Have Lawmakers Found A Cure For Sprawl?

Commercial development in the Philadelphia suburbs is on fire, and residential development continues unabated. "Antisprawl" legislation and "smart growth" are the catchphrases for land-use planning to address growing pains faced by many municipalities in the Philadelphia suburbs.

Recent amendments to the Municipalities Planning Code (MPC) signed into law by Gov. Tom Ridge on June 22, effective Aug. 21, are hailed as Pennsylvania's response to the perceived problems in current land-use law. House Bill No. 14, Act No. 2000-67, and Senate Bill No. 300, Act No. 2000-68, are designed to allow closer cooperation in land-use planning between municipalities and between municipalities and counties.

In Pennsylvania the power to zone and regulate land use and subdivision has been delegated to each municipality and is not concentrated in the counties, according to 53 P.S. Section 10101, et seq.

Duly enacted zoning ordinances exist for thousands of municipalities in Pennsylvania. Municipalities, regardless of size, are required to accommodate every legitimate land use, from apartment houses to quarries. The widespread delegation of power promotes vigorous local control and participation in municipal zoning and planning but can result in inconsistent and uncoordinated planning across regions of the state.

Will the amendments to the MPC cure inconsistent and uncoordinated planning, evidenced by suburban sprawl in developing areas of Pennsylvania? While there are some minor provisions in the amendments which will have some impact immediately, the amendments will not truly affect the land-use process unless municipalities work together and enter into complex intergovernmental cooperation agreements.

NEIGHBORHOOD DEVELOPMENT

The most obvious change in the MPC as a result of the new amendments is a new article, Article VII-A, "Traditional Neighborhood Development." One of the aspects of modern zoning ordinances is that residential and commercial development areas are often segregated from each other and not related, so that pedestrian-friendly mixed-use developments are not permitted and cannot be coordinated by a single developer.

New Article VII-A encourages municipalities to enact zoning ordinance amendments which would permit such developments, and Section 706-A outlines standards and conditions for such developments. Of course, such developments already exist in Pennsylvania and in the Philadelphia suburbs. Such developments were possible because the townships in which they are located enacted unified development districts which specifically permitted mixed use developments.

Article VII-A codifies certain standards for such developments and specifically encourages municipalities to enact such ordinances.

INTERGOVERNMENTAL COOPERATION

The majority of the amendments are concerned with intergovernmental cooperation and regional planning. Municipalities in Pennsylvania have been able since 1988 to enact joint municipal zoning ordinances under Article VIII-A of the MPC and to create joint municipal planning commissions under Article XI of the MPC in order to address regional land use issues.

Article XI has been completely restructured and the new amendments to the MPC allow and encourage municipalities within a county to enter into intergovernmental cooperative agreements for the purposes of developing joint comprehensive plans and of implementing those plans.

Each municipality remains the governing body responsible for zoning and subdivision and land-development ordinances controlling development within its municipal boundaries. However, municipalities through intergovernmental cooperative agreements will agree to adopt zoning and land development ordinances which are consistent with a multi-municipal or county comprehensive plan.

Those intergovernmental cooperative agreements, permitted under 53 P.S. Section 2303(a) and 2315, will establish certain processes and guidelines relating to the multimunicipal comprehensive plan, including:

• A process to achieve general consistency between the ordinances of participating municipalities, including the adoption of conforming zoning and land-development ordinances within two years and a mechanism for resolving disputes over the interpretation of the plan and the consistency of ordinances with the plan (Section 1104(b)(1);
  
  
• A process for review of developments of regional significance (Section 1104(b)(2);
  
  
• Establishment of the roles of the participating municipalities with respect to implementation of the comprehensive plan, including public infrastructure, affordable housing and purchase of real property, including easements and rights of way (Section 1104(b)(3);
  
  
• Designation of growth areas, future growth areas and rural resource areas and a process for amending the comprehensive plan for redefining those areas (Section 1104(c)).

