Proper Will Drafting Helps Avoid Unintended Consequences
As with any legal document, the failure to adequately draft and prepare a will can result in unintended consequences. This principle is illustrated in the Estate of George Zeevering, PICS Case No. 13-2726 (Pa. Super. Sept. 26, 2013). In Zeevering, the Pennsylvania Superior Court upheld the lower court’s decision that the decedent’s estate would partially be distributed pursuant to intestate laws because the decedent’s will failed to dispose of the entire estate.
The will in question was hand-drafted by the decedent without the aid of legal counsel. The will did not dispose of the decedent’s entire estate, mainly because no residuary, or “catch-all” clause, was included. Decedent had five children, but only named two of the five children in the hand-written will. While the will provided specific gifts for two of the children, it failed to completely dispose of decedent’s property, including a retirement account valued at over $200,000.
The children named in the will argued that decedent’s failure to name the other three children illustrated decedent’s intent to effectively disinherit them as an intentional omission. The court reiterated that intestate laws are only bypassed when a will disposes of an entire estate, and that assumptions cannot be adopted to reform a will. Therefore the court, in rejecting the two named children’s argument, ruled that the residual portion of decedent’s estate not disposed of by the will passed equally to all five of decedent’s children.
Although the concept of a will is straightforward and simple to many, various legal components and issues must be reviewed and may be involved. In order to avoid unintended consequences, legal counsel should always be retained when preparing an estate plan and drafting a will. To draft a will or generally discuss estate planning issues and questions, please contact Christian Miller at cmiller@mpl-law.com or (717) 845-1524 ext. 121.
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Non-Residential Development and Recreational Land Dedication or Recreation Fees
Sec. 503(11) of the Pennsylvania Municipalities Planning Code (“MPC”) permits municipalities to require, through its subdivision and land development ordinance, subdividers and/or land developers to dedicate land, or a recreation fee in lieu of land dedication, to the municipality for the purpose of providing recreational space. An evolving issue surrounding these dedications or recreation fees is whether they are applicable to non-residential uses, such as commercial and industrial, since the MPC is silent on non-residential development projects concerning recreation fees.
A panel of the Pennsylvania Commonwealth Court recently addressed this issue for the first time in In Re Appeal of Gibraltar Rock, Inc., where Gibraltar Rock, Inc. (“Gibraltar”) sought to development 223 acres as an industrial quarry site. Gibraltar was required to dedicate 80 acres for recreation purposes or pay approximately $2,100,000 in lieu of dedication. Gibraltar challenged the validity of the provision as it applied to an industrial use.
The panel found the record failed to establish any reasonable relationship between the land dedication or recreation fees and the impact of the quarry. No evidence was provided establishing a connection between employees and recreational needs, let alone 80 acres or $2,100,000 for only 18-20 employees. For this reason, the land dedication and recreation fee was held inapplicable as to Gibraltar. The panel limited its decision to the facts of the case and noted that a question still exists as to whether land dedication or recreation fees may be assessed on a non-residential development in future cases.
If you have a question regarding subdivision and land development, or general municipal law, please contact Christian Miller at cmiller@mpl-law.com or (717) 845-1524 ext. 121.
Legislative Update on Public Notice Modernization
In an effort to modernize legally required public notices for the modern internet age, Senate Bill 733 proposes to give municipalities, municipal authorities, and school districts the option to publish legal notices on a website instead of in a newspaper of general circulation. The bill, previously introduced as Senate Bill 804 of the 2011-12 Legislative Session, would amend Title 45 (Legal Notices) of the Pennsylvania consolidated statutes. All legal notices would be included, such as budgets, public meetings, bid requests and openings, and ordinance adoption.
SB 733 would require interested entities to adopt a resolution or enact an ordinance opting to electronically publish legal notices. Such enabling resolution or ordinance must state which notices may be electronically published and provide the official website where such notices will be posted. The local government must additionally set up a global emailing list, and DCED must maintain a list of all entities using electronic advertising with related links on its website to each entities’ public notice page.
The bill provides two main advantages to local government entities and their residents: (i) it greatly reduces the high costs of advertisement by providing a quick, easy and affordable method to publish notices, and (ii) provides a uniform forum to easily access notices in an age with fewer daily newspapers. SB 733 passed the Senate Local Government committee (11-0) in October and is currently in the Senate Appropriations committee.
