Jessup News Post - March 2009

Township Meeting :

The 4 March 2009 meeting dealt mainly with new equipment purchase and rental options, COG services, and SALDO options.

The bids for a new backhoe/loader were opened in the presence of the bidders. A used Case 580M was selected as it was much lower in price and satisfied all requirements.

The advantages of renting a gravel crusher and rental options were discussed.

The town will now conduct it's own building code inspection services under a contract with Building Code Inspectors instead of COG. This action will reduce fees to residents. COG will continue to enforce Sewage codes for the town.

Copies of the county SALDO were obtained last month. A Supervisor met with Bob Templeton to discuss town-county cooperation on use of the county SALDO. The discussion of SALDO options concluded that the town would use the county SALDO rather than form a planning commission and adopt their own. The county planning commission is considering inviting town representatives to working sessions on a quarterly basis.

An engineering company provided their plans for examining potential gas well pad sites in the township along Route 706.

The February NTC meeting was briefly discussed. The NTC was informed of our decision to not zone and interest in withdrawing from the controlling Intergovernmental Cooperation Agreement for Multi-Municipal Planning and Implementation (zoning). They indicated they would review the status of the agreement for the next meeting.

NTC Meeting ( at Choconut ) :

The 19 March 2009 NTC meeting was fairly brief. Bill Stewart noted that there was little current activity of interest to most members and suggested meeting bi-monthly instead of monthly. A majority of the township representatives showed a preference for quarterly meetings and that decision was made. The next meeting will be 18 June 2008 in Jessup.

Liberty Township announced that they had voted to not zone. Bruce Griffis confirmed that Jessup had voted to not zone; he also stated that no decision had been taken on SALDO.

The NTC 2008 Audit reports and the March 2009 Treasurer report were provided. The Treasurer report continues to show $59,639 balance in SALDO-Zoning Funds; this is unchanged since Carson Helfrich returned the funds in December 2008. Ms. Kublo asked whether the towns could use those funds for their own SALDO or other uses.

The answer was interesting. The residual funds are being reviewed to determine how much is DCED funding which must be returned to the State Treasury, and how much is from township matching funds. The matching funds would go back to the towns based on their initial contribution. The initial match contributions were set by a formula involving town revenue and size. The basic match was 70% DCED to 30% Town.

So, some funds may be due to Jessup and the NTC – DCED review should be followed.

I asked Bill Stewart what they had decided about changing the NTC Intergovernmental Cooperation Agreement, since he had taken that action at the February meeting. He deferred to Bob Templeton who informed us that he had consulted Carson Helfrich. According to Carson, the Agreement had never been signed by all the townships.

In other words, the Agreement had never been properly executed in the first place. Bill Stewart suggested any town that had signed and was concerned should rescind the agreement in a town meeting and inform the NTC. This is good advice, and we should take it.

The revelation that the key intergovernmental agreement was never properly executed is amazing. It is equally amazing that the NTC could not answer the question without recourse to Mr. Helfrich through Mr. Templeton.

It also raises the question whether either the Comprehensive Plan or the Zoning Ordinance were ever legally valid since they were put together under the auspices of a Joint Planning Committee which was not properly formed under the unexecuted (and invalid) Intergovernmental Cooperation Agrreement.

This interpretation of invalidity is consistent with Carson's letter of 13 January 2009, in which he states: “This zoning ordinance as now designed can be adopted by any of the NTC municipalities independent of adoption by the others.” Implicit is the need, under the MPC, for a town to form its own planning commission which then reviews the proposed ordinance as a template and adopts it as their own town ordinance.

I suggest Jessup rescind the “Agreement” and inform the NTC by letter that we rescind it, are not interested in a joint SALDO, and want reimbursement of the funds due us from the residual Zoning – SALDO funds balance.

A citizen suggested the NTC hold a public meeting to discuss gas pipeline routes crossing town borders, safety, and minimal land disruption issues. The ensuing discussion covered pipelines along road right-of-ways and who should be in the approval process since there are safety and setback issues as well as landowner property rights involved.

