Zoning

PLANNING SERIES #4

Commonwealth of Pennsylvania Tom Ridge, Governor Department of Community and Economic Development Sam McCullough, Secretary

ZONING
PLANNING SERIES #4

Seventh Edition Harrisburg, February 1999

Comments or inquiries on the subject matter of this publication should be addressed to: Governors Center for Local Government Services 325 Forum Building Harrisburg, Pennsylvania 17120 1-888-2CENTER (223-6837)

No liability is assumed with respect to the use of information contained in this publication. Laws may be amended or court rulings made that could affect a particular procedure, issue or interpretation. The Department of Community & Economic Development assumes no responsibility for errors and omissions nor any liability for damages resulting from the use of information contained herein. Please contact your local solicitor for legal advise.

Copyright 1999 Pennsylvania Department of Community and Economic Development, all rights reserved.

TABLE OF CONTENTS

Introduction.........................................................................................................................................1 Relationship between Planning and Zoning.......................................................................................1 Preparation of the Ordinance .............................................................................................................2 Contents of the Zoning Ordinance .....................................................................................................2 The Municipalities Planning Code: The Legal Framework ................................................................3 Adopting the Ordinance......................................................................................................................5 Procedures Adding Flexibility to the Zoning Ordinance .....................................................................6 Special Exceptions and Conditional Uses .................................................................................6 Variances ...................................................................................................................................7 Amending the Zoning Ordinance........................................................................................................8 Zoning Districts...................................................................................................................................8 Miscellaneous Zoning Ordinance Provisions .....................................................................................9 Administration of the Zoning Ordinance...........................................................................................10 Zoning Officer...........................................................................................................................10 Zoning Hearing Board..............................................................................................................10 Curative Amendments......................................................................................................................11 Municipal Curative Amendments .....................................................................................................12 Problems with Zoning.......................................................................................................................12 Alternative Approaches in Zoning ....................................................................................................13 Clustering .................................................................................................................................13 Alternative Zoning Methods - Diagram ....................................................................................14 Transferable Development Rights (TDRs) .............................................................................15 Lot Averaging .........................................................................................................................15 Performance Zoning ................................................................................................................15 Planned Residential Development...........................................................................................16 Conclusion........................................................................................................................................17 DCED Planning Assistance..............................................................................................................17 APPENDIX I Initial Zoning Ordinance Adoption Procedures.................................................................................18 APPENDIX II Zoning Ordinance Amendment Procedures.....................................................................................19

ZONING

Introduction
Zoning is a method a community may use to regulate the use of land and structures. It is initiated by the adoption of a zoning ordinance designed to protect the public health, safety, and welfare and to guide growth. When zoning was first utilized, its primary purpose was to prevent a property owner from using his or her property in ways which were a nuisance or actually harmful to neighboring property owners. However, over the years the scope of zoning has expanded. Municipal governments and the courts no longer look upon zoning only as a negative tool to keep certain land uses out of a neighborhood, they also recognize its value as a positive tool for encouraging certain development and for creating an attractive community. In addition, zoning now frequently attempts to control development in areas subject to flooding, to preserve natural features (i.e. wetlands, forests, aquifers) and historic features and to save farmland. The zoning ordinance is composed of two parts, the text and the zoning map. The text of the ordinance contains the community development objectives and the necessary technical provisions to regulate the use of land and structures and to establish bulk, height, area, setback and other standards. The zoning map delineates the boundaries of the specific districts or zones created in the ordinance. The zoning ordinance can be a confusing document to the average person who is confronted with a myriad of rules and regulations, some of which can be complex enough to baffle even the most knowledgeable zoning expert. The zoning ordinance, however, should not be maligned for being complicated: land use regulation is a complicated endeavor. What is needed is some basic information that explains zoning, the ordinance, its development, and its administration. The following pages attempt to fulfill some of that need.

The Relationship Between Planning and Zoning

In basic terms, a zoning ordinance divides all land within a municipality into districts, and creates regulations that apply generally to the municipality as a whole as well as specifically to individual districts. To properly delineate the boundaries of any district created within the zoning ordinance, and to determine the need for any specific district or districts, studies must be conducted in various areas. Based upon these studies, rational decisions can be made concerning the zoning districts. The comprehensive plan is a document that contains the studies and the recommendations referred to above. It is upon these studies and recommendations that the zoning ordinance is based. Hence, zoning is ultimately based upon planning. (See DCED Planning Series No. 3: The Comprehensive Plan.) The terms planning and zoning are often used interchangeably, but a distinction should be made between the two. Planning involves taking an inventory of the development alternatives, analyzing the collected data, projecting the future growth and development alternatives, and 1

establishing policies to be implemented in the future. It is a blueprint for future development of the community. Zoning is one method of implementing the plan. It is based upon the plan, and helps to put the plan into effect. Zoning is oriented to the present, whereas, a comprehensive plan has a horizon of 15 to 20 years.

Preparation of the Ordinance

The zoning ordinance serves a dual purpose: to coordinate and guide development, and to provide certain standards for development. It is the tool by which the municipality's comprehensive plan can be related to the needs of the community by providing a means for orderly development. Every municipality has its own specific needs. It is not feasible, therefore, for a community to adopt the zoning ordinance of another municipality. Also, it is difficult for a local planning commission to draft an ordinance without technical assistance. Therefore, the local planning commission usually works with staff, such as a county planner, or a consultant to prepare a suitable ordinance. The planning commission may want to involve other citizens or local interest groups in the process. When the ordinance is complete, the planning commission presents it to the local elected officials for any revisions. The preparation of a zoning ordinance should be preceded by the development of a comprehensive plan. The size, population and existing physical and social characteristics of the municipality will determine the overall approach to be taken in the planning effort. The first step in developing the plan is to collect, tabulate, and map all pertinent facts on existing conditions in the municipality and in adjoining areas. Land use maps, topographical maps, and field surveys come into play here, as do studies on such community aspects as natural features, agricultural land, street classifications, traffic volumes, transportation patterns, parking facilities, sewage, stormwater, drainage, and community water supply. These studies should be made of existing facilities, their adequacy and accessibility, the need for future sites, and their size, location, and correlation with existing improvements. Population is an important factor. The plan and the zoning ordinance will be dealing with people, and it must be reflective of present and projected future demographic conditions. This, combined with studies of the factors contributing to the economic base of the community, is necessary to estimate the future population, the areas that will be needed for population growth and areas in need or desirous of protection. An analysis of housing conditions and needs is also critical in planning for the future accommodation of the citizenry and the establishment of residential neighborhoods.

