Municipal, Land Use & Zoning

By: Amanda Sundquist

Westfall Township is believed to be the first Pennsylvania municipality to file for Chapter 9 bankruptcy protection. The Township sought Chapter 9 protection to force negotiations on a $20 million federal judgment entered in favor of a developer. Chapter 9 was used to reduce the award to $6 million, which will be paid in $75,000 quarterly payments over 20 years. The Township will also construct certain sewage facilities needed by the developer.

The Municipalities Financial Recovery Act, more commonly known as Act 47, is Pennsylvania’s program which permits municipalities to apply for a designation of financially distressed under certain circumstances. Under Act 47, a municipality which is found to be distressed works with a plan coordinator to develop a financial recovery plan and may be eligible for certain benefits.

Municipalities can forego Act 47 and instead file for Chapter 9 bankruptcy for municipal debt adjustment in very narrow circumstances. These circumstances include: (1) after recommendation of the Act 47 plan coordinator; (2) where there is imminent jeopardy of an action by a creditor, claimant, or supplier of goods or services which is likely to substantially interrupt or restrict the continued ability of the municipality to provide health or safety services to its citizens; (3) where one or more creditors of the municipality have rejected the proposed or adopted financial recovery plan and efforts to negotiate resolution of their claims have be unsuccessful for a ten-day period; (4) where a conditions substantially affecting the municipality’s financial distress is potentially solvable only by utilizing a remedy exclusively available to the municipality through the Federal Municipal Debt Readjustment Act; or (5) if a majority of the current or immediately preceding governing body of a municipality determined to be financially distressed has failed to adopt the financial recovery plan or to carry out the recommendations of the coordinator.

For more information about Act 47, please contact Amanda Sundquist in the West Chester office.

By: Kimberly P. Venzie

The use of windmills as an energy source is on the rise and rapidly growing in Pennsylvania, even in residential neighborhoods. While windmill farms can be an interesting and peaceful sight from afar, the construction of a windmill in a backyard in a residential neighborhood may not be as welcoming. In the case Tink-Wing Mountain Lake Forest Property Owners Association v. Lackawaxen Township Zoning Hearing Board recently handed down by the Pennsylvania Commonwealth Court, the Court upheld the Zoning Officer’s issuance of a zoning permit for the construction of a windmill on residential property for private use.

The Court found that the windmill use was a permitted accessory use providing an essential service and that the Zoning Officer was correct in issuing a permit. Although windmill use was not specifically enumerated as an accessory use in the Township’s Zoning Ordinance, the Court found that the windmill use was a use customarily incidental and subordinate to the principal residential use – comparing windmills to solar panels, outdoor fireplaces, satellite television – all of which are now often considered to be customarily incidental to principal uses.

With the increased interest in wind power, Townships may need to consider adopting ordinances which specifically regulate this growing use in Pennsylvania. Check out the out the Pennsylvania Land Trust Association’s website for more information on the use of windmills as an environmentally friendly source of power.

For more information on the above, please contact Kim Venzie in our West Chester location.

By: Amanda Sundquist

By: Andrew D.H. Rau

In a recent case involving a broken ankle suffered during a flag football game in Philadelphia’s Fairmount Park, the Commonwealth Court has broadly construed governmental immunity from certain lawsuits.  In Davis v. City of Philadelphia, the Court found that the Recreational Use of Land and Water Act (RULWA) protected the city from suit.  The plaintiff broke the ankle after tripping in a depression on a field, and sued (among others) the City of Philadelphia.

RULWA protects municipal bodies from suit where users of unimproved public land are injured.  The plaintiff claimed that the City’s Fairmount Park is highly developed and therefore not protected by RULWA.  However, the Court found that the field in question was by and large unimproved, and threw the claim out as against the City. 

The conclusion:  even in a highly maintained park system where a municipality might otherwise be liable for a condition of real estate, the courts may look to the site of the injury itself, rather than the entire park, to determine whether the land is unimproved and RULWA-protected.

The interplay between RULWA and other immunity statutes, such as the Tort Claims Act, creates a complex analysis, and local governments must consider various facts and issues in determining legal exposure.  For more information on municipal liability and public lands, contact Andrew D.H. Rau.

