Good Fences and Your Neighbors. Boundary Disputes in Pennsylvania

          Robert Frost’s poem says “good fences make good neighbors”, but what if the fence is in the wrong place?  Is the fence on the actual border or not?  In our litigious and increasing socially isolated world, where neighbors sadly often don’t get along, what do you do if you review your deed and realize that your neighbor has been possessing property as long as you can remember that belongs to you according to your legal description that you just read.  This is property that you are paying taxes upon.  Worse, what if your neighbor approaches you after he obtains a fancy new survey that states that your garage, built twenty years ago, is really on his property and he wants you to tear it down immediately or pay him exorbitant rent?  What can you do and what issues do you need to consider? 

  • Legal Description Nightmares.  While the precise dimensions of city lots are normally, (although not always) reasonably well established, trying to determine the precise dimensions of a rural parcel can often be a nightmare.  In rural properties, for example, the description may say, “600 feet from Miller’s Oak tree” with nary an Oak in sight or “100 feet south of the large rock” with no rock.
  • Family Compound Confusion.  Also, in rural properties, often a portion is subdivided and given to children, but the land is used practically as one large parcel by the whole family as a quasi-family compound and the borders are practically blurred or non-existent, adding confusion for subsequent non-family buyers.
  • Survey and Description vs. History.  The question we are asking is, what if the practical and historical use of the property between neighbors and parcels is contrary to the legal description or survey result?  What controls?  While a good survey and a clear legal description are certainly the best evidence to show you own the property under dispute, can the survey be defeated based upon the historical use of the property?  The surprising answer sometimes is yes.  If there is ambiguity in the ownership of a disputed portion of property the Pennsylvania legal doctrines of adverse possession, consentable boundaries, consentable lines, and/or acquiescence, may apply and vest ownership, title, and possession in the party that the “survey says” is not the record owner.
  • How Does this Work?  Although the precise elements of these doctrines vary by circumstances, the gist of them is that if the neighbors (or the prior landowners) historically agreed or permitted to exist a common border for a long period of time, despite it not being the actual border, the law may vest title in the neighbor who is not the record owner and affirm the factual situation on the ground.  The party trying to contradict the survey or legal description must prove that their acts and declarations (and those of their predecessors in interest in their real property) have clearly and exclusively occupied and claimed for over 21 years the land in dispute.  They also must prove that their neighbor, whom the survey says is the record owner, by their acts and declarations (and those of their predecessors in interest in their real property) have clearly recognized and /or acquiesced that the other party, their neighbor, is the sole owner and possessors of the land in dispute for over 21 years.  Further in most cases it must be proven that the party claiming ownership on these historical usage grounds and their predecessors in interest in their real property have actually, distinctly, continuously, uninterruptedly, exclusively, visibly, notoriously, and hostilely possessed the entire subject real property, including disputed portion thereof, for a period of time over 21 years.  That entire litany of adjectives have distinct legal meanings and must be explored, but it the right factual circumstances, it can be proven and title can be given to the non-record title holder. 
  • Legal Procedure – Ejectment or Quiet Title?  How would one proceed under the Pennsylvania Rules of Civil Procedure with these issues?  There are complex rules on these matters, but generally speaking, in our first hypothetical, where the landowner discovers that his neighbor is possessing land that is actually his, he would bring an action in Ejectment because the neighbor is in possession and he now wants possession.  In the second hypothetical, where the landowner is approached by the neighbor that his garage is on his property, the landowner would bring an action in Quiet Title, as he is in possession.  This would proactively force the neighbor to bring his own action in Ejectment to remove him from the property within a certain period of time or be forever barred from asserting any claim in the property.  
  • More Details.  This is just the forest, not the trees, in boundary dispute issues.  Feel free to call our office to schedule a free consultation to discuss these issues in more depth. Have a lovely weekend.  Dominus Vobiscum!

412.443.3319 · 724.654.8111

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

 

Building Castles in the Sand? Asset Protection for your Family, Business, and Real Estate in Pennsylvania.

Hello All.  Are you passionately working hard every day to build your dream career or small business but neglecting the important, but never quite urgent (until it’s too late), task of creating an asset protection strategy for your family and business?  Are you also unknowingly leaving your family and business assets to the mercy of a plaintiff’s attorney working on a contingent fee basis for their clients, who could sue you, with their attorney seeking to access your personal assets?

