Harrisburg Land Use Briefing

October 25, 2018

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Today’s Speakers Charles M. Suhr, Esq. and Matthew Sternberg

Land Banks: Redevelopment Opportunities

Ronald M. Lucas, Esq. Hearings and Public Hearings: What Difference Does it Make?

Ambrose W. Heinz, Esq. The Environmental Rights Amendment: Recent Developments

and How it May Apply to Local Land Use Decisions

Ronald M. Lucas, Esq., Charles M. Suhr, Esq. and Ambrose W. Heinz, Esq. Pennsylvania Land Use Appellate Case Law and Statutory

Update

Charles Suhr

Ron Lucas

Ambrose Heinz

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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.

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Land Banks: Redevelopment Opportunities

Charles M. Suhr, Esq. Stevens & Lee (717) 255-7356 cms@stevenslee.com

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Matthew Sternberg Executive Director Lancaster County Housing and Redevelopment Authorities

Act 153 of 2012 Effective December 4, 2012

Land Banks in Pennsylvania

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Strong communities are important to the social and economic vitality of this Commonwealth. Whether urban, suburban or rural, many communities are struggling to cope with vacant, abandoned and tax-delinquent properties.

Citizens of this Commonwealth are affected adversely by vacant, abandoned and tax-delinquent properties, including properties which have been vacated or abandoned due to mortgage foreclosure.

Vacant, abandoned and tax-delinquent properties impose significant costs on neighborhoods, communities and municipalities by lowering property values, increasing fire and police protection costs, decreasing tax revenues and undermining community cohesion.

Legislative Findings and Purposes

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There is an overriding public need to confront the problems caused by vacant, abandoned and tax-delinquent properties through the creation of new tools to enable municipalities to turn vacant, abandoned and tax-delinquent spaces into vibrant places

Land banks are one of the tools that municipalities may use to facilitate the return of vacant, abandoned and tax-delinquent properties to productive use

Legislative Findings and Purposes (cont’d)

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Public Body – generally an Authority

Established by Ordinance by a Municipality or County

Individually with +10,000 people

Together with another Municipality totaling +10,000 people with an intergovernmental cooperation agreement

What are Land Banks?

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Sue and be sued Action in Quiet Title

Borrow funds

Issue bonds and notes

Enter into contracts

Design, develop, construct, demolish, reconstruct, rehabilitate, renovate, relocate and otherwise improve real property

Charge rent for use of Land Bank property

Key Land Bank Powers

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Acquire licenses, easements, leases or options

Enter into partnerships, joint ventures or other collaborative relationships

With municipalities and public entities

With private parties

Key Land Bank Powers (cont’d)

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No power of eminent domain

By contract

Transfer from a municipality or tax claim bureau

Conveyance from a redevelopment authority

Free and clear of all liens and encumbrances

Donation and then extinguish delinquent claims for delinquent taxes

Acquisition of Property

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Conveyance, exchange, sell, transfer, lease, grant or mortgage

Consideration to be determined by Land Bank

Cash

Secured financial obligations (mortgages)

Covenants and conditions related to present and future use of property

Consideration of local land use plans when conveying property

Disposition of Property

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Open Records

Right to Know Law

Public Access

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May discharge tax claim or lien on Land Bank property owed to member jurisdictions of the Land Bank

Includes school taxes

Upset sale

Land Bank and plaintiff enter into agreement for Land Bank to purchase at upset price if no higher bidders

All liens, claims and subordinate encumbrances discharged by the sale

Delinquent Property Tax Enforcement

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Judicial Sale

Land Bank receives title free and clear of all tax and municipal claims, liens, mortgages, ground rents, charges and estates

In a petition for judicial sale, municipality and Land Bank (if it holds tax liens) may combine multiple tracts

Delinquent Property Tax Enforcement (cont’d)

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Land Bank may file action for any property or properties which it has an interest

Must conduct a title examination to determine who has interest in property

Service by mail, posting, publication or as ordered by Court

Hearing scheduled within 90 days of filing complaint

Final judgment of Court issued within 120 days of filing complaint

Expedited Quiet Title Proceedings

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Brief history of Lancaster County Land Bank

Member Municipalities

Advantages

Opportunities

Discussion with Matthew Sternberg

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Questions?

