General Zoning & Land Use News & Updates

In a case caption Smith v. Ivy Lee Real Estate, LLC, the Commonwealth Court of Pennsylvania was faced with the question if Section 617 of the MPC permits a private cause of action to enforce a subdivision land development ordinance (SALDO). In the case, the Smith family alleged that Ivy Lee, who was their neighbor, engaged in construction activities that constituted land development under the township’s SALDO. The Smith family requested, among other things, a permanent injunction against Ivy Lee preventing construction activities unless and until Ivy Lee obtains the required SALDO approvals. The Smith family contended that, even though the township refused to enforce the SALDO, the Smith family had a right to bring a private enforcement action under Section 617 of the MPC.

The trial court determined that Section 617 creates a private cause of action solely for zoning violations, but ruled that the Smith family does not have standing to enforce the SALDO pursuant to Section 617 of the MPC. However, the Commonwealth Court found, in reviewing the language of Section 617 of the MPC and certain case law concerning it, that the plain language of Section 617 permits a private cause of action to enforce an alleged violation of any ordinance enacted under the MPC, including a SALDO.

The net of this case is that landowners can bring a private action against another landowner for their failure to comply with ordinances enacted under the MPC, including their failure to obtain land development approval. From a practical standpoint, given the broad definition of land development in the MPC and many municipal ordinances, there may be more instances where a municipality determines that land development approval is not required (such as for a change in use), but a private party might see otherwise and now, based on this case, has a right to bring their own private action against the violating landowner.

If you have any questions concerning the subject matter contained in this blog, on land use issues in general, please contact Rob Gundlach at 215-918-3636 or RGundlach@foxrothschild.com.

On October 14, 2014, the Pennsylvania General Assembly signed Act 142 creating the Pennsylvania State Construction Notices Directory, which became effective January 1, 2017 (the “Act”). The Act created an online directory whereby project owners or their agents (collectively, “Owner”) can register on an online, searchable state-wide database (the “Directory”) before beginning any construction project that costs over $1.5 million, by filing a Notice of Commencement in the Directory.

If the Owner files the Notice of Commencement in the Directory, a subcontractor or its agent (collectively, “Subcontractor”) must then file a Notice of Furnishing within 45 days of first performing work, services, or first providing materials to the job site. If the Subcontractor fails to properly follow the filing guidelines, it risks losing the right to file any lien claim in the future.

There are also additional filings and compliance requirements for both Owner and Subcontractor that are necessary to protect each party’s rights and interests.  Because of the required filings and additional compliance requirements, it is important for all parties involved to be aware of potential pitfalls and compliance issues that could cost money, time, and are a headache to deal with. For these reasons, it is important to seek professional guidance in these situations to protect your rights and interests and to help you smoothly navigate the process.

If you would like more information, please contact Tim D’Lauro at 215-918-3596 or tdlauro@foxrothschild.com.

A recent case decided by the Commonwealth Court of Pennsylvania confirms how important it is to understand where zoning challenges should be filed and the deadline date by when to file them. In the case of Carr vs. Horsham Township, an objector filed challenges to a zoning ordinance, on both procedural and substantive grounds, to the Montgomery County Court of Common Pleas within 30 days after the publication of the second 108 notice describing the passage of the referenced zoning ordinance. Unfortunately, only the procedural challenge to the zoning ordinance should have been filed to the Horsham Township zoning hearing board. In addition, challenges based on a procedural defects in its enactment must be filed within 30 days of the Ordinance’s effective date. Most zoning ordinances are effective 5 days after its adoption; nevertheless, it is always a safer bet to file the procedural appeal within 30 days after the date when the Ordinance is adopted. In this case, the objectors filed their appeal within 30 days after the publication of the second 108 legal notice. Notwithstanding the late filing, the court did allow the appeal to proceed under a nunc pro tunc basis because the governmental agency publishing the section 108 notice referenced a different and later appeal deadline for the filing of the land use appeal. The Commonwealth Court went on to dismiss the portions of the land use appeal containing substantive challenges due to the failure to properly and timely file such claims with the zoning hearing board and remanded the procedural challenges back to the Court of Common Pleas.

There can be many “trap doors” when filing zoning and land use appeals. Please feel free to consult with us for assistant in this complicated area of law. Rob Gundlach.

Effective July 1, 2017, the City of Philadelphia established a single Department of Planning and Development.  The Department will have three divisions.  The Division of Planning and Zoning will include the Art Commission, the Historical Commission, the City Planning Commission, and the staff for the Zoning Board of Adjustment.  The Division of Development Services will include the development services group which had previously been a part of the Commerce Department.  Lastly, the City’s office of Housing and Community Development, the Philadelphia Housing Development Corporation and the Philadelphia Land Bank will be organized within the Division of Housing and Community Development.

Philadelphia Skyline
Copyright: rudi1976 / 123RF Stock Photo

The idea for the reorganization has been promoted by City Council President Darrell Clarke since 2015 and was approved by the voters as a charter change in November of that year.  In connection with the establishment of the new Department, the Land Bank and the Historical Commission, along with the Development Services section will increase staff.  The remaining sub-groups will not enjoy staff increases.

