Lehigh Valley Land Use Briefing

October 2, 2014

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About Stevens & Lee 15 Offices 6 States 220 Professionals

including 170 Lawyers

Lehigh Valley Office 190 Brodhead Road, Suite 200 Bethlehem, PA 18017 (610) 691-7111 STEVENS & LEE

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Today’s Speakers Blake C. Marles, Esq.

What the State Constitution’s “Environmental Amendment” Means for Land Development

The Recent Bretz Case – Are the Courts Setting Their Own Rules for Stormwater Management

John C. Bear State Government Actions and Where They

Intersect with Municipal Issues

James F. Kratz, Esq. Development Agreements and Public Improvements Statutory and Case Law Update – May 2013

through August 2014

Steven D. Buck, Esq. Condominium and Planned Community Issues

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Disclaimer This presentation contains general information only and is based on the experiences and research of Stevens & Lee professionals. Stevens & Lee is not, by means of this presentation, rendering legal, business, financial or other professional advice or services. This presentation is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal and/or professional advisor. Stevens & Lee, its affiliates, and related entities shall not be responsible for any loss sustained by any person who relies on this presentation.

Stevens & Lee expressly disclaims any liability in connection with use of this presentation or its contents by any third party.

2014 Stevens & Lee. All rights reserved. No part of this document may be reproduced, transmitted or otherwise distributed in any form or by any means, electronic or mechanical, including by photocopying, facsimile transmission, recording, rekeying, or using any information storage and retrieval system, without written permission from Stevens & Lee. Any reproduction, transmission or distribution of this form or any of the material herein is prohibited and is in violation of law.

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What the State Constitution’s “Environmental Amendment” Means for Land Development

Blake C. Marles, Esq. (610) 997-5060 bcm@stevenslee.com

STEVENS & LEE

Article 1, Section 27

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

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PA Constitution Declaration of Rights

That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

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A Careful Historical Balancing Act

Reciprocity of Advantage The benefit to the community that comes

from the regulation should be approximately equal to the burden the regulation causes. When the burden outweighs the benefits, there is a taking of private property.

PA. Coal Co. v. McMahon, 260 U.S. 393 (1922)

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A Careful Historical Balancing Act Standing

Until now, a litigant had to show a direct personal interest in a controversy to be able to sue, even under this Section 27

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A Careful Historical Balancing Act Three Part Payne Test (1973)

Is there compliance with applicable laws and regulations?

Is there an attempt to minimize any environmental incursion?

Does the environmental harm so clearly outweigh the benefits to be derived that the activity should be stopped?

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Act 13 of 2012 The PA Oil and Gas Act

The goal was to facilitate the prompt expansion of the Marcellus oil and gas industry in PA Made oil and gas drilling permitted uses in

all zoning districts

Established uniform statewide setbacks for fracking and drilling operations

Essentially pre-empted much local zoning, in favor of state regulation

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Robinson Township v. Commonwealth of Pennsylvania

On December 19, 2013, the Pennsylvania Supreme Court ruled unconstitutional major parts of PA’s Act 13, in an extraordinary 115 page plurality decision

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Robinson Township v. Commonwealth of Pennsylvania (cont’d)

In doing that, the Court created the potential for a whole body of law that will generate uncertainty for the municipal and development communities for at least a decade

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The End of the Balancing Test? Section 27 constrains governmental entities to

exercise authority “in a manner that promotes sustainable property use and economic development.” Robinson, p. 958

Contrast with

Ordinances that unduly restrict development do not strike an appropriate balance. Main St. Dev. Group, Inc. v. Tinicum Twp. Bd. Of Supervisors,(PA Comm. 2011)

Query: If a development plan complies with all ordinance requirements, can approval be denied because a governmental body decides what is proposed is not sustainable?

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Mandatory Environmental Impact Analyses?

Section 27 “directs the ‘preservation ‘ of broadly defined values of environment, a construct that necessarily emphasizes the importance of each value separately, but also implies a holistic analytical approach to ensure both the protection from harm or damage, and to insure the maintenance and perpetuation of an environmental quality for the benefit of future generations.” Robinson, page 951

Query: What evaluative standards must be followed, if they are not spelled out in a regulation or an ordinance?

