As the Law and Zoning Trends Evolve, So Must Your Zoning Ordinance

The Legal Intelligencer

(by Blaine A. Lucas and Alyssa E. Golfieri)

Now is the optimal time for municipalities to take a fresh look at their zoning ordinances to ensure they not only comply with state law, but that they are positioned to handle the influx of new and currently trending land uses.

As 2019 comes to a close and a new wave of elected local officials get ready to take their seats, now is the optimal time for municipalities to take a fresh look at their zoning ordinances to ensure they not only comply with state law, but that they are positioned to handle the influx of new and currently trending land uses.

Municipalities derive most of their authority to regulate the use of land from the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (the MPC). The MPC was first enacted in 1968 and expressly authorizes municipalities to enact zoning ordinances to permit, prohibit, regulate and determine uses of land; the size, height, bulk, location, erection, construction repair, maintenance, alteration, razing, removal and use of structures; the area and dimensions of land to be occupied by uses and structures; the density of populations and intensity of uses; methods for protecting and preserving natural and historic resources; and methods for protecting and preserving prime agricultural lands and activities, see Section 603(b) of the MPC, 53 P.S. Section 10603(b).

Since the adoption of the MPC and the enactment of hundreds of local zoning ordinances pursuant to the same, land use types and development patterns have continued to change and evolve. Some of these changes have prompted the General Assembly to implement legislative solutions, while others are left for navigation at the local level and ultimately in the courts.

Below are four topics of that municipalities should be aware and may want to consider when examining their zoning ordinances in the coming new year.

Short-Term Rentals in Residential Districts

On April 26, the Pennsylvania Supreme Court rendered a decision in Slice of Life v. Hamilton Township Zoning Hearing Board, 207 A.3d 886 (Pa. 2019), addressing the permissibility of short-term vacation rentals (e.g., Airbnb and Vrbo) in residential zoning districts. See “A Second Slice:  Practical Considerations for Short-Term Rentals,” Krista-Ann Staley and Jenn Malik of Babst, Calland, Clements and Zomnir, published on June 20, 2019, by The Legal IntelligencerIn sum, the Pennsylvania Supreme Court held that the purely transient use of a single-family dwelling is not permitted in a residential zoning district when a municipality affirmatively limits the use of such dwellings to a “single housekeeping unit” (i.e., when a municipality limits the use of a single-family dwelling to situations where the person or persons residing in the home function as a family, are sufficiently stable and permanent, and are not purely transient).

The decision to allow or prohibit the use of single-family dwellings in a residential zoning district for purely transient purposes is one left to the discretion of local government officials. If a municipality wants to prohibit such uses, it needs to amend its zoning ordinance to expressly state that single-family dwellings may only be used by a “single housekeeping unit.” Alternatively, if a municipality finds such transient uses attractive and consistent with the character of its residential districts, it should evaluate and consider implementing regulations aimed at limiting the potentially negative impacts accompanying these uses, such as attendant noise, traffic generation, ingress and egress issues, parking needs, structure occupancy limits and signage.

  • Agritainment, Agritourism and Agribusiness

Section 603(g) of the MPC, 53 P.S. Section 10603(g), requires that local zoning ordinances protect prime agricultural land and encourage the continuity, development and viability of agricultural operations. In addition, the Right-to-Farm Act, 3 P.S. Section 951 et seq., and the Agricultural, Communities and Rural Environment Act, 3 Pa.C.S. Section 311 et seq., limit municipal regulatory authority over certain agricultural uses and activities. See “Municipal Regulation of Agricultural Operations in Pennsylvania,” Blaine A. Lucas and Alyssa E. Golfieri of Babst, Calland, Clements and Zomnir, published on Dec. 20, 2018, by The Legal Intelligencer.

