The Impact of Local Land Use Plans and Regulations Upon
Environmental Permitting in Pennsylvania
Pennsylvania Chamber of Business and Industry
2007 Annual Environmental Laws and Regulation Conference
April 18, 2007
Raymond P. Pepe1
K&L Gates, LLP
Summary
Provisions of Pennsylvania’s Municipalities Planning Code which authorize state agencies to
“rely upon” the provisions of comprehensive plans and zoning ordinances when taking action on
permit applications pose a two-edged sword for the Commonwealth agencies and permit
applicants. On one hand, these statutory requirements provide a valuable tool to control sprawl,
promote sustainable development, enhance economic growth, preserve agricultural resources and
open space, avoid interference with reasonable mineral development, and enhance regional
cooperation. Unfortunately, this statutory authority can also be misused as tool for politically
inspired obstruction of land uses which, albeit locally controversial, are nonetheless essential to
public health, safety, welfare and economic development. Furthermore, even with the best of
intentions, the creation of burdensome and time consuming procedures for determining whether
permit applications are consistent with comprehensive plans and zoning ordinances and for
making timely permitting decisions can seriously damage the Commonwealth’s reputation as a
favorable venue for economic growth and development. This article reviews the historical
origins, current statutory provisions and policies relating to the relationship between
environmental permitting and local land use regulation, and offers some suggestions and
observations about how to reasonably balance these competing objectives.
Historical Origins
Pursuant to an Executive Order issued on July 1, 1997, Governor Tom Ridge established the 21st
Century Environment Commission consisting of environmental, business, academic, government
and community leaders charged with the responsibility to recommend “environmental priorities”
that will provide “a better environment for future generations without inhibiting their ability to
1
Mr. Pepe is a partner in the Harrisburg Office of K&L Gates at 17 North Second Street,
18 Floor, Harrisburg, PA, 17101-1507, 717.231.5988 or raymond.pepe@klgates.com. More
information about the author and K&L Gates is available at www.klgates.com. This article is for
informational purposes and does not contain or convey legal advice. The article should not be
used or relied upon in regard to particular facts and circumstances without first consulting a
lawyer.
th
© 2007, K&L GATES. ALL RIGHTS RESERVED.
prosper” and to propose “strategies” that are “founded in good science” and take into
consideration “all levels of government.” 27 Pa.B. 3784 (August 1, 1996), revised 27 Pa.B. 5244
(October 10, 1997).
A draft report prepared by the staff of the Department of Environmental Protection suggested
“goals, objectives, targets and actions” for consideration by the members of the Commission. In
particular, the draft report suggested that state agencies implement policies “consistent with
sound land use practices” and recommended that the General Assembly amend the
Municipalities Planning Code [MPC] to provide that when municipalities have “entered into
cooperative planning and implementation agreements” that “state agency and authority” actions
be made “consistent” with “multi-municipal plans.” Draft Objectives 8.2.1 & 8.4.1.
In issuing its final report on September 15, 1998, the Commission focused its highest priority
recommendations upon improving land use planning and offered a blistering critique of
“sprawl,” which it defined as “a spreading, low-density, automobile dependent development
pattern of housing, shopping centers and business parks that wastes land needlessly.” The
Commission concluded that sprawl causes a loss of open space, farmland, and natural habitat that
threatens aquifers, increases pollution from stormwater runoff, causes flooding, interferes with
potential mineral extraction, increases air pollution and interferes with normal farming
operations. The Commission also concluded that sprawl creates higher costs for public
infrastructure, impairs the viability of cultural and historical resources, and impairs the economic
and social viability of urban areas.
To address the problems created by sprawl, the Commission suggested providing “better tools”
for local governments to engage in effective land use planning, including greater authorization
for the development of county and multi-municipal plans; authorization for the designation of
targeted growth areas; requirements that all classes of land uses be required on a multi-municipal
basis rather than within each municipality; authorization to transfer development rights across
municipal boundaries; authorization to adopt zoning ordinances designed to “conserve natural,
historic and cultural resources; and increased financial and technical support for local planning
efforts.
