Author Archives: dew215

On September 28, 2011 the Pennsylvania Supreme Court handed down a unanimous decision in Piper Group, Inc., et al v. Bedminster Township Board of Supervisors and Bedminster Township (Pa. 2011), one which clarified the pending ordinance doctrine and will likely impact the manner in which zoning ordinances are challenged in the Commonwealth. The dispute revolved around a proposed high-density residential development in an area zoned as an Agricultural Preservation (AP) District in Bucks County. In light of a de facto zoning ordinance challenge, the Piper Court ruled that ordinance defects are to be resolved by the appropriate local Board, even in the case where a challenge to the ordinance pre-dates a Board’s declaration of intent to amend.

In deciding this matter, the Court discussed, at quite some length mind you, the 2002 Pennsylvania Supreme Court decision in C&M Developers, Inc. v. Bedminster Township 820 A.2d 143, which held as unconstitutional parts of the same zoning ordinance that the Piper Group, Inc. (Piper) attacked as well as the pending ordinance doctrine enunciated by the Pennsylvania Supreme Court in 1974 in Casey v. Zoning Hearing Board of Warwick Twp, 328 A.2d 464 and further refined in 1992 in H. R Miller & Co. Inc v. Board of Supervisors, 605 A.2d 321.

The procedural history that informs the Piper decision is inextricably tied to the C&M decision. In August 1996 Bedminster Township (Township) passed an ordinance which established an Agricultural Preservation District (AP) and which enumerated the following restrictions on private development: at least 50% of the acreage must be set aside for agriculture; the minimum lot size for any residential property was one acre; and acreage that included wetlands, lakes or ponds was strictly off limits. Just days after the Township passed the ordinance, C&M Developers (C&M) filed a validity challenge. Twenty-nine Board meetings were held to address the challenge. C&M was desirous of engaging in residential development which exceeded that allowable under the ordinance.In addition to Board review, which found no fault with the ordinance, both the trial court and the Commonwealth Court affirmed its constitutionality. However, the Supreme Court did reverse. The Court concluded that a one acre minimum lot size was tantamount to an unreasonable restriction upon a landowner’s right to use his/her real estate and not substantially related to the township’s interest in preserving agricultural land. The core issue in the C&M decision entails a substantive due process violation, where the Court was forced to strike a balance between the legitimate public interest of the Township’s exercise of its police power in establishing an AP district and the rights of private landowners to develop. The ordinance was deemed overbroad. However, the lessons learned from the C&M decision helped to inform the Piper Court, in addressing allegations that site-specific relief was warranted as a result of Piper filing a cure challenge before the Township announced its intent to amend any de facto defects.

Two weeks after Piper filed its cure challenge (the Piper challenge was leveled within a week of the C&M decision), the Township declared the subject ordinance invalid. The curative amendments implicated the defects identified in C&M, mainly eliminating the one acre requirement, reducing the minimum lot size from one acre to 32,000 square feet and permitting a maximum of .5 dwelling units per acre. Nevertheless, from May 2003 through January 2007, the Board went to Herculean lengths to address the Piper challenge. Ultimately though, the Board refused to grant Piper site-specific relief, to develop in accordance with its filed plan.

Piper elected not to contest the Board’s decision as an abuse of discretion but contended that it was entitled to have its development plan approved as a matter of law, based upon the MPC and the pending ordinance doctrine. Piper specifically argued that “a municipality cannot thwart a validity challenge to its zoning ordinance by invoking a municipal cure after the challenge is filed.” In effect, Piper asserted that the new ordinance could not apply to Piper because its challenge predated the declaration. Piper also raised a vested rights claim, by virtue of filing its challenge before the Board’s declaration of invalidity. As we shall see, the Court dismissed Piper’s arguments out of hand.

The Court accepted the Township’s theory that it properly evaluated Piper’s challenge under the MPC, which mandates that timely challenges, proposed ordinances and site plans be evaluated by considering the impact on a variety of sources such as infrastructure, the environment, the need for such housing and the preservation of agricultural lands. Simply stated, based upon the Board’s extensive findings of fact and conclusions of law gleaned from four dozen hearings, the Court was unable to find any proof in the record that the cure challenge and site plans were not properly evaluated and that the new ordinance did not provide Piper with the appropriate relief. Despite this seemingly straightforward analysis, the Court did exhaustively address Piper’s argument that the Board’s actions contravened the decisions in Casey v. Zoning Hearing Board of Warwick Twp, (Casey) and its progeny.