While there is no true security in this world, and we are all building castles in the sand, here are some very basic and affordable strategies and techniques in Pennsylvania to build solid, sturdy, “castles”  on rockier ground with surer footing.   

  • Incorporate:  First, your small business in almost all circumstances should be operated as a separate legal entity from yourself.  Let it take the fall, not you.  For most small businesses a Limited Liability Company (LLC) or a S-Corporation is the best choice.  The purpose of these entities is to provide an iron shield between your personal assets and business assets.  If your business is sued for any reason, and the entity is managed properly, the potential plaintiff or creditor will not be able to touch your personal assets like your home, retirement, etc…  The real key is the entity being “managed properly” and you dutifully performing the required “corporate formalities” that we can discuss with you. If the entity is not managed properly a good attorney can “pierce the corporate veil”, have access to you personal assets, and wash your castle away.  
  • Which One?  Generally speaking, an LLC will give you more flexibility with less formalities, but in some cases an S-Corp is the better choice.  Both of these entities avoid the “double tax” problem whereby earned income is taxed twice, both when earned by the entity and when paid to you as a salary, inherent in the classic C-Corporation.  An LLC can elect to be taxed as an S-Corp which can in certain cases be beneficial in reducing your self employment tax burden.  Pennsylvania professionals (doctors, lawyers, etc..) must be set up as either a Professional Corporation (PC) or a Restricted Professional Limited Liability Company (RPLLC). The RPLLC in Pennsylvania has a burdensome annual fee per LLC member, which can factor into the entity decision.  Entity selection should be a team sport with your accountant, insurance agent, and attorney working together with you to decide which is best.
  • Investment Real Estate  In most cases, investment rental real estate should be held in an LLC as well and segregated from your personal assets.  The best strategy is to segregate each real estate asset and thus ideally each large property, or practically every few smaller real estate properties, should be deeded in and owned by a separate and distinct LLC that you own and control.  This segregation will limit your risk, only exposing a limited portion of your real estate assets to any potential potential plaintiff at one time.  Pennsylvania also has some helpful asset protection advantages for married couples that own property jointly as “tenants by the entireties”, that you will want to discuss and explore.  
  • Insurance – Don’t Forget Your “Umbrella”  An often overlooked and very affordable method of asset protection is available through your auto insurance agent. Normally, for a very small annual premium, you can obtain millions of dollars of insurance coverage for suits dealing with injuries occurring on your Real Estate that you own personally.  This may be an affordable alternative if you already own the investment real property personally and it is not worth transferring into an entity because the property is small and the transfer will incur high county transfer taxes.  Contact your auto insurance agent for more information.
  • Get Started Before It’s Too Late    Once lawsuit has been filed against you, your business, or your property you will likely be frozen and unable to avail yourself of these strategies, so make asset protection a priority, and don’t be penny wise and dollar foolish.
  • More Details.  This is just the very tip of the iceberg in the world of asset protection. Feel free to call our office to schedule a free consultation to discuss these issues in more depth.  Have a lovely weekend.  Dominus Vobiscum!

412.443.3319 · 724.654.8111

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

Did the Commonwealth Court throw a Wet Blanket on the Robinson Case in Zoning?

Certain language contained in the body, and even the footnotes, of the 2015 Commonwealth Court case of P.E.D.F. v. Commonwealth, 2015 Pa. Commw. Lexis 9 (2015) has recently been used by industry attorneys and municipalities to justify ignoring the logic, rationale, and precedential value of the landmark Pennsylvania Supreme Court Robinson Township v. Commonwealth case.  They are using this P.E.D.F. case as a tool to ignore the constitutional private property rights to quiet enjoyment of land and to clean air and pure water by permitting the heavy industrial use of unconventional, deep well, oil and gas development in residential and agricultural zones, to the exclusion of all other industrial and commercial uses.  We feel reliance on this case by municipalities is seriously misplaced and that the reasoning of Robinson is sound, historically rooted in Pennsylvania jurisprudence, and alive and well.

First, it must be noted that P.E.D.F. v. Commonwealth has absolutely nothing to do with local zoning and the health, safety and welfare of citizens regarding industrial oil and gas development in incompatible zoning areas, but instead is a review of a Pennsylvania Environmental Defense Fund Declaratory Judgement Petition regarding monies from the leasing of certain state land.  The Court in PEDF states that, “what is at issue here is revenue generated not from natural gas development on private property, but from the leasing of State lands and disposition of state natural resources held in trust by the Commonwealth for an express purpose—i.e., conservation and maintenance”.  Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. 9, *72 (Pa. Commw. Ct. 2015).