Must actual, or likely, or possible environmental degradation be shown to

deny approval? Whose burden of proof? The Municipality? The Applicant? An Objector?

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Municipal Liability as the Environmental “Trustee”

The Commonwealth (as well as its municipalities) has a “duty to refrain from permitting or encouraging the degradation of public natural resources…through direct state action or indirectly…because of the state’s failure to restrain the actions of private parties.” Robinson, p.957

As a trustee, the Commonwealth (as well as its municipalities) must “act affirmatively to protect the environment, through legislative action.” Robinson, p. 958

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Municipal Liability as the Environmental “Trustee” (cont’d)

A municipality has to decide if a proposed action places a higher environmental burden on some citizens than on others, because if it does, it will violate the municipal trustee’s duty of impartiality to treat the environmental beneficiaries “equitably in light of the purposes of the trust.” Robinson, p. 980 There is a duty to act toward public natural resources with “prudence, loyalty and impartiality.” Robinson, p. 957

Query: A residential neighbor of a non- residential use ALWAYS bears a heavier burden than residents with homes next door. If a developer who meets ordinance requirements is turned down, is there a “taking” of its property rights under PA. Coal v. McMahon? If there is approval, is there a taking of property rights from the residential neighbor, because he/she is asked to bear a “disproportionate burden?”

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If no citizen can bear an unequal burden from neighboring development, how does a municipality meet its other constitutional burden to provide for all possible uses within its jurisdictional boundaries?

What does this do to the concept of “mixed use” communities?

Does the explanation of the “purpose” for a zoning district suddenly have actual legal relevance?

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Does This Reasoning Apply to Stormwater Regulation?

Does a municipality have an affirmative duty to assure that the pesticides and herbicides from my neighbor’s treated yard do not encroach on my yard, or in nearby streams?

Does a municipality which collects grass clippings and distributes them as compost have to assure that the compost does not contain herbicides and pesticides?

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Every Person in the Commonwealth Can Litigate – No Matter Where the Project May Be!

“This Court perceives no impediment to citizen beneficiaries enforcing the constitutional prohibition in accordance with established principals of judicial review.” Robinson, p.

Permitted litigants: Delaware River Keeper, an environmental action

group, upon alleging that one of its members is suffering immediate or threatened injury (there is no fracking in the Delaware River basin to date);

A medical doctor because he alleged that he couldn’t accurately report his findings in medical records without disclosure of fracking chemicals;

A Township Supervisor in Bucks County, where no fracking has occurred

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But This is Only a Plurality Decision – Why Does it Matter?

Gorsline v. Bd. Of Supervisors of Fairfield Township, (Lycoming Co. Aug. 29, 2014) “While the Court understands the

constraints the Board may have been operating under as a result of Act 13 and the litigation regarding its constitutionality, our Supreme Court has now ruled with respect to such, the citizen’s rights cannot be ignored and must be protected.”

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State Government Actions and Where They Intersect with Municipal Issues

John C. Bear (717) 255-7385 jcb@griffinslconsulting.com

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Legislative Process

Civics 101 – How a Bill Becomes a Law Overview

The key phases of the legislative process: Development Phase

Education Phase

Advocacy Phase

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Development Phase

Developing and refining the issue

Aligning stakeholder support

Drafting and introducing legislation

Assigning legislation to committees

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Education Phase

Briefing Committee Chairmen and Executive Directors

Meeting with Committee Members

Meeting with House and Senate Members

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Advocacy Phase

Attending committee meetings

Meeting with leadership of Caucuses to advocate passage

Meeting with Officials of the Governor’s Office to advocate enactment

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Legislative/Budget Timeline

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The State Government Monitor and Connector

Providing insight into Pennsylvania’s political process

Tracking of General Assembly and Executive action Bill introductions; Committee action; Floor

action; Executive action; Press and political announcements

Providing notice to clients of General Assembly and Executive actions and predicted actions

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The State Government Monitor and Connector (cont’d)

