Statement of Issues and Objectives

Land use issues remain among the most pressing in Pennsylvania. Despite a public outcry to modify the state’s antiquated system that provides huge profits for developers and imposes huge costs on the taxpayers, virtually nothing of substance has been accomplished by the state legislature in the last ten years. While claims of grand accomplishments highlight campaign literature during each election cycle, the simple reality is that residents of Southeastern Pennsylvania have been forced to endure massive tax increases, overcrowded schools, increasingly congested roads, and a degradation in the quality of life because of the failure to properly address land use issues.

The last substantial change to the Municipalities Planning Code (MPC), which is the controlling legislation for land use, occurred in 2000. Although extensive input from local officials and concerned citizens was provided, that input was ignored in total. The resulting legislation hurt, rather than helped, the efforts of local officials to control sprawl and significantly reduced the ability of municipalities to regulate development. In response to harsh criticism that the new law was pro-development and non-responsive to the region’s needs, our legislators responded that it was a “good start” and that the glaring errors would be corrected with subsequent legislation. They were not. It has been six long years since that “good start” and nothing further has been accomplished. The residents of SE Pennsylvania have been misled and the price that they are paying for the deception is incredibly high. As bad as many think the current situation is, the truly frightening prospect is that this price will seem trivial compared to the burden that will be left for future generations to bear.

Reforming land use practices is both possible and essential. To do so will require a multi-dimensional approach that incorporates a restructuring of the service delivery model currently used within the environmental community, the developing of innovative solutions and legislative change. Each area is addressed individually below but success will be illusive if a unified approach incorporating all of the various components is not achieved.

Redefining the Service Model

The essential perception driving PaLUC is that mature suburban adults are responsive to rationally based, well presented, recruitment to organize advocacy of their own and their families’ real interest in quality of life, be it economic, environmental, or cultural. This approach is based on the principles which have appealed to “the better angels of our nature”: the enlightenment concept that respects and is optimistic that the truth and respect for peoples’ integrity are not only meritorious in themselves, but will also help to defeat radical disinformation and demagogy. While history shows such a base is always endangered, history also shows that it is the only antidote to the kind of mass hysteria from which we often suffer at the hands of the dissemblers who use ignorance and prejudice without inhibition.

The PaLUC program applies these perceptions in grass roots educational and advocacy programs. We have a strong conviction that these principles require a solid foundation that cannot occur without a local, mature, personalized, core constituency.

Although the mission of the PaLUC shares some commonality with that of other environmentally focused groups, it is our belief that the operational and organizational methodology used in the past by the environmental contingent has been too limited in its success and will grow less productive as the time and resource demands of modern life increase. Essentially, the development of new service models for addressing environmental issues is crucial.

There has been a tendency to focus most of the attention and resources on generalized issues of national importance and on organizations of national or statewide influence. Although the impact and benefit of the large ENGOs (Environmental Non-Governmental Organizations) has been significant, like many “national” issues of any ilk, change on that level is often not “felt” at a local level. As such, it is difficult to generate involvement or interest from the public-at-large.

Perhaps even more critical, because of limited resources the national (and even state-wide) organizations do not have the capacity to provide significant assistance to small groups undertaking their own battles to protect their local environment. Yet it is at this level that most environmental battles occur. For example, although there is an intense focus by national ENGOs on the importance of wetlands, everyday significant wetlands are lost to development on a local level that go unnoticed.

National ENGOs are not grassroots organizations in nature or structure though, for a variety of reasons, they prefer to be perceived that way and will often use their financial support from public contributions and/or the existence of regional chapters as proof of their “grassrootness.” The focus of national ENGOs tends to be more generic and “problem” rather than “issues” based. (Air pollution is a “problem” whereas the construction of a particular incinerator is an “issue”.) This approach may be wholly appropriate and neither of the statements above is meant to be critical in any way.

However, by relying solely on this structural framework much is lost. The national ENGOs do not have the resources or structural capability to commit to increasing activist effectiveness by providing training, education or organization on other than the most limited scale. Their focus and “success” is defined by the achievement of short-term campaign goals or difficult to enforce regulatory statements rather than by sustainable movement building.

