ZONING, SUBDIVISION AND LAND …

1 1 zoning , SUBDIVISION AND land development LAW IN PENNSYLVANIA Spring 2012 by: Office Locations: 79 St. Paul Drive, Chambersburg, PA 17201 354 Alexander Spring Rd., Suite 1, Carlisle, PA 17015 105 North Front Street, Suite 401, Harrisburg, PA 17101 239 E. Main St., Waynesboro, PA 17268 Presenters: G. Bryan Salzmann, Esq. Scott T. Wyland, Esq. Kurt E. Williams, Esq. Tiffany M. Cartwright, Esq. Concentrating in land Use, Environmental, and Municipal Law 2 A. APPLICABLE STATUTES THE WHAT AND WHERE OF zoning AND SALD REGULATION 1. Pennsylvania Municipalities Planning Code a. zoning The Pennsylvania Municipalities Planning Code ( MPC ) is the enabling legislation that authorizes municipalities to enact, amend and repeal zoning There is no requirement that a municipality must enact a zoning However, where a municipality enacts a zoning ordinance, no part of the municipality may be left A zoning ordinance may permit, prohibit, regulate, restrict and determine, to the extent not superseded or preempted by certain state acts: uses of land , watercourses, and other bodies of water.

2 Size, height, bulk, location, erection, construction, repair, maintenance, alteration, razing, removal and use of structures; areas and dimensions of land and bodies of water to be occupied by uses and structures and open spaces; density; intensity of use; and protection and preservation of natural resources and agricultural land and activities. A zoning ordinance may also contain provisions for special exceptions, variances, conditional uses, transferable development rights and planned residential developments; provisions encouraging innovation and promoting flexibility, economy and ingenuity; provisions 1 53 10602.

3 2 Counties are empowered to enact zoning ordinances only with respect to municipalities that have no zoning ordinance 3 53 10605. 3 for sewer and adequate water supplies; and provisions for administration, implementation and enforcement of the ordinance. b. SUBDIVISION and land development Article V of the MPC provides authority for the regulation of SUBDIVISION and land development . SUBDIVISION and land development ( SALD ) is the exclusive prerogative of the governing SALDOs may include: Provisions for the submittal of plats, including the charging of review fees;5 Specifications for plats, including certification as to the accuracy of plats; Provisions for preliminary and final approval, and for processing of final approval by stages or sections of development ;6 Provisions for excluding certain uses from the definition of land development .

4 7 Provisions for insuring that the layout conforms to the comprehensive plant, that streets are of such widths and grades as deemed necessary for traffic and fire protection, that adequate easements are provided for stormwater and utilities, that reservations for public grounds are adequate for their uses, and that land subject to flooding, subsidence or underground fires is made safe for the purpose for which the land will be used; 4 53 10501. 5 Review fees may include reasonable and necessary charges by the municipality s professional consultants for review and report thereon to the municipality.

5 The review fees must be based upon a schedule established by ordinance or resolution. They must also be reasonable and in accordance with the ordinary and customary charges for similar service in the community. 53 10503(1), (1)(i) (iii). 6 53 10503(1) 7 53 10503( ) 4 Provisions governing standards by which streets, walkways, curbs, gutters, street lights, water and sewage facilities shall be designed and installed; Provisions which take into account phased land development ; Provisions regulating minimum setback lines and minimum lot sizes which are based upon the availability of water and sewer; Provisions for encouraging and promoting flexibility, economy and ingenuity in the layout and design of subdivisions and land developments.

6 Provisions for encouraging the use of renewable energy systems and energy-conserving building design; Provisions for administering waivers to the minimum standards of the ordinance; Provisions for the approval of a plat, subject to conditions acceptable to the applicant and a procedure for the applicant s acceptance or rejection of any conditions; Provisions and standards for insuring that new developments incorporate adequate provisions for a reliable, safe and adequate water supply; Provisions requiring the public dedication of land suitable for the use intended and, upon agreement with the developer, the construction of recreational facilities, the payment of fees in lieu thereof, the private reservation of land , or a combination.

7 Section 107 of the MPC defines what constitutes SUBDIVISION and land development : SUBDIVISION the division or redivision of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines for the purpose, whether immediate or future, of lease, partition by the court for distribution to heirs or devisees, transfer of ownership or building or lot development : Provided, however, that the SUBDIVISION by lease of land for agricultural purposes into parcels of more than ten acres, not involving any new street or easement of access or any residential dwelling, shall be exempted.

8 land development Any of the following activities: 5 (1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving: (i) A group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or (ii) The division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features.

9 (2) A SUBDIVISION of land ; (3) development in accordance with section 503( ). c. Comprehensive Plan & Joint Planning zoning ordinances must be generally consistent with municipal comprehensive plans or, if none exists, with the statement of community development objectives and the county comprehensive However, Section 303(c) of the MPC expressly provides that no action by the governing body of a municipality shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with, the provision of a comprehensive plan. 9 Further, the courts consistently have held that, where there is a conflict between the comprehensive plan and a zoning ordinance, the zoning ordinance prevails on the grounds that it is regulatory in nature while the comprehensive plan is merely 8 53 10603(j).

10 9 53 10603(c). 10 In re Realen Valley Forge Greenes Asso., 799 938 (Pa. Cmwlth. 2002); Blue Ridge Realty & development Corp. v. Lower Paxton Twp., 414 737 (1980). 6 Article VIII-A of the MPC authorizes joint zoning and planning by two or more municipalities. A statutory prerequisite for a joint municipal zoning ordinance is an adopted joint municipal comprehensive B. zoning AND SALD PROCEDURES THE HOW AND WHO AND zoning AND SALD REGULATION 1. The Governing Body Section (b) of the MPC lists those matters for which the governing body of the municipality has exclusive jurisdiction to hear and render a decision.