Contents of the Zoning Ordinance: An Overview

The text of the zoning ordinance contains numerous regulations. Some of these apply equally to every area within the municipality. Others vary from zone to zone. The following is a basic explanation of these regulations. Control over the use of land is the most commonly referred to concept of the traditional zoning ordinance and the most important type of regulation contained within the ordinance. All land within the municipality is divided into various districts, with different types of land uses permitted within each district. For example, specific zones or districts are usually created for residential,

commercial and industrial uses. This attempts to keep land uses basically compatible, as well as to guide future growth and development. Regulations establishing lot size and development standards are also familiar to most people. Different lot sizes are commonly established for each zone or for various types of land uses. For example, a single family residential district may have a minimum lot size requirement of 10,000 square feet, while in a conservation district the minimum lot size requirement may be one acre or larger. Additionally, special standards may be enacted within an agricultural district if the municipality is actively participating in an agricultural security area program. Hand-in-hand with lot size regulations are requirements that all lots have a certain width and depth, and that certain front, side and rear yard requirements be observed. These regulations are designed to provide sufficient light and ventilation, to insure privacy and to protect the public safety by maintaining space between buildings and between streets. Building heights can also be controlled. While this type of requirement is not mandatory, such provisions are common. Performance standards, often designed for industry and other potentially harmful or annoying uses, are more frequently being included within zoning ordinances. They can be designed to add an extra measure of protection for the inhabitants of the municipality and for the environment, or they can be designed to add greater flexibility to an ordinance. Two uses which could be incompatible if allowed to exist side by side with no limitations could fit very nicely together if performance standards are used. Frequently, such factors as noise, odor, glare, light, dust and vibration are regulated. For example, a zoning ordinance may require that the sound emitted from an industrial use not exceed a specified number of decibels within fifty feet of a residential area. Zoning ordinances usually contain additional regulations for such items as parking and signs. These types of regulations are used to improve the appearance of a community and to promote public safety. When any zoning ordinance is enacted, certain existing structures and uses of land may not meet the new zoning regulations. These are known as nonconforming uses, lots, or structures and, while such uses are permitted to continue, they are regulated by provisions in the zoning ordinance. Usually, these regulations deal with the continuation, expansion, change, restoration and abandonment of such uses. In addition to regulations concerning land use, the zoning ordinance also contains certain regulations necessary to administer the ordinance. A zoning officer is appointed and his or her powers and duties are specified. (See DCED Planning Series No. 9: The Zoning Officer.) Also, a zoning hearing board is established and its organization and functions are listed. (See DCED Planning Series No. 6: The Zoning Hearing Board.)

The Municipalities Planning Code: The Legal Framework

The power to zone and to adopt zoning ordinances is granted to local governments by the Pennsylvania Municipalities Planning Code (MPC), Act 247 of 1968, as reenacted and amended. The MPC establishes the basic rules which a municipality must follow in enacting, administering, enforcing and amending a zoning ordinance, as well as the basic purposes of the ordinance. The MPC in Section 604 requires that a zoning ordinance be designed to: 1. promote, protect and facilitate any or all of the following: the public health, safety, morals, and the general welfare: coordinated and practical community development and 3

proper density of population, emergency management preparedness and operations, airports, and national defense facilities, the provisions of adequate light and air, access to incident solar energy, police protection, vehicle parking and loading space, transportation, sewerage, schools, recreational facilities, public grounds, the provision of a safe, reliable and adequate water supply for domestic, commercial, agricultural or industrial use, and other public requirements as well as preservation of the natural, scenic, and historic values in the environment and preservation of forests, wetlands, aquifers, and flood plains. 2. prevent one or more of the following: overcrowding of land, blight, danger and congestion in travel and transportation, loss of health, life or property from fire, flood, panic or other dangers. preserve prime agriculture and farmland considering topography, soil type and classification, and present use. provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including single-family and two-family dwellings, and a reasonable range of multi-family dwellings in various arrangements, mobile homes and mobile home parks, provided, however, that no zoning ordinance shall be deemed invalid for the failure to provide for any other specific dwelling type. accommodate reasonable overall community growth, including population and employment growth, and opportunities for development of a variety of residential dwelling types and non-residential uses.

3. 4.

5.

The MPC in Section 606 also envisions a statement of community development objectives. This statement can be an actual part of the zoning ordinance, or it can be supplied by reference to these objectives as contained within the comprehensive plan. The community development objectives are an extremely crucial part of the zoning ordinance. They are the basic philosophy that underlies the ordinance, and it is upon these objectives that the ordinance requirements will be judged in a legal challenge. A basic requirement of the MPC found in Section 605 is that, except for counties, no part of any community enacting a zoning ordinance may be left unzoned. Different districts may be created, and different rules may apply within these districts, but the ordinance must provide for all areas of the municipality. The districts created must be delineated on a map. This map then becomes an integral part of the zoning ordinance. The regulations within any one zoning district must be uniform throughout the district. However, the MPC in Section 605 grants authorization to vary such regulation for:
l l l

making transitions at district boundaries; regulating nonconforming uses and structures; regulating, restricting or prohibiting uses and structures at, along, or near: major thoroughfares, their intersections and interchanges, transportation arteries and rail or transit terminals; 4

natural or artificial bodies of water, boat docks, and related facilities; places of relatively steep slope or grade or other areas of hazardous geological or topographical features; public buildings and public grounds; aircraft, helicopter, rocket and spacecraft facilities; places having unique historical, architectural or patriotic interest or value; and floodplain areas, agricultural areas, sanitary landfills and other places having a special character or use affecting and affected by their surroundings.