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Hearings and Public Hearings: What Difference Does it Make?

Ronald M. Lucas, Esq. (717) 255-7352 roml@stevenslee.com

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Public Hearing §107(a) Definition: a formal meeting held

pursuant to public notice by the governing body or planning agency, intended to inform and obtain public comment, prior to taking action in accordance with this act

Types of applications: Zoning ordinance amendments §609

Subdivision plat – option of governing body §508(5)

PRD tentative approval §708(a) [not required for final approval §711(a)]

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Hearing §107(b) Definition: Hearing, an administrative

proceeding conducted by a board pursuant to section 909.1

§107(b) Definition: Board, any body granted jurisdiction under a land use ordinance or under this act to render final adjudications

§107(b) Definition: Decision, final adjudication of any board of other body granted jurisdiction ….All decisions shall be appealable …court of common pleas…

§909.1. Jurisdiction: (a) zoning hearing board and (b) governing body

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Hearing (cont’d)

Types of applications: Conditional use

Special exception

Variance

Appeals from determinations (zoning officer, engineer)

Validity challenge

Curative amendment

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Hearing Procedures Parties §908(3)

Municipality

Resident of municipality

Person affected by the application

Taxpayer in school district

Resident of adjoining municipality

Civic or community organization

Person permitted by Board

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Hearing Procedures (cont’d)

Conduct of hearing §908(5) Right of parties to be represented by counsel Parties shall be afforded the opportunity to respond and present

evidence and argument and cross-examine adverse witnesses

Stenographic record §908(7) Independence of board §908(8)

NO communication with the board by any party or representative of a party

No notice of any communication, reports, staff memoranda, or other materials, except advice of solicitor, unless all parties given opportunity to contest the material

No inspection of the site or its surroundings after commencement of hearings with any party unless all parties are given an opportunity to be present

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Hearing Procedures (cont’d)

Zoning Officer responsibilities Advertising

Posting of property

Written notice to applicant, zoning officer, persons designated by governing body and any person who has made timely request for the same §908(1)

Zoning Ordinance should designate other parties: adjoiners, properties within 200 ft.

Request for notice should be in writing

No requirement for proof of receipt of notice

Affidavit for hearing

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Evidence on Appeal Public Hearing

Plans Exhibits Transcript? PowerPoint? Interactive

presentation?

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Hearing Transcript Exhibits PowerPoint? Interactive

presentation?

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Questions?

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The Environmental Rights Amendment: Recent Developments and How it May Apply to

Local Land Use Decisions

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Ambrose W. Heinz, Esq. (717) 255-7377 awh@stevenslee.com

Environmental Rights Amendment Article 1, Section 27

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic 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

Adopted May 18, 1971

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PA Constitution Declaration of Rights Inherent Rights of Mankind Article 1, Section 1 All men are born equally free and

independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness

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Payne v. Kassab, 361 A.2d 263 (PA 1976) Action against municipal officials to enjoin a street widening project

that would impact park land along Susquehanna River within the City of Wilkes-Barre

PA Commonwealth Court rules in favor of municipal officials and adopts a 3-part test:

1. Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources?

2. Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?

3. Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

Since there was a statutory basis for suit (e.g., PennDOT legislation) no need to decide if ERA is self-executing

Affirms Commonwealth Court – no ERA violation

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1976 - 2013

PA Courts follow 3-part Payne v. Kassab test

Few successful actions brought

Why? – very hard standards to overcome?

