17 High Swartz Attorneys Named Main Line Today Top Lawyers for 2021

We are pleased to announce that 17 attorneys have been included in the 2021 Main Line Today Top Lawyers Around the Main Line and Western Suburbs List.

Main Line Today is a Southeastern Pennsylvania regional magazine focusing on the communities of the western suburbs of Philadelphia and surrounding Counties. The Best Lawyers of Chester County, Delaware County and Montgomery County are nominated through peer balloting then vetted through Main Line Today's editorial process.

2021 sees the addition of 3 High Swartz attorneys to the Top Lawyers list. New attorneys include family lawyers Chelsey A. Christiansen and Michael B. Prasad for Divorce and Family Law and Stephen M. Zaffuto for Real Estate Law. Congratulations to all winners!

Below is the full list of High Swartz Top Lawyers from Main Line Today in 2021.

  • Joel D. Rosen - Business Law
  • Kevin Cornish - Civil Litigation
  • Mark Fischer - Civil Litigation
  • Melissa Boyd - Divorce & Family
  • Mary Doherty - Divorce & Family
  • Elizabeth Early - Divorce & Family
  • Chelsey Christiansen - Divorce & Family
  • Michael Prasad - Divorce & Family
  • Thomas Rees - Employment Law
  • James B. Shrimp - Employment Law
  • David Brooman - Municipal Law
  • Gilbert High - Municipal Law
  • William Kerr - Municipal Law
  • Richard Sokorai - Personal Injury
  • Arn Heller - Real Estate Law
  • Stephen Zaffuto - Real Estate Law
  • Thomas Panzer - Workers’ Compensation

If you're looking for lawyers near you in Norristown, Doylestown, and the Greater Philadelphia area, get in touch with our law office. Our attorneys and lawyers are some of the best you'll find to handle all your legal concerns.

The Emerald Ash Borer Killed a Tree on My Property Line. Who is Responsible For Its Removal?

The Emerald Ash Borer insect has wreaked havoc throughout much of PA and is migrating to surrounding Mid-Atlantic states. Dead ash tree removal is a must for property owners, but the responsibility burden can sometimes cause friction between neighbors.

I live in Southeastern Pennsylvania, and I’m trying to resolve a dispute with a neighbor about a dead ash tree that sits directly on our property line. When I moved into my house a few months ago, I had an arborist inspect the tree, and planned to have it trimmed.

I was advised that the ash tree is infected by the emerald ash borer beetle and is nearly completely dead. The arborist advised me to remove it quickly so that it does not fall on my shed directly under it and was given a quote of $1700.The thing is, the tree sits approximately on 25% of my property and 75% of my neighbor’s.

My understanding is that in PA, if a dead or dying tree sits on the property line, both the neighborly and legally required thing to do is to split the cost of removal. However, my neighbor stated that he did not care if it came down in my yard as it would be my responsibility to remove it if that occurred. The dead tree would not hit his house if it fell on his property, and he was not willing to contribute to its removal.

I was hoping to determine with a real estate lawyer familiar with tree removal laws if I had any legal recourse against him with regards to this removal. Or,f the cost of removal is low enough that I am better off just paying for the tree removal myself rather than trying to take legal action against my neighbor At the end of the day, I'm arguing with him over $850 and the principle of the matter. – Matthew P.

I believe your understanding of the PA tree law is correct. A property line tree is the joint and equal responsibility of the two property owners. If one party refuses to accept equal responsibility, legal action would have to be started – normally before a Montgomery County magistrate judge. The cost of commencing the action is not great, but, the cost of your relationship with your neighbor could be.

You might have some success in having a real estate attorney write to the neighbor, but that could be costly as well. The additional issue is that in order to remove the tree, your arborist may requires the neighbor’s permission, since going onto his property would be a trespass.

For you to be successful, legally you have to be able to prove where the property line is and prove that the tree was a hazard tree because it was dead. You’ll need a written opinion from the arborists and good pictures.

Many arborists in PA are rightfully reluctant to climb up an ash tree in order to remove it because it dies from the top down – so the top becomes very brittle and thus dangerous to climb. You have to deal with this right away. Best of luck!

Stormwater Fees in PA - What You Need to Know

Property Owners in PA looking to challenge their stormwater fees need to understand the requirements regarding how they are structured and assessed.