These latter provisions of the MPC invite the option of an overlay zone superimposed upon the established zoning district. That is, a specific district is established with its own particular explicit rules and regulations. If, for example, a floodplain lies within a district, the MPC permits the municipality to enforce a different set of regulations within the flood-prone area of the district than those that are enforced within the remaining portion of the district. Hence, the provisions pertaining to the floodplain supplement the district provisions. The MPC authorizes that any action in violation of a municipal zoning ordinance can be remedied by either the municipal governing body or any aggrieved property owner who will be substantially affected by the violation. Remedies may include any appropriate action to prevent, restrain, correct, or abate such a violation. In the case of an aggrieved property owner, notice of the proposed action must be served upon the municipality at least 30 days prior to the time the action is initiated. Enforcement remedies are also included as provisions within the MPC. Any person, partnership or corporation found in violation of the zoning ordinance shall pay a judgment of not more than $500.00, plus all associated court costs upon being found liable in a civil proceeding. Each day that a violation continues after this determination may constitute a separate offense. All judgments and associated costs shall be paid over to the municipality whose ordinance was violated.

Adopting the Ordinance

The law provides that after the initial draft of the zoning ordinance has been prepared, the planning commission is required to hold at least one public meeting at which all citizens are given the opportunity to express their views concerning the ordinance as a whole or its application to individual properties. The planning commission may hold as many public meetings as it feels are necessary to provide the public with a full explanation and an opportunity to comment. All public meetings held by the planning commission must be advertised according to the MPC requirements for public notice. Notice must be published once each week for two successive weeks in a newspaper of general circulation in the municipality. The second publication must be at least seven days and the first publication no more than 30 days from the meeting. Following the meetings, the commission should make such changes or revisions, as it deems advisable and submit its final report and recommendations to the governing body. Following the public meeting by the planning commission, the zoning ordinance is submitted to the county planning agency for review and comment. Forty-five days following the submission to the county, the planning commission submits the proposed ordinance to the governing body.

The governing body must proceed, in turn, to hold at least one public hearing (or more if necessary) at which all interested parties are given the opportunity to be heard. This hearing must also be advertised according to the MPC guidelines for public notice. Following this hearing, the governing body may adopt the zoning ordinance in the same manner as for other enactments except that the full provisions of this ordinance need not be advertised, but may be supplied in summary form as prepared by the municipal solicitor. Prior to the vote to adopt the ordinance, a notice of proposed enactment must be published at least once in a newspaper of general circulation, not more than 60 days nor less than seven days prior to passage. (See Appendix.) The public notice and advertising requirements serve several purposes. The first is to clearly state the intent of the planning commission or governing body (see below). Second, to make the local citizenry aware of the planning efforts within the municipality, and to afford them an opportunity to participate in the planning effort. Such advertising requirements also meet the mandates of Pennsylvania's Sunshine Act (P.L. 388, No. 84, 1986). The procedural elements discussed above are extremely important. They are a precedent to the validity of the zoning ordinance. If these procedures are not followed, the ordinance could be declared null and void by a court of law in legal challenge to the ordinance. (See Appendix for zoning adoption procedures.) A legal challenge on procedural grounds or alleged defects in the process of enactment goes to the zoning hearing board, but if the appeal is from the enactment of an initial zoning ordinance and no zoning hearing board has yet been established, then the appeal goes directly to court. For administrative purposes, the MPC in Section 614 requires that any community adopting a zoning ordinance appoint a zoning officer and establish a zoning hearing board. The zoning officer handles the day-to-day matters dealing with the zoning ordinance, and is responsible for its administration. The zoning hearing board hears appeals dealing with the actions of the zoning officer, challenges to the validity of an ordinance or map, procedural challenges, requests for variances, requests for special exceptions, and appeals from certain actions of the municipal engineer. (See DCED Planning Series No. 6: The Zoning Hearing Board.)

Procedures Adding Flexibility To The Zoning Ordinance

No zoning ordinance can be considered flawless, nor can zoning provide a solution for every conceivable situation. Some land uses may be acceptable within a district only when additional regulations or standards are applied. Provisions of the zoning ordinance may place undue hardship upon a property owner. Certain land uses may have been excluded from a particular zone or may have been inadvertently omitted from the municipality entirely. Court decisions frown upon excluding any legitimate land uses. If a use is excluded, the burden of proof shifts to the municipality. However, the zoning ordinance contains provisions designed to provide for or to remedy these situations.

