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By: Timothy M. Hazel
A follow-up to “The Push to Modernize the MPC”
Our earlier post surveyed the reform wave gathering in Harrisburg — Senate Resolution 211’s fact-finding mandate, by-right allowances for duplexes, triplexes, and accessory dwelling units, statewide caps on density, setback, and parking rules, tighter SALDO review clocks, appeal-bond reform, and new regional housing-equity standards under Article XI of the Municipalities Planning Code, 53 P.S. § 10101 et seq. There we framed the reforms as opportunity. Here we take up the harder question practitioners in municipal and land-use practice are already asking: are these measures a proper exercise of governmental authority, or are they overreach — an attempt to legislate social policy through zoning and to displace local control the MPC has protected since 1968?
The debate runs along two fault lines. The first is vertical: where does the state’s power to command end and the municipality’s power to govern its own land use begin? The second is substantive: may zoning be enlisted to solve housing supply and equity problems at all, or does that stray from the police power’s traditional ends? Pennsylvania law supplies more answers to both than the “overreach” framing assumes — but not on every point.
The starting premise disciplines much of the argument. In Pennsylvania, local zoning is not an inherent attribute of municipal existence; it is delegated police power. Municipalities “are creatures of the state and have no inherent powers of their own,” and the General Assembly’s authority over their powers is “supreme.” (Crawford v. Commonwealth, 326 A.3d 850 (Pa. 2024)) A municipality “may do only those things which the [l]egislature has expressly or by necessary implication placed within their power to do,” and an ordinance that does not conform to its enabling statute is void. (Crawford v. Commonwealth, 326 A.3d 850 (Pa. 2024); Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009)) That principle applies to non-home-rule and home-rule municipalities alike; even home-rule communities exercise only powers “not denied … by the General Assembly at any time.” (Pa. Const. art. IX, § 2; Pennsylvania Rest. & Lodging Ass’n v. City of Pittsburgh, 653 Pa. 596, 211 A.3d 810 (2019))
The zoning power specifically flows from the MPC. What the legislature delegated by statute, it may amend by statute. The Supreme Court accepted exactly this logic in the Marcellus Shale litigation: the General Assembly “delegated zoning powers to municipalities through the Municipalities Planning Code,” and the Code, “like any other statute, is subject to amendment, alteration, and repeal by subsequent enactments.” (Robinson Twp., Washington Cnty. v. Com., 623 Pa. 564, 83 A.3d 901 (2013)) On this baseline, most of the proposed reforms — by-right mandates, dimensional caps, revised review clocks, appeal-bond changes — are not incursions on some reserved local prerogative. They are adjustments to the terms of a delegation the state was always free to revisit.
That does not end the analysis. Preemption in Pennsylvania comes in three forms — express, conflict, and field. (Crawford v. Commonwealth, 326 A.3d 850 (Pa. 2024); Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009)) And for home-rule municipalities there is a further wrinkle: the General Assembly may negate local ordinances on “substantive matters of statewide concern” — those “involving the health, safety, security and general welfare of all the inhabitants of the State” — but not ordinances of “purely local concern.” (Crawford v. Commonwealth, 326 A.3d 850 (Pa. 2024)) The reformers’ answer is that the Home Rule statute already resolves this for land use. Home-rule charters may not exercise powers “contrary to or in limitation or enlargement of” statewide statutes, and the enumerated limitations expressly include “[m]unicipal planning under the … Pennsylvania Municipalities Planning Code.” (53 Pa. Stat. and Cons. Stat. Ann. § 2962 (West)) Uniform statewide statutes “shall supersede any municipal ordinance … on the same subject.” (53 Pa. Stat. and Cons. Stat. Ann. § 2962 (West)) Home-rule status, in other words, is not a shield against a statewide planning mandate.
The “legislating social issues” critique assumes housing supply and affordability are outside the zoning power’s proper ends. Pennsylvania law rejects that assumption at the threshold. The MPC’s own purpose provisions direct that zoning ordinances be designed to provide “for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing,” including “a reasonable range of multifamily dwellings,” and to “accommodate reasonable overall community growth.” (53 Pa. Stat. Ann. § 10604 (West)) The Act’s statement of purpose reaches even further, tying the “general welfare” to “amenity, convenience,” and “social and cultural facilities,” and to “the revitalization of established urban centers.” (53 Pa. Stat. Ann. § 10105 (West)) “Community character,” too, is a statutorily recognized consideration. (53 Pa. Stat. Ann. § 10603 (West))
More tellingly, Pennsylvania courts have treated the provision of housing not merely as a permissible object of zoning but as an affirmative constitutional duty. The exclusionary-zoning line of cases holds that a municipality “cannot isolate itself and ignore the housing needs of the areas surrounding it,” and must “plan for and provide land-use regulations which meet the legitimate needs of all categories of people who may desire to live within its boundaries.” (Surrick v. Zoning Hearing Bd. of Upper Providence Twp., 476 Pa. 182, 382 A.2d 105 (1977)) A community “in the path of urban-suburban growth” that is “a logical place for development … should not be heard to say that it will not bear its rightful part of the burden.” (Appeal of Girsh, 437 Pa. 237, 263 A.2d 395 (1970); Surrick v. Zoning Hearing Bd. of Upper Providence Twp., 476 Pa. 182, 382 A.2d 105 (1977)) Zoning “is a means by which a governmental body can plan for the future — it may not be used as a means to deny the future.” (Nat’l Land & Inv. Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965)) A scheme that makes “no reasonable provision for apartment uses” is unconstitutional, and where an ordinance totally excludes a basic housing type, fair-share arithmetic is beside the point — the ban falls unless the municipality proves it serves a legitimate public purpose. (Appeal of Girsh, 437 Pa. 237, 263 A.2d 395 (1970); Fernley v. Bd. of Sup’rs of Schuylkill Twp., 509 Pa. 413, 502 A.2d 585 (1985))
Seen against that backdrop, by-right allowances for duplexes, triplexes, and multifamily conversions are less a novelty than a codification. They convert a case-by-case, litigation-driven fair-share obligation the courts already impose into a legislative baseline. The reformers’ strongest argument is that eliminating discretionary approval for “missing middle” housing simply operationalizes Surrick and Girsh prospectively — replacing after-the-fact validity challenges and builder’s-remedy awards with an ex ante rule. (Surrick v. Zoning Hearing Bd. of Upper Providence Twp., 476 Pa. 182, 382 A.2d 105 (1977); Appeal of Girsh, 437 Pa. 237, 263 A.2d 395 (1970))
Pulling those threads together, the proponents’ position is doctrinally well-supported:
The counterargument is not that the state lacks power, but that these particular measures push past its prudent and constitutional limits.
