Municipal Law

Due Process and Right-to-Know Requests

Posted by on Mar 13, 2015 in Municipal Law | 0 comments

Due Process and Right-to-Know Requests

The recent Pennsylvania Commonwealth Court decision in Pennsylvania State Educ. Ass’n v. Commonwealth, 2015 Pa. Commw. LEXIS 72 (Feb. 17, 2015) significantly impacts the process through which government agencies respond to Right-to-Know Law (“RTKL”) requests seeking personal information.  The Court found the RTKL violated due process principles by not affording individuals whose personal information was requested an opportunity to challenge the agency’s decision.  The Court recognized an individual, regardless of their status as a public official or employee, has a constitutional right to privacy of personal identification information.  Such right does not extend to the individual’s home address as such information can be obtained from public records. Despite this exception, the Court stated an agency is “prohibited from granting access to an individual’s personal address information without first notifying the affected individual and providing that affected individual with an opportunity to demonstrate that disclosure” should be denied pursuant to the personal security exception of the RTKL. Pursuant to this decision, government agencies subject to the RTKL must amend their Right-to-Know procedures.  In the event a RTKL request seeks or otherwise would result in the release of any personal identification information if granted, the agency cannot release such information until it, (1) notifies the affected individual, and (2) gives the affected individual an opportunity to show that the release of such information would pose a personal security threat to the affected individual.  After such notice and opportunity, the agency shall make a determination of whether disclosure of the information in fact creates a personal security threat, and if so, may deny the request or portion of the request.  If you have any questions regarding this update, or any other municipal law matters, please contact John Miller jmiller@mpl-law.com, or, Andrew Miller amiller@mpl-law.com, or Christian Miller, *protected email*, by email or phone at (717)...

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Municipal Authority liability under Tort Claims Act

Posted by on Dec 2, 2014 in Municipal Law | 0 comments

Municipal Authority liability under Tort Claims Act

In Falor v. Southwestern Pennsylvania Water Authority, No. 90 C.D. 2014 (October 9, 2014), a Commonwealth Court panel recently affirmed a trial court decision dismissing a claim for damages by Plaintiff Falor against Defendant Southwestern Pennsylvania Water Authority as barred by the Pennsylvania Tort Claims Act, 42 Pa. C.S. §§ 8541-8542. Falor owned a four-story commercial building.  Falor asked the Water Authority to shut-off water to the building.  The Water Authority sent an employee to the property to shut off the water.  The employee discovered the tap connecting the water main to Falor’s property also served another building next door.  The employee decided not to shut-off the water.  The Water Authority never informed Falor of the omission and also discontinued and closed her water account.  All other utilities were shut-off to the building and sometime during the winter, the pipes in Falor’s building burst causing significant damage to the building. The Water Authority asserted the defense of governmental immunity under the Tort Claims Act.  Falor argued that the two-headed tap serving Falor’s property and the neighboring property was a “dangerous condition” falling within an exception to the Tort Claims Act.  The trial court rejected that argument and concluded that the Water Authority’s failure to shut-off the water and to inform Falor of that fact was the precise cause of the damage.  The Water Authority omission fell within the scope of the Tort Claims Act, so the trial court granted summary judgment to the Water Authority and dismissed the case.  The Commonwealth Court affirmed this holding. On appeal, Falor also asserted the argument that the Water Authority’s actions fell within the “Utility Service Facilities” exception to the Tort Claims Act.  The Commonwealth Court followed several prior decisions in concluding again that “no dangerous condition” existed with respect to the utility facilities owned by the Water Authority.  The panel noted that the Water Authority’s tap functioned properly and delivered water to the property as intended.  Rather, it was the Water Authority’s negligent failure to shut-off the water at the tap and to tell Falor of its decision that resulted in harm to her property.  The appellate panel concluded, as did the trial court, that this omission by the Water Authority enjoys governmental immunity and does not fit within any exception to the Torts Claims Act.  The panel, likewise, rejected Falor’s arguments on appeal that the actions of the Water Authority constituted trespass and nuisance and that the Water Authority should be held strictly liable for its conduct.  For the same reasons as it affirmed the dismissal of Falor’s other arguments, the panel concluded that these additional torts simply do not fall within any exception to governmental immunity under the Tort Claims Act. This claim further reinforces a municipal authority’s tort claim liability protection when exercising its governmental functions.  The case also reinforced the need for a municipal authority to address known dangerous conditions within its system to avoid an exception to governmental immunity for utility service facilities. If you have any questions regarding this update, or any other municipal law matters, please contact Andrew Miller, *protected email*, or Christian Miller, *protected email*, by email or phone at (717)...

