Did you know that under certain circumstances a private individual can acquire government-owned land without the government’s consent? Although the Commonwealth’s immunity from adverse possession claims has never been in question, whether political subdivisions of the Commonwealth are subject to adverse possession claims has been less clear. On September 26, 2019, the Supreme Court of Pennsylvania addressed this matter in the case of City of Philadelphia v. Galdo, 2019 Pa. LEXIS 5452. In Galdo, the Supreme Court held that political subdivisions in Pennsylvania may be subject to claims of adverse possession, except where the property is devoted to a public use. The facts of Galdo provide great insight into this matter.

In 1974, the City of Philadelphia condemned 1101-1119 N. Front Street in Philadelphia for transit purposes related to the construction of Route I-95 (the “Parcel”). The City, however, never physically occupied the Parcel or used it for public transit purposes as originally intended. Instead, the Parcel remained vacant and unmaintained, with the City viewing it as “surplus property” that was not actively being used. Continue Reading Use It or Lose It: Political Subdivisions are Subject to Claims of Adverse Possession

Yesterday morning on the McNees Minute on ABC 27, I briefly discussed the role local public officials – such as your municipality’s council members, commissioners or supervisors – have in the development and redevelopment processes for our communities.  They play a major role in ensuring our land is developed in a smart, safe and efficient manner that provides for all the needs of a community.  I stressed the importance of electing public officials who are willing to trust municipal staff and other consultants.  In addition, I touched on why it is important to elect public officials who are willing and able to collaborate with developers and property owners.  Finally, I offered that it is equally important for developers and property owners to engage land use professionals who also are collaborative and able to work with elected public officials and municipal staff.  Having forward thinking, collaborative people in each of those roles is vitally important to the future development and redevelopment of our communities.

There are many posts on this blog that discuss or analyze the situation where a municipal ordinance has become antiquated.  We’ve discussed situations where ordinances just haven’t considered Continue Reading Collaboration: A Better Way to Develop

In baseball, if the base runner and the ball arrive at first base at the same time the tie is resolved in favor of the base runner and they are safe.  Under the Pennsylvania Municipalities Planning Code (MPC), if there is any ambiguity when interpreting a zoning ordinance provision, the ambiguity is interpreted in favor of the property owner and against the extension of any restriction in the ordinance provision.  This rule was applied by the Commonwealth Court recently in the case of Alleman v. North Newton Township Board of Supervisors.

In the Alleman case, the property owner owned approximately 112 acres of split-zoned land in North Newton Township.  Approximately forty acres of the property were in the Township’s Agricultural District and approximately seventy-two acres were in the Township’s Rural Residential District.  The property owner had a hog feeding operation on a portion of the forty acres Continue Reading A Tie Goes to the Runner (or the Property Owner): Interpreting Ambiguity in Zoning Ordinances

Where do you spend your free time or work on your hobby?

There is a concept in community planning and place making involving three separate but important social environments (or places) where people spend their time.  The first two places are one’s home and one’s workplace.  “Third places” generally include public or community places where people socialize or recreate, including places of worship, health clubs, bars and pubs, restaurants, stores, parks, community centers, etc.  Now developers are creating new third places by combining the “man cave” and “she shed” concepts with mini-storage.  These third places are known as luxury garage units or “car condos.”

The concept is simple.  Rather than renting or leasing unconditioned dead storage space for vehicles, household items or recreational equipment in traditional mini-storage units, luxury garage units are made available for purchase as condominium units and are fully conditioned.  Continue Reading Man Caves and She Sheds Meet Mini-Storage…It’s a Thing

The Pennsylvania Turnpike Commission, in consultation with the Pennsylvania Department of Transportation (PennDOT), is currently studying the viability of building a hyperloop tube that would transverse Pennsylvania from Pittsburgh to Harrisburg to Philadelphia and then northeast toward Scranton/Wilkes-Barre.  Pennsylvania House of Representatives Resolution 1057 authorized the Commonwealth to conduct a study for a hyperloop system that would facilitate the transportation of passengers and freight at speeds approaching 700 miles per hour in pods that move through low-pressure tubes.

House Resolution 1057 found that the concept of the hyperloop, first described by Elon Musk in 2012-2013, may no longer be a hypothetical notion, given the recent work of states and firms to study and develop the necessary technologies.  In 2018, transportation agencies in Ohio and Illinois announced a study involving a hyperloop that would connect Columbus, Ohio to Chicago, Illinois.  House Resolution 1057 explains that Elon Musk desires to build a hyperloop connecting New York City to Washington, D.C. with a projected travel time of 29 minutes with planned stops in Philadelphia and Baltimore. Continue Reading A Hyperloop in Pennsylvania: More Than Just a Futuristic Notion?

