The ‘curative challenge’

Introduction

If land planners in Buckingham Township in central Bucks County, Pennsylvania, had their way, the Village of Buckingham Springs, a 151-acre age-restricted modular home community, would not exist. The land where it sits would still be a farm.

The development is one of seven that resulted from a 1970s lawsuit that ushered in a period of rapid expansion in the township, which grew from 5,150 in 1970 to more than 19,000 today, many of them former residents of the close-in suburbs of Philadelphia.

Although Buckingham Springs stands as a symbol of developers’ victory over local zoning, the “active adult community” for people over 55 is one win followed by a string of costly losses that occurred when its developer attempted to expand the community onto adjoining farmland.

Land planners, township government officials, and the developer’s attorneys say the villain in the battle over Buckingham Springs is the same — the curative amendment, a zoning challenge process unique to Pennsylvania, which both sides say benefits the other. Yet despite its problems, land use battles brought under the curative amendment process have defined development in Bucks County and other areas where rural meets urban.

In Pennsylvania, municipalities are responsible for land-use planning, but guidelines are laid out in the state’s Municipalities Planning Code. Case law interpreting the statute has required local governments to provide for all types of uses and to accept its “fair share” of development.

Landowners can challenge zoning by filing cases directly with a township board of supervisors, seeking a “curative” amendment to the zoning regulations, a move that often sets a costly battle in motion that pits a developer’s legal budget against township defense dollars. If a board of supervisors rules against a challenge — and they almost always do — developers and or landowners can appeal to the courts.

The “curative challenge” is a check on a community’s natural tendency to insulate itself from unwanted development, including low-income and high-density housing, said Kurt Paulsen, a land-use expert at the University of Wisconsin who taught formerly at Temple University in Philadelphia.

The challenge balances the rights of a locality to determine its future and the needs of the state and outside community as a whole, Paulsen said. “That is the fundamental question: Is it correct to say that municipalities should determine their own destinies? On a certain level it seems fundamental, and you say, ‘Yes.’ On another you say: ‘Wait a minute. They should also maximize opportunities for future residents.’”

Paulsen, who in the 1990s served on the zoning board of an Allentown suburb, said he appreciates both sides of the curative amendment debate. Municipalities argue developers use it to bludgeon them into submission, Paulsen said, but municipalities also bleed developers by dragging out the process at the local government level. “The longer you drag it out from a municipality’s standpoint, the better is your bargaining,” he said. “Time is money.”

That is indeed the case, said Marc Kaplin, a Montgomery County, Pennsylvania., attorney who has represented developers in curative challenges since the 1970s. Fighting a challenge before a stacked deck at the township level before a developer can proceed to the courts makes it far more expensive, he said.

“What I could try in court in a half a day takes probably a year and a half, maybe more,” Kaplin said.

Buckingham Township met its first serious brush with the curative amendment in 1976, when seven landowners filed challenges arguing that township zoning did not allow for apartments, townhomes, or trailer parks, contrary to requirements by the state’s Municipalities Planning Code.

Although the township was redeveloping its zoning when the owners filed their challenges, it then allowed only single-family homes on large plots for residential development. Despite the holes in its zoning, the township board of supervisors ruled against the challenge. Developers and landowners took the case to court and won.

The homes the developers built, however, were far different from what the courts allowed — a common occurrence that critics of the process argue proves that the curative amendment does little to benefit affordable housing. Although according to the court decision developers could have built more than 9,200 units at a relatively high density, they instead negotiated with the township and built just over 2,100, more than half of them large-scale single family homes, which now sell for $425,000 to $750,000.

After the courts ruled in favor of the seven Buckingham Township landowners, The McKee Group, a developer of age-restricted communities, bought a plot of land the courts approved for mobile home development and built Buckingham Springs. What at one time had spiked local fears of rundown, cheaply built trailer homes populated by low-income dwellers turned into an “active community” of 646 modular homes that now sell in the $200,000 range.

Critics of the curative challenge process say the development in Buckingham Township is a good example of how proposed affordable high-density housing turns into expensive low-density suburban-style development. “The reason it doesn’t work is that the challenge is often based on something the developer really doesn’t want, but something that perhaps has a chance of winning,” said Lynn Bush, the executive director of the Bucks County Planning Commission. “After they get what they want, they negotiate something else.”

