How can municipalities control the AirBnB trend within their neighborhoods?

The online marketplace for short term lodging is proliferating well beyond Jersey Shore and Poconos rentals.  AirBnB’s are becoming a popular trend in suburban Philadelphia and in some townships, an unwanted land use.  Since this trend started, the municipal and zoning lawyer in me has wondered how this seemingly unregulated ability to rent out your house for a few days complies with local zoning and other township codes.  Well the Pennsylvania Supreme Court recently agreed to hear a case that might provide some new insight.

In late February 2018, the Pennsylvania Supreme Court agreed to review the Commonwealth Court’s June 2017 decision in Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd.[1] In the case, Hamilton Township in Monroe County issued a violation notice to a property owner stating that the owner’s use of the property in question for short-term rentals violated the township’s zoning code.  The property was in a residential zoning district in which only single-family residential use was permitted.  The Township’s zoning hearing board, and then the Court of Common Pleas, agreed that the use violated the zoning ordinance, finding that the owner was not operating a single-family dwelling, but rather a commercial short-term transient lodging business motivated by profit.

On appeal, the Commonwealth Court reversed those decisions, finding that the Township’s violation notice was an attempt to expand the language of the Township zoning ordinance to impose an unwritten policy against short-term rentals.  The Commonwealth Court analyzed the defined terms in the applicable ordinance sections and concluded that the Township was reading undefined terms into the ordinance language, when the law requires that any ambiguity in the written language be interpreted in favor of the property owner.  The Commonwealth Court also rejected the Township’s argument that short-term transient rentals threaten the health, safety and welfare of single-family residential neighborhoods, essentially explaining that neighborhoods sometimes have bad neighbors regardless of whether they are renters or owners.  The Pennsylvania Supreme Court will now review the Commonwealth Court’s decision, which could provide some insight on how local zoning codes may be interpreted with respect to these evermore common short-term rentals of single-family homes.

So what can municipalities learn from the analysis provided by the Courts so far?  The devil is in the details.  The Court’s focus on the defined and undefined terms in the applicable zoning ordinance is ultimately what controlled the outcome of the Slice of Life case and others that preceded it.  Recognizing that online services such as AirBnB have expanded the possible uses of single-family dwellings, the Courts have pointed out that townships wanting to control these new uses must do so by amending their zoning ordinances, rather than attempting to restrict the uses through broad interpretations of existing language.  If municipalities feel that short-term rentals pose a threat to their neighborhoods, they should review their ordinances and make the necessary changes to restrict such uses to certain zoning districts.  In the coming months, the Pennsylvania Supreme Court should provide some guidance to municipalities on what types of changes are necessary in order to properly address these emerging uses within their communities.

If you have any questions about zoning ordinances, please contact Mark R. Fischer, Jr. at 610-275-0700 or mfischer@highswartz.com.  Our Bucks County and Montgomery County Municipal & Government Law attorneys have knowledge and experience in all facets of zoning issues.

[1] 164 A.3d 633 (Pa. Commw. Ct. 2017).

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Proceed with Caution: Parental Alienation – When the Accuser Becomes the Accused

