October 25, 2004
By Joel Buckley
The LDARPG Plan is bad news for Conewago. It will bring monster warehouses to Conewago Township along with monster warehouse traffic problems. It will trigger an explosion of higher density residential development. It will change the character of the community's residential area from traditional large lots in a rural setting to crowded tiny lots like Derry Township's Southpoint. Implementing the plan will likely strip the township of local control over both planning and zoning.
For all these reasons, I believe Conewago would be better off controlling its own destiny through a separate township comprehensive plan. Using the regional plan as a starting point, I believe such an effort would actually be less than that which would be required to implement the proposed regional plan. (A regional plan will require either Joint Zoning or extensive revision of Zoning Ordinances in all four municipalities. This will be an expensive and extensive undertaking. Practically speaking, this will require giving up township control of planning and zoning to a regional board.)
There is one benefit that could be gained with a regional plan that cannot be done with a township plan. A regional plan can free a township from exclusivity challenges requiring zoning for all uses within the township. If they are bold enough, the Supervisors could take all land currently used for agriculture - even though it may now be zoned residential, commercial, or industrial - and permanently rezone it for agricultural use only. While the school board may be disappointed that it won't get any monster warehouse tax revenue, this would be offset by no more residential development in Conewago either. And the people of Conewago would get what they have said they would most like - to keep Conewago the way it is now!
Here is a summary of the impact of the proposed LDARPG plan on Conewago Township.
The LDARPG Plan would provide one major benefit to Conewago Township: the redesignation of almost 60% of current township residential zoning as agricultural or rural. This would help preserve the agricultural nature of the township and stop residential sprawl. However, it also has two very negative changes: 1) it significantly increases the density of residential zoning, and 2) it significantly increases industrial zoning.
I recommend that the Board of Supervisors not approve the plan until those negative changes are removed.
Note: the Conewago Township Planning Commission reviewed the LDARPG plan at a public meeting on February 2 and declined to recommend its adoption. Update: on March 29 the Planning Commission recommended that the plan be rejected.
The driving force behind the Lower Dauphin Area Regional Planning Group has been the Lower Dauphin School Board. The School Board wants reduced residential development (to slow the growth of student population), and increased commercial/industrial development (to broaden the real estate tax base).
News reports have stated that Lower Dauphin (LD) has the highest percentage of residential land use in Dauphin County. This is misleading. Many districts have a higher percentage of residential land use than LD. Except for Hummelstown, most of LD is farmland or vacant - not residential. The plan's Map 2.7 - Existing Land Use shows that Conewago is over 85% farmland or vacant. However, since so much land is undeveloped, the small part in residential use represents over 70% of LD's real estate tax base. LD has relatively little commercial and industrial development. Farmland and woodland are assessed much less than residential land. Special tax abatement programs reduce their taxes even further. For example, a farm owned by the Milton Hershey Trust (the largest landowner in the township) assessed at $300,000 actually only pays taxes on $30,000 under the "Clean and Green" program.
Changes proposed under the plan are based on using real estate taxes as the major source of financing for school districts. Major tax reform proposals being advanced right now would shift the burden to income taxes, casino taxes, or sales taxes. If any of these proposals is adopted, the economic justification for the plan's proposed zoning changes could disappear.
Of the four communities bordering Conewago - Derry, Londonderry, South Londonderry and Mount Joy Townships - only Londonderry is included in the Regional Plan. Aside from the impact on school district finances, what goes on in Derry or Mount Joy Township is more likely to affect Conewago than what happens in Hummelstown, South Hanover or East Hanover.
Conewago has shown the slowest growth of all the municipalities in the district. Between 1990 and 2000, Conewago's population increased by less than 1%. Lower Dauphin as a whole increased nearly 8%. East Hanover increased by over 16%. There are currently more housing units being built in two new developments in South Hanover than exist in all of Conewago. (South Hanover is in the school district but not in the plan.) To reward Conewago's restrained growth, the school board would like to turn Conewago farmland into an industrial park to pay for unrestrained growth elsewhere in the district.
