Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

Each RCO is entitled to notice with respect to a project within its registered boundaries from the applicant within seven days after (i) the applicant has appealed to the Philadelphia Zoning Board of Adjustment for special exception or variance approval, or (ii) the Department of Licenses and Inspections (L&I) has determined that Civic Design Review (to be discussed in a later blog post) is required with respect to the application. L&I is charged with providing the applicant with the identities of each RCO to be contacted and provided notice. The applicant’s notice must contain specific information, including the name of the applicant, the location of the property, the nature of the application and the time and place of any required meeting or hearing.

The Local RCO must schedule and hold a meeting with the applicant within forty five days after the applicant has (i) appealed to the Zoning Board or (ii) has been notified that Civic Design Review is required. No proceeding before the Zoning Board or Civic Design Review Committee can occur until the applicant and Local RCO have satisfied the requirements to meet, or the forty five day period has passed.

The rules surrounding the posting of Zoning Board hearing notices on a property have also changed. For example, under the current Code, those notices must only be posted for the twelve days prior to and including the hearing date. As of August 22, 2012, zoning notices will need to remain posted continuously for the twenty one days prior to and including the hearing date. In addition, if the hearing is continued to a date more than seven days later than the original hearing date, the applicant must post a notice at the property from the date seven days after the original hearing date, until the date of the continued hearing.

This blog post should not be considered a comprehensive summary of all of the changes made by the revised Code in these areas. The revisions to the notice procedures should be reviewed in their entirety as they are intricate and detailed. Close attention must be paid to them, however, as failure to do so could result in the same kinds of project delays for which the Zoning Code Commission sought a remedy.

Alfred R. Fuscaldo is a Director in the Gibbons Real Property & Environmental Department.

In upholding NJDEP’s decision to allow the hunt, the Appellate Division used the familiar language of deference to an expert agency, stating, “We will affirm the decision of the DEP if it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result.” The Court also noted that a strong presumption of reasonableness attaches to agency action, reflecting the recognition that agencies have “the specialized expertise necessary to enact regulations dealing with technical matters ...”

Under this legal standard, those opposing the hunt faced an uphill battle. Thus, even though the opponents presented expert evidence claiming flaws in NJDEP’s data, and in the agency’s interpretation of its data, the court could point to NJDEP’s own experts, and its own “significant scientific investigation and research” on the issue. With experts and evidence on both sides, the law gives the agency an advantage, and, in the words of the court, “simply disagreeing, even if based on contrary expert opinions, is insufficient to overcome the presumption of reasonableness ascribed to the Commissioner’s finding.”

The hill was made even steeper by the requirements for a stay, such as a showing of irreparable harm. The Appellate Division acknowledged that the killing of a bear is irreversible, but cited case law requiring a showing of irreparable harm to the species, rather than individual animals -- a showing that the opponents were unable to make.

Despite its often-emotional overtones, then, the debate over the need for, and the appropriateness of, bear hunting in New Jersey resembles that over any number of environmental issues. Once the agency has made a reasoned determination, the courts are unlikely to second-guess its decision. Opponents may need to carry their argument to the Legislature.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

The Commonwealth Court reversed, noting that the Common Pleas Court, in denying the standing of the appellants, could only point to case law relating to appellant standing from Zoning Hearing Board decisions. The case law with respect to those matters is well settled, making clear that an appellant has no standing to appeal if it does not formally appear or object at the zoning hearing board proceedings.

The Commonwealth Court in Miravich found that standing consists of two concepts:

• “substantive standing” examining whether the litigant has “sufficient interest in the outcome of the litigation to be allowed to participate,” and
• “procedural standing”, i.e, “[w]hether one has asserted his right to participate sufficiently early.”

Substantive standing is typically found where a party is aggrieved, or in other words, where the party has a direct, immediate and substantial interest in the application. A neighbor’s proximity to the subject property, such as existed here, will normally satisfy that requirement. It is the procedural question which separates the subdivision/ land development approval matters before the Planning Commission and the Board of Supervisors from the Zoning Hearing Board proceedings.

The Pennsylvania Municipalities Planning Code treats Zoning Hearing Board hearings as much more formal proceedings, requiring that, among other things, they conform to specific procedural requirements including the posting of the subject piece of property, the right of all parties to be represented by counsel and present evidence and arguments, and that a stenographic record of the hearing be kept. The MPC also defines those who will be afforded party status before the Zoning Hearing Board.

