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.

Whether you are a Lender or a Borrower, it’s obviously very important to know what terms are included in your Loan Documents and how they may affect your interests. Periodically, I will be blogging on issues and concerns regarding Loan Documents and areas that I believe everyone needs to be particularly focused on.

Today, I’d like to highlight Casualty provisions. Most mortgages in Pennsylvania have provisions regarding what happens if a casualty or damage occurs to the mortgaged Premises. This is important for both Lender and Borrower.

For a Lender, the wording of a casualty clause could determine the manner in which insurance proceeds will be distributed, and if Borrower is required to use them in particular ways, or are free to use them as they see fit. Lenders typically prefer to have control in instances of a casualty and over any potential insurance proceeds. A casualty could detrimentally affect what is potentially a Lender’s most valuable piece of collateral, and taking steps before something goes wrong could save the Lender a lot of aggravation and money.

On the flip side, a Borrower also wants the ability to control any insurance proceeds. A casualty clause unfavorable to a Borrower may prevent it from receiving any of the insurance proceeds at all and Borrower will be at the mercy of the Lender if it wishes to rebuild the damaged property. Depending on the language in the casualty provisions, the Borrower could find itself in the unenviable scenario whereby all of its insurance proceeds are used to pay down the loan and now Borrower is left with the remaining debt and no building on the Premises to create income for the business.

It’s important whether you’re a Lender or a Borrower to have good representation assist you in reviewing, drafting, or negotiating your Loan Documents. If you have any questions or need assistance, please contact Tim at 215-918-3596.

If your development projects fronts on a state road, then it is likely that you will need a Highway Occupancy Permit (“HOP”) from PennDOT. If you need a HOP from PennDOT, then it is very likely that you will need to improve one or more state roads. If you need to improve one or more state roads, then it is also likely that you will need to obtain right of way or easements from third party property owners. Well now . . . as most of you know who have been through this process . . . there is nothing more frustrating in the real estate development approval process than having to obtain right of way from third party property owners. Why is it frustrating? Because, as a developer, you do not have much leverage to force these property owners to grant you this required right of way, particularly when it is needed in order to complete roadway improvements that are being required by PennDOT or the municipality as part of your project.

In the past, developers would obtain right of way, in the form of a PennDOT deed, directly from the property owner to PennDOT. Now, in accordance with PennDOT’s Publication 282, the deed for the right of way must be conveyed from the third party property owner to the applicant, then a separate deed, using PennDOT’s form, from the applicant to PennDOT. In addition, no deed will be accepted without PennDOT’s review of a title search to confirm the owner of the right of way and that there are not any mortgages, judgments or other monetary liens recorded against the subject property. If there are any such monetary liens, then a release may need to be obtained from the mortgagee. Another issue faced by developers, when working to obtain the HOP from PennDOT, are easements that are required by PennDOT or the municipality beyond the right of way area. These include site distance easements (i.e., the right to remove all vegetation within the certain area of a third party property), drainage easements (the right to drain water onto the property of a third party owner), grading easements (the right to regrade the property of a third party owner), among others.

So, what happens when the property owner refuses to grant this required right of way or easement? If you are lucky, you go back to PennDOT and the municipality and explain, and they allow you to modify your plans so that you do not need this right of way or easement. If you are not so lucky, then you have to “beg and plead” either PennDOT or the municipality to condemn the property interest at issue. It is extremely unlikely that you will ever get PennDOT to proceed with this proposed condemnation, unless the proposed roadway work is part of a previously approved PennDOT plan that you are offering to do on their behalf. You have a much better chance at convincing a municipality to condemn the land but, to do so, you normally have to show the municipality that you had the property interest appraised and that you made fair offers to the third party property owner for this property interest. If you can convince the municipality to move forward to condemn the property interest, then you will likely need to enter into an indemnity agreement with the municipality to reimburse them for all costs incurred by the municipality in connection with any such taking. Many times third party property owners will file preliminary objections which can, at times, extend the time period to obtain this property interest for months, and, at times, for years. Putting a good plan in place to address and/or obtain these required third party property interests, up front, and having an open dialogue about the proposed roadway improvements with and without your ability to obtain the third party property interest, again up front, is the best way to handle issues related to obtaining these required right of ways and easements. That is, getting the municipality to “buy-in” to the roadway improvements will help you later to secure the required right of way and easements.

If you should have any questions on this topic, or should need our assistance to help you secure required right of way or easements, please contact Rob Gundlach at (215) 918-3636 or rgundlach@foxrothschild.com.