The Court reasoned that because the C&M decision gave constructive notice that the ordinance would have to be amended, the Board retained the power to reject plans that were inconsistent with the non-offensive provisions of the ordinance. A comprehensive examination of all of the nuances of the pending ordinance doctrine is beyond the scope of this article. Yet perhaps some background is in order. The Casey court applied the pending ordinance doctrine to the scenario of de jure exclusions. Casey held that a municipality cannot adopt curative provisions that cured the defect for the municipality as a whole but not for the landowner who initiated a timely challenge. Suffice it to say, the Court found Piper distinguishable from Casey. Casey involved a de jure defect that the challenger identified. Once the defect was cured, the challenger was inappropriately denied relief, which was subsequently overturned on appeal. But Piper appears to have requested relief that would have defeated the aspects of the ordinance that did not involve a constitutional defect. The Court foundH. R Miller & Co. Inc v. Board of Supervisors (Miller), rather than Casey, to be controlling. Miller concerned an ordinance that unconstitutionally restricted, but did not prohibit, quarrying activities in an industrial district – a de facto defect. The appropriate relief in response to the Miller challenge was to strike an unlawful building setback requirement that impermissibly restricted the quarrying activities without invalidating the entire ordinance. Miller was not granted a windfall by being allowed to conduct industrial quarrying activities on residential lands he owned simply because he identified a defect. The Miller Court emphasized that courts should pay close attention to the nature of the defect when fashioning a remedy.

As applied to Piper, the challenged unconstitutional exclusionary requirements restricted, but did not preclude, development in the AP district. The new ordinance cured these de facto defects for the entire AP district, including Piper’s land, by allowing development with the offending provisions excised. Piper received the benefit of the subsequent amendments and was allowed to develop the land in accordance with the new ordinance. The Court noted with approval the Board’s finding that Piper’s site plans, unlike C&M’s, did not preserve “the substantial public benefits of an AP district.” The new ordinance permitted increased building density while preserving the substantial public benefit of the AP district. Consequently, the Court steered clear of granting Piper a proverbial windfall. Neither the pending ordinance doctrine nor the MPC give developers carte blanche to develop their land once an ordinance has been held unconstitutional, regardless of the time a challenge and site plan is filed in relation to a declaration to amend a de facto defect.

******************************************************************************

Harper J. Dimmerman is an adjunct professor at Temple University’s Fox School of Business and co- chair of the law practice management committee of the Philadelphia Bar Association. His firm represents clients in general litigation, various land use, residential, commercial real estate and criminal law matters. They also provide approved attorney title insurance services and real estate consulting statewide. He can be reached via e-mail at harper@hjdlaw.net or telephone at 215-545-0600.

James M. Lammendola is an Instructor at Temple University’s Fox School of Business who was in private practice for twenty years. He may be reached via e-mail at james.lammendola@temple.edu or telephone 267-254-3324.

The recent case of Goldstein v. The Zoning Hearing Board of the Township of Lower Merion, 19 A.3D 565 filed on April 21 by the Commonwealth Court emphatically illustrates the importance of not disregarding the mandates of local ordinances when constructing additions or new structures on one’s real estate. As we shall soon see, neither the long-standing nature of a nonconformity, the expense of compliance, nor the acquiesance of one’s immediate neighbors will afford relief to the landowner when a hardship is not directly tied to a pre-existing unique physical condition on one’s property.

William and Frances Goldstein (hereinafter “landowners”) constructed a pool house on their property in 1982. The pool house violated the Lower Merion Township Ordinance (hereinafter “ordinance”), regulating aggregate side set back requirements, by 2.51 feet. Remarkably, the Township never cited the landowners for the violation. Twenty-four years later, in 2006, the landowners began construction of an addition to the west side of their home that violated the aggregate side setback by 11.5 feet. The permit for the addition was contingent upon resolving the status of the non-conforming pool house.