Some supervisors thought they should have supervisor-only meetings before letting the public in on their thinking. Ironically, it escaped them that a citizen raised the issue and much thoughtful discussion came from the citizens. It seems a missed opportunity to improve citizen-supervisor relations, although a better place for these discussions may be the proposed county gas committee.

The Key NTC Intergovernmental Agreement

I have been asked about the key NTC agreement covering zoning and what should be done about it since several townships have voted to not zone. This subject was raised at the 19 February 2009 NTC meeting and should be discussed in future meetings. This post will adress that question directly and reference my earlier blog posts; in particular, the synopsis is useful for those who can't get a copy from their township.

The key NTC agreement is the "Intergovernmental Cooperation Agreement For Multi-Municipal Planning and Implementation". The synopsis is here: Part 1 : NTC Intergovernmental Zoning Agreement- Summary Excerpts. My initial comments are here: Jessup Jottings: Part 2 : NTC Intergovernmental Zoning Agreement. They were written in early January '09 and more recent thoughts are in this post (Jessup News Post - February 2008) summarizing the February NTC meeting.

This key 12 page agreement was established for Joint Planning and Implementation (Zoning) and establishes a "Joint Planning Committee" of elected officials to oversee all actions related to the Comprehensive Plan and any implementing Zoning and land ordinances. In essence, the agreement ties each town to that NTC Planning Committee before they can make or change land ordinances.

Don't get confused by other intergovernmental agreements to create joint planning commissions ( e.g., betwen Rush and Jessup) to follow up on zoning. There's a big legal difference in the MPC between “Committee” and “Commission”. That mistake was made by some at the NTC meeting and caused some confusion. Those "Commission" agreements were not signed and are not at issue.

This agreement was signed by all 12 participating Municipalities and was essential, under the state Municipal Planning Code, to the legality of the NTC Comprehensive Plan which all 12 towns did adopt and sign. It would be essential for Joint Zoning if we were to do that. Being in the agreement is not the same as being in the NTC - Montrose is not participating in the agreement or the Joint Planning Committee, but is in the NTC.

The agreement's status is less clear if some towns decide to zone independently in a coordinated way following the same Joint Comprehensive Plan, while others opt to not zone.

The agreement specifically covers "Implementation " of the joint Comprehensive Plan with the Joint Planning Committee (NOT a "Commission" ) acting to assure towns keep their "implementation" ordinances “Consistent" with the Plan. That could be interpreted to mean any land ordinances, triggering Committee reviews of ordinances by the non-zoning towns.

For towns that are not zoning, it makes no sense to be in the agreement and be required to have their land ordinances reviewed by that joint Committee. It also seems undesirable for the zoning towns to have to go to a committee of non-zoners for approval of changes to their zoning ordinances. So, I think both sides need to reconsider the agreement; terminate it and redo it for those who want to be tied together in joint or coordinated zoning.

The agreement states that a 100% vote is required to change the agreement and 75% vote to terminate it. If a town wants to withdraw on their own, they need to pass a resolution after which there is 1 year waiting period during which the towns stays bound to the agreement ( and I think still a "voting member"). This made sense for Joint Zoning; but not now. The agreement is overtaken by events and should be changed to fit the new facts. The easiest way is to terminate and rewrite it for the willing zoners.

Members of that “Joint Planning Committee" ( elected officials) seem defensive about keeping the agreement in force and their status on it. These options may get discussed at the next NTC meeting. There may be reasons why the agreement should continue; but it seems dangerous for towns to remain in an agreement which seriously limits their freedom of action to make their own land ordinance decisions.

If any forms of joint ordinances or zoning actions are desired in the future, those action should be taken anew and openly.The current zoning debacle has revealed a serious disconnect between the desires of many citizens and their township supervisors. One side feels they are acting in the best interests of their towns; the other side feels their interests have been betrayed to the interests of an unelected regional bureaucracy. Regardless of the merits or justifications on either side, citizens and leaders need a high level of mutual understanding and trust.