If you’ve read local newspapers or attended local government meetings in Pennsylvania over the past few years, you’re aware of the controversy over stormwater fees. Disgruntled landowners may call the fees “rain taxes,” but these fees are necessary to comply with the Environmental Protection Agency’s unfunded mandates on state and local governments.

What is a stormwater fee?

A stormwater fee is an assessment charged to property owners within a municipality’s service area in order to finance the costs of local stormwater programs. The amount of the fee for each individual property is usually determined based on its total impervious area (all surfaces that do not allow infiltration of water, including building coverage and surfaces made of materials like concrete and asphalt).

Why are stormwater fees imposed?

The short answer is that federal and state law have mandated a decrease in the amount of pollutants in waterways. Stormwater runoff is a major source of pollutants. Major projects will be necessary to reduce stormwater flow and the funds for these projects will come from municipalities. Most municipalities view stormwater fees as a more palatable and fairer alternative than taxation. .

The federal Clean Water Act sets stormwater requirements that the states administer under federal supervision. The Pennsylvania Department of Environmental Protection (DEP) administers stormwater matters under the MS4 (Municipal Separate Storm Sewer System) Program. The MS4 program applies to municipalities (or large institutions like universities and prisons) that have separate systems for sanitary sewer and stormwater management.

As of 2018, all municipalities in the MS4 program must meet specific pollutant load reduction targets by 2023, with penalties for noncompliance. Compliance will require significant improvements in most municipalities, from regular street and drain cleanings to construction of new retention basins and storm pipe infrastructure.

Why is there a stormwater fee and not a tax?

This mandate is not funded by EPA or DEP, so the costs of compliance fall to the local municipalities. Stormwater management fees are the least burdensome way for local governments to pay for compliance. The alternative of tax increases would be unpopular and would impose costs on the population as a whole rather than target those who generate stormwater. And ignoring the requirements would be even more costly, leading to penalties that would increase over time and also would be paid by all taxpayers. Stormwater fees are also fairer than taxes, because tax-exempt entities like government and nonprofit organizations that often generate significant stormwater runoff will pay stormwater fees.

What municipalities are or will be affected by stormwater fees?

Municipalities or large institutions regulated as MS4s, especially in watersheds designated as “impaired,” will be most affected by stormwater fees. MS4s gather stormwater through storm pipes, drains, or swales and discharge stormwater into local streams and rivers without any treatment.

The DEP manages the MS4 Program, issuing permits and ensuring compliance with federal mandates under the Clean Water Act. Specifically, DEP issues NPDES (National Pollution Discharge Elimination System) permits, authorizing MS4s to discharge stormwater into local waterways. To comply with NPDES permits, MS4 communities must develop a Stormwater Management Program (SWMP). Communities that discharge into watersheds classified by DEP as “impaired” must also develop Pollutant Reduction Plans (PRP).

DEP also requires minimum standards for stormwater controls in local ordinances, and has drafted a model ordinance that MS4s will have to implement by September 30, 2022 to remain compliant. There are over 1059 MS4s at the time of publication. Dep provides a list of these regulated MS4s, organized by county, on the its website, along with many other useful resources.

How are stormwater fees determined?

Municipalities can choose from several options to cover the costs of stormwater compliance. Some municipalities will assess fees directly. Others will create municipal authorities or join regional municipal authorities. Since 2013, the Municipality Authorities Act has permitted municipal authorities for stormwater management planning and projects. These municipal authorities have the authority to impose fees at “reasonable and uniform rates.” (See our earlier blog on municipal authorities for more info).

There are many variations in fee structures among municipalities and municipal authorities because fee calculation is left to the individual municipality or authority. Fees will be deemed reasonable if levied on property owners based on some calculation of the property’s potential to generate runoff. Some of the largest fees will come from properties that are exempt from real estate taxation under Pennsylvania law, such as schools, large churches, and authorities that own large tracts of real estate. The budget effect for these exempt entities may be significant.

A municipality or authority can choose from various methods of measurement as a basis for stormwater fees. Possible methods include the Equivalent Residential Unit (ERU) based on the average impervious area of a residential parcel in the community or a tiered system with several subcategories based on impervious area. More complex calculations include “Intensity of Development Factors (IDF)” or “Equivalent Hydraulic Areas (EHA),” that account for and weight both pervious and impervious area, to scientific and highly-tailored methods like the “Residential Equivalent Factor (REF)”. There is no uniform solution for determining stormwater fees, and the proper method will depend on many factors, including the overall land use characteristics, size, resources, and feedback from constituents and stakeholders. The Overview of Municipal Stormwater Fee Programs, published by the Pennsylvania Environmental Council, provides useful explanations of each method.