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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 (Robinson #2), 83 A.3d 901 (PA 2013)

On December 19, 2013, the Pennsylvania Supreme Court, in a tedious, 115 page plurality (nonbinding, non-precedential), ruled unconstitutional major parts of PA’s Act 13. (There was also a Robinson #1 decision, which is unimportant for our discussion)

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Municipal Liability as the Environmental “Trustee”

The Commonwealth (as well as its municipalities) have 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 #2, p.957

As a Trustee, the Commonwealth (as well as its municipalities) must “act affirmatively to protect the environment, through legislative action.” Robinson #2, 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 #2, p. 980

There is a duty to act toward public natural resources with “prudence, loyalty and impartiality.” Robinson #2 p. 957

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Who Can Sue Has Always Been Constrained in Pennsylvania

Until Robinson #2, a litigant had to show a direct personal interest in a controversy to be able to sue, even under this Section 27 of the PA Constitution

Have the floodgates been opened or is this a handout to the plaintiff lawyer’s bar?

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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.”

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 in Bucks County, where no fracking has occurred, 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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Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) 147 A.3d 536 (PA 2016)

Robinson #2 was a plurality decision which was remanded back to the Commonwealth Court

Robinson #3 again struck down significant portions of Act 13, the 2012 Act which restructured the PA Oil and Gas Act

Mercifully, #3 was only 88 pages…

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Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) (Now a majority holding)

“A municipality’s duty to protect the environment for the benefit of its residents is not merely a creation of statute, but an affirmative obligation placed on these entities by...our Commonwealth’s Constitution”

This did not authorize municipalities to exercise unconstitutional self-help

It did reinstate municipal power to enact ordinances permitted by the MPC where oil and gas interests are concerned

Raises questions about which state laws remain preemptive of municipal action

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Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) (Now a majority holding) (cont’d)

Did not address whether a municipality has an environmental duty as Trustee to the public, and if so, what that duty is

Did not address the issue of standing of the oddly permitted litigants – leaving that issue in limbo, or arguably, where it was before Robinson #2 – with a requirement that a litigant must show a direct, personal interest to be able to sue

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Post Robinson Decisions Feudale v. Aqua Pennsylvania, Inc. & DCNR, 122 A.3d 462 (Pa. Cmwlth. 2015), affirmed, 135 A.3d 580 (PA April 2016)

Citizen action against Aqua’s proposal to replace 100 year old gravity fed water line through a state forest

Aqua’s predecessor had obtained water rights before land became state forest

Alleged logging and earth moving will destroy a large swath of forest and degrade the area’s natural and aesthetic value

Aqua had obtained all necessary permits (NPDES) which Feudale did not appeal. Therefore, claims against DCNR dismissed

Aqua not a Commonwealth governmental entity. Therefore not a trustee under ERA. Therefore, no duty under ERA to conserve and maintain PA natural resources

Commonwealth Court applies Payne v. Kassab test and finds no evidence that DCNR didn’t follow proper statutory and regulatory guidelines

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Kretschmann Farm LLC v. Township of New Sewickley, 131 A.3d 1044 (Pa. Cmwlth. January 2016)

Conditional use application for gas compressor station

Met the ordinance requirements

Objectors did not preserve their constitutional challenge to Ordinance

Applicant had no obligation to show compressor station – complied with ERA; only that is would satisfy state and federal environmental laws

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Funk v. Governor Wolf, 144 A.3d 220 (Pa. Cmwlth. 2016), affirmed, 158 A.3d 642 (PA March 28, 2017)

Special interest groups brought action against the Commonwealth for failure to develop and implement a comprehensive plan to regulate CO2 emissions to prevent global warming, as violation of ERA

Court noted existing statutory scheme regulating air pollution in PA

ERA does not compel government to perform any specific acts. Therefore, performance is not mandatory

Commonwealth Court dismisses action and Supreme Court affirms

ERA does not allow petitioners to disturb the legislative scheme in place of regulating air quality

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania 161 A.3d 911 (PA June 20, 2017)

This case “examines the contours of the Environmental Rights Amendment” in the context of legislation which allows funds to be generated from the leasing of state forest and park lands for oil and gas exploration and extraction (only 45 pages)

