Municipal, Land Use & Zoning

By: Kimberly P. Venzie, Esquire

On November 3, 2011, Act 84 of 2011 was signed into law in Pennsylvania and becomes effective on January 1, 2012. Act 84 amends certain provisions of the Second Class Township Code which require Townships to advertise and seek bids for purchases and contracts of a certain minimum dollar amount.   Act 84 increases that minimum dollar amount from $10,000 to $18,500 which will lessen the regulatory bidding restraints on Townships.   Townships will not have to comply with the state’s burdensome bidding and advertising requirements if the amount of the purchase or contract is below $18,500.  Additionally, the threshold amount for written or telephonic price quotations has been raised from $4,000 to $10,000. Townships are required to seek written or telephonic price quotations from at least three contractors for all contracts between the amounts of $10,000 to $18,500.   Township will not have to comply with the state’s bidding and advertising requirements for purchases of less than $10,000 which gives Townships greater flexibility and results in costs savings. Similar new laws will also provide bidding relief to boroughs and school districts.

For a full copy of Act 84 provisions, click here and search by House Bill No. 278. For more on this topic, please contact Kim Venzie in our West Chester office. Unruh, Turner, Burke and Frees maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Pennsylvania Main Line.

By: Anthony Verwey

On November 23, 2011 the Supreme Court of Pennsylvania rendered a decision that may have far reaching implications with regard to state, county, municipal and school district leasing of buildings and office space. In a case captioned 500 James Hance Court, et al. v. Pennsylvania Prevailing Wage Appeals Board, ___ A.3d ___, 2011 WL 5865752 (Pa. 2011), a developer planned to construct a building and then entered into a preconstruction lease with a charter school. The construction of the building was to take place in essentially two phases, the shell and the interior fit out. The Bureau of Labor Law Enforcement made a determination that the entire project was subject to the provisions of the Prevailing Wage Act and the developer filed a grievance to appeal this conclusion. The matter worked its way through the Prevailing Wage Appeals Board, the Commonwealth Court, and finally to the Supreme Court of Pennsylvania. Through the appeal process the Bureau and Prevailing Wage Appeals Board, which had initially decided the matter, took the position that a five part test utilized by the federal government to determine the applicability of the Davis-Bacon Act must also be used to determine whether the Act applies to a preconstruction lease between a private developer and a public entity.

After consideration of the Pennsylvania Prevailing Wage Act and the facts of the case, the Supreme Court concluded that although the lease and construction agreements did not clearly separate the construction of the shell and interior fit out of the building, such bifurcation was a natural result of the construction process into phases which are to be treated separately for prevailing wage analysis. Because it was undisputed that the interior fit out would be completed by the charter school, there was no question that prevailing wage requirements would apply to that phase of the construction. However, with regard to the shell of the building, the Supreme Court flatly rejected the Prevailing Wage Appeals Board’s position that the five part federal analysis must be applied to the shell of the building.

In that regard, the Supreme Court articulated a test to be used to determine whether the Prevailing Wage Act applies to a preconstruction lease arrangement between private developers and a public entity subject to the Act. The court noted that “privately financed construction work does not facially implicate the terms of the act …” and that a developer could establish a prima facie case that the prevailing wage relation is not implicated where it presents evidence that “… it is incurring the risk and obligations of an owner/mortgagor in construction, that there is no public financing component to the work (or, under, Penn National I, in the relevant major phase of construction), and that its relationship with the covered entity is as a lessor under a facially legitimate lease… .”

Central to this analysis was the question of whether there was any public financing as the Prevailing Wage Appeals Board asserted based on rents to be paid under the lease, which would ultimately be used to recoup the costs of construction. The Supreme Court also rejected this position as there was no evidence that the recoupment period would be substantially shorter than the industry norm for building shells of the type involved in that matter. Likewise, the Court found that provisions in the lease allowing for an option to purchase did not satisfy the public financing component where the building would be purchased at fair market value. In rendering its decision, the Supreme Court has now provided a clear analytical tool for determining whether a preconstruction lease will be subject to the requirements of the Prevailing Wage Act.