Second, the PEDF case only discusses briefly the Article 1, Section 27 Environmental Rights Amendment, but makes no mention and thus has no bearing on the Substantive Due Process and Spot-Zoning arguments advanced by both the Commonwealth and Supreme Courts in Robinson Township v. Commonwealth and from many other precedential cases.  In the Robinson Commonwealth Court opinion, Justice Pellegrini, writing for the majority of the en banc panel, struck down sections of Act 13 with identical structure and effect to the Allegheny Township Zoning Scheme (unconventional development everywhere by right), using only the above Substantive Due Process arguments.  These same Substantive Due Process arguments were then affirmed by the Robinson Township Supreme Court opinion in both the plurality opinion of Chief Justice Castille (relying upon the Section 27 arguments, but clearly incorporating Substantive Due Process as well) and in the concurrence of Justice Baer, who relied upon these Substantive Due Process arguments solely.  See Robinson Township v. Commonwealth, 83 A.3d 901 (2013).

Finally, PEDF, a lower court, actually affirms much of the rationale of the Justice Castille Section 27 argument in the Robinson Township Supreme Court case.  The PEDF court stated that, “when environmental concerns of development are juxtaposed with economic benefits of development, the Environmental Rights Amendment is a thumb on the scale, giving greater weight to the environmental concerns in the decision-making process.  Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. LEXIS 9, *74 (Pa. Commw. Ct. 2015) at 170.  Further, the PEDF court enthusiastically endorsed the analysis of the Robinson Supreme Court plurality, stating:

The first clause of the Environmental Rights Amendment requires each branch of government to consider in advance of proceeding the environmental effect of any proposed action on the constitutionally protected features.

 

Further the PEDF court states that, with respect to the preservation of natural, scenic, historic and esthetic values of the environment, our Supreme Court held that the Environmental Rights Amendment protects the people from governmental action that “unreasonably causes actual or likely deterioration of these features.”

The PEDF court states that, “the second and third clauses of the Environmental Rights Amendment create a public trust in favor of the people (i.e., the trust beneficiaries), including future generations, which encompasses our public natural resources,…the Commonwealth is the named trustee of this public trust: As trustee, the Commonwealth is a fiduciary obligated to comply with the terms of the trust and with standards governing a fiduciary’s conduct.  PEDF states that, “the Supreme Court described the Commonwealth’s trustee obligations as two-fold:

The Commonwealth has an obligation to refrain from performing its trustee duties             respecting the environment unreasonably, including via legislative enactments or               executive action. As trustee, the Commonwealth has a duty to refrain from                           permitting or encouraging the degradation, diminution, or depletion of public natural             resources, whether such degradation, diminution, or depletion would occur through             direct state action or indirectly, e.g., because of the state’s failure to restrain the                  actions of private parties. . . .The second obligation peculiar to the trustee is . . . to              act affirmatively to protect the environment, via legislative action.

Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. 9, *74 (Pa. Commw. Ct. 2015) at 157.  The PEDF court went on to further endorse Chief Justice Castille’s opinion in detail by stating:

Turning to the Environmental Rights Amendment, it is evident that in ratifying the             Environmental Rights Amendment the citizens of this Commonwealth intended to               place Pennsylvania’s “public natural resources” in trust and to impose a duty on                 the Commonwealth, as trustee, to “conserve and maintain” them for the benefit of               all the people.” Pa. Const. art. I, § 27 (emphasis added). The only guidance we                   have on the meaning of the phrase “public natural resources” is from the Robinson             Township plurality…

 

Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. LEXIS 9, *74 (Pa. Commw. Ct. 2015) at 157 at 169 and 169.  Far from neutering Justice Castille’s Supreme Court opinion, the P.E.D.F. case affirms the majority of his rationale, and has no bearing on Zoning and the Substantive Due Process rationale of the Commonwealth Court opinion in Robinson (“pig in the parlor instead of the barnyard”).  Further, Robinson itself rests on the strong and deep foundation of a well developed body of Pennsylvania law holding that like property uses belong together to the exclusion of unlike and more intensive property uses.  One Industry, to the exclusion of all others, logically does not belong in residential and agricultural zones.  Residential and Agricultural property owners have investment backed expectations and constitutional guarantees that their respective zones will remain intact and remain as promised by the local ordinance.  That cannot be overturned with an oft cited footnote from the Commonwealth Court.

