MacElree Harvey prepares various types of zoning applications on a regular basis, and is a leading law firm in obtaining zoning approvals. In Pennsylvania, a state law called the Municipalities Planning Code (MPC) determines the manner in which each municipality (a township, borough, or city) regulates land uses within its jurisdiction. While the City of Philadelphia, and the City of Pittsburgh are not subject to the MPC, it applies to every other municipality in Pennsylvania. Among these municipalities are 1,457 second class townships, 961 boroughs, 91 first class townships, and others. According to the Pennsylvania Association of Township Officials, townships account for 95% of the land area in Pennsylvania and the township is the oldest form of government in the United States. Nearly all of those municipalities, or local governments, have adopted a zoning ordinance and other regulations, which govern the manner in which the land in each jurisdiction can be used. These regulations are often complex and difficult to navigate. Moreover, the regulations vary from one local government to the next. Under the MPC, land use approvals are obtained through certain processes, which are brought before the governing body (i.e., a borough or city council or a township board of supervisors) or before a zoning hearing board that has been appointed by the governing body. These processes include by-right, conditional use, and special exception applications. Because these processes are often difficult to navigate, some municipalities require the applicant to be represented by an attorney. Notwithstanding such a requirement, obtaining legal representation is always a good idea.
For example, there are times when unique physical circumstances of a property make it impossible for a landowner to comply with the applicable zoning ordinance. In those cases, the landowner is required to obtain a variance. That is prosecuted before the local zoning hearing board. Other types of approvals, such as building permits, grading permits, use and occupancy permits, and others, are processed by the local government staff. Even though these types of permits are less procedurally intense, the assistance of a lawyer is often needed.
MacElree Harvey attorneys are well versed in municipal government and municipal approvals. While MacElree Harvey land use attorneys typically only represent land use applicants, they have an excellent record of experience in municipal government, with attorneys who have served in the role of municipal solicitor (i.e., the lawyer for a township, borough, etc.), township supervisor, and special counsel to municipalities in unique circumstances. These experiences have made MacElree Harvey land use attorneys uniquely adept at understanding and assisting clients with land use matters.
Municipal / Land use approvals
By-Right
A “by-right” use is one that is permitted by a zoning ordinance without the need for any special approvals that first need to be reviewed and approved by the governing body or the zoning hearing board. For example, with respect to a property where the zoning ordinance allows a “professional office” as a permitted use, no special zoning approvals are required. In that case, approvals will be required for the development of the property under a subdivision and land development ordinance, which regulates how the improvements are constructed, including issues such as grading, parking lots, curbs, stormwater management and a host of other issues. The use of the property for office is, however, allowed; and once the building is completed in accordance with various building codes and land development regulations, the owner is entitled to occupy the building for an office use. This right is usually memorialized by the issuance of a use and occupancy permit, once the building has been inspected and approved as meeting the building and fire codes and the land development regulations. Thus, the “by-right” zoning makes the zoning issue easy, but the development of a new building still involves many regulations that must be navigated. Assisting with the land development and the code process is part of what the MacElree Harvey Land Use Department lawyers assist clients with every day.
Use Permitted by Conditional Use and Special Exception
When a use is permitted by conditional use, it means that the use has enough impact on the municipality and its residents that the governing body wants to subject the use to specified standards that must be met before an approval is issued. These standards are typically designed to ensure that the use will not constitute an unreasonable imposition on neighboring landowners or the municipality itself. The process requires a formal hearing where the applicant must demonstrate that it meets specific conditional use standards, which themselves vary from municipality to municipality. During the hearing, the applicant must present testimony and evidence in support of the application. Issues vary and include, but are not limited to, traffic, stormwater management, emergency services accessibility, noise, dust, pedestrian flow, parking and other development impacts. The testimony will often include explanations from any combination of traffic consultants, civil engineers who specialize in land development, noise experts, and others. Certain neighbors are entitled to participate, including with their own attorney, with the right to cross examine the applicant’s witnesses and present their concerns through testimony and evidence if they so choose. At the conclusion of the hearing, the governing body deliberates and votes on the application. Under Pennsylvania law, if the applicant demonstrates that its proposed use meets all of the applicable ordinance standards, the applicant is entitled to the approval of its application for conditional use. In this sense, uses permitted by conditional use are by-right uses as long as the applicant meets its burden during the hearing. But effectively meeting this burden requires experience and planning. Over the course of the last several decades, municipalities have become much more sophisticated in the manner in which they regulate by conditional use. Applicants are well advised and sometimes required to have an attorney guide them through the conditional use process.
A special exception is analogous to a conditional use, with the primary difference being that a special exception application is processed by the zoning hearing board rather than the governing body, such as a township board of supervisors or a borough council. The process is largely the same as the conditional use process described above, except that prior to the occurrence of the proceeding before the zoning hearing board, the governing body will often review the application, and in certain cases, will oppose an application. This adds an element to the process that can be well managed by our experienced land use team of attorneys, who have a combined 75+ years of experience practicing land use law.
