**UPDATED 3/21/2020**

Governor Tom Wolf ordered all “non-life-sustaining” businesses throughout Pennsylvania to physically close their operations by 8 p.m. on March 19, 2020 in response to the COVID-19 pandemic.  Enforcement begins at 8:00 a.m., Monday, March 23.  With the Order, the Commonwealth issued a list of life-sustaining and non-life-sustaining businesses.  Residential and commercial construction were on the list of businesses that must close, absent a waiver from the Order.  The Commonwealth’s list is intended to be consistent with the federal Cybersecurity and Infrastructure Security Agency (CISA) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, also released March 19, 2020.  For developers and builders who may be in critical stages of construction or who have environmental responsibilities under permits (such as the PAG-02 or individual permit for discharges of stormwater associated with construction activities), an immediate shutdown simply cannot be achieved.  So what are you to do?
Continue Reading UPDATE – 3/21/2020: The Governor’s COVID-19 Order: Compliance with Environmental Permit Requirements

Overview of Force Majeure
With COVID-19 headlines dominating the news cycle, and with no end in sight to the uncertainty that the virus brings, affected businesses are wise to consider whether the current pandemic qualifies as a “force majeure.”  In the last few weeks, the Chinese government has issued “force majeure certificates” to domestic businesses as a way of shielding companies from breach of contract claims, American businesses are sending mass e-mails to customers explaining that the virus prevents the company’s performance or operations, and businesses in an array of industries have sent formal inquiries to their service providers seeking confirmation of continued performance.

What is “Force Majeure”
The defense of force majeure will excuse a party’s performance under a contract if
Continue Reading Force Majeure Provisions and the Impacts of COVID-19

Please see below regarding the Governor’s order from our Government Relations and Labor & Employment Groups.  Do not hesitate to contact anyone at McNees with questions, including how this order might apply to your job site, project approvals or your office.  McNees is a full service law firm that remains operational, remotely and in compliance with the Governor’s order.  We are ready and able to continue to support our clients’ needs during this trying time.

UPDATE: Latest on Gov. Wolf’s Closure Order amid COVID-19 Outbreak

 As detailed in a special edition of Capitol Buzz sent on Thursday evening, Gov. Tom Wolf ordered all “non-life-sustaining” businesses throughout Pennsylvania to physically close their operations in response to the COVID-19 coronavirus outbreak. The new directive, which went into effect at 8 p.m. on Thursday evening, contains the threat of enforcement action
Continue Reading Governor Wolf’s Closure Order

**Updated 2/26/2020**

On December 7, 2019, the Pennsylvania Department of Environmental Protection (PADEP) reissued the general permit for stormwater associated with construction activities (PAG-02).  This general permit is routinely utilized in most real estate developments, solar farm installations, construction projects and other earth disturbance projects in the Commonwealth.  With the permit package, PADEP made substantial changes to the terms and conditions of the permit as well as the eligibility requirements to qualify for coverage under the general permit.  Importantly, the new permit automatically replaces any existing PAG-02 permit, however PADEP is requiring that permittees covered under a PAG-02 issued prior to December 7, 2019 certify whether they “remain eligible for and are able to comply with the terms and conditions of the reissued PAG-02 General Permit” in order to maintain coverage.  The acknowledgment is to be made electronically on or before March 9, 2020, and the form can be found here.

Permittees who are unable to certify that they remain eligible and able to comply with the new PAG-02 must nevertheless certify to that effect and submit an application for an individual NPDES permit on or before March 9, in which case general permit coverage under the new PAG-02 will continue until the individual permit is issued.  Failure to provide timely acknowledgement will result in termination of the permit coverage as of March 9, 2020.  Therefore it is critical that the acknowledgment be completed for all outstanding permits, or earthmoving activities will have to cease until a new permit is obtained.

The acknowledgment has raised many questions regarding
Continue Reading **Important Notice – General Permit for Stormwater (PAG-02)**

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

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

If you have ever watched a live trial or law-related television show, you probably know a few general things about court proceedings: a judge presides over a case and the rules of evidence (Objection, your honor!) govern what parties can and cannot say and do.  While there are similarities in how court proceedings and land use hearings operate, key distinctions exist.  First, there is no separate judge and jury.  The governing body or the zoning hearing board (collectively, the “Board”) does both.  In addition, land use hearings, while structured, are designed to give the Board freedom in its decision process.  This includes the Board’s power to appoint a hearing officer, relaxed rules of evidence (including the hearsay rule), and the opportunity for parties to present arguments and evidence and to conduct cross-examination. 
Continue Reading He Said, She Said: The Rules Surrounding Hearsay and Cross-Examination in Land Use Hearings

In January of this year, Governor Wolf put forth a series of Legislative Proposals meant to address critical infrastructure problems in Pennsylvania, including blight, particularly in rural Pennsylvania.  He called this series of proposals Restore Pennsylvania.  Governor Wolf simultaneously proposed paying for these initiatives through the imposition of a tax on the extraction of shale gas in the Commonwealth.  While many of the proposals to address the infrastructure problems were well received, the funding of the programs through a shale gas tax has been more controversial.  More information on the entire Restore Pennsylvania initiative can be found HERE.

Of interest to municipalities in the Commonwealth dealing with the problem of blighted properties is the section of the Governor’s proposal that deals specifically with that issue.  The Governor’s proposal acknowledged that nearly all communities within the state have some level of blight.  The cost of dealing with the problem varies, with small municipalities needing funding of perhaps $1 million dollars to address the issue, while larger municipalities, such as Altoona, having concluded that they need tens of millions of dollars to effectively combat the problem.    
Continue Reading Governor’s Wolf’s Plan for Addressing Blight in Pennsylvania

Recently, Frank Chlebnikow, AICP and I co-presented a program entitled “Finding Valuable Commercial Space Under Parking Lots” at the Pennsylvania State Association of Township Supervisors’ 97th Annual Educational Conference.  The program discussed problems (and potential solutions) many communities are experiencing due to the increasing amount of vacant retail spaces in shopping malls and big-box retail stores.  Most communities experience impacts such as a stagnating/declining tax base and operating revenue shortfalls, leading to a reduction in municipal services, loss of businesses and residents, limited property reinvestment, and increasing tax rates.  But mature, built-out suburban and urban communities must also deal with the lack of undeveloped land, aging and inadequately maintained infrastructure, traffic congestion and addressing stormwater runoff issues while complying with federal/state mandates.

One thing is certain, the traditional mall and suburban commercial corridor model (a “shopping mall”) that includes one or more sprawling, single-story buildings dominated by retail and department store tenants surrounded by seas of parking lots, is not the future.
Continue Reading Shopping Malls: This Ain’t the Dawn of the Dead

Solutions for Blight in Pennsylvania

Presented by McNees Attorneys Kandice Kerwin Hull, Dana Chilson and Jeffery Esch McCombie

Blight is a problem facing nearly every municipality in Pennsylvania.  Learn about win/win solutions that allow developers to assist communities in tackling blighted properties. This webinar will include a discussion of eminent domain options, redevelopment authorities,