Shortly after accepting the Final Report of the Commission, Governor Tom Ridge on January 7,
1999, issued Land Use Planning Executive Order, No. 1999-1. 29 Pa.B. 806 (February 12,
1999). Consistent with the recommendations of the Commission, the Executive Order
articulated a variety of policies to be pursued by state agencies to promote sound land use
planning. 4 Pa. Code §§ 7.771. The Executive Order also designated the Governor’s Center for
Local Government Services to be the principal state entity responsible for land use assistance and
monitoring and directed the Center to prepare recommendations concerning revisions to laws,
regulations, practices and policies needed to advance the land use policies established by the
Executive Order. 4 Pa. Code § 7.772.
Within one month of the signing of Executive Order 1999-1, the Center offered its
recommendations, which were promptly endorsed by Governor Ridge, for a series of laws,
regulations and policies to promote sound land use planning in the manner recommended by the
21st Century Environment Commission. Among its many recommendations, the Center
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suggesting adding a requirement to the MPC that “all agencies … to the greatest extent possible
make spending and regulatory decisions based on [local land use management plans].” The
Center’s recommendations (subject to several modifications and refinements) were eventually
incorporated into a package of other amendments to the MPC adopted to implement the
recommendations of the 21st Century Environment Commission adopted as Acts 67 and 68 of
2000.
Statutory Provisions
Acts 67 and 68 of 2000 authorized state agencies to rely upon local comprehensive plans and
zoning ordinances in making permitting decisions to the extent authorized by section 619.2(a),
619.2(c)(1) or 1105(a)(2) of the MPC. The requirements of section 619.2(a) apply whenever
individual cities, boroughs or townships adopt their own comprehensive plans and zoning
ordinances; the requirements of section 619.2(c)(1) apply when municipalities have adopted joint
zoning ordinances; and the requirements of section 1105(a)(2) apply when municipalities (i.e.,
cities, boroughs, townships or counties) adopt comprehensive plans pursuant to
intergovernmental cooperative and planning agreements.
Of these three sets of requirements, the most extensive and carefully articulated set of
requirements appears to be imposed by section 619.2(a). Section 619.2(a) provides that:
When a county adopts a comprehensive plan in accordance with sections
301 and 302 and any municipalities therein have adopted comprehensive
plans and zoning ordinances in accordance with sections 301, 303(d) and
603(j), Commonwealth agencies shall consider and may rely upon
comprehensive plans and zoning ordinances when reviewing applications
for the funding or permitting of infrastructure or facilities.
As discussed below, incorporated within this statutory rule are (1) an extensive set of contentbased mandates that must be satisfied by comprehensive plans before state agencies may
consider and rely upon comprehensive plans and zoning ordinances when reviewing applications
for funding or permitting of facilities; (2) an equally extensive set of consistency requirements
which mandate that provisions of comprehensive plans providing for the protection of natural
and historic resources must be consistent and not in excess of requirements imposed by a variety
of other environmental statutes; (3) procedural requirements that must be satisfied by
municipalities and counties in adopting comprehensive plans; and (4) consistency requirements
pertaining to the relationship between municipal and county plans.
While the provisions of sections 619.2(c)(2) and 1105(a)(2) of the MPC appear to establish
different requirements than section 619.2(a), and provide greater latitude to state agencies to rely
upon the provisions of comprehensive plans and zoning ordinances, the three provisions in fact
impose comparable requirements. This occurs because section 1105(a)(2) incorporates directly
and indirectly the requirements of section 619.2(a) and also establishes prerequisites necessary
for the adopt of joint zoning ordinances under section 619.2(c)(2).
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The requirements of section 1105(a)(2), which apply to municipalities and counties adopting
intergovernmental cooperative and planning agreements pursuant to Article XI of the MPC, are
comparable to those of section 619.2(a) because section 1105(a)(2) only allows state agencies to
rely upon comprehensive plans and zoning ordinances when (1) municipalities have adopted a
county plan or multi-municipal plan subject to the requirements of Article XI of the MPS; and
(2) have conformed their local plans and ordinances to the county or multi-municipal plan.
Section 1103(a) and (c) respectively of Article XI require county or multi-municipality
comprehensive plans to comply with the requirements of section 301 and 302. The requirement
to “conform” ordinances to the comprehensive plan further applies requirements comparable to
section 303(d) of the MPC (i.e., “subdivision and land development regulations and capital
improvement programs shall generally implement the municipal and multimunicipal
comprehensive plan”) and section 603(j) of the MPC (i.e., “zoning ordinances adopted by
municipalities shall be generally consistent with the municipal or multimunicipal comprehensive
plan”).
