In a recent case decided by the PA Commonwealth Court, titled Toll Brothers and Orleans Homebuilders v. Upper Uwchlan Township, the court upheld the decision of the Court of Common Pleas and the Board of Supervisors to deny the developer’s request to amend a previously granted conditional use approval to eliminate a condition requiring developer to construct an internal roadway.  Developer presented testimony as to reasons for this amendment, including the preservation of additional woodlands, wetlands, steep slopes and floodplains.  However, developer acknowledged that the elimination of this roadway would save an estimated $730,000 in site costs.  At the underlying hearing, residents who had purchased homes in the community requested party status and objected to changing this condition.  These residents argued, among other things, that the road connection was needed and that developer represented it to them when they purchased their homes that this road connection would be constructed.

In its decision, the Commonwealth Court cited the Ford v. Caernarvon Township case, whereby a property owner requested to remove a deed restriction preventing further subdivision of their land that the ZHB had attached to its grant of a variance.  The court noted that an owner that wants to obtain a modification of a condition can obtain relief if they can establish the following:

  1. Either grounds for a traditional variance or changed circumstances which render the condition inappropriate; and
  2. Absence of injury to the public interest.

In the Ford case, the court concluded that the property owner demonstrated a clear change in circumstances to allow the removal of the deed restriction condition; because the newly created lots would conform to all ordinance requirements.  The court also found that the removal of the restriction would not result in a harm to the public.

Unfortunately, in the Toll/Orleans case, the court found that developer failed to identify any change in circumstances that would justify the elimination of the condition to build the extended roadway.  The court also found that developer failed to demonstrate that the elimination of the condition to extend the roadway would not harm the public interest.

This case is another lesson in a long line of cases for developers to carefully review any conditions imposed on the grant of their development approvals and, if not acceptable, to timely appeal the conditions to the Court of Common Pleas.

Please contact Rob Gundlach at 215-918-3636, or RGundlach@FoxRothschild.com, for assistance with how to amend conditions of approval or other matters relating to zoning and land use approvals.

Jack Plackter writes:

New Jersey MapAssembly Bill 1425/Senate Bill 3233, which was signed into law on January 15, modifies the requirements for furnishing performance and maintenance guarantees under the Municipal Land Use Law and modifies the current limitations on the collection of inspection fees.

Under the law, a municipality will only be able to require developers to post performance guarantees to cover improvements being dedicated to a public entity.

This law favors developers. It reduces the bonding cost because it narrows the categories of items that are eligible to be bonded.

It eliminates the following types of improvements from the list of improvements that may be subject to a performance guarantee under current law: culverts, storm sewers, erosion control and sedimentation control devices, other on site improvements and landscaping. This provision further reduces bonding costs.

The law further provides that provides a municipality may require a performance guarantee for privately owned perimeter buffer landscaping.

The law alters the requirement for maintenance guarantees. A municipality may only require a maintenance guarantee to be posted for the limited bonded improvements and specific private storm water management improvements.

The law authorizes municipalities to require two additional types of guarantees:

  1. A temporary certificate of occupancy bond; and
  2. A safety and stabilization bond.

The law also alters municipal inspection fees.

Under current law, a developer must reimburse a municipality for reasonable inspection fees incurred for the inspection of improvements with a cap except for extraordinary circumstances of 5% of the cost of improvements.

This law eliminates the inspection fee limitation if required inspection costs are determined to exceed the 5% amount and even authorizes those inspections to occur without the additional funds being placed in escrow.

This part of the bill will increase a developer’s cost and removes the “extraordinary circumstances” standard that needs to be met in order to for a municipality to exceed the 5% cap on inspection fees.


Jack Plackter is a partner in the firm’s Real Estate Department, resident in its Atlantic City office.

The Bucks County Planning Commission has increased its filing fees for 2018.  The base fees for residential subdivisions, land developments and conversions remain the same, but the additional lot multiplier fees have been increased by $5 for each lot/unit.  The base fees for nonresidential land developments remain the same, but the multiplier fees for developments under 5,000 square feet has increased by $5 per 1,000 square foot of gross floor area and, for developments over 5,0000 square feet, the overall filing fee has increased to $0.15 per square foot.  The filing fees for nonresidential  subdivisions have increased by $5, and the filing fees for curative amendments and rezoning petitions have each increased by $500.

If you should have any further questions about the new review fees, please contact Robert W. Gundlach, Jr. at (215) 918-3636 or rgundlach@foxrothschild.com.

As a supplement to my blog back on August 23, 2017, as to the use of alternate on-lot sewer systems for planning new subdivisions, attached is the PA Builders Association information sheet on the new legislation.

DEP and the Sewage Advisory Committee (“SAC”) continue to work on the regulations referenced in the legislation.  Enclosed is a letter, dated December 11, 2017, containing the SAC’s recommendations to DEP.

More to follow as DEP works to finalize the performance standards and review methodology.

