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Whenever a farmer needs zoning approval for an agricultural project, they cannot leave any detail to chance.  If anyone opposes the project – be it the Zoning Hearing Board, the Board of Supervisors or a group of neighbors – anytime the farmer misses even the smallest detail, it could be grounds for getting the project denied.

In Berner v. Montour Township Zoning Hearing Board, the Zoning Hearing Board (twice) and the County Court of Common Pleas (twice) approved the farmer’s zoning application for a swine nursery barn. The Zoning Hearing Board in particular put a lot of faith in the work of Todd Rush from my friends at TeamAg.  Unfortunately, there was an organized group of neighbors that opposed the application.  The Commonwealth Court eventually ruled that the Zoning Hearing Board was wrong, and that the farmer should not have received the approval for the swine barn.

Most of the Commonwealth Court’s denial dealt with very small differences between the language of the Zoning Ordinance and the Nutrient Management Act.  The Zoning Ordinance required the applicant to “submit facility designs and legally binding assurances with performance guaranties” to ensure that the operations will be “conducted without adverse impact upon adjacent properties.”  Since this sentence appears to deal with the design of manure storage facilities and manure and wastewater management, the Zoning Hearing Board decided that these requirements were preempted by the Nutrient Management Act. After all, the NMA does not allow a municipality to regulate practices related to storage or application of manure or the construction or operation of manure storage facilities. Continue Reading Zoning for Agricultural Projects: Every Detail Matters

https://pixabay.com/en/walt-disney-tigger-tiger-character-238128/A recent homeowners association case pitted the association’s board against Tigger.  Yes, that Tigger – the trusty friend of Winnie the Pooh, Christopher Robin and the rest of the Hundred Acre Woods.  Actually, the problem was a mailbox that was shaped like Tigger.  In this case, the Association’s Architectural Guidelines bounced the Tigger mailbox right of the neighborhood.

The community in question had fairly typical Architectural Guidelines.  The Declaration of the community provided that the Board needed to approve all installation, construction or alterations of any “decks, fences, permanent play equipment, ledges, pools, storage tanks, accessory buildings, or any other structures on the lot.”  The Guidelines also provided that any proposed modifications need to be compatible with the architectural character and design of the community.  The list of items specifically requiring approval did not include “mailboxes.”

One of the unit owners replaced their standard mailbox with a new mailbox that looked like Tigger. The Association determined the mailbox violated the Architectural Review Guidelines and instructed the unit owners to remove it.  The unit owners refused, and five years of litigation ensued. Continue Reading Disney Character Mailbox Gets Bounced from Homeowners Association

Even though winter is (hopefully) almost over, it is a good time to talk about snow and plan ahead for next year.  Every winter, condominium and homeowner association boards all over Pennsylvania face the same question:  When do we need to call our snow removal contractors?  This is a divisive topic in the community.  Some people believe that no matter what the snow amount, the grounds crew should be there around the clock to remove the snow.  They may threaten to sue the Board if there are any slips and falls on Association property.  Board members want to know what is their legal duty to remove snow and ice from the Association’s roads, sidewalks, driveways, etc.?

The Association’s potential liability for slips and falls on an ice or snow-covered surface is covered by the “Hills and Ridges Doctrine.”  This says that the Association has to remove snow and ice within a reasonable time after the accumulation in order to prevent a dangerous condition.  An Association cannot allow snow and ice to accumulate in hills and ridges, if the accumulation is a danger to pedestrians.

The key to the Association’s responsibility is that it needs to act “reasonably.”  That does not mean immediately after the last snowflake falls.  In fact, Courts have found a landowner not liable for injury when snow fell overnight and the parking lot was not cleared by 7:45 the next morning.  The Courts have also said that the Association does not have to pre-treat sidewalks before a storm, or to salt or sand a parking lot during or immediately after an ice storm.  If there is snow everywhere, people are supposed to know that there may be slippery conditions.  Continue Reading When to Call the Snow Plows

Whenever a farmer needs zoning approval for an agricultural project, they cannot leave any detail to chance.  If anyone opposes the project – be it the Zoning Hearing Board, the Board of Supervisors or a group of neighbors – anytime the farmer misses even the smallest detail, it could be grounds for getting the project denied.

