do provide additional power to municipalities and counties.
Acts 67 and 68 are large and include many provisions.
The following are highlights of Acts 67 and 68 of interest to the
environmental community.
Discussion
1. Exclusionary zoning.
In the past, if a municipality sought to exclude any
use, the municipality could be compelled to grant an application for
the excluded use in an “exclusionary zoning” challenge. Both
Act 67 and Act 68 authorize municipalities to engage in
“multimunicipal” land use planning as a group with the assistance of
counties and for the municipalities individually to then adopt the
resulting plan. The major benefit to the municipalities for
adopting “multimunicipal” planning and zoning is the resulting
restriction on exclusionary zoning challenges.
Act 67 amends Sections 916.1 and 1006-A of the
Municipalities Planning Code to address exclusionary zoning
challenges. Those provisions state that where multimunicipal
planning is in effect, a reviewing court, governing body or zoning
hearing board faced with an exclusionary zoning challenge:
...shall consider the availability of uses under
the zoning ordinances within the municipalities participating in the
multimunicipal comprehensive plan within a reasonable geographic
area and shall not limit its consideration to the application of the
zoning ordinance on the municipality whose zoning ordinance is being
challenged.
This provision is the major change represented by Act
68 and Act 67. No longer will exclusionary zoning challenges
be based on the uses allowed in a single municipality. We can
anticipate that municipalities that already host an unpopular use
will be desirable planning partners for other municipalities that
wish to exclude that use.
The exclusionary zoning doctrine is based on the
Pennsylvania Constitution, and it is uncertain whether the scheme of
Acts 67 and 68 will pass constitutional muster.
2. Adoption of a special plan.
Section 1106 of Act 67 provides authority for a
municipality to adopt a county or multimunicipal “special plan” for
non-residential development. From this section, rural
municipalities that are not interested in comprehensive planning for
residential development may elect to merely adopt a county plan for
nonresidential development. This provides a very cheap and
easy way for a rural municipality to obtain the exclusionary zoning
benefits of multimunicipal zoning for non-residential development.
3. Effect of the comprehensive plan on state
agencies.
Section 619.2 (Act 68) establishes the effect of the
comprehensive plans on state administrative agencies. As
initially drafted, agencies such as DEP were required to defer to a
municipal comprehensive plan, thereby giving the municipality a veto
power over DEP permits. The language was softened at the
insistence of the executive branch.
That provision now states, in relevant part:
… Commonwealth agencies shall consider and may
rely upon comprehensive plans and zoning ordinances when reviewing
applications for … permitting of infrastructure or facilities.
DEP must “consider” and “may rely” upon local
planning and zoning. The meaning of these provisions is
intentionally vague. It appears that the meaning will be left
largely to the administrative agencies. If the executive
decides that it will not issue permits prohibited by local zoning,
then this language may give it the authority to do so.
An insertion in the bill suggests that local planning
may have a compulsory effect on state agencies. Section
608.1(d) provides that the authority of the PUC is not limited by
the statute, “[e]xcept as provided by Section 619.2….” This
language suggests that a local plan restricts the authority of the
PUC. If the local plan restricts the authority of the PUC,
then it may restrict the authority of the DEP as well. This
issue will no doubt be the subject of debate and litigation in the
future.
Similar provisions are included in Act 67 at Section
1105 relating to multimunicipal planning.
4. Rural resource areas.
Act 67 creates “rural resource areas” as a zoning use at Section
107. Such areas are defined, in relevant part as:
…[A]n area … within which rural resources uses
including but not limited to, agriculture, timbering, mining,
quarrying and other extractive industries, forest and game lands and
recreation and tourism are encouraged and enhanced, development that
is compatible with or supportive of such uses is permitted, and
public infrastructure services are not provided except in villages.
The designation of “rural resource areas” is
discussed by Section 1103(a)(3) (Act 67). The “rural
resource area” designation is intended to restrict development in
designated rural areas and to limit the availability of
infrastructure in such areas. Act 67 provides that publicly
financed water and sewer services will not be provided in “rural
resource areas.” There is nothing to preclude a developer from
providing such services, however.
5. Agricultural security areas.
Section 603(g)(1) (Act 68) provides that zoning ordinances may
create “agricultural security areas.” The term is undefined
and it is unclear what the legislature meant. We may
anticipate that a municipality may seek to restrict development in
any area indicated as an “agricultural security area.”
6. Traditional Neighborhood Development
Article VII-A of Act 68 includes extensive provisions relating
to planning and development of dense urban centers, which are
referred to as “traditional neighborhoods.”
7. Other provisions.
a. Section 301.5 (Act 68) as
originally drafted provided substantial inducements for
municipalities to engage in multimunicipal planning and zoning in
the form of preferences in state funding of projects, such as
PennVest funding. As finally passed, the provision was amended
to provide that municipalities participating in such planning will
receive preferences only for planning monies, not for other state
monies. This removes a significant incentive to reach joint
planning agreements.
b. Section 501 (Act 68)
provides that municipalities may delegate subdivision and land
development approval to a planning body, and that actions of the
planning body shall be considered to be actions of the municipality
governing body.
c. A restriction on
conditions applicable to conditional uses was inserted, at Section
603(c)(2) (Act 68). That section prevents conditions to a
conditional use from requiring off-site transportation improvements.
d. Several amendments to
Article V of the Municipalities Planning Code are included in Act
68. For example,
i. Section 509(A) is amended to provide that the five
year life of a land development approval is extended by the time
required to conclude litigation concerning the approval or by the
time required to remove a sewer moratorium that arose after the
application.
ii. Section 503-A(h) is added to allow traffic impact fees to
be assessed jointly by cooperating municipalities.
iii. Section 504-A(d)(1) provides that municipalities may jointly
conduct engineering studies for traffic impact fees.
iv. Section 504-A(e)(1)(iv)(c) restricts impact fees that can
be assessed for improvements to state highways.
v. Section 504-A(g) provides for joint municipal
planning for transportation impact fees.
vi. Section 505-A(h) provides that high volume projects (more
than 1000 trips/day) may be required to pay higher transportation
impact fees, may be required to study traffic over a wider area, and
may be required to pay for improvements over a wider area.
vii. Section 508-A authorizes joint impact fee ordinances.
