In many cases, a Zoning Hearing Board will impose certain conditions on the grant of a variance or special exception. A condition of such approval could include a time limit as to when the applicant is required to obtain all necessary permits to construct the proposed improvements before the variance or special exception is deemed void. For example, a condition could read “The Applicant must apply for any necessary permits within one (1) year from the date of this decision or this decision shall expire”. If the Applicant fails to comply with this condition, the variance or special exception would be considered void and the Applicant could be forced to file a new application for the relief requested.

Even if the decision from the Zoning Hearing Board does not include a specific condition imposing a time limit, Applicants should be aware that the zoning relief could have a limited “life” under the Zoning Ordinance. Some Zoning Ordinances include a requirement, or similar requirement, that the building permit for the structure or improvements for which the variance or special exception was received must be obtained within one (1) year from the date of the decision. As a result, if the building permit is not obtained within the stated time period, the variance or special exception would become void.

Applicants should always review the Zoning Ordinance to determine whether the zoning relief obtained is subject to certain permits being obtained within a period of time. If the zoning relief is subject to such a requirement, and the Applicant is not able to meet the deadline, the Applicant could request that the Zoning Hearing Board extend the required time period.

Should you have any questions regarding variances, special exceptions or other zoning related matters, please feel free to contact Carrie B. Nase-Poust, Esquire at cnase-poust@foxrothschild.com.

The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant can obtain a special exception to expand a nonconforming use on its property.

In Mercy v. Zoning Hearing Board of Cross Roads, an applicant filed an application with the Zoning Hearing Board seeking a special exception to expand an existing nonconforming use to include the storage and temporary parking of RVs on its property.  The Commonwealth Court affirmed the grant of the special exception with the following findings:

  • The property was used prior to the effective date of the Ordinance for storage of farm equipment and RVs.
  • The Applicant’s proposed use of the property is similar to the prior nonconforming use because both uses involve equipment storage on the Property, including RVs.
  • Though the board may have erred in finding the Applicant’s proposed expansion of a nonconforming use was required out of a business necessity, such potential error was harmless and does not require a reversal of the trial court’s decision.
  • The Applicant met its burden of satisfying all general and specific standards required to obtain a special exception under sections 504(f) and 624 of the Ordinance.

This case is helpful for applicants who desire to expand a nonconfoming use on their property.

If you should have any questions, please feel free to call Rob Gundlach to discuss at (215) 918-3636, or email him at rgundlach@foxrothschild.com.

Are you a tenant who pays rent to a non-resident individual, estate or trust?  If so, beware!  Act 43 of 2017 created a withholding obligation for certain lessees of Pennsylvania real estate to non-residents and also expanded the requirements with respect to when a copy of Federal Form 1099-MISC is required to be filed with the Pennsylvania Department of Revenue.  Anyone leasing real estate in Pennsylvania, who makes a lease payment in the course of their trade or business to a non-resident lessor, and who is an individual, estate, or trust, is required to withhold from such payments an amount equal to the tax rate specified at 72 P.S. § 7302 (currently, 3.07%).  Withholding is optional for lessees paying a non-resident lessor less than $5,000 annually.  Lessees withholding tax are required to file a Federal Form 1099-MISC with both the lessor and the PA Department of Revenue showing the amount paid to them and the amount of the withholding.

If you should have any questions, please feel free to call Rob Gundlach or Kim Freimuth to discuss at (215) 918-3636 (rgundlach@foxrothschild.com) or (215) 918-3627 (kfreimuth@foxrothschild.com).

House Bill No. 352 passed the General Assembly and has now been signed by the Governor.  See attachment.  It provides that an individual can obtain title to a property by adverse possession in 10 years instead of the 21 years required by prior law.  The property must be less than one-half acre in size and contain a single-family home.  The claimant must also meet all of the underlining requirements of adverse possession under current Pennsylvania law and the new requirements in this new law, including notice to the legal owner then waiting and one year for the legal owner to take action to eject the possessor/claimant.

If you should have any questions concerning this new law, or advice as to adverse possession or condemnation in general, please feel free to call Rob Gundlach to discuss at (215) 918-3636 or rgundlach@foxrothschild.com.

The Cheltenham Township Community Development Corporation (CTCDC) is seeking proposals from qualified applicants for the acquisition and redevelopment of a 5 acre parcel of land, zoned commercial, and owned by the Township.  CTCDC’s objective is to achieve a redevelopment of the parcel in accordance with the newly passed Township zoning plan.  A successful submission will provide the optimal satisfaction of the following objectives:

  • Generating long term tax revenues for the Township and School District.
  • Minimizing the need for variances or other changes to the Zoning code in order to develop the site.
  • Limited the impact on school population.
  • Willingness to share information with the pubic as part of the process.
  • Enhancing the quality of life for the neighboring community.

Key dates for this submission are as follows:

  • June 1, 2018: Inspect and tour the property.
  • June 15, 2018: Deadline for questions.
  • June 27, 2018: Deadline for submission.