 

December 11, 2017 Letter

 

In Pennsylvania, landlords are prohibited from employing self-help evictions when dealing with tenants and former tenants. However, query if such prohibition exists when property owners seek to evict trespassers. Trespassers are not subject to the Landlord and Tenant Act. A “tenant” occupies an owner’s premises in subordination to the owner’s title and with his express or implied assent. Not so for trespassers.

A property owner who never engaged in a landlord-tenant relationship with a trespasser may be permitted to employ peaceful self-help procedures to remove said trespasser from the owner’s property. In Clarenbach v. Giordano, 11 Pa. D. & C.3d 195 (C.P. Philadelphia 1978), a property owner entered into a lease with a tenant, and tenant’s companion later moved in. After tenant stopped paying rent and abandoned the premises, owner informed companion that she needed to vacate the property. When companion failed to leave, owner eventually changed the locks.

The court ruled that owner was not bound by the Landlord and Tenant Act, and was entitled to employ self-help measures as to the companion. The court reasoned that the companion was a trespasser with no permission to occupy the premises. The companion never made rent payments and was notified by owner that she needed to leave when tenant abandoned the property. “Against a trespasser in possession, the [owner] has a right to the remedy of self help and is not required to revert to any legal process, especially when he obtains possession peaceably.”

Before property owners employ peaceful self-help procedures, they should seek legal advice to ensure that the unwelcome occupiers are not afforded comparable protections. For instance, where non-tenant squatters carry out certain actions, property owners may then be required to pursue a formal ejectment process.

For more information on this subject, or property owners’ rights in general, please feel free to contact Rob Gundlach at (215) 918-3636 or rgundlach@foxrothschild.com.

Legal opinion letters (“Opinion Letter”) have become a very valuable piece of a loan transaction for all parties involved.  More often, Lenders are now requiring that a Borrower’s counsel provide an Opinion Letter at the closing of a transaction.  An Opinion Letter addresses legal conclusions and opines as to the legal effect and legitimacy of the transaction and can be relied on by the Lender in a transaction.

While the Opinion Letter is a valued commodity for the Lender to receive, it’s also highly regarded by Borrower’s counsel and could potentially become a costly liability down the road if the loan defaults and the Lender relied on a representation in the Opinion Letter that proves to be false.  Therefore, an Opinion Letter is not something either party should treat lightly and many law firms do not willingly provide one without a commensurate cost attached.  This cost is typically passed on to the Borrower in the transaction, and the costs can be potentially significant.  Therefore, the Borrower also needs to consider the prospective costs associated with the Lender requiring an Opinion Letter.

At the beginning of any loan transaction, all parties should address whether an Opinion Letter will be required, the costs that are associated with drafting/receiving one, and who is responsible for those costs and fees.  The scope, costs, and timing of the Opinion Letter can be negotiated from the outset, and all parties can properly prepare and protect themselves from any surprises as the transaction progresses.

If you have any questions or need assistance, please contact Tim at 215-918-3596.

Many times, at hearings to obtain either special exceptions or conditional use approvals, applicants, for one reason or another, are under the impression that they simply have to call one or two witnesses to confirm, in a cursory manner, compliance with the requirements for the requested relief. Unfortunately, that type of “short cut” approach can come back to bite the applicant in the you know what. A recent case, titled Appeal by Grande Land, LP v. Manheim Township Zoning Hearing Board, is good instruction on the subject.

When presenting evidence at a hearing to confirm compliance with the requirements for a special exception or conditional use, it is important to bring the proper witnesses and documentation to confirm compliance with each and every requirements. Simply “saying that you will comply” or pointing to compliance on a plan, is not always the same as proving compliance in the hearing context. In Grande Land, the applicant filed an application for a special exception to construct an apartment complex containing 72 apartment units. At the hearing, the applicant called a surveyor to testify that all of the zoning ordinance requirements were satisfied. The ZHB denied the special exception on the basis that the applicant failed to submit evidence confirming (a) DEP’s approval of the proposed sewage disposal system, (b) the maximum length of each building did not exceed 128 feet, and (c) compliance with the 25% open space requirement. The trial court upheld the ZHB’s decision to deny the special exception and the Commonwealth Court then reviewed the matter. The Commonwealth Court found that the testimony of record did satisfy the requirements for a sewage system in a form to be approved by DEP and that the length of proposed buildings did not exceed 128 feet; however, the Commonwealth Court upheld the ZHB’s denial of the application for the special exception on the basis that the applicant failed to submit proper evidence confirming that the plan complied with the open space requirements. Specifically, the Commonwealth Court pointed to some very poor testimony by the surveyor where he stated that he could not “recall the specific requirements of the Ordinance or whether the detention basins were included as open space in the calculations.” That testimony, in and of itself, was the “kiss of death” to confirm compliance with the open space requirements.

We all know that hindsight is 20/20, but in this case, the applicant should have continued the hearing so that his surveyor, or, better yet, a licensed civil engineer, could have completed an open space plan and all calculations related thereto, then submitted such plan and calculations into the record at the continued hearing.