Additional services

Assisting in the development and drafting of client legislative proposals

Advising in the formation of a legislative strategy

Arranging meetings between clients and key decision-makers Providing strategic advice and assistance in

how to proceed or respond to legislative and regulatory actions or issues

Monitoring Commonwealth procurement solicitations

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Procurement Consulting

State Government Procurement – A 3-Tiered Service Basic, Deluxe and Premium Service Tiers

Monitoring Solicitations and Request-for-Proposals

Arranging meetings between clients and key decision-makers

Assisting clients with prequalification requirements

Identifying strategic partnerships and providing political guidance

Actively marketing the clients’ products/solutions intending to lead to sole source procurements or favorable RFPs

Assisting in proposal development

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Procurement Consulting (cont’d)

Additional services Advising on insurance coverage and security and

performance bonds

Reviewing of contract(s)

Filing statement of claims and protests of solicitation and awards

Representing before the Board of Claims and Commonwealth Court

Assisting in Small and Disadvantaged/Veteran Business certification

Providing representation for retainage and labor issues and disputes

Providing representation at disbarment or suspension hearings

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State Government Incentives

Where to go for state assistance: Commonwealth Operating Budget

Commonwealth Capital Budget

Commonwealth Financing Authority

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Development Agreements and Public Improvements

James F. Kratz, Esq. (610) 997-5065 jfk@stevenslee.com

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Development Agreements

No definition in MPC

References in MPC MPC Section 509 (b) – financial

improvements agreement

MPC Section 509 (e) – agreement for completion of the improvements

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Typical Development Agreement

MPC Section 509

Approval Resolution

Identify improvements via plan

Schedule of completion

Financial security – amount and type PA P.E. certified cost estimate

Dedication of public improvements

Maintenance of public improvements Maintenance Agreement

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Operation and Maintenance Agreement (O&M Agreement)

Act 167 Ordinance

Storm water facilities per SW plan Duties – construction and maintenance

Easement to municipality

Right of municipality to remedy

Recorded – obligations run with the title

Tracking for clean water act and clean streams law

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PennDOT Drainage Facilities

Within PennDOT R/W Municipal HOP

Developer construction

Developer maintenance

Recorded

PennDOT Publication 282

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MPC Section 509 Completion of Improvements or Guarantee

Improvements per SALDO

Construction prior to final plan Pre-security construction agreement

Financial security in lieu of completion Development Agreement

Not limited to public improvements Cannot include HOP secured

improvements

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Water Mains or Sanitary Sewer Lines

MPC Section 509(l) – water or sewer facilities, or both, under jurisdiction of municipality, municipal authority or public utility

If municipal authority or public utility, financial security gets posted with the authority or utility (not municipality)

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Financial Security – Types

MPC Section 509(c) without limitation as to other types …

Irrevocable letter of credit Federal or PA chartered lending institutions

Restrictive or Escrow Account

Performance Bond Bonding Company – authorization to do

business in PA ? Who supplies the bond - Can a party other

than the developer supply the bond?

Mortgage 40 STEVENS & LEE

What Does Financial Security Cover?

Public improvements only?

Private improvements also?

E&S controls, SWM – impervious cover

Screening?

Pavement?

Public interests v. private interests MPC Section 509(a) improvements per

SALDO

MPC Section 509(f) posted for the completion of the required improvements

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Amount of Financial Security

MPC Section 509(f) 110% of cost of improvements

Estimated as of 90 days after scheduled completion

May adjust amount annually

Beyond annual adjustment, may increase to ensure equals 110%

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Cost Estimate

MPC Section 509(g)

Applicant’s PA licensed engineer

Certified cost of completion

Municipal engineer review

If disagreement, estimate certified by third engineer chosen mutually and paid equally by applicant and municipality

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Final Plans for Sections or Stages

MPC Section 509(i)

Guarantees as to improvements

Essential to protection of any finally approved section

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Permits Financial security in place Building, grading or permits for erection or

placement of improvements Cannot condition issuance upon completion of

improvements

Financial security in place Cannot withhold occupancy permits if:

Streets improved to mud-free or permanently passable condition, and

Improvements completed necessary for reasonable use or occupancy

Substantially completed – 90% of cost Judgment of municipal engineer Used, occupied or operated for it intended use

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Release of Portion of Financial Security

MPC Section 509(j)

Written request

45 days for municipal engineer to certify completion

Governing body shall release amount of municipal engineer estimate

45 day deemed approval

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MPC§510 Release of Improvement Bond

Written notification of completion

Municipal engineer inspection with written report

Time limits for actions on release

Deemed approval

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Dedication of Improvements

MPC Section 509(k) – governing body accepts dedication

Municipality may require financial security

Secure structural integrity and functioning of dedicated improvements

Maximum security – 15% for 18 months Maintenance Agreement

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Public Improvements

No MPC definition

Public grounds – parks, schools, operated facilities, historic sites

Streets

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Streets – Public and Private

Private – residential development Why?

Public standards but not accepted Why?

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Storm Water Management Facilities

Commercial or industrial sites

Residential developments HOA maintenance and replacement

Storm water municipal authorities Fees or taxes

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Expense Reimbursement

Reasonable and necessary expenses for inspection

No duplicative inspections – municipal authority as example

Reimbursement schedule in ordinance or resolution

Itemized bill

Dispute resolution

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MPC Section 511 Remedies for Completion of Improvements

Power granted to municipality to enforce corporate bond or other security

Insufficient security

Option of municipality for installation

Legal action to recover necessary moneys to complete

Proceeds use solely for installation

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Condominium and Planned Community Issues

Steven D. Buck, Esq. (610) 478-2273 sdb@stevenslee.com

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Planned Community Basics Common Features:

Declaration Units Association Common Elements

Planned Community – Association owns Common Elements

Condominium – Unit owners own fraction of Common Elements

Flexibility Declarant’s ability to modify the community

Additional Real Estate Convertible Real Estate

Withdrawable Real Estate 55 STEVENS & LEE

Logan Greens Community Ass’n, Inc. v. Church Reserve, LLC, (Pa. Cmwlth. Ct., Sept. 20, 2013), allocator denied, (Pa., April 29, 2014)

February 2003, Township approves residential subdivision for 52 lot with 30 acres of open space designated as Lot 53

July 30, 2003, Planned Community created with Lot 53 as convertible/withdrawable real estate

September 2003, Township approves subdivision of Lot 53 into 5 lots, with Lot 54 remaining as convertible/withdrawable real estate

Declarant had until July 30, 2010 (7 years from recording declaration) to convert/withdraw Lot 54 from association

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Logan Greens Community Ass’n, Inc. v. Church Reserve, LLC, (Pa. Cmwlth. Ct., Sept. 20, 2013), allocator denied, (Pa., April 29, 2014) (cont’d)

February 2011, Association initiates quiet title action asserting full ownership over Lot 54

Failure to convert/withdraw results in Lot 54 permanently remaining as common element

Developer asserts Permit Extension Act as defense The Permit Extension Act was originally enacted

as Act 46 of 2008 and suspended until July 1, 2013, the expiration of certain municipal and state land development approvals due to the economic recession “The expiration date of an approval by a

government agency that is granted for or in effect during the extension period, whether obtained before or after the beginning of the extension period, shall be automatically suspended during the extension period.”

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Logan Greens Community Ass’n, Inc. v. Church Reserve, LLC, (Pa. Cmwlth. Ct., Sept. 20, 2013), allocator denied, (Pa., April 29, 2014) (cont’d)

Approval: “… (3) creating additional units and common elements out of convertible real estate in a condominium or planned community.”