 

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

A “Brave New World” of Dog Custody Issues? Maybe…

As our lovable and affectionate pooches increasingly shift from being “man’s best friend”, sleeping in the barn, guarding the sheep and goats to, for a variety of reasons, something more, with sweaters, play-dates, and urban dog parks, what happens when a couple breaks up and their dog served in a de facto childlike role?  Who obtains custody of the beloved pooch?

Unlike some interesting trends in several other states, Pennsylvania law is very clear on this issue.  To the chagrin of dog lovers, dogs are simply treated as personal property, like the couch, television, or tractor.  Under applicable Pennsylvania Law, “all dogs are hereby declared to be personal property and subjects of theft”. 3 Pennsylvania Statutes § 459-601.  Animal cruelty laws are on the books to prevent abuse to animals, obviously.

The Superior Court of Pennsylvania, when presented with the case of a dog owner trying to enforce a consensual, formal, signed and notarized, “dog visitation” schedule in a recorded marital settlement agreement denied the requested relief stating, ”Appellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp”.  The court held that formal shared custody arrangements of dogs are not enforceable in Pennsylvania.  Desanctis v. Pritchard, 2002 PA Super 221.

Is this how a particular court would really look at the matter in small claims litigation, however?  If a party sued in tort for the return of a dog, in similar manner to the return of a tractor, would the magistrate or judge look only to the official registration and possession of the dog?

Would the court, if ownership and registration was unclear, possibly also look at “health, safety and welfare” factors such as, “who walks the dog more”, “who pays for the vet bills”, and “who has more time to care for the dog” in a similar manner to a custody trial and the standard statutory “best interests of the minor child” factors?  Would that depend on whether the magistrate or judge was an affectionate dog owner?  Would it depend upon whether you were in a rural or urban county?  Can a court legally consider those factors if state law considers a dog protected from abuse, but personal property like a, “a table or lamp”?

Interesting questions.

 

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

Fracking and Zoning – Pig in the Parlor instead of the Barnyard?

The post is a follow-up to last week’s post regarding the recent Supreme Court decision that, among other things, arguably gave citizens a private cause of action against their local municipalities for failing to take into account their Pennsylvania constitutional rights to clean air and water.  The decision also stated that fracking is clearly an industrial use and rejected the Act 13 provision that tried to force local municipalities to permit fracking in all Zoning Districts, including residential areas.

The case left open many questions, however.  Must fracking be limited to industrial zones only?  Can it be permitted in agricultural or commercial zones with conditions, as it is now in most places?  If a local municipality wants to permit fracking in a residential area with conditions, can it?  What about “spot zoning”?

In attempting to answer these question, its helpful to look to the Commonwealth Court’s earlier decision in the same case that the Supreme Court affirmed, but focused on the environmental rationale.  What about the property rights of individuals in a residential area who bought their property never desiring to live in the midst of heavy industry?

What follows is an excellent analysis by the Commonwealth Court of the relationship between zoning and fracking by Judge Pellegrini in Robinson Twp. v. Commonwealth, 52 A.3d 463.  Enjoy:

 

While recognizing that their power to regulate zoning is only by delegation of the General Assembly, the municipalities contend that Act 13 is unconstitutional because it forces municipalities to enact zoning ordinances in conformance with 58 Pa. C.S. §3304 allowing, among other things,  mining and gas operations in all zoning districts which are incompatible with the municipalities’ comprehensive plans that denominates different zoning districts, making zoning irrational. Simply put, they contend that they could not constitutionally enact a zoning ordinance if they wanted to, and it does not make an ordinance any less infirm because the General Assembly required it to be passed.

Zoning is an extension of the concept of a public nuisance which protects property owners from activities that interfere with the use and enjoyment of their property. In City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995), the United States Supreme Court described the purpose of zoning as follows:

Land-use restrictions designate “districts in which only compatible uses are allowed and incompatible uses are excluded.” D. Mandelker, Land Use Law § 4.16, pp. 113-114 (3d ed.1993) (hereinafter Mandelker). These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial, or industrial. See, e.g., 1 E. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 8.01, pp. 8-2 to 8-3 (4th ed. 1995); Mandelker § 1.03, p. 4; 1 E. Yokley, Zoning Law and Practice § 7-2, p. 252 (4th ed. 1978).