Anthony Verwey is a partner at Unruh, Turner, Burke and Frees. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Amanda Sundquist

On November 9, 2011, the “Safety in Youth Sports Act” was signed into law.  The Act addresses concussion and head injury risks for student athletes and the education of the coaching staff.

School districts have new parent notification obligations under the Act.  Prior to participation of a student athlete in an athletic activity, the student and his or her parent/guardian shall receive a concussion and traumatic brain injury information sheet and must return a signed acknowledgment of receipt.  School districts may elect to hold informational meetings prior to the start of each athletic season regarding concussions and other head injuries.

Coaches are required to complete a concussion management certification training course once a year to be able to coach athletic activities. The Act also contains standards regarding removal from play and return to play for students athletes. School districts are required to establish minimum penalties for coaches who fail to comply with the removal from play and return to play requirements.

The Safety in Youth Sports Act will go into effect July 1, 2012.    If you require assistance developing policies and forms relating your school district’s obligations under this new Act, please contact Amanda Sundquist in our West Chester office.

Amanda Sundquist is an associate at Unruh, Turner, Burke and Frees. Amanda practices in the areas of Pennsylvania Municipal and School Law, and Pennsylvania Zoning and Land Use Law. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Andrew D.H. Rau

The constitutional debate surrounding student prayer in the public school setting has long been the subject of discussion in the federal courts. Now, the Third Circuit Court of Appeals has issued an important decision on a related question—the right of a school board to open its meetings with prayer.

Third Circuit Ruling in Doe v. Indian River School District

The six-year old case began in Delaware’s Indian River School District when the two resident families challenged the district board’s custom of beginning public meetings with Christian-based prayers.

Indian River argued that the 1983 U.S Supreme Court case of Marsh v. Chambers protects “deliberative bodies” in choosing to open legislative and similar meetings with prayer. While the school district was successful at the trial level, the Third Circuit overturned the lower court decision on August 5, 2011, finding that as to public school systems, the 1994 Supreme Court decision in Lee v. Weisman controls. The Lee case held that the practice of having school administrators choose local religious leaders to lead graduation prayers is a violation of the Establishment Clause of the First Amendment to the U.S. Constitution.

School Board Prayer a State Sponsored Religious Endorsement?

The new Third Circuit ruling looked to Lee and similar cases, finding that “the need to protect students from government coercion in the form of endorsed or sponsored religion is at the heart of the school prayer cases.” The Indian River School District argued that unlike a classroom setting or official graduation exercise, students and members of the public have the ability to come and go as they please during public board meetings. But the Third Circuit said it was not enough to allow audience members to leave during the meeting’s prayer component. The court found the prayer tradition to be a state-sponsored religious endorsement, and therefore an Establishment Clause violation.

This case does not appear to call in to question the continuing right of other legislative bodies, such as townships and boroughs, to begin a meeting with prayer. But as to public educational systems, Doe v. Indian River School District is the current rule in the Third Circuit which includes Pennsylvania, New Jersey and Delaware.

Indian River School District recently requested additional time to petition for re-hearing at the Third Circuit level. It remains to be seen whether the district will ultimately ask the U.S. Supreme Court to consider the case at the highest level.

To read the full appellate decision, go to: http://www.ca3.uscourts.gov/opinarch/101819p.pdf

Andrew D.H. Rau is a partner at Unruh, Turner, Burke and Frees. Andrew practices in the areas of municipal and zoning law, real estate and land use. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Amanda Sundquist

Following up on its recent guidance on bullying and harassment, on June 14, 2011 the Office for Civil Rights (“OCR”) issued a “Dear Colleagues” letter regarding the impact of the Equal Access Act (the “Act”) on gay-straight alliances (GSA) and similar student-initiated groups addressing LGBT issues. OCR reminds school districts that the Act applies to these student-initiated noncurricular groups as well.

Enacted in 1984, the Equal Access Act applies to public secondary schools that receive federal funding. If the school allows one or more noncurricular student groups to meet on its premises during noninstructional time, it has created a limited open forum and must comply with the Act. Schools may not then deny similar access to other noncurricular student groups based of the subject matter the group addresses. Also included with the “Dear Colleagues” letter are Legal Guidelines Regarding the Equal Access Act and the Recognition of Student-Led Noncurricular Groups. These guidelines address the scope of the Act, the school’s legal obligations, and issues that may arise when applying the Act.

For assistance in reviewing or developing your school district’s Equal Access Act policy or in answering questions regarding limited open forums, curriculum related groups, or other issues arising from the Act, please contact me in our West Chester office.

Amanda Sundquist is an associate at Unruh, Turner, Burke and Frees. Amanda practices in the areas of Pennsylvania Municipal and School Law, and Pennsylvania Zoning and Land Use Law. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Andrew D.H. Rau

If momentum forms behind a bill introduced in Harrisburg, the traditional understandings of local zoning control in Pennsylvania could be in for a major adjustment.  The legislation sponsored by Senator Joseph Scarnati would provide for impact fees to be paid by Marcellus Shale drillers across the state.  But a component of the bill would also have the Pennsylvania Public Utilities Commission adopt a model zoning ordinance for state-wide use, limiting local regulation over drilling.  Importantly, the proposal would prohibit any local government from adopting an ordinance with more stringent standards than the state model.  If a local government went beyond the model ordinance, it would be prohibited from receiving a share of the impact fees.

The language of the legislation would require the model ordinance to allow drilling by right in all districts other than residential zones, and could limit height, noise and other restrictions unless the limits are applied to similar local land uses.

Industry and local government advocates have long debated the line between state authority and local land use control, and this legislation is the latest hotspot.

You can track the legislation here:
http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2011&sind=0&body=S&type=B&BN=1100

Andrew D.H. Rau is a partner at Unruh, Turner, Burke and Frees. Andrew practices in the areas of municipal and zoning law, real estate and land use. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Amanda Sundquist

The United States Department of Education’s Office for Civil Rights (OCR) has recently issued a “Dear Colleague” letter regarding school district enrollment practices. The letter focuses on practices that may discourage enrollment of students based on their or their parents’ actual or perceived citizenship or immigration status. Under federal law and as confirmed by the United States Supreme Court in Plyler v. Doe, school districts are obligated to provide access to public education for any child residing in the school district, regardless of immigration status or citizenship. The letter reminds school districts that a student’s citizenship or immigration status or that of their parents is not necessary to establishing residency in the school district. The letter also addresses school districts’ requests for birth certificates, social security numbers and racial and ethnicity identification as part of the student enrollment process. OCR has a Fact Sheet and Q & A information available on its website to provide additional guidance to school districts.

For assistance in confirming your school district’s student enrollment policies are consistent with federal law, please contact me at our West Chester office.

Amanda Sundquist is an associate at Unruh, Turner, Burke and Frees. Amanda practices in the areas of Pennsylvania Municipal and School Law, and Pennsylvania Zoning and Land Use Law. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Andrew D.H. Rau

The oil and gas industry’s race to develop the Marcellus Shale across Pennsylvania has brought to the forefront the tension between large-scale development interests and local government.  Pennsylvania boroughs, townships and cities are grappling with the limits of local zoning power as they consider the means of regulating and controlling drilling locations and the related traffic, noise, and other uniquely local impacts.

The appellate courts are helping define this legal landscape, and in a series of recent decisions the dividing line between the state’s oil and gas laws, and local ordinances, is being established.

The Pennsylvania Supreme Court case of Huntley & Huntley v. Oakmont Borough Council, 964 A.2d 855 (Pa. 2009) leaves the door open for local zoning regulation pursuant to the powers granted by the state’s Municipalities Planning Code (MPC).  The Huntley decision expressly recognized the power of the MPC when it comes to zoning prerogatives of the local government.  The court wrote that “the MPC’s authorization of local zoning laws is provided in recognition of the unique expertise of municipal governing bodies to designate where different uses should be permitted in a manner that accounts for the community’s development objectives, its character,” and what was described as the “suitabilities and special nature of particular parts of the community.”  The conclusion—local zoning power lives on in the Marcellus Shale era.