Notwithstanding these statutes, the current state of the law extends no protections to, nor does it limit a municipality’s ability to regulate, agritainment, agritourism and agribusiness, which are generally defined as farm-related activities that are conducted on agricultural land and are open to the public for recreational, educational and/or entertainment purposes. Thus, similar to short-term, transient uses in a residential district, the decision to allow or prohibit the use of property for agritainment, agritourism or agribusiness is left to the discretion of local government officials.

With the recent rise in popularity of agritainment, agritourism and agribusiness uses, municipalities should examine their zoning ordinances and maps to determine how, where, and in what manner these uses are currently permitted, and what, if any, regulations are necessary to protect the public’s health, safety and welfare, such as regulations to control noise, lighting, traffic, parking, ingress and egress, the use of agricultural structures by the public, structural occupancy limits, hours of operation and setbacks from neighboring properties.

  • No-Impact Home-Based Businesses

In an effort to promote small business development and foster a business-friendly environment in the commonwealth, the General Assembly amended the MPC in 2002 to require that all local zoning ordinances permit, by right, no-impact home-based businesses in every residential district. See Section 603(l) of the MPC, 53 P.S. Section 10603(l). “No-impact home-based business” is define under the MPC as: A business or commercial activity administered or conducted as an accessory use which is clearly secondary to the use as a residential dwelling and which involves no customer, client or patient traffic, whether vehicular or pedestrian, pickup, delivery or removal functions to or from the premises, in excess of those normally associated with residential use. The business or commercial activity must satisfy the following requirements:

  • The business activity shall be compatible with the residential use of the property and surrounding residential uses.
  • The business shall employ no employees other than family members residing in the dwelling.
  • There shall be no display or sale of retail goods and no stockpiling or inventory of a substantial nature.
  • There shall be no outside appearance of a business use, including, but not limited to, parking, signs or lights.
  • The business activity may not use any equipment or process that creates noise, vibration, glare, fumes, odors or electrical or electronic interference, including interference with radio or television reception, which is detectable in the neighborhood.
  • The business activity may not generate any solid waste or sewage discharge in volume or type that is not normally associated with residential use in the neighborhood.
  • The business activity shall be conducted only within the dwelling and may not occupy more than 25% of the habitable floor area.
  • The business may not involve any illegal activity.

Many municipal ordinances contain regulations for “home occupations” that were adopted well before the 2002 amendment to the MPC. These municipalities should examine their zoning ordinances to determine whether they are consistent with the MPC’s mandate regarding no-impact home-based businesses.

  • Civil Versus Criminal Penalties

Prior to 1988, zoning enforcement proceedings initiated pursuant to the MPC were considered criminal in nature, and, as a result, municipalities were authorized to impose imprisonment for violation and convictions. However, treatment of these actions as criminal brought with it certain procedural hurdles for municipalities attempting to enforce their zoning ordinances, ranging from criminal burden of proof standards to a defendant’s right against self-incrimination. In 1988, the MPC was amended to eliminate the criminal nature of zoning enforcement actions. They are now classified as civil enforcement proceedings, and the penalty after a finding of liability is limited to fines, which can be assessed on a daily basis, plus court costs and reasonable attorney fees. See “Zoning Hearing Board: Overlooked, Misunderstood or Misapplied Principles,” Blaine A. Lucas and Alyssa E. Golfieri of Babst, Calland, Clements and Zomnir, published on July 27, 2018, by The Legal Intelligencer.

Despite this significant overhaul to the MPC’s enforcement provisions, some zoning ordinances still reflect, and some municipalities still attempt to impose, criminal penalties for violations. Municipalities should examine their zoning ordinances enforcement provisions to ensure that they are consistent with the MPC.

Blaine A. Lucas is a shareholder and Alyssa E. Golfieri a senior associate in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. In these capacities, Lucas coordinates the firm’s representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development. Contact them at blucas@babstcalland.com and agolfieri@babstcalland.com.

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Reprinted with permission from the December 12, 2019 edition of The Legal Intelligencer  © 2019 ALM Media Properties, LLC. All rights reserved.