Municipal, Land Use & Zoning

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: 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: Amanda J. Sundquist

As discussed in my February 18, 2010 blog entry, 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.  An article in the Legal Intelligencer reports that lawyers on both sides of the issue are urging the Court to vacate the two decisions and hold rearguments before the full court, in hopes of clarifying the confusion arising from the conflicting rulings. Stay tuned for updates on whether the Court agrees to the requested course of action.

Contact Amanda Sundquist for more information.

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: 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: Amanda J. Sundquist

In Harleysville Homestead, Inc. v. Lower Salford Township Authority, 980 A.2d 749 (Pa. Commw. Ct. 2009), a residential developer applied to the authority to secure public sanitary sewer service for its development. The developer and the authority entered into an agreement for the construction of sewer lines, under which the developer agreed to pay a certain tapping fee per dwelling unit, plus a one-time connection fee. The developer paid a portion of the fees, but later initiated suit, arguing the authority’s charges under the agreement for tapping fees were in error and therefore, the authority had violated the Municipality Authorities Act by over charging for sewer capacity. The authority argued, in part, that the developer’s action was not timely.

The Commonwealth Court determined the authority’s action was a violation of a statutory duty, not of a contract. As such, the action was governed by the two year statute of limitation for a tort, rather than the four year statute of limitation for a contract action. The court found the developer’s action to be untimely. For questions regarding sewer fees and timelines, please contact our office.

By: Amanda J. Sundquist

How far can public school officials go in regulating student speech?  The traditional rule is that officials can quell speech that creates a “substantial disruption” of the educational process.  Now, the United States Court of Appeals for the Fifth Circuit appears to have provided school officials in the Fifth Circuit with a broader definition of substantial disruption than previously available.  In A.M. v. Cash, –F.3d–, (5th Cir. 2009), in response to previous incidents, a high school adopted a policy prohibiting the display of the Confederate flag on school grounds.  When two students were prevented from carrying bags decorated with the Confederate flag, the students filed suit arguing the policy violated their free speech and expression rights.

The court found that while students maintain freedom of speech and expression rights in school, school official have the right to prescribe and control conduct in the schools.  The court noted the seminal United States Supreme Court case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which set forth the standard that school officials may prohibit student speech and expression if school officials can reasonably forecast that the speech in question would cause a substantial disruption of, or material interference with, school activities.

In the new Fifth Circuit case, the court found that the student body had been plagued with racial incidents; it further held that  “[e]ven if these events do not rise to the level of a “substantial disruption” under Tinker (thus justifying the ban based on past actual disruption), they serve as a factual basis for administrators’ forecast that disputations might occur if students were allowed to display racially charged symbols such as the Confederate flag.”

The court upheld the action of the school, and concluded that school officials are not required to wait for the speech to cause disruption before acting.  The court also pointed out that the speech in question did not have to have been disruptive in the past.  “Tinker does not require a showing of past disruption; administrators can also meet their burden by establishing that they had a reasonable expectation, grounded in fact, that the proscribed speech would probably result in disruption.”

While A.M. only is binding on courts in the Fifth Circuit, this case provides additional guidance for school officials in an area of law that is often murky.  For more information about how this case and others may affect your District’s expression, speech, or dress code policies, please contact our office.

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.