Consequently, the landowners filed an application requesting a dimensional variance from the aggregate yard setback requirement so that the pool would not have to be moved or demolished. The landowners presented uncontroverted evidence at the Board hearing that it would cost $55,000.00 to move the pool house and it would cost $95,000.00 to demolish and rebuild it. In short order, the Board denied the application pursuant to a finding that the landowners failed to show that the hardship was caused by property’s unique physical conditions and that the hardship was not of their own making. Without the benefit of additional evidence, both the Montgomery County Court of Common Pleas and the Commonwealth Court affirmed the Board’s decision. The Commonwealth Court denied a Petition for Rehearing on June 10, 2011.

Pennsylvania case law appears to require a lesser burden for the applicant to sustain when a dimensional variance is requested, as is the case here, rather than a use variance. When reviewing a use variance application, a Zoning Board must consider all of the following factors, where relevant, as enumerated in the Municipal Planning Code 53 P. S. 10910.2.: 1.) that the unnecessary hardship is due to unique physical characteristics or conditions, peculiar to the property; 2) due to the unique conditions or characteristics, there is no possibility that the property can be developed in strict conformity with the Code provisions; 3.) The unnecessary hardship has not been created by the landowner; 4.) A variance, if authorized would not alter the essential character of the neighborhood or district; and 5.) if the variance were granted, it would represent the least modification possible.

In support of their request for a dimensional variance the landowners argued that the Board erred in its analysis by applying a more stringent standard than that set by the Pennsylvania Supreme Court in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (1998), i.e., that the burden of proof necessary to earn dimensional variance is less than that to establish a use variance, as a dimensional variance seeks only a “reasonable adjustment” of the zoning regulations that will serve the public interest. . Nonetheless, it appears the trend is to apply the relaxed standard only to considerations of whether unnecessary hardship results from the unique characteristics of the land and the timing of the applicant’s request.

On appeal, the landowners raised the thoughtful, but albeit unsuccessful, argument that the use was not contrary to the public interest, and that the necessity of bearing extensive reconstruction or demolition costs, in and of itself, constitutes a physical condition unique to the property that is sufficient to establish the existence of an unnecessary hardship. This argument is based on the holding in Appeal of Crawford, 57 A.2d 862 (Pa. 1948). The Crawford court allowed a dimensional variance for the purpose of converting a garage into a personal residence, overruling the decision of the local Zoning Board. The Court held that to require the property owner to destroy valuable and ornamental shade trees, in conjunction with moving the building to a different location on the property at a cost of $3,500.00 (in 1948 dollars), imposed an unnecessary hardship if a variance were denied. In opposing the variance, Lower Merion Township, cited another relatively vintage Supreme Court case, Phillips v. Griffiths, 77A.2d 375 (1951), which held that a variance cannot be granted when there is a deliberate violation of a zoning ordinance. The variance was denied in Phillips due to a deliberate violation of an ordinance, unlike in Crawford where the property owner requested the variance before expending any construction costs.

The Commonwealth Court emphasized three critical factors in affirming the denial of the landowners dimensional variance application: 1.) the landowners did not apply for the variance until after construction on the addition; 2.) with full knowledge that the construction would only exacerbate the long standing violation of the aggregate setback requirements as a result of the erection of the pool house in 1982; and 3.) the absence of any proof that unique physical conditions were present on the property, giving rise to the hardship. The Goldstein Court held that whether the hardship is substantial or minor “is of no moment” when a hardship is self-created. And a more recent example of how stringent enforcement can be is illustrated in the 2003 Commonwealth Court decision, Appletree Land Development v. Zoning Hearing Board of York, 834 A. 2d 1214, where a dimensional variance for a porch was denied for a one foot setback violation.

The argument that the necessity of bearing extensive reconstruction or demolition costs, in and of itself, constitutes a physical condition unique to the property that is sufficient to establish the existence of an unnecessary hardship proved unsuccessful as did the contention that there was actually a beneficial impact on neighboring properties, as evidenced by the testimony of the neighbors in favor of the application for its aesthetic and privacy benefits. In the Court’s estimation, any beneficial impact, if the variance was to be granted, merely demonstrates that the variance would not negatively impact the public interest. Furthermore, even assuming arguendo that the public interest prong could be satisfied, landowners still were unable to mount a strong case on the unnecessary hardship front; both factors must be considered, not just one. Applicants must be mindful of the hurdles associated with demonstrating hardship for the purpose of obtaining a variance. Doing the work, without the proper permits, could ultimately backfire and merely serve to accentuate the self-created nature of the owner’s predicament.