Special Exceptions and Conditional Uses

A zoning district provides for certain uses by right. Other uses are provided by special exception or conditional use. The uses permitted by special exception or by conditional use, while they are permissible and legitimate uses within the district, require a closer examination by the body granting their approval. For example, a district may provide for single family houses by right, but may provide for townhouses by special exception or conditional use. Both uses are permitted within the district. However, the individual wishing to construct townhouses must meet additional requirements to proceed with his or her plans while the individual desiring to construct a single 6

family house does not. Both must secure a zoning and/or building permit and usually an occupancy permit upon completion and inspection. Subdivision or land development plan approvals are obtained after zoning approvals. Special exceptions and conditional uses are usually reserved for those land uses that will have a significant impact on the district or the whole community, or for those uses that necessitate more control or additional safeguards. They are not uses which can be excluded from a district, but rather are those uses which the community feels deserve a closer examination. In the example referred to above, the proposed townhouse development could be examined for off-street parking, open space, and other such items. Specific standards for issuing special exceptions and conditional uses must be contained within the zoning ordinance. When standards are not included, the municipality or zoning hearing board may not be able to defend their decision if an appeal to the courts is made. The prime difference between a special exception and a conditional use is the entity making the decision. Special exceptions are granted by the zoning hearing board. Conditional uses are granted by the governing body of a municipality. Both uses require a public hearing prior to any approval or disapproval. While there is no rule saying which of these a community should use and for what specific uses each is warranted, many communities reserve conditional uses only for those permissible uses which will have a significant impact on the entire municipality. Uses which have a lesser impact on the entire community but which still require a closer examination are often reviewed via special exception procedures. (See DCED Planning Series No. 7: Special Exceptions, Conditional Uses and Variances.)

Variances
A variance is a means of adjusting the literal terms, the detailed preset regulations, of the zoning ordinance to fit the land which it regulates. It enables a property owner to use his or her land which, due to specific location, topography, size or shape, would otherwise not be suitable for development under the strict interpretation of the zoning ordinance. It is a permission granted as relief from unnecessary hardship that would be imposed by strict adherence to ordinance provisions. The variance acts as a relief valve to solve problems in applying general legislation to specific situations. Suppose, for example, that an individual owned a lot platted prior to the adoption of the zoning ordinance. If the requirements (i.e., lot size, setbacks) of the zoning ordinance prevent any reasonable use of the individual's property, and if the proposed use is consistent with the public interest and the hardship to the applicant is not self-inflicted or financially related, a variance is usually in order to avoid a taking or confiscation of the property. A variance is granted by the zoning hearing board. The MPC in Section 910.2 contains strict standards that must be met before a variance can be issued. The board may grant a variance provided that all of the following findings are made where relevant: 1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;

2.

That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property; That such unnecessary hardship has not been created by the applicant; That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

3. 4.

5.

In granting any variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the MPC and the zoning ordinance. (See DCED Planning Series No. 7: Special Exceptions, Conditional Uses and Variances.)

Amending the Zoning Ordinance

There will be occasions when an amendment to the zoning ordinance, whether textual in nature or a map change, is necessary. This could be caused by a change in the MPC, or by an external or internal force or policy, such as an extension of utilities. Amendments could be substantive as well as procedural. For example, a new use permitted within a district or an enlargement of a district would be substantive, while a change in the number of days to act upon a matter would be procedural. Zoning amendments per se are not necessarily detrimental. Properly prepared and thought out, they enable a municipality to adjust to altering circumstances and needs.

Zoning Districts
The zoning ordinance divides all land within the municipality into districts, and land within these districts is restricted to certain general uses. There are no requirements as to the number or type of districts that a municipality may create. The only MPC requirement is that no area be left unzoned, except in the case of a county ordinance. The types of districts most commonly found in zoning ordinances are residential, commercial, industrial and protective or special purpose districts. There can be many variations of these specific districts. For example, there may be several different residential districts, each accommodating a different density of development. The same holds true for commercial, industrial and conservation districts. A different district can be created for each general type of use, for example, central business district, village center, highway commercial, professional office, light industrial, heavy industrial, forest, agricultural, floodplain, etc. Different regulations would apply to each district, making the districts more than semantically different. Strict segregation of uses can be carefully modified to allow mixed-use districts which may enable, for instance, apartments to be built in commercial and/or office districts.

Districts other than those mentioned above, for instance an institutional district, can be created. Usually, they would be designed to meet a specific need of a community. These districts, which would not be commonly found in most municipal zoning ordinances, are peculiar to each separate municipality and therefore are not addressed in detail in this document.

Miscellaneous Zoning Ordinance Provisions

A basic aim of the zoning ordinance is the designation of specific areas of the municipality for different types of land uses. Consequently, a large portion of the zoning ordinance is devoted to the districts created and the regulations pertinent to those districts. District provisions contain bulk regulations which govern building heights, yard setbacks, and density. There are however other elements that are commonly included in zoning ordinances. They are not limited to any one district, but apply uniformly to the municipality as a whole. The most familiar of these are off-street parking, sign regulations, floodplain management regulations, and performance standards. Off-street parking requirements generally specify a certain number of spaces for each type of land use. For example, most apartment buildings may need two parking spaces per dwelling unit, while an apartment for the elderly may only need one space per unit. Places that generate a high volume of traffic require more parking spaces. For offices, one space may be required for each occupant, plus additional spaces for visitors. It is not uncommon for retail stores to have their parking standards based upon floor area; one space for every two hundred square feet of gross leaseable area, for example. Few persons in our older urban areas can refute the need for off-street parking requirements. The change in preferred transportation mode from horse and buggy to the automobile left many cities with narrow and congested streets. Due to population growth and the rise in automobile use and ownership, the need for parking requirements is self-evident. Signs are another issue frequently addressed in the zoning ordinance. The size, type and location of signs are usually regulated. In addition to aesthetic reasons, sign control can be used to protect the public safety and welfare. Billboards are often restricted to industrial and commercial zones. Performance standards, particularly for industry, are more frequently being written into zoning ordinances to reduce and minimize objectionable impacts. Essentially, no use or activity that will create any dangerous, injurious, or noxious situation would be permissible. The kinds of things generally regulated are fumes, smoke, odor, dust, radioactivity, noise, vibration, heat, glare, effluent discharge, and other similar items. A manufacturing plant would be permitted to locate in the industrial district, or in certain instances other districts, if it could certify that its operation would not exceed the permitted performance standards.

