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: July 2017

Trial Court Must Perform De Novo Review of Application for Site-Specific Relief Following Successful Validity Challenge

In this case out of Chester County, the Commonwealth Court was presented with a request for site specific relief following a successful validity challenge of the East Pike Township Zoning Ordinance (the “Ordinance”).  In concluding that the Court of Common Pleas of Chester County had erred by denying site-specific relief, the Court found the 1 year limitation in § 916.1(g) was inapplicable, it was improper for the trial court to merely rely upon the conclusions of the East Pike Township Zoning Hearing Board (“ZHB”), and the burden of proving compliance with the Ordinance’s unchallenged, pre-existing, and generally applicable provisions rested upon the Township rather than the successful challenger.

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Borough Not Permitted to Back-Bill Customer Due to Under-Billing, Nor Impose a Lien for the Owed Amounts

In this billing dispute between a municipal electric service and an industrial customer, the Commonwealth Court was asked to determine whether the Borough was permitted to “back-bill” customers following the discovery of significant under-billing, and whether the Borough could impose a municipal lien for the amount owed. In affirming the determination of the Court of Common Pleas of Lawrence County, the Commonwealth Court concluded that no back-billing was permitted pursuant to the municipality’s applicable ordinance, and that such a contractual agreement was not a proper basis for a municipal lien.

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Property Association Rules not Based on Official Resolution Cannot Constrain Property Owner’s Use of Property

In this dispute over a property owner’s ability to construct an in-ground pool, the Commonwealth Court ruled that provisions in a property association’s rules and regulations that are not based upon an official resolution of the association’s board, cannot constrain a property owner’s use of their property.

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Repeal of Community Bill of Rights Ordinance Rendered Third Party Intervention to Defend Moot

In this case out of Elk County, the Third Circuit was presented with an appeal from the District Court for the Western District of Pennsylvania, challenging the District Court’s decision to deny an effort by third parties to intervene in defense of an ordinance that had already been repealed by the local municipality.  In affirming the District Court’s order, the Court found the matter was made moot by the repeal of the ordinance, and no abuse of discretion had occurred in denying intervention.

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Borough did not Breach Contract When it Incorrectly Issued Building Permits to Developer

Cornell applied to the Borough for building permits to construct detached single-family homes on a four-lot subdivision. Before submitting, Cornell met with the Borough Manager and the company that performed building inspections (the “Building Inspector”) to discuss construction. The Borough informed Cornell that local ordinances did not require automatic sprinkler systems in detached single-family residences. Cornell thereafter obtained building permits. The permit applications stated the residences would be constructed with pre-engineered wood roof trusses and would not have automatic sprinklers. The Building Inspector visited the site throughout construction, and performed a final inspection when the first residence was completed.  The Building Inspector told the Borough to issue the certificate of occupancy, but the Borough refused on the basis that automatic sprinklers were required in homes constructed with pre-engineered wood roof trusses. The Building Inspector thereafter refused to perform final inspections of the remaining residences until sprinklers were installed.  Cornell filed suit against the Borough and Building Inspector in the Court of Common Pleas of Montgomery County asserting claims for: (1) breach of contract; (2) promissory estoppel; (3) negligent misrepresentation; (4) violation of the equal protection clause of the US Constitution; and (5) violation of the equal protection clause of the Pennsylvania constitution. The Borough asserted that Cornell’s allegations, while couched as contractual or quasi-contractual claims, were “clearly based upon negligence” and, thus, were barred by the Tort Claims Act. The Building Inspector argued it had acted as the Borough’s employee in its capacity as the appointed building inspector, and was therefore also immune from liability under the Tort Claims Act. The trial court granted the Borough and Building Inspector’s motions for summary judgment, and rejected Cornell’s contract claims.  The trial court reasoned the alleged contractual “promise” was unenforceable because the permits were freely revocable by the Borough. It further concluded the promissory estoppel claim was actually a negligence claim, and it and the negligent misrepresentation claim were barred by the Tort Claims Act. Lastly it rejected the equal protection claims. Cornell appealed.

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Sporadic Flooding of Property by Sewage Treatment Plant a De Facto Taking of Property

In this condemnation case out of Luzerne County, the Commonwealth Court determined that the sporadic flooding of a property adjacent to a sewer treatment plant constituted a de facto taking under the Eminent Domain Code.  The Court reasoned that the Mountaintop Area Joint Sanitary Authority (the “Authority”) made specific decisions that resulted in the flooding of the interior and exterior of Colleen DeLuca’s property, and the Authority was aware of the adverse consequences of those decisions.

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Procedural Challenges to Zoning Ordinances do Not Require Showing of Prejudice to Bring Challenge

MetroDev V, LP (“Landowner”) owns property (the “Property”) in an area where the boundary lines of the Township of Exeter (the “Township”), and two surrounding municipalities meet. Prior to July 25, 2005, the Property was zoned low density residential; however, on July 25, 2005 the Township rezoned the Property to suburban residential. The changed classification reduced the number of permitted residential lots from 30 to 7. In August 2005, Landowner filed a validity challenge of the new ordinance with the Township’s Zoning Hearing Board (“ZHB”) alleging procedural irregularities in its adoption. In September 2005, Landowners filed a preliminary subdivision plan for a residential development comprising 34 residential lots, 26 of which were located in the Township. The plan was based on a sketch plan that had previously been submitted under the old ordinance. Certain waivers were sought from the Township’s Subdivision and Land Development Ordinance (“SALDO”). On September 26, 2005, the Township and Landowner entered into a settlement agreement whereby Landowner withdrew its procedural validity challenge in exchange for the Township agreeing to review and potentially approve the land development plan under the terms of the old zoning ordinance. In July 2008, the Township approved Landowner’s plan, subject to certain conditions. Pursuant to the settlement agreement, the Township had reviewed the plan under the old ordinance. Adjacent property owners (“Objectors”) filed a land use appeal with the Court of Common Pleas of Berks County, which was dismissed for lack of standing because Objectors had not appeared in the earlier proceedings.

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Submission of SALDO Plans Created Vested Right to Review Under Then Applicable Zoning Ordinance

In this zoning appeal out of Montgomery County, the Commonwealth Court addressed whether, under the Municipalities Planning Code (“MPC”) the filing of a mandatory sketch plan created a vested right such that any future zoning applications had to be reviewed under the zoning ordinance in effect when the sketch plan was filed. In affirming the trial court’s decision, the Commonwealth Court concluded the MPC created a vested right which applied to both the then existing subdivision and land development ordinance (“SALDO”) and zoning ordinance.

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Court Reverses Denial of Special Exception for Duplexes in Single Family Detached Neighborhood

This appeal out of Columbia County dealt with the denial of a special exception application to permit the development of single family attached dwellings in an area where only single family detached dwellings currently existed.  In reversing, the Commonwealth Court held that objecting neighbors failed to present competent, objective evidence to overcome the presumption that the use was compatible, and that the proposed use would generate adverse effects greater than normal from this type of use.

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