Land use restrictions aim to prevent problems caused by the “pig in the parlor instead of the barnyard.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303, 4 Ohio Law Abs. 816 (1926). In particular, reserving land for single-family residences preserves the character of neighborhoods, securing “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974)see also Moore v. East Cleveland, 431 U.S. 494, 521, 97 S.Ct. 1932, 1947, 52 L.Ed.2d 531 (1977) (Burger, C.J., dissenting) (purpose of East Cleveland’s single-family zoning ordinance “is the traditional one of preserving certain areas as family residential communities”).

So there is not a “pig in the parlor instead of the barnyard,” zoning classifications contained in the zoning ordinance are based on a process of planning with public input and hearings that implement a rational plan of development. The MPC requires that every municipality adopt a comprehensive plan which, among other things, includes a land use plan on how various areas of the community are to be used. Section 301 of the MPC, 53 P.S. §10301. The municipality’s zoning ordinance implements the comprehensive plan. Section 303 of the MPC, 53 P.S. §10303.

 A typical zoning ordinance divides the municipality into districts in each of which uniform regulations are provided for the uses of buildings and land, the height of buildings, and the area or bulk of buildings and open spaces. See Section 605 of the MPC, 53 P.S. §10605. Permitted or prohibited uses of property and buildings are set forth for each zoning district, e.g., residential, commercial, and industrial. Use districts are often further sub-classified, for instance, into residential districts and then restricted to single-family houses and those in which multiple-family or apartment structures are permitted; commercial districts into central and local, or those in which light manufacturing is permitted or excluded; for heavy but non-nuisance types of industry; and nuisance or unrestricted districts.  Height regulations fix the height to which buildings or portions thereof may be carried. Bulk regulations fix the amount or percentage of the lot which may be occupied by a building or its various parts, and the extent and location of open spaces, such as building set-backs, side yards and rear yards. Zoning ordinances segregate industrial districts from residential districts, and there is segregation of the noises and odors necessarily incident to the operation of industry from those sections in which the homes are located. Out of this process, a zoning ordinance implements a comprehensive zoning scheme; each piece of property pays, in the form of reasonable regulation of its use, for the protection that the plan gives to all property lying within the boundaries of the plan.

To determine whether a zoning ordinance is unconstitutional under Article 1, §1 of the Pennsylvania Constitution and Fourteenth Amendment to the United States Constitution, a substantive due process inquiry must take place. When making that inquiry, we take into consideration the rights of all property owners subject to the zoning and the public interests sought to be protected. Quoting from Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 255, 452 A.2d 1337, 1341-42 (1982), our Supreme Court in In re Realen Valley Forge Greenes Assocs., 576 Pa. 115, 132, 838 A.2d 718, 728 (2003), stated that:

[t]he substantive due process inquiry, involving a balancing of landowners’ rights against the public interest sought to be protected by an exercise of the police power, must accord substantial deference to the preservation of rights of property owners, within constraints of the ancient maxim of our common law, sic utere tuo ut alienum non laedas. 9 Coke 59–So use your own property as not to injure your neighbors. A property owner is obliged to utilize his property in a manner that will not harm others in the use of their property, and zoning ordinances may validly protect the interests of neighboring property owners from harm.

The Court went on to state that under that standard for zoning to be constitutional, it “must be directed toward the community as a whole, concerned with the public interest generally, and justified by a balancing of community costs and benefits. These considerations have been summarized as requiring that zoning be in conformance with a comprehensive plan for growth and development of the community.” Id. (Emphasis added).

The Commonwealth argues that Act 13 mandates that zoning regulations be rationally related to its objective: (1) optimal development of oil and gas resources in the Commonwealth consistent with the protection of the health, safety, environment and property of Pennsylvania citizens; (2) protecting the safety of personnel and facilities employed in coal mining or exploration, development, storage and production of natural gas or oil; (3) protecting the safety and property rights of persons residing in areas where mining, exploration, development, storage or production occurs; and (4) protecting the natural resources, environmental rights and values secured by the Constitution of Pennsylvania. 58 Pa. C.S. §3202.