Administration of the Zoning Ordinance

Once a zoning ordinance is enacted, neither the planning commission nor the governing body are directly involved in its day-to-day administration. The MPC requires that two separate entities be created for this purpose: a zoning officer and a zoning hearing board.

Zoning Officer
The day-to-day administration procedures provided for in the ordinance are the responsibility of the zoning officer. The zoning officer's duties generally involve receiving, reviewing, and issuing permits for building and zoning purposes and certificates of occupancy, maintaining records of applications and permits, performing inspections to determine compliance with the ordinance, notifying persons violating the ordinance, keeping the zoning ordinance and map up-to-date, registration of nonconforming uses, and accepting applications for and presenting facts at hearings before the zoning hearing board. The zoning officer must administer the ordinance by its literal terms: the zoning officer does not have any discretionary power and can neither waive nor tighten any requirement of the ordinance. The MPC prevents the zoning officer from holding any elective office within the municipality. The zoning officer is required to meet qualifications established by the municipality and must be able to demonstrate a working knowledge of municipal zoning. (See DCED Planning Series No. 9: The Zoning Officer.)

Zoning Hearing Board

The zoning hearing board is created to help assure fair and equitable application and administration of the zoning ordinance. It is a local court for zoning matters. The board can hear various appeals and can grant relief from the literal enforcement of the ordinance. It must, however, follow the procedures prescribed by the zoning ordinance and by the MPC, and can neither make nor modify policy. One to three alternate board members may also be appointed by the governing body to conduct a hearing if the zoning hearing board is unable to reach a quorum due to absences or disqualifications. These alternates, when designated as voting members by the chairman of the zoning hearing board, are entitled to participate in all proceedings to the same and full extent as any regular board member. The zoning hearing board has jurisdiction in nine areas as enumerated in MPC Section 909.1(a). These areas are: 1. 2. 3. 4. 5. 6. 7. 8. 9. Substantive challenges to the validity of any land use ordinance; Challenges raising procedural questions or alleged defects in the enactment or adoption process of a land use ordinance; Appeals from the determination of the zoning officer; Appeals from a determination by the municipal engineer or the zoning officer with regards to the administration of any flood plain or flood hazard regulations; Applications for variances; Applications for special exceptions; Appeals from determinations regarding the administration of transfers of development rights or performance density provisions; Appeals from the zoning officer's determination regarding preliminary opinions; and Appeals from the municipal engineer's or zoning officer's determination in the administration of any land use ordinance regarding stormwater management and erosion and sediment control not involving subdivision, land development or planned 10

residential development applications, (See DCED Planning Series No. 6, The Zoning Hearing Board.)

Curative Amendments
There have traditionally been two methods for an individual to appeal or challenge a zoning ordinance as it applies to his or her property: a zoning amendment, which requires a change of classification; and a variance, which requests relief from the literal enforcement of the zoning ordinance in hardship situations. In 1972, an amendment to the MPC added a third method: the curative amendment (See Section 609.1 of the MPC). The curative amendment is a hybrid form of challenge to the zoning ordinance: it is both an appeal from and (if granted) an amendment to the zoning ordinance. It is a suggested provision to a zoning ordinance prepared and submitted by a landowner challenging the validity of the ordinance. If the property owner feels that a zoning ordinance or map, or any provision of the ordinance prohibits or restricts the use or development of land in which he or she has an interest, he or she may submit a curative amendment to the governing body. It is a substantive challenge to the validity of the ordinance or map, and the applicant is asking the governing body to hear the challenge and to decide upon the matter. Specific requirements for both the landowner and the governing body that must be followed in curative amendment proceedings are contained in the MPC. The governing body must consider the following issues in curative amendment proceedings: 1. 2. 3. 4. 5. The impact of the proposal upon roads, schools, and public utility and service facilities; The impact of the proposal upon regional housing needs; The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features; The impact of the proposed use on the site's natural features; and The impact of the proposal on the preservation of agriculture and other land uses which are essential to the public health and welfare.

A curative amendment should not be used in a variance situation. If a variance is determined to be the correct form of relief, the governing body should not approve the curative amendment. However, where a municipality's zoning ordinance is defective, by totally excluding certain land uses or requiring excessively large lot sizes without providing for increased density in some area of the community, for example, a curative amendment might be appropriate. Where a zoning ordinance is based on sound planning, it can be sustained against developer attacks. However, as is so accurately reflected in this statement by the Commonwealth Court: A municipality with a defective ordinance runs the risk that a landowner will successfully challenge the ordinance and be permitted to proceed with a development which may be quite contrary to the intent of the governing body, its defective ordinance and the comprehensive plan. Ellick v. Worcester Township, 17 Pa Commonwealth Ct. 404 at 417, 333 A.2d 239 at 247 (1975). 11

Municipal Curative Amendments

As stated earlier, there is also a prescribed method within the MPC for municipalities to prepare their own municipal curative amendments. When the zoning ordinance or a portion thereof is determined to be substantively invalid by the municipality by formal action, there is a 30 day time limit during which a resolution setting forth specific findings regarding the declared invalidity must be passed. A municipal curative amendment correcting the declared invalidity must be enacted within 180 days of the initial declaration. This procedure, once initiated, also places a limited moratorium on consideration of any landowners curative amendments which are identical or substantially similar to the invalidity declared by the pending municipal curative amendment. Once a municipal curative amendment is enacted, the municipality may not utilize this procedure again for 36 months except for circumstances involving change in statute or a Pennsylvania Appellate Court decision which imposes a new obligation upon the municipality. The critical element to remember with these procedures is that they should be considered mandatory when a municipality determines that its zoning ordinance is substantively invalid as opposed to the more commonly encountered need for one or several procedural or substantive amendments.

