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

Tag: Court of Common Pleas of Berks County

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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City Not Immune from Liability for Negligence of City Employees During Excavation That Caused Collapse of Utility’s Conduit Bank

In this appeal out of Berks County, the Pennsylvania Supreme Court was asked to construe the language of the utility service facilities exception (“Utility Exception”) to governmental immunity contained in the Political Subdivision Tort Claims Act (“Tort Claims Act”). Finding the Commonwealth Court erred by not applying the Utility Exception, the Court reversed.

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Home Rule Municipalities May Use Authority Granted Under Previous Governing Statute

In this case the Commonwealth Court was asked to further elaborate on its holding in City of Reading v. Iezzi, 78 A.3d 1257 (Pa. Cmwlth. 2013). Iezzi held that a municipal recycling fee covering all costs associated with a municipality’s recycling program violated Act 101. Specifically, the issue was whether a partial fee was also in violation of Act 101.  While the court remanded the matter for further analysis by the trial court based on its recent decision in Waste Management of Pennsylvania, Inc. v. Department of Environmental Protection, 107 A.3d 273 (Pa. Cmwlth. 2015), the court did hold that a home rule municipality may rely on powers granted to it under its previous governing statute, in this case the Third Class Cities Code.

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Building A Fence Does Not Make It A “Stadium”

In this case out of Berks County the Commonwealth Court weighed in on whether erecting a fence around a high school’s athletic fields constituted a new “stadium use” or was an expansion of a preexisting nonconforming use. In concluding that the fence did not create a new stadium use or expand the preexisting nonconforming use the court reversed the ZHB’s decision and ordered the requested permits be issued.

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Perfection of Zoning Appeals More About Substance Than Form

Palencar was issued an enforcement notice that certain structures on his property required zoning permits.  He submitted an application/appeal form indicating a variance was requested, but not that Palencar wished to appeal the enforcement notice. Prior to the hearing Palencar’s attorney phoned the ZHB Solicitor and indicated Palencar also wanted to appeal the enforcement notice. The ZHB published notice of the hearing stating it would consider an appeal “from the zoning officer’s determination.” A hearing was held and the ZHB found Palencar had violated the ordinance and upheld the enforcement notice.  Palencar appealed.

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