Section 619.2(c) of the MPC also imposes comparable requirements to section 619.2(a) by virtue
of its incorporation of the requirements of section 1105(a)(2) of the MPC. This occurs because
section 801-A(b) of the MPC requires municipalities with joint zoning ordinances to adopt joint
comprehensive plans. Section 1105(a)(2) of the MPC, however, as noted above, applies
comparable requirements to those of section 619.2(a) to municipalities which enter into
cooperative agreements to develop and implement joint comprehensive plans.
As a result, while some dispute may exist regarding the issue and some distinctions may arise as
the rules are applied in various factual contexts, it is generally possible to analyze the
requirements arising under sections 619.2(a), 619.2(c)(2) and 1105(a)(2) primarily by analyzing
the provisions of section 619.2(a).
I.
Prerequisites Imposed Upon County Comprehensive Plans by Sections 301 and 302 of
the MPC for Application of Section 619.2 Consideration of Permit Applications
A.
Content Requirements
The requirement that a county must have adopted a comprehensive plan in accordance with
section 301 of the MPC imposes fourteen distinct content-based mandates that must be satisfied
before state agencies may consider and rely upon comprehensive plans and zoning ordinances.
Specifically, a county comprehensive plan must include:
1.
A statement of objectives of the municipality concerning its future development,
including a statement of objectives pertaining to, the location, character and
timing of future development.
2.
A plan for the utilization of land within the county.
3.
A plan to meet the housing needs of present residents and of those individuals and
families anticipated to reside in the county.
4.
A plan for movement of people and goods.
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5.
A plan for community facilities and utilities.
6.
A statement of the “interrelationships among the various plan components.”
7.
A discussion of “short- and long-range plan implementation strategies.”
8.
A statement indicating that the existing and proposed development of the county
is “compatible with the existing and proposed development and plans in
contiguous portions of neighboring municipalities, or a statement indicating
measures which have been taken to provide “buffers or other transitional devices
between disparate uses.”
9.
A plan for the protection of natural and historic resources to the extent not
preempted by Federal or State law, including wetlands and aquifer recharge
zones, woodlands, steep slopes, prime agricultural land, flood plains, unique
natural areas and historic sites.
10.
Provisions identifying land uses “as they relate to important natural resources and
appropriate utilization of existing minerals.”
11.
Provisions identifying current and proposed land uses which have “a regional
impact and significance.”
12.
A plan for the preservation and enhancement of prime agricultural land that
encouraging “the compatibility of land use regulation with existing agricultural
operations.”
13.
A plan for historic preservation.
14.
A plan for the reliable supply of water, considering current and future water
resources availability, uses and limitations, which includes statements recognizing
that “lawful activities such as extraction of minerals may impact water supply
sources and such activities are governed by statutes regulating mineral extraction
that specify replacement and restoration of water supplies affected by such
activities,” and that “commercial agriculture production may impact water supply
sources.”
Section 1103(a) of the MPC imposes comparable content-based mandates upon county or
multimunicipal plans adopted pursuant to intergovernmental cooperative and planning
agreements. As noted above, section 801-A(b) of the MPC appears to impose the same
requirements upon joint comprehensive plans adopted by municipalities with joint zoning
ordinances.
B.
Statutory Consistency Requirements
In addition to establishing content requirements for comprehensive plans, section 301(a)(6) of
the MPC requires that provisions of a comprehensive plan providing for the protection of natural
and historic resources must “be consistent with and may not exceed those requirements” imposed
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by the Clean Streams Law, the Surface Mining Conservation and Reclamation Act, the
Bituminous Mine Subsidence and Land Conservation Act, the Coal Refuse Disposal Control Act,
the Oil and Gas Act. The Noncoal Surface Mining Conservation and Reclamation Act, the
Agricultural Area Security Law, the Agricultural Nuisances Act and the Nutrient Management
Act.