How do you get help if you have issues related to stormwater fees?

If you represent a municipal client that needs to comply with a current EPA mandate or a municipality wishing to establish a stormwater authority preventatively, before being mandated to do so, High Swartz can help. We provide counsel to help “thread the needle” of compliance, avoidance of large penalties, and limiting exposure to litigation from property owners.

If instead you are a property owner in a municipality that is implementing or planning for a stormwater fee, High Swartz can help ensure that the fees are based on accurate information, and levied in a “reasonable and uniform” manner, as required by law.

Our experienced municipal government team at High Swartz has in-depth knowledge and experience in all aspects of stormwater management and municipal law and can aid you in navigating this complex area of law and asserting and protecting your interests. Call us at 610-275-0700 or use the contact form found on this page.

PA Pipeline Construction FAQs

When many Pennsylvania landowners look out onto their backyards, they are unaware of the pipeline system that currently resides under their lawns. Many more are unaware of the bottleneck within the system that transports gas from a record-setting natural gas reserve in the Marcellus Shale region of Pennsylvania. That bottleneck is keeping over 1,000 of the 8,000 Pennsylvania wells dry, and preventing energy resources from reaching market, both local and abroad.

This expensive problem has led several energy companies to plan to invest billions of dollars in natural gas infrastructure projects and pipeline construction in Pennsylvania over the next ten years to transport shale gas resources. It’s expected that parts of Berks County, Chester County, Delaware County and other areas north and west of these counties will be impacted by construction and landowner disputes.  As these companies plan to dig up backyards across the Commonwealth to replace and add to current infrastructure with newer, bigger pipes, it’s important that impacted landowners understand their rights.

Here are four important questions impacted landowners should know to ask:

How long will pipeline construction take?

Landowners can and should inquire about how long the construction will take from day one through full restoration of each property. They should also know the extent of "earth disturbance" and the impact that disturbance will have on current and future use of the land, including farming and recreational uses.  This is known as the Temporary Construction Easement phase.  They should also know that the timeframe is often negotiable, and always compensable.  Landowners should push strongly for the shortest possible timeframe. The current prediction is up to 3 years, but landowners should be pushing for a 6 month to 1 year time frame.

What permanent land use limitations will this cause to properties?

The Permanent Easement sets the specific location of the pipeline or pipelines.   Landowners should understand precisely where the pipelines will be placed on their property, including the exact location, depth, width and length.  The Permanent Easement becomes part of the title for the property and will be binding not only on the landowner but all successors and assigns.  They also need to fully understand how the pipeline will impact their land.  While the pipes are located underground, the reality is they will impact future use of the land since as a general rule no buildings or structures may be placed atop the easement area.  The extent to which the easement will limit or prevent future subdivisions and construction should be clearly known.  The greater the impact, the greater the potential compensation.

How will properties be restored?

Landowners must inquire as to how their property will be restored once the project is complete. The energy companies should be held responsible up front to restore all properties to their current condition, or better.  There are many critical factors to consider, including restoration of natural resources such as streams and creeks, soil type and compaction standards, and landscaping.

Will the pipeline construction impact property and land value?

It is imperative for landowners to speak to a real estate agent and/or an appraiser early in the negotiation process to understand how the permanent easement will impact property value.   Real estate agents are predicting that property and land values can be affected by tens of thousands of dollars since the new pipelines are different and much larger than the current pipes which have been in place since the 1930s.  Before signing, make an informed decision on value.

These are just a few considerations for landowners to understand and address when asked to grant easement rights by a pipeline company in Pennsylvania.  Other considerations, such as indemnities for environmental liabilities and accidents, size of the pipeline and the pressure it will operate  under, limitations on future expansion and accessory facilities, inspection rights, and access to the easement area also should be specifically addressed.

If the landowner and pipeline company are unable to amicably negotiate the terms of the Temporary Construction Easement and Permanent Easement, and the compensation associated with each, the pipeline company may be able to obtain the easements through an eminent domain proceeding.  In Pennsylvania, pipeline companies that qualify as “public utilities” may initiate eminent domain proceedings to obtain the required easements.  In those situations, the landowner is compensated for the fair market value of the easements by a board of view or court, after the presentation of evidence by expert appraisers.   In the vast majority of cases, it is better for both the landowner and the pipeline company to amicably negotiate the terms of the easements, and a compensation package, than to resort to an eminent domain proceeding.

