Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in Supreme Court of Pennsylvania
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The Pennsylvania Environmental Defense Foundation (“PEDF”) challenged for the third time, the use of proceeds from oil and gas leasing on the Commonwealth’s forest and park lands as violative of Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. (“Section 27” or “ERA”). In previous trips before the Pennsylvania Supreme Court, PEDF challenged several 2009-2025 budgetary provisions enacted challenging the use of proceeds from oil and gas leasing on the Commonwealth’s forest and park lands as violative of Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. (“Section 27” or “ERA”). In the first two cases, PEDF challenged several 2009-2015 budgetary provisions enacted in the wake of dramatic increases in oil and gas revenue resulting from Marcellus Shale exploration in Pennsylvania. Applying trust principles, the Pennsylvania Supreme Court held that the budgetary provisions violated Section 27 by utilizing the oil and gas revenue for non-trust purposes via transfers to the General Fund. PEDF v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF II”); PEDF v. Commonwealth, 255 A.3d 289 (Pa. 2021) (“PEDF V”). The underlying case here was one for a declaratory judgment, and named the Commonwealth and Governor as parties. Here, PEDF raised numerous constitutional challenges to provisions of the General Appropriations Act of 2017 and 2018, as well as the 2017 Fiscal Code amendments, all of which were enacted after the Supreme Court’s decision in PEDF II. After review , the Supreme Court affirmed the Commonwealth Court, whilst rejecting that court;s analysis derived from PEDF III. View "PA Enviro Defense Fdn, Aplt. v. Commonwealth" on Justia Law

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Appellants Patrick and Pamela Lutz (“Homeowners”) owned a single-family, detached home on a half-acre lot along Kesslersville Road in Plainfield Township, Northampton County, Pennsylvania. The property was located in a farm and forest district under the township’s zoning code. Single-family dwellings were permitted in that district but, per the zoning code, they are subject to setback requirements. Homeowners decided to add onto the back of their home. The design called for an addition to extend to the building envelope in the back: to 50 feet shy of the rear property line, with a raised, covered deck extending 18 feet into the rear setback area. When Homeowners submitted their plan to the township for approval, the zoning officer sent them written notice that the deck would not be allowed because it intruded into 50-foot setback area. He observed Homeowners could seek relief from the zoning hearing board (the “Board”) in the form of a dimensional variance. The Pennsylvania Supreme Court allowed appeal to consider whether the Commonwealth Court correctly applied its standard of appellate review relative to the grant of a dimensional zoning variance. The Pennsylvania Supreme Court was evenly divided; by operation of law, the Commonwealth Court’s judgment was thus affirmed. View "Kneebone v. Lutz" on Justia Law

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The issue this appeal presented for the Pennsylvania Supreme Court's review involved the proposed redevelopment of a 90-year-old abandoned two-story industrial building, consisting of approximately 14,000 square feet, formerly used as a garage/warehouse facility. In 2013, Appellant Metal Green Inc. purchased the property at a sheriff’s sale for approximately $90,000. In August 2016, Mt. Airy USA, a local nonprofit, commenced a legal action against Metal Green pursuant to the 2008 Abandoned and Blighted Property Conservatorship Act (“Act 135”). A court declared the property to be blighted and abandoned and ordered Metal Green to remediate the hazards that the property posed to the community. While the court possessed the authority to order the demolition of the building, it held such action in abeyance, allowing Metal Green to not only make necessary repairs, but to pursue redevelopment of the property. The Department of Licenses and Inspections denied Metal Green’s application for a building permit to convert the warehouse to apartments. The Supreme Court considered the proper legal standard to be applied when considering an application for a “use variance” under the Philadelphia Zoning Code, as well as the appropriate standard of review for such determinations. The Court held that the minimum variance requirement, as set forth in the Philadelphia Zoning Code, applied to use variances. Additionally, in determining the entitlement to a use variance, the Court concluded considerations of property blight and abandonment were more properly evaluated under the Code’s unnecessary hardship requirement, rather than under the minimum variance requirement. Finally, the Court reaffirmed its traditional abuse of discretion or error of law standard of review with respect to a court’s review of a variance determination; however, as a component thereof, the Court allowed for review for a capricious disregard of the evidence under certain circumstances. View "Metal Green Inc. v. City of Phila, et al." on Justia Law