Once municipalities have entered into an intergovernmental cooperative agreement, they may develop a comprehensive plan for their combined area in which they:

• Designate growth and future growth areas (Section 1103(a) (1),(2));
  
  
• Designate rural resource areas (Section 1103(a)(3));
  
  
• Plan for accommodation of all categories of uses within the plan, but not necessarily within each municipality participating in the plan (Section 1103(a)(4));
  
  
• Plan for developments of area-wide significance and impact (Section 1103(a)(5));
  
  
• Plan for conservation and enhancement of natural, scenic, historic and aesthetic resources (Section 1103(a)(6).

Municipalities agreeing to develop comprehensive plans consistent with a county-wide comprehensive plan will also have the benefit of priority access to funding from the commonwealth to develop and revise their comprehensive plans.

Once municipalities have adopted a multi-municipality comprehensive plan and have enacted ordinances generally consistent with that plan, they are entitled to certain benefits, including:

• In a validity challenge to the zoning ordinance, consideration by the zoning hearing board, governing body or court, as the case may be, of the availability of uses under zoning ordinances within all of the municipalities participating within the multimunicipal comprehensive plan within a reasonable geographic area and not just the availability of uses in the municipality whose ordinance is challenged (Section 1105(a)(1), 916.1 and 1006-A);
  
  
• Reliance by the agencies of the commonwealth upon the comprehensive plans and zoning ordinances when reviewing applications for permits, and priority consideration for projects consistent with multimunicipal plans (Section 1105(a)(1),(2));
  
  
• Sharing of tax revenues and fees among participating municipalities by cooperative agreement (Section 1105(b)(1);
  
  
• Adoption of transferable development rights ordinances permitting transfer of development rights from rural resource areas to any municipality in the multimunicipal plan area (Section 1105(b)(2));
  
  
• Adoption of a specific plan for a specific area, consistent with the comprehensive plan, and allowance of development in that specific plan area by submission of a final land development plan only (Section 1106(a)).
  
  
• Exercise of impact-fee powers jointly by enacting a joint transportation impact fee ordinance with other participating municipalities (Section 503-A(h)).

Thus, regional planning can be accomplished if municipalities elect to enter into intergovernmental cooperation agreements and then adopt multimunicipal or county-wide comprehensive plans and enact zoning and land development ordinances consistent with the comprehensive plan. Until that occurs, land use regulation and planning will remain with individual municipalities.

OTHER AMENDMENTS TO MPC

Finally, although the emphasis in the amendments is on traditional neighborhood planning and intergovernmental cooperation, there are some amendments to the MPC which will be effective prior to the enactment of any new zoning or land development ordinances by municipalities, particularly to Article V of the MPC.

First, county planning commissions shall offer a mediation option to any municipality which believes its citizens will experience harm as a result of a subdivision or land development in a contiguous municipality, if the municipalities agree. Further, governing bodies of contiguous municipalities may appear before boards and commissions of neighboring municipalities regarding subdivisions, changes in land use and land developments.

Land-development applicants now have 14 days from receipt of bills for review fees to dispute those fees, instead of the previous 10 days from issuance of the bill. The five-year period after approval of a subdivision or land development during which the landowner is protected from changes to the zoning or land-development and subdivision ordinances has now been extended to include time spent on appeals and under sewer or utility moratoria.

An applicant is no longer required to provide financial security for those improvements for which security is required by and provided to the Department of Transportation. Final plats must now be recorded within 90 days of final approval or within 90 days of the date of approval of the governing body on the plat.

The new amendments to the MPC recognize the need for allowance of mixed-use developments in individual municipalities and provide municipalities with the tools to engage in regional land use planning. Are these amendments the cure for sprawl? Not yet, but it may be the beginning of more regional land planning in Pennsylvania.

Elizabeth U. Witmer is special counsel to Saul Ewing LLP and is a member of its real estate and litigation departments in its Berwyn office. She concentrates her practice in real estate and commercial litigation, including land-use litigation.