Changing this current key intergovernmental agreement will be an important step in that direction. The next step is to reconsider the objectives of the NTC. I doubt that anyone would object to it being an informational forum and a cooperative purchasing group. But, I also doubt that many citizens would endorse it becoming a regional bureaucracy or additional governmental layer. And, unfortunately, that is how many perceive the NTC's role because of the joint zoning effort.

Jessup News Post - February 2008

Township Meeting:

The 4 February 2008 meeting had a significant discussion of zoning,the related NTC Intergovernmental Cooperation Agreement For Multi-Municipal Planning And Implementation, and the proposed NTC SALDO.

After discussion, a unanimous vote was taken to not zone the township.

It was further decided to seek to withdraw from the Intergovernmental Agreement. It requires the township to seek approval of the other 11 municipalities for any land ordinances we want to enact - a condition that is not relevant if we do not zone.

It was decided to investigate other SALDO options including adopting the County SALDO as our own and establishing a planning commission; or establishing a liaison with the County planning commission to improve coordination and input on their decisions. Copies of the County SALDO will be obtained and reviewed.

There was a discussion of obtaining a replacement for the existing backhoe/loader. The decision was to seek bids to do so.

The option of contracting directly with an engineering organization(s)instead of COG for codes and septic enforcement was discussed again with the intent of taking action in the near future to reduce fees to residents.

NTC Meeting:

The 19February2008 NTC meeting was fairly brief. The key items were a discussion of subdivision activity by Bob Templeton and a discussion of zoning and the intergovernmental agreement. Bill Stewart mentioned that Alta Resources may come to the next meeting to discuss their gas leasing and drilling activities. Dave Darrow said that he would be a "Non-Voting" alternate for Franklin Township.

Bill Stewart said there was no report of any township opposed to zoning and he thought all were just talking and no action was taking place. We informed him about the zoning vote in Jessup and Franklin confirmed they had also voted to not zone.

Gene Famolari and Charles Davis, Jessup Rep, raised and discussed the issues about withdrawing from the Intergovernmental Agreement. There was some confusion about whether we wanted to drop from the NTC or just the agreement. Our position was about only the Agreement and this was clarified in the meeting and in a subsequent discussion with Charles Mead.

This NTC meeting had several positives :

Bob Templeton talked about his subdivision summary handout and really endorsed that there is no need for a NTC SALDO based on the number of lots per year for many towns ( e.g. 3/year over 15 years for Jessup.). He said he liked the approach we had discussed about having a Jessup observer attend County planning commission meetings and act as town liaison. He encouraged other towns to consider that.

Bill Stewart tried to defend the NTC's value to one questioner, but could not really point to anything the NTC had done other than getting grants for composting leaf vacuums and improving supervisor relations by regular get-togethers.

I had a long chat with Charles Mead that went from his being angry and convinced I was "misrepresenting" to his understanding my points about what the Intergovernmental Agreement really said, why it needed change and how to do so. We ended up cordial and, perhaps, he will rethink his position.

The key is that the “Agreement” must be updated to do what he and others want to do for the “zoners”. To Change requires a 100% agreement of 12 towns. To Terminate requires only a 75% vote. It is easier to terminate and redo for the willing than to be hard-nosed and force us to withdraw over a year period - during which we are not likely to vote for their needed change.

The issue of changing the intergovernmental agreement is now on the table and should get follow-up in the next meeting. It's important for non-zoners to drop out of it; and that can be done without leaving the NTC. That action gives us freedom from more regulatory efforts by the "joint planning committee" which has a lot of authority ceded it by the towns in the agreement.

On the not so positive side :

Some of the "inner" clique of NTC supervisors are unhappy and may try to find a way to reverse the events or prevent withdrawal. We should be prepared for more discussion on March 19.