Within the new Department, particular attention will be paid to the Land Bank which has enjoyed only limited success since its creation in 2013.  While the Land Bank faces challenges associated with assuming duties previously held by a range of departments and agencies, its most acute challenge is likely securing approval for transactions from City Council, particularly in light of the Council’s historic informal policy (known as councilmanic prerogative) of requiring approval from the District City Councilperson in connection with the sale of city property.

The different city offices and agencies which are being coordinated within this single Department will not immediately relocate, so the Department’s offices will continue to be spread among different floors of 1515 Arch Street and 1234 Market Street.  This unorthodox approach will present management challenges to the Director of the Department, Anne Fadullon.

Rob Gundlach represented a shopping center owner to obtain site plan approval, variances, and waivers/exceptions for the conversion and redevelopment of an existing office building in Lawrence Township, New Jersey, for reuse as new car automobile dealership. Rob has represented other owners over the years to obtain zoning and land use approvals in Lawrence Township.  Please consider using Rob for your next project requiring zoning and land use approvals in Lawrence Township.

If you are planning a new development project in Pennsylvania and cannot connect it to public sewer, navigating the Pennsylvania Department of Environmental Protection’s (the “Department”) requirements for the use of an onlot sewage system is key. The Pennsylvania Code (the “Code”) divides onlot sewage systems into three categories: (1) conventional, (2) alternate, and (3) experimental. While the Code defines each category of onlot sewage system, it is not clear about which system may be used for planning a new development. Section 71.62(a) of the Pennsylvania Code states: “[o]fficial plans and official plan revisions proposing individual and community onlot sewage systems shall evaluate general site suitability to establish their use as a feasible alternative.” Notably, this Section does not provide any guidance as to what system may be used to satisfy the “general site suitability requirements” for new development planning.

On March 23, 2017, the Department clarified what system needs to be used in new development planning. This clarification came at the request of Duane Mowery, the Chairman of the Pennsylvania Sewage Advisory Committee. The Department determined that Section 71.62(a) requires all new development plans to use conventional onlot systems to satisfy the general site suitability requirements. Therefore, alternative and experimental onlot systems cannot be used for new development planning. Although the Department requires the use of conventional onlot sewage systems for new development planning generally, there remain certain exceptions to the Department’s broad rule. Because every parcel of land and situation is unique, we can help you ensure that you are using the correct onlot system when planning your new development project.

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

Nothing can stop a development project faster than a Pennsylvania municipality denying a developer’s Act 537 planning module for wastewater management. If the municipality refuses a developer’s plan to connect to public sewer or to install some alternate or experimental onlot sewage system, the entire development project is at risk. However, a municipality’s denial of an Act 537 planning module update is not the end of the line.

Under Section 750.5(b) of the Pennsylvania Sewage Facilities Act, any resident or equitable property owner (the “applicant”) located in the denying municipality may file a “private request” with the Pennsylvania Department of Environmental Protection (the “Department”). A private request asks the Department to compel the municipality to revise its Act 537 Plan in accordance with the applicant’s plan. To be successful, the applicant must show that the municipality’s Act 537 Plan is either (1) not being implemented, or (2) is inadequate to meet the applicant’s sewage disposal needs. If the Department approves the private request, the municipality is required to revise its Act 537 Plan in accordance with the applicant’s plan.

While submitting a private request to the Department may appear simple, the process requires strict adherence to certain procedural requirements. In addition to substantive proof that a municipality’s Act 537 Plan is inadequate, the applicant must comply with specific notice, filing, and public comment requirements. If the applicant does not meet these procedural requirements, the Department may deny a private request without addressing the merits of the applicant’s request. Therefore, leaving the development project in no better shape than it was before. We can help you navigate the private request process to ensure that your request receives the Department’s full attention and review.

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

In a majority decision issued June 20, 2017, with a complement of new Justices, the Pennsylvania Supreme Court issued a ruling placing further emphasis on the importance of Article I, Section 27 of the PA Constitution.  The decision was in PA Environmental Defense Foundation v. Commonwealth of PA, and it addressed how the Commonwealth is allowed to spend the money received through oil and gas leasing of state land.

Article I, Section 27 is the constitutional provision declaring:  “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”  It also contains language requiring the Commonwealth to act as trustee of the public’s natural resources.

Of importance to real estate developers is the fact that Article I, Section 27 can be used by those challenging PADEP permits through appeals of final actions to the PA Environmental Hearing Board.  In cases challenging DEP approvals, the third party appellants and environmental groups allege that DEP acted arbitrarily, capriciously or contrary to law, and they generally have thrown in allegations that PADEP’s action violated Article I, Section 27.  For many years, the law was that if the General Assembly adopted the applicable regulations in an effort to protect the environment, then acting in conformance of those regulations would comply with Article I, Section 27.  That was until a plurality decision of the PA Supreme Court in 2013, known as the Robinson Township case, in which the court found that the prior test, known as Payne I, stripped all meaning from the constitutional provision.  As a plurality decision, the Robinson Township decision could only go so far in changing the prior law.