The court declares the public trust provisions of the ERA to be self-executing

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont’d)

Declares that the ERA contains two rights:

A prohibitory clause limiting state power if it is exercised in opposition to “the right of citizens to clean air and water, and to the preservation of natural, scenic, historic and aesthetic values of the environment”

A reservation of the right of common ownership, by the people, including future generations, of the Commonwealth’s public natural resources

This creates a “trust” relationship in which the Commonwealth trustee is obligated to protect public natural resources from adverse state or private action

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont’d)

Reaffirms the Commonwealth and its subsidiaries (including municipalities) as trustees to the public regarding the use of public natural resources Captures funds generated from public land leases and royalties

in a trust for the environmental benefit of the public (funds are currently directed to a Hazardous Sites Clean-up Fund and to an Environmental Stewardship Fund)

Rejects and overrules the Payne v. Kassab balancing test first created by the Commonwealth Court in 1973 through which private rights and environmental harm were balanced before environmental actions were taken

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Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont’d)

Reaffirms that a challenger has the heavy burden of showing that a challenged statute or ordinance “clearly, plainly and palpably” violates the Constitution.” Decision was based on an environmental challenge to the use of public assets, and not to environmental degradation generally

Says that municipalities have the same obligations as the Commonwealth. But do they? Is the holding valid in a case in which municipalities have no involvement?

Municipalities cannot simply turn down a land development that meets its ordinance requirements on the basis of a perceived ERA violation (EQT Production Company et. LLC v. Borough of Jefferson Hills (Pa Commonwealth May 18, 2017)

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Delaware Riverkeeper Network v. Sunoco Pipeline, L.P., 179 A.3d 670 (Pa. Cmwtlh. February 20, 2018)

Trial court ruled that Township Ordinance prohibiting placement of natural gas lines in residential districts was preempted by PUC jurisdiction

Ruling did not conflict with Township’s constitutional duties to protect natural resources under the ERA

Ordinance was preempted by existing Public Utility Code provisions regulating location of public utilities

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Clean Air Counsel v. Sunoco Pipeline L.P., 185 A.3d 478 (Pa. Cmwtlh. April 30, 2018)

This case deals with whether an entity operating as a public utility (Sunoco) is a “trustee” under the ERA when exercising eminent domain powers

Sunoco is not a “private” party, so Commonwealth Court has exclusive jurisdiction to hear claims regarding violations of ERA

However, Court does not answer the question of whether public utility exercising eminent domain has a duty under ERA

Stay tuned...

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Gorsline v. Board of Supervisors of Fairfield Township, 186 A.3d 375 (PA June 1, 2018)

Reversed decision of Commonwealth Court holding that an unconventional gas well (“fracking”) a Residential-Agricultural (R-A) should have been allowed

Commonwealth Court had ruled that use was “similar to” a Public Service Facility and was thus permitted by conditional use in the R-A (following MarkWest I from 2014)

Supreme Court ruled that use was not similar to or compatible with a public service facility in the R-A district

Declined to address argument that allowing the use would violate objectors rights under the Environmental Rights Amendment

Theme of Courts so far in zoning cases is to avoid addressing ERA claims

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MarkWest Liberty Midstream v. Cecil Township Zoning Hearing Board, ___ A.3d ___ (Pa. Cmwlth. order published 9/13/18)

Following remand of a special exception request for natural gas compressor which court ordered approved (MarkWest I, 2014)

MarkWest appealed the conditions of approval imposed by ZHB

Neighbors’ sought intervention in matter

Court held that the decision to deny intervention did not violate neighbors Environmental Rights

No showing that Commonwealth failed in its duty to protect their rights or the environment or keep environmental harm to a minimum

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Unanswered Questions Does a municipal adjudicative body (i.e., ZHB or

governing body reviewing a plan) have a duty under the ERA beyond compliance with ordinance?

Should developer always provide an environmental impact report to avoid and ERA dispute or only on requests for legislative action?