Because section 301(a)(6) of the MPC only applies to provisions of comprehensive plans
protecting natural and historic resources “not preempted by Federal or State law,” the
requirements that plan provisions be consistent with and not exceed specified state
environmental laws appears to apply to any instances in which local regulatory authority is not
otherwise preempted by Federal or State law.
Section 301(b) further requires comprehensive plan provisions pertaining to water supplies to be
“generally consistent with the State Water Plan and any applicable water resources plan adopted
by a river basin commission.”
C.
Procedural Requirements
Finally, the following procedural requirements are imposed upon county comprehensive plans by
sections 301 and 302 of the MPC:
•
The plan must be reviewed at least once every ten years.
•
The plan must be provided to contiguous counties for “review and comments” and
to the Center for Local Government Services “for informational purposes.”
•
Prior to the adoption of amendment of the plan, it must have been made available
at one public meeting for comment by the county planning agency.
•
In reviewing the comprehensive plan prior to their adoption, the governing body
of the county must have considered the comments of school districts, contiguous
counties and municipalities, the recommendations of its planning agency, and
comments generated at public meetings.
•
Prior to the adoption or amendment of a comprehensive plan the county must
have held at least one public meeting, plus an additional meeting if the plan is
substantially revised after the meeting and prior to its adoption.
•
A comprehensive plan or any amendment to the plan must have been approved by
a majority of the members of the county’s governing body.
Where municipalities have entered into intergovernmental cooperative and planning agreements,
section 1103(b) further requires that prior to the adoption of a comprehensive plan the
municipalities shall have engaged in “a public participation process to assure that all governing
bodies, municipal authorities, school districts and agencies, whether public or private, having
jurisdiction or operating within the area of the plan and landowners and citizens affected by the
plan have an opportunity to be heard prior to the public hearings required for the adoption of the
plan.”
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II.
Prerequisites Imposed Upon Municipal Comprehensive Plans and Zoning Ordinances by
Sections 301, 303(d) and 603 of the MPC for Application of Section 619.2 Consideration
of Permit Applications
A.
Content Requirements
The content requirements imposed upon city, borough or county comprehensive plans and
zoning ordinances by Section 301 of the MPC are generally the same as the content requirements
imposed upon county comprehensive plans, subject to the following differences:
•
The municipal plan must include a statement indicating that the existing and
proposed development of the municipality is “generally consistent” with the
objectives and plans of the county comprehensive plan.
•
A municipal comprehensive plan is not required to identify land uses as they
relate to important natural resources and appropriate utilization of existing
minerals.
•
A municipal comprehensive plan is not required to identify current and proposed
land uses which have a regional impact and significance, such as large shopping
centers, major industrial parks, mines and related activities, office parks, storage
facilities, large residential developments, regional entertainment and recreational
complexes, hospitals, airports and port facilities.
•
A municipal comprehensive plan is not required to identify a plan for the
preservation and enhancement of prime agricultural land and to encourage the
compatibility of land use regulation with existing agricultural operations.
•
A municipal comprehensive plan is not required to provide a plan for historic
preservation.
Section 1103(a) of the MPC also applies to individual comprehensive plans adopted by
municipalities maintaining separate comprehensive pursuant to intergovernmental cooperative
and planning agreements.
B.
Consistency Requirements
Municipal comprehensive plans and zoning ordinances are subject to the same statutory
consistency requirements as apply to county comprehensive plans, but in addition municipal
zoning ordinances pursuant to section 603(j) of the MPC must be “generally consistent with the
municipal or multi-municipal comprehensive plan or, where none exists, with the municipal
statement of community development objectives and the county comprehensive plan.”
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C.
Procedural Requirements
As a prerequisite for the application of section 619.2(a) of the MPC, municipal comprehensive
plans must comply with the following procedural requirements imposed by section 301(c) of the
MPC:
•
Comprehensive plan must be reviewed at least every ten years.
•
Each comprehensive plan must have been provided to the governing bodies of
contiguous municipalities for review and comment and sent to the Center for
Local Government Services for informational purposes.
•
Each comprehensive plan must have been provided to the county planning
commissions.
•
Whenever updated, and at least upon ten-year intervals, a comprehensive plan
must be provided to the county planning commission, and if requested by a
county planning commission, to a regional planning commission, for review and
comment on whether the plan “remains generally consistent with the county
comprehensive plan” and to identify any deviations from the county
comprehensive plan.
