1. LEGAL AUTHORITY ISSUES FOR MUNICIPALITIES WHEN RECONCILING QUALITY OF LIFE AND DEVELOPMENT
RECONCILING QUALITY OF LIFE AND DEVELOPMENT CONFERENCE
WIDENER UNIVERSITY COMMONWEALTH LAW SCHOOL
APRIL 26, 2016

2. Panelists Charles M. Courtney, Esquire John C. Dernbach, Esquire
Chair of Land Use Division of McNees, Wallace & Nurick LLC’s Real Estate Group
Represents businesses on a variety of zoning, land development, planning, transportation and other land use matters
Certified Instructor for the Pennsylvania Municipal Planning Education Institute
John C. Dernbach, Esquire
Distinguished Professor of Law at Widener University Commonwealth Law School
Director of Widener’s Environmental Law and Sustainability Center
Susan J. Smith, Esquire
Represents private and municipal clients in land use, municipal, environmental and public utility matters through The Law Office of Susan J. Smith in Camp Hill
Presenter and member of Planning Committee for Pennsylvania Bar Institute’s Land Use Institute

3. Agenda Sustainability-Related Zoning Provisions
Subjective vs. Objective
Challenges with Burden of Proof
Discussion re: Specific Types of Uses
Residential – large scale developments, etc.
Agricultural – CAFOs
Commercial – Warehousing
Industrial
Other impacts – signs, lighting, etc.
Environmental Rights Amendment
Impact of Robinson Tp. v. Commonwealth on municipal obligations re: sustainability

4. Subjective v. Objective
Key element in evaluating decisions by municipal governing bodies (conditional uses) and zoning hearing boards (special exceptions)
Objective standard – more easily upheld
Subjective standard – requirement may not be enforceable or applicant may not have burden of proving that it meets the standard
             

5. Subjective vs. Objective - Examples
“Any construction within any [Environmental Protection Overlay District] shall be minimally invasive and use best management practices, as defined by [the Department of Environmental Protection] and [the Army Corps of Engineers].”
Subjective vs. Objective
Are standards specific enough?
What are benchmarks for “minimally invasive”?
Williams Holding Group, LLC v. Board of Sup’rs of W. Hanover Tp., 101 A.3d 1202 (Pa.Cmwlth. 2014)

6. Subjective vs. Objective - Examples
“Naturalized stormwater basins. The entire basin shall be located a minimum of 50 feet from the defined edge of the identified watercourse.”
In re Thompson, 896 A.2d 659 (Pa.Cmwlth. 2006)

7. Subjective vs. Objective - Examples
“(e) That the development will not create detrimental health and safety impacts, including but not limited to potential impacts of noise, emissions, or vibrations from the proposed development, or functions within the proposed site which would otherwise affect the health or safety of others as a direct result of the operation of the proposed use;
(f) That the development will not create detrimental impacts on the future and potential development of parcels in the vicinity of the proposed site of the development; and
(g) That the development will not create detrimental impacts on property values”
Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa.Cmwlth. 2010), appeal denied, 612 Pa. 694, 29 A.3d 799 (2011)

8. Impacts of Different Uses on Sustainable Communities
Large Scale Residential Developments
Concentrated Animal Feeding Operations (CAFOs)
Warehousing Projects
Natural Gas and Pipelines
Others
Signs – 2015 U.S. Supreme Court decision in Reed v. Town of Gilbert

9. Contact Information
Charles M. Courtney
John C. Dernbach
Susan J. Smith