Money may be a factor - the budget shows $59.6K tied to SALDO-ZONING. Perhaps they can only keep it if they spend for those items. That could be a terrible incentive to do "wrong" rather than to return the funds. If so, some open discussions and negotiations with DCED could lead to a win-win if approached correctly.

Facing The Gas Rush With Flexibility Not Zoning

Last month, the citizens of Franklin Township polled themselves about zoning. Their poll showed a 65% response rate with 87% opposed to zoning. That response was more than double the response to the original NTC survey of 2003 with a very different outcome. With time and awareness, people had become far more interested and opposed.

Their town leaders should listen to their views and act accordingly. Indeed, all towns should make a comparable assessment before voting any new regulation so dramatically different and rigid as zoning.

There are benefits and costs to zoning. A major cost and risk is rigidity of zoning ordinances, especially those based on a comprehensive plan that never considered natural gas exploitation. The “Gas Rush” is new and gas exploitation is likely to be the primary driver for our economy.

State code does not allow zoning ordinances to be changed rapidly or frequently, with even less flexibility for joint ordinances or individual ordinances subject to a joint planning commission.

We need to understand the real changes facing us and be able to adapt quickly and flexibly. Consider this excerpt from the Penn State website on Natural Gas Impacts - Local Government Information: "Many local governments will need to greatly expand and upgrade their comprehensive community planning efforts. The fast pace of gas drilling--and all of its related activities--means planning has to be done on a continuous, daily basis. Every new well drilled changes the community a little bit. Once-a-month meetings of the planning commission can’t keep up with the change. New thinking about how to plan for gas exploration must also exist."

There are alternatives to zoning that can meet local needs and provide for flexible county-town partnerships. For more facts, references, and ideas on gas and zoning, along with a high-growth non-zoning success story, visit this website at http://jessupjottings.blogspot.com/.

To meet the uncertainties of the gas rush, we need flexibility not rigid zoning based on a plan already overtaken by events.

( This post also appears as a "letter to the editor" in the 28Jan'09 editions of the Susquehanna County Transcript and the Susquehanna Independent.)

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.

Part 1 : NTC Intergovernmental Zoning Agreement- Summary Excerpts

In an earlier post , I commented on the October 22,2008 version of the NTC Zoning Ordinance and concluded that it was not desirable on substance from a citizen or landowner standpoint. Some aspects still confused me because I did not know how the townships had agreed to administer the ordinance. I have now read a version of that agreement and can summarize it in this post. It's long and deals with the agreement as it is. My comments will be in a second post.

This version of the NTC Intergovernmental Cooperation Agreement for Multi-Municipal Planning and Implementation was signed by the participating townships and boroughs in late 2007 and/or early 2008. Montrose Borough has its own zoning code and did not participate. The key summary excerpts follow.

Section 1 : establishes the NTC Planning Committee (the “Committee”).

Section 2 – Purpose of the Committee : “The Committee is established to develop a Multi-Municipal Comprehensive plan for the geographic area encompassed by the Participating Municipalities ( the planning area) pursuant to MPC Article III and Article XI, and to implement the land use management provisions of the adopted Multi-Municipal Comprehensive Plan by the adoption and administration of zoning ordinances and subdivision and land development ordinances.”

Section 3 – Powers of the Committee : three “Powers” are provided - “A” provides the power to develop the plan; “B” provides the power to conduct its business and to obtain grants and funds.“C” , “Multi-Municipal Comprehensive Plan Implementation” states “The Committee is empowered to conduct reviews and make recommendations as authorized by this agreement for the general consistency and fair share considerations of certain zoning ordinances and zoning map amendments proposed by any Participating Municipality; and for any development of regional significance and impact.”

Section 4 – Organization : Establishes one voting member and one alternate for each of the 12 Participating Municipalities ( Montrose Borough is a member of the NTC but not of this Planning Committee). Voting and alternate members must be elected officials of their municipality.

