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                                                       PRINTER'S NO. 298

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 291 Session of 2005


        INTRODUCED BY CONTI, TOMLINSON, THOMPSON, RAFFERTY, MUSTO,
           PILEGGI, RHOADES, WOZNIAK, COSTA, KITCHEN AND ERICKSON,
           FEBRUARY 15, 2005

        REFERRED TO LOCAL GOVERNMENT, FEBRUARY 15, 2005

                                     AN ACT

     1  Amending the act of July 31, 1968 (P.L.805, No.247), entitled,
     2     as amended, "An act to empower cities of the second class A,
     3     and third class, boroughs, incorporated towns, townships of
     4     the first and second classes including those within a county
     5     of the second class and counties of the second through eighth
     6     classes, individually or jointly, to plan their development
     7     and to govern the same by zoning, subdivision and land
     8     development ordinances, planned residential development and
     9     other ordinances, by official maps, by the reservation of
    10     certain land for future public purpose and by the acquisition
    11     of such land; to promote the conservation of energy through
    12     the use of planning practices and to promote the effective
    13     utilization of renewable energy sources; providing for the
    14     establishment of planning commissions, planning departments,
    15     planning committees and zoning hearing boards, authorizing
    16     them to charge fees, make inspections and hold public
    17     hearings; providing for mediation; providing for transferable
    18     development rights; providing for appropriations, appeals to
    19     courts and penalties for violations; and repealing acts and
    20     parts of acts," providing watershed zoning cooperation among
    21     adjoining municipalities.

    22     The General Assembly of the Commonwealth of Pennsylvania
    23  hereby enacts as follows:
    24     Section 1.  The act of July 31, 1968 (P.L.805, No.247), known
    25  as the Pennsylvania Municipalities Planning Code, reenacted and
    26  amended December 21, 1988 (P.L.1329, No.170), is amended by
    27  adding an article to read:

     1                           ARTICLE VIII-B
     2                       Joint Watershed Zoning
     3     Section 801-B.  Definitions.--The following words and phrases
     4  when used in this article shall have the meanings given to them
     5  in this section unless the context clearly indicates otherwise:
     6     "Department," the Department of Community and Economic
     7  Development of the Commonwealth.
     8     "Municipality," a municipality as defined in section 107 of
     9  this act, excluding counties.
    10     "Watershed," a watershed or subwatershed identified and
    11  approved by the Department of Environmental Protection as an
    12  identified subdivision of a larger drainage area in this
    13  Commonwealth which larger drainage area is designated either
    14  with an eight-digit hydrologic unit code by the United States
    15  Geological Survey or as a subbasin in the Commonwealth's State
    16  Water Plan.
    17     Section 802-B.  Intergovernmental Cooperation.--(a)  To
    18  further the purposes set forth in subsection (b), two or more
    19  municipalities located wholly or partially within the boundaries
    20  of a watershed may utilize the authority granted under 53
    21  Pa.C.S. Pt. III Subpt. D (relating to area government and
    22  intergovernmental cooperation) to enter into an agreement which
    23  shall identify the common watershed and each participating
    24  municipality's intention to adopt or amend a zoning ordinance to
    25  create a joint watershed resource protection overlay district in
    26  accordance with section 803-B. The agreement also may include:
    27         (1)  A statement of the joint policy goals and joint
    28     development objectives of the participating municipalities,
    29     with respect to land use.
    30         (2)  Density of population.
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     1         (3)  The need for housing, commerce and industry.
     2         (4)  The location and function of streets and other
     3     community facilities and utilities.
     4         (5)  The need for preserving agricultural land and
     5     protecting natural resources.
     6         (6)  Any other factors that the municipalities believe
     7     relevant for protecting their common watershed and the
     8     furtherance of the purposes set forth in subsection (b).
     9     (b)  In accordance with subsection (a), municipalities may
    10  enter into cooperative agreements for any of the following
    11  purposes:
    12         (1)  To preserve and protect the watershed, its surface
    13     and groundwater resources, wetlands, aquifers and flood
    14     plains.
    15         (2)  To minimize disturbances within the watershed in
    16     order to protect and maintain the present quality and
    17     quantity of potable water.
    18         (3)  To prevent and control pollution of surface water
    19     and groundwater in the watershed.
    20         (4)  To restrict or control uses involving hazardous
    21     materials or other contaminants within the watershed.
    22         (5)  To maintain safe and healthful environmental
    23     conditions in the watershed.
    24         (6)  To regulate development within the watershed in a
    25     manner consistent with watershed storm water plan or plans
    26     applicable in the common watershed of each of the
    27     municipalities which have entered into the agreement.
    28     Section 803-B.  Joint Watershed Resource Protection Overlay
    29  District.--(a)  (1)  In accordance with the terms of an
    30     agreement entered into pursuant to section 802-B, and for the
    20050S0291B0298                  - 3 -     