Home rule and local self-determination. Even if the General Assembly may supersede local planning, the substantive-versus-local-concern line is not self-executing. Pennsylvania courts presume a home-rule municipality’s legislative acts valid and construe its powers “liberally … in favor of the municipality.” (Crawford v. Commonwealth, 326 A.3d 850 (Pa. 2024); 53 Pa. Stat. and Cons. Stat. Ann. § 2961 (West)) Blanket statewide dimensional caps invite the argument that the state has reached into matters — lot geometry, parking, neighborhood form — that remain quintessentially local.
The police power serves local conditions. The reasonableness of any land-use rule is judged by its “substantial relationship” to the health, safety, and welfare of the community regulating. (Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Commw. Ct. 2018)) Courts defer to the enacting body precisely because “differences of opinion on how to regulate land use” are for local legislators, not judges. (Fisher v. Viola, 789 A.2d 782 (Pa. Commw. Ct. 2001)) A one-size-fits-all state rule inverts that logic — and Pennsylvania has recognized that density and lot-size regulation is “a legitimate exercise of the police power” tested “on a case by case basis,” not by statewide fiat. (Fisher v. Viola, 789 A.2d 782 (Pa. Commw. Ct. 2001); Nat’l Land & Inv. Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965))
The strongest constitutional constraint: the Environmental Rights Amendment. Robinson Township is the cautionary precedent for statewide by-right mandates. There, a regime permitting a use “as of right in every type of pre-existing zoning district” was held incapable of protecting constitutionally guaranteed environmental values, because “[p]rotection of environmental values … is a quintessential local issue that must be tailored to local conditions.” (Robinson Twp., Washington Cnty. v. Com., 623 Pa. 564, 83 A.3d 901 (2013)) The Court held the General Assembly “can neither offer political subdivisions purported relief from obligations under the Environmental Rights Amendment, nor can it remove necessary and reasonable authority from local governments to carry out these constitutional duties.” (Robinson Twp., Washington Cnty. v. Com., 623 Pa. 564, 83 A.3d 901 (2013)) A statewide command that municipalities permit denser housing across existing districts — and a cap barring locally tailored setbacks or screening — bears an uncomfortable resemblance to the mandate struck down there. (Robinson Twp., Washington Cnty. v. Com., 623 Pa. 564, 83 A.3d 901 (2013)) Notably, Robinson Township’s core Article I, § 27 analysis was a plurality opinion, so its precise reach remains contested — but it is the obvious battleground for any challenge to statewide by-right zoning.
A caution on the “affordability” rationale. Reformers should not overstate what the case law endorses. Pennsylvania courts have been explicit that “affordability is not an issue when determining an ordinance’s constitutionality,” and that economic loss is not economic infeasibility. (Fisher v. Viola, 789 A.2d 782 (Pa. Commw. Ct. 2001)) The fair-share duty targets exclusion of housing types, not housing price. Legislation justified expressly as social or economic engineering — rather than as land-use regulation — is more vulnerable to the charge that it has left the police power’s traditional channel.
The overreach narrative proves too much. Because zoning is a delegated power over a matter — regional housing — that Pennsylvania courts have already declared subject to an affirmative municipal duty, the General Assembly’s authority to legislate uniform standards is on solid footing for most of the reform package. The question is far less often “may the state act?” than “how far, and by what means?”
Where the reforms convert existing judicial doctrine into legislative baselines, the constitutional case is strong. Where they impose granular, uniform dimensional limits and equity mandates that override locally tailored judgments, they invite the Robinson Township critique that some land-use decisions must remain sensitive to local conditions. (Robinson Twp., Washington Cnty. v. Com., 623 Pa. 564, 83 A.3d 901 (2013)) The likely outcome is not wholesale validation or invalidation, but line-drawing — reform that survives to the extent it sets floors for housing opportunity while preserving room for reasonable local regulation, and that falters where it strips municipalities of the tailoring authority the police power and the Environmental Rights Amendment presuppose.
For counsel advising municipalities, developers, or objectors as the Legislative Budget and Finance Committee’s October 2026 report approaches (The Push to Modernize the MPC at 2), the practical task is to read each proposal against this framework — asking not merely whether Harrisburg has the power to act, but whether the specific mechanism it chooses respects the constitutional and doctrinal limits on how that power is exercised.
For strategic guidance on Pennsylvania’s evolving land-use landscape, contact Timothy Hazel and the attorneys of the Business Group at Pietragallo Gordon Alfano Bosick & Raspanti, LLP.