In a series of posts last year (available HERE and HERE), I discussed the Pennsylvania Supreme Court’s revival of the long-dormant Environmental Rights Amendment (“ERA”) to the Pennsylvania Constitution.  This summer, the Pennsylvania Commonwealth Court authored another chapter in the ERA saga.  Stick with me, because it is about to get technical…

As you may recall, in Pennsylvania Environmental Defense Fund (“PEDF”) v. Commonwealth, 161 A.3d 911 (Pa. 2017), the Pennsylvania Supreme Court found that the ERA created a public trust, the corpus of which was all of Pennsylvania’s public natural resources.  In this analogy, the Commonwealth is the trustee and Pennsylvania’s citizens are the named beneficiaries of the trust.  When state park land is leased by Pennsylvania’s Department of Conservation and Natural Resources for oil and natural gas extraction, any royalties – monthly payments based on the gross production of oil and gas at each well – are proceeds received in exchange for trust assets.  As a result, royalties must be returned to the trust as part of its corpus.  In other words, they are earmarked for the conservation and maintenance of Pennsylvania’s natural resources. Continue Reading PEDF v. Commonwealth Redux: The Commonwealth Court Weighs In

Some Pennsylvania municipalities are throwing out their zoning ordinances and designing fresh ones from scratch, with a little help from their neighbors.  These new and (hopefully) improved ordinances not only include modified zoning districts and adapted language and concepts, but also new zoning maps – sometimes more than triple the size of the old ones.  Although uncommon, this approach – which combines multiple municipal zoning jurisdictions into one, shared jurisdiction – is neither new nor unlawful.  In fact, the Pennsylvania Municipalities Planning Code (the “MPC”) dedicates an entire Article to the requirements and implementation of this concept, referred to as “joint municipal zoning.”

The crux of joint municipal zoning is the adoption of a joint zoning ordinance (“JZO”), which is exactly what it sounds like: under Article VIII-A of the MPC, two or more municipalities (“participating municipalities”) may agree to a single zoning ordinance pursuant to a joint comprehensive plan.  The JZO is subsequently prepared by a joint planning commission directed by the governing bodies of the participating municipalities.

The benefits of JZOs are readily apparent, at least in theory Continue Reading Zoning, With A Little Help From Your Friends

The municipal regulation of public utility facilities continues to be a topic of litigation.  In April 2018, we discussed how municipalities cannot use zoning ordinances to regulate non-building facilities of public utilities.  Recently, the Pennsylvania Supreme Court weighed in on whether a municipality can regulate when and how a public utility installs its improvements within the municipality’s street rights-of-way.  Again, the litigation resulted in a favorable decision for the public utility.

In PPL Electric Utilities Corp. v. City of Lancaster, 2019 Pa. LEXIS 4611 (Pa. 2019), the City of Lancaster adopted an ordinance to regulate the installation of public utilities in City streets.  This effort was not surprising as many municipalities look at their street rights-of-way as a critical asset that must be protected.  Continue Reading You Can’t Touch This? Supreme Court Hammers Away at Municipal Regulation of Public Utilities

Real estate developers, construction businesses, engineers, and others involved in development projects are subject to numerous permitting and approval requirements under local, state, and federal regulatory programs.  For example, development projects in Pennsylvania involving earthmoving of more than one acre (i.e. most projects) must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for construction-related stormwater discharges, also known as PAG-02.  The current PAG-02 expires on December 7, 2019.  Recently, the Pennsylvania Department of Environmental Protection (“PADEP”) announced the availability of supporting documents, such as an updated Fact Sheet, and a comment period on the draft revised PAG-02.  The comment period is open until only September 16, 2019.

Anyone engaged in construction, real estate development, or similar operations should review the draft revised PAG-02 permit and supporting documents, and should consider submitting comments to PADEP.   PADEP anticipates the revised PAG-02 having an effective date of December 8, 2019. Continue Reading Attention Developers! Construction Stormwater Permitting Changes Imminent

We mentioned in a prior post that failing to follow procedural requirements for land use hearings can lead to unwanted results for all – or at least most – involved. In a recent example, the Commonwealth Court ruled that Lewis Township’s Zoning Ordinance was void from inception after finding that the Board of Supervisors failed to comply with the Municipalities Planning Code (the “MPC”) requirements for adopting zoning ordinances.

In Yannaccone v. Lewis Twp. Bd. of Supervisors, the Township formed a Zoning Ordinance Committee (“ZOC”) to create a proposed zoning ordinance to present to the Board for adoption. The Board published notice of a public hearing scheduled on the Ordinance. The Board held the hearing in accordance with the public notice and subsequently adopted the Ordinance at a later regularly scheduled meeting. Less than one month after the Ordinance became effective Continue Reading No Notice: Commonwealth Court Scraps Township Zoning Ordinance