In essence, those who are addressing specific issues on a local level, even those within the direct interest area of larger ENGOs, often find themselves forced to acquire the knowledge, skills and resources necessary to pursue their fight with little or no mentoring or assistance from the existing organizations. At best, the ENGOs provide a source of general information that, although important, in and of itself is insufficient to be a major factor in determining the outcome of a specific environmental battle. (One could correctly argue that a greater benefit is derived from the body of environmental case law that has been developed by the ENGOs legal actions in defense of the environment. However, the complexities of such decisions require sophisticated legal assistance to correctly utilize them.)

Thus, there is significant disconnect between the larger ENGOs and the “true” grassroots environmentalists (individuals and Local Advocacy Groups – LAGs) who are working within their own communities to protect their own interests. Each individual group must acquire the knowledge base and the skill set necessary to fight what are usually well schooled and well funded opponents without even the benefit of the experience of those who have battled the same issues before them. There is no sense of being part of a “movement” or benefiting from the history and experience of the “movement” because, quite simply, there is not an environmental movement of which to be a part. In light of such isolation, the fact that any victories are realized against such overwhelming odds is a testament to the vast potential that lies untapped within our own communities.

Over the years, an enormous number and variety of groups have formed in response to an equal variety of threats, real and perceived, to their quality of life. In the vast majority of cases, the formation of such groups is reactive to a specific threat and once the threat is eliminated or consummated, the group disbands. With rare exception, much of the knowledge and the experience gained is lost with the dissolution of the group, a reality that expands with the passage of time. Equally problematic is that the energy and enthusiasm that was generated is also lost once the group focus is gone.

The type of commitment to social activism that occurs on a local level represents the greatest resource for the environmental community; yet, the major players in the environmental arena largely ignore local actions. In so doing, a golden opportunity to grow the community of environmentally concerned and committed individuals is lost.

Redefining Environmental Advocacy

Given the limits of funding, staffing and structure, there is no doubt that it is difficult (if not impossible) for the national and statewide groups to effectively interact with localized environmental advocacy efforts in a meaningful way. However, it is equally obvious that there are enormous benefits to doing so. In this regard, the PaLUC is well positioned to provide a model that offers the organizational structure that fosters the development of localized action groups, encourages their participation, capitalizes on their potential and integrates them into a larger movement that transcends their individual goals.

To create a viable model for others to emulate will require that the PaLUC expand its staffing and its physical facilities as well as modify its structure. Fundamentally, it is proposed that the PaLUC act as the primary support provider for the Local Advocacy Groups (LAGs) and offer proactive assistance in the areas of community organization, research, strategy development, process, fund raising, etc..

Each of the LAGs will have the option of becoming “Chapters” of the PaLUC which will facilitate the LAGs’ fund raising in that the PaLUC’s tax-exempt status can be applied to contributions to the LAG. By establishing a Chapter based system, the independent LAGs maintain control over their individual actions but all benefit from being perceived as part of a much larger and stronger organization. In addition to the mere perception of strength, the Chapter System offers the opportunity to share resources (knowledge and manpower) between the LAGs in a manner that is currently not possible.

PaLUC recognizes that understanding the process is often as important as understanding the issue and will expand the resources available in this area. LAGs will be assigned an “advisor” who will assist them in organizing, fund raising and be a primary information resource on both the process and the issues related to their particular effort. It is not the intent of the PaLUC to do the work for the individual groups but rather to increase their efficacy and to make certain that the existing knowledge base as well as the experience gained in past actions are conveyed and utilized. It is a specific goal of the project to maximize the effectiveness and impact of the LAGs and the specific methodology to be used will be Direct Action Organizing, and seed material (financial and in-kind) assistance.

The fundamental goals of Direct Action Organizing are to help LAG’s:

1. Win real, concrete improvements in people’s lives.
2. Make people aware of the power they possess and its potential.
3. Alter the existing relationship of power.

PaLUC will provide strategic support and act in an advisory capacity not only to achieve the identified purpose of the particular LAG, but also to help develop a sense of organized power within the LAG that can transcend the issue specific intent of the group. The benefits of this approach are:

1. Successful groups are much more likely to stay active and become a force that must be dealt with on a political level.
2. Success breeds success. By empowering and assisting the LAGs we can encourage similar groups to form in other communities as well.
3. By linking the various LAGs together we can greatly increase their independent effectiveness as well as develop an organization that has substantial influence.

The “expert pool” will also form the basis of a regional Environmental Support Group (ESG). Similar to the concept of Environmental Advisory Councils established on a governmental level by many municipalities, it is intended that the ESG will be both responsive to local requests for assistance and proactive in identifying problems and generating solutions on a regional basis. Although the ESG will lack the force of law, we believe that it can be an extremely effective tool because of the force of stature.