If ordinance contains generic, subjective requirement to “not adversely impact environment,” who has the burden to prove? Is compliance with environmental laws enough?

As a constitutional issue, can an ERA challenge be raised at any time? What is the appropriate tribunal?

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Questions?

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Pennsylvania Land Use Appellate Case Law and Statutory Update

Charles M. Suhr, Esq. (717) 255-7356 cms@stevenslee.com

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Ronald M. Lucas, Esq. (717) 255-7352 roml@stevenslee.com

Ambrose W. Heinz, Esq. (717) 255-7377 awh@stevenslee.com

In re: Jerrehian, 155 A.3d 674 (Pa. Cmwlth. 3/6/2017)(Leavitt)

Subdivision plan

Preliminary opinion

Zoning challenge to lot approval

Merger of lot

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In re: Jerrehian, 155 A.3d 674 (Pa. Cmwlth. 3/6/2017)(Leavitt) (cont’d)

115 Cherry Lane (3.8 acres)

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In re: Jerrehian, 155 A.3d 674 (Pa. Cmwlth. 3/6/2017)(Leavitt) (cont’d)

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TIMELINE 1958 Acres divided into 4 parcels after death of owner by Orphan’s Court; no subdivision plan

1961 50’ row shown on Township plan providing access to Pool Lot (115 Cherry Lane)

1968 Subdivision plan showing Pool Lot as having 110 foot frontage on 50 foot row

2003 O’Malley’s buy Pool Lot and neighboring 103 Cherry Lane

2005 O’Malley’s sell Pool Lot to Stollwerck and Pool Lot to Jerrehian

In re: Jerrehian, 155 A.3d 674 (Pa. Cmwlth. 3/6/2017)(Leavitt) (cont’d)

Ordinance required lots to have 90 foot width at street line

Definitions from Zoning Ordinance Street: A right-of-way, publicly or privately

owned, serving as a means of vehicular and pedestrian travel and furnishing access to abutting properties and space for sewers and utilities

Right-of-Way: As [l]and used or intended for use as a street, alley or crosswalk

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In re: Jerrehian, 155 A.3d 674 (Pa. Cmwlth. 3/6/2017)(Leavitt) (cont’d)

Lane providing access had no pavement and did not contain utilities

Was there a valid subdivision in 1958?

Is this lot a valid lot where it does front on a public street?

Where lots merged?

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Borough of West Conshohocken v. Soppick, 164 A.3d 555 (Pa. Cmwlth. 3/29/2017)(Leavitt)

Notice of violation

Enforcement action

Penalties pending appeal

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Borough of West Conshohocken v. Soppick, 164 A.3d 555 (Pa. Cmwlth. 3/29/2017)(Leavitt) (cont’d)

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TIMELINE 1996 Permit issued for 1 story garage

4/23/99 Stop work order issued by Zoning Officer for 2 story garage

6/11/04 ZHB denies appeal

2/21/07 TC affirms ZHB

3/07 Appeal to Commonwealth Court

6/19/07 Enforcement Notice issued

10/4/07 Magistrate judgement ($7,038)

11/23/07 Complaint filed by Borough ($47,100)

2/19/08 Commonwealth Court affirms ZHB matter

8/27/08 Garage removed

2011 Amended complaint ($130,500)

(435 days – 6/19/07-8/27/08)

Marr Development Mifflinville, LLC v. Mifflin Township Zoning Hearing Board, 166 A.3d 479 (Pa. Cmwlth. 7/3/2017)(Jubelirer)

Special exception

Grounds for denial of request

Compatible with surrounding area

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Marr Development Mifflinville, LLC v. Mifflin Township Zoning Hearing Board, 166 A.3d 479 (Pa. Cmwlth. 7/3/2017)(Jubelirer) (cont’d)

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Marr Development Mifflinville, LLC v. Mifflin Township Zoning Hearing Board, 166 A.3d 479 (Pa. Cmwlth. 7/3/2017)(Jubelirer) (cont’d)