For more information regarding the property, submission requirements and selection process, please see the attached.

If you would like assistance to submit a proposal, or to obtain the required zoning and land use approvals for the project, please contact Rob Gundlach at 215-918-3636 or rgundlach@foxrothschild.com.

The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant is entitled to special exception approval, which could help applicant’s in preparing their cases before a zoning board.

In Monroe Land Investments v. Zoning Board of Adjustment and the City of Philadelphia, et al, 2018 WL 1462211, the Commonwealth Court affirmed the decision of the Philadelphia County Court of Common Pleas to reverse the City of Philadelphia Zoning Board of Adjustment’s decision to deny a request for a special exception for a take-out restaurant. In this case, the applicant, Monroe Land Investments (“Monroe”) filed an application with the City of Philadelphia Department of Licenses and Inspections (“L&I”) requesting a zoning/use registration permit to use its property as a Dunkin’ Donuts. Dunkin’ Donuts is classified as a take-out restaurant under the Philadelphia Zoning Code, which requires special exception approval from the Zoning Board of Adjustment (the “ZBA”) under the CMX-2 zoning regulations.

At the hearing before the ZBA, Monroe presented expert witnesses to provide testimony to satisfy the criteria to obtain a special exception. Several interested parties appeared at the hearing and presented testimony in opposition to the proposed Dunkin’ Donuts. The ZBA denied Monroe’s request for the special exception. Monroe appealed the ZBA’s decision to the Court of Common Pleas. The Court of Common Pleas reversed the ZBA’s decision and directed L&I to issue the zoning/use permit for the Dunkin’ Donuts. One of the interested parties appealed the Court of Common Pleas’ decision to the Commonwealth Court. The Commonwealth Court affirmed the Court of Common Pleas’ decision and made the following findings:

  • A special exception is not an exception to the zoning ordinance, but a use permitted conditionally, the application for which is to be granted or denied by the zoning hearing board pursuant to express standards and criteria.
  • The applicant bears the initial burden of proving that the proposed use will not detrimentally impact the neighborhood beyond what is normally expected from the proposed use pursuant to certain criteria.
  • If there are any objectors, they have the burden of proving that the proposed use will detrimentally impact the health, safety and welfare of the neighborhood beyond what is normally expected from the proposed use. In order to meet their burdern, they cannot merely speculate as to possible harm, but must show “a high degree of probability that the proposed use will substantially affect the health, safety and welfare of the community greater than what is normally expected from that type of use”. The burden placed on the objectors is a heavy one.
  • In this case, the applicant provided expert testimony, which was unrebutted; whereas, the objectors only provided speculative comments and opinion, without any expert testimony, which were insufficient to meet their burden.

The Commonwealth Court pointed to the fact that since the objectors only provided their opinion as to the impact the use would have on the neighborhood, without any expert testimony to rebut the applicant’s expert testimony, there was not substantial evidence in the record by which the ZBA could have been persuaded that the project is substantially likely to cause a detrimental impact on the neighborhood’s health, safety and welfare beyond that which might normally be expected from other take-out restaurants.

It is interesting for applicants to note that the standard is not whether the use itself would have a detrimental impact on the neighborhood, but whether the proposed use would have more of an impact compared to what would normally be expected for that type of use. In Monroe, the Commonwealth Court determined that the standard by which the ZBA was to consider the special exception was whether the proposed Dunkin Donuts would have more of an impact compared to other take-out restaurants. This case is helpful in preparing applicants in presenting their case for a special exception from a zoning board

Should you have any questions regarding obtaining special exceptions, or other zoning related questions, please feel free to contact me at cnase-poust@foxrothschild.com.

Are the real property taxes assessed against your property out of proportion to the actual value of your property?  If so, what should you do?

First, you need to determine if you have a basis to file an appeal to the county board of assessment for your property. To do so, you need an experienced real estate assessment attorney and a qualified appraiser.

On commercial and industrial properties, as well as rental residential properties, two calculations often make the determination if you should file a tax appeal. Capitalization of income and comparable sales gives you the ability to make a preliminary determination as to whether a particular tax assessment is out of line.

The capitalization of income approach is the easiest and quickest test to determine the value of your commercial property.  Up to date information on rents, expenses, square footage and occupancy are all necessary to complete the capitalization approach. As to comparable sales, it is important to determine whether the sale is an arm’s length transaction and not mortgage foreclosure or insider transfer. For residential properties, the most reliable determination is comparable sales of similar homes within a reasonable distance from the subject property.

With the above in mind, now is the time of year to review your real estate tax assessment on any and all property owned. If the market value utilized by the board of assessment exceeds the market value of your property, or if you have experienced rental income problems over the last few years, then a tax appeal may be in order. We can help you make that determination.  In Pennsylvania, appeals in Bucks, Chester, Delaware and Montgomery Counties need to be filed on or before August 6, 2018. The deadline for filing an appeal in Philadelphia County is October 1, 2018.