Changing the Land Use Paradigm

With absolute necessity, we must expand our understanding of the causes and impacts of sprawl and convert that new knowledge into valid solutions to a difficult problem. A major community education effort will be undertaken to illustrate that we do not have to accept sprawl as inevitable and that we must demand of our legislators, at all levels, that it not be considered as such. Substantial effort must be expended in the judicial arena to redefine the legal landscape of land use.

Changing the Law

Within the limits of a 501c3 organization, the following issues need to be addressed on a legislative level.

1. Impact Fees / Commercial Recompensation

The cost of new services required by new development is currently passed directly to the taxpayer. The developers reap enormous profits and the community is left to deal with the costs of the both short and long-term impacts. This is inherently unfair and is driving people from their homes as their tax bills skyrocket. Communities must be allowed to recover the costs associated with both residential and commercial development.

2. Concurrency of infrastructure

Overcrowded schools and congested roads are but the most visible impact of our current system that allows new development to occur without the infrastructure needed to support it being in place. The creation of needed infrastructure is a critical component to a stable community and the lack of same can have significant, negative impacts. These impacts can and should be minimized by requiring that any needed infrastructure be in place prior to the start of the project that demands their creation. The children of existing residents should not be taught in closets because of the enormous space demands placed on our schools by new developments.

3. Local Option

Pennsylvania is a large state with many diverse interests. The excuse most often given for the failure to enact meaningful legislation on impact fees and concurrency is that many, more rural parts of the state would like to see more development and feel that such legislation would reduce the desirability of building in their area. Providing an option to apply impact fees and/or concurrency at the community’s discretion would provide a tool that answers the needs of both over and underdeveloped portions of the state.

4. Enact legislation that clearly defines “Fair Share”.

The MPC and the courts have clearly stated that municipalities must provide their “fair share” of various housing types in an effort to meet the needs of people at various income levels. What both the legislature and the courts have failed to do is to provide any guidance as to what constitutes “fair share”. Lacking any definitive answers on this issue, municipalities have an extremely difficult time planning for the future and developers have used the confusion generated to repeatedly sue municipalities for allegedly violating a law that has no defined standards. The resulting out-of-court settlements and legal actions have cost the voters millions of dollars in increased taxes; while forcing them to accept thousands of new housing units in numerous, poorly planned, high-density developments.

Fair Share can be established using population estimates provided by the controlling MPO. By taking the anticipated population growth over a 10 or 20 year period and assigning a minimum percentage to each specified housing type, a township would be able to realistically zone for the required number of units. If a developer decided to build another type of unit on land zoned for a particular use, then the township would still be considered to have met its Fair Share obligation. For example, if a developer choose to build single-family houses on land zoned for multi-family housing then that property would still be considered as having been zoned for multi-family in any Fair Share challenge.

Fair Share definitions based on land mass must be avoid at all costs and represent the most developer friendly legislation ever proposed in the state.

5. Enact legislation that corrects the Curative Amendment process.

Pennsylvania is the only state in the nation to use a bizarre process commonly referred to as Curative Amendments to address zoning laws that are claimed to be unconstitutionally restrictive. (aka Substantive Challenges and Validity Challenges.) This builder friendly procedure allows developers to challenge a municipality’s zoning and, if successful, they are given the right to “correct” the invalid zoning with a “cure” of their own design, in a location(s) of their choosing. The developer submitted “cure” is nearly universally profit driven with no basis in sound planning principles and no correlation between the degree of infraction on the part of a municipality and the “punishment” inflicted. Thus, even the threat of a “cure” has become a potent weapon in the developer’s arsenal and it is used regularly, not for the protection of society as intended, but as a means to even greater profits.

While the theory of curative amendments offers potential remedies for people impacted by discriminatory zoning practices, the true application of the theory only benefits developers. To correct this imbalance, communities must be given the right to correct proven zoning deficiencies in a manner that is consistent with good planning practices. This is best achieved by allowing for non-site specific “cures” where a successful challenge to a zoning ordinance would require that the municipality correct the deficiencies but allow them to do so in a location that makes sense from a planning perspective. This simple, sensible allowance would remove the threat factor from the curative process while retaining its full protective benefits against discriminatory zoning practices.