“The homebuilders don’t give a rat’s ass about affordable housing,”said Henry Rowan, a Buckingham Township supervisor and outspoken critic of the curative amendment.

Elected local officials also do not, said Paulsen, which is why they negotiate with developers and allow them to build larger homes after they lose zoning challenges. The larger homes bring in more tax dollars, minimize impact on local infrastructure such as schools, water, and roads, and usually do not lower the value of surrounding property, as less expensive housing often does.

“Nobody I know of has ever been elected township supervisor in Pennsylvania on an affordable housing platform,” Paulsen said. “In fact, you would probably be run out of town.”

In the late 1970s and into the 1980s, the curative challenge was an effective tool for developers to bust holes through local zoning ordinances. No one the Center spoke with has tracked how many zoning challenges developers filed against municipalities. But attorneys, local government officials, and land-use professionals agree that rural and suburban townships closest to Philadelphia faced the brunt of the challenges.

A majority of municipalities have never had a curative challenge, said Paulsen, who added that many local officials in far rural areas of the state probably have never even heard of a curative. “You find them at the rural/urban interface,” he said.

Mike Frank, the director of community planning at Heritage Conservancy, a Pennsylvania nonprofit that works to preserve open spaces, is a critic of the process. Frank, who previously worked as a planner at the Bucks County Planning Commission, said requirements in the state’s Municipalities Planning Code are poorly defined (“What is a ‘fair share’ of development?”) and the curative process allows developers to pinpoint and exploit deficiencies in otherwise sound local planning.

“It’s very difficult,” Frank said. “There are no clear guidelines. In very similar cases, some are won and some are lost on very fine points.”

If the 1970s and 1980s were the curative heyday for developers, the balance of power shifted in the 1990s as municipalities learned how to fight back and the cases became much more difficult for developers to win.

One way townships responded was by allowing all types of development in their land-use plans, but placing undesirable development in areas of the township and at densities that make sense for the community but might not be profitable to developers, Rowan said.

As a result, what were once relatively easy cases to fight became far grayer, said John VanLuvanee, a Bucks County attorney who has fought zoning challenges for developers since the 1970s. Case in point are the battles The McKee Group fought in the 1990s in its failed attempts to expand Buckingham Springs onto neighboring farmland.

Even in the down economy, Kevin McLaughlin, senior vice president of the business development at The McKee Group, said the homes at Buckingham Springs remain strong enough sellers and that expanding and building more homes makes sense. “They would sell like hotcakes,” he said.

As it is, Buckingham Springs has been completely built out since 1996. In addition to profits from home sales, McKee charges residents monthly for the land the homes sit on. “We like the product. It makes money for us. It fills a need at a lower price,” Frank J. McKee told The Philadelphia Inquirer in 2001.

Business has long been good enough to expand onto the more than 80 acres of farmland that The McKee Group owns bordering the development. But the township denied McKee’s request to rezone the land. From 1996 to 2006, McKee failed twice in attempts to overturn zoning regulations on the land and also in its quest to turn Buckingham Springs into an incorporated borough in order to get out from under the Buckingham Township’s zoning ordinances.

The curative process was expensive, said Kaplin, who represented McKee on one of the challenges. Kaplin didn’t recall the precise amount, but he guessed that the cost of one curative challenge for a developer is now “a quarter of a million dollars, easily.” That’s why not everybody brings these things,” said VanLuvanee, who also represented McKee. “If you are going to get into them, you have to be able to stay till the end. A lot of people don’t have a half million lying around.”

One reason The McKee Group failed in its attempt to expand Buckingham Springs is the township learned from the losses of the 1970s. Instead of zoning McKee’s land for mobile homes, it carved out another plot of land for mobile homes on the other side of the township and required two acres for each dwelling on McKee’s land, a designation that made building modular homes uneconomical. The case turned not on the issue of total exclusion as in the 1970s, but on the argument that the township did not allow for enough of a certain type of development, in this case mobile homes. “It became de-facto exclusionary zoning,” said VanLuvanee. “It’s a much harder case to make.”

McLaughlin said the group has no plans for again fighting Buckingham Township zoning. For now, they will leave the land alone. “We can afford to sit on it for now, so that is probably what we are going to be doing.”