Part 2 : NTC Intergovernmental Zoning Agreement

This post continues the previous one by adding my commentary to the excerpts provided in that post. Basically, I believe the the "Agreement" creates a serious restriction on the ability of a township to alter the Zoning Ordinance to meet township needs - in addition to the undue restrictions of the zoning ordinance on citizens' ability to use their land freely.

The Intergovernmental Cooperation Agreement for Multi-Municipal Planning and Implementation (the "Agreement")establishes a Joint Planning Committee for development of a Multi-Municipal Comprehensive Plan and its implementation by SLADO and Zoning ordinances. It then declares that Plan to be the Municipal Comprehensive Plan of each municipality which approves it. The Agreement cites a 1-year waiting period for withdrawal from the Agreement as dictated by the Municipal Planning Code (MPC). It does not address the requirements of the MPC for amendment or termination of a Multi-Municipal zoning ordinance, which are more restrictive and require a 3-year period for termination or withdrawal. A single Municipality zoning ordinance is much more easily changed and terminated.

The question is whether the resulting Zoning Ordinance will be treated as a single Municipality ordinance or as a Multi-Municipality ordinance. The new Section 400 of the 22OCT 08 version of the Ordinance refers to the MPC and states the case that the Participating Municipalities are acting in cooperation while zoning independently, not jointly. It seems the NTC intent is to create a hybrid form of individual zoning ordinance requiring 2/3rds of the participating municipalities to agree on changes rather than 100% for joint zoning. The NTC Committee exercises the same control over the individual municipality actions as it would in a joint ordinance based on determinations of consistency.

I am not a lawyer, but the “Agreement” and “Ordinance” with their processes and procedures for amendments and approvals read like a “joint” endeavor in substance with qualifiers to soften the “joint” MPC requirements. Perhaps that is legally sufficient to establish cooperative individual zoning rather than joint zoning under the MPC, but I would want a strongly written legal opinion to that effect since the MPC is much more restrictive of municipality freedom of action under joint zoning.

If it is determined to be a “Joint Zoning Ordinance”, then Article VIII-A of the MPC applies. Specifically, S808-A(c) states “No municipality may withdraw from or repeal a joint municipality zoning ordinance during the first three years following the date of enactment.” And S809-A(c) states “No amendment to the joint municipal zoning ordinance shall be effective unless all the participating municipalities approve the amendment.” If unanimous agreement is not reached, the only recourse is for the municipality to repeal their zoning ordinance in a 3-year process.

While cooperative individual zoning per the “Agreement” is less burdensome, a municipality is still locked into a very inflexible process requiring a 2/3rds vote of all participating NTC municipalities to approve a change to their ordinance and 75% vote to change the Agreement itself with a 1-year waiting period for repeal or withdrawal. Once a change or curative amendment is made, another cannot be made for 36 months per the MPC S609.2.

Two additional issues need to be raised and answered : First, per Section 13, there must have been earlier agreements and resolutions going back to 2003 to set initial funding. What do these agreements and resolutions say and when were they made? Did any earlier or subsequent agreements change or add substance to this agreement version? Second, Per Section 19, there is a very specific process of ordinance enactment and attestation by each municipality to “enter into this Planning Agreement”. When was this done by each municipality and are the records available?

Finally, a Municipality that does not want to be locked into this rigid process, subordinating it's decision authority to a 2/3rds vote of other municipalities, should withdraw from the “Agreement” immediately. It can then explore the option to be a member of the NTC that is not participating in the Comprehensive Plan and Zoning Ordinance – just as Montrose Borough is doing.