Parental alienation is one of the most complex custody issues our clients face.  When a co-parent systematically manipulates your child to reject you, it is beyond terrifying. If the behavior is severe, it can have irreversible negative effects on your child’s psyche and development.However, before  running into court wielding your accusations of parental alienation, there are a few things to stop and consider.  If not, your claim of parental alienation  might just backfire on you.  To understand how this is possible, it is important to look at the history parental alienation.The term “Parental Alienation Syndrome” was first coined in the 1980s, by Dr. Richard Gardner.  The issue of parental alienation then quickly inundated custody cases across the country.  Judges began to use the concept of parental alienation to make rulings in favor of the alienated (a.k.a. rejected) parent.   As the years progressed, however, the theory of parental alienation began to lose support.It turns out that Dr. Richard Gardner was not as credible as he appeared.  Despite Dr. Gardner’s financial success in promoting the theory of parental alienation syndrome, through self publishing books and testifying as a paid expert, it became clear that his theory was based only on his clinical observations and not on scientific or peer reviewed data.  Dr. Gardner then began concocting numerous other controversial and strange theories before his death by suicide in 2003.  Such revelations about Dr. Gardner created skepticism as to the concept of parental alienation as a whole.  As a result, many judges have jumped off the “parental alienation” bandwagon and are far less willing to specifically rule that a parent has engaged in this practice.The law provides that parental alienation, a psychological theory, must be “generally accepted” by “the relevant scientific community” before it can be used in court.  Herein lies another challenge for custody litigants.  Dr. Gardner’s parental alienation theory has drawn wide criticism from the scientific community and mental health professionals. Several of the large medical and mental health associations do not recognize parental alienation, including the American Psychiatric Association and the American Medical Association. Parental alienation is not classified in the DSM-5 (the current diagnostics manual of mental disorders widely recognized in the medical field).Additionally, most proponents of parental alienation believe the only effective remedy is for the alienating parent- the parent found to have turned the children against the other parent- to have no contact whatsoever with the child for at least 90 days.  This is a steep remedy, especially in Pennsylvania where even incarcerated parents can request visitation with their children. Due to the contentious nature of custody cases, judges can become suspicious of the accuser parent’s truthfulness or motives, concluding that the accuser parent is trying anything to win the custody case, eliminate all contact with the other parent, or avoid paying support.It is no surprise that parental alienation is among the most complex issues in a custody matter.  Nevertheless, despite mental health professionals’ skepticism and judges’ reluctance, the issue of parental alienation still exists.  Well-educated, well-respected mental health professionals are still researching and advancing the theory of parental alienation, although even these experts caution that parental alienation” occurs in less than 7% of custody cases.  Alleging and convincing a judge that parental alienation is occurring in your case is a delicate matter.  Because the term “parental alienation” is so problematic, the custody process may benefit from pointing out dysfunctional parent behavior without specifically citing “parental alienation.”  Such terms as negative coaching or influencing, inability to cooperate, or unwillingness to co-parent may be more useful.  It is better to focus on the well defined diagnoses recognized by mental health professionals and their research than to try to use the term “parental alienation” to deflect the parties and court from the real facts.  As such, it is best not to raise accusations of parental alienation without first speaking with a qualified custody attorney who can help to assess the risks and provide a strategy in raising the parental alienation issue.If you are facing issues in a custody matter or have any questions on child custody, please contact Brittany Yurchyk at 610-275-0700 or byurchyk@highswartz.com.  Our Bucks County and Montgomery County Family Law attorneys have knowledge and experience in all facets of custody issues.

Philadelphia Media Network Names High Swartz a Winner of the Delaware Valley 2018 Top Workplaces Award

High Swartz has been awarded a 2018 Top Workplaces honor by Philadelphia Media Network. The list is based solely on employee feedback gathered through a third-party survey administered by research partner Energage, LLC (formerly WorkplaceDynamics), a leading provider of technology-based employee engagement tools. The anonymous survey measures several aspects of workplace culture, including alignment, execution, and connection, just to name a few.“Top Workplaces is more than just recognition,” said Doug Claffey, CEO of Energage. “Our research shows organizations that earn the award attract better talent, experience lower turnover, and are better equipped to deliver bottom-line results. Their leaders prioritize and carefully craft a healthy workplace culture that supports employee engagement.”“We are pleased to be named a Top Workplace for the second year in a row,” said Joel D. Rosen, Managing Partner. “We believe that our firm’s success is because of our employees, our culture and our ability to attract and maintain talented professionals with a healthy work/life balance and a strong sense of giving back to our communities.”“Becoming a Top Workplace isn’t something organizations can buy,” Claffey said. “It’s an achievement organizations have worked for and a distinction that gives them a competitive advantage. It’s a big deal.”About High Swartz LLP High Swartz is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.About Energage, LLC Headquartered in Exton, Pa., Energage (formerly known as WorkplaceDynamics) is a leading provider of technology-based employee engagement tools that help leaders to unlock potential, inspire performance, and achieve amazing results within their organizations. The research partner behind the Top Workplaces program, Energage has surveyed more than 47,000 organizations representing well over 16 million employees in the United States.

