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Robert J. Yarbrough

• Attorney at Law•

201 North Jackson Street • Media, PA 19063

Phone (610) 891-0668 • Fax (610) 891-0655

robert@yarbroughlaw.com

Patent Law • Environmental Law

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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 will not stop sprawl, they do provide additional power to municipalities and counties to restrict land use. 

     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 a use through zoning, 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 67 and Act 68.  Where multimunicipal zoning is in effect, exclusionary zoning challenges no longer will be limited to the uses allowed in a single municipality.  The challenge will turn on whether the use is allowed “within a reasonable geographic area,” which may include other municipalities in the planning area. 

     The political obstacles to multimunicipal planning will be substantial.  To effectively engage in such planning, several municipalities will be required to agree among themselves as to which municipalities will host high density uses, which will host unpopular uses, and which will host desirable, low-density uses.  Multimunicipal planning is most likely to be successful where a municipality already hosts an unpopular use.  Such municipalities will be desirable planning partners for other municipalities that wish to exclude the unpopular use. 

     The exclusionary zoning doctrine is based on the Pennsylvania and United States Constitutions.  See, for example, Surrick v Zoning Hearing Board of Township of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977).  It is uncertain whether the scheme of Acts 67 and 68 will pass constitutional muster.   

2.   Adoption of a “specific plan.” 

     Section 1106 of Act 67 provides authority for a municipality to adopt a county or multimunicipal “specific 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 “shall consider” and “may rely” upon local planning and zoning.  The meaning of these provisions is intentionally vague and is left largely to the administrative agencies.  If an agency decides that it will not issue permits for uses prohibited by local zoning, then this language may give it the authority to do so.  Similar provisions are included in Act 67 at Section 1105 relating to multimunicipal planning. 

     An insertion in Act 68 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. 

     DEP has announced an interim policy for implementation of Acts 67 and 68 and local planning in general.  The policy, which is identified as document number 012-0200-001, will require that permit applicants submit zoning information to the agency.  Permit reviewers will examine the zoning information submitted along with any municipal comments to determine whether the proposed permit is consistent with local zoning.  If the reviewer determines that a conflict exists, the permit reviewer will notify DEP headquarters.  The policy does not specify how the agency will resolve actual conflicts.

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.  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 municipal 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.