For more information regarding real estate and eminent domain law as it relates to the Pennsylvania pipeline projects, please contact David Brooman at 610-275-0700, or by email at dbrooman@highswartz.com.

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

Original article was written in May, 2015.

Pennsylvania Tree Laws

Below is a primer on the municipal laws regarding trees along property lines and public rights of way in Pennsylvania Municipalities.

Pennsylvanians need to understand their rights and liabilities concerning hazard trees and property line laws. With the rapid infestation of invasive tree pests like the Spotted Lanternfly and Emerald Ash Borer in Pennsylvania, many residents are being forced to ask about dead tree removal laws along property lines and public right-of-ways.

Educate yourself regarding trees on your property, their health and hazards

Whether you are aware of it or not, a significant portion of Pennsylvania trees are currently under attack. The Emerald Ash Borer is a pest from Asia that has taken control of Ash trees in 35 states. It is killing them at such a remarkable rate that virtually none of the 8.7 billion ash trees in North America are expected to survive in the next five years. Cutting down infected trees in ineffective because the borers have a flying range of up to 20 miles. While the ecological threat to our nation’s forests is momentous, the financial impact on property owners residing within urban communities is potentially enormous. Ash trees can be gigantic, and the cost to remove them likewise.

spotted lanternfly on trees in pa
Spotted Lanterflies are easy to spot, no pun intended. Along with their spots and bright red accents, SLFs are planthoppers, which means they fly for short distances, which can look like hopping.

The Spotted Lanternfly is also causing many Pa residents to be concerned about hardwood and property line fruit trees. The SLF is an invasive insect discovered in Berks County of Southeastern Pennsylvania in 2014 and originates from Southeast Asia. Spotted lanternflies are not as selective as EABs regarding the trees they attack. Their preferred host is the “Tree of Heaven” or ailanthus but they are also reported to attack apple, Plum, cherry, peach, apricot, pine trees, even grape vines and hops. The economic impact could be enormous on the regions fruit, beer and wine industries. And because the Spotted Lanternfly lays its eggs on any surface including cars and trailers, a rapid outbreak is expected.

If your Neighbor’s tree along your property line is a hazard

If the hazard tree is along your property line, but is considered to be the neighbor’s tree, notify them immediately and request they remove it. If they refuse to do so, you can hire an arborist to remove the portion of the tree that overhangs your property. You can then require your neighbor to reimburse you for the cost. If all or any portion of a hazard tree falls on your property, and your neighbor was aware of or should have known that it was dangerous, your neighbor is responsible for any damage that you suffered, including your cost of removal.

If your Neighbor’s tree along your property line is not shown to be a hazard

If your neighbor’s tree falls onto your property and is not shown to have been a hazard, the neighbor will not be deemed negligent. Not only must you clean up your neighbor’s healthy but fallen tree, but you have to give your neighbor the opportunity to claim their wood! If your neighbor’s property line tree falls onto your property, call an arborist to inspect the tree and advise if it was defective and if the neighbor should have been aware of its condition.

If the dead or dying tree is on your side of the property line

In this case, it is your responsibility to monitor the health of the property line tree. Take the tree down before it causes harm to your property or your neighbor’s.

If the dead or dying tree is directly on the property line

In this case, you jointly own the tree with your neighbor and you are empowered to both share the cost of the tree’s removal.

If the dead or dying tree is within a public right of way

Even if your town has maintained a tree over the years, don’t expect the municipality to pay for its removal. Although PA municipalities control the use of streets, including trees growing within the street’s limits, the municipality has the right to impose the cost of tree removal on abutting property owners. If your local municipality chooses not to bill you, that is their option. Even if they have done so in the past, don’t expect municipalities to continue to front the bill. In the face of the extraordinary cost of removal and the scope of current and future tree blight numbers, deferment is probable.

To remove any public right of way tree, you’ll need permission from the municipality

It’s essential to remember that local government controls trees in the public right of way and is responsible if they fail to remove a hazard tree after notice. The property owner should notify the municipality of the hazard tree and ask that it be removed. Keep a copy of that notice for future records.

emerald ash borer destruction of pennsylvania tree
Emerald Ash Borer larvae cause destruction under the bark of Pennsylvania Ash Trees.