By: Amanda J. Sundquist

The United States Court of Appeals for the Third Circuit has issued new, and competing student free speech decisions.  The cases names are becoming familiar to school districts across the region: Layshock v. Hermitage School District and J.S. v. Blue Mountain School District.  Both cases address the ability of a school district to discipline students for out-of-school speech, namely derogatory MySpace profiles of school administrators.  While the cases were factually similar, the two panels reached different results. As such, our Third Circuit (which covers Pennsylvania, New Jersey and Delaware) has yet to provide ironclad guidance for school districts concerning out-of-school Internet speech.  School districts should continue to remember that this type of case is very fact specific and the issues need to be evaluated carefully.  For assistance with disciplinary issues relating to out-of-school or Internet speech, please contact our Municipal Group.

By: Kimberly P. Venzie

Read my recent article about the affirmation of the Schaffer decision by the Pennsylvania Supreme Court and its impact upon development in Pennsylvania, particularly upon projects developed under the Uniform Planned Community Act. Although the affirmation of the Schaffer decision by the Pennsylvania Supreme Court may cause those utilizing the Planned Community form of ownership to be wary, this form of ownership remains a viable and useful land planning tool. For the full article please click here. Contact Kim Venzie for more information.

By: Amanda J. Sundquist

In Trefelner v. Burrell School District, the United States District Court for the Western District of Pennsylvania issued a temporary restraining order to compel a school district to permit a parochial school student to participate in extracurricular activities offered by the school district, including marching and jazz bands. Pennsylvania’s Public School Code (“School Code”) permits home schooled students or, in certain situations, students who attend charter schools to participate in extracurricular activities offered by their school district of residence.

In Trefelner, the Court analyzed the student’s claim under the Free Exercise Clause framework. The Court found given the secular exemptions created by the School Code and the lack of similar religious exemptions, the student may be able to demonstrate that the school district’s extracurricular activity policy was not neutral and that it was not narrowly tailored to advance compelling interests. The Court issued a temporary restraining order. While Trefelner was ultimately settled by agreement between student and the school district, the issuance by the Court of the temporary restraining order indicates that courts may be willing to consider participation in public school activities by parochial school students.

If your school district requires assistance updating its extracurricular activities policy or addressing issues relating to the participation in extracurricular activities by home schooled, charter school, or other students, please contact Amanda Sundquist.

By: Amanda J. Sundquist

The Department of Community and Economic Development has released its report “Earned Income Tax Consolidation Best Practices Report.” This resource may be helpful to school districts and municipalities which are navigating through the consolidation of the earned income tax collection system. For assistance utilizing information in the Report or planning for consolidation, please contact  Amanda Sundquist.

By: Amanda J. Sundquist

January 2010 marks the first anniversary of the implementation of the new Pennsylvania Right-to-Know Law. The past year has been a year of firsts for local agencies, requesters, and the Office of Open Records as the law has been implemented and interpreted. Sixty-five determinations by the Office of Open Records have been appealed to common pleas courts throughout the state, with a number of such decisions awaiting decision by the Commonwealth Court. The Commonwealth Court’s Order granting the preliminary injunction to stop the disclosure of public school employees’ home addresses and subsequent advisory by the Office of Open Records stopping the disclosure of all public employees’ home addresses continues to be one of the most significant developments under the Right-to-Know Law in 2009.

As your municipality begins the new year, please contact Amanda Sundquist to update or create municipality specific forms, for assistance with challenging requests, or to receive guidance as the courts of common pleas and the Commonwealth Court continues to issue decisions.

By: Kimberly P. Venzie

Despite attempts by the City of Philadelphia and Fox Chase Cancer Center to make alternate use of a portion of Fairmont Park, their efforts have failed to date based upon a recent decision reached by the Pennsylvania Commonwealth Court. In In Re Estate of Ryerss, -A.2d – (Pa. Commw. Ct. 2009), the City of Philadelphia and Fox Chase Cancer Center (the “Appellants”) sought authorization to discontinue the use of nearly 20 acres of Fairmont Park as parkland and lease those acres to the Fox Chase Cancer Center for expansion of the cancer center’s medical facilities. The portion of Fairmont Park at issue was devised to the city in 1889 to be used as a park for the use and enjoyment of the public. Arguments by the parties in this case centered around the act known as the Donated or Dedicated Property Act (“DDPA”), 53 P.S. §§3381-3386. The court determined that based upon the DDPA, the Appellants failed to show that the continued use of the property as parkland was no longer practicable or that the use of the property as a park had ceased serving the public interest.
Although the court acknowledged that the expansion of the cancer center might benefit the city, the court rejected a “balancing test,” stating that “[if] it did permit such balancing, every donated park in the Commonwealth would be at risk of being leased so that cash-strapped municipalities could balance their budgets…it would likely discourage individuals from donating their property to be used for public purposes in the future.”

For more information on this case and how it relates to local governments and developers, please contact Kimberly P. Venzie.