But how far does the municipal power extend?  In Range Resources Appalachia, LLC v. Salem Township, 964 A.2d 869 (Pa. 2009) a case decided at the same time as Huntley, the Supreme Court said that local governments go too far if they try to regulate things already controlled by the state’s Oil and Gas Act, such as detailed technical standards for drilling, oversight of well heads, well casings and capping requirements.

There is more to come.  The case of Penneco Oil Company, Inc. v. County of Fayette, 4 A.3d 722 (Pa. Cmwlth. 2010), was recently issued by the Commonwealth Court, and attempted to further define the limits of local control.  The Commonwealth Court found that appropriate local zoning controls included “preserving the character of residential neighborhoods, and encouraging beneficial and compatible land uses.”  The case also upheld the local government’s right to adopt ordinances requiring special exception applications before a zoning hearing board in some cases.  The gas industry players have asked the Supreme Court to consider an appeal.

Meanwhile, local governments, and oil and gas interests across Pennsylvania, hope for more clarity from the courts.  Contact Andrew D.H. Rau in our West Chester office for more information.

Andrew D.H. Rau is a partner at Unruh, Turner, Burke and Frees. Andrew practices in the areas of municipal and zoning law, real estate and land use. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Amanda Sundquist

On December 17, 2010, I blogged about a First Amendment law suit brought by two middle school students against Easton Area School District in federal court. The District banned the wearing of “I (heart) Boobies” bracelets distributed by the Keep A Breast Foundation. The students were suspended for failing to comply with the ban.

On April 12, 2011, the federal court granted a preliminary injunction in favor of the two students, which prohibits the school district from continuing with its bracelet ban. The federal court also concluded that: (1) the school district did not show that wearing the bracelets caused a substantial disruption to the school district sufficient to allow the school district to impose discipline and (2) the bracelets could not be reasonably found to be lewd or vulgar speech under the standard of School District v. Fraser so the school district could not utilize the Fraser exception. The federal court’s memorandum can be found here.

For disciplinary issues associated with your school district’s speech or dress polices, please contact me in our West Chester office.

Amanda Sundquist is an associate at Unruh, Turner, Burke and Frees. Amanda practices in the areas of Pennsylvania Municipal and School Law, and Pennsylvania Zoning and Land Use Law. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Kimberly P. Venzie

As discussed in my previous blog on November 24, 2010, the Neighborhood Blight Reclamation and Revitalization Act (the “Act”) empowers municipalities to take legal action against owners of deteriorating properties and deny municipal permits in certain circumstances. Municipalities across Pennsylvania are drafting ordinances, and in many cases, are ready to adopt ordinances in order to implement the provisions of the Act in their respective communities. The Act becomes effective on April 25, 2011; however, the impact of this Act remains to be seen and will likely depend upon the number of municipalities that utilize the tools offered by the Act and how effectively the Act is enforced locally. More discussion regarding the Act can be found on the Pennsylvania State Association of Borough’s website in their November 2010 edition of The Frontline.

Owners of deteriorated properties facing more aggressive enforcement action may be well served by reviewing the tax relief offered to them in the Local Economic Revitalization Tax Assistance Act (referred to as “LERTA”), 72 P.S. Section 4722 et seq., which offers tax relief to commercial construction or improvements within areas designated as a deteriorated area, and in the Improvement of Deteriorating Real Property or Areas Tax Exemption Act, (the “Improvement Act”), 72 P.S. Section 4711 et seq., which offers tax relief to residential construction or improvements.   The intent of LERTA and the Improvement Act is to encourage construction improvements to be made in blighted areas by not taxing the property owner for the increased assessed value of the property for a certain period of time. Many deteriorated properties facing enforcement action by municipalities are also located in areas designated as being eligible for tax relief. Property owners bringing properties into compliance might also be eligible for tax relief associated with the improvements being made to the properties and should certainly seek such relief if it is available.

For a full copy of the Neighborhood Blight Reclamation and Revitalization Act’s provisions, see Senate Bill No. 900. For more on this valuable new resource for municipalities, contact Kim Venzie in our West Chester office. Kim is an attorney at Unruh, Turner, Burke and Frees. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Pennsylvania Main Line.