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In consolidated appeals, the issue presented for the Pennsylvania Supreme Court's review centered on the Commonwealth Court’s holding that, to be held liable for damages under Pennsylvania’s inverse condemnation statute, an entity had to be "clothed with the power of eminent domain" to the property at issue. In 2009, Appellee, UGI Storage Company filed an application with the Federal Energy Regulatory Commission (the “Commission” or “FERC”), seeking a certificate of public convenience and necessity to enable it to acquire and operate certain natural gas facilities. Appellee wished to acquire and operate underground natural gas storage facilities, which the company referred to as the Meeker storage field. Appellee also sought to include within the certificated facilities a 2,980-acre proposed "buffer zone." FERC ultimately granted the application for Appellee to acquire and assume the operation of the Meeker storage field, but denied Appellee’s request to certificate the buffer zone. Appellants petitioned for the appointment of a board of viewers to assess damages for an alleged de facto condemnation of their property, alleging that though their properties had been excluded by FERC from the certificated buffer zone, they interpreted Appellee’s response to the Commission’s order as signaling its intention to apply for additional certifications to obtain property rights relative to the entire buffer zone. The common pleas court initially found that a de facto taking had occurred and appointed a board of viewers to assess damages. Appellee lodged preliminary objections asserting Appellants’ petition was insufficient to support a de facto taking claim. The Supreme Court reversed the Commonwealth Court: "we do not presently discern a constitutional requirement that a quasi-public entity alleged to have invoked governmental power to deprive landowners of the use and enjoyment of their property for a public purpose must be invested with a power of eminent domain in order to be held to account for a de facto condemnation. ... a public or quasi-public entity need not possess a property-specific power of eminent domain in order to implicate inverse condemnation principles." The case was remanded for the Commonwealth Court to address Appellants’ challenge to the common pleas court’s alternative disposition (based upon the landowners’ purported off-the-record waiver of any entitlement to an evidentiary hearing), which had been obviated by the intermediate court’s initial remand decision and that court’s ensuing affirmance of the re-dismissal of Appellants’ petitions. View "Albrecht, et al. v. UGI Storage Co. et al." on Justia Law

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The Pennsylvania Supreme Court granted the Pennsylvania Department of Transportation (“PennDOT”)’s petition seeking review of a Commonwealth Court holding that a de facto taking of an unmined coal estate, owned by Penn Pocahontas and leased to PBS Coals, Inc. (collectively “the Coal Companies”), occurred under the Eminent Domain Code, 26 Pa.C.S. sections 101-1106 (“Code”), when PennDOT’s construction of Highway 219 on an adjoining parcel destroyed options for constructing rights-of-ways to the coal estate’s surface. In reaching that conclusion, the Commonwealth Court held that the feasibility of mining the coal, as measured by the probability of obtaining a legally required permit from the Department of Environmental Protection (“DEP”), was relevant only to damages. The Supreme Court reversed the Commonwealth Court’s decision, agreeing with PennDOT that the legality of extracting the coal went directly to the trial court’s duty to determine whether a taking occurred. Furthermore, the Court held the Commonwealth Court erred by failing to remand the case for consideration of whether consequential damages are available to the Coal Companies. The matter was remanded to the Commonwealth Court with instructions to remand to the trial court with respect to the Coal Companies’ consequential damages claim. View "PBS Coals, et al v. PennDOT" on Justia Law

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For many years, Lamar Advantage GP Co. displayed an electronic advertisement on a billboard perched atop Mount Washington, which overlooked downtown Pittsburgh. In 2016, Lamar ratcheted a static, vinyl sign over the electronic advertisement and the underlying structure. Believing that this action “enlarged” or “replaced” the sign, the City of Pittsburgh cited Lamar for breaching the City’s Zoning Code. Pittsburgh’s Zoning Board of Adjustment upheld the citation, agreeing with the City that Lamar’s actions enlarged or replaced the sign. On appeal, the Court of Common Pleas reversed the Board. The Commonwealth Court affirmed the lower court. Both courts held that the Board’s conclusion was unsupported by the record. After its review of the case, the Pennsylvania Supreme Court concurred with the common pleas and Commonwealth courts: the record here did not support the Board's legal conclusion that by draping the vinyl static sign over the existing electronic sign and sign structure, Lamar violated the zoning code. View "Lamar Advantage v. City of Pgh ZBA, et al." on Justia Law

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At issue was whether the rule of capture immunized an energy developer from liability in trespass, where the developer used hydraulic fracturing on the property it owned or leased, and such activities allowed it to obtain oil or gas that migrated from beneath the surface of another person’s land. Plaintiffs’ property was adjacent to a tract of land leased by Appellant Southwestern Energy Production Company for natural gas extraction. Plaintiffs alleged that Southwestern “has and continues to extract natural gas from under the land of the Plaintiffs,” and that such extraction was “willful[], unlawful[], outrageous[] and in complete conscious disregard of the rights and title of the Plaintiffs in said land and the natural gas thereunder.” Southwestern alleged that Plaintiffs’ claims were barred by, inter alia, the rule of capture, and sought declaratory relief confirming its immunity from liability. The court of common pleas court granted Southwestern’s motion for summary judgment, denied Plaintiffs’ motion for partial summary judgment, and denied the motion to compel as moot. The court agreed with Southwestern’s position that the rule of capture applied in the circumstances and, as such, Plaintiffs could not recover under theories of trespass or conversion even if some of the gas harvested by Southwestern had drained from under Plaintiffs’ property. The Superior Court reversed, holding that hydraulic fracturing could give rise to liability in trespass, particularly if subsurface fractures ... crossed boundary lines. The Pennsylvania Supreme Court rejected the concept that the rule of capture was inapplicable to drilling and hydraulic fracturing that occurred entirely within the developer’s property solely because drainage was the direct or indirect result of hydraulic fracturing. Nevertheless, the Supreme Court found the Superior Court panel’s opinion "to suffer from multiple infirmities," reversed and remanded with directions. View "Briggs, et al v. Southwestern Energy" on Justia Law