Implementing Policies
Shortly after the adoption of Acts 67 and 68, on August 21, 2000, DEP issued an Interim Policy
(No. 012-0200-001) to implement the requirements of sections 619.2(a), 619.2(c)(2) and
1105(a)(2) of the MPC. See 30 Pa.B. 4684 (September 1, 2000). The Interim Policy was revised
and formally adopted effective January 29, 2001. See 31 Pa.B. 589 (January 26, 2001).
Subsequently, the policy was revised effective June 8, 2002 and March 6, 2004. See 32 Pa.B.
2813 (June 8, 2002) and 34 Pa.B. 1394 (March 6, 2004). Further revisions to the Policy were
proposed by DEP on November 12, 2005, but have not yet been finalized. See 35 Pa.B. 6283
(November 12, 2005)
Policy No. 012-0200-001 describes the various types of permits and authorizations subject to
review based upon the provisions of local comprehensive plans and zoning ordinances; mandates
the provision of certain information by permit applicants to assist DEP and local governments in
review permit applications; specifies how notice will be provided to local governments regarding
permit applications soliciting comments regarding their consistency with comprehensive plans
and zoning ordinances; provides an “Early Opt-Out Option” that shortens the review process;
designates how DEP determines whether relevant conflicts with plans and ordinances exist; and
describes the actions DEP may take in reliance upon the provisions of comprehensive plans and
zoning ordinances.
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I.
Authorizations Subject to Review
Appendix A to the Policy No. 012-0200-001 designates approximately 67 different types of
permits and authorizations issued by DEP subject to review based upon the provisions of
comprehensive plans and zoning ordinances. The list of authorizations includes permits issued
by the air quality, coal mining, non-coal mining, oil and gas, hazardous waste, municipal waste,
residual waste, storage tank, dam safety, NPDES, water pollution control, safe drinking water,
erosion and sediment control, and water obstruction and encroachment programs administered by
DEP. Applications for permits and authorizations not designated in the Policy are not subject to
review for consistency with local comprehensive plans or zoning ordinances.
Excluded from the review are most types of general permits and permits-by-rule, except for
general NPDES permits associated with construction activities (other an oil and gas well
construction); permit renewals and issuances; air quality permits not authorizing the construction
of facilities outside an existing permitted area; authorizations issued under the Sewage Facilities
Act (which are subject to separate consistency requirements with local land use plans); and
permit applications for railroad activities not subject to local land use regulation.
The November 12, 2005, proposed revisions to the Policy Document do not propose changes to
the list of authorizations subject to review.
II.
Information Required To Be Provided By Permit Applicants
In submitting applications for permits subject to Policy No. 012-0200-001, an applicant must
determine (1) whether the project requests an authorization type listed in Appendix A; (2) if the
application is for an air permit, whether it propose a new source located beyond a facility’s
existing permitted boundaries; and (3) whether the applicant qualifies for an Early Opt-Out from
the review process.
If the answers to the either questions (1) or (2) are negative, of if the applicant qualifies for an
Early-Opt-Out under question (3), further information is not required to be submitted to the
Department. Otherwise, an applicant must include information (either within a General Informal
Form or within the permit application itself) to answer the following questions:
•
Is there is a municipal, county, multi-municipal, or multi-county comprehensive
plan and is the project consistent with these plans?
•
Is there a municipal or joint municipal zoning ordinance and are any zoning
ordinances applicable to a project subject to legal proceedings?
•
Will the project require a special exception, conditional use approval, rezoning or
variance and, if so, has the required approval been obtained?
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•
Will a project be located on a site that has been or is being remediated under
DEP’s Land Recycling Program, that is being reclaimed under DEP’s RECLAIM
PA Abandoned Mine Land Program, is located in an agricultural security area or
an area protected by an agricultural conservation easement, within a Keystone
Opportunity Zone or Enterprise Development Area, or a Designated Growth
Area?
Together with answering the questions outlined above, applicants are “encouraged” to submit
copies of local land use approvals and evidence of compliance with plans and ordinances.
Copies of special exceptions, conditional use approval, rezoning, or variances must always be
provided with permit applications.