In Berner v. Montour Township Zoning Hearing Board, the Zoning Hearing Board (twice) and the County Court of Common Pleas (twice) approved the farmer’s zoning application for a swine nursery barn.  The Zoning Hearing Board in particular put a lot of faith in the work of Todd Rush from my friends at TeamAg. Unfortunately, there was an organized group of neighbors that opposed the application.  The Commonwealth Court eventually ruled that the Zoning Hearing Board was wrong, and that the farmer should not have received the approval for the swine barn.

Most of the Commonwealth Court’s denial dealt with very small differences between the language of the Zoning Ordinance and the Nutrient Management Act.  The Zoning Ordinance required the applicant to “submit facility designs and legally binding assurances with performance guaranties” to ensure that the operations will be “conducted without adverse impact upon adjacent properties.”  Since this sentence appears to deal with the design of manure storage facilities and manure and waste water management, the Zoning Hearing Board decided that these requirements were preempted by the Nutrient Management Act. After all, the NMA does not allow a municipality to regulate practices related to storage or application of manure or the construction or operation of manure storage facilities.

On a closer look, however, the Court decided that the preemption only applies to operations where a Nutrient Management Plan is required.  A NMP is only required for a concentrated animal operation or a concentrated animal feeding operation – a CAO or a CAFO. In this case, the use was neither a CAO nor a CAFO, so the farm only needed a Manure Management Plan, and not a NMP.  Because a NMP was not required, the preemption in the Nutrient Management Act did  not apply, and the Zoning Ordinance could require anything that it wanted. Continue Reading Zoning for Agricultural Projects: Every Detail Matters

We have spent a month trying to study The Tax Cuts and Jobs Act, reading analyses of the new tax laws, and talking to accountants, bankers and business owners about what the laws really mean. The most important thing that I have learned is that there are dozens of provisions that may be important to you.  Some of these changes overlap – you lose a deduction for one item, but gain on your standardized deduction.  Your top five things to know are going to be different from someone else’s top five, depending on their income, occupation, marital status and other factors.  It is nearly impossible to write a top five or even a top ten list.  The advice that I am giving to everyone I know is to pay attention to all of their finances, and ask lots of questions. Continue Reading The Top Five Things to Know About the New Tax Laws

Yes, this is a tongue twister and I’ll be impressed if you can say it five times fast, but parking is one of the biggest problems that community associations face.  No matter how the developer sets up the community, sooner or later there are either too few parking spaces, people parking where they don’t belong or parking vehicles that nobody wants to see out their front windows.  Too often developers don’t think about these issues or, if they do think about them, do not have a way to come up with a perfect solution.  The same is true of association boards.  Either they do not want to consider a plan to get a handle on parking problems or, if they do, their parking regulations don’t help the problem.

The lead article in the CAI Common Ground for September/October 2017 is titled “Park That Thought.”  It discusses some of the problems that associations have with parking.  Unfortunately, the article doesn’t give many answers on how to solve the problems.  While there might not be a perfect solution to parking, some advance planning by both the developer and the association can help reduce parking problems. Continue Reading Proper Planning Prevents Parking Problems

A recent blog post from the Pennsylvania and Delaware Valley Chapter of the Community Associations Institute discussed the danger of condominium and homeowners’ associations requiring criminal background checks for renters of units.  In the blog post, Marshal Granor discusses a Department of Housing and Urban Development guidance paper on this subject.  HUD warns that most criminal background checks by housing providers have a discriminatory impact.  This means that the criminal background check policy is very likely a violation of the Fair Housing Act.  This violation of the Fair Housing Act could cause real legal trouble for associations.