However, the interests that justify the exercise the police power in the development of oil and gas operations and zoning are not the same. In Huntley & Huntley, Inc., 600 Pa. at 222-24, 964 A.2d at 864-66, our Supreme Court explained that while governmental interests involved in oil and gas development and in land-use control at times may overlap, the core interests in these legitimate governmental functions are quite distinct. The state’s interest in oil and gas development is centered primarily on the efficient production and utilization of the natural resources in the state. Zoning, on the other hand, is to foster the orderly development and use of land in a manner consistent with local demographic and environmental concerns. It then stated, as compared to the state interest in oil and gas exploration:

 [T]he purposes of zoning controls are both broader and narrower in scope. They are narrower because they ordinarily do not relate to matters of statewide concern, but pertain only to the specific attributes and developmental objectives of the locality in question. However, they are broader in terms of subject matter, as they deal with all potential land uses and generally incorporate an overall statement of community development objectives that is not limited solely to energy development. See 53 P.S. § 10606see also id., § 10603(b) (reflecting that, under the MPC, zoning ordinances are permitted to restrict or regulate such things as the structures built upon land and watercourses and the density of the population in different areas). See generally Tammy Hinshaw & Jaqualin Peterson, 7 Summ. Pa. Jur.2d Property § 24:12 (“A zoning ordinance reflects a legislative judgment as to how land within a municipality should be utilized and where the lines of demarcation between the several use zones should be drawn.”). More to the point, the intent underlying the Borough’s ordinance in the present case includes serving police power objectives relating to the safety and welfare of its citizens, encouraging the most appropriate use of land throughout the borough, conserving the value of property, minimizing overcrowding and traffic congestion, and providing adequate open spaces. See Ordinance § 205-2(A).

Id. at 224, 964 A.2d at 865

In this case the reasons set forth in 58 Pa. C.S. §3202 are sufficient to have the state exercise its police powers to promote the exploitation of oil and gas resources. This is the overarching purpose of Act 13 which becomes even more evident by 58 Pa. C.S. §3231 which authorizes the taking of property for oil and gas operations.

58 Pa. C.S. §3304 requires that local zoning ordinance be amended which, as Huntley & Huntley, Inc. states, involves a different exercise of police power. The public interest in zoning is in the development and use of land in a manner consistent with local demographic and environmental concerns. 58 Pa. C.S.§3304 requires zoning amendments that must be normally justified on the basis that they are in accord with the comprehensive plan, not to promote oil and gas operations that are incompatible with the uses by people who have made investment decisions regarding businesses and homes on the assurance that the zoning district would be developed in accordance with comprehensive plan and would only allow compatible uses. If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones for a variety of police power reasons advancing those interests in their development. It would allow the proverbial “pig in the parlor instead of the barnyard.”

In this case, by requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa. C.S §3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.  Succinctly, 58 Pa. C.S. §3304 is a requirement that zoning ordinances be amended in violation of the basic precept that “Land-use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.” City of Edmonds, 514 U.S. at 732 (internal quotation omitted). If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done.

Because the changes required by 58 Pa. C.S. §3304 do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth’s preliminary objections to Counts I, II and III are overruled.

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

 

Implications of the Pa Supreme Court’s Broad and Sweeping Decision on Fracking in Robinson v. Commonwealth

In delving into Pa Act 13 and Shale Gas fracking and development for my case load and my current zoning work, this 200 page ROBINSON TOWNSHIP v. COMMONWEALTH opinion from December is the most fascinating and powerful Pa Supreme Court Case, maybe ever. The decision ruled that certain parts of the Act violated the Pennsylvania Constitution.  The opinion then; (1) adds incredible “meat” to the bones of the 1970′s Environment Rights Amendment to the Pa Constitution (Pa is one of only three states to have such an amendment, but it was thought to be of very limited effect); (2) Makes both state and local government officials “trustees” of the environment for future generations; (3) makes state-wide zoning without local approval nearly impossible; (4) constitutionalizes local zoning making the later permitting of more intense uses in restrictive areas nearly impossible; (5) may just give private persons a “constitutional tort” claim allowing them to sue their local government officials for any act or omission that may have an environmental impact in violation of their constitutional rights to a clean environment under the Pa constitution and;  (6) gives potential plaintiffs suing a municipality plenty of ammunition to argue that this activity should be limited to Industrial Zones only, despite the abundance of current drilling going on throughout other more restrictive zones of many municipalities, setting up huge potential conflicts with private property interests under the takings clause of the constitution.  WOW. This case will quite literally fuel at least a decade of litigation for us lawyers to sort out and interpret the scope of Justice Castille’s decision.

The Name Change Process in Pennsylvania – Legally make your Saul into a Paul

 

There are many reasons you may need to tangle with the Pennsylvania name change process.  A few basic examples being:  (1) seeking to resume your maiden name after a painful Divorce; (2) having your recently adopted child take your surname to reflect the new relationship;  (3) fixing a hospital mistake on your birth certificate to express your parents true intent;  (4) changing your birth name if your parents picked an overly creative or horrible one (think, “Apple”, or “Adolf”);  and/or (5) if the Spirit strikes you down on the road to Damascus, and you are told to do so by a higher authority.