The November 12, 2005, proposed revisions to the Policy Document do not modify these
requirements, except to remove the recommendation that copies of land use approvals other than
special exceptions, conditional use approvals, rezoning and variances should be submitted to
DEP.
III.
Notice to Local Governments and Early Opt-Out Option
Policy No. 012-0200-001 directs the Governor’s Center for Local Government Services “to
ensure that local governments are aware of [the] opportunity to review [permit applications] and
provide comments in relation to land use plans and zoning.” In addition, the Policy supplements
existing notice requirements regarding the submission of permit applications to ensure that
similar information is also provided by permit applicants and DEP for each permit application
subject to the Policy.
Currently, section 1905-A(b) of the Administrative Code (Act 14 of 1984) requires applicants for
various types of permits issued by DEP to give written notice to each municipality in which
permitted activities will be located regarding the submission of permit applications which invite
the submission of comments to DEP and advise the municipalities that permits will not be issued
for at least 30 days following receipt of the notice, or 60 days for solid waste permits. These
notice requirements apply to applicants for air quality, water allocation, water obstruction, water
quality, hazardous waste, and solid waste permits, but do not generally apply to permits for coal
mining and coal refuse disposal activities.
Policy No. 012-0200-001 requires permit applicants to include with all “Act 14 notices,” and
other notices required to be given by applicants to municipalities regarding the submission of
permit applications, (1) an explanation that DEP may rely upon the provisions of local
comprehensive plans and zoning ordinances in approving or denying permit applications; (2) a
copy of the General Information Form (or other pertinent documentation) containing the
information required of permit applicants regarding the relationship between their permit
applications and comprehensive plans and zoning ordinances; (3) notice to municipalities that to
“become a part of the land use review” for a project, comments must be submitted to DEP within
30 days; and (4) notice that if no land use comments are received by the end of the comment
period, DEP will assume there are no substantive land use conflicts and “proceed with the
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normal application review process.” Notices must be sent to municipal secretaries, county
commissioners, county planning offices, and return receipts for notices must be submitted by
permit applicants to DEP. Where projects are located in multiple municipalities or counties, all
affected counties must be provided the information required. For projects requiring multiple
permits, these requirements apply separately to each permit requested, unless all permits are
submitted at one time.
Policy No. 012-0200-001 also requires DEP permit review staff to attempt to contact both the
municipal and county planning commissions by telephone “to discuss the project and its relation
to planning and zoning the municipality’s role in the land review process.” Where DEP’s staff is
aware there may be a land use conflict, they are required to notify DEP’s Regional Director and
“engage the Regional Director’s help to ensure that the department has successfully alerted
municipal officials.”
The Policy document expresses DEP’s “intent to rely on comments received from municipal and
county officials or their designated planning agencies to determine whether a project may
conflict with comprehensive plans and zoning ordinances,” and further declares that if no
comments are received by the end of the comment period, “DEP will assume there is not
substantive land use conflict and proceed with the normal permit process.” DEP is granted
authorization, however, to extend the comment deadline if required by a municipal or county
official for projects that involve multiple permits “and are of a complex nature.”
Once municipal notification is given, Policy No. 012-0200-001 provides that deadlines
applicable to the Money Back Guarantee Program are stayed for the duration of the comment
period, and thereafter if it is determined that a conflict may exist. DEP’s program staff, however,
is authorized to conduct technical reviews concurrently with comment periods.
The notification requirements of Policy No. 012-0200-001 do not apply if an applicant submits
with its General Information Form or permit application approval letters signed by elected
officials of the municipal and county governing bodies or their planning agencies indicating that
a project is not inconsistent with comprehensive plans and zoning ordinances and all required
approvals have been secured.
The November 12, 2005, proposed revisions to the Policy Document fundamentally change these
notice requirements by instead requiring permit applicants in certain circumstances to obtain and
submit to DEP a “project consistency determination letter” from the host municipal and county
planning agency stating whether or not a project is consistent with applicable comprehensive
plans and zoning ordinances. If an applicant is unable to obtain a project consistency
determination letter, DEP is directed to sent a request for a determination to the municipality and
county and advise the municipality and county if that if a response is not provided within 30
days, the Department will assume the project is consistent with all applicable comprehensive
plans and zoning ordinances. The requirements for a project consistency determination letter
apply whenever there is a multi-municipal or multi-county comprehensive plan and a joint
zoning ordinance in effect, or a municipal and county comprehensive plan and municipal zoning
ordinance in effect.