Problems With Zoning

Zoning is not a panacea for all of a community's land use problems. While the zoning ordinance may state where a type of use is permissible, it does not contain design or construction specifications. It cannot correct the mistakes of the past; rather, it attempts to prevent unwise development and development patterns from occurring in the future. It should not stand alone, but should be complemented by a subdivision and land development ordinance, an official map ordinance, and by building, housing, and other such codes. In its preparation stage, the zoning ordinance must be thoroughly deliberated and its districts clearly defined. It should be based upon existing and future needs, as documented in the comprehensive plan. The ordinance should not be exclusionary and should permit all feasible land uses and developments. Zoning standards should be reasonable, not excessive. Unnecessarily stringent standards often contribute to unhealthy community trends such as unaffordable housing. A municipality faces a difficult challenge to defend an ambiguous or an exclusionary ordinance in any court proceedings. Even if a zoning ordinance is well conceived and adopted, the true test of its effectiveness lies in its administration. The zoning officer must completely understand his or her duties, and must have a working knowledge of both the local zoning ordinance and of the planning code. The zoning hearing board must endeavor to understand its responsibility and to act wisely on any matter that comes before it. Improperly issued variances can destroy the integrity of a zoning district and set undesired precedents for future requests. In addition to proper preparation and administration, the planning commission and the governing body must periodically review the contents of the zoning ordinance. At a minimum, a planning commission must review the zoning ordinance no less frequently than it reviews the comprehensive plan. DCED suggests a review at least once every three to five years. The ordinance will require amendments from time to time to accommodate changes in the community, in land use concepts and in the planning code. By analyzing change and by adjusting the zoning ordinance accordingly, the community will be prepared to defend the legality and constitutionality of its ordinance.

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The integrity of zoning can be damaged not only by misuse of variances, but also by frivolous amendments. One such pitfall is spot zoning - a singling out of one lot or small area for different treatment from that accorded to similar surrounding land from which it is indistinguishable in character for the economic benefit (or detriment) of the property owners. For example, an individual desiring a land use for his or her property not permissible within the zoning district and not meeting the requirements for a variance might request a zoning amendment. If the request would treat this property differently from the surrounding land from which it is physically indistinguishable, and if the proposed use would be detrimental to the public health, safety and welfare, the request should be denied. The governing body should not feel compelled to grant the request. To do so would be to the detriment of the community and would ultimately weaken the zoning ordinance.

Alternative Approaches in Zoning

In the past, many communities attempted to prohibit certain uses from locating within the municipality and to restrict development in some areas to preserve open space. Under traditional zoning these efforts, no matter how well intentioned, produced a hardship for the developer and for the property owner. In recent years, a variety of approaches have been developed to attempt to alleviate these problems by providing alternative methods to traditional zoning. The MPC specifically authorizes that zoning ordinances may contain provisions to encourage innovation and to promote flexibility, economy and ingenuity in development; and provisions authorizing increases in the permissible density of population or intensity of a particular use based upon expressed standards and criteria, possibly to encourage affordable housing. A description of some of these approaches follows. The first two are variants of the same method.

Clustering
Clustering involves the arrangement of residential building lots in groups through a reduction in lot area and building setback requirements while still adhering to permitted density regulations. This allows the remaining area of the development to be incorporated as open space, often based upon the preservation of environmentally sensitive areas (i.e., woodlands, wetlands, floodplains, or severely steep slopes). The option of clustering is intended to produce several desired results including the creation of recreational opportunities and open space, attractive housing layouts, the preservation of natural or historic features and resources, and a reduction of infrastructure and maintenance expenses. In some instances, a developer can also benefit by gaining a small , number of additional building lots while still providing the municipality with a more desirable and aesthetic development.

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Alternative Zoning Methods for Flexible Subdivision Design

A. Undeveloped Tract

B. Conventional Design

EXISTING ROAD

- Vacant property with a large reserve of undisturbed forest C. Clustering

EXISTING ROAD

79 lots, Extensive road network - very little forest area remaining D. Lot Averaging

EXISTING ROAD

79 lots, road network minimized - 2 large areas of open space provided - Ample portions of forest remain

Wooded Area Streets

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EXISTING ROAD

77 lots, moderate road work - No common open areas - Forest reserves still plentiful as part of rear yards

Lot Averaging
Lot averaging is similar to clustering in that both methods allow some variation in minimum lot size regulations. However, through the lot averaging technique common open space areas are not typically created nor is overall density typically modified. Larger lots are designed to avoid encroachment into environmentally sensitive areas, while still providing adequate area for residential construction. The zoning ordinance generally requires a minimum lot size for each specific zoning district. Lot averaging adds a degree of flexibility to the design of the development by permitting limited variations in lot sizes. Lots may be increased or decreased in size, within these limits, as long as the resulting average lot size is not less than the stated minimum lot size for that specific zoning district.

Transferable Development Rights (TDRs)

Transferable development rights is a new tool which can be used by a municipality to help make regulation of its development more financially equitable to landowners. The process attempts to deal with the financial burden that zoning changes may place on property owners whose rights are in conflict with the public interest. This is done by giving landowners something that they can sell for not developing their land: development rights. These rights may be sold to a builder who wishes to increase development densities in another area of the community considered suitable for development. The underlying principle is that real property is a bundle of rights rather than a single entity. Just as mineral rights can be separated from the land, so can the right to develop. The development right can be transferred from one site to another, from an area to be preserved or protected to an area where growth can be accommodated and is desirable. The property owner whose land is being restricted would therefore be fairly compensated and the taking issue would be avoided. The TDR option promises to be an effective planning tool to protect a variety of threatened land uses such as prime farmland and historic resources. With recent amendments to the MPC, development rights are now transferable beyond the municipal boundary. However, any transfer of a development right beyond a municipal boundary may only occur if the municipality is participating in a joint municipal zoning ordinance. These development rights are conveyed by a deed recorded in the county recorder of deeds office. This deed must bear the endorsement of the local municipal governing body having jurisdiction over the property or properties involved in the conveyance of rights.