Government agency: The Commonwealth, a political subdivision or an agency, department, authority, commission or board of the Commonwealth or a political subdivision…”

Extension Period: The period beginning after December 31, 2008 and ending before July 2, 2013

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Logan Greens Community Ass’n, Inc. v. Church Reserve, LLC, (Pa. Cmwlth. Ct., Sept. 20, 2013), allocator denied, (Pa., April 29, 2014) (cont’d)

February 2011, Association initiates quiet title action asserting full ownership over Lot 54 (cont’d)

York County Court rules for Developer/Declarant. Commonwealth Court reverses. PA Supreme Court refuses to hear appeal

Since the “Approval” was not by a “Government Agency”, Permit Extension Act does not apply

Result: Lot 54 remains common element in the community – Declarant loses ability to create a unit for sale

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Permit Extension Act

Re-enacted as Act 54 of 2013, effective July 2, 2013 as the Development Permit Extension Act

Extension Period is December 31, 2008 to July 2, 2016

Substantive provisions are identical to prior act

Except: Approvals received after July 2, 2013 are not automatically extended

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Act 37 of 2013 – Effective July 2, 2013

Amendments to the Condominium Act and Planned Community Act

Time frame for declarant to convert/withdraw real estate is extended from 7 years to the later of: 10 years following recording the declaration;

or

For preliminary plans with final plans approved in sections, 120 days after final municipal plan approval of each final plat according to the phasing schedule set forth in MPC §508(4)(v)

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Act 37 of 2013 – Effective July 2, 2013 (cont’d)

However – only applies to declarations recorded within 7 years of the effective date of the Act Declaration must be recorded after July 2,

2006

No assistance to Logan Greens declarant

Declarant must amend the declaration to provide for longer time limits Association need not join in the amendment

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Other Planned Community Issues

Approval by governing body? Not a requirement under either Act

Land development plans include a condo-sheet or planned community-sheet Recorded?

Consistency with Declaration Plat

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Other Planned Community Issues (cont’d)

Shaffer – Site Condominium Attempt to avoid subdivision/municipal

approval Subdivision of condo without going through

Township approval

Court rejects

If new project already undergoing municipal review, include a plan sheet just showing unit boundaries

If existing project, may be okay without additional approvals, but consider discussing with Township Solicitor and staff

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Other Planned Community Issues (cont’d)

Review of declaration by solicitor Approval?

How are common elements managed

Proper funding for future operation and maintenance

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Other Planned Community Issues (cont’d)

Long term maintenance of common elements

Starts with declarant/developer

Proper funding of association when take over

Stormwater facilities Out of sight/out of mind

Dues to keep up maintenance

Involvement of municipality for upkeep

Stormwater Authority Authorized by recent amendments to Authorities

Act

Take over responsibility of future maintenance of facilities

Who pays?

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Other Planned Community Issues (cont’d)

PennDOT Road/access drive as common element

accessing a state road

Changes to the access point By Community

Nearby development

Who signs? Association

Unit owners

Pre-empt with language in Declaration

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The Recent Bretz Case: Are the Courts Setting Their Own Rules for

Stormwater Management?

Blake C. Marles, Esq. (610) 997-5060 bcm@stevenslee.com

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The Common Law Rules Regarding Stormwater Management

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The Common Enemy Rule

Each Landowner can take whatever steps one pleases on one’s own land to protect it from storm water damage without regard to the adverse consequences those actions may have upon neighboring property

The PA rule at the turn of the last century Pa. Coal Co. v. Sanderson (1906)

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The Civil Law Rule

An adjoining landowner is entitled to have the normal course of natural drainage maintained, such that adjoiners are not obligated to accept or dispose of stormwater which is different in rate or character from that which naturally flowed to them

This was the favored PA approach throughout the latter half of the twentieth century, and was supported by a broad body of case law which gave certainty to the rights of upstream and downstream property owners. See Rau v. Wilden Acres, Inc. (1954)

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The Civil Law Rule (2)

This rule generally permitted an increase in the quantity of stormwater discharged to downstream properties on the theory that all development results in impervious cover, so quantitative regulation would impede or preclude desired development Chamberlin v. Ciaffoni (1953)

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The Reasonable Use Rule

Discharge onto lower or adjacent property is permissible so long as the nature of the discharge is “reasonable.” This “you’ll know it’s bad when you see it”

approach actually pre-dated the common enemy rule in PA, but was supplanted by the Common Enemy Rule. See Davidson v. Sanders (Pa. Super. 1896), and McMahon v. Thornton (Pa. Super 1897).

