Municipal, Land Use & Zoning

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.

Andrew D.H. Rau

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 J. Sundquist

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.

Kimberly Venzie

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.

By: Amanda Sundquist

On October 28, 2010, I blogged about the United States Department of Education, Office for Civil Rights issuing a “Dear Colleagues” letter addressing school districts’ obligations in regard to bullying and harassment of district students. In December 2010, the National School Boards Association wrote a letter to Office for Civil Rights to ask it clarify its position on several points in the “Dear Colleagues” letter, where the National School Boards Association found there to be potential conflict with existing laws and cases.

On March 25, 2011, the Office for Civil Rights issued a second “Dear Colleagues” letter in response to the National School Boards Association’s request for clarification.

The issuance of the latest “Dear Colleagues” letter is particular timely for Pennsylvania school districts. In 2008, Pennsylvania adopted an amendment to the School Code which specifically addressed bullying. The amendment required school districts to adopt or amend a bullying policy no later than January 1, 2009. School districts are required to review their bullying policy every three years. The Office for Civil Right’s new guidance can be considered by school districts conducting their three year review of the bullying policy in 2011.

For assistance with reviewing and amending your school district’s policies on bullying or harassment for compliance with federal and state law, please contact me in our West Chester Office.

Amanda J. Sundquist

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.