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Amendments to Local Tax Collection Law

Posted by on Dec 2, 2014 in Municipal Law | 0 comments

Amendments to Local Tax Collection Law

Pennsylvania recently adopted Act 164 of 2014 to amend the Local Tax Collection Law effective as to the appointment of a Deputy Tax Collector (explained below) on October 22, 2014 and as to all other provisions October 22, 2015.  The amendments make the basic tax collector training program and test mandatory as a prerequisite to performing duties as a tax collector.  The amendments create a Pennsylvania Qualified Municipal Collector (PQMC) designation to be awarded to those who successfully complete the basic training program and pass the basic qualification examination.  The training program and test may now also be administered on-line or through a compact disc instructional program.  The tax collector must provide a qualified tax collector certificate to the municipal secretary or clerk of the municipality for which the individual has been elected. The amendments also modify tax collector qualification standards.  The tax collector must now be designated as a qualified tax collector on the date he or she is scheduled to take office.  If not so designated on the date scheduled to take office, the tax collector position shall be deemed vacant.  An individual appointed to fill a vacant seat has sixty (60) days to become a qualified tax collector.  Tax collectors in office as of the effective date of the amendments will be considered qualified tax collectors and issued a qualified tax collector’s certificate, but shall be subject to the qualification requirements upon re-election.  Tax collectors must now also provide copies of renewed qualified tax collector certificates to a municipal secretary or clerk of the municipality for which the tax collector was elected upon completing mandatory annual continuing education requirements.  If the tax collector fails to complete the annual continuing education requirements or provide a copy of the qualified tax collector’s certificate to the municipal secretary or clerk within sixty (60) days of issuance of the Certificate, the tax collector will be ineligible to be placed on the ballot for the office of tax collector at the end of the tax collector’s current term of office. Another new requirement enacted by the amendments will be a State and Federal Criminal History Background Check for each new or re-elected tax collector.  An individual may not submit a nomination petition for the office of tax collector, if the individual’s criminal history record indicates the individual has been convicted of burglary, robbery, theft, forgery or fraud, offenses against public administration, or hacking and similar offenses. Finally, the amendments require the tax collector, with the approval of the taxing district and his or her surety, to deputize in writing one or more deputy tax collectors who will be empowered to collect and settle taxes during any incapacitation of the tax collector.  “Incapacitation” shall mean temporarily or permanently impaired by reason of physical illness, physical disability, mental illness, mental deficiency, or other cause to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the collection and settlement of taxes. The amendments significantly change the requirements for a tax collector.  Tax collectors and municipal governments should plan ahead so they are prepared when the amendments become effective on October 22, 2015. If you have any questions regarding this update, or any other municipal law matters, please contact Andrew Miller, *protected email*, or Christian Miller, *protected email*, by email or phone at (717)...

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Amendments to Clean Streams Law

Posted by on Nov 25, 2014 in Municipal Law | 0 comments

Amendments to Clean Streams Law

Pennsylvania recently enacted Act 162 of 2014 to amend the Clean Streams Law effective December 21, 2014.  The amendments allow a landowner or developer who will conduct earth disturbance activities requiring an NPDES permit for stormwater discharges to substitute Best Management Practices (BMPs) “substantially equivalent” to a riparian buffer or riparian forest buffer in effectiveness to minimize erosion and sedimentation from the proposed earth disturbance activities.  The landowner or developer may still install a riparian buffer or riparian forest buffer, but is no longer required to do so as a preferred BMP. The amendments also provide that for a project in a special protection watershed involving earth disturbance within the 100 foot buffer to surface water, a landowner or developer may offset encroachment into the buffer zone by installing a replacement buffer elsewhere along the special protection waters in the same drainage as close as feasible to the area of disturbance at a ratio of 1-to-1 for the square footage of encroachment. If you have any questions regarding this update, or any other municipal law matters, please contact Andrew Miller, *protected email*, or Christian Miller, *protected email*, by email or phone at (717)...