     1     purposes set forth therein, a municipality shall have the
     2     power and authority, without having adopted a joint municipal
     3     comprehensive plan, to engage in joint watershed zoning by
     4     adopting or amending a zoning ordinance to create a joint
     5     watershed resource protection overlay district.
     6         (2)  The overlay district shall not include any portion
     7     of the municipality which is not within the watershed.
     8         (3)  The zoning ordinances or amendments creating a joint
     9     watershed resource protection overlay district may include,
    10     but not be limited to, any of the following:
    11             (i)  The establishment of special storm water and
    12         water disposal provisions consistent with the protected
    13         uses established by the Department of Environmental
    14         Protection under 25 Pa. Code Ch. 93 (relating to water
    15         quality standards).
    16             (ii)  The prohibition or strict control of identified
    17         uses that require the storage and management of hazardous
    18         or toxic materials.
    19             (iii)  Provisions for reducing densities.
    20             (iv)  Provisions limiting the amount of impervious
    21         surface.
    22             (v)  The establishment of special requirements for
    23         on-lot sewage disposal systems.
    24     (b)  (1)  If a municipality which has not adopted a zoning
    25     ordinance desires to participate in joint watershed zoning in
    26     accordance with this article, it may, along with and as part
    27     of the adoption of an underlying municipal zoning ordinance
    28     that leaves no part of such municipality unzoned, also adopt
    29     provisions to establish a joint watershed resource protection
    30     overlay district.
    20050S0291B0298                  - 4 -     

     1         (2)  If a municipality which has adopted an underlying
     2     zoning ordinance that leaves no part of such municipality
     3     unzoned desires to participate in joint watershed zoning in
     4     accordance with this article, it may amend its zoning
     5     ordinance by establishing a joint watershed resource
     6     protection overlay district.
     7         (3)  The joint watershed resource protection overlay
     8     district shall be superimposed on the zoning map. The overlay
     9     district may be coterminous with one or more of the
    10     underlying zoning district or districts or it may contain
    11     parts of one or more of the underlying zoning district or
    12     districts.
    13         (4)  Where there is a conflict between the provisions or
    14     requirements relating to the joint watershed resource
    15     protection overlay district and the provisions or
    16     requirements relating to the underlying zoning district, the
    17     more restrictive provisions or requirements shall apply.
    18     Section 804-B.  Withdrawing from Participation in Joint
    19  Watershed Zoning.--No municipality may withdraw from its
    20  participation in joint watershed zoning in accordance with this
    21  article during the first three years following the date of
    22  enactment or amendment of a zoning ordinance creating the joint
    23  watershed resource protection overlay district. If, at any time
    24  after the end of the second year following the enactment or
    25  amendment of a zoning ordinance creating the joint watershed
    26  resource protection overlay district, a municipality wishes to
    27  withdraw from its participation in joint watershed zoning, it
    28  shall enact an ordinance, which shall be effective no sooner
    29  than one year after its enactment, repealing those provisions of
    30  its zoning ordinance relating to the joint watershed resource
    20050S0291B0298                  - 5 -     

     1  protection overlay district and shall provide immediately and
     2  concurrently one year's advance written notice of its repeal and
     3  withdrawal to the governing bodies of all municipalities party
     4  to the joint watershed zoning. The repeal and withdrawal may
     5  become effective within less than one year with the unanimous
     6  approval, by ordinance, of the governing bodies of all
     7  municipalities party to the joint watershed zoning.
     8     Section 805-B.  Amendments to Zoning Ordinances Providing for
     9  Joint Watershed Zoning.--During the period that a municipality
    10  is participating in joint watershed zoning in accordance with
    11  this article, any proposed amendments to the municipal zoning
    12  ordinance shall be submitted to governing bodies and planning
    13  agencies of each municipality participating in the joint
    14  watershed zoning, and no amendment to a municipal zoning
    15  ordinance shall be effective unless all of the participating
    16  municipalities approve the amendment.
    17     Section 806-B.  Procedure for Curative Amendments.--Curative
    18  amendments shall be filed in accordance with the requirements of
    19  section 609.1 with the municipality within which the landowner's
    20  property is located: Provided, however, That during the time
    21  that a municipality is participating in joint watershed zoning
    22  in accordance with this article, a governing body before which
    23  the curative amendment is brought shall not have the power to
    24  adopt any amendment to the municipal zoning ordinance without
    25  the approval of the other municipalities participating in the
    26  joint watershed zoning. The challenge shall be directed to the
    27  validity of the municipal zoning ordinance in the context of all
    28  uses provided within the entire combined area of jurisdiction of
    29  all the municipalities which have cooperated in the creation of
    30  the joint watershed resource protection overlay district.
    20050S0291B0298                  - 6 -     

     1     Section 807-B.  Area of Jurisdiction for Challenges.--(a)  In
     2  any challenge to the validity of the zoning ordinance of a
     3  municipality which, in accordance with this article, has acted
     4  in concert with other municipalities to create a joint watershed
     5  resource protection overlay district, the court shall consider
     6  the validity of the challenged municipal ordinance in the
     7  context of the entire combined area of jurisdiction of all the
     8  municipalities that have cooperated in the creation of the joint
     9  watershed resource protection overlay district. The court shall
    10  not limit its consideration to the single constituent
    11  municipality whose zoning ordinance is being challenged.
    12     (b)  The court shall not find the zoning ordinance of a
    13  municipality which is participating in joint watershed zoning in
    14  accordance with this article to be exclusionary if:
    15         (1)  a use is permitted within the jurisdictional area of
    16     any of the municipalities which have cooperated in the
    17     creation of the joint watershed resource protection overlay
    18     district;
    19         (2)  a reasonable amount of land in reasonable geographic
    20     areas is provided for all uses within the entire combined
    21     area of jurisdiction of all the municipalities which have
    22     cooperated in the creation of the joint watershed resource
    23     protection overlay district;
    24         (3)  by considering collectively the zoning ordinances of
    25     all the municipalities which have cooperated in the creation
    26     of the joint watershed resource protection overlay district,
    27     the court determines a wide range of housing opportunities
    28     meeting all basic forms of housing is provided within the
    29     entire combined area of jurisdiction of all the
    30     municipalities which have cooperated in the creation of the
    20050S0291B0298                  - 7 -     

     1     joint watershed resource protection overlay district.
     2     (c)  If a reasonable amount of land in reasonable geographic
     3  areas is provided for all uses within the entire combined
     4  jurisdiction of the municipalities which have cooperated in the
     5  creation of the joint watershed resource protection overlay
     6  district, the court shall not require additional areas to be
     7  zoned for any use if full utilization of the area previously
     8  zoned for such use is achieved.
     9     Section 808-B.  Procedure for Municipal Curative Amendments
    10  Under Joint Watershed Zoning.--(a)  The governing body of a
    11  municipality participating in joint water watershed zoning in
    12  accordance with this article may, with the approval of other
    13  participating municipalities, declare its municipal zoning
    14  ordinance or portions thereof substantially invalid and prepare
    15  a municipal curative amendment pursuant to section 609.2.
    16     (b)  The provisions of section 609.2(4) shall apply to all
    17  municipalities participating in the joint watershed zoning.
    18     (c)  (1)  In the case of a municipal curative amendment
    19     involving two or three municipalities participating in joint
    20     watershed zoning, the municipality shall have nine months
    21     from the date of declaration of partial or total invalidity
    22     to enact a curative amendment.
    23         (2)  Subject to the limitation contained in clause (3),
    24     where there are more than three municipalities participating
    25     in joint watershed zoning, the nine-month period shall be
    26     extended one additional month for each municipality in excess
    27     of three that is a party to the joint watershed zoning.
    28         (3)  Notwithstanding the additional periods provided for
    29     in clause (2), a curative amendment shall be enacted by a
    30     municipality which is participating in joint watershed zoning
    20050S0291B0298                  - 8 -     

     1     not later than one year from the date of declaration of
     2     partial or total invalidity.
     3     Section 809-B.  Application of Article VI (Zoning).--Except
     4  as otherwise provided in this article, or where, in the context
     5  of this article, a different intention is indicated, the
     6  provisions of Article VI shall apply to municipalities
     7  participating in joint watershed zoning.
     8     Section 810-B.  Administration.--(a)  The governing bodies of
     9  the municipalities adopting the joint watershed zoning
    10  provisions shall retain or create individual zoning hearing
    11  boards in each of the individual participating municipalities to
    12  administer both the applicable underlying zoning provisions and
    13  joint provisions applicable in a joint watershed resource
    14  protection overlay district.
    15     (b)  The zoning officer appointed by each municipality to
    16  administer its zoning ordinance shall also administer the
    17  provisions relating to joint watershed zoning applicable in the
    18  joint watershed resource protection overlay district.
    19     Section 811-B.  Funding and Preferences.--(a)  In order to
    20  reimburse the municipalities for all or a portion of the
    21  documented costs and expenses, approved by the department,
    22  incurred in connection with the adoption of a zoning ordinance
    23  or amendment to create a joint watershed resource protection
    24  overlay district, the department is authorized and directed to
    25  provide grants to municipalities that participate in joint
    26  watershed zoning pursuant to this article.
    27     (b)  In accordance with a preference procedure to be devised
    28  by the department's Center for Local Government Services,
    29  municipalities that participate in joint watershed zoning by
    30  creating a joint watershed resource protection overlay district
    20050S0291B0298                  - 9 -     

     1  pursuant to this article shall be entitled to priority
     2  consideration when applying for State financial or technical
     3  assistance, loans or grants for all projects or programs for
     4  which applications are processed or administered by the
     5  department.
     6     Section 2.  This act shall take effect in 60 days.
















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