******************************************************************************

Harper J. Dimmerman is an adjunct professor at Temple University’s Fox School of Business and co- chair of the law practice management committee of the Philadelphia Bar Association. He represents clients in general litigation, various land use, residential, commercial real estate and criminal law matters. His firm also provides approved attorney title insurance services and real estate consulting statewide. He can be reached via e-mail at harper@hjdlaw.net or telephone at 215-545-0600.

James M. Lammendola is an Instructor at Temple University’s Fox School of Business who was in private practice for twenty years. He may be reached via e-mail at james.lammendola@temple.edu or telephone 215-204-1629.

A hypertechnical distinction can rear its ugly head at any given time, even when a litigant has been prudent throughout, successfully navigating the confession of judgment rules for instance. The Home Savings v. Irongate decision, 2011 PA Super 72; 2011 Pa Super LEXIS 140  (hereinafter Irongate) just handed down by our Superior Court on April 8, 2011, is a stark reminder that judgment creditors must strictly adhere to every statutory mandate during the course of judgment enforcement, no matter how technical some of these requirements can be.  Mortgagees and mortgagors alike would be remiss not to pay close attention to the analysis applied and the derived outcome in Irongate.

Superficially at least, the Irongate case appears relatively straightforward.  A default on commercial loans results in multiple confessions of judgment followed by foreclosure actions.  Ultimately the judgment creditor is left with no alternative but to pursue deficiencies vis-à-vis  the Deficiency Judgment Act, 42 Pa. C. S. A. Sec. 8103 (hereinafter DJA).  However, it is the evolution of the DJA and its historical context that reinforces the result and is worthy of consideration.  Does a Petition to Fix the Fair Market value in pursuit of such a judgment have to be docketed with the underlying foreclosure action or will it suffice to be docketed in a related action, stemming from default?  Just how significant is the timing of such an action?

Before the passage of the DJA, “the price at which the mortgaged property [was] sold by the Sheriff, even when purchased by the mortgagee for a nominal bid . . . [was] conclusive as to the value of the mortgaged property.” PENNSYLVANIA LEGISLATIVE JOURNAL – HOUSE (June 9, 1941) [hereinafter, LEGISLATIVE JOURNAL - HOUSE] at 3434.  The Pennsylvania legislature recognized that during the Great Depression, prices realized at forced sales on foreclosed property were often much less than the price at which the property would be sold to a willing buyer by a willing seller.  LEGISLATIVE JOURNAL – HOUSE at 3436.  This trend brought “intensified public dissatisfaction” with the common law rule, to which our legislature responded with the Mortgage Deficiency Judgment Act in 1934.  Although our Commonwealth’s highest court would go on to strike down that the DJA as an unconstitutional impairment on the obligation of contracts, in 1941 our legislature would revisit the relevance of the DJA and enunciate the provisions which would go on to enjoy vitality for decades to follow, albeit in various incarnations.

In Irongate, the corporate defendants defaulted on commercial loans extended by the lender, Home Savings.  The loans were personally guaranteed and secured by real estate owned by the individual defendants, not an atypical fact pattern.  As a consequence of default, Home Savings opted first to file several Complaints in Confession of Judgment, to secure money judgments against all defendants in June 2007.  It was not until March 2008 that Home Savings would file the Complaints in Mortgage Foreclosure; these resulted in obtaining title to the property on April 23, 2009 pursuant to a Sheriff sale held on April 9, 2009.  Unsurprisingly, as Home Savings did not have its claim satisfied by the sale proceeds, it remained entitled to recoup any losses pursuant to the DJA.   Hence it filed two Petitions to Fix Fair Market Value of Property Sold at Sheriff Sale and for Deficiency Judgment (FMV Petitions) on September 18, 2009.  At first blush, it would appear that Home Savings filed its FMV Petitions well within the six-month statutory window; this window commences from the execution and delivery of the sheriff’s deed pursuant to DJA Section 8103 (b-2).  Critically, the FMV Petitions were filed in the Confession of Judgment docket and not the Mortgage Foreclosure docket.  And for the trial court, as these papers were docketed in that fashion, the judgment creditor waived its right to proceed under the DJA.  Predictably, such a draconian result became fodder for an appeal by the disenchanted and undercompensated mortgagee.