Schedule to have the hazardous tree taken down immediately

Homeowners experiencing dead or dying trees proximate to buildings, driveways, patios, sidewalks, and streets do not have the luxury of removing that tree at a future date. A dead tree can quickly become brittle and fall from its own weight in as little as 18 months from the point of infection. Ash trees affected by the Emerald Ash Borer will die from the top down. If you suddenly find that your ash tree is largely dead, the probability is that it has been dying for a long time when you didn’t notice. And if the tree is largely dead, you will likely not find an arborist willing to climb the tree to take it down. They will want to do the work safely with the use of a crane, which could significantly increase the cost of the tree’s removal.

Be Preemptive regarding listed host trees

The Penn State Extension has an updated list of reported species and plants these pests prefer. It may be in your best interest to remove any listed trees, especially ash trees or trees of heaven, along any property line or area that could be seen as dangerous.

Find a municipal lawyer near you with Pennsylvania Tree Laws experience

High Swartz municipal attorneys are here to answer your questions regarding trees on property lines, the laws governing them and public right of ways. Contact us here or call 610.275.0700. More information on Tree Law in Pennsylvania can be found at WeConservePA.

11 High Swartz Attorneys named to PA Super Lawyers and Rising Stars lists

High Swartz is pleased to announce that 11 of its attorneys have been named among Pennsylvania’s 2019 Super Lawyers and Rising Stars. Among the highlights are two inclusions on the 50 Top Female Lawyers in Pennsylvania list going to Melissa M. Boyd and Mary Cushing Doherty of the High Swartz Domestic Relations practice.

2019 High Swartz Super Lawyers Melissa Boyd David Brooman Mary Cushing Doherty Mark Fischer Gilbert High, Thomas Panzer Thomas Rees Joel Rosen
2019 High Swartz attorneys added to the Super Lawyers List

What is Super Lawyers?

The Super Lawyers list recognizes no more than 5 percent of attorneys in each state. The Super Lawyers Rising Stars list recognizes no more than 2.5 percent of attorneys in each state. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger, or in practice for 10 years or less. High Swartz 2019 Super Lawyers and Rising Stars are listed below in alphabetical order.

Melissa M. Boyd: Has been nominated to her 5th consecutive Super lawyer list preceded by 6 Rising Star distinctions. On top of her streak, Missy has been nominated to 3 Super Lawyers Top Lists in Pennsylvania. Those accolades are 100 Top Lawyers in Pennsylvania, 100 Top Lawyers in Philadelphia and 50 Top Female Attorneys in Pennsylvania. Missy is a partner and family law attorney with High Swartz and advocates in various areas including divorce, prenuptial and postnuptial agreements, child custody and child support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law.

David J. Brooman: 2019 marks the return to the Super Lawyers list for David. This is his 10th selection. As a land development and litigation attorney, David J. Brooman has more than three decades experience in zoning and land use development, as well as environmental law.

Mary Cushing Doherty: This will be Mary’s 16th consecutive selection to the Super Lawyers list. Along with her distinction, she’ll join the 50 Top Female Lawyers in Pennsylvania list. With a distinguished record of professional and community service, Mary Cushing Doherty has more than 35 years of legal experience as a family law lawyer. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, custody, spousal support and alimony, premarital agreement asset protection, complex property division, and is the chair of High Swartz’s Family Law practice.

Mark R. Fischer: Mark has been nominated to his second consecutive Super Lawyer designation. He focuses his practice primarily on representing businesses in breach of contract, payment collection, construction defect, and consumer protection disputes throughout Pennsylvania and New Jersey.

Gilbert P. High, Jr.: This will be Gil’s 14 section in a row. Gil’s impressive career is devoted primarily to the practice of municipal and Real Estate and Land Use Law. He regularly speaks on issues pertaining to municipal liability, particularly regarding the maintenance of the Urban Forest, a subject on which he has lectured nationally.

Thomas E. Panzer: This is Tom’s first and much-deserved selection to the Super Lawyers’ list. Thomas E. Panzer, a workers’ compensation attorney, joined High Swartz in 2016 as a result of a merger with McNamara, Bolla & Panzer, Attorneys at Law, a firm for which he served as Managing Partner. Mr. Panzer is active in his community and is currently the Bucks County, Pennsylvania Treasurer.