William F. Kerr, Jr. presented at the Lehigh Valley Regional Housing Summit

William F. Kerr, Jr. presented at the Regional Housing Summit on Housing Challenges and Opportunities held on February 8th.He was part of a panel discussion that focused on housing affordability and how national and state models can be applicable in the Lehigh Valley. The discussion included various approaches being used to increase the availability of affordable housing locally and nationally.  Mr. Kerr discussed the use of inclusionary and incentive zoning as tools for municipalities and developers interested in expanding affordable housing opportunities in specific communities.William F. Kerr, Jr. has more than 22 years of experience in the area of real estate law, focusing on land use, land development and zoning; real estate taxation, real estate transactions; real estate title issues, eminent domain; real estate valuation, realty transfer tax  and real estate code compliance. Mr. Kerr represents developers, property managers and property owners of single and multi-family residential, hotel, shopping center, commercial, industrial, golf course, day-care, prison, utility, cell tower and airport properties. He has successfully represented these clients, in Philadelphia and throughout eastern Pennsylvania, in obtaining various development, subdivision, zoning, and related approvals. Mr. Kerr also has extensive experience in successfully pursuing real estate tax assessment appeals, nonprofit real estate tax exemptions, preferential Agricultural Assessments and real estate tax abatements in various counties throughout eastern Pennsylvania. He has significant expertise in real estate tax assessment, land development and zoning, and related  issues for affordable housing properties.High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Private Short and Long Term Disability Benefits: Use Them If You Have Them

A person who is disabled may be able to avail themselves of private short or long term disability benefits.   Not everyone has access to short or long term disability benefits.  Unlike Social Security benefits, short and long term disability benefits are based on a private contract of insurance.  Usually, short and long term disability benefits are obtained either as a group benefit of employment or are individually purchased from an insurer on the open market in a manner similar to obtaining a life insurance policy.   Policies obtained through an employer are often paid for by the employer, while private policies are paid for by the individual.  If you do not have this coverage through your job or a private insurance policy, then short or long term disability benefits may not be available to you.Disability benefits are designed to provide some wage replacement during the time period a person is disabled due to illness, injury, or a combination of these factors.  Generally, any type of disability is covered, regardless of cause.  Unlike Workers’ Compensation benefits, a short or long term disability claimant does not generally have to prove that her or his disability stems from a work-related cause.Short and long term disability benefits can be provided separately or in conjunction with one another.  The usual practice is that disability that lasts less than six months is considered to be short term, while disability lasting longer than six months is long term.  Often, these coverages are provided together, so that disability that lasts longer than the short-term period becomes a claim for long term disability after the short term period expires.As these coverages are governed by contracts, it is highly recommended that a potential claimant for short or long term disability insurance obtain a copy of that contract, or at least a copy of the Summary Plan Description, from their employer or insurer.  Each policy can be different, and these policies often have short filing deadlines or brief appeal periods which must be timely complied with or valuable rights can be lost.   Know what you are dealing with and take steps to protect your rights by getting a copy of that insurance contract.Most policies that combine short and long term disability benefits pay a percentage of your wages lost to disability based on the number of weeks the claimant is out of work.  Usually, short term disability benefits begin as a high percentage of your income, sometimes as high as 90%.  As time goes on, and generally by the time long term disability benefits commence, the percentage of pre-disability income provided can drop, sometimes to 50% of pre-disability earnings.  How your pre-disability income is calculated and the percentage of it you would receive is governed by the specific policy of insurance.The definition of disability can vary from contract to contract.   Some insurance policies require the claimant to be disabled just from their pre-injury employment, and others may require that the claimant be disabled from any employment.   Again, the insurance contract controls.It must be kept in mind that short and long term disability benefits only cover lost wages.  Private disability benefits generally do not cover medical expenses, whether related to the disabling condition or not.   If the policy is provided through your employer, the employer may choose to keep you covered by their medical plan, or you may be able to continue your medical coverage via COBRA.  Medical coverage for you and your family can be a significant issue.Many times, obtaining and keeping short and long term disability coverage is as simple as filling out the required forms and providing medical information from your doctors that support the claim that you are unable to work.  However, sometimes insurers may unjustly deny or prematurely terminate benefits.  Insurers have been known to improperly delay investigation of a claim, delay deciding a claim or payments that are due, or pay only part of the benefit owed.  There may be inappropriate multiple requests for medical information, or it may become difficult to get a response from your claim representative.If you are facing or having difficulty with a claim for short or long term disability benefits, please contact a High Swartz attorney.  Our Bucks County and Montgomery County disability attorneys have knowledge and experience in all facets of disability issues. Let us help you get the Social Security disability benefits you have earned.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Can You Trust Philadelphia’s (Ten Year Tax Abatement) Process?