Section 8103(d) of the DJA permits the debtor to Petition the Common Pleas Court and “direct the clerk to mark the judgment satisfied, released and discharged” if the Court determines that the creditor failed to file a FMV Petition within the six month time limit established by 42 Pa. C. S. Section 5522(b) (2).  On November 25, 2009, well after the six months expired, the corporate defendants and individual guarantors did precisely this, mainly file a Petition to Mark the Judgments Satisfied and Discharged.  Home Savings’ preliminary objections fell upon deaf ears as did their contention that the lower court should simply transfer the FMV Petitions over to the foreclosure dockets.  At the end of the day, it was directed that the judgments be marked satisfied, released and discharged.

On appeal, the lender argued that the filing of the FMV Petitions in the Confession of Judgment dockets preserved any deficiency claims, and, furthermore, rather than resting on such a procedural nuance that as a matter of public policy, the Pennsylvania Rules of Civil Procedure should be construed in a manner that favors disposing of controversies on their merits (Pa. R.C.P. 126).  Interestingly however, the appellate court gave short shrift to the lender’s plea for leniency.  The plain language of the DJA, not to mention the Superior Court’s pronouncement in a 2000 decision, First Federal Savings & Loan v. Keisling, 746 1150, 1153-54, proved too formidable foes for Home Savings.  The DJA is to be liberally interpreted in favor of judgment debtors.  Additionally, the judgment creditor has the burden of proof on matters of compliance.  Succinctly put, a FMV Petition must be filed as a supplementary proceeding in the docket in which the judgment was entered.  Of course, this could not possibly be said to apply to the Confession of Judgment dockets.

Section 8103(g) of the DJA critically defines the term “judgment” as the “judgment” which was enforced by the execution proceeding referred to in 8103(a).  Here, it was the foreclosure proceeding where the execution took place.  Such language is mandatory and an abuse of discretion did not occur when the lower court denied the request to simply transfer the FMV Petition from one docket to another.  As a side note it should be noted that footnote number 3 in Irongate is a reminder that the holding in Commonwealth v. Neiman, 5 A.3d 353 (Pa Super 2010), which declared the 2004 amendments to the DJA unconstitutional, has been stayed, pending Pennsylvania Supreme Court review.  Neiman challenged the constitutionality of Megan’s Law.  The Megan’s Law bill, as passed in 2004, also contained an amendment to the DJA;  Megan’s Law survived the challenge.  However, the Neiman court held the DJA amendment violated the “single subject rule” of Article III of the Pennsylvania Constitution. The amendments to the DJA, comprising twelve percent of the total bill, were stricken as extraneous.  Despite this interesting side note, the lessons gleaned from this case retain their value as the amendments do not address the supplemental proceeding issue germane to Irongate.

***************************************************************************

Harper J. Dimmerman is an adjunct professor at Temple University’s Fox School of Business and co- chair of the law practice management committee of the Philadelphia Bar Association. He represents clients in general litigation, various land use, residential, commercial real estate and criminal law matters.  His firm also provides approved attorney title insurance services and real estate consulting statewide. He can be reached via e-mail at harper@hjdlaw.net or telephone at 215-545-0600. His blog is landdweller.com

James M. Lammendola is an Instructor at Temple University’s Fox School of Business who was in private practice for twenty years. He may be reached via e-mail at james.lammendola@temple.edu or telephone 267-254-3324.

A common situation that arises when it comes to renting an apartment jointly with someone else, be it a friend or significant other, is the time when the two can no longer functionally live together. Take for example the following scenarios:

1. Significant others or spouses going through a split or separation
2. A roommate at college who decides to drop out in the middle of the year
3. A friend or family member who refuses to pay their respective share of rent and/or utilities

The first thing that needs to happen is the communication of the problem or situation that exists to the landlord. You do not have the right to remove or evict the other person on your own, nor make amendments to the lease, as the landlord would have to determine if the agreement has been breached by either of the parties. If steps towards eviction end up being necessary, it will be the responsibiliy of the landlord to initiate those proceedings.