Under Pennsylvania Law, any person desiring to change his or her name must file a petition with the Court of Common Pleas of the county where he or she resides.  The petition must set forth both the petitioner’s desire and intention to change his or her name and a detailed explanation of the petitioner’s legally valid reason for seeking the change.

Once the petition is filed, an order will be issued directing you to give notice to the general public and to other relevant parties.  You must publish in two newspapers of general circulation your name change plans and also give written notice to any non-petitioning parent of a child whose name will be changed.  A formal court hearing will be scheduled within three months.

At the hearing any person with standing may appear and object with a valid “lawful” objection (an issue into itself).  You must also prove that you gave the required legal notice and submit to the court’s approval official searches showing that there are no outstanding judgments against you.  Although many have tried, this process will not help to avoid paying off your debts, taxes, or student loans.

If the court is satisfied that the requirements of the Act have been complied with and there are no lawful and compelling objections, a decree may be entered changing your name as you have specifically requested.  The court has substantial discretion, though, and may deny your request if they feel your real purpose for changing names is fraudulent.  Examples of such a bad intent include changing to avoid taxes, or changing to mislead the public by assuming the name of a well-known professional in your field.  Yes, that has been tried and litigated.

Regarding changing the name of a minor, the court if bound by its general, “best interests of the minor child” legally defined standard that is applied in custody cases.  Factors the court will consider in these cases include the child’s understanding of the significance of changing their name, the effect of the change on the bonds between parent and child, and any social stigma a given name might cause (i.e., Adolf, Judas, Moonbeam, etc…).  Pennsylvania courts have granted name changes where the child’s parent is a notorious criminal in the community and their name would jeopardize their future well-being.

There is a shortcut for a person who is divorced to resume any previously used surname (maiden name).  That person may easily resume their maiden name by merely filing a written notice of their intent to do so with the clerk of the Court of Common Pleas in the county where the divorce decree was filed or entered, without filing a formal petition, without giving legal notice, and without appearing before a judge.  The shortcut is limited to this particular case, however.

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

Do Churches need the Federal 501c3 Process? No, but…

     A little known fact is that, per the free-exercise clause of the First Amendment of the United States Constitution and the very valid rationale that the power to tax is the power to destroy, churches are NOT required to formally apply for 501c3 Federal Tax Exemption to be in actuality tax exempt and to receive tax deductible gifts from donors.  Members of the congregation, if they itemize their taxes, can deduct their yearly donations from their gross income, so long as the church meets the I.R.S. definition.  No laborious and massive form 1023 process to partake of (a legal colonoscopy), no hefty filing fees required and no extensive I.R.S. involvement through the life of the organization is absolutely necessary.  The majority of churches, though, do subject themselves to this process either out of ignorance or because they were told it was absolutely necessary to be exempt. 

     Are there any actual benefits to traveling down this path, however?  Yes, there can be, especially in an interesting, “tail wagging the dog” way.  The popular perception is that federal confirmation is absolutely necessary, so it can be helpful with the general public to solidify the legitimacy of your organization.  Completing form 1023 and being recognized by the I.R.S. can lead to increased donor confidence and reassurance from being officially listed as a tax exempt organization on the I.R.S. roles, that are searchable online.  You will receive an official letter from the I.R.S. recognizing your exemption that you can show to prospective donors.  Such listing can also lead to a greater likelihood of receiving estate gifts from members of your congregation. 

     If you are curious if it makes sense for your church to go down this rabbit hole, we would be happy to give you the pros and cons based upon your particular church’s mission and vision.

           

Stepparents Legal Rights and Duties

What legal rights and responsibilities does a step-parent have to a beloved child who is not their natural or adopted son or daughter, but whom they love, cherish, and treat as their own flesh and blood?  What are the legal consequences to the admirable and beautiful act of stepping up to the plate and being a parent for a child who is missing one?  Much depends on whether they stand in loco parentis to their stepchild as defined under Pennsylvania law.

What does in loco parentis mean?  Its Latin for “in place of the parent”.  More particularly, “a person in loco parentis is one who means to put him or herself in the situation of a lawful parent to a child with reference to the office and duty of making provision for the child, or one who actually assumes the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.”  In re Adoption of S.M.D., 49 Pa. D. & C.4th 353, 2000 Pa. Dist. & Cnty. Dec. LEXIS 130 (2000)Pennsylvania Law Encycopedia.  

