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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

Career Break
Concept of break career of a businessman

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

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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

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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

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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

Late last spring we discussed how the 2017 Tax Cuts and Jobs Act (“TCJA”) negatively affected development by increasing the costs incurred by developers to install water and wastewater infrastructure (Part I and Part II). Effective January 1, 2018, the TCJA required that water companies include advances for construction (“Advances”) and Contributions in Aid of Construction (“CIAC”) in taxable income. Of course, water companies do not want to incur the tax directly, so it is passed on to developers thereby making their cost to install water and wastewater infrastructure even higher.

On February 28, 2019 the Pennsylvania Public Utility Commission (“PUC”) granted Pennsylvania American Water’s (“PAW”) Petition for Reconsideration of its order in Docket Nos. R-2018-3002502/R-2018-3002504. The order requires developers or builders to pay for the TCJA-imposed tax on CIAC and Advances. As a result of the PUC’s grant of reconsideration, there was a cautiously optimistic sigh of relief that the PUC might take a broader and deeper look at the positive impact of new development on the entire base of customers and spread the tax to all customers, not just the developer that installed the improvements.…
Continue Reading UPDATE! Developers Beware! Water lines may cost more thanks to the Tax Cut and Jobs Act – Part 3 (Potentially good news for developers!)

Pennsylvania’s local governments are on the front lines of providing for the needs and wants, and capturing information about, the likes and dislikes of the communities they serve.  Certainly, the decisions made by local government officials, planners and professional staff are the most likely to directly impact their constituencies’ daily lives because such decisions typically are at a more personal level than those made by state and federal officials.  However, there are state government opportunities and processes that should be considered by local leaders that may support their more pressing priorities for growth and development.

For example, Governor Tom Wolf’s budget address on February 5, 2019 identified many areas of increased focus and related funding that, if approved by the General Assembly later this year, should be primarily available to help Pennsylvania’s local governments meet many of their budgetary requirements.  Although the Governor continues to prioritize education funding, workforce development and new resources for the agricultural industry, many other areas of opportunity exist and are expected to continue to be available after this budget is negotiated.

This is the first in a series of blog posts in which we highlight a sampling of the funding sources planners and local government officials should consider when working with private and public sectors interested in infrastructure improvements, beautification and revitalization, attracting and/or expanding new businesses and industries to the area or, in some cases, trying to retain existing businesses.  This post focuses on the Act 13 suite of programs which is managed by the Pennsylvania Department of Community and Economic Development (“PA DCED”).…
Continue Reading Funding Sources: Working with the Commonwealth to Initiate Development