Practice Area: Municipal Law

Pennsylvanians are facing a significant issue regarding the affordability of residential real estate. The shortage of housing inventory has significantly increased prices.

Dating back to the real estate downturn after the Great Recession and significantly exacerbated by the disruptions caused by the COVID-19 pandemic, there is currently a significant shortage of housing across the United States, including Pennsylvania. Moreover, increasing mortgage rates have also impacted affordability since 2021.

Pennsylvania municipalities have played a significant role in the shortages and decreased affordability. Housing experts nationwide commonly recognize that housing supply is often constrained by the municipalities themselves adopting rigid planning codes and zoning ordinances that make it impractical for builders to develop higher-density housing types that could improve affordability.

Municipalities and their elected officials have established zoning districts that substantially limit potential property uses or restrict redevelopment of aging buildings. Motivations could be seen as an intention to appease residents wary of anything other than large-lot, single-family homes, the desire to preserve an existing architectural heritage and land use aesthetic, or to maintain a certain neighborhood prototype.

The unintended but real consequence can be a shortage of reasonably priced housing. This article attempts to present a starting point for municipalities considering implementing high-density housing to help address the current affordability crisis.

Why Implement High-Density or “Affordable” Housing in PA?

What is Affordable Housing?

While “high-density housing” is not synonymous with “affordable housing,” it is plainly apparent that low-density neighborhoods generally offer more expensive/less affordable housing than their low-density counterparts.

The term “Affordable Housing” can simply refer to housing deemed affordable to a particular community's residents. It also can have a more formal meaning tied to data related to household income. This relates to the median determined by the local government or housing indexes maintained by county, state, and federal housing agencies.

The Federal Department of Housing and Urban Development (“HUD”) defines affordable housing as housing where the occupants pay no more than 30% to 60% of their gross income for housing costs, including utilities. Affordable housing at those income levels can be vital for a community to provide housing for their critical occupations, such as school teachers, police officers, firefighters, health care workers, small business owners, and other service professionals.

Without housing affordable to those income levels, persons employed in many professions can be rendered unable to reside in their communities, where they work and provide critical local services.

High-Density Housing Initiatives May Alleviate Affordability Issues

The primary obstacles in a municipality’s planning and zoning process are twofold.
It includes local government resistance to incorporating plans to yield more reasonably priced housing and officials’ downright disinterest in cooperating with developers. These factors are contributing to high housing costs.

Recently, one developer sued New Hanover Township in federal court over the Township’s alleged pattern or practice of blocking housing development. They argued that the delays caused by New Hanover officials have already cost the developer over $150 Million.

Zoning Restrictions are a Concern

If certain zoning restrictions were alleviated, developers would capitalize on the opportunity to redevelop. This includes struggling and blighted product types, such as old malls or office space, that otherwise would be left unattended thanks to their zoning classification. Dilapidated warehouses could be transformed into carefully planned residential communities.

So, zoning restrictions can be a major impediment to the implementation of affordable housing in Pennsylvania. Some municipalities have recognized that their existing zoning schemes are outdated or prone to abuse by individual officials. The municipalities have begun working to change the status quo, hoping that their residents will not find themselves placed out of their homes.

How Can Municipalities Go About Adding High-Density or Affordable Housing?

Municipal officials who foresee housing affordability issues may take proactive steps to alleviate the high market prices. One solution is to implement high-density or affordable housing development.

To do so, officials must be willing to undertake a potentially lengthy process that includes compliance with local rules and regulations. Following the Municipalities Planning Code (“MPC”) and input from elected officials, residents, and the public will be essential to influence the locale’s Comprehensive Plan and, ultimately, the ordinance itself.