In contrast, applications for subdivision/ land development proceed down a much more informal track. The MPC even specifically states that public hearings are not required. As a result, the Commonwealth Court found that, “because similar procedural protections are not required in subdivision and land development applications, it will be manifestly unfair, if not a denial of due process, to impose such a stringent rule as a prerequisite to subdivision and land development appeals.” Consequently, the fact that the Miravichs and the other appellants did not appear at or participate in the Township meetings on the application was not a bar to their appeal of the Board’s decision. The Commonwealth Court determined that such an appellant need only satisfy the “party aggrieved” standard.

The Court does note however that if the Board of Supervisors had voluntarily followed the procedural requirements imposed by the MPC on a Zoning Hearing Board matter, than the Commonwealth Court would have agreed with the Court of Common Pleas that the appellants would have had to appear during the proceedings in order to appeal and would have been subject to the Leoni standards.

As a result of this decision, a developer can no longer take for granted the fact that the absence of participants at subdivision/ land development proceedings before the Township will preclude a viable appeal from the decision of the Township on that application. The prudent developer should consider waiting the requisite appeal period from the issuance of that Township decision before proceeding with the project and confirm that no appeal was filed.

Whether the Commonwealth Court’s decision has or will be appealed to the Supreme Court of Pennsylvania is unknown as of the date of this writing.

Alfred R. Fuscaldo is a Director in the Gibbons Real Property & Environmental Department.

The justification behind the legislation indicates that the current economic climate, coupled with the difficulty in obtaining project financing in many cases, argued for giving planning boards the discretion to extend conditional approval of the final plat. As further noted, “there are already significant hurdles and expenses generated in residential development which should not be compounded because of a time limitation that would effectively terminate a project.” The text of the bill is available at the New York State Assembly’s website which can be accessed by clicking here and the memorandum summarizing the bill and setting forth additional information regarding the justification behind the amendment can be accessed here.

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.  Jennifer M. Porter, an Associate in the Gibbons Real Property & Environmental Department, assisted in the preparation of this post. 

The Act Does Not Apply to All Permits

The Act does not apply to other statutes, including the:

• "Keystone Opportunity Zone, Keystone Opportunity Expansion Zone and Keystone Opportunity Improvement Zone Act,"
• "The Underground Utility Line Protection Law," and
• certain other permits issued by the Pennsylvania Department of Transportation.

The Act also does not apply to permits with expiration dates determined by federal law, or to administrative consent orders and enforcement actions for a permit subject to the extension period.

How Long is a Permit Extended?

Under the Act, a permit granted under an applicable statute and having an expiration date after December 31, 2008 may have its expiration date extended until July 1, 2013, regardless of whether the permit was issued before or after the extension period. The Act does not shorten the life of a permit with an expiration date after July 1, 2013.

How Can You Find Out If the Act Applies to Your Permit?

The permit holder can request verification, subject to a fee, from the issuing agency of the existence of a valid permit and its expiration date, but must identify the permit in question and its anticipated expiration date. The issuing agency must tell you in writing within 30 days of receiving your request:

1. whether you have a permit;
2. its expiration date; and
3. stating any issues related to the validity of the permit.

Except in Philadelphia and Pittsburgh, the failure of the issuing agency to respond within 30 days will result in the "deemed affirmation of the existence of the [permit] and the expiration date set forth in the request."

In the City of Philadelphia, in order to exercise its right to extend the permit under the Act, the permit holder must provide the issuing agency with notice of its intent to extend the permit and pay the agency a fee equal to fifty percent of the original application fee, not to exceed $5000. Elsewhere, the issuing agency may charge a fee up to twenty five percent of the original application fee, but no more than $5000, to extend the Permit.

Permits granted pursuant to the MPC are protected from changes in a "zoning, subdivision or other governing ordinance or plan," such that those changes will not affect the permit holder’s right to begin or complete the activities authorized by the permit during the extension period. The extension period is further extended for the length of litigation, including appeals, concerning permits issued under the MPC that prevent the completion of the work authorized by the permit.

The Act brings Pennsylvania into line with New Jersey which enacted its own permit extension legislation in 2008. The Act gives needed flexibility and time to developers who may be facing financial challenges in the current economy. At a minimum, permit holders should consider verifying the viability of permits, and extending them as required, now so they will be in a position to proceed when market conditions warrant.

Alfred R. Fuscaldo is a Director in the Gibbons Real Property and Environmental Department.