Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

 

In an opinion issued by Chief Justice Castille, the Supreme Court reversed the decision of the Commonwealth Court and determined that the Zoning Hearing Board of Exeter Twp. was correct in determining that the Exeter Township Zoning Ordinance was exclusionary in limiting the size of a billboard to 25 square feet. The Supreme Court held that the owner of the billboard in question, Land Displays, was successful in presenting substantial evidence to enable the ZHB to conclude that a billboard is a legitimate means of displaying and communicating an advertising message to passing drivers on roads and highways, that a 25 sq. ft. sign is too small to convey this message and that a 300 sq. ft. sign is large enough for that purpose. The Court concluded that Land Displays proved a de facto exclusion.

Had the Supreme Court concluded otherwise it would have had a severe adverse impact upon the billboard industry in Pennsylvania. Ordinances in local municipalities would have been able to prevent industry standard size signs and thereby effectively preventing any new bill board signs to be erected. The industry had filed an amicus curiae brief in support of Land Displays.

The Court also remanded the case back to the Commonwealth Court because it had not rendered a decision on the issue raised by the Township that Route 422 presents a safety issue when signs are erected anywhere along that route and not just in the areas of Route 422 which the ZHB concluded there was no safety issue. We see no evidence on record which would enable the Court to overrule the well reasoned opinion of the ZHB on that issue. 

 

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In Toll Brothers, Inc. v. DEP and Bushkill Township, EHB Docket No. 2007-163-MG (Issued October 1, 2008) , the EHB denied Toll Brothers, Inc.s’ (“Toll Bros.”) appeal of DEP’s denial of Toll Bros. private request that the Township provide public sewer service to Toll Bros.’s proposed development. Toll Bros. filed a private request with DEP seeking to have the Department determine that Bushkill Township was not properly implementing the Township’s approved 537 Plan. The Township maintained that the area Toll Bros. proposed for development was in an area to have on-lot septic systems. Toll Bros. did not argue that the 537 Plan was inadequate to meet its proposed sewage needs.

The EHB found that the 537 Plan was not “concise” in relation to the areas to be publicly sewered. The 537 Plan made reference to areas that were developed at the time the plan was developed in 1973. Toll Bros. argued that portions of its proposed development were identified as being within the area to be publicly sewered and that the term “developed” was not defined in the Township’s 537 Plan.

The EHB found that DEP properly interpreted the 537 Plan in deciding that the area proposed by Toll Bros. was not within the area to be publicly sewered. There was no evidence that the area was “developed” in or prior to 1973, nor that the area was intended to be served by public sewers based on the description of the sewer service area.

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The recent closing and bankruptcy of mortgage broker, OPFM, Inc. (a.k.a. Personal Financial Management, Image Masters, etc.), has left more than 800 homeowners in Central Pennsylvania with higher than expected mortgage balances and payments, and increasing fears that they might ultimately lose their homes.   

Scams to separate home-owners from their equity are not new.  The OPFM case is a little different than traditional equity theft schemes in that its plan was dependent upon attracting homeowners with excellent credit.  Many schemes, on the other hand, target homeowners who are facing foreclosure or other distress situations.  The basic method is the same, however, in that through promises to make mortgage payments on  a homeowner’s behalf, a scam artist is able to gain control over a home’s value and the homeowner is ultimately robbed of any value or equity the home may have had.  In order to avoid such equity theft scams, homeowners should take the following precautions:

1.    Make sure you know the identity of your actual lender and the actual terms of your mortgage.  Read all mortgage documents at your closing and retain copies for future reference.  Seek the advice of an attorney if you have any questions.  Two ways that you can verify who actually holds your mortgage are to run a free credit report and to check the records at your local recorder of deeds office.  Many recorder of deeds offices offer online access to these records.  Mortgages are routinely sold, and it is not unusual for your current lender to be different from the original, but you should receive some official notice if your mortgage is ever sold.

