Municipal, Land Use & Zoning

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.

www.utbf.com
610-692-1371

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.

By: Amanda Sundquist

Does your municipality have dedicated or donated property?  Are you considering changing the use of that property? 

In a recent case, the City of Erie filed a petition under the Donated or Dedicated Property Act to abandon the use of dedicated public property known as the Erie Golf Course for a number of reasons, one being that it was draining revenue from the City.  The trial court denied the petition, finding the City was required to maintain the property as a park or a golf course due to deed restrictions on property since 1926.  However, on appeal to the Commonwealth Court, the City was able to show sufficient financial evidence of the ongoing need to cover golf course losses with general fund revenue and thus support its argument that the golf course use of the property was no longer practicable.  The Commonwealth Court reversed the trial court and granted the City’s petition to abandon.  This case is significant in that the Commonwealth Court found that the Donated or Dedicated Property Act, rather than common law public trust doctrine governed the City’s petition, overruling previous cases to the contrary.  See In Re: Erie Golf Course, 963 A.2d 605 (Pa. Commw. Ct. 2009).

For additional information about how this may apply to dedicated or donated property in your municipality, please contact Amanda Sundquist.

By:  Anthony T. Verwey

If your municipality believes you have violated its zoning ordinances, you may receive what is known as an “enforcement notice.” The enforcement notice is required under the Municipalities Planning Code (MPC), which is the statute that enables municipalities to adopt zoning and land use ordinances. The enforcement notice is required to provide you with specific information including the zoning ordinances you are alleged to have violated.

You have 30 days from receipt of the enforcement notice to either bring your property into compliance or file an appeal with the municipality’s zoning hearing board. The purpose of issuing the enforcement notice is to obtain compliance. In that regard, if you contact the municipality’s zoning officer, he or she should be able to provide guidance on bringing your property into compliance with the zoning ordinance. However, if you believe that your use of the property is not in violation of the zoning ordinance or you want relief from the requirements of the ordinance, you must file an appeal/application with the municipality’s zoning hearing board.

The filing of an appeal within 30 days of receipt of the enforcement notice is critically important for two reasons. First and foremost, if you fail to file an appeal, the enforcement notice may well be considered conclusive and binding with regard to the alleged violation. Second, if you fail to file an appeal, 30 days expire, and you continue to use your property in the manner which is alleged to violate the municipality’s zoning ordinance, you may be fined up to $500.00 per day for each day the violation continues.

Zoning ordinances may be difficult to read and understand, especially where there are numerous cross references to other sections of the ordinance. If you would like to discuss your receipt of an enforcement notice, or other matters involving your municipality’s zoning ordinances such as appealing the denial of a permit or making an application to the zoning hearing board, please contact me by email or at our office.

By: Amanda J. Sundquist

Nextel Partners, Inc. v. Clarks Summit Borough/Clarks Summit Borough Council, 958 A.2d 587 (Pa. Commw. Ct. 2008).

In Nextel, an applicant submitted an incomplete conditional use application.  The Borough Council held a hearing on the application 82 days after its receipt; the applicant asserted it was entitled to a deemed approval because the hearing was not held within 60 days.  The Pennsylvania Commonwealth Court determined the 60 day period begins to run on the date the conditional use application is submitted, not the date the conditional use application is complete.  For more information about how this case may affect your municipality’s administrative processes or your application please contact our office.

If you own two adjacent lots, you might be interested in the following recent case:

In Cottone, the Pennsylvania Commonwealth Court examined when and how two adjoining lots may merge in the face of a change to the zoning ordinances. The Court determined that if two adjoining, but separately owned, lots are rendered undersized by a new zoning ordinance, the two properties will continue to be treated as a lawful, nonconforming size. Even if the lots later come under common ownership, they will not be presumed to merge and instead the municipality would have to prove that the new owner intended to use them as one integrated parcel. Conversely, if the same two adjoining lots had been under common ownership at the time the ordinance changes, the two lots are now considered undersized, and are presumed to have merged.

For more information on how this case may affect your property or development plans, please contact our office.

Cottone v. Zoning Hearing Board of Polk Township, 292 C.D. 2007 (Pa. Commw. Ct. 2008).

Over the next few posts we’ll be including some case summaries that may be helpful to you and your land development planning. 

McGrath Construction, Inc. v. Upper Saucon Township Board of Supervisors, 1358 C.D. 2007 (Pa. Commw. Ct. 2008).

In McGrath, the Commonwealth Court, discussed the granting of approval of a plan conditioned on sewer service for the proposed development.  Traditionally, where an outside agency’s approval is needed (i.e. for sewer service) a municipality must condition final approval of the development on obtaining the permit from that agency and not just deny the development plan.  Here, however, the Court found that in order for the applicant to provide certification of sewer capacity (i.e. to get the outside approval) it had to engage in an adversarial process against the very Township reviewing the plan to change its ordinance.  So, the Court determined the municipality was not required to condition approval of the plan on an amendment to the Act 537 Plan.  As a result of this decision, municipalities and developers have additional considerations during the plan approval process about the conditions a Township may place on a plan approval. 

For more information on how this case may affect your development, please contact our office.

Welcome to the Municipal Section’s blog.  This blog will address current laws, interesting trends and legal issues affecting municipalities, authorities, school districts, developers and property owners in and around West Chester and Chester County, Pennsylvania.

Please bookmark and visit this site regularly or subscribe in the box on the right to receive email updates when items are posted or updated. You can choose to receive updates through a RSS feed or regular email.  We hope you find this blog informative and helpful.

Ross A. Unruh

Andrew D.H. Rau

Anthony T. Verwey

Kimberly P. Venzie