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IV.
Determining Whether Conflicts With Comprehensive Plans and Zoning Ordinances Exist
Policy No. 012-0200-001 declares that “potential conflicts” between permit applications and
comprehensive plans and zoning ordinances exist whenever a permit application itself identifies
a potential conflict or DEP receives a response letter from a county or municipality indicating
that a conflict may exist. Where potential conflicts exist, DEP is directed by the Policy to verify
that it has the authority to rely on planning and zoning in permitting decisions.
In order to verify whether it has the authority to rely on planning and zoning in permitting
decisions, whenever potential conflicts are determined to exist, Policy No. 012-0200-001 directs
DEP’s program staff to advise DEP’s Policy Office regarding the existence of the potential
conflict. The Policy Office is then directed to:
•
Review all information received regarding the conflict and make a
recommendation whether to suspend technical review of the application;
•
Determine whether DEP has the legal authority to base permit decisions upon the
provisions of comprehensive plans and zoning ordinances;
•
If appropriate, notify other state agencies and the Governor’s Center for Local
Government Services;
•
Obtain a legal review of the issue from DEP’s Office of Chief Counsel; and
•
“Provide written guidance to appropriate permitting or senior staff on whether …
the permit application should be approved, approved with a condition or denied.”
The Policy Office is “generally” directed to complete these reviews within 30 days of
notification of the potential conflict or sooner. Pending the completion of required reviews by
the Policy Office and the Office of Chief Counsel, program staff are directed not to take any final
permit actions. Furthermore, while the Policy Office may recommend that permit review be
suspended pending resolution of a conflict, the power to suspend permit review is vested
exclusively with the Regional Director, Bureau Director, or District Mining Engineer.
In determining whether conflicts exist and making permitting recommendations, Policy No. 0120200-001 provides the following guidance:
•
“Comprehensive plans and zoning ordinances in effect up until the date DEP
makes the permit decision will be those considered by the Department.”
•
In evaluating conflicts, “DEP will presume that the county comprehensive plan,
the municipal comprehensive plan and zoning ordinance are generally consistent
in the absence of clear and compelling evidence that they are inconsistent.”
•
DEP may not rely solely upon comprehensive plans to make a determination of
inconsistency when zoning ordinances do not “preclude the proposed activity.”
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•
DEP must “assess” areas in which zoning ordinances may be preempted by state
environmental regulations and whether the zoning ordinances impose
requirements inconsistent with or in excess of state environmental laws and
regulations.
By apparently authorizing DEP to consider changes to ordinances and plans adopted after permit
applications are submitted to the agency, serious potential conflicts may arise between the
requirements of Policy No. 012-0200-001 and section 508 of the MPC which generally provides
that from the time an application for a subdivision or land development plan is submitted to a
municipality, and while the application is pending approval or disapproval, and thereafter for a
period of five years or longer for phase development applications, “no change or amendment of
the zoning, subdivision or other governing ordinance or plan shall affect the decision on such
application adversely to the applicant,” and subsequent to local approval, no change in local
ordinance or plans “shall adversely affect the right of the applicant to commence and complete
any aspect of the approved development.”
The requirement to “presume” that comprehensive plans and zoning ordinances are consistent
absent “clear and compelling evidence” to the contrary is justified by broad definition of the term
“generally consistent” provided by section 107 of the MPC. Section 107 provides that the term
“generally consistent” means “that which exhibits consistency.” Aside from being contrary to
the definition which defines “generally consistent” as equivalent with “consistency,” Policy No.
012-0200-001 lacks any legal rationale for imposing a “clear and compelling standard” to rebut a
finding of consistency.
The November 12, 2005, proposed revisions to the Policy Document do not modify these
requirements, except to add appropriate references to response to consistency determination
letters.
V.
Reliance Upon Comprehensive Plans and Zoning Ordinances
Once it has been determined that DEP has the authority to rely upon comprehensive plans and
zoning ordinances in reviewing a permit application, Policy No. 012-0200-001 authorizes DEP
to use its discretion to either deny the applications, suspend permit review “until the conflict is
resolved,” approve the application, or approve the application subject to conditions. The only
guidance the Policy provides regarding how to make these decisions however, is that:
•
“DEP may choose to evaluate the extent to which a project would provide a
public health or environmental benefit, and whether the project will comply with
other applicable environmental laws and regulations;” and,
•
Where a comprehensive plan is not inconsistent with a zoning ordinance, but the
zoning ordinance does not “preclude” a proposed activity, the Department should
rely more heavily upon the provisions of the zoning ordinance in determining the
appropriate course of action.
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Balancing Competing Objectives
As noted previously, while the provisions of the MPS authorizing DEP to rely on comprehensive
plans and zoning ordinances when taking action on permit applications provide a valuable tool to
control sprawl, promote sustainable development, and promote other important land use planning
objectives, these statutory provisions can be misused to obstruct controversial land uses which
are essential to sound statewide and regional planning and can lead to serious delays in the
processing of routine permit applications.
There are at least three approach available to the Department and permit applicants to minimize
the potential misuse of the authority provided by sections 619.2(a) & (c)(2) and 1105(a)(2) of the
MPC and to expedite the effective processing of permit applications.
First, it is critical that policies authorizing reliance upon comprehensive plans and zoning
ordinances in reviewing permits be reviewed from a broader policy perspective rather than
merely based on an effort to uncover obvious or latent “conflicts” between permitting activities
and local land use policies. In this regard, while Policy No. 012-0200-001 provides scant
guidance regarding how DEP should rely upon the provisions of comprehensive plans and
zoning ordinances in choosing an appropriate course of action, fortunately other policy
documents do provide such guidance. These documents include:
•
The 21st Century Environment Commission Report;
•
Executive Order 1999-1;
•
The Rendell Administration’s February 2004 Land Use Action Plan;
•
DEP’s Priority Statement;
•
The Keystone Principles;
•
Executive Order 2003-2 establishing a Agricultural Land Preservation Policy; and
•
Executive Order 2004-9, which established policies to guide the Economic
Development Committee of the Cabinet;
What all of the these policies have in common is that they look beyond merely the question of
whether a municipality, county, or group of municipalities have chosen to authorize, restrict, or
prohibit a particular activity in a manner contrary to the use proposed by a permit applicant, and
instead focus upon controlling sprawl, promoting sustainable development, enhancing economic
growth, preserving agricultural resources and open space, avoiding interference with reasonable
mineral development, reducing governmental costs and promoting efficiency, and enhancing
regional cooperation. Permit applicants can contribute to the appreciation of the policy aspects
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of planning issues by, whenever conflicts are suspected, providing the information and analysis
necessary for the Department to effectively evaluate the significance of potential or actual
conflicts.
Second, it is important to prioritize the use of resources in the reviewing permit applications
based on potential conflicts between comprehensive plans and zoning ordinances and permit
applications. There are an endless variety of ways in which small and large conflicts may exist
between proposed permitted activities and local land use requirements, especially in light of the
ill-defined boundaries of state preemption of local land use regulation. It is critical that minor or
inconsequential inconsistencies between permit applications and comprehensive plans and
zoning unrelated to fundamental policy objectives not impede the efficient and timely processing
of permit applications. While the bulk of the responsibility for sorting the wheat from the chaff
must inevitably fall upon the Department, permit applicants can again facilitate the review
process by providing information and analysis regarding potential and actual conflicts and
discussing frankly the relevance of various issues with the Department.
Finally, it is important to focus not just upon the presence of consistency or lack thereof between
plans and ordinances, but also upon the substantive and procedural requirements necessary to
apply the authority provided by sections 619.2 and 1105(a)(2) of the MPC. These substantive
and procedural requirements imposed upon the planning process should not be viewed as
technicalities that may otherwise immunize permit applicants from review based upon local
plans and ordinances, but instead as vital and important requirements and procedures to ensure
that the policy objectives that underlie section 619.2 and 1105(a)(2) of the MPC are furthered. In
evaluating the relevance of the potential substantive and procedural prerequisites, both the
Department and permit applicants should focus on the relevance of these requirements to both
particular permit applications and to whether compliance or lack of compliance with these
requirements promotes or hinders the attainment of sound land use management objectives.
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