General Zoning & Land Use News & Updates

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 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.

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.

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.

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