Interestingly, in reviewing this case, I recall an article that I wrote some eight years back on the same topic following a similar case rendered by the Commonwealth Court. My advice in that article, as in this article, is the same, as counsel for an applicant needs to have the proper witnesses and exhibits to show compliance with each and every requirement with their application for a special exception or conditional use. If at any point during the hearing, there is a question as to whether or not the application is in compliance with any such requirements, an applicant’s counsel should consider requesting a continuance in order to obtain the proper testimony and/or documentation to confirm same. Otherwise, an applicant can waste an awful lot of time and money chasing its tale on an appeal up to the Commonwealth Court and/or filing a new application after a denial is upheld as it was in this case.

If you should have any questions concerning this topic, or other zoning and land use matters, please feel free to contact Rob Gundlach at (215) 918-3636 or rgundlach@foxrothschild.com.

In June of this year, Councilwoman Maria Quinones-Sanchez of Philadelphia’s City Council introduced Ordinance No. 170678 to require all new and renovated residential development projects in the City of over 10 units to include at least 10% of the project units as “affordable”.  Under the terms of the ordinance, at least 25% of the affordable units have to exists on the project site, while the other 75% can either be built elsewhere or be addressed via a payment into the City’s Housing Trust Fund.  Since the ordinance’s introduction in June, Councilwoman Quinones-Sanchez has been in dialogue with a number of stakeholders, with a hope to have the ordinance brought to a vote in City Council prior to the end of 2017.  The proposed ordinance addresses both new projects and renovations which will be defined to cover alterations costing in excess of $7,000 per housing unit and requiring a zoning permit.  The ordinance also provides for limited increases in density, as implied compensation to developers which provide affordable housing.

Philadelphia, Pennsylvania skylineSupporters of the ordinance argue that it is required to address significant gaps within the City for affordable housing for the many poor residing in Philadelphia, and that the proposed ordinance fairly balances the interests of developers with broader public policy requirements.  Those who object, which includes the local chapter of the Building Industry Association, argue that the requirements are erroneous and inappropriately place upon residential real estate developers the obligation to address a policy concern better met by the broader body politic.

Among the potential variables, and areas that may be subject to amendment in the ordinance, are how many units of affordable housing should be required, whether they should be required on or off site, the extent to which such requirement should apply to renovations, and what corresponding inducements or benefits should be made available to developers in the character of increased density or other types of cost offsets.

In the City of Philadelphia, developers must come to terms with several issues which can increase development costs, including a variety of zoning requirements to provide parking, requirements in certain circumstances to provide economic opportunity plans in connection with projects, and a local norm in Center City development of utilizing union labor.  Some are concerned that the additional imposition of required affordable housing would tip the balance and end or significantly curtail residential development.

In a city with an active housing authority and other public or quasi-public organizations promoting housing opportunities for the poor, a question is presented regarding the appropriateness of achieving a laudatory public policy goal through the imposition of requirements upon a small sector of private business owners.  If the objective of providing housing to the poor is one adopted by local government, should it not be addressed directly via explicit taxing and spending policies, instead of indirectly through the zoning code?  This is the question which will be addressed in hearings and debates soon to occur in Philadelphia City Council.

 

The NPDES general permit for stormwater discharges associated with construction activities will expire on December 7, 2017. DEP has announced that the general permit will be administratively extended until December 7, 2018. This administrative extension will continue the terms and conditions of any open statewide general permit for a specific period of time following expiration of the general permit program; however, the only option for obtaining NPDES permit coverage from December 8, 2017, until a reissued PAG – 02 is published, is to obtain an individual NPDES permit. We understand that the following procedures will apply until the PADEP reissues the statewide general permit program:

  • Check the box for “individual” on the NOI and include a note explaining that this would typically be a General NPDES Permit except for the deadline issue.
  • The project will be posted in the bulletin and be subject to the 30-day comment period.
  • The permit number will be a “PAD” instead of a “PAC”.
  • Everything else should remain the same – same General NPDES Permit fees, same General NPDES Permit review process (meaning the review will not be kicked to PADEP, but will still be done by the conservation district), same General NPDES Permit design requirements, etc.

 

This procedure will apply to any and all projects in Pennsylvania until the statewide general permit is reissued. Bottom line: Same process, but likely more delays. More to follow.

On November 2, 2017, at 7:30 p.m., the Warrington Township Planning Commission intends to review an updated Comprehensive Plan for the Township. After this Comprehensive Plan is reviewed by the Planning Commission, it will then be sent, along with the Planning Commission’s recommendation, to the Board of Supervisors for review and action. Such action is likely to be taken before the end of the year. After the new Comprehensive Plan is adopted, the Board of Supervisors have indicated their willingness to consider certain revisions to the Township zoning ordinance and the zoning map. The draft Comprehensive Plan is available for review on the Township website.

If you should have any further questions about the process, please contact Robert W. Gundlach, Jr. at (215) 918-3636 or rgundlach@foxrothschild.com.