Thomas D. Rees: Elected to his 14th Super Lawyers list, Tom heads the firm’s Litigation and Employment Practice. He focuses his practice primarily on employment law and private education law. In the education area, Tom represents a number of independent schools in the Philadelphia area, handling employment, student discipline, contract, and governance matters.

Joel D. Rosen: As High Swartz’s Managing partner, Joel has been a Super Lawyer since 2017. With more than 30 years of legal experience as a corporate law attorney, Joel Rosen’s areas of practice include franchise law, business and commercial law, employment law, trademark/copyright law and commercial leasing.

list of 2019 high swartz super lawyers rising stars
2019 Rising Stars attorneys from High Swartz

Kevin Cornish: Recently elected as a partner at High Swartz, Kevin receives his 8th Super Lawyers Rising Star selection. Kevin focuses his practice on commercial, civil, and contract & multi-state litigation support. His clients include individuals as well as local, regional, and national businesses up and down the east coast.

Elizabeth Early: has been nominated to her third consecutive Rising Star selection. Her areas of specialization include divorce, custody, support, equitable distribution, pre and post-nuptial agreements, parenting coordination and abuse matters. Liz also serves as court-appointed counsel and guardian for minor children.

Brittany M. Yurchyk: High Swartz congratulates Brittany’s first nomination to the Super Lawyers’ list as a Rising Star. Specializing in alternative dispute resolution, Brittany concentrates her family law practice on equitable distribution, child custody, child and spousal support, abuse and domestic relations.

How were the High Swartz Super Lawyers selected to the list?

Super Lawyers nominates the best attorneys using a unique selection process. Peer evaluations and nominations are combined with independent research. Nominees are evaluated on 12 indicators from professional achievement through peer nominations. Nominations are made on an annual, state-by-state basis. The Super Lawyers objective is to create a credible, comprehensive and diverse listing of outstanding attorneys on a national level that can be used as a resource for attorneys and consumers searching for legal counsel. As an aid to those selecting a lawyer, Super Lawyers only selects outstanding local lawyers who are able to be retained by the public.

David Brooman, Tom Panzer and Gil High Attend PA Municipal Solicitor's Workshop

High Swartz Municipal Attorneys David J. Brooman, Thomas E. Panzer and Gilbert P. High, Jr. attended the Municipal Solicitors Workshop on May 16, 2019. The Workshop was held at Delaware Valley Trusts in Horsham, PA.

On the agenda:

The State of Qualified Immunity for Pennsylvania Public - discussed the United States Supreme Court's including constitutional contexts like First Amendment retaliation cases and high speed police pursuits

Erosion of Municipal immunity under the PA Tort Claims Act - Broadening of property an motor vehicle exceptions to governmental immunity under the PA Tort Claims Act.

First Amendment Rights in Public Forums - A look at recent US Supreme Court and federal appellate court decisions about the First Amendment rights of people in multiple public forums, social media and otherwise.

Zoning and Civil Rights Issues of Group Homes - Discussed zoning and liability issues around the establishment of "group homes" in a municipality and the issues that several Delaware Valley Trust members have confronted in recent years.

The Firefighter Cancer Presumption Law Update - Coverage of recent cases interpreting key provisions under Act 46 of 2011.

Ongoing Legislative Developments - Discussions of the latest state legislation impacting local municipalities, like bills amending the PA Workers Compensation Act, amendments to the Intergovernmental Cooperative Law and the new Drone Law.

Delaware Valley Property & Liability Trust Coverage Overview - Significant coverage provisions in the DVPLT document.

The Delaware Valley Trusts provide custom health, worker's comp and liability & property coverage for public entities utilizing a cost-effective, risk-sharing model. Members are stakeholders who enjoy expanded coverage, long-term stability and exclusive benefits.

PA Municipalities worried about the Airbnb trend can rest easier

In a recent decision, the PA Supreme Court reversed the Commonwealth Court’s ruling and in doing so, state that Airbnb-type rentals are against residential zoning laws.

Back in March 2018, I wrote about the Pennsylvania Supreme Court’s decision to review a case involving a now-prevalent issue confronted by municipalities across the country…the influx of Airbnb’s in their residential neighborhoods. On April 26, 2019, the Court issued its decision in the case of Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., and in the process made for a lot of happy municipalities throughout the Commonwealth.

The Pennsylvania Supreme Court, in reversing the Commonwealth Court’s ruling, decided that short-term transient rentals (such as those typically found on websites such as Airbnb and VRBO) were not a permitted use in the residential zoning district at issue in the case. The Court stated that “the purely transient use of a house is not a permitted use in a residential zoning district limiting use to single-family homes by ‘a single housekeeping unit.’”

In making its ruling, the Court discussed how most zoning ordinances define the term “family,” acknowledging that many have adopted the phrase “single-housekeeping unit,” which has become a widely-accepted term of art that the courts have defined as requiring the occupants of a home to live and behave like a family in a character that is permanent and not transitory. The Court examined the goals of zoning in general, and more specifically in creating residential zoning districts, explaining that the underlying purpose of creating neighborhoods and a stable community environment support the conclusion that the transient nature of short-term rentals confound this goal and there cannot be a permitted use in such residential zoning districts.

PA Supreme Court comes down hard on Commonwealth Court

Perhaps more astounding than that headline-making part of the ruling is the High Court’s resounding rejection of how the Commonwealth Court has been applying the zoning law in the Commonwealth. Like a parent slapping the wrist of petulant child, the High Court reprimanded the lower appellate court for ignoring prior Supreme Court precedent and creating the false rule that a use not specifically excluded by a zoning ordinance is a permitted use. The Supreme Court corrected this error of interpretation, explaining that the correct rule is that a use is excluded unless expressly included in a given zoning district, with the interpreting body to undertake a “functional analysis” to determine whether the proposed use constitutes a permitted use under the language of the zoning ordinance at issue.

What does the Slice of Life decision mean for PA rental properties in residential districts?

This decision is a significant win for municipalities across the Commonwealth seeking to preserve those underlying characteristics of its residential districts as discussed by the Supreme Court without having to modify their existing zoning ordinances. At the same time, it effectively shuts down the “Airbnb market” in single-family residential zoning districts in Pennsylvania, rendering a major blow to the property owners and online services that depend upon those short-term rentals for their bottom lines. What will remain to be seen going forward is the effect the decision will have on other non-traditional “family” uses in residential districts, such as sober-living houses, that have characteristics of both family and transient uses. The ramifications of the decision will surely be felt for years to come.

2019 Pa. LEXIS 2363 (Pa.S.Ct. Apr. 26, 2019).

Download this article as a pdf here.

What is a Municipal Authority?

If you live in Pennsylvania, odds are that you’re within the service area of at least one municipal or joint municipal authority.

It has been estimated that Pennsylvania has roughly 2,000 active municipal authorities. Whether for water distribution, wastewater treatment, sewer, school, hospital, mass transit, recreation, business development, or some other purpose, most citizens get some sort of service (and, as importantly, receive bills or special assessments) from a municipal authority.

But what exactly is a municipal authority? Many see the word “municipal” in the title and assume it’s an arm or agency of the municipality in which it is located. However, a municipal authority is not an agent or representative of a municipal government, but is instead an agency of the Commonwealth of Pennsylvania. Municipal authorities are formed under and governed by Pennsylvania’s Municipality Authorities Act, and are considered independent corporate agents of the Commonwealth.

What can a Municipal Authority do?

The Municipality Authorities Act dictates a municipal authority’s powers and limitations. They have the ability to exercise governmental, as well as private, corporate powers, in assisting the Commonwealth in meeting the needs of its citizens. Municipal authorities are often set up to facilitate the acquisition, operations, financing, and construction of projects, from stormwater management to wastewater treatment to construction of school buildings. In pursuing these purposes, municipal authorities have certain unique powers, including the ability to incur debt, own property, and finance their activities by means of issuing revenue bonds (independent of the municipality), fixing and collecting lease rentals, or other charges or assessments.

There are, however, some limitations on what a municipal authority can do. The projects it undertakes must be in the proprietary fields of government, must be in the public interest, and must be self-sustaining. The Act sets forth 18 different kinds of projects that an authority may undertake. The Articles of Incorporation of many municipal authorities can include a specific limiting purpose and/or specific projects, in which case no other projects may be undertaken than those specified. And in the case of municipal authorities created to provide business improvements or administrative services, their power to charge assessment fees is further limited by a requirement that all business improvement plans and proposed methods of assessment must be formally approved by the municipality in which the project is located.

How are Municipal Authorities different than Municipal Governments?

