Pay Up or Else

Since its passage seven years ago, the Right-To-Know (RTK) Law has spawned a ton of lawsuits interpreting its provisions.  The latest lawsuit involves a fight involving a request to the Department of Education for records between the former Secretary of Education and Penn State Board members and administrators over the Gerald Sandusky investigation. Pennsylvania Department of Education v. Bagwell  (No. 1617 C.D. 2014, Pa Commonwealth Court, filed January 29, 2016.  This is a consolidated appeal with Pennsylvania State University v. Bagwell, (No. 1729 C.D. 2014)).

The fight in this appeal is when can an agency demand prepayment before releasing records under the RTK law.  The RTK law requires that an agency respond within five business days to a request.  Within that five-day period, an agency can either grant the request, deny the request, or invoke the thirty-day extension period.   If the agency invokes the thirty-day extension, the notice “shall” include a statement that the request is being reviewed, the reason for the review, a reasonable date when a response will be provided and an estimate of the applicable fees owed when the records become available.  The RTK law also provides that if the estimate exceeds $100.00, the agency can demand prepayment before releasing the records.

The Department in this case sent a response within the five days that it needed the additional thirty days to conduct a legal review of the records, but did not contain an estimate of fees.  On the final day of the extension period, the Department sent another notice to the requester that it located 644 pages of records, but that its response is not final.  The Department stated that it reserved the right in its final response  to assert any exceptions under the RTK law, and that the requester had to pay $338.88 before the Department would provide access to the records since the estimate exceeded $100.00.  The Department stated that once the fees were paid, it would then assert any applicable exceptions under the RTK law in its final response.

The requester appealed the Department’s response, and the Office of Open Records (OOR) ruled that the Department waived its ability to seek prepayment because it did not include a fee estimate in the original five-day notice.  The OOR also ruled that the Department could not claim exemptions beyond the thirty-day period,

The Commonwealth Court first addressed the prepayment issue.  Although the RTK law states that the five-day notice shall include an estimate of fees, this really means that when the thirty-day extension is invoked, the notice has to include a reasonable future date that a response and an estimate of fees is expected to be provided.  This interpretation makes sense because an agency cannot give an estimate of fees until after it has had an opportunity to review the records to determine which records are public and which are subject to an exemption.  The Commonwealth Court found that the Department did not waive its right to assess fees.

However, the Commonwealth Court noted that the fees assessed by the Department were for processing the request, and not just for copy costs.   The Department stated that it had not reviewed the records to determine which were exempt, but it was charging the requester for having to make copies of the records in order for the Department to conduct the review,  The Commonwealth Court held that this is not allowed under the RTK law.  An agency can only charge for making copies of records that it determines to be public after it does its review,

The Commonwealth Court also held that thirty days means thirty days to issue a response.  An agency cannot reserve its reasons for withholding or redacting records beyond the thirty-day period (unless the requester agrees).

Forever and Ever

Municipalities have a tough time eliminating nonconforming uses.  Although a nonconforming use is not supposed to last forever, it almost seems impossible to get rid of them. The case of Itama Development Associates v. Zoning Hearing Board of Rostraver Township et al., (Pa. Commonwealth Ct., filed January 6, 2016) is another example of how hard it can be to eliminate a nonconforming use.

In this case, the school district owned a parcel of land in the Township that had been used by the school district as a four-bay garage and underground diesel fuel tank. The school district used the garage for fueling, parking and routine maintenance of its school buses.  At some point, the zoning changed that made the school district’s use nonconforming.  In 2009, the school district purchased another property for the storage of its school buses, but continued to use the old facility for refueling and maintenance of vehicles.  In 2013, Itama purchased the property from the school district, and agreed to allow the school district to continue using the property as a bus garage and refueling station.  In 2014, Itama applied for an occupancy permit proposing a continuation of the non-conforming use as a vehicle garage. The Township’s Zoning Officer rejected the application, finding that the School District had abandoned its nonconforming use back in 2009.