Performance Zoning
Traditional zoning establishes an array of zoning districts under which specific permitted uses are listed. A zoning variant known as performance zoning relies not on a list of specific permitted uses, but rather on a list of specific quantifiable criteria which must be met by any proposed use. Performance zoning originated as an industrially related concept. Standards were established for such elements of industry as particle emissions, noise, glare, and vibration. When a particular use could prove that it was able to meet these certain standards, it would then be accepted as a permitted use in that district. Performance zoning has now been expanded to include land uses other than industry, in particular residential uses. The performance standards typically applied in residential instances may include the reduction of impact on environmentally sensitive areas (i.e., floodplain, wetlands, steep slopes, forest), the allocation of required recreational land and open space, and total tract size. Such environmental standards are instituted for the purpose of natural resource protection. 15

Environmental performance zoning attempts to relate the intensity of development to the site's natural carrying capacity. This type of performance zoning differs from the earlier referred to industrial method by determining a quantity or degree of permissible development and consequently the number of lots allowable, not whether a particular use is permitted. Performance zoning standards provide a greater degree of specific control to the municipality while also affording developers increased design flexibility. Although this approach does offer several advantages, it also creates an additional burden with respect to the administration and enforcement of the zoning ordinance. It is for this reason that professional staffing is recommended.

Planned Residential Development

Planned residential development (PRD) is a land use control device that combines elements of both the zoning and the subdivision and land development ordinances. It brings together mixed residential and non-residential development and open space and recreational facilities within the same development. The basic concept behind PRD regulations is the establishment by the municipality of certain general overall density, water supply, sewage disposal, and percentage of open space standards, and the permission for the developer to develop with considerable flexibility within these established criteria. PRD should, however, only be an option available to the developer meeting certain criteria. It should not be a form of development specifically mandated by a local ordinance. PRD provisions are special and unique. As previously mentioned, they combine elements of both the zoning and subdivision and land development ordinances. The MPC requires that PRD provisions be included as part of the municipality's zoning ordinance. Public hearings are required to be held prior to the tentative approval of all PRD's. A properly designed PRD can benefit both the developer and the municipality. Generally, although not necessarily, the PRD permits the developer to increase his overall density in return for devoting a percentage of total land for common open space. The common open space is usually owned and maintained by a homeowners association or by the developer. The developer may benefit by having to install fewer roads and utility lines, while the municipality benefits by a centralization of service areas and less maintenance. Also, the developer is permitted added design flexibility; since density can be increased in some areas, other areas that should not be developed can be left untouched, e.g., wooded areas, a floodplain, etc. It is conceivable that the community may gain title to some or all of the common open space, adding further to the municipal gain from utilizing the PRD. PRD's can be allowed throughout the community or restricted to specific districts. Also, varying degrees of density can be permitted among those districts authorized for planned residential development. For example, PRD might be permitted in a residential-agricultural district at a density of 2 or 3 dwelling units per acre with forty percent of the total land area in common open space; in a residential district, perhaps 5 to 9 or more dwelling units per acre can be permitted with thirty percent of the total land area in common open space. It is probably not advisable for a community to allow for PRD everywhere within its borders. Rather, this type of development could be channeled to those areas where it is felt that they would be most beneficial; in some agricultural districts, perhaps with reduced density in a conservation district, in most residential districts, or perhaps in a neighborhood oriented commercial district. Since a significant feature of PRD is the preservation of open space, thought should be given to any outstanding natural features or historic sites worthy of preservation. PRD 16

can then be used as a tool to achieve some type of open space preservation. It can also be extremely useful to provide the transfer of a development rights option as part of the PRD regulations. Planned residential development is a concept with several advantages over a typical development. The process differs sharply from those followed in other land development situations in that the PRD regulations provide for flexibility in site and design, and not for rigidly imposed standards. For this reason, PRD enhances subdivisions designed for such criteria as solar orientation and energy conservation, as well as for conserving natural resources. This flexibility leads the way to negotiations with the prospective developer in attempting to produce an acceptable and quality development for both the community and for the developer. The PRD is essentially a straight forward procedure. However, considerable time and effort must be devoted to both its development and to its ultimate administration.

Conclusion
The zoning ordinance regulates the use of land within a municipality. To be truly effective, it must be based upon sound data and must adequately reflect the policy goals of the community. Although the zoning ordinance is a document that is enacted only after long hours of deliberation and months of professional consultation and public debate, it must be properly administered and must be reviewed periodically for necessary changes in order to be continually effective. Failure to do either could well defeat the purposes of the ordinance. There are several methods of lending flexibility to the zoning ordinance and to its administration. Variances offer relief in hardship situations, but should be used sparingly. Clustering, performance zoning, planned residential development and other similar approaches add flexibility to site design. They can benefit both the developer and the municipality, and should warrant consideration by all communities. A zoning ordinance can be a positive force for quality community development depending upon the amount of thought that goes into its preparation and the effectiveness with which it is administered. However, with adequate planning and foresight, a community can be prepared to meet the demands of providing for substantial growth and development and also providing its residents with a better place to live and work.

DCED Planning Assistance

A community or an individual desiring any information on planning or on planning assistance (either financial or technical) should contact the appropriate DCED regional office for their area. Some of the topics in which DCED staff can be of assistance are as follows:

Community planning and comprehensive plan Zoning Subdivision and land development National Flood Insurance and floodplain management Other planning related areas such as PRD, Historic Districts, mobile home parks, sign controls, TDRs, etc. Procedural questions involving the Municipalities Planning Code.

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APPENDIX I

INITIAL ZONING ORDINANCE ADOPTION PROCEDURES

1. 2. 3. Preparation of rough draft ordinance and map by the planning agency. The planning agency sets a date for a public meeting and advertises said meeting through public notice in a local newspaper. Upon completion of the public meeting, the planning agency shall determine whether an additional public meeting or meetings are necessary. Following the end of the final public meeting, the planning agency shall present to the governing body the proposed ordinance along with any recommendations. A copy of the proposed ordinance is forwarded to the county planning agency for recommendations. The county planning agency then has 45 days to respond to the municipality with its comments. Following the county's 45 day review period, the governing body may hold a public hearing on the proposed ordinance. Once again, this hearing must be advertised via public notice. At the conclusion of the public hearing, the governing body should determine whether additional hearings are required. In the event substantial amendments are made, prior to voting upon enactment, the governing body must readvertise a brief summary at least ten days prior to enactment. At the end of the final hearing, the governing body has a period of 90 days within which to vote on the enactment of the zoning ordinance. This enactment must be preceded by a notice of proposed enactment published at least once in a newspaper of general circulation at least seven (7) and no more than 60 days prior to passage, unless a vote to enact occurs within 60 days of the last date of publication of the hearing notice in which case no further notice is required. Once the ordinance has been adopted, an official copy of the ordinance must be forwarded to the county. The zoning ordinance may be incorporated into an official ordinance book by reference with the same effect as if it were actually recorded therein.

4.

5.

6.

7.

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APPENDIX II

ZONING ORDINANCE AMENDMENT PROCEDURES

1. 2. Preparation of the proposed amendment to the zoning ordinance. If the proposed amendment was not prepared by the planning agency, the governing body must submit the amendment to the planning agency 30 days prior to a public hearing for its recommendations. It shall be optional during the amendment procedure for the planning agency to hold a public meeting on said amendment. Such a public meeting must be advertised via public notice. The proposed amendment must also be forwarded to the county planning agency for recommendations at least 30 days prior to the governing body's public hearing. If the amendment involves a change in the zoning map, notice of the hearing must also be conspicuously posted by the municipality at points deemed sufficient by the municipality along the affected property at least one week prior to the public hearing. A public hearing is held by the governing body pursuant to public notice. If the proposed amendment is altered substantially or is revised to include land not previously affected, another public hearing must be held pursuant to public notice. Notice of the amendment must be published at least 10 days prior to enactment. Either of the previous publications in compliance with public notice may qualify as the readvertisement. The aforementioned readvertisement in the event of substantial amendment must contain a brief summary of the provisions in reasonable detail together with a summary of the amendments.

3.

4. 5.

6.

Following the final public hearing, the governing body may vote to adopt the amendment. To be a legally enacted amendment, notice of proposed enactment must be published at least once in one newspaper of general circulation not more than 60 days nor less than seven (7) days prior to passage, unless a vote to enact occurs within 60 days of the last public hearing notice in which case no further advertisement is necessary. A vote to enact an amendment must be taken within 60 days of publication notice. Should the date of the vote be later than either or both of the above requirements, then another advertisement or hearing, as appropriate, must be accomplished. Within 30 days after enactment, a copy of the amendment must be forwarded to the county.

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Department of Community & Economic Development Regional Offices

Southeast Bucks, Chester, Delaware Montgomery and Philadelphia counties

Department of Community & Economic Development Southeast Regional Office 908 State Office Building Broad and Spring Garden Streets Philadelphia, Pennsylvania 19130 (215) 560-2256 Department of Community & Economic Development Northeast Regional Office 201 Samters Building 101 Penn Avenue Scranton, Pennsylvania 18503-2025 (717) 963-4571

Northeast Berks, Bradford, Carbon, Lackawanna, Lehigh, Luzerne, Monroe, Northampton, Pike, Schuylkill, Sullivan, Susquehanna, Tioga, Wayne and Wyoming counties Central Adams, Bedford, Blair, Cambria, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin Fulton, Huntingdon, Juniata, Lancaster, Lebanon, Lycoming, Mifflin, Montour, Northumberland, Perry, Snyder, Somerset, Union and York counties Southwest Allegheny, Armstrong, Beaver, Butler, Fayette, Greene, Indiana, Washington and Westmoreland counties Northwest Cameron, Clarion, Clearfield Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer Potter, Venango and Warren counties

Department of Community & Economic Development Central Regional Office 578 Forum Building Harrisburg, Pennsylvania 17120 (717) 787-2412

Department of Community & Economic Development Southwest Regional Office 413 State Office Building 300 Liberty Avenue Pittsburgh, Pennsylvania 15222 (412) 565-5002 Department of Community & Economic Development Northwest Regional Office Third Floor, Rothrock Building 121 West 10th Street Erie, Pennsylvania 16501 (814) 871-4241

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Comments or inquiries on the subject in this publication should be addressed to: Governors Center for Local Government Services Department of Community and Economic Development 325 Forum Building Harrisburg, Pennsylvania 17120 Toll Free 1-888-223-6837 Additional copies of this publication, as well as other publications can be obtained from: Publications Governors Center for Local Government Services Department of Community and Economic Development 325 Forum Building Harrisburg, Pennsylvania 17120 (717) 783-0176 Current titles relating to planning and land use regulations available from the Department include:
Pennsylvania Municipalities Planning Code (Act 247, as amended) Planning Series

#1 Local Land Use Controls in Pennsylvania #2 The Planning Commission #3 The Comprehensive Plan #4 Zoning #5 Reserved #6 The Zoning Hearing Board #7 Special Exceptions, Conditional Uses and Variances #8 Subdivision and Land Development #9 The Zoning Officer #10 Reducing Land Use Barriers to Affordable Housing #11 Technical Information on Floodplain Management NOTE: These publications are periodically revised or updated to reflect changes in Pennsylvania planning law. Contact the Department of Community and Economic Development Governors Center for Local Government Services.

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