2.    Be extremely careful in entrusting a third party to make your mortgage payment.  Make sure such a person is properly bonded or insured.  Insist on periodic proof, in the form of official statements from your actual lender, that payments are being made and properly credited to your mortgage account.

3.    Be wary of programs or systems that seem overly complicated or unusually creative, or claims that seem to promise more than they can deliver.  There is much wisdom in the expressions “There is no free lunch” and “If it seems too good to be true, it probably is.”  Assume that there may be a catch when a broker, consultant or other party is offering substantially below-market interest rates, or is claiming that they can save your house from foreclosure. 

This story excerpted from the Barley Snyder November Business & Litigation newsletter.  For the full text of the newsletter click here.  The article can be found on page 2.

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The Department of Environmental Protection provided two new guidance documents to assist in the implementation of the Chesapeake Bay Tributary Strategy.  The following is a link to DEP's website which has links to the two new policies:  http://www.depweb.state.pa.us/chesapeake/cwp/view.asp?a=3&Q=442886&chesa

The first new policy relates to DEP's implementation plan for sewage facilities planning.  The plan for sewage facilities planning is significant in that it directs municipal governments and permittees to design for compliance with new cap loads for nitrogen and phosphorus as well as zero net load increases beyond the current design flow of existing systems.   Facilities will need to perform an alternatives analysis for all alternatives identified in  sewage facilties planning for compliance with applicable water quality standards, including the NPDES permit limits to be placed in NPDES permits issued within the Bay watershed going forward.  This requirement will apply to existing base plans as well as new land development plans.  The policy does not spell out the terms by which existing POTWs should handle the long term requirement for the purchase of credits, which together with the limited number of credits currently availibility, causes some concerns about the adequacy of planning and potential problems with compliance.  The policy also sets out new information regarding the credits to be obtained by retiring existing on-lot systems.  The Department also forshadowed the possibility of regulating the TP and TN loadings from on-lot systems which are currently exempt under the existing policy.

The second new policy relates to NPDES permitting, it breaks down the five phase implementation schedule DEP has adopted.  This first phase is already underway.  Phase 1 addressess the largest 168 treatment plants located in the Bay watershed.  The compliance deadline for these facilities is 10/1/2010, though the Department has indicated in the policy that it intends to negotiate Consent Order and Agreements with faclities that can not meet that deadline, however, the plan is to wait until non-compliance occurs, rather than address the issue at the permitting stage.  Clearly there are real risks associated with this approach from the perspective of the permittees.  Each of the next four phases address increasingly smaller facilities and extends the compliance deadline through 10/1/2013.

Barley Snyder has assisted its clients in negotiating one of the first nutrient trades to be approved by the DEP and has also represented two clients in appeals to the Environmental Hearing Board relating to DEP's December 20, 2006 directive to submit plans for compliance with DEP's proposed effluent loads, as addressed in correspondence from the Department and the draft NPDES permits which were issued in January 2007.  The December 20 letters directed the 168 largest facilities to submit plans for compliance with the new cap loads within 180 days of the date of the letters.  Those plans are due in late June.  

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Horst Realty manages the Village of Pineford, a rental community in Middletown Borough.  The Borough provides electric service to Borough residents, including residents of Pineford.  In an oversight most of us can identify with, Horst Realty mailed its roughly $124,000 September electric bill payment with insufficient postage.  Because the Borough ultimately received the payment four days late, it assessed Horst Realty a late fee to the tune of about $12,000 and threatened to cut off all electricity to Pineford if the fee was not immediately paid.  Although it reluctantly paid the fee to keep the power on, Horst was not amused.  Instead, the company retained Barley attorney Charles Haws to file suit under the Pennsylvania Utilities Service Tenants Rights Act ("PUSTRA").  It is Horst's position that the ordinance allowing Middleton to charge such late fees is illegal:

[t]he $12,000 doesn't have any reasonable relationship to the costs incurred by the borough due to the lateness of the payment.

Horst further alleges Middletown violated the PUSTRA by failing to provide Pineford residents with notice that they faced possible termination of electrical service.  We'll provides updates on this litigation as events warrant.

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