Municipal, Land Use & Zoning

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.

By: Kimberly P. Venzie

The Pennsylvania State Education Association and employees recently sought a preliminary injunction against the Pennsylvania Office of Open Records to prevent the disclosure of their home addresses pursuant to the Right-to-Know Law. In a recent Order and Opinion, the Pennsylvania Commonwealth Court has determined that public school employees’ privacy interest in their home addresses outweighs the Commonwealth’s interest in public disclosure of home addresses.(1) The Commonwealth Court conceded that the Right-to-Know Law does not specifically exempt the home addresses of public school employees from public disclosure. However, the Court held that held that the Pennsylvania Constitution may provide a person with a privacy intrest in his or her home address and the benefit of public disclosure does not outweigh this privacy interest. The Court granted the preliminary injunction to stop the disclosure of the employees’ home addresses.

In an advisory issued by the PA Office of Open Records, Executive Director Terry Mutchler directed that there will be no Final Determinations issued by the Office of Open Records resulting in the mandated release of any public employees’ home addresses (not just limited to public school employees) pending final resolution of the above litigation. For updates on advisories issued by the Office of Open Records and other related information on the Right-to-Know Law, please go to its website at http://openrecords.state.pa.us.

If you have any questions regarding the above or would like updates on recent developments under the Right-to-Know Law, please contact Kimberly P. Venzie.

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(1)Pennsylvania State Educ. Association ex rel. Wilson v. Com., Dept. of Community and Economic Development, Office of Open Records, 2009 WL 2602198 (Pa. Cmwlth.).

By: Amanda J. Sundquist

In ,Crandell v. Pennsbury Township Board of Supervisors, et al. — A.2d — (Pa. Commw. Ct. 2009), the Commonwealth Court addressed public opposition to a plan by a Township Board of Supervisors member.  Fenton, a resident who ultimately became a board member, formed a group to oppose a developer’s plans.  After being elected to the board on a platform of opposing the plans, Fenton wrote various Planning Commissions seeking support, publicly spoke out against the plans at hearings, directly contacted other organizations to block the plans and acted as a consultant to an opposing citizens group.  The developer filed a petition to enjoin and prohibit Fenton and another board member from taking any action with respect to the plans.  The trial court determined that Fenton could not act in an unbiased fashion and prohibited him from participating in decisions and discussion regarding the plans, but allowed the other board member to remain.  The trial court further required a replacement individual to participate in any vote on any matter pertaining to the plans in place of Fenton.  An appeal followed.

Among other issues, the Commonwealth Court looked at whether preemptively prohibiting Fenton from participating in any decision related to the plans and appointing a replacement board member was proper.  The Court focused on Section 603 of the Municipalities Planning Code which specifically protects board members’ right to vote in accordance with a campaign promise or other past statements.  The Commonwealth Court distinguished Crandall from its decision in Prin v. Council of Municipality of Monroeville, 645 A.2d 450 (Pa. Commw. Ct. 1994).  In Prin, the request for recusal occurred in an actual proceeding when a decision was in the process of being made.  Here, the Court found the developer had bypassed the voting procedures by filing suit in advance to prohibit Fenton from not only voting, but also from expressing his opinion at board proceedings.  The board had already granted preliminary plan approval and Fenton had stated an intention to refrain from future plan votes.  As such, the Court found the developer no longer had any reason to fear Fenton’s vote.  Silencing Fenton’s opinion in his public capacity was contrary to Section 603.

The Court also found the developer’s procedure violated the recusal procedure.  Traditionally, a request for recusal is to be directed to the offending official for his own self-assessment.  It is only after an official refuses to recuse himself and some substantive adverse action occurs, that the issue is reviewable.  The Court found that even if the developer’s plans were presented and Fenton refused to recuse himself, the developer had a right to appeal an adverse decision to the Court.  Therefore, the developer had a remedy at law and a “pre-emptive strike” was not necessary.

Finally, the Commonwealth Court found the trial court erred in ordering a replacement board member to act in place of Fenton on matters relating to development.  As the board was composed of three members, a quorum consisting of at least two members was present to vote.

For more information about how this decision may affect you or your local municipal board, please contact our office.

By: Amanda J. Sundquist

Out of school activities by students and staff that impact the effective running of a school district are a gray area to navigate. Recently, the 9th U.S. Circuit Court of Appeals concluded that a teacher’s personal blog contained “several highly personal and vituperative comments” which justified the school district demoting her from her job as a curriculum specialist and instructional coach to a classroom teacher. The legitimate administrative interests of the school district outweighed the employee’s First Amendment rights.

While the Court’s decision in Richerson v. Beckon is not controlling in Pennsylvania, it illustrates the need for employees and students to exercise good judgment in what they place on blogs and other internet communication vehicles. For more information please contact our office.

By: Daniel P. Dwyer

A United States Supreme Court decision issued on June 25 clarified an issue that may be of interest to school districts. The issue is: what constitutes a reasonable search of a student when a school employee has a reasonable suspicion that the student may have narcotics or other contraband on her person. The Court’s discussion of an Arizona public school’s strip search of a middle school student who was suspected of distributing prescription drugs is summarized below.

