REGULATING POTENTIALLY HIGH IMPACT USES
User Tips: Performance and Environmental Protection Standards
- Many municipalities include “performance standards” or “off-site impacts” regulations intended to reduce the effects of noise, light and glare, and debris from a proposed development that may negatively impact nearby existing uses. These types of standards are essential to ensure that development located adjacent to or nearby the AT does not produce off-site impacts with the potential to reach trail users. For example, municipalities can limit glare emitted by commercial light fixtures (e.g., gas stations, retail stores, 24-hour shipping businesses) located near the AT or anywhere in the municipality to prevent light pollution.
- Maximum light and noise standards vary widely by municipality and there is no universal standard that is appropriate for all municipalities. A commonly used standard does not permit any glare illumination (direct or indirect) to spillover to another property or to measure more than 0.5 footcandles (fc) along a property line. The Penn Township ordinance takes a step further and prohibits light illumination along a property line measuring more than 0.1 footcandle.
- Where industrial or commercial land uses are permitted near the AT, municipalities should consider allowing only shielded parking lot fixtures that direct light downward at a 45-degree angle (so that light does not project at an angle or up toward the sky). Other potential standards include limiting the height of light fixtures and type of light bulb permitted for a fixture on site.
- The International Dark Sky Association is a resource for best practices and “dark-sky” approved lighting fixtures. The Association is currently preparing a Model Lighting Ordinance.
- Municipalities can require landscape buffers between two different uses (e.g., commercial and residential) or around the perimeter of a property. Landscape buffers can vary in width and required planting materials/screening depending on the municipality’s need. Ordinances often require either landscape buffer opacity of a certain percentage (e.g., 50-60%) and/or a particular number of plant materials per linear foot. A mix of native plant types and natural screening materials that complement the rural setting of the AT are preferred.
- Consider reduced buffer requirements if existing landscaping and trees are preserved. In most cases, supplementing and protecting existing trees/woodlands in the area of the AT is preferred buffer approach.
- While noise limitations can be established in the performance standard section of a zoning ordinance, the doctrine of nuisance may also apply, where noise levels are excessive. Performance standards for noise control can be based upon noise levels experienced by a “receiving” parcel of land. For residential and public recreational lands, a sound level limit of 55 dBA for daytime and 50 dBA for Sundays, holidays, and night hours have been implemented in local zoning ordinances.
- Enactment of a noise control regulation (such as the 55 dBA/50 dBA requirement) would not be enforceable against an existing land use where the noise level is higher, as the higher noise level would be considered “lawful non-conforming.” Richland Township v. Prodex, Inc., 634 A.2d 756 (1993). Under the law of nuisance, however, the concept of lawful non-conformity does not exist and, hence, an existing objectionable use may be required to modify its noise levels under the doctrine of public nuisance.
- Pennsylvania’s model ordinance provides a general template for wind energy facilities and includes language for zoning and SLDO. The template is designed for commercial wind energy facilities, rather than residential or agricultural use.
- The demand for small residential wind turbines is growing. Federal tax credits and rising energy costs will likely continue to increase demand. The Southwest Windpower Model Ordinance provides definitions and recommended standards for residential use.
- Locating large wind energy facilities along the AT corridor is not generally recommended. Even individual and smaller wind turbines should be carefully considered due to important bird habitats and other environmental impacts along the AT.
- Cell phone transmissions via antennae located on cell towers are by “line of sight,” so cell phone companies always desire to maximize the height of antennas, in order to get the broadest area of coverage. This can be a major issue, in that the ridgelines near the trail are desirable sites for cell tower construction. Protection of the Appalachian Trail experience should require strict limits on distances and/or viewsheds within which cell towers can be placed. While municipalities must make reasonable provision for cellular phone transmissions, they retain the right to limit height and placement of individual towers.
- Another current strategy for providing cellular phone transmissions in municipalities is to locate as many as technically feasible on existing tall structures in a municipality (e.g., water tower, church steeple).
- Some municipalities require the submission of an environmental impact study (EIS) where the size of a proposed development and/or its inclusion of environmentally sensitive land features may justify that requirement. An EIS could require, as a criterion, that the developer evaluate and minimize adverse impacts on the Appalachian Trail experience.