Municipal authorities differ from municipal governments in the following key aspects:

  • A municipal authority has many more limitations on the exercise of its power than general purpose governments, which have general police powers to protect the public safety, health and general welfare;
  • A municipal authority is limited to project-related revenues, like user charges, connection fees, or special assessments as provided in the Act, while municipal governments have broader general taxing authority;
  • Municipal authorities generally have fewer restraints and restrictions on operations, budgetary and personnel practices than municipal governments;
  • An municipal authority’s board is not elected, but appointed by the local municipal government(s);

This last point is one of the most important differences. The extra layer of insulation from political pressure allows municipal authorities to undertake certain long-term projects and raise and spend money without having to face voters – who may have seen large increases in user charges or special assessments – at the ballot box.

This freedom from political pressure also has other side effects, like allowing qualified professionals to be appointed to serve on the board who would likely not be interested in running for elected office, allowing for greater continuity of leadership, and being more attractive to quality employees with the promise of stability and tenure.

How can you challenge the charges or assessment fees of a Municipal Authority?

The negative side of a municipal authority board being appointed and insulated from political forces is that property owners or developers may not feel they have much recourse if charges or rates are increased, or they believe an assessment is excessive or improper. Though property owners may not be able to exert political pressure on a municipal authority, there is some recourse available to dispute or challenge a charge or assessment.

The Act gives municipal authorities broad discretion and empowers them to assess and collect charges in their service area “at reasonable and uniform rates to be determined exclusively” by the municipal authority. However, the Act also authorizes “[a]ny person questioning the reasonableness or uniformity of a rate fixed by an authority or the adequacy, safety and reasonableness of the authority's services, including extensions thereof, [to] bring suit against the authority in the court of common pleas of the county where the project is located․”

Whether you’re a developer or property owner wishing to dispute a water or stormwater authority’s cost of water or stormwater construction or operating costs, customer facilities fees or tapping fees, or a property owner in a business improvement district wishing to dispute the assessment on your property, a diligent attorney will be able to guide you through the complex requirements of the Act and assess whether bringing suit would be beneficial to your interests.

Our experienced municipal government team at High Swartz has in-depth knowledge and experience in the Municipality Authorities Act and related case law, and [can] counsel both municipal authorities and property owners in navigating the law and protecting or asserting their sometimes competing interests.

Politcal Yard Signs and Your HOA

Political campaign signage and yard signs has always been a point of significant controversy in PA, which has only intensified in the recent years. Because our democracy depends upon the free exchange of ideas, the First Amendment forbids laws “abridging the freedom of speech.” The Supreme Court has long interpreted that the Amendment has a very broad set of protections to political speech and, in particular, to political campaign signage. However, some Pennsylvania homeowners may find that their freedom to express support for a particular candidate or party may be undone by their very own HOA or community association.

In general, Pennsylvania’s legal approach is that political posters and signs posted within reasonable time of the elections are a form of protected speech. As a result, a zoning law or other act of the government that imposes a ban on temporary political signs within residential areas will be considered unconstitutional and invalid. While situations involving size restrictions and permit requirements in zoning ordinances that concern political signs are not as clear cut, they are subjected to rigorous scrutiny by the courts and such actions by the government will often be found invalid as well.

Freedom of speech via political signs is not unlimited in Pennsylvania. Specifically, Pennsylvania residents who live in community associations might have their ability to display political signs heavily restricted or even prohibited by the association’s governing documents. This seemingly unconstitutional approach results from the fact that both the United States Constitution and the Pennsylvania Constitution protect people against interference with speech only where such interference is carried out by the government. Community associations, however, are not considered to be government actors in Pennsylvania. This distinction is well explained in Midlake on Big Boulder Lake, Condo. Ass'n v. Cappuccio, 449 Pa. Super. 124 (1996), where the Pennsylvania Superior Court upheld the association’s right to restrict its unit owners from displaying signs because the community association was a private organization, and as such, could not violate unit owners’ First Amendment rights. The Court further explained its decision by recognizing the significance of an individual’s voluntary decision to purchase property within a community association. Specifically, the Court held that

The Courts of this Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the federal and our Commonwealth’s constitutions. One of the fundamental precepts which we recognize, however, is the individual’s freedom to contractually restrict, or even give up, those rights. [The unit owners] … contractually agreed to abide by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on this property.

In summary, as long as an association is enforcing its governing documents uniformly across all units and owners, a restriction on the displaying of signs, including political campaign signs, will most likely be upheld in Pennsylvania, despite the general protections afforded by the United States Constitution and the Pennsylvania Constitution.