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The Rules Begin to Get Muddy

“…where the water is diverted from its natural channel or where it is unreasonably or unnecessarily changed in quantity or quality… the lower owner received a legal injury.” Lucas v. Ford, (1949);

A municipality is liable for flooding when its drainage system unreasonably and unnecessarily causes an increase in the quantity of water discharged onto a highway, causing accidents. Piekarski v. Club Overlook Estates, Inc. (Pa. Super 1980).

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The Courts Created the Rules and Didn’t Harmonize Them, So the Engineering Community Did

One can’t increase the rate of flow, and pass it to downstream land

One can’t rechannel flow, and change how it impacts downstream land

One can’t alter the nature of the flow

Volumetric increases in flow are expected and acceptable

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The Floodplain Management Act (Act 166) and the Stormwater Management Act (Act 167)

The legislature finally stepped in, and codified what the engineers had been doing

Then the regulators stepped in…

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National Pollutant Discharge System (NPDES) Regulation Under the Federal Clean Water Act

In 1984, the federal government used the Clean Water Act to begin to treat stormwater discharges the same way that they had been treating industrial discharges, and in doing so, began to undermine the certainty municipalities and developers had as to what was allowed and what was not

That process continues, and for the most part, operates outside of the control of either state rulemakers or state courts

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The Court is Now Back in the Stormwater Regulation Business

Bretz v. Central Bucks School District, 86 A3d 306 (2014)

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Bretz v. Central Bucks School District, 86 A3d 306 (2014)

The determination of whether a landowner “has diverted the water from its natural channel by artificial means” does not involve consideration of the reasonableness of the change in quantity or location flowing onto lower land

Rather, to establish liability, a plaintiff need only show that a landowner collected and/or concentrated surface water from its natural channel through an artificial medium and that the water was discharged onto plaintiff’s property in an increased volume or force, however, slight. Bretz p. 316

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Bretz v. Central Bucks School District, 86 A3d 306 (2014)

Does this decision require total infiltration of all new stormwater volume?

Is there any design frequency storm which can safely be used for design?

500 year storm?

1000 year storm?

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A municipal stormwater collection system is designed for a 25 year design frequency storm, and includes detention basins. We experience a 30 year storm, and the excess water spills over a spillway, as it is designed to do.

Municipal liability?

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Query

A developer is required to infiltrate the stormwater that comes off the roof of a large industrial building. Water from a 100 year storm can’t possibly be accommodated with infiltration wells, so excess water is diverted to a detention pond, again designed for a 25 year storm. Water flows down a spillway into an established drainage swale, but because the roof is impervious, the volume of water is greater than the pre-development volume. The drainage plan was approved by the Township and by PA DEP.

Municipal liability?

Developer liability? 82 STEVENS & LEE

Query

Query: The downspouts on your home discharge stormwater near your foundation, so there is dampness in the basement. You put extenders on the downspouts, to divert the water into the grass. There is a huge storm, and not all of the water can infiltrate into the soil. Water ponds on your neighbor’s yard for an hour after the storm and you are in an unrelated dispute with that neighbor.

Nuisance suit potential?

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Query

Statutory and Case Law Update – May 2013 through August 2014

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James F. Kratz, Esq. (610) 997-5065 jfk@stevenslee.com

Land Use Case Law Update (2013-2014)

Monitor published appellate level decisions re: land use/zoning

Between 35-50 published cases per year (Commonwealth Court/Supreme Court)

Discuss cases at weekly real estate group conference call

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Statutory Update: Development Permit Extension Act – 53 P.S.§ 11703.1 et seq.

2013, July 9, P.L. 362, No. 54, § 2

Amended definition of “Extension Period” to read “The period beginning after December 31, 2008, and ending before July 2, 2016.”

Duration – The extension period established under this act shall be the maximum approval period authorized under this act and shall supersede the normal time period for approvals relating to development. Nothing in this section shall prohibit the government agency from granting additional extensions as provided by law.

Limitation – Any government approval granted after July 2, 2013, shall not be extended beyond the normal approval periods of the government agency without the permission or approval of the government agency.