Sections 5 and 6 – Discusses meetings public participation and consultation.

Sections 7 to 11 – Discusses development, review, and approval of the Plan, culminating with each municipality voting on the Plan per the requirements o the MPC. Upon approval,”The Multi-Municipal Comprehensive Plan shall become the comprehensive plan for that Participating Municipality.”

Section 12 – Committee Responsibilities After Plan Approval : In addition to monitoring, reviewing, and updating the plan, “The Committee shall have additional responsibilities for implementing the Multi-Municipal Comprehensive Plan as more fully set forth in the Implementation Agreement.”

Section 13 to 14 – Initial Funding and Financial Policies : Agrees that “the Participating Municipalities will make the initial payment as previously committed by resolution of each governing body by May 15, 20003.” Establishes policies and the fiscal year as 1 October to 30 September. Allows one municipality to provide financial management as an in-kind contribution.

Section 15A – Voluntary Withdrawal : sets four conditions apply to the municipality :

1. Submit written notice;

2. Conduct a public hearing to solicit comment;

3. Pass a resolution authorizing withdrawal;

4. “The withdrawal shall be effective one (1) year from the adoption of the resolution authorizing the withdrawal. The one-year waiting period will allow for the necessary revisions of the Multi-Municipal Comprehensive Plan and zoning ordinances and zoning maps.”

“Any municipality authorizing withdrawal from the Committee shall be bound by the requirements of this Agreement, including compliance with all subdivision and land development, zoning and comprehensive plan amendment review processes, even during the one-year waiting period, except as may be permitted herein.”

Section 16 – Local Planning and Zoning : States that each Municipality shall retain authority and responsibility for enforcement and administration of ordinances except as established by the Agreement. Establishes four new local Joint Multi-Municipal Planning Commissions for 10 members and continues the individual ones for Liberty and Silver Lake. Establishes five Joint Zoning Hearing Boards “in accord with S904 of the MPC”.

Sections 18 and 19 – Amendment and Execution : “ To enter into this Planning Agreement, the governing body of a Participating Municipality must adopt an ordinance approving this planning and the chief elected official of such Participating Municipality must execute this Planning Agreement, with the attestation of of the secretary or assistant secretary of such Participating Municipality, and the seal of the Participating Municipality affixed thereto. Once done, it requires a unanimous vote for amendment of the Agreement, which shall remain in effect until terminated by written consent of at least 75% of the Participating Municipalities.

Section 20B – Municipal Land Use Commitment : “Each Participating Municipality agrees to maintain all land uses and housing types and densities as provided in the initial zoning ordinance and zoning map adopted by the Participating Municipality unless an amendment to the ordinance or map is authorized in accord with the procedures in this Agreement.”

Section 21 – Ordinance Consistency and Review Process : Establishes the process for authorization of all Municipality proposed zoning text or map amendments by the Committee. A two-thirds (2/3) vote of all the Participating Municipalities is required before a Municipality can enact its proposed amendment. If the vote is denied, the Committee will tell the Municipality what changes are needed for approval. The Municipality may agree to the changes and resubmit it for approval; or it may seek to amend the Agreement; or it may initiate withdrawal from the Committee.

Section 22 – Review of Developments of Regional Significance and Impact : Requires a Municipality to bring all such “Developments” to the Committee for review and comment. Terms are defined and a lengthy review process is described which culminates with the Committee providing “advisory only” comments for the Municipality to consider before exercising its power to approve the development.

Section 23 – Specific Plans Review and Adoption Process : “As authorized by Section 1106 of the MPC, the Participating Municipalities shall have the authority to adopt a Specific Plan for the systematic implementation of the Multi-Municipal Comprehensive Plan for any nonresidential area covered by the Multi-Municipal Comprehensive Plan. Special plans shall also be governed by the following:” The review process mirrors that of Section 21 above with the same options for compliance or withdrawal.

