Municipal, Land Use & Zoning

By: Andrew D.H. Rau

How fast does a local government have to move in processing a cell tower application? A new federal regulatory order attempts to speed the process.

On November 19, 2009 the Federal Communications Commission issued an order that will impact municipalities and cell tower providers across the country. Known as the “shot clock” order, the FCC action establishes time frames that it says are reasonable for municipalities to act on applications– 150 days for a new tower, and 90 days for certain additions to existing towers (known as “collocation”).

This FCC decision may create tension between federal timing expectations, and local zoning and planning law.

The FCC order is sure to be debated by local governments and the cell tower industry—especially since the FCC decision appears to attempt to administratively overrule a series of federal cases involving burdens of proof. Some federal court decisions have come down in favor of municipal control over cell tower siting (including a lead 3d Circuit case litigated by this writer, Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Township, (3d Cir. 2003). Since the FCC appears to have adopted standards inconsistent with federal case law in some circuits, the ongoing push and pull between the cell tower industry and local government may be heading back to the courts.

For more information on the new FCC order, and its impacts, please contact Andrew D.H. Rau.

By: Amanda J. Sundquist

In Harleysville Homestead, Inc. v. Lower Salford Township Authority, 980 A.2d 749 (Pa. Commw. Ct. 2009), a residential developer applied to the authority to secure public sanitary sewer service for its development. The developer and the authority entered into an agreement for the construction of sewer lines, under which the developer agreed to pay a certain tapping fee per dwelling unit, plus a one-time connection fee. The developer paid a portion of the fees, but later initiated suit, arguing the authority’s charges under the agreement for tapping fees were in error and therefore, the authority had violated the Municipality Authorities Act by over charging for sewer capacity. The authority argued, in part, that the developer’s action was not timely.

The Commonwealth Court determined the authority’s action was a violation of a statutory duty, not of a contract. As such, the action was governed by the two year statute of limitation for a tort, rather than the four year statute of limitation for a contract action. The court found the developer’s action to be untimely. For questions regarding sewer fees and timelines, please contact our office.

By: Anthony T. Verwey

Read my recent post about personal use of company-owned computers. For more information on your rights, please contact our office.

By: Kimberly P. Venzie

Is a defective ordinance always ineffective? It all depends, according to a new decision of the Commonwealth Court. In Hawk v. the Eldred Township Board of Supervisors, —A.2d—(Pa. Commw. Ct. 2009), the Pennsylvania Commonwealth Court discussed Section 5571.1 of the Judicial Code as well as related changes to Section 1002-A (b) of the Municipalities Planning Code with respect to procedural challenges to municipal ordinances. The Appellant filed a procedural challenge to an ordinance nearly four years after the ordinance’s enactment date. New Section 5571.1 of the Judicial Code sets forth a multi-tiered system in which the criteria for challenging an ordinance vary and increase depending upon the amount of time that has passed since its adoption. The Court found that the Appellant was unable to meet his burden to show that insufficient notice was given to the public. The Appellant was further unable to rebut the presumption of substantial reliance on the ordinance by the Township and its landowners – a requirement set forth in Section 5571.1(d)(2) of the Judicial Code which applies if the ordinance is challenged two or more years after its effective date.

The Court noted that a challenge to an ordinance can never be time barred if doing so would cause the challenger to suffer a deprivation of constitutional rights; however, this was not shown in the instant case. As discussed by the Court, Section 5571.1 of the Judicial Code does indeed increase the hurdles to procedural challenges as time passes, and further increases the burden placed on challengers to rebut the presumption of reliance upon the ordinances which serves to protect municipalities and alleviate their uncertainty as to whether their ordinances are valid. Clearly, municipalities should continue to carefully follow procedures with respect to enactment of their ordinances; however, it does appear that with the passage of time, municipalities now have a greater chance of their ordinances being found to be valid and enforceable. For more questions regarding how this case may impact your property or your municipality, please contact our office.