Municipal officials concerned about impending house price hikes should consider the following course of action:

1. Develop a comprehensive strategy specifically tailored to your municipality's circumstances – This is the opposite of a “one-size-fits-all” approach. Municipalities come in many different sizes, with wildly disparate needs and issues that may necessitate novel approaches;
2. Meet with the local planning commission – local planning agencies process subdivision and land development applications and contribute to the overall plan for the municipality, including a Comprehensive Plan if required by the MPC;
3. Meet with the county planning commission – County planning agencies are responsible for creating and revising the county’s Comprehensive Plan. Although the Comprehensive Plan does not regulate zoning and depends on local land use ordinances to implement its concepts, the Comprehensive Plan is a powerful feature;
4. Seek Assistance – Grant money may be available for affordable housing initiatives. The Pennsylvania HOME Program is federally funded and “provides municipalities with grant and loan assistance to expand and preserve the supply of decent and affordable housing for low- and very low-income Pennsylvanians.”
5. Public meetings with adequate notice to the community – Successful Comprehensive Plans involve citizen participation throughout the process; the MPC requires at least one public meeting to be held by each of the planning body and government unit;
6. Finally, after following all local and state requirements, the zoning ordinance may be formally amended. A majority vote of the governing body is required to adopt or amend a land use ordinance.

Municipalities need to work with local governments and developers to institute a stronger and more favorable outlook on high-density housing. This could offset high housing market prices and benefit important members of their community.

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Sean G. Livesey is a real estate attorney with experience in zoning and land development, municipal code enforcement, real estate sales, and leasing. Mr. Livesey is a member of the firm's municipal law group and has acted as conflict solicitor to multiple Montgomery County and Bucks County townships.

In Pennsylvania, there are different laws governing boundary, private property, and street trees that landowners and municipal authorities need to be aware of.

If you have more questions, please contact us to schedule a consultation with Gilbert High Jr.

Back in the day, municipalities added street trees along roads for one important reason. It was felt that horses needed a place to get out of the sun and cool off. Presently, trees have been shown to have many more positive effects to modern day living.

Trees are an essential part of any municipality, providing a range of ecological, economic, and social benefits, such as improving air quality, reducing stormwater runoff, lowering energy costs, and enhancing property values. However, with these benefits comes the responsibility to properly maintain and manage trees in public spaces, including those in residential communities.

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Don't see your answer here? Visit our in-depth guide on Pennsylvania Tree laws.

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Street Tree Laws

Shade tree commissions were created to maintain street trees within the public right of way, with the cost of maintenance falling on the municipality. While the abutting property owner may be compelled to remove or maintain trees, the liability for hazardous trees remains with the municipality. Municipal authorities also have a responsibility to ensure that trees are not hazardous in the first place. If a branch from a municipal tree falls and causes damage or injury, the municipality can be held liable if they knew or had reason to know that there was a dangerous situation created by that tree.

The responsibility for removing hazard trees falls on the municipality, not the property owner. Property owners are responsible for maintaining the sidewalk, especially if the municipal street tree causes disruption, such as broken or lifting pavement. It is considered best practice for municipalities to maintain an inventory of sick trees to inform their decisions. In Pennsylvania, the role of shade tree commissions in virtually every municipality is to maintain street trees, except in home rule communities like Philadelphia, where an ordinance compels the abutting property owner to maintain the trees.

Boundary Tree Laws

Boundary trees, also known as trees along property lines, have a separate set of laws governing their maintenance. The general rule is that both property owners share ownership of the tree, and neither one can unilaterally cut down the tree without the other's permission. Both owners also share responsibility for the care and maintenance of the tree.

However, if the tree is entirely on one side of the property line, then that owner is solely responsible for the tree. They can cut down the tree or trim its branches without the permission of their neighbor, but they are also solely responsible for any damage that the tree causes to their neighbor's property. In the 1990s, the Commonwealth court ruled that overhanging branches and roots are considered a trespass, and the neighbor whose property is being trespassed upon can sue the owner of the tree for the cost of removing the branches or roots. This also applies to cases where the property owner's tree roots are causing damage to a neighbor's property.

Private Property Tree Laws

There are no laws in Pennsylvania requiring private property owners to maintain trees on their land. However, some municipalities have ordinances that regulate tree removal or trimming on private property. For instance, in Philadelphia, you must obtain a permit before removing any tree with a trunk diameter of 12 inches or greater. Failure to comply with these ordinances can result in fines and legