A recently-proposed bill in the Pennsylvania legislature has attracted the attention of residents concerned about the proliferation of logistics facilities such as warehouses and distribution centers. This bill (HB 1960), proposed by Rep. Emrick of Lower Nazareth, Northampton County, would subject local land development approval of certain warehouses and distribution centers to a public referendum, effectively giving the public standardless veto power over this type of development. While this bill reflects an admirable response to community outcry and a desire for more control over a form of development that can cause significant traffic, aesthetic, health, and environmental impacts, the mechanism it offers misses the mark.
To see why this is the case, consider an illustration: You are driving through an unfamiliar town and see that the posted speed limit is 45 mph. You are cruising along at 40 mph and obeying all known traffic laws, so you are surprised when a police officer pulls you over and writes you a ticket. “What’s the problem, officer?” you ask, “The sign says the speed limit is 45 mph. I was only going 40 and haven’t done anything else illegal that I know of.”
“I know,” says the police officer, “but, we have a law that says that a driver can be ticketed if local residents don’t approve of the way they are driving, even if they are following the traffic laws. Some of the folks who live on this street called the station and said they didn’t like how fast you were going, so I have to write you a ticket.”
“That’s not fair!” you exclaim. “You’re telling me I can get a ticket just because local residents ‘don’t like’ how I’m driving?! How am I supposed to know what kind of driving they’ll approve of? What keeps me from getting a ticket just because they don’t like my car or the way I look?! How do I know they won’t change their mind about what they approve of next time I drive through here?! If they wanted the speed limit to be lower, they should have gotten the law changed and put up new signs!”
“Maybe,” says the police officer with a shrug, “but they’re the ones who live here and they agreed they don’t like the way you’re driving today, so that’s the way it is. Have a nice day.”
If you were this driver, you would be right to think this was unfair. Most of us understand that we have a right to know ahead of time whether our actions are lawful and what specific standards we must follow to comply with the law. We have a right not to be subject to the whims of our neighbors on a case-by-case basis. In fact, this right is so fundamental to our understanding of how society works that it is enshrined in a constitutional amendment that prohibits deprivation of life, liberty, or property without due process of law. In the context of land development, due process means that a person’s right to use and develop their property cannot be subject to arbitrary, standardless, case-by-case decision making, even if the decision makers are neighbors and community members.
This is why the type of public referendum put forth by HB 1960 cannot be the mechanism used to control logistics development. Neither landowners nor the community would know ahead of time what type of development would be permitted, and voters could reject or approve a proposed development for any number of reasons, including unfair and unlawful ones. Voters could reject a proposed development simply because they don’t think the developer is the “right” kind of person, because they think their brother-in-law should get to develop the property instead, or because they think a different type of development would be more attractive or personally beneficial to them. Public referendums would also invite unsavory politicking by developers, who may try to influence voting with bribes or other unlawful incentives. All of this would amount to a deprivation of property rights in violation of due process.
But neighbors and community members do have a say in how our communities are developed. Communities’ ability to guide and control logistics development resides not in public veto power over individual projects, but, as it always has, in municipalities’ power to adopt zoning and land development ordinances. These ordinances set forth the standards governing land use and development so that everyone–land developers, decision-makers, and community members alike–know the rules ahead of time and apply them fairly to all comers. Clear standards, set forth in ordinances and applied by local decision-making bodies in public proceedings, prevent the kind of “arbitrary and capricious” decision-making that results from standardless public referendums. Landowners can consult ordinances and know with confidence what will and will not be permitted on their land, and neighboring community members can consult them to see what kind of land use and development they can reasonably expect on nearby properties.
Although ordinances may not seem as “sexy” as a direct public vote on individual logistics development projects, they can accomplish the same goals while keeping the appropriate constitutional safeguards in place. Through ordinances, municipalities can dictate where within a municipality logistics uses may be constructed and impose restrictions to ensure that the significant impacts caused by these facilities are appropriately minimized and mitigated. Pennsylvania residents who are concerned about the impacts of logistics development on their communities should encourage their local officials to review their land use ordinances and determine whether updates are necessary to appropriately control this development. PennFuture has drafted a model ordinance and guidebook
as well as a community toolkit for just this purpose.
PennFuture applauds state and local officials like Rep. Emrick who have engaged with the issue of logistics development and listened to community members who desire more control over this highly impactful form of land use. While public referendums may not be the solution, Pennsylvania municipalities and residents still have the power to guide and control this development while protecting their communities and the environment from harm. We will continue to work with community members and state and local elected officials to see that this is accomplished.