Although our legislators claim that they have provided the tools to minimize the threat of curative amendments and fair share challenges via options for regional zoning, they are incorrect. Regional zoning options, as written, are inadequate and have numerous inherent risks. To maintain that they are a solution is a clear indication of how far out of touch some of our elected officials are with the need for viable land use reform.

6. Enact legislation to allow for resource-based zoning.

The land in each community has a definable “carrying capacity” beyond which the available natural resources are exceeded by the demands placed on it by the inhabitants. To exceed that capacity is poor public policy that only invites long-term problems while driving taxes higher. Municipalities must be given the legal authority to base their zoning and their ultimate build-out density on the ability of their land to provide for the water, sewage disposal, storm water control and other natural resource needs of their community.

7. Recognize the relationship between land use and transportation in matters of public policy.

Land use and transportation needs are intrinsically linked and any policy determination affecting either should consider both. Currently, there is a disconnect between the two and each is treated in isolation from the other. This has led to inefficiencies and expenses that need not to have occurred and which will only become greater with the passage of time.

8. Protect water resources.

Our very existence is dependent on water and the impact of land use policies on our watersheds must be recognized. Regardless of any relaxation of federal clean water standards, sewage disposers should not be allowed to release untreated wastewater into our streams regardless of the weather conditions.

Stormwater management should require, rather than make optional, the use of Best Management Practices to increase water quality and groundwater recharge as well as prevent downstream flooding. In addition, the MPC should be expanded to allow for / force the mitigation of off site impacts.

9. Promote synergy between the cities and suburbs.

The interrelationship between the cities and the suburbs is often acknowledged in theoretical discussions and then all but ignored in legislative practice. This is poor public policy as the quality of life in suburban and exurban settings is heavily impacted by the viability of their associated urban core. It is critical that a positive relationship between the cities and the suburbs based on mutual respect and cooperation be fostered. Land use policies that foster re-use, urban revitalization and brownfield reclamation rather than greenfield development must be promoted. Additionally, it is unreasonable to expect that the cities will remain as viable, desirable communities unless the basic human services such as education and public safety are provided on the same level as their suburban counterparts. Investments designed to keep our cities vital are investments in the suburbs as well and must be recognized and promoted as such.

10. Efforts to preserve farmland and natural areas must be enhanced.

Pennsylvania has successfully used public funds for land preservation and those efforts must be supported and expanded. Specifically, any farm preserved should have its property taxes frozen at the levels in effect at the time of preservation with any future differences to local taxing authorities covered by the state. The current system, which allows local school districts the option to freeze property taxes, has been questionable at best and should be replaced. Additionally, preserved areas should stay preserved for the public benefit. There must be a guarantee of absolute protection from governmental takings via eminent domain and the dissolution of preservation covenants on one property in exchange for preserving another property must not be allowed.

11. Regional Zoning

Regional Zoning as a theoretical construct has value; however as currently proposed it is one that also contains many potential pitfalls. The discussion on regional zoning must be reopened, reconsidered and intelligently evaluated.

12. Scenic Byways

Southeastern Pennsylvania has an abundance of roads that date back to our earliest history as a country. Many of these roads provide access to our premier viewsheds and help define the region as we know it. It is essential that the nature of these roads be protected but current PennDOT design standards, which only recognize the perceived transportation needs of a modern world from purely an engineering perspective, fail to do so. It is essential that a formal program be developed that allows the local designation of scenic byways of state owned roads and creates design standards that match the historical, cultural, and social needs of the community.

13. Baby Bridges

Similar to and often in conjunction with the scenic byways addressed above, the replacement of small, historic bridges is often a huge issue that pits communities against the monolithic structure of the state. Much of the problem stems from the fact that PennDOT has no design standards nor are there any AASHTO standards for one lane and/or narrow width replacement bridges. Four corrective elements can be applied:

1. Require that PennDOT develop appropriate standards that allow for the renovation, rather than the replacement of “baby bridges”.

2. Require that PennDOT implement a viable maintenance program to prevent the decay of these bridges in the first place. Currently they are neglecting them to the point where replacement is just about the only option.

3. Require that PennDOT comply with Section 106 of the Clean Water Act in spirit as well as form.

4. Remove PennDOT’s main excuse for not preserving small, “substandard” bridges by enacting legislation that limits PennDOT’s liability from excessive lawsuits when they replace or repair a historical structure with one of like size and kind regardless of whether it meets AASHTO requirements or not. The same legislation can and should be applied to scenic byways.