Section 24 – Regional Legal Defense Fund : Each Municipality agrees to appropriate funds annually to “assist participating municipalities with litigation related to implementation of the Multi-Municipal Comprehensive Plan”.

Section 25 – Annual Report : Each year the Committee shall prepare an annual report and send a copy to each participating municipality and to the Susquehanna County Planning Commission.

A Non-Zoning Success Story

I believe the NTC Zoning Ordinance is an unnecessarily rigid set of regulations based on a comprehensive plan that is already overtaken by events in Susquehanna County.

Some argue that we need zoning to protect us from the future. That might be believable if the future only would unfold the way the planners anticipate.

However, we now we face a "Gas Boom" which was not in the plan and which will impact our growth in ways driven by geology rather than a "plan". Since we can't predict the growth pattern accurately, it makes sense to be very flexible in adapting to it while preserving our rural lifestyle. Rural lifestyle means many things; to me, a big part is freedom from intrusive government controls that inhibit enjoyment of the present and restrict flexible adaptation to the future.

If inflexible zoning based on a comprehensive plan is the wrong solution, where can we look for a better approach? How about a place that has rapid growth with low costs and good living standards? Houston, Texas, is the non-zoning success story that planners learn about but don't tell you about.

Here are some excerpts from a recent article on this non-zoning success story :

"As cities across the nation reel from the steepest housing market decline since the 1930s, Houston’s real estate market is surprisingly strong. While new housing sales have fallen dramatically, they haven’t fallen as far or as steeply as in other cities across Texas or the nation. At least part of this resilience is due to the market-driven nature of the city’s land development process, including a real-estate market unencumbered by zoning.

More than 2 million people live within the city’s borders while another four million round out the metropolitan area. Houston may well emerge as the archtype city of the 21st century. Urbanist Joel Kotkin used the term “Opportunity Urbanism” to describe the city in a study for the Greater Houston Partnership, pointing out that Houston’s entrepreneurial drive, affordability, tolerance for diversity, and willingness to adapt to changing economic circumstance may well propel it to become the next U.S. megacity.

Underappreciated in the city’s success may be its uniquely flexible and adaptable approach to land-use regulation. Unlike every other major city in the US, Houston has shunned zoning regulation, preferring to leave choices about land uses up to the real estate market."

Sounds pretty good. But did it happen by chance with no controls? Not really:

"Despite the lack of municipal zoning, land development is not completely unregulated. Houston has adopted several statutes to set standards for infrastructure, parking, building setbacks, and building location. More importantly, in many parts of the city, private deed restrictions that limit future land uses run with the land, not the property owner. Nevertheless, substantial amounts of land are unrestricted by private deed, and property owners aggressively promote the flexibility and economic opportunity resulting by the lack of regulation."

In my "Zoning 101" post, I suggested alternatives to the NTC zoning based on township ordinances that set performance standards and allow free use of land provided those standards are met. It seems that Houston has been very successful in doing just that.

Our needs, priorities, and ordinances may be different, but we can benefit from Houston's example by keeping our freedom to "aggressively promote the flexibility and economic opportunity resulting by lack of regulation."

Comments on NTC Zoning Ordinance of Oct '08

This post records my initial comments on the NTC Public Review Draft Zoning Ordinance dated October 22, 2008. This version of the ordinance replaces an earlier one. I do not know if it has been formally submitted to the County Planning Commission for review preliminary to holding Hearings and advertising for township voting. Comments follow:


1) The document is 150 pages reduced from 175 pages by removal of Section on Signs. While a number of good changes have been made, it is still too long, complex and burdensome.

2) The arbitrary road setback standards are likely to make many structures Non-Conforming (NC) with future approval or sales problems for the owners. The NTC has not documented or determined how many of a town’s structures are affected by a 30 foot setback vs a 20 or 10 foot setback (e.g. would 10 foot setback reduce NC buildings from 30% to 3%?)

