Municipal, Land Use & Zoning

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 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: 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

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

In a matter of first impression, the Commonwealth Court has concluded that the Sunshine Act may be violated when property owners are permitted to participate in an executive session for litigation purposes related to a tax assessment appeal.  In Trib Total Media v. Highland School District, at the conclusion of a regular public meeting, the school board announced it would meet in a closed executive session to discuss litigation and invited the property owners involved in the litigation to participate in the executive session.  The local newspaper was denied access to the meeting, and filed a complaint alleging the school district had violated the Sunshine Act.

After a review of Section 708(a)(4), which permits an executive session regarding litigation matters, the Commonwealth Court found the plain language of the section indicated only attorneys and advisors are permitted to participate in executive sessions held for this purpose.  If you have questions regarding your municipal procedures for executive sessions and compliance with the Sunshine Act, please contact Amanda Sundquist.

By: Andrew D.H. Rau

This week’s budget approvals in Harrisburg included legislation that will have an effect on landowners, as well as state and local government entities across Pennsylvania.  Senate Bill 1042, signed into law as Act 46, will extend the life of many land development and related approvals, if the approvals are in place on or after January 1, 2009.  The extension period runs through July 1, 2013.

The extensions may not apply or will involve special rules as to certain state permits, for example some Department of Environmental Protection and PaDOT approvals. Unique provisions also apply to Philadelphia.

Local governments retain the power to suspend or revoke approvals for non-compliance with written conditions, and enforce conditions that are imposed as a pre-requisite in moving from preliminary to final plan approval.  Developers are, however, protected in many cases from changes in law, regulation or policy during the extension period.

For a full copy of the bill’s provisions, click here and go to Article XVI-I, “Permit Extensions,” beginning at page 99.

For more information, contact Andrew Rau in our West Chester office.

By: Amanda Sundquist

The United States Supreme Court has issued a decision in City of Ontario v. Quon, which was discussed in my May 13, 2010 blog entry.  At issue in the case was whether a member of the police SWAT team had a reasonable expectation of privacy in text messages transmitted on a SWAT pager.

Given the continuing evolution of workplace norms for communication technology, the Court declined to make a determination regarding employees’ privacy expectations for employer-provided technological equipment.  Instead the Court determined the case on Fourth Amendment search law.

The Court determined, even if the employee had a reasonable expectation of privacy in his text messages, the Fourth Amendment was not violated in reviewing the messages.  The Court utilized the “special needs” of the work place exception.  The search was found to be justified as it was reasonably necessary for a noninvestigatory work-related purpose; the determination of whether employees were being forced to pay for work-related text message overages. The scope of search, the review of the transcripts, was found to be reasonable, as the review was limited to certain months and only to messages sent during work hours.  Finally, the Court found the employee was reasonably aware that an audit of messages to determine whether the pager was being appropriately used was possible.  The Court found the search to be reasonable.

While this case involved public governmental employees, the Court also concluded that this search would have been reasonable in the private employer context.

If you have questions regarding this decision and how it may impact your technology policies, please contact Amanda Sundquist in our West Chester office.

By: Amanda Sundquist

The United States Supreme Court heard oral argument in City of Ontario v. Quon, regarding whether a member of the police SWAT team had a reasonable expectation of privacy in text messages transmitted on a SWAT pager. The Court’s decision in this case may have wide spread impact on public and private employers and in the area of discovery. Please check back for the Court’s decision or if you have questions regarding this case, please contact Amanda Sundquist in our West Chester office.

By: Anthony T. Verwey

In an opinion and order dated March 16, 2010, the Commonwealth Court concluded that a property leased by a Pennsylvania charter school was not eligible for an exemption from the payment of real estate taxes. In the case of In Re: Appeal of Collegium Foundation and Collegium Charter School, the court concluded that while the charter school was a public school under state law, the use of the property in question as a school building did not control the outcome of the case because the landlord was a for-profit entity. The court made clear that the provisions of the General County Assessment Law did not provide for an exemption under the facts of this case because the charter school did not own the property and the lease generated income for the property owner. If you have questions concerning real estate taxation or school law issues, please contact Anthony Verwey in our West Chester office.

By: Amanda J.  Sundquist

The Office for Civil Rights (OCR) for the U.S. Department of Education has issued new guidance regarding Title IX compliance for intercollegiate and interscholastic athletic programs. The new guidance withdraws OCR’s 2005 guidance and provides additional clarification on compliance with part three of the three part Title IX test. For help determining if your school’s athletic program is compliant with Title IX or how this new guidance may affect your program, please contact Amanda Sundquist in our West Chester office.

By: Amanda Sundquist

As discussed in my February 18, 2010 and April 12, 2010 blog entries on free speech, the United States Court of Appeals for the Third Circuit reached conflicting results in two student free speech cases: Layshock v. Hermitage School District and J.S. v. Blue Mountain School District.  The Third Circuit has granted the request for rehearings before a full panel of the Court for each case, which will occur on June 3, 2010. It is unclear if the cases will be consolidated.

Contact Amanda Sundquist in our West Chester, PA office for more information on student free speech.

By: Kimberly P. Venzie

The Pennsylvania Commonwealth Court’s recent decision in BPG Real Estate Investors v. Newtown Township may cause developers and townships to more carefully consider whether settlement agreements are reaching too far. The ultimate result may be courts refusing to approve such settlements.

In the BPG decision, the Commonwealth Court determined that a settlement agreement between the developer and Newtown Township was too expansive because it included land which was not part of an original conditional use proceeding. The conditional use involved a 51 acre portion of property upon which commercial development was proposed. The developer appealed the conditions attached to the conditional use approval. Certain entities owning 168 acres adjacent to the developer’s 51 acres intervened in the appeal. The settlement agreement ultimately reached by the parties addressed the commercial development upon the 51 acres but also addressed development upon the 168 acres which were not part of the conditional use proceeding. The Court said the settlement should not have included the additional 168 acres, but then sent the case back to the lower court to consider whether to approve the portion of the settlement agreement relating to the 51 acre tract. You can explore media coverage about the case by visiting the Delaware County Daily Times.

For more information on how to draft appropriate settlement agreements, please contact Andrew Rau and Kim Venzie at our West Chester office location.