Compatibility – The proposed use shall be in the best interest of properties in the general area as well as the community at large. The proposed use will be reviewed as to its relationship to and effect on surrounding land uses and existing environmental conditions regarding the pollution of air, land and water; noise; potential of hazards and congestion; illumination and glare; restrictions to natural light and circulation of air

Single Family Detached – Permitted by right

Single Family Attached (Duplex) – Permitted by special exception limited to 2 units

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Board of Commissioners of Cheltenham Tp. v. Hansen-Lloyd, L.P., 166 A.3d 496 (Pa. Cmwlth. 7/6/2017)(Wojcik)

Mandatory sketch plan

Vested right on zoning issues

Setback from municipal boundary

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Board of Commissioners of Cheltenham Tp. v. Hansen-Lloyd, L.P., 166 A.3d 496 (Pa. Cmwlth. 7/6/2017)(Wojcik) (cont’d)

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TIMELINE

2008 Township enacts Age Restricted Overlay Zoning district

12/23/08 Sketch plan filed for Age Restricted housing

2012 2008 Ordinance repealed – new ordinance adopted

May 2015 Special exception applied for age restricted housing under 2008 ordinance

1050 Ashbourne Assoc. LLC v. Cheltenham Township Board of Commissioners, 167 A.3d 828 (Pa. Cmwlth. 8/1/2017)(Leavitt)

Land development plan

Conflicting overlays

Bad faith

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1050 Ashbourne Assoc. LLC v. Cheltenham Township Board of Commissioners, 167 A.3d 828 (Pa. Cmwlth. 8/1/2017)(Leavitt) (cont’d)

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TIMELINE

May 30, 2012 Developer requests special exception for age restricted development under Age-Restricted Overlay

July 2012 Township appends Age-Restricted Overlay to restrict height

June 2013 Special exception approval granted

Sept. 2014 Court affirms after appeal by Township

Dec. 2014 Township notifies developer that Preservation Overlay Districts will apply

June 2015 Developer files sketch plan for 8 dwelling units as required; Township denies

1050 Ashbourne Assoc. LLC v. Cheltenham Township Board of Commissioners, 167 A.3d 828 (Pa. Cmwlth. 8/1/2017)(Leavitt) (cont’d)

Proposal related Preservation Overlay District limit on number of units per buildings and the 2012 amendments to Age Restricted Overlay limit on height

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1050 Ashbourne Assoc. LLC v. Cheltenham Township Board of Commissioners, 167 A.3d 828 (Pa. Cmwlth. 8/1/2017)(Leavitt) (cont’d)

Which Overlay District applies?

Did the grant of a special exception expire so as to be subject to amendments to height restriction?

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DiMattia v. Zoning Hearing Board of East Whiteland Tp., 168 A.3d 393 (Pa. Cmwlth. 8/8/2017)(S.J .Colins)

Zoning enforcement

Use of residential garage for preparation, repair and transport of race cars

Accessory use

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Marshall v. Charlestown Township Board of Supervisors, 169 A.3d 162 (Pa. Cmwlth. 8/29/17) (Hearthway)

Standing of Township in conditional use

Nature of use

Educational use or restaurant

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Dambman v. Board of Supervisors of Whitemarsh Township, 171 A.3d 969 (Pa. Cmwlth. 10/6/2017)(PJ Leavitt)

Appeal of land development approval

Zoning issues

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Appeal of Grande Land, L.P., 174 A.3d 1178 (Pa. Cmwlth. 11/18/2017)(Brobson)

Denial of special exception

Record evidence

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Appeal of Grande Land, L.P., 174 A.3d 1178 (Pa. Cmwlth. 11/18/2017)(Brobson) (cont’d)

Specific requirements for special exception? “The proposed development shall be served

by public water supply and sewage disposal systems approved by [DEP].”

