ZONING FOR LANDSCAPE PROTECTION
User Tips: Municipalities Without Existing Zoning Ordinances
- Act 24 of 2008, amending the “Appalachian Trail Protection Act,” states that it is the duty of each municipality through which the Appalachian Trail passes to “take such action … to preserve the natural, scenic, historic and aesthetic values of the trail … [including] adoption, implementation and enforcement of zoning ordinances as the governing body deems necessary to preserve those values.” Municipalities without existing zoning ordinances are then authorized to enact zoning regulations, but are given the option of not zoning the entire municipality.
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There are three options available for municipalities without existing zoning ordinances:
- Adopt an individual/municipal zoning ordinance, either zoning the entire municipality or, taking advantage of the exemption in Act 24, zoning only that portion of the municipality necessary for preserving the values of the Appalachian Trail;
- Where two or more unzoned municipalities are contiguous, they are authorized under Article VIII-A of the Pennsylvania Municipalities Planning Code to adopt a multi-municipal zoning ordinance;
- The municipality can work with the county planning commission toward the enactment by the county board of commissioners of a zoning ordinance effective only within those municipalities which do not have zoning ordinances in effect.
- Recommendations. The requirements for enacting a multi-municipal zoning ordinance pursuant to Article VIII-A of the MPC are complex and time consuming. Particularly where a municipality does not have an existing zoning ordinance, it is unrealistic to expect township officials to embark upon the complexities and cost of a joint municipal comprehensive plan, and then a joint municipal zoning ordinance. Consequently, either option a. or option c. above should be entertained by municipalities that do not have existing zoning ordinances. Option c.—working in cooperation with county planning commission staff toward enactment by the county board of commissioners of trail protection zoning for non-zoned municipalities—would seem to be the most efficient procedure for municipalities without existing zoning ordinances to comply with the mandate of Act 24. Such a process can be guided by county planning commission staff and can be based upon existing county comprehensive plans.
- When updating existing zoning, a municipality can either revise its existing zoning district(s) or adopt a new zoning district and zoning map. In some cases, it is easier to start with a new document.
- Placing limitations on the number and type of permitted uses is key in drafting a resource protection district. For example, South Middleton Township’s Woodland Conservation District permits only 7 uses (forestry, agriculture, greenways, municipal buildings, single-family residential, home business, accessory structure). Residential uses require a 10-acre lot size. All other uses are conditional or not permitted.
- In any rural preservation district, a residential density of 1 dwelling unit/5 acres or lower is encouraged. Consider the need to incorporate incentives (e.g., reduced lot size) to encourage conservation subdivision, agricultural preservation easements, restored landscape features, etc. In C&M Developers v. Bedminster Township Zoning Hearing Board, 820 A.2d 143 (Pa. 2002), the Pennsylvania Supreme Court ruled that minimum lot size requirements larger than one house per two acres were not presumed to be unreasonable and, hence, invalid. Overall minimum lot area and density requirements can be tailored to the specific topography and conditions of the municipality so long as such restrictions, taken as a whole, are not unreasonably restrictive.
- Where high-quality agricultural lands are being protected a minimum lot size of 25 acres is preferred. Note: In Codorus Township v. Rodgers, 492 A.2d 73 (Pa.Cmwlth. 1985), one new lot per 50 acre agricultural tract was sustained by Commonwealth Court.
- In a Borough context, use TND Design Standards to maintain a walkable environment and preserve the small town character of these important locations along the Appalachian Trail. Note: see Article VII-A of the MPC, Traditional Neighborhood Development.
- Steep slope areas and environmentally sensitive locations, such as areas containing significant woodlands, can be protected by both (i) relatively large minimum lot area requirements, (ii) provision of lot averaging and/or cluster zoning, and (iii) restrictions on the percentage of such area which can be disturbed. Petition of Dolington Land Group, 839 A.2d 1021 (Pa. 2003); Reimer v. Board of Supervisors of Upper Mt. Bethel Township, 615 A.2d 938 (Pa. Cmwlth. 1992); Jones v. Zoning Hearing Board of McCandless Township, 578 A.2d 1369 (1990).
- Many zoning ordinances impose landscaping and buffering requirements in order to minimize adverse visual impacts of development.
- The general purpose of woodland, steep slope, and scenic river ordinances is to limit development in areas with sensitive environmental features and to conserve natural resources. Include a strong purpose statement with any natural resource ordinance.
- The most common standards for defining steep slope areas are that “precautionary slopes” are those between 15% and 25%, and “prohibitive slopes” are those of 25% or greater. Sloping areas are also often forested, providing two natural resources justifying substantial restriction on development. In Jones v. Zoning Hearing Board of McCandless Township, 578 A.2d 1369 (1990), Commonwealth Court approved development limitations on steep slope and woodland areas.
- Provisions to maintain the tree canopy and minimize clearing and grading disturbance on a site are important standards for woodland preservation. Constructing buildings within the natural terrain with minimal tree removal is preferred.
- The Pennsylvania MPC, at Section 603(f), states that zoning ordinances may not unreasonably restrict forestry activities. Consequently, timber harvesting is mandated as a “permitted use by right” in all zoning districts in every municipality. Such activities can be regulated under the municipal zoning ordinance so long as such regulations do not unreasonable restrict forestry activities. Regulations can require that forested areas be properly maintained and managed, thus avoiding clear-cutting, and requiring stabilization of disturbed areas, in order to minimize the erosive effects of tree cutting.
- As an alternative to focusing on one resource (e.g., woodlands), a municipality can prepare an Environmental Protection Article as part of its zoning ordinance. In the Greenwich Township example, note that the Township included in its purpose: the need to preserve the quality of the existing environment with minimum destruction of natural drainage areas, ground surface, tree stands, and attractive views covering many objectives resource protection objectives in one article. In addition to “typical” environmental standards, noise, light, glare, and dust standards are also included.
- A municipality can tailor the model Appalachian Trail Overlay model based on local context and natural resources. The overlay includes two zones, the Primary Conservation Zone and the Secondary Conservation Zone. Each may be modified depending on surrounding landscapes and land ownership (e.g., woodlands, agricultural land, steep slopes, viewsheds, etc.).
- The Eldred Township Overlay District prohibits structures within 100’ of the NPS owned corridor. Within 1,000’ of the AT Corridor, all non-residential uses are considered conditional uses and require review by the Board of Supervisors with consideration for their impact on the Trail.
- Two important priorities for protecting the natural experience of the Appalachian Trail are minimizing and screening new development in rural locations adjacent to the AT.
- Ridge-top development can be addressed by steep slopes ordinances, site design standards, view protection/scenic overlay districts, or base zoning (e.g., Pittsburgh’s Hillside Zoning District). Consider including site design guidelines and illustrations to address road requirements, lighting, viewsheds, landscaping, site design (e.g., design with topography), and architecture. (See the Hilltop and Ridgetop Recommendations for Ashville, NC for examples).
- Many zoning ordinances contain a separate article requiring all uses to comply with various “performance standards,” addressing noise, light, vibration, and other potential pollutants. Noise limitations are often expressed as a decibel limit at the property line (although this can be difficult to measure and enforce). Lighting specifications can mandate appropriate shielding in order to avoid spillage of light into the night sky and/or adjacent properties and roadways. See User Tips on Regulating Potentially High Impact Uses under Principle 5 below.