Pennsylvania Real Estate, Land Use, Zoning, and Municipal Lawyers

This blog features case law related to real estate, land use, zoning, and municipal law in Pennsylvania

Variance to Redevelop Mostly Vacant, Dilapidated Warehouse Affirmed Despite Property Owner Failing to Offer Evidence of Equitable Ownership at Hearing

In this variance case out of Philadelphia, an objecting neighbor appealed the grant of a use variance by the Philadelphia Zoning Board of Adjustment (“ZBA”) to redevelop a partially vacant and underutilized former industrial building into a mixed use multi-family residential building.  Following an affirmance by the Court of Common Pleas of Philadelphia County, Objector appealed to Commonwealth Court. The Commonwealth Court condensed the issues raised on appeal down to whether the applicant, Hightop Brown, LLC, had standing, and whether there was sufficient evidence to grant the requested variance.  The Commonwealth Court affirmed ZBA’s decision.

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Municipalities Not Immune from Adverse Possession Claims

In a property dispute between the City of Philadelphia and Francis Galdo, the Commonwealth Court ruled that the City of Philadelphia is not immune from claims of adverse possession where it is simply holding property for possible future sale.  This dispute centers upon a small, rectangular piece of undeveloped land that was condemned by the City in 1974 on behalf of the Commonwealth in relation to the construction of Interstate 95. Galdo purchased a property across the street from the property in 1989 and began using it for storage, parties, and parking.  Galdo made a variety of improvements to the property over the years: pouring concrete slabs, installing and (later) removing a fence, installing storage trailers, building a fire pit/brick barbeque and pavilion, and creating a volleyball court, horseshoe pits, and a treehouse.  In 2014 the City filed an ejectment action against Galdo, who responded with a counterclaim to quiet title, claiming ownership by adverse possession.  The trial court ruled in favor of the City, concluding Galdo could not claim title to the Property because the City had condemned the property at the behest of the Commonwealth, and because claims of adverse possession cannot lie against the Commonwealth or its agents, and the Property was devoted to public use.

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DEP Interpretation of Clean Streams Law to Allow Continuing Violations by Polluters Found Unreasonable

The Pennsylvania Supreme Court was presented with an appeal from a determination by the Commonwealth Court pursuant to a declaratory judgment action filed by EQT Production Company (“EQT”).  EQT requested a determination regarding the Pennsylvania Department of Environmental Protection’s (“DEP”) interpretation of the Clean Streams Law to allow the imposition of ongoing penalties against polluters, following a single release of pollutants into the waters of the Commonwealth, for each day that those contaminants remain in the subsurface soil and passively enter groundwater and surface water.  DEP offered two theories of liability to support its position.  Under the first (the soil-to-water migration theory) DEP argued industrial waste pollutants could perch above an aquifer and continually pollute new groundwater as water flows through the polluted soil and over time move into uncontaminated areas.  The second theory (the water-to-water theory) asserted new infractions occurred as contaminants spread from discrete bodies of water into new regions of water.  EQT conversely, argued that a violation only occurred upon the actual discharge of pollutants into a body of water, and not the continued presence of those pollutants in the water.

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Reversal of ZBA Special Exception Denial Based on Speculative, Lay Opinion Affirmed

In this case out of Philadelphia, the Commonwealth Court affirmed the reversal of a Philadelphia Zoning Board of Adjustment (“ZBA”) decision to deny special exception approval to a developer to construct a Dunkin Donuts near the intersection of Broad Street and Oregon Avenue in South Philadelphia.  Monroe Land Investments (“Monroe”) filed a special exception application to redevelop a former 7-11 and Napa auto parts store into a Dunkin Donuts coffee shop.

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Court Rejects Special Exception Conditions Not Based in Zoning Ordinance/MPC or Supported By Record Evidence

 

In this case out of Washington County, the Commonwealth Court was asked to weigh in on what conditions a zoning hearing board may reasonably impose upon a special exception approval.  In ruling that most of the conditions imposed by the Cecil Township Zoning Hearing Board (“ZHB”) were unreasonable, and thus an abuse of discretion, the Commonwealth Court emphasized that conditions placed on a special exception approval must be based upon either the zoning ordinance or the Municipalities Planning Code (“MPC”), and must be supported by evidence in the record.

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Commonwealth Court Holds That Philadelphia Ordinance Regulating “Adult Cabarets” Was Neither Unconstitutionally Overbroad nor Unconstitutionally Vague

The Commonwealth Court was asked to assess the constitutionality of a provision of the Philadelphia city code regulating “adult cabaret.”  The court found that the language of the ordinance was neither unconstitutionally overbroad nor unconstitutionally vague.

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Commonwealth Court Holds That Homeowners’ Association Had Authority to Regulate “Tigger” Mailbox

In this “over-litigated case,” the Commonwealth Court was asked to determine if a homeowners’ association had the authority to require the removal of a mailbox that homeowners had not gotten approval to install.  The court determined that the association could require the mailbox’s removal, as it was a structure under the terms of the association’s Declaration and Guidelines.

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Commonwealth Court Holds That the Philadelphia Zoning Board of Adjustment Has Authority to Grant Special Exceptions with Conditions

This case required the Commonwealth Court to determine whether or not a zoning hearing board had the authority to place conditions on the grant of a special exception.  In holding that it did, the court relied on the language of the Philadelphia city code, which it determined provided the board with adequate discretion to impose the conditions.

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Commonwealth Court Approves Much of Land Use Settlement but Holds Trial Court Did Not Have Jurisdiction over Property That Was Not at Issue in Underlying Litigation

This case involved an appeal from a 2015 land use settlement entered into between Lower Mount Bethel Township (the “Township”) and Gravel Hill Enterprises, Inc. (“Gravel Hill”).  The settlement revolved around the use of Gravel Hill’s property as a location for stump grinding to create mulch and top soil.  There were concerns regarding truck traffic, increased noise, declining property values, and other issues on the part of the Township and many of its residents.

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Borough Waived Issues It Did Not Raise in Front of Zoning Hearing Board

This case required the Commonwealth Court to determine if a municipality had a right to appeal the granting of a special exception by its zoning hearing board.  The court held that it did not because the municipality failed to make the appropriate objection in front of the zoning hearing board, and thus, the issue was waived.

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