A kaleidoscope is an optical instrument that presents an ever-changing view for those looking through it.  In many ways, this reminds me of life as a real estate developer in Pennsylvania.  The approval process landscape is ever-changing from project to project and municipality to municipality.  With every twist of the land use kaleidoscope the path to a successful project looks a little (or a lot) different than the last one.

There are approximately 2,500 municipalities in Pennsylvania.  Between 2,100 and 2,200 have their own set of zoning regulations – each different than the other – that shape how land can be developed in that municipality.  Think of those zoning regulations as one color of glass inside the kaleidoscope.  But picture looking through that kaleidoscope you had as a child – there are multiple colors, right?
Continue Reading Looking Through the Kaleidoscope – Land Use in Pennsylvania

In an earlier blog post, we discussed how the Commonwealth Court reversed the decision by the Pennsylvania Public Utility Commission (“PUC”) to no longer issue certificates of public convenience to neutral host distributed antenna system (“DAS”) network operators.  Having a certificate of public convenience is important to a DAS network operator since it affords the operator access to public rights-of-way and limits the applicability of municipal regulation to DAS networks.  The Commonwealth Court had determined that the PUC’s new interpretation of the statutory language was not entitled to much deference and was not supported by the statutory language, precedent or federal law.  The PUC appealed and the Pennsylvania Supreme Court recently affirmed the Commonwealth Court’s decision.

The Court first held that the Commonwealth Court was
Continue Reading Are Distributed Antenna Networks Public Utilities? The Pennsylvania Supreme Court Has Decided

Last month, my colleague Christopher Knarr and I presented a webinar for the Pennsylvania State Association of Township Supervisors (“PSATS”) on the importance flexibility in zoning ordinances. When we put the presentation together in early 2020, we expected to be speaking in person at PSATS’ annual conference. Obviously, COVID-19 changed those plans. The economic impacts of the virus, however, only made our topic timelier.

From national retail chains to local restaurants, every day seems to bring a new headline of another business closure. Even in industries that have remained strong throughout the crisis questions remain about how we will define the “new normal.” Are large office complexes a thing of the past? Can companies reduce their physical footprints (and thus their overhead) by allowing employees to continue to work remotely even after the threat of the virus have waned? And, if we do continue to meet in virtual spaces rather than physical ones, what will happen to the restaurants, retail stores, and offices that we once occupied?
Continue Reading Defining the “New Normal”: How Flexible Zoning Can Help us Rebuild our Communities

As you have undoubtedly heard, the COVID-19 pandemic caused countless businesses to turn to their insurance companies for assistance, making claims under their policies for business interruption coverage.  While every insured’s policy is different, insurance companies are almost universally denying such claims.  Business owners are left frustrated and wondering what exactly they have been paying for when it comes to business interruption coverage.

In denying claims, insurance companies argue that business interruption insurance is not meant to cover closures related to COVID-19.  Under most policies, business interruption coverage only applies if there has been a direct physical loss of use or damage to property related to a covered loss.  While many insureds argue that a virus contaminating the surface of their property is a loss of use, and thus covered, insurance companies have generally rejected such arguments, instead requiring direct physical damage.
Continue Reading Business Interruption Insurance: An Uncertain Path

On May 4th, 2020 ,the Governor’s Office issued new guidance for businesses as they become authorized to restart in-person operations pursuant to the Administration’s phased red-yellow-green plan.  The guidance, which can be found here, includes a series of mandatory protocols designed to reduce the spread of COVID-19 between and among employees and customers.  These protocols are binding upon “[a]ll businesses in all industries and sectors of the economy (including non-profit entities), in the Commonwealth, that are permitted to conduct-in person operations…unless they are otherwise more stringently regulated under separate industry-specific guidance”.

Recently, the Governor’s Office announced that twenty-four Pennsylvania counties will transition to the “yellow” phase on May 8th, thereby authorizing businesses in those counties to restart in-person operations on a limited basis. 
Continue Reading May 8 Opening: Guidance (Portions Mandatory) From The Commonwealth For Businesses

On April 22, Governor Wolf announced an amendment to his standing shutdown and shelter in place order that permits construction projects to resume statewide on May 1st.  This news comes just days after the Governor’s office released its “Plan for Pennsylvania,” which authorized “limited construction” activities beginning on May 8th.  Per

Thank you to our friends at Capitol Buzz and the McNees Government Relations Group (MSSG) for a great update on bills working their way through the PA General Assembly, which affect public meetings and hearings, construction activities and more.  A few highlights are below, but you should read the entire Capitol Buzz post.

On Tuesday, along strict party lines, the Pennsylvania House of Representatives passed a Republican-sponsored proposal to allow many businesses impacted by Gov. Tom Wolf’s business shutdown order to reopen amid the COVID-19 pandemic.

The House passed Senate Bill 613, which includes language introduced by House Republicans last week to reopen the state’s workforce while practicing social distancing and other mitigation efforts outlined by the federal Centers for Disease Control (CDC) and the Cybersecurity and Infrastructure Security Agency (CISA). The legislation was sent
Continue Reading Updates On Public Meetings & Hearings, Construction Activities, and More from the General Assembly

**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