Itama appealed to the zoning hearing board arguing that the proposed use of the garage by its prospective tenant would be virtually identical to that of the school bus garage. The zoning hearing board approved Itama’s request to continue the nonconforming use of a vehicle garage without limitation. The Board also sent Itama a letter approving its occupancy permit. Shortly after the Board’s approval, Itama’s prospective tenant withdrew, and Itama leased the property to a new tenant, Minuteman Environmental Services. Minuteman was a commercial trucking operation that served the natural gas drilling industry.

The township then started receiving complaints from nearby residents. The zoning officer issued enforcement notices to Itama and Minuteman, stating that no zoning or occupancy permits had been approved for the storage of Minuteman’s containers and trucks on the property site, and that they must cease and desist from using the property in violation of the zoning ordinance.  Itama appealed again, contending that Minuteman’s operations were the same as those proposed by the initial prospective tenant.

At the zoning hearing, the zoning officer testified that his understanding of the school district’s legal nonconforming use had been impermissibly expanded.  Minuteman was using the property to store roll off containers containing residual waste from drilling activity, empty tanks and other equipment.  Neighboring landowners also testified that in contrast to the school district, Minuteman’s operations occurred at all times of the day, and horns and alarms sounded all the time.  The zoning hearing board held that the school district abandoned its lawful nonconforming use of the property in 2009, more than 12 months before Minuteman began using the Property.  This abandonment by the school district precluded Itama or any tenant from resuming that use years later.  The Board further held that Minuteman’s uses of the Property constituted an impermissible change in the legal nonconforming uses.  As a result of the Board’s findings, it denied Itama’s appeal of the zoning officer’s notice and cease and desist order.  Itama appealed to the trial court, which found that Minuteman’s extended parking of trucks, storage of roll-off boxes, tanks and other containers, along with construction of a containment area, were not similar uses to those of the school district. The trial court denied Itama’s land use appeal.

Upon appeal to the Commonwealth Court, Itama argued that: (1) approval of its occupancy permit formed the law of the case which bound the zoning hearing board; (2) the zoning hearing board erred in determining that the school district’s lawful nonconforming use of the property as a vehicle garage had been abandoned; and (3) the zoning hearing board erred in determining that use of the property constituted an unlawful change in the prior lawful nonconforming use by the school district.

The Commonwealth Court disagreed that the law of the case doctrine was applicable because it was impossible to discern which issues of fact were essential to the zoning hearing board’s first decision to approve a permit for the continuation of non-conforming use as a vehicle garage.  The court could not say whether the zoning board’s first decision approved the parking and storage of vehicles for all time so that the Board was estopped from considering in the second proceeding as to whether such uses had been abandoned.

Second, the Commonwealth Court disagreed with the trial court’s conclusion that the Township carried its burden of proof of an intent to abandon. The zoning ordinance states that nonconforming use shall be considered abandoned when it has been discontinued for a period of 12 months.  The zoning hearing board found that the school district abandoned the use in 2009.  However, Itama produced evidence that clearly showed the school district continued to use the Property as a bus garage and fueling station through 2013, which was less than 9 months before Itama applied for its occupancy permit.  The Township failed to prove the School District’s actual abandonment or intent to abandon the property as a vehicle garage.

Third, the Commonwealth Court disagreed that Minuteman’s use of the property constituted a change in the prior legal nonconforming use.  To qualify as a continuation of a nonconforming use, the current use must be “sufficiently similar to the nonconforming use as not to constitute a new or different use.”  Under the doctrine of natural expansion, a mere increase in the intensity of a use does not justify a finding of a new or different use.  Minuteman’s incidental storage of roll-off boxes and other containers was merely an increase in the intensity of the prior use.  Since it was not wholly dissimilar to the school district’s vehicle garage, the new use was not an impermissible expansion of the prior nonconforming use.

The take away from this case is to make sure that there is written documentation of the extent of a nonconforming use, and any changes to that nonconforming use, so that the municipality can make a strong case as to when a prior nonconforming use has been sufficiently changed to constitute a new or different use.

Good Faith vs. Bad Faith Review

The recent case of Honey Brook Estates v. Board of Supervisors of Honey Brook Township, (Pa. Commonwealth Court, filed January 13, 2016), is an example of the race that can ensue when a municipality wants to change zoning and a developer wants to build.  In this case, the Township lost the race.