While doing its part to meet the educational needs of its residents is an appropriate consideration in revising its comprehensive plan, it should not be the only one. Conewago should not be asked to do more than its fair share. We should not sacrifice the quality of life in Conewago in an attempt to do so.
The proposed plan would rezone almost 60% of the area of the township currently zoned residential as either agricultural or rural. This would help preserve the agricultural nature of the township and stop residential sprawl. I support this change.
The Devil is in the Details!
In the proposed plan, almost all of the residential zoning in Conewago would be in the northwest corner of the township from Ridge Road north and Old Hershey Road west.
Map 2.12 - Existing Zoning shows most of this area is zoned "Low Density Residential".
Map 3.1 - Draft Land Use Plan shows most of this area is zoned "Low Density Residential".
So, no big change here, right? Wrong!
Look at the definition (page 2-37) of "Low Density Residential" for the existing zoning map. The term used by the Zoning Ordinance is actually "Residential Country". Minimum lot size is 30,000 sq ft, over two-thirds of an acre. Continuing agricultural use is encouraged.
Now look at the definition (page 3-6) of "Low Density Residential" for the new plan. Minimum lot size is one quarter acre - 10,890 sq ft. No mention of continuing agricultural use.
LDARPG calls both of these "Low Density Residential", even though the new plan would allow almost 3 times as many houses per acre! This is a bad idea and should be rejected.
This change severely undercuts the goal of reduced residential development. Not only would the change allow over 2.75 times as many houses to be built in this area, I believe if the change were made, development would be much more likely to occur. In the past 10 years the only significant development in the township has occurred in the "Residential Suburban" zone (what the plan calls "Medium Density Residential") which allows single family lot sizes as small as one-third acre. Under the new plan, the so-called "Low Density Residential" (1/4 acre min) could allow even more houses than the old "Medium Density Residential" (1/3 acre min). Developers find the small lot sizes much more profitable and are much more likely to develop. This will put a heavier traffic burden on our streets and likely lead to school overcrowding as well.
In December, 1998, the Conewago Planning Commission unanimously recommended rejection of a request to rezone 140 acres from "Agricultural" to "Commercial" for a warehouse. It would have been over 1 million sq ft, with 200 tractor trailers per day and traffic from 200 employees operating 24 hrs per day. The rezoning request was then withdrawn.
Now the LDARPG would rezone this area and more as "Commercial/Business Park". This change would allow a warehouse bigger than the one previously rejected to be built without needing approval of any variances by the Board of Supervisors.
The previous "Wholesale-Manufacturing Zone" (labeled "Industrial" on Map 2.12) is now part of the new "Commercial/Business Park Zone" (which includes light industrial uses). The area zoned for industrial use in Conewago Township would be increased 4 to 5 times!
The economic benefit of industrial development often turns out to be much less than originally promised. The warehouse orginally planned for Conewago was built in North Londonderry Township instead. $7,000,000 in our state tax money was spent to help pay for a road extension. When two new warehouses were built in the same area for General Mills, the developers demanded and received a Tax Increment Financing deal. They pay only half the taxes that residential taxpayers and existing businesses pay. Over $2 million in taxes is diverted to pay for roads and sewer construction to the warehouses. An additional $1-2 million in state taxes will be spent on roads for the two new warehouses.
There is no shortage of land available for industrial developments. Developers commonly demand and politicians quickly oblige with tax give-aways to bring them in. Conewago will be the loser if it falls into that same trap.
The proposed rezoning in 1998 was a bad idea then.
Expanded Commercial/Business Park zoning under the LDARPG plan is a bad idea now.
The proposed Lower Dauphin Area Regional Comprehensive Plan for Conewago Township should not be approved without removal of the higher density residential zoning and expanded industrial zoning.
Following is a discussion of some legal concerns about the plan.
In a crunch, planning and zoning issues end up in lawsuits. A determined developer will sue to get what he wants, and if the municipality has not legally dotted the "i"s and crossed the "t"s in its planning and zoning processes, he will often succeed.