If the dispute cannot be settled amicably and legal actions are required, it is very likely that the services  A Real Estate Attorney may be needed to help complete the process of.

I know what you’re thinking. Harper is probably struggling for content or, more likely, has gone and lost it. Read on, though. I assure you there’s a perfectly logical explanation for the title.

As President Obama methodically proceeds to execute his lofty agenda, remaining steadfast even in the face of partisan politics and relentless media scrutiny, as his first 100 days in the Oval Office expire like greased lightning, Americans suddenly find themselves repenting for the sins of our most narcissistic brethren. They do this as they try to strike that perfect balance between blissful denial and misguided optimism. Meanwhile, ominous clouds bursting with the chilling reality that is the sordid state of the global economy continue to form overhead. Abroad, rancor for Americans and their swindles continues to percolate, manifesting itself in the shape of pugnacious protesting, such as that in London on the eve of the G20 summit.

And when it comes to indicators that a recession of epic proportions is finally upon us, I would submit that there is a frequently overlooked gauge – the moon. Seriously. It’s no secret that property values and the real estate market in general have taken a proverbial beating of late. And of course there’s the mortgage industry meltdown, creating an environment of utter credit chaos. But it’s the precipitous decline in moon investing which really has me concerned.

According to the always reliable Penki:news, since 1980, some 18 lunar embassies have opened around the world, offering ownership of land on the moon, Venus and Mars. In an effort to boost sales, the Czech Republic lunar embassy has slashed prices by as much as 20 percent, offering land patches for 799 Czech Crowns (39 U.S. dollars), down from 999 (48 U.S dollars) (I’m not making this stuff up). But these statistics only beg the obvious question. How do these extraterrestrial property rights come into being in the first place?

Interestingly enough, lunar and planetary rights have apparently been the source of great debate for decades. Let’s start with an aptly named treaty, which constitutes the basic framework of international space law. In addition to lending guidance to nations tempted to place weapons of mass destruction into orbit, amongst other things, The Outer Space Treaty addresses the question of ownership of celestial bodies. Simply put, governments (who are a party to the Treaty) are expressly forbidden from claiming ownership of the moon or planets, and the like. Much to the chagrin of foreign nations, these are considered “the province of mankind.” Go figure. Article II of the Treaty provides that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. A subsequent Moon Treaty endeavors to untangle title, if you will, to these unconventional properties. The moon and other celestial bodies should be used for the benefit of all peoples in the international community.

Needless to say, these constraints have not stopped various societies from cropping up (what a pun) and cashing in on these heavenly investments. Even governments, such as the Czech Republic, have gotten into the act. Several years ago, a PhD candidate at Glasgow University, Virgiliu Pop, wrote a compelling paper regarding the legal issues surrounding lunar real estate. My favorite section of the piece was where Mr. Pop provided some examples of various claims made by a whole cast of characters. In 1996, a gentleman by the name of Martin Juergens challenged Dennis Hope’s (he’s a moon mogul) claim to the moon. “Allegedly, the moon has belonged to his family since July 15, 1756, when the Prussian emperor Frederick the Great presented it to his ancestor Aul Juergens as a symbolic gesture of gratitude for services rendered, and decreed that it should be passed to the youngest born son.”

Or take the case of the 1997 lawsuit filed by three Yemeni citizens against NASA. “Allegedly, Mars has belonged to their ancestors for 3000 years and, they claimed, NASA’s Martian mission, by the fact of not informing or seeking their approval, allegedly trespassed on their property.” My vote is for a Lunar Embassy right here in the States. Wait. I think one already exists right inside the Beltway.

About Our Law Firm

The Law Office of Harper J. Dimmerman P.C.

1835 Market Street

Suite 2700

Philadelphia, Pennsylvania 19103

(215) 545-0600 Telephone

(215) 735-1011 Facsimile

Email: harper@hjdlaw.net

Web: http://www.hjdlaw.net