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Limits on Municipal Takings to Benefit Private Developers

Posted by on Nov 18, 2014 in Municipal Law | 0 comments

Limits on Municipal Takings to Benefit Private Developers

In Reading Area Water Authority v. Schuylkill River Greenway Assn., ___ A.3d __, 2014 WL 4745698 (Pa. Sept. 24, 2014) the Pennsylvania Supreme Court held the Property Rights Protection Act, 26 P.S. § 201, et seq. (the “Act”), prevented a municipal authority from using eminent domain to acquire an easement because the purpose was to benefit the developer of a residential subdivision and not the public at-large. Greenway owned a strip of land along the Schuylkill River which it intended to construct a public trail.  Fortune Development owned the adjacent property, on which it intended to develop into numerous residential dwellings.  The development required clean water supply, sewer, and stormwater facilities.  To obtain these, it sought access to  Greenway’s land.  The Reading Area Water Authority (“Authority”) supported the development and attempted to purchase a water supply easement from Greenway.  When these attempts failed, the Authority adopted a resolution to condemn the needed easement through eminent domain, expressly stating that Fortune would be responsible for commencing the proceedings and would pay all costs.  Greenway challenged the proceeding on the basis that it violated the Act because the taking was solely for the benefit of a private party.  The trial court agreed with Greenway’s position, however the Commonwealth Court reversed the trail court, finding the Authority had permission to include sewer services in the project and that the public would benefit from such services being provided to the development.  The Supreme Court held the Authority condemned the easement to permit Fortune to use it for private enterprise.  Such action by the Authority violated the Act.  In reaching its conclusion, the Court acknowledged the case “involves a mix of public and private purposes working in conjunction with one another” and therefore distinguishable from the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005) (holding economic development can qualify as a public use even where private enterprise is the engine of development).  The Pennsylvania Supreme Court noted that the Pennsylvania Legislature expressly adopted the Act in response to Kelo to affirmatively prohibit the taking of private property for private enterprise uses.  The Court also noted that its decision might “interfere with the ability of municipal water and/or sewer authorities to expand their operations,” but the Court cannot ignore the Act. In the wake of Reading Area Water Authority, a municipality must be cautious whenever a taking involves a mix of public and private purposes working together.  While takings for solely public uses are still permissible, additional attention and review must be employed where a private enterprise is involved in the taking, and the process must be strictly analyzed under the Property Rights Protection Act. If you have any questions regarding this update, or any other municipal law matters, please contact Andrew Miller, *protected email*, or Christian Miller, *protected email*, by email or phone at (717)...

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Amendments to Abandoned and Blighted Property Conservatorship Act

Posted by on Nov 18, 2014 in Municipal Law | 0 comments

Amendments to Abandoned and Blighted Property Conservatorship Act

Pennsylvania recently enacted Act 157 of 2014 amending the Abandoned and Blighted Property Conservatorship Act (Act 135 of 2008).  The amendments modify the process for filing a Petition for Conservatorship of an Abandoned or Blighted Property. A building not legally occupied for at least twelve (12) months may be placed into conservatorship upon filing of a petition, unless the owner presents compelling evidence that he has actively marketed the property during the preceding sixty (60) day period and made a good-faith effort to sell the property at a price which reflects the circumstances of market conditions. The Act sets forth nine (9) criteria to be evaluated by a court when determining that a property qualifies for conservatorship.  In order for an owner to avoid conservatorship, they must either:  1) remedy any code violations or the nuisance or emergency conditions; or 2) sell the property subject to the conservatorship.  The owner must also now reimburse the petitioner for all costs incurred by the petitioner in preparing and filing the petition for conservatorship, including a newly-established conservator or developer fee. The Amendment also now provides that a conservator may apply to the court for priority lien status of any borrowed funds that will be used to rehabilitate the property. The amendments also reduced the time in which a conservator must hold a property prior to making application to the Court for subsequent sale of the property from six (6) months to three (3) months.  Finally, the amendments add a provision that allows a conservator to recoup costs incurred in preparing and filing a Petition for Conservatorship ahead of other liens such as mortgages and judgment liens that would otherwise be senior to the conservator’s claim for costs. Although still somewhat complicated and time-consuming, the amendments to the Abandoned and Blighted Property Conservatorship Act make the process more appealing to potential conservators or developers.  The amendment should make rehabilitation of abandoned and blighted properties more attractive for investors and municipal governments. If you have any questions regarding this update, or any other municipal law matters, please contact Andrew Miller, *protected email*, or Christian Miller, *protected email*, by email or phone at (717)...

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