Philadelphia’s Ten Year Tax Abatement Program has been in place for almost twenty years. It was instituted to spur new development and re-development, by exempting, for ten years, the value of any improvements to real estate.  Over the past few years, many new or recent home buyers in Philadelphia with ten year abatements, have opened their mail to find a very unpleasant surprise. Though they bought their property subject to a 10-year tax abatement, they hold in their hand a notice from the City indicating their tax bill has increased by 300% or more. But their total assessed value hasn’t gone up, so why do they owe so much more? Then they compare to their previous year’s notice, and find that a significant portion of their assessed value has been shifted from ‘Improvement’ Value to ‘Land’ Value.Philadelphia’s 10 year tax abatement for new residential construction, exempts from taxation “that portion of the assessment valuation attributable to the cost of construction of the new eligible dwelling unit.” This means that for a 10 year period, qualifying properties will only be taxed on the land value of their property, and not on the value of any improvements.  There are similar abatements for new commercial construction, and renovations to residential and commercial properties.The reasoning behind the Abatement Program is simple: if the City temporarily removes an additional cost for those who buy new homes (or business properties), demand will increase and developers will be motivated to build new construction or renovate dilapidated and outdated structures. This in turn spurs additional development in many neighborhoods and increases the city’s tax revenues in other ways.  And the Program works.  There are plenty of studies that show this setup has been a win-win-win for Philadelphia home buyers, the City’s tax revenues, and developers.However, it’s becoming less of a win for the new homeowners who have received one of these notices showing a massive increase in their land value.  How is the land under their home now worth 3 to 12 times more per square foot than the sale price for the vacant lot next door? It doesn’t seem fair. They want to appeal, but are often unfamiliar or intimidated by the system.And many of those who do file an appeal are then advised that they cannot appeal just the land value, or that the appeal may even result in an increase in their assessment. Most accept this to be true and decide that even though it doesn’t seem right, it’s not worth the time and effort to continue with the appeal.  Those that do pursue the appeals to a hearing, often feel  like they are being taken advantage of, that they are being discouraged from exercising their right to appeal,  and that the system is both wrong and unfair.Now, the courts are starting to agree. In a recent Court of Common Pleas case where a property owner appealed the increase in the taxable land value of his property under the 10 Year Abatement Program, a Kensington homeowner received a favorable decision that lowered his assessed land value from $113,500 to $79,000.  This reduction will save the property owner hundreds of dollars a year on his property tax bill over the duration of the 10 year abatement.We’re glad to see this progress being made.  Based on our long history helping many clients navigate the 10 Year Tax Abatement Program, we also believe that the land value increases are not appropriate.  We have a number of legal arguments and valuation strategies that we believe support the unfairness an inappropriateness of these land value increasesProperty owners in Philadelphia have the right to appeal their tax assessments every year, and to appeal changes to their assessments when those changes are made.. So if you still have a number of years remaining under your abatement, you became aware of an increase in your land value and taxes, and you’ve previously considered appealing  a land value increase but forgot, decided not to, or been dissuaded by the city from doing so,  you’ll have another chance in 2018. If you’d like to review your case with us, please call or email and we’ll be glad to discuss your case.If you have questions about real estate tax assessments or the 10 Year Tax Abatement Program, please contact William F. Kerr, Jr. or Stephen M. Zaffuto at (610) 275-0700 or wkerr@highswartz.com and szaffuto@highswartz.com.  High Swartz real estate attorneys continue a long tradition of providing a full range of real estate services. This work includes the protection of the interests of landowners, buyers and sellers of land, municipalities and developers.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

High Swartz Welcomes New Real Estate Law Attorney

Full-service law firm High Swartz LLP is pleased to announce that Stephen M. Zaffuto has joined the firm’s real estate law practice. Zaffuto concentrates his practice on real estate law, environmental law, and business and commercial law. He has extensive experience with commercial and residential tax assessment appeals, real estate title opinions, easement agreements, and environmental compliance issues. Stephen has also counseled small businesses and start-ups on various matters, including business formation, trademark issues, and fundraising.Prior to joining High Swartz in 2018, Stephen was an associate at Tucker Arensberg in Pittsburgh. He has an interest in entrepreneurship and startup culture, and is himself a cofounder of a custom menswear brand, ModaMatters, based out of Philadelphia.“We look forward to having Stephen on board as part of the High Swartz real estate and business practice groups. His interest and experience in general real estate, real estate tax assessment, and general business matters will be  a welcome addition, and deepen our pool of attorneys available to provide real estate and business related services,” said partner William Kerr.Zaffuto earned his law degree from Temple University Beasley School of Law. He holds a Bachelor of Arts from The Pennsylvania State University in English and Italian Language and Literature. He lives in Philadelphia, Pennsylvania.High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #