Thursday, January 31, 2008

Selective Enforcement Ruled Okay

The Pennsylvania Commonwealth Court recently examined the effect of a municipality's prior decisions on requests for subdivision approval. The case is Zajdel v. Board of Supervisors of Peters Township,925 A.2d 215 (Pa. Cmwlth. 2007). In this case, the landowners filed an application with the township planning commission to subdivide their property and create two additional lots. The ordinance required lots to have direct access to a public road or to a private road that meets township specifications. In this case, the landowners sought a waiver because the additional lots would be accessed by a private road that didn't meet those requirements. The planning commission recommended denial of the request and the board of supervisors denied the landowner request for a waiver because the proposed new lots would be on a substandard private road.

The owner appealed to the trial court which affirmed the township's denial. The landowner argued to the trial court that the township had granted subdivision approval to a neighbor on the same substandard road. They further argued that the township had an unwritten policy of granting subdivsion approval on a private road where the applicant intended to convey a lot to a family member but denying approval when the lot would be conveyed to a non-family member.

The Commonwealth Court held that even if the township had such a policy "a failure to uniformly enforce an ordinance provision does not preclude the subsequent enforcement of the same." Moreover, the Court stated "the validity of the ordinance does not usually depend on a completely successful enforcement of its provisions, nor can one who violates it be discharged merely because it is shown that there are other violatiors who have not been convicted, or that those whose duty it is to perform the duties required by it have fallen short, through inattention or intentional omission or neglect."

Obviously, municipalities should apply their ordinances fairly to all applicants. However, the Zajdel case makes it clear that minor departures do not create precedent or unwritten "policy" that would entitle future applicants to some relief.

Wednesday, January 30, 2008

Update on Sales Tax Expansion

After nine hours of debate, the Pennsylvania House of Representatives voted yesterday afternoon on the legislation to expand the state sales tax to professional legal services. The vote was 148-47 against the expansion. Ironically, my representative voted in favor of the legislation and I had written to her personally last week, expressing my concerns and objections. My letter was never acknowledged by her. Then, today at lunch, I was approached to sign her campaign petition for reelection! Needless to say, I declined. At this point, I guess all's well that ends well.

Friday, January 25, 2008

Pennsylvania Construction Code Act Appealed to Supreme Court

In 1999, the Pennsylvania General Assembly enacted the Pennsylvania Construction Code Act(Act of November10, 1999, P.L.491, as amended, 35 P.S.Sec.7210.101-7210.1103). The legislature was concerned that many municipalities in the Commonwealth either had no construction codes at all or had a confusing multicplicity of construction codes. By adopting the Uniform Construction Code in the Act, the legislature hoped to insure the use of uniform and modern construction standards and regulations throughout Pennsylvania. The Pennsylvania Construction Code Act (PCCA) generally applies to the construction, alteration, repair and occupancy of all buildings in Pennsylvania and regulates inspections in various areas, including electrical, plumbing, energy, and fire accessibility.

A provision in the PCCA allowed municipalities to administer and enforce its provisions by the retention of one or more construction code officials or third-party agencies on behalf of the municipality. Many municipalites in the Commonwealth contracted with third-party agencies to administer and enforce the PCCA for them. Such a contract was authorized in Section 501(b)(2) of the Act.

Several cases were filed by Pennsylvania companies challenging the sole provider of inspection services that the municipalities were using. The Commonwealth Court ruled that a municipality cannot designate, appoint or contract with a single person or entity to be the exclusive inspector for determining PCCA compliance. The Court determined that inspections under the Act are separate and distinct functions from the administration and enforcement of the Act. Thus, a municipality would be required to recognize an inspection from any qualified company or individual. See, Alleheny Inspection Service, Inc., et al. vs. North Union Township, et al.

The municipalities involved in this litigation all file petitions for alllowance of appeal to the Pennsylvania Supreme Court. On July 31, 2007 that Court granted the Petitions and consolidated the cases for argument. The question raised on the appeal is whether the Commonwealth Court erred in ruling that a municipality which elected to enforce and administer the provisions of the PCCA, must allow any construction code officical, certified by the Department of Labor & Industry, to inspect construction to determine compliance with the provisions of the Uniform Construction Code.

Tuesday, January 22, 2008

Local Governments Pre-empted by Oil and Gas Act

The Commonwealth Court of Pennsylvania has issued two decisions that reject local municpalities' attempts to regulate oil and gas extraction. In Huntley & Huntley, Inc. v. Borough Council of Oakmont, 929 A.2d 1252, the Court ruled that a municipality could not regulate the location of a gas well through the denial of a conditional use permit and in Great Lakes Energy Partners v. Salem Township, 931 A.2d 101 the township's ordinance attempting to regulate surface and land development associated with oil and gas drilling was invalidated.

In Huntley, the Commonwealth Court reasoned that the Oil and Gas Act, 58 P.S. Sec.601.101 et seq. pre-empts the municipality's attempt to regulate the natural gas drilling. A provision in the Oil and Gas Act provided that "all local ordinances and enactments purporting to regulate oil and gas well operations... are hereby superseded...[and] no ordinances...shall contain provisions which impose conditions, requirements, or limitations on the same features of oil and gas well operations regulated by this act or that accomplish the same purposes as set forth in this act." The Court stated that this section of the law clearly provides that municipalities may not impose conditions, requirements or limitations on the same features of oil and gas operations as those that are regulated by the act. Since the issue in Huntley was the location of the location of the well and since Section 205 of the Oil and Gas Act specifically addresses the placement and location of wells, the municipal ordinance addressed a feature already in the Act. Thus, the ordinance was pre-empted.

In the other case, Great Lakes Energy Parnters, a group of oil and gas companies filed a complaint for declaratory judgment and an injunction arguing that the township's ordinance was pre-empted under the Oil and Gas Act. In that case the ordinance regulated surface and land development associated with oil and gas drilling operations. The Commonwealth Court upheld the trial court's decision that the ordinance contravened provisions in the Oil and Gas Act by attempting to regulate the same aspects of those operations.

The impact of these cases is still unclear. Both of these municipalities have sought an appeal to the Pennsylvania Supreme Court. However, there is a growing judicial trend to find that local regulations that go beyond items of local concern and attempt to regulate the same activity as state law, will be susceptible to invalidation.

Monday, January 21, 2008

Sales Tax on Legal Services

The Pennsylvania House of Representatives is again considering the expansion of the state's sales tax to include legal services. The measure is intended to provide property tax reform but shifts the tax from real property to goods and services. I'm writing my state representative urging a vote against any measure that expands the sales tax to legal services.

A tax on legal services is a tax upon the fundamental and constitutional right of citizens to have access to the justice system. The assertion of or defense of legal rights, whether in criminal or civil court, should not be taxed. The courts are a primary function of government, and indeed, the judiciary is one of our three branches of government. Effective representation requires legal counsel, people or businesses don't choose to use a lawyer as an elective measure any more than they choose to perform their own root canal or set their own broken leg. A sales tax on legal services places an undue and unfair burden upon the legal system. The very nature of the courts and access to the justice system is unique. It must be treated as such.

As I said, I've written to my representative and I am urging not only my fellow lawyers, but also my clients to voice their concerns with this proposed legislation. It doesn't just affect lawyers, this tax affects us all. Who knows when they will need legal services?

Friday, January 18, 2008

My First Blog

Well, here we go. Although I'm not the most tech savy of people, I've decided to try my hand at blogging. I'm a lawyer located in Towanda, Pennsylvania. Towanda is the county seat for Bradford County. My practice is diverse, however about one-third is devoted to municipal law matters. My clients are mostly townships of the second class, boroughs and a few municipal authorities. I really enjoy this area of my practice because I feel it allows me an opportunity to give back to the community. So much of what we lawyers do is win-lose oriented that it is refreshing to help a municipality with a new infrastructure project or enforce its ordinances, etc. In spending the last 12 years or so in the field of municpal law in Pennsylvania I've found that there aren't alot of resources out there on the topic, especially for those of us located outside of Philadelphia or Pittsburgh. Hopefully, this blog may help. Thanks for reading.