Pennsylvania law currently holds that, “a stepparent does not, merely by reason of the relation, stand in loco parentis to their step-child”. Kratzer v. Commonwealth, Dep’t of Public Welfare, 85 Pa. Commw. 318, 481 A.2d 1380 (1984).  “Accordingly, a stepparent as such is under no obligation to support the children of his or her spouse by a former marriage.”  Id. 

On the other hand, however, “a stepparent who takes a spouse’s minor child into his or her home and respectfully and responsibly treats the child as his or her own may be considered as standing in loco parentis, and must support and maintain the minor child.  Commonwealth ex rel. Bulson v. Bulson, 286 Pa. Super. 633, 419 A.2d 1327 (1980).  More recent cases have held, though, that a stepparent acting in loco parentis is not liable to support the stepchild after the dissolution of the marriage with the stepchild’s natural parent.  L. S. K. v. H. A. N., 813 A.2d 872, 2002 Pa. Super. LEXIS 3806 (Pa. Super. Ct. 2002)

Nonetheless, when a stepparent has held a child out as his or her own, the stepparent may be estopped from denying an imputed paternity and therefore be financially liable to support the stepchild following a divorce under the doctrine of equitable estoppel. Estoppel in paternity actions is merely the legal determination that because of a person’s conduct (here,  holding out the child as his or her own, or supporting the child), that person, regardless of true biological status, will not be permitted to deny parentage.  L. S. K. v. H. A. N., 813 A.2d 872, 2002 Pa. Super. LEXIS 3806 (Pa. Super. Ct. 2002. 
Pennsylvania Law Encycopedia

Regarding visitation and established stepparents, “when a stepparent is in loco parentis with stepchildren, courts must jealously guard his or her rights to visitation.”   Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1977).  The court must permit a stepparent to establish what his or her relationship to a child is and to demonstrate that his or her interest in visitation should be protected.  Id.

In summary, then, Pennsylvania law, even in the absence of adoption, may wisely enough confirm the noble act of a stepparent becoming a true parent in both rights and responsibilities, as long as such confirmation is the best interest of the children.  Like every other case the legal maxim, “it depends” always applies and every case is factual distinct.

For any questions or further explanation and exploration of these issues, be sure to contact our office for a free consultation.  Have a wonderful day.

Unemployment Compensation if you Voluntarily Quit Work? It depends…

            Unemployment compensation is normally unavailable to an individual who voluntarily quits their employment, and is reserved for people who have lost their job through no fault of their own.  That is the general rule.  Pennsylvania law, however, holds that, “an employee who has voluntarily quit his job may nevertheless be entitled to unemployment compensation if his or her leaving work was with good cause.  Such “good cause” must be of a necessitous and compelling nature.  Fike v. Commonwealth, Unemployment Compensation Bd. of Review, 77 Pa. Commw. 176, 465 A.2d 136 (1983).  The burden of proof rests squarely with the claimant to prove that he or she quit for a necessitous and compelling reason.

            The courts, in an effort to add meat to those bones, have stated that, “cause of a “necessitous and compelling” nature is such cause as results from overpowering circumstances that produce both real and substantial pressure to terminate employment and that would compel a reasonable person to terminate employment.  Draper v. Unemployment Compensation Bd. of Review, 718 A.2d 383 (Pa. Commw. Ct. 1998).

            That doesn’t seem to help us much, does it?  In 2012, however, the Pennsylvania Commonwealth Court outlined a four part test, stating that, “in order to show necessitous and compelling cause, the claimant must establish that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) he or she acted with ordinary common sense; and (4) he or she made a reasonable effort to preserve employment.  Middletown Township v. Unemployment Compensation Bd. of Review, 40 A.3d 217 (Pa.Cmwlth. 2012).

            Well, surely that helped?  Maybe a little.  A survey of the current case law shows that quitting employment for being moved to a different shift, having your hours changed, fear of lay-off, leaving to start a business, or general personal conflicts at work are not necessitous and compelling reasons to quit and the employee will therefore not receive benefits.  Reasons to quit that have been held to be necessitous and compelling, however, are sexual harassment, and more serious personal conflicts at work that effect the employee’s health and/or morals.  That, as is usual, still leaves plenty of gray subjectivity in the law.  The lawyer answer to our question then is, as always; “It depends…”