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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.  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.

The Pennsylvania Supreme Court and General Assembly have created new rules on the amount of net loss carryover (NLC) a corporation can deduct.  This is an interesting instance where the Pennsylvania General Assembly has drafted a law trying to predict the Pennsylvania Supreme Court’s decision in the Nextel Communications case.  The General Assembly correctly predicted the outcome of the case, and so the new NLC provisions will become part of the new law.

The question is how much of a corporation’s loss may be carried over from prior years as a deduction against taxable income.  At the time of the case, the Pennsylvania Revenue Code provided that a corporation could carry over losses as deductions equal to the greater of 12.5%  of the corporation’s taxable income or $3 million (now those limits are $5 million or 30% of net income).  This produced a result where corporations with less than $3 million in net income could deduct all of their losses up to that $3 million cap.  Corporations with net income over $3 million could only deduct 12.5% of their net operating loss. The effect is that many corporations with income under $3 million paid no corporate taxes, while bigger corporations paid quite a bit.  The Supreme Court’s decision stated that 98.8% of Pennsylvania corporations did not pay Pennsylvania corporate income tax.  The Court decided that this was unconstitutional, as a violation of the Uniformity Clause that requires all taxes on the same class of subjects to be uniform.  Continue Reading New Pending Rules for Corporate Net Loss Carryover Deductions in Pennsylvania

I recently wrote about a trend in Pennsylvania case law that has permitted short-term vacation rentals, such as Airbnb, HomeAway, VRBO and others, in otherwise residential neighborhoods. In each of these cases, a homeowner rented out their single-family residential dwelling to vacationers, the municipality claimed the short-term rental was a violation of the Zoning ordinance, and the Pennsylvania Commonwealth Court said that the short-term rentals were still residential uses, not hotels or tourist homes.  All of these cases said that if the municipality wanted to prohibit short-term vacation rentals, they needed to specifically and unquestionably prohibit that use.  Continue Reading How Can Associations Deal With Renters – Either Short Or Long Term?

I had the pleasure of attending the 2017 general membership meeting for the BIA of Lancaster County at the Inn at Leola Village.  The featured speaker for the event was Dr. Robert Dietz, the chief economist for the National Association of Home Builders.  Dr. Dietz gave a detailed status report about the state of the building industry today, and some projections for the near future.  Most of Dr. Dietz’s discussion centered on one main theme:  there are not enough single family homes to meet today’s demand.  He spent time discussing why this is happening and the effects it could have over the next few years.  Continue Reading Notes from the 2017 Annual Building Industry Association County Meeting