3) The ordinance continues to require a permit for ALL activities except farm ones specifically protected by PA Law. This is excessive and serves mainly to collect zoning officer fees.

4) There should be no need for ZO permits for any Accessory Use; as an example a private swimming pool require a ZO permit as well as construction permit ( Two COG fees and application forms).

5) The PA Municipal Planning Code (MPC) cites Non-Impact home occupations as "permitted by right"; but this ordinance still requires you to file an application and get a ZO approval. There should be no requirement to get a permit.

6) In the Rural Agriculture District, there are 50 Principal Uses and 24 Conditional uses listed; but 18 Principal Uses (marked by *) become Conditional if they are within 300 feet of the border of a property with a residence on it. So, for many of these, a more lengthy and difficult Conditional approval process will be required (e.g. if someone wanted to repair tractors or chain saws in and old barn). The 300 foot rule means that a “phone booth” size business would need over 7 acres if it were dead center in a circle; more likely sites and borders would require more acres. If a home occupation is not Non-Impact, it becomes Conditional rather then Principal. So basically, there are really only 32 Principal Uses and 43 Conditional Uses.

7) At a Minimum, all accessory and non-impact home occupations should be allowed without ZO permits. Other home occupations should require no more than a ZO permit as a Principal Use. This would save considerable time and cost.

8) A better solution would be to allow all Principal Uses to be conducted without a Zoning Officer Permit, thus reducing the costs to both the Town and the residents. If a neighbor complained about such a "Use", a ZO could investigate then and either forbid or permit the disputed use. This reduces the excessive costs and burdens of processing undue applications.

9) All towns now have 3 “Overlay Districts”. Why?? Zoning should not be needed to protect Floodplains. Residential overlays seem likely to create strange patterns of scattered residential areas and possibly with an implicit need to upgrade services. It would be better to let developers create their own homeowner associations and provide the services rather than put the towns on the hook for policing zoning compliance. Since Jessup did not have any Overlay District initially, there should be none now. Eliminate these for Jessup on S-401.

10) There is no initial set of fees. These should be made public.

11) There is no mention of how the individual towns interact with each other or with the NTC as an overall Joint Planning Commission (is it still?). Nor is there mention of the Intergovernmental Agreements which may control aspects of administration. If Jessup and Rush are to have joint planning commission and zoning hearing board, it should be spelled out including how leadership and membership will be determined ( e.g., rotation between towns? members from each town.) These details are important to residents. Does the NTC continue as a joint planning commission with overall authorities under the MPC?

12) A joint-municipality zoning ordinance cannot be changed as easily as a single town one. It may require agreement by all municipalities to allow a curative amendment desired by one. If one wants to withdraw, it takes at least 3 years. That’s a long time and much more cost and effort than to join later to a multi-town zoning arrangement. Since we don’t need this now, why join this multi-town ordinance?? Options are to not zone; to zone later with NTC; or to develop a more flexible zoning or ordinance arrangement perhaps with only one other town (e.g.Rush).

13) How do we get enough well-intentioned, knowledgeable volunteers for the township planning commissions and zoning hearing boards? If 5 are needed for each of 10 towns, that’s 50 people compared to 9 that now serve on the County planning board. These people can be reimbursed for their services per the MPC; do we plan to? Where would the funds come from? Is this a wise or best use of the town’s funds?

14) The Section on Non-Conformities advises resident to “register” their non-conformities with the zoning officer. But it is clear from many meetings that large numbers of residents do not know about this zoning proposal. Given the unusual magnitude and impact of this on residents, is it reasonable to expect them to register?? It seems to me, the NTC has chosen words to provide a good case that allows them to overturn subsequent appeals for “grandfather” protection by unwary residents. My assessment is based on paragraph 4 of the “Registering Nonconformities” section, page 9, of the PA “Zoning Officer” Handbook which recommends this language as making it “difficult for the landowner to claim a right to a nonconforming status”. Do we really want to make it “difficult” for our landowners to claim their rights based on their unawareness of the intricacies of the zoning law?