Check back for updates on SB 733 and for other legislative updates concerning municipal law. Questions or comments on this article or general municipal law can be directed to Christian Miller at cmiller@mpl-law.com or (717) 845-1524 ext. 121.
Second DUI Offenses and Target 25
Since the beginning of 2013, York County is now imposing special conditions when you are arrested for a second offense DUI. Rather than being released after your arrest, as you are with a first offense DUI and receiving your charges in the mail, with a second offense DUI you are subject to Target 25.
Target 25 relative to second offense DUI offenses result in you being detained until you see a district justice so that bail can be set. As part of your bail conditions, you will be required to wear an alcohol monitor and be on supervised bail through the probation department. Those conditions will remain until your case is resolved.
Second DUI offenses in York County must be taken very seriously. Check back for periodic updates regarding DUI and related criminal law. Questions or comments on this article or general criminal law can be directed to Richard Robinson at rrobinson@mpl-law.com or (717) 845-1524.
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Legislative Update on Mechanic’s Lien Law of 1963
On July 9, 2014, Governor Corbett signed into law Senate Bill 145 (the “Bill”) providing amendments to the current Pennsylvania Mechanic’s Lien Law of 1963. Notably, the Bill provides relief for residential owners from mechanic’s liens on their residential property filed by subcontractors and/or material suppliers where the contractor was paid in full. The Bill does not change the ability to lien improvements to non-residential property (including investment properties) or the ability for a contractor to lien a residential property for lack of payment.
The Bill specifically states that a subcontractor, which definition includes any material provider or supplier, does not have the right to put a lien on a residential property where an improvement has been completed and the owner has paid the contract price to the contractor. In the event a subcontractor liens a residential property for lack of payment, the Bill permits the owner to discharge such lien by filing a petition or motion with the court and providing adequate proof the contract price was paid in full to the contractor. Where only a portion of the contract price was paid, the owner may still petition the court to have the subcontractor’s lien reduced to the unpaid portion of the total contract price. The Bill does not provide any penalties for subcontractors that file mechanic’s liens on residential properties where the owner has paid the contractor in full, likely because the subcontractor has no way to know if payment has been made.
Check back for updates on SB 145 and for other legislative updates concerning business and construction law. Questions or comments on this article or general construction law can be directed to Christian Miller at cmiller@mpl-law.com or (717) 845-1524 ext. 121.
Pennsylvania Expands Use of Recreational Fees by Municipalities
On September 24, 2014, Governor Corbett signed House Bill No. 1052, also known as Act 135 of 2014, into law expanding the use of recreational fees collected by municipalities. The Act amends Section 503(11) of the Municipalities Planning Code, which previously was silent as to whether recreational fees collected in lieu of dedication of recreational land could be used for operating or maintaining park or recreational facilities outside the development on which the fees are exacted. The amendment now clearly provides that recreational fees may be used for “providing, acquiring, operating or maintaining park or recreational facilities reasonably accessible to the development” from which the fees are exacted. Although the use of recreational fees for operating and maintaining parks and recreational facilities outside a development was never expressly prohibited by the language of the MPC, many practitioners had interpreted the lack of express permission as a limitation to use of recreational fee money for only capital expansion of parks and recreational facilities within the development on which the fees were exacted. The amendment now clarifies and expressly allows an expanded interpretation on the use of recreational fees.
The amendment also removes the requirement that municipalities utilize recreational fee money paid to them within three (3) years from the date of payment. Previously, the MPC allowed a developer to recoup recreational fee money if not used within this three (3) year period. Now, the amendment only allows a developer to recoup recreational fees paid if used for a purpose other than the purposes set forth in Section 503(11). Many municipalities were previously challenged to spend recreational fees collected within the developments from which the fees were exacted. Many times small parks or playgrounds were constructed without a viable plan or source for funding the operation and maintenance of the facilities. This amendment to the MPC should allow for a more regionalized approach to parks and recreation facilities and also provide a stream of income that can clearly be spent operating and maintaining the parks following construction.
Please contact Christian Miller at (717) 845-1524, or cmiller@mpl-law.com, with questions regarding this topic or any other municipal matters that relate to townships, boroughs, cities, or authorities.