Honey Brook Estates (Developer) purchased a parcel of land located in Honey Brook Township’s residential district.  Approximately five months later, the Township planned to amend the zoning ordinance to rezone most of the Developer’s land from residential to agricultural.  The day before a public hearing on the proposed zoning amendment was scheduled, the Developer submitted a preliminary subdivision and land development plan to subdivide the property into 3 lots for single family and townhome style homes.  On the one hand, if a developer files a plan before a zoning amendment is adopted, the plan has to be reviewed under the old ordinance.  On the other hand, if a plan does not meet the filing requirements for a plan to be submitted, a municipality can reject the plan as improperly filed.  If the zoning amendment is adopted before the plan is “duly filed,” the zoning change stands.   As a result, the race is on.

One week after the preliminary plan was submitted by the Developer, the Township Engineer ruled that the plan was incomplete, and would not be forwarded to the Planning Commission.  The Township Engineer identified five omissions from the Developer’s preliminary plan.  Ten days later, the Developer submitted an amended preliminary plan that addressed each of the five items addressed by the Township Engineer.  Five days after that, the Township adopted the ordinance that implemented the preservation of open space and set a limitation on further development.  The amendment rezoned most of Developer’s property from residential to agricultural, and eliminated the Developer’s ability to build residential units.

Five days after the adoption of the zoning changes, the Township Manager rejected Developer’s amended preliminary plan setting forth three reasons for doing so.  The Developer objected to the denial of the amended preliminary plan stating that the Township was imposing requirements upon the Developer that had never been imposed on any other applicant.  Approximately one week later, the Township Solicitor stated that in the past the Township has been far less technical in its objections to completeness of plans than it was being toward Developer’s plan.

Shortly after the Township Solicitor’s comments, the Township forwarded Developer’s preliminary plan to the Planning Commission for review without informing the Developer.  The Developer never appeared at the Planning Commission meeting, and the Planning Commission disapproved the Developer’s amended preliminary plan.  Approximately six days after the Planning Commission’s vote to disapprove Developer’s plan, Developer responded to the Township Manager’s comments, and submitted additional supporting documents.  The Township Manager returned the supplemented materials stating that the Planning Commission already had recommended that the Township disapprove the Developer’s plan.  The Board of Supervisors then voted to reject the Developer’s amended preliminary plan.  Neither the Planning Commission nor the Board of Supervisors received any of the supplemental information.

The Developer filed a land use appeal challenging the Township’s rejection of the amended preliminary plan.  Developer asserted that irregularities in the Township’s review of Developer’s plan deprived it of the opportunity to have the plan reviewed objectively on its merits, and that the Township acted in bad faith.  The lower court rejected the Developer’s argument that its preliminary plan was rejected in bad faith, noting that denial of approval for a plan can stand if supported by any one of the reasons set forth in the denial.  The trial court further asserted that a wholesale modification of the preliminary plan would have been necessary in order to satisfy the ordinances in existence on the date upon which the Developer’s application was first presented to the Township.

The Commonwealth Court reversed the lower court’s decision, and remanded the matter to the Board of Supervisors with instructions to review the Developer’s amended preliminary plan, provide input on technical requirements and ordinance interpretation, identify objections and provide the Developer with the opportunity to respond to the objections.

The Commonwealth Court found that a municipality’s duty of a good faith review includes discussing matters involving technical requirements or ordinance interpretation with an applicant, and providing an applicant a reasonable opportunity either to respond to objections or to modify the plan where there has been a misunderstanding or difference of opinion. The record showed that the Township rejected the Developer’s preliminary plan in both its original and amended form without giving the Developer the opportunity to confer. Further, the Township sent the amended plan to the Planning Commission without informing the Developer, or giving the Developer an opportunity to present supplemental information. Since the evidence established that the plan was rejected without giving the Developer the opportunity to respond,  the Commonwealth Court held that this constituted bad faith on the part of the Township.  The Commonwealth Court also agreed with the Developer that each of the reasons cited for denial were easily correctable, and not worthy of deeming Developer’s preliminary plan defective on its face.