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Lamar Advantage GP Company, LLC v. City of Pittsburgh, 67 A.3d 156 (Pa. Cmwlth. 4/30/13)(Pellegrini)

Proposed amendment to zoning ordinance related to signs

Changes made to ordinance after public hearing

No significant disruption to continuity of proposed legislation or appreciable change in language

New public hearing not required

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Bernotas v. ZHB of City of Bethlehem, 68 A.3d 1042 (Pa. Cmwlth. 6/7/2013)

Nonconforming use already previously expanded by 50% with special exception approval

Proposed additional expansion beyond percentage allowed by special exception

Court considered proposed deviation to be “dimensional variance” not a use variance

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Schmader v. Cranberry Township Board of Supervisors, 67 A.3d 881 (Pa. Cmwlth. 2013)(Leadbetter)

Zoning decision issued by mail did not contain a date of mailing

Appeal filed more than 30-days after date issuance decision

Since decision was undated, appeal permitted 30-days after receipt

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Shaw v. Township of Upper St. Clair ZHB, 71 A.3d 1103 (Pa. Cmwlth. 7/5/2013)(Brobson)

Notice requirements for zoning text amendment versus map amendment are different under MPC

Addition of “mixed development conditional use” that permitted multiple types of uses and only applied to one property effectively was a map amendment

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Keener v. Rapho Township ZHB, 79 A.3d 1205 (Pa. Cmwlth. 7/31/2013)(McGinley)

Zoning ordinance interpretation

Ordinance contained arbitrary distinction between commercial and non-commercial operation of the same use

No substantial relation to the health, safety and welfare of the community

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Joshua Smith/tla Advert Sign Solutions v. Hanover ZHB, 78 A.3d 1212 (Pa. Cmwlth. 10/16/2013)(Colins)

Billboard case (one of several in 2013)

Limited to industrial district in Borough

No de facto exclusion of use

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Ness v. York Township Board of Commissioners, 81 A.3d 1073 (Pa. Cmwlth. 12/4/2013)(Simpson)

Challenge to procedural validity of ordinance

Optional notice of enactment of Ordinance published by municipality provided wrong appeal deadline

Appeal dismissed as untimely

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Robinson Township, Washington County v. Commonwealth of Pa., 83 A.3d 901 (Pa. 12/19/2013)(Castille)

Municipal challenge to the zoning requirements and mandates of Act 13 related to Oil and Gas wells drilling

Zoning provisions of Act 13 ruled unconstitutional by a plurality of Supreme Court

Environmental Rights Amendment (Article I, Section 27, PA Constitution)/Due Process

Result: status quo ante – No uniform zoning scheme for oil and gas wells

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THW Group, LLC v. ZBA, 86 A.3d 330 (Pa. Cmwlth. 3/6/2014)(Simpson)

Interpretation of zoning ordinance that did not specifically allow Methadone clinics

Methadone clinic could meet plain usage of medical office, hospital, medical centers use

ZBA improperly interpreted ordinance to preclude the use based on theory that Methadone clinics did not exist when ordinance adopted

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Ion Geophysical Co. v. Hempfield Tp., __ F. Supp. __ (W.D. Pa, 4/10/2014)(Cohill)

Proposed seismic testing on township roads to locate oil and gas

Township had no ordinance establishing standards and refused to enter into an agreement to allow use of roads

Court issued injunction preventing interference with seismic testing on private property and Township roads

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Nowicki v. ZHB of Monaca Tp., 91 A.3d 287 (Pa. Cmwlth. 5/6/2014)(Colins, S.J.)

Residential property in Planned River-Oriented Development District

Non-commercial, recreational development of properties with river views

Validity variance necessary as regulation essentially confiscatory

99 STEVENS & LEE

100 STEVENS & LEE

101 STEVENS & LEE

Servants Oasis v. ZHB of South Annville Tp., 94 A.3d 457 (Pa. Cmwlth. 6/18/2014)(Leavitt)

Special exception applicant met burden of showing compliance with objective standards

Objectors’ testimony regarding traffic increase and limited access was speculative and did not justify denial

ZHB should have approved special exception

102 STEVENS & LEE