Since 2013, several new justices have been elected to the court, and now those justices have weighed in on the import of Robinson Township, and they have wholly endorsed the law as stated in that plurality decision.  What does that mean?  The most important sentence in the decision for me is the one finding that Article I, Section 27 “places a limitation on the state’s power to act contrary” to the rights expressed therein, and “while the subject of this right may be amenable to regulation, any laws that unreasonably impair the right are unconstitutional.”  As I read that, the Court is clearly saying that PADEP actions not only have to comply with the regulations, but more may be required to satisfy Article I, Section 27 to prevent the action from being unconstitutional.

It’s unclear if this decision will cause PADEP to act differently, since the decision mostly related to oil and gas leases and DCNR funding, but I think it’s now clear where the PA Supreme Court stands on Article I, Section 27 and state action.  Anyone seeking a permit from PADEP will need to be mindful that complying with PADEP regulations may no longer be enough, and that additional actions may be needed to go above and beyond the regulatory requirements, in order to ward off any constitutional challenges to PADEP’s action based on Article I, Section 27.

When a developer receives a Notice of Violation (NOV) from PADEP for noncompliance with the Clean Streams Law — most typically involving alleged violations of an NPDES storm water construction permit — that NOV sometimes results in a civil penalty being imposed.  If the project is brought into compliance, PADEP often looks to resolve the matter with a fine and the signing of a Consent Assessment of Civil Penalty (CACP).  I’m often asked by clients what happens if the developer thinks the fine is too high and they refuse to sign the CACP?  Well, in that case, PADEP can file a penalty action against the developer, essentially asking the PA Environmental Hearing Board (EHB) to assess a penalty.  That’s exactly what happened in a recent case involving violations of the Clean Streams Law alleged against a gas drilling operation for discharges from an impoundment.  The case was PADEP v. EQT Production Co. and it was decided by the EHB on May 26, 2017.  In that decision, the EHB noted that while PADEP is free to suggest a penalty amount, its suggestion is “merely advisory” and the EHB may impose a penalty that is higher or lower.  The EHB noted that while PADEP’s penalty amounts are based on guidance documents and penalty policies, none of those apply to the EHB, which only applies statutory and regulatory penalty provisions and uses its own precedents.  In this recent case, PADEP had made an initial demand of $4.5 million.  In the hearing before the EHB, it simply asked that a “very substantial penalty” be imposed.  Ultimately, the EHB imposed a penalty of $1.137 million.  While still a significant penalty, it appears to be just 25 percent of PADEP’s initial demand.  In my experience, the vast majority of civil penalties imposed by PADEP for violations of the Clean Streams Law get resolved through CACPs.  In evaluating options when confronted with a CACP, developers can and should consider whether having the EHB calculate the penalty is likely to result in a higher or lower penalty, taking into consideration the cost of litigating the matter against PADEP before the EHB.

When the Philadelphia Zoning Code was amended in August, 2012, a Transit–Oriented Development (“TOD”) Overlay District was included.  Such districts have become increasingly favored by urban planners as a way to encourage development adjacent to transit hubs, with associated increase in the use of public transit and a decrease in reliance upon private transportation.  However, the provision included in the 2012 Zoning Code proved cumbersome, and during the intervening 4+ years, no parcel in Philadelphia has been so designated.  In response, Councilwoman Blondell Reynolds Brown and Councilman Bill Greenlee jointly introduced on February 23, 2017, a new ordinance amending the TOD overlay (ordinance # 170162).

Public transit
Copyright: 06photo / 123RF Stock Photo

The main objective of the proposed new Overlay District is to both simplify the application of the TOD and increase bonuses, which would be available to landowners and developers who utilize it. To achieve the simplification, the Overlay District would apply to any parcel located within 500 feet of a designated transit station.  It is anticipated that stations will be so designated only by action of City Council, and presumably only after approval of the District City Council person in whose district the TOD will be designated.

There will be a development bonus of 30% of the otherwise permitted FAR for parcels located in the TOD.  Furthermore, bonus FAR is available for green buildings, next income housing, provision of public space, provision of underground parking, and certain transit connections.  Where bonuses of 150% are available, generally, in the Philadelphia Zoning Code for provision of such items, in the TOD, bonuses can be accumulated allowing for an increase of FAR of 200%.

One interesting provision of the proposed new ordinance is that for the first time, Philadelphia would impose a maximum amount of parking which can be made available in connection with a project.  This change will be welcome by planning professionals, who hope similar provisions will be applied in Center City.

It is certainly unclear whether or not City Council will pass the ordinance in the form introduced, but if passed, the City’s planning professionals will seek to convince members of City Council to designate a small number of pilot TOD districts, which will be tested to see whether increased development can be triggered by this approach.

As of this blog post, City Council’s Rules Committee has not scheduled the ordinance for a public hearing.  It appears that usual, short-term concern about parking availability may delay the implementation of this forward-looking approach.