The CAI blog post and the HUD guidance follows exactly the advice I have given association boards for years.  If an association requires renters to submit criminal background checks to the board for board approval, this requirement could very well be a Fair Housing Act violation.  Even though the policy is neutral, the actual effects are likely to affect minorities more than other races.  This is what the HUD calls a “disparate impact.”  And, even if the Association means well, this “disparate impact” is a Fair Housing Act violation.  Continue Reading The Danger of Using Criminal Background Checks to Screen Tenants

LNP recently wrote about the rapid rise in organic produce across Pennsylvania.  As it is with most other agricultural production, Lancaster County is leading the way in this increase.  The article says that the sale of certified organic products in Pennsylvania doubled in 2016.  Organic products accounted for $660 million, or about 9% of all agricultural products in Pennsylvania.  This is already a significant portion of Pennsylvania’s agriculture, and it will only continue to grow.  According to the LNP article one in every four organic operations in Pennsylvania is located in Lancaster County.

Part of the article focuses on Ebenezer Groceries in Ephrata and its owner, Jonah Dodd.  Ebenezer Groceries is a discount grocery store.  But Jonah has dedicated a large portion of his store to the sale of organic produce, even though organic produce costs a little more than his other items. Grocery stores like Whole Foods and Wegmans will soon be established in Lancaster County.  These stores have committed to featuring local produce, including certified organic produce.  It is telling that the demand for organic products comes from a wide range of shoppers, from more expensive stores like Whole Foods to discount stores like Ebenezer Groceries.  This tells me that the desire for organic produce, meat, eggs, dairy, etc., is not a passing fancy.  This demand is only going to increase, and Lancaster County farmers will continue to lead the way in this area.

Aaron Marines is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Commercial Real EstateLand Use, Land Planning and Zoning matters.

The Historic Preservation Trust of Lancaster County recently honored its 2017 recipients of the C. Emlen Urban Awards.  I am proud to say that The Press Building in Lancaster City won an award for adaptive reuse.  Congratulations to The Drogaris Companies, the developer of the building, and to Tippetts/Weaver, the project architects, as well as to all of the other professionals and builders involved with the project. We have been involved in the project for nearly all of its history, and I have had a courtside seat for most of it.

The Press Building is one of my favorite kinds of projects. I love when a historic or rundown property is rescued. The building was built in the early 1900s as a cigar factory and warehouse.  From 1922 until 1992, the Lancaster Press Company used the building for printing.  The building sat vacant from 1992 until it was adapted for its current use.  Today, the building has been refurbished to house 48 residential condominium units.  In addition, the ground floor of the building is set to house a fine dining restaurant and bar.  Continue Reading The Press Building and Drogaris Companies Honored by Lancaster Historic Preservation Trust

We have written a lot of articles about the countywide property tax reassessment covering the basics of residential and commercial assessment appeals and what the new assessed values will mean to property owners.  Now that most of the appeals have been processed, the county and each school district and municipality knows the total assessed value of property.  They will all set their tax millage rates before the end of the year.  All of this coming together will allow you to calculate your total property tax for 2018.

I had the opportunity to work with a few commercial property owners who decided to appeal their assessments.  In these cases, we were able to get the total assessed value of the properties cut almost in half.  This is going to save these particular landowners around $20,000 per year in property taxes.  Every case is different, and I cannot guarantee that anyone would be successful in a property tax appeal.  There were, however, major similarities in the properties that received big adjustments in their assessed value.  These were:

  1. There was something unusual about the property that the county did not take into consideration; and
  1. The property owners had a good appraisal report to support their appeal.

With both of these things present, a commercial property owner has a good chance at getting their assessment reduced.

So what happens if you decided not to pursue a property tax appeal this summer?  You are able to appeal your assessment every year.  There is a short window of time between when taxes are sent out and the tax appeal deadline of August 1.  This does not mean you have to wait until next summer to think about a tax assessment appeal.  If you believe that the assessment of your property is incorrect, we can help to evaluate and pursue an appeal.

Aaron Marines is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Commercial and Residential Real Estate, Land Use, Land Planning and Zoning matters.