I believe the plan raises serious legal concerns. This includes the question of the legality of the plan, and also consideration of what comes next. Let's consider some specifics of the Pennsylvania Municipalities Planning Code (MPC).
The LDARPG clearly recognizes that the plan is an illegal non-contiguous Multi-Municipal Plan. Representative Marsico introduced legislation, House Bill 796 to allow noncontiguous communities that are part of the same school district - such as those communities in the Lower Dauphin School District - to pursue joint planning efforts. This bill passed the House in July, but to my knowledge has not yet been enacted into law. (Editor's Note: the bill passed the Senate in October.) So such plans are currently illegal. If and when it is enacted into law, it will be legal to adopt such a plan in the future. But I believe any plan adopted before the effective date of such legislation will have no legal validity. Hummelstown, East Hanover, and Londonderry will have to repeat the whole plan adoption process: public hearing, legal advertising, resolution of adoption. The early adoption efforts are a complete waste of time and money!
Could the adoptions of the plan be considered as amazingly similar individual municipal plans since they are clearly illegal as a Multi-Municipal plan? No. Besides the fact that this would be an obvious fraud, as individual municipal plans they would not pass muster for being exclusionary.
Pennsylvania's land use law, a combination of the MPC and court decisions require each municipality to plan and zone for all uses - all categories of residential, industrial, commercial, institutional uses, as well as the necessary transportation, water and sewer infrastructure, and, ultimately, schools to accommodate projected growth. Court decisions sustain "curative amendment" challenges to local ordinances if they find that a zoning ordinance does not adequately provide for a proposed use and give site-specific relief to the landowner regardless of local zoning.
There are theoretical benefits to a multi-municipal plan. One real one is the expansion of territory over which the zoning can be challenged for being exclusionary or failing to provide fair share. But the costs to achieve that are significant: revision or replacement of all zoning and subdivision ordinance and loss of local control over zoning and planning.
Joint Zoning appears to provide greater protection, specifying the entire region of all the municipalities. The No-Joint Zoning option qualifies this with "within a reasonable geographic area". Concievably a developer in Londonderry told that a particular zoning area is only in East Hanover could challenge the zoning as being outside a reasonable geographic area. The Joint Zoning option has been available for quite some time but has been rarely adopted. Also a municipality cannot withdrawl from a joint zoning agreement for at least three years after adoption.
For individual municipalities, the comprehensive plan is merely advisory. The Supervisors can adopt zoning that is inconsistent with the plan.
In the case of multi-municipal plans and implementing ordinances, general consistency will be required by the courts in reviewing challenges to an ordinance because of Section 1104(1), requiring implementation agreements to establish a process for conforming ordinances to the plan within two years. Further, the judicial review provisions in Sections 1006-A (b) and (b.1) require ordinances to be "consistent" in the case of a joint zoning ordinance and "generally consistent" in the case of a multi-municipal plan with separate implementing ordinances in order for the court to consider the availability of uses in the region of a plan.
So adopt the plan and we're done, right? To receive the benefit of protection from exclusionary zoning challenges without joint municipal zoning, the plan requires that all zoning ordinances in all the municipalities be made and administered in a generally consistent manner.
Conewago has spent over two years working on two zoning related ordinances: 1) the Property Maintenance Ordinace and 2) the Sexually Oriented Business Ordinance. To implement this plan Conewago and the other three municipalities would each have to revise all their zoning ordinances to be generally consistent. Can you imagine that being done with 4 planning commissions, three boards of supervisors and a borough council? Think of the time and expense and logistical difficulties in accomplishing that.
Realistically, the only way it will be accomplished is to surrender local control of making zoning ordinances consistent to the regional planning group and its outside consultants. Say good-bye to individual townships having any say over zoning in the future.
Now technically, Conewago could continue to restrict smut shops to the Industrial Zone. Under the Plan, Conewago will not have an Industrial Zone, only Commercial/Business Park. East Hanover does have an Industrial Zone, so the ordinance would require any Sexually Oriented Businesses in Conewago to locate there. Makes sense, near the casinos. I'm not sure the citizens of East Hanover will recognize their civic duty in this matter.
