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: November 2016

Failure to Appeal Violation Notice Conclusive Determination of Ordinance Violation

In this zoning enforcement action out of Northampton County, the Commonwealth Court was presented with a property owner’s appeal of a judgment entered against them for constructing a retaining wall and backfill within the Delaware River floodplain without necessary permits.  In affirming the Court of Common Pleas of Northampton County’s (the “trial court”) decision to award attorney fees, a fine, and grant a permanent injunction, the court found that failure to appeal a zoning violation notice to the zoning hearing board (“ZHB”) resulted in a conclusive determination of violation that could not be contested on appeal.

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Failure to Submit Sufficiently Detailed Site Plan Adequate Grounds for Denying Special Exception

In this case the Commonwealth Court was asked to determine whether a zoning applicant’s failure to submit a site plan with all information required by the zoning ordinance was sufficient grounds to deny a special exception application. In upholding the trial court’s affirmation of the Zoning Hearing Board’s (“ZHB”) decision to deny the application, the court held that an applicant’s failure to include all required information in a site plan, or to request a waiver or extension to submit a satisfactory site plan, was grounds, on its own, to deny the application.

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Temporary Beer Garden Not Nuisance Per Se In Residential Zoning District

In this case out of Philadelphia, the Commonwealth Court was asked to weigh in on whether the Court of Common Pleas of Philadelphia County appropriately granted a preliminary injunction to allow the continued operation of a temporary beer garden in a residential zone while it applied for certain required zoning permits and certifications.  In affirming the court’s decision that a preliminary injunction was warranted, the court found that locating a beer garden in a residentially zoned area was not a per se public nuisance, and that the City had failed to prove the use constituted a nuisance or endangered the public health or safety.

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Surveillance Video From 3rd Party Obtained While Investigating Traffic Accident Not Disclosable Under RTKL

In this appeal of a final determination of the Office of Open Records (“OOR”) the Commonwealth Court weighed in on the scope of the Criminal History Record Information Act (“CHRIA”) and the criminal investigative exception to the Right-to-Know Law (“RTKL”) and there applicability to surveillance videos obtained from third parties. In reversing OOR’s final determination, the Commonwealth Court held that surveillance videos obtained from third parties during the course of a criminal investigation are not required to be disclosed pursuant to a RTKL request.

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Appearance and Appropriateness of Use Not Valid Considerations When Denying a Permitted By-Right Use

In this appeal out of Bucks County, the Commonwealth Court weighed in on whether a zoning hearing board (“ZHB”) could deny a permit for a permitted by-right use based on the ZHB’s determination that the requested use was not appropriate in the district, and was not the actual use for which the applicant intended to use the property.  In affirming the trial court’s reversal of the ZHB’s decision, the Commonwealth Court held that it was error for the ZHB to consider the appropriateness or proposed appearance of a permitted by-right use, and that evidence of a prior application for use that was not permitted, was irrelevant to the present application.

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Government Immunity Under Tort Claims Act Not Applicable Where Design and Layout of Property was Cause of Injury

In this action for negligence out of the City of Philadelphia, the Commonwealth Court was presented with a question of whether an injury caused by an exposed concrete wall in a school gymnasium fell under the real property exception to government immunity provided by the Political Subdivision Tort Claims Act (the “Act”). In reversing the Court of Common Pleas of Philadelphia County’s grant of summary judgment, the court held that merely because options for remedying a dangerous condition involve personalty it does not mean that the real property exception is inapplicable.

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Unsuccessful Infrastructure Improvement Proposals Not Disclosable Under RTKL

In this appeal from a final determination of the Office of Open Records (“OOR”), the Commonwealth Court weighed in on whether certain unsuccessful bids for public infrastructure projects were subject to disclosure under the Right-to-Know Law (“RTKL”).  Specifically, the issue presented was whether a statute that ordered the public release of successful bidders, but was silent as to unsuccessful bidders, should be read to exclude unsuccessful bidders from disclosure, or whether the silence meant that the general requirements of the RTKL applied and disclosure was required.  In finding unsuccessful proposals were not public records, the Court differentiated standalone statutes and open ended versus closed ended statutes when applying the disclosure requirements of the RTKL.

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