Municipal, Land Use & Zoning

By: Kimberly P. Venzie, Esquire

On November 3, 2011, Act 84 of 2011 was signed into law in Pennsylvania and becomes effective on January 1, 2012. Act 84 amends certain provisions of the Second Class Township Code which require Townships to advertise and seek bids for purchases and contracts of a certain minimum dollar amount.   Act 84 increases that minimum dollar amount from $10,000 to $18,500 which will lessen the regulatory bidding restraints on Townships.   Townships will not have to comply with the state’s burdensome bidding and advertising requirements if the amount of the purchase or contract is below $18,500.  Additionally, the threshold amount for written or telephonic price quotations has been raised from $4,000 to $10,000. Townships are required to seek written or telephonic price quotations from at least three contractors for all contracts between the amounts of $10,000 to $18,500.   Township will not have to comply with the state’s bidding and advertising requirements for purchases of less than $10,000 which gives Townships greater flexibility and results in costs savings. Similar new laws will also provide bidding relief to boroughs and school districts.

For a full copy of Act 84 provisions, click here and search by House Bill No. 278. For more on this topic, please contact Kim Venzie in our West Chester office. Unruh, Turner, Burke and Frees maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Pennsylvania Main Line.

By: Anthony Verwey

On November 23, 2011 the Supreme Court of Pennsylvania rendered a decision that may have far reaching implications with regard to state, county, municipal and school district leasing of buildings and office space. In a case captioned 500 James Hance Court, et al. v. Pennsylvania Prevailing Wage Appeals Board, ___ A.3d ___, 2011 WL 5865752 (Pa. 2011), a developer planned to construct a building and then entered into a preconstruction lease with a charter school. The construction of the building was to take place in essentially two phases, the shell and the interior fit out. The Bureau of Labor Law Enforcement made a determination that the entire project was subject to the provisions of the Prevailing Wage Act and the developer filed a grievance to appeal this conclusion. The matter worked its way through the Prevailing Wage Appeals Board, the Commonwealth Court, and finally to the Supreme Court of Pennsylvania. Through the appeal process the Bureau and Prevailing Wage Appeals Board, which had initially decided the matter, took the position that a five part test utilized by the federal government to determine the applicability of the Davis-Bacon Act must also be used to determine whether the Act applies to a preconstruction lease between a private developer and a public entity.

After consideration of the Pennsylvania Prevailing Wage Act and the facts of the case, the Supreme Court concluded that although the lease and construction agreements did not clearly separate the construction of the shell and interior fit out of the building, such bifurcation was a natural result of the construction process into phases which are to be treated separately for prevailing wage analysis. Because it was undisputed that the interior fit out would be completed by the charter school, there was no question that prevailing wage requirements would apply to that phase of the construction. However, with regard to the shell of the building, the Supreme Court flatly rejected the Prevailing Wage Appeals Board’s position that the five part federal analysis must be applied to the shell of the building.

In that regard, the Supreme Court articulated a test to be used to determine whether the Prevailing Wage Act applies to a preconstruction lease arrangement between private developers and a public entity subject to the Act. The court noted that “privately financed construction work does not facially implicate the terms of the act …” and that a developer could establish a prima facie case that the prevailing wage relation is not implicated where it presents evidence that “… it is incurring the risk and obligations of an owner/mortgagor in construction, that there is no public financing component to the work (or, under, Penn National I, in the relevant major phase of construction), and that its relationship with the covered entity is as a lessor under a facially legitimate lease… .”

Central to this analysis was the question of whether there was any public financing as the Prevailing Wage Appeals Board asserted based on rents to be paid under the lease, which would ultimately be used to recoup the costs of construction. The Supreme Court also rejected this position as there was no evidence that the recoupment period would be substantially shorter than the industry norm for building shells of the type involved in that matter. Likewise, the Court found that provisions in the lease allowing for an option to purchase did not satisfy the public financing component where the building would be purchased at fair market value. In rendering its decision, the Supreme Court has now provided a clear analytical tool for determining whether a preconstruction lease will be subject to the requirements of the Prevailing Wage Act.

Anthony Verwey is a partner at Unruh, Turner, Burke and Frees. 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 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: 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.

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: 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.

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: Kimberly P. Venzie

The Neighborhood Blight Reclamation and Revitalization Act (the “Act”) – signed into law on October 27, 2010, effective on April 25, 2011 – empowers municipalities to take legal action against owners of deteriorating properties and deny municipal permits in certain circumstances. The Act specifically provides for action against property owners whose property is in serious code violation or whose property is determined to be a public nuisance. The Act also provides for municipalities to deny municipal permits (included building permits and zoning approvals) to property owners who have other property within the municipality in similar violation or who are behind in taxes or other municipal service accounts such as water, sewer or refuse collection. This tool allows municipalities to hold property owners accountable for existing delinquencies or serious violations on other properties.  Property owners must remedy existing violations and/or delinquencies with regard to other property they own in the municipality prior to being granted municipal permits for future projects.

For a full copy of the bill’s provisions, click here and search by Senate Bill No. 900 – SB 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 J. Sundquist

On October 26, 2010, the United States Department of Education, Office for Civil Rights, issued a “Dear Colleagues” letter addressing school districts’ obligations in regard to bullying and harassment of students.  The letter encourages school districts to review their bullying and harassment policies and practices to ensure compliance with federal law. Pennsylvania also has its own law pertaining to student bullying.

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

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:  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.