15) We are told that the NTC Zoning Ordinance is in conformance with the NTC Comprehensive Plan which conforms to the County plan and all of that is good and adds legal strength. That’s nice, but is any of this planning really valid and timely for our current conditions in Jessup or Susquehanna County?

I think not! It is not because it does not anticipate or plan for the advent of natural gas exploitation as a potential major factor. To adopt a very inflexible set of joint zoning rules when faced with major unanticipated changes is not wise. The potential “Gas Rush” is not a reason to zone inflexibly for protection from changes that are no longer the most likely. Instead, we should deal with the future as it is coming at us - with flexibility by enacting specific performance ordinances for our town.

NTC Zoning 101

I prepared a simple one page talking paper as an introduction to the basics of the proposed Northern Tier Coalition (NTC) Zoning Ordinance for a local gathering. While I am against the proposed ordinance, this quick summary is pretty even-handed. It raises the basic trade-off of zoning costs vs. benefits and suggests the alternative of using specific performance ordinances. You can find all the official NTC information here . Talking paper follows:

Northern Tier Coalition (NTC) consists of 10 Townships and 3 Boroughs

* Cooperation and State Funding Grants

* Produced Comprehensive Plan based on County Plan

* Draft Zoning Ordinance : Basically same for all Towns but Must be voted by Each.

If enacted by a Town, the Zoning Ordinance applies and can be altered by Town later. These changes may be done by ordinance publication and enactment with hearings. If a Town does not enact, it can join later by holding hearings and voting an ordinance.

Zoning creates districts and specifies what uses can be made of land in each zoned District. NTC Ordinance has 4 Districts: Rural Agricultural (RA), Residential (R), Village Commercial (VC), Commercial Industrial (CI) with Lake, Residential and Floodplain Overlay Districts in all towns.

Zoning can protect some landowners from some undesirable uses on nearby properties. It does this by controlling and restricting what all landowners can do with their property.

So, does zoning benefit you enough for the loss of your property rights and its costs?

Each District has a List of Principal Permitted Uses, Conditional Uses, and Accessory Uses. All non-farm Uses require a Zoning Officer Permit and fee; all Secondary and some Principal Uses may entail longer applications and hearings* to get permission from the Governing Body.

There are Standards and Setbacks for Buildings and for uses. If your existing Land , Use, or Buildings do not meet these standards, they are “Non-Conforming”. Non-Conforming uses and structures are “grandfathered” – allowed to continue and to be repaired. But there are restrictions on what can be done to modify, alter, or extend them if they are damaged or you want to change them or use them for a different purpose. These issues require hearings* and permission from the Governing Body.

As an example, any building within 30 feet of the edge of a road right of way (about 47 feet from center of a dirt road) is Non-Conforming. It is not clear that any attempt was made to determine how many existing buildings would become Non-Conforming by this standard. If it is a high percentage of a town’s buildings, there may be a lot of work and expense to get permits for changes. If you have a Non-Conforming Building or Use, the NTC advises that you “register” it in advance with the Zoning Officer (with fee?).

There are administrative costs in addition to the fees. Each township is expected to have at least 5 volunteers to serve on their Planning Commission and Board of Variance. That is over 50 just for the NTC compared to 9 on the County Planning Commission for all 42 municipalities. Can we find enough fair and willing volunteers for these appointments?

There are alternatives to Zoning for neighborhoods or towns that want more protection from undesirable land uses. They could make binding covenants or performance-based ordinances that establish maximum effects (traffic, noise, water runoff, odor, etc.) that are allowed in an area without dictating specific uses. This eliminates the long lists of permitted uses, fees and approval processes. Everyone does not pay in advance to do what they can do now for free. Only those who exceed the limits get penalized.

* Hearings may entail the Planning Commission or their appointed Hearing Officer.