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Montour Township (Township) Pennsylvania has a zoning ordinance (Ordinance) under which the Township has been divided into different districts, including agricultural districts. The Ordinance permits several “Intensive Agriculture and Agricultural Support” uses, including “hog raising,” in agricultural districts by special exception. The Nutrient Management Act (Act), required certain agricultural operations to comply with various standards regarding the management of livestock manure, among other “nutrients.” At the heart of the Act is the mandate that certain agricultural operations adopt a “nutrient management plan” or “NMP.” The Act also contained a provision outlining the manner in which the Act, as well as the regulations and guidelines promulgated pursuant to it, preempt local regulation of nutrient management. Scott Sponenberg (Applicant) owned property used as a livestock and crop farm within an agricultural district in the Township. In April 2013, Applicant filed an application for a special exception with the Montour Township Zoning Hearing Board (ZHB) based on his desire to build a swine nursery barn with under building concrete manure storage (i.e., a manure storage facility) on his property. Applicant’s planned use was not subject to the various requirements established under the Act, which applied to NMP operations. The ZHB initially granted Applicant’s special exception application subject to conditions. Following two appeals filed by various objectors, including Russell Berner, Donna Berner, Kendall Dobbins, Robert Clark, and Robert Webber (Objectors), the matter returned to the ZHB by way of order from the Commonwealth Court for the ZHB to render necessary findings regarding Applicant’s compliance with the Ordinance’s special exception requirements. In this appeal, the Pennsylvania Supreme Court was tasked with determining whether, and if so, to what extent, the Act preempted local regulation of nutrient management by agricultural operations that were not otherwise subject to the Act’s requirements. The Court held the Act preempted local regulation of agricultural operations not subject to the Act’s requirements to the extent that the local regulation was more stringent than, inconsistent with, or in conflict with those requirements. Because the Commonwealth Court reached a contrary result, the Supreme Court reversed the Commonwealth Court’s order. View "Berner,et al v. Montour ZHB" on Justia Law

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In this appeal, the Pennsylvania Supreme Court was asked to determine whether Subsection 508(4)(i) of the Pennsylvania Municipalities Planning Code (MPC), which protected pending land development applications filed with a municipality’s governing body, extended to zoning applications submitted to its zoning hearing board that were: (1) related to the land development application; and (2) filed with the zoning hearing board during the pendency of the land development application and after an adverse zoning change. The Court concluded that Subsection 508(4)(i)’s protection did indeed extend to zoning applications under these circumstances. View "In Re: ZHB of Cheltenham Twp 12-16-15 Decision" on Justia Law

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In 2010, Appellee City of Lebanon (the “City”) was considering creation of a business improvement district (a “BID”), a type of Neighborhood Improvement District (“NID”) to revitalize its downtown area. After a hearing, at which citizens voiced their comments, the City accepted a plan devised by City officials and hired consultants as final and sent another letter to property owners and lessees within the proposed BID, advising how to file an objection, or to vote against the establishment of the Lebanon BID. Appellant Edward Schock, the owner of a non-exempt property in the Lebanon BID, filed suit at the county court under the caption: “Complaint for Declaratory Judgment to Declare Bid Dead.” In the complaint, Appellant advanced the position that, under NIDA, “the objection threshold is 40% of the assessed parcels,” as opposed to forty percent of all parcels within the geographic boundaries of a BID. Given that, by his calculus, only the owners of 280 properties within the geographic boundaries of the BID were eligible to vote, Appellant concluded that the final plan had been vetoed by the 132 negative votes. The City filed preliminary objections in the nature of a demurrer, contending that the term “affected property owners,” in Section 5(f)(2), unambiguously encompasses all of the owners of properties within the geographic boundaries of a BID, regardless of whether they will be subject to or exempt from monetary assessments. The Pennsylvania Supreme Court found, as did the court of common pleas, there were substantial, competing policy considerations in the design of the voting scheme pertaining to the establishment of NIDs. “Ultimately, although we find the shifting terminology within the Act to be awkward and ambiguous, we conclude that the statute’s veto provisions pertaining to final NID plans concern only assessed property owners.” The order of the Commonwealth Court was reversed and the matter remanded for entry of declaratory judgment reflecting the Supreme Court’s opinion. View "Schock. v. City of Lebanon" on Justia Law