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

Month: May 2016

Supreme Court Holds that Approved Jurisdictional Determinations by Army Corps of Engineers Are Final Agency Actions and Subject to Judicial Review

In this case involving the Clean Water Act, 33 U.S.C. §§ 1251–1387, the U.S. Supreme Court was asked to determine (1) whether the Army Corps of Engineers (the Corps) grant of an approved jurisdictional determination (JD) is a final agency action and (2) whether, in the absence of judicial review, Hawkes Co. (Hawkes) had alternative remedies. The Court held that the grant of an approved JD is a final agency action. Furthermore, it held that Hawke was without alternative remedies besides judicial review.

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Municipal Suits Against Developers for Incomplete Public Improvements Not Subject to Statute of Limitations

The Commonwealth Court held that the Township of Salem (the Township) was entitled to collect damages from Miller Penn Development, LLC (Developer) for incomplete improvements Developer was required to install under the Township’s subdivision and land development ordinance (SALDO). The court held that the applicable statute of limitation did not apply to the Township’s claim, pursuant to the nullum tempus doctrine, and awarded the township damages for the cost of repairing the improvements.

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Right to Know Law Does Not Govern Where Another Statute Provides Access to Records

This case required the Commonwealth Court to construe the Right to Know Law (RTKL), 65 P.S. §§ 67.101–67.3104, together with the Pennsylvania Voter Registration Act (VRA), 25 Pa. C.S. §§ 1101–1906. The court affirmed a decision by the Office of Open Records (OOR) and held that the RTKL does not govern the disclosure of voter registration information because the VRA and the Pennsylvania Department of State’s (DOS) pertinent regulations expressly establish the procedures for making that information public. As such, the DOS may require compliance with the VRA and relevant regulations even if such a request is submitted under the RTKL.

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Housing Cooperative Board Acted Outside Scope of Authority By Enacting Two-Unit Ownership Policy For Members without Amending Bylaws

In this matter, the Commonwealth Court was asked to decide whether a housing cooperative board can impose a limitation on the number of dwelling units individual members can own. The court determined that such a policy was not authorized because the cooperative’s bylaws did not contain any such limitation. Such a policy, the court concluded, could only be imposed as an amendment to the cooperative’s bylaws.

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Third Circuit Holds Economic Harm to Shopping Center Development Insufficient to Trigger NEPA Protection

This dispute involves a challenge to plans by the Federal Highway Administration (FHWA) and Pennsylvania Department of Transportation (PennDOT) to improve State Route 222. The Third Circuit was asked to determine whether an economic injury alone falls within the “zone of interests” protected by the National Environmental Policy Act (NEPA). The Third Circuit affirmed the lower court’s ruling and dismissed the case, holding that economic injury alone does not support standing under NEPA. The court also affirmed the lower court’s decision to deny these plaintiffs an opportunity to amend their complaint because the allegations they sought to add still failed to establish standing.

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FHA Accessibility Requirements Do Not Apply to Buildings Constructed Prior to March 1991

In this case, the Third Circuit was asked to determine whether the design and accessibility requirements of the Fair Housing Act (FHA) apply to commercial buildings constructed prior to March 1991—the effective date of the requirements—but converted to residential use after that date. In affirming the lower court’s dismissal, the Third Circuit found that the U.S. Department of Housing and Urban Development’s (HUD) interpretation that the FHA requirements only apply to buildings constructed after March 1991 was reasonable.

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Court Re-Affirms That Municipalities Have Broad Discretion In Granting Land Development Applications

In this land use appeal out of Allegheny County the Commonwealth Court was asked to weigh in on the amount of discretion a municipality has to grant land development applications based on certifications by professional engineers and conditioned upon subsequent state and federal review. The court was also asked to determine the level of detail post-construction maintenance plans for stormwater facilities must have, and whether municipal approval can be granted despite an ongoing dispute over the scope of a utility easement necessary to construct the project as proposed. In affirming the lower court’s decision, the Commonwealth Court held that municipalities have broad discretion in choosing to grant or deny a land development application, and that the court will seldom second guess such decisions.

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