General Zoning & Land Use News & Updates

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

 

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.