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Berner v. Montour Township Zoning Hearing Board, 176 A.3d 1058 (Pa. Cmwlth. 1/4/2018)(Simpson)

Special exception standards

Manure storage

Nutrient management act preemption

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Berner v. Montour Township Zoning Hearing Board, 176 A.3d 1058 (Pa. Cmwlth. 1/4/2018)(Simpson) (cont’d)

Zoning Ordinance § 402(1)(E)

Intensive Agriculture and Agricultural Support Commercial feedlots, veal finishing, hog raising, poultry breeding or

egg or meat production operations, livestock auctions, wholesale produce centers, fertilizer and seed distributors, commercial horse farms, grain storage and feed mills, and similar uses shall submit facility designs and legally binding assurances with performance guarantees which demonstrate that all facilities necessary for manure and wastewater management, materials storage, water supply and processing or shipping operations will be conducted without adverse impact upon adjacent properties. Adverse impacts may include, but are not limited to, groundwater and surface water contamination, groundwater supply diminution, noise, dust, odor, heavy truck traffic, and migration of chemicals offsite.

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SBA Towers IX, LLC v. Unity Township Zoning Hearing Board, 179 A.3d 652 (Pa. Cmwlth. 2/16/2018)(Brobson)

Standing SBA option agreement with landowner to determine

suitability of 100 x 100 easement area for cell tower

Verizon intervention Common pleas court did not hold a hearing per Rules

of Civil Procedure

Sua Sponte Hearing Common Pleas Court sua sponte conducted a

hearing to clarify relationship between SBA Towers and/or Verizon and Cellco Partnership

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SBA Towers IX, LLC v. Unity Township Zoning Hearing Board, 179 A.3d 652 (Pa. Cmwlth. 2/16/2018)(Brobson) (cont’d) Collocation

Ordinance required good faith effort

FCC License Ordinance required applicant licensed by FCC to operate

tower and antennas

FCC Standards Ordinance required tower and antennas complied with

applicable FCC standards relating to human exposure to electromagnetic radiation

Minimum Height Necessary Ordinance required to demonstrate minimum height

necessary to perform its function

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Schwartz v. Chester County Agricultural Land Preservation Board, 180 A.3d 510 (Pa. Cmwlth. 3/2/2018)(S.J. Colins)

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Schwartz v. Chester County Agricultural Land Preservation Board, 180 A.3d 510 (Pa. Cmwlth. 3/2/2018)(S.J. Colins)

Conservation easement To protect and preserve prime agricultural

farmland

Purchased by Chester County Agricultural Land Preservation Board

Mix and processing organic mulch for public sale on 5 of 64 acres

Formal Complaint sent to Board of violation of easement

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Friends of Lackawana v. Dunmore Borough ZHB, 186 A.3d 525 (Pa. Cmwlth 5/7/2018) (Simpson)

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Friends of Lackawana v. Dunmore Borough ZHB, 186 A.3d 525 (Pa. Cmwlth 5/7/2018) (Simpson)

Preliminary Opinion Zoning Officer preliminary opinion §916.2 Landfill expansion did not violate building height limit Expansion upward would not have roof supported by

walls

Standing of Objectors ZHB and Trial Court dismissed appeals - lack of

standing Objectors lived ¼ to ½ mile from existing landfill Separated by interstate and major interchange

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Gorsline v. Board of Supervisors of Fairfield Twp., 186 A.3d 375 (PA 6/1/2-18) (Donohue)

Gas well use not in Ordinance Zoning Ordinance neither specifically permitted

or denied Conditional use

Similar and compatible with other uses permitted in the zone

Public service facility Public service structures by a utility …or by a

municipality or other governmental agency

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Gorsline v. Board of Supervisors of Fairfield Twp., 186 A.3d 375 (PA 6/1/2-18) (Donohue) (cont’d)

Gas well use not in Ordinance (cont’d)

Essential services Facilities and related equipment of a public utility

Use not expressly authorized cannot enjoy any presumption of being similar to uses permitted

Zoning Ordinance can be amended to permit gas wells in any or all zoning districts with limitations and conditions governing body decides are appropriate

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