The first step to determine if you have a basis for a tax appeal is to take your property assessment and divide it by the common level ratio from the County where the property is located.  For example, in Bucks County, the current common level ratio (which will change on July 1, 2018), is .109.  So, if your assessment is $500,000, then the County is saying that the fair market value of your property is $4,587,155 ($500,000 / .109).  If it is worth less than that amount, then you may have a case to file a tax appeal.  We handle this work on a contingent or hourly basis.

If you would like more information, please contact Rob Gundlach at 215-918-3636 or rgundlach@foxrothschild.com.

David Restaino writes:

New Jersey MapOn April 20, Governor Murphy signed Executive Order No. 23 (EO 23) committing state government to making intelligent environmental decisions in communities that are disproportionately affected by environmental degradation. EO 23 requires that the NJDEP take the lead in developing guidance that would require state departments and agencies to consider “Environmental Justice” in implementing their responsibilities.

The first draft of the guidance will be due in six months, after which time there shall be another 90 days for the guidance to be finalized and published. Pursuant to that final guidance document, Environmental Justice issues shall be considered by State government in performing all evaluations and assessments. The existing, temporary Environmental Justice Advisory Council within the NJDEP shall continue with its duties and also be available to assist state government in complying with the guidance.


David Restaino is a partner in the firm’s Litigation and Environmental practices, based in its Morristown, NJ office.

The City of Philadelphia Zoning Board of Adjustment has imposed a new requirement for filing Appeals.  As of April 9, 2018, an applicant seeking a variance or special exception from the Zoning Board of Adjustment must submit a Project Information Form prior to filing an Application for Appeal.  The Project Information Form requires basic information regarding the proposed project, including but not limited to, the name and contact information of the applicant, a description of the proposed project, approximate length of construction, whether there will be any job creation as a result of the proposed project, and whether there are any anticipated community impacts (positive or negative) associated with the proposed project.

The Project Information Form can be completed online at https://forms.phila.gov/form/project-information-form/.

The public will be able to view the completed Project Information Form on the City of Philadelphia Department of Licenses and Inspection’s website for the public to view.

All Applications for Appeal to the Zoning Board of Adjustment must include a copy of the Project Information Form confirmation page; otherwise, the Application for Appeal will not be accepted by the Zoning Board of Adjustment.

If you have any questions regarding Appeals to the Zoning Board of Adjustment, feel free to contact me at cnase-poust@foxrothschild.com. 

In the case of Polaris v. Fayette County Zoning Hearing Board, the Commonwealth Court reversed a decision of the Court of Common Pleas and the underlying zoning hearing board to deny an application to use a property as a methadone clinic. In this case, Polaris argued that the ZHB erroneously denied its special exception application on the grounds that Polaris had not met its burden of proof and that the proposed clinic would adversely affect the health, safety and welfare of the surrounding area, specifically due to traffic.

As to the burden of proof argument, the Commonwealth Court started its opinion by noting that both the ZHB and the trial court “confusingly conflate the issues of burden of proof, burden-shifting, and sufficiency of evidence in their arguments and analysis” and then went on to cite the following black letter law as to applications for special exceptions:

1. A special exception is not an exception to a zoning ordinance, but rather a use that is expressly permitted absent a showing of detrimental effect on the community.

2. An applicant for a special exception has the burden of proving that the proposed use satisfies the objective requirements of the ordinance for the grant of a special exception.

3. Once the applicant satisfies this burden, a presumption arises that the use is consistent with the health, safety, and general welfare of the community.

4. The burden then shifts to the objectors to establish the proposed use will have a detrimental effect on the community.

The Commonwealth Court noted that the uncontradicted evidence in the record established that Polaris met the objective requirements of the ordinance and thereby create a presumption that the proposed use was consistent with the health, safety, and general welfare of the community and, as such, both the ZHB and the trial court erred in its determination that Polaris did not meet its initial burden of proof to obtain the special exception.

As to the adverse traffic conditions argument, the Commonwealth Court found that the record showed that Polaris established that the proposed use met the requirements of the ordinance and further noted the following:

1. An increase in traffic alone is insufficient to justify the refusal of an otherwise valid land use.

2. The fact that a proposed use would contribute to projected traffic congestion primarily generated by other sources is not a sufficient basis for denying a special exception.

3. To warrant a denial, there must be not only a likelihood but a high degree of probability that the traffic increases will pose a substantial threat to the health and safety of the community.

Here, the Commonwealth Court confirmed that the record contained no credible evidence whatsoever that the proposed use would generate traffic that would rise anywhere close to pose a substantial threat to the health, safety, and general welfare of the community.

This case again confirms that zoning hearing boards cannot simply dismiss applications for special exceptions for uses that they and the protestors might find objectionable, including methadone clinics.

If you should have any questions as to the law to obtain special exception or conditional use approvals, please contact Rob Gundlach at 215-918-3636, or rgundlach@foxrothschild.com.