In Safford Unified School District #1, et al. v. Redding, the mother of a 13-year old middle school student sued her local school district, an Assistant Principal, the school nurse and an administrative assistant because they ordered or participated in a search of her daughter that included: 1) a search of the student’s bag; 2) a search of the student’s outer clothes, and; 3) a search that required the student to strip-down to her underclothes and turn them out in a manner that allowed a limited view of her breasts and pelvic area. The mother claimed that the search violated her daughter’s 4th Amendment protection against unreasonable search and seizure. The Supreme Court held that, although the first two parts of the search were appropriate under the circumstances, the third “strip search” violated the student’s constitutional rights.

The search was unconstitutional because it was not, “ … reasonably related in scope to the circumstances that justified the [search] in the first place.” The Assistant Principal knew that the contraband in question was prescription strength ibuprofen and an over-the-counter pain reliever. The search was not reasonable related to the justification for the search because, “… non-dangerous contraband does not raise the specter of stashes in intimate places” and there were no circumstances present here, either in the form of known practices or statements of other students, that suggested that such a search might be fruitful.

In conclusion, this decision recognizes that school searches may be justified by a lower level of suspicion than criminal searches but that the appropriateness of a search may differ with the age and gender of the student. Furthermore, with reasonable suspicion, searches of bags and pockets are not unreasonable. However, as the search becomes more intrusive (again, considering age and gender), actors must have suspicions of a dangerous threat and a factual basis for deciding that the search may yield contraband.
For more information about how this decision may impact your school district’s search policies and procedures or your student’s rights, please contact our office.

By: Amanda Sundquist

Chester County and other local residents often wonder if they can appeal a decision by their Zoning Hearing Board (“ZHB”). In a recent case, a landowner applied to the ZHB for variances. At the hearing, the ZHB granted a resident party status. The resident tried to appeal the ZHB’s decision. The landowner argued the resident could not appeal because he was not an aggrieved party. The Commonwealth Court determined when a resident attends a hearing to oppose a landowner’s application and the landowner does not object to the resident appearing or becoming a party, the resident is able to appeal the decision.   See Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622 (Pa. Commw. Ct. 2009).

For questions regarding party status or other standing issues in a land use appeal, please contact Amanda Sundquist.

By:    Amanda Sundquist

In my recent blog entry, Dedicated or Donated Property, the Commonwealth Court’s decision in In Re: Erie Golf Course was discussed.  The Lake Erie Region Conservancy, Inc. and the Committee to Keep Erie Golf Course Open filed a petition with the Supreme Court of Pennsylvania for allowance of appeal from the Commonwealth Court’s decision.  On May 13, 2009, the Supreme Court granted the appeal.  Visit the blog for updates as this case proceeds.

By: Kimberly P. Venzie

Americans are learning to do more with less. This includes the American homeowner. Transitioning into a larger home or taking an extravagant vacation may not be the wisest decisions during these challenging economic times. Homeowners might consider creative opportunities to utilize their home to its fullest potential while also increasing the value of their homes.

Are you considering expanding livable space by finishing your basement or building an outdoor deck to make greater, more enjoyable use of your home? It is likely a wise choice. Simplify life and save money by having family celebrations at home rather than at fancy restaurants or rental facilities. Building an addition to your home or finishing your basement allows you the space to do just that – and comfortably!

Do you operate your own business? Consider the possibility of moving the operation of that business into your family home in order to save expenses. A key element to the successful operation of such a business is to have a separate space allocated to the business within your home. Check out useful websites offered by the State of Pennsylvania such as www.newpa.com or www.dli.state.pa.us for information on small businesses and related regulations.

Be creative with your home and its possibilities. Yet, be aware that your Township or Borough likely has ordinances and regulations governing what uses are permitted within your home as well as certain restrictions upon improvements made to your home. You might require a variance from yard setbacks on your property to build your new deck in the ideal location. If you want to operate a home-based business, you might need to show your local officials why you should be permitted to do so according to local ordinances.

Any one of the attorneys in our municipal law group can review local ordinances and help you determine if your dream for your home can become a reality. We can help you reduce costs by complying with the ordinances and regulations from the start of your project rather than deal with the financial repercussions of non-compliance.

Please contact us with any questions with regard to the possibilities for your home.

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610-692-1371

By: Amanda J. Sundquist

The Pennsylvania Supreme Court has ruled on whether municipalities that opt to enforce the Pennsylvania Construction Code Act (“Act”) may designate one entity to administer, enforce, and conduct all plan review and inspections mandated by the Act to exclusion of other code officials.

Under the Act, municipalities were required to adopt the Uniform Construction Code as a municipal building code and select from several options regarding the administration and enforcement of the Act. Among the administrative options available to municipalities was retaining a construction code official or third-party agency to act on behalf of the municipality for administration and enforcement of the Act. Questions arose as to whether a municipality who selected this option could refuse to accept inspections for Act compliance purposes performed by construction code officials not working for or through the contracted-with third party agency. Litigation followed.

The Supreme Court agreed to hear the case and found the question to be purely an issue of statutory construction. The Supreme Court concluded that the plain language of the Act permits municipalities to employ a third-party agency to conduct all Act compliance inspections to the exclusion of other construction code officials. The Supreme Court further acknowledged that allowing builders to handpick their inspectors and requiring municipalities to accept the inspections without questions could result in safety issues. See Allegheny Inspection Service, Inc. v. North Union Township, — A.2d –, 2009 WL 417925 (Pa. 2009).

For questions regarding how this decision may affect your municipality’s inspection process or your development’s approval process, please contact our office.l

By: William J. Burke, III

Please click here to view our latest blog about the importance of obtaining a survey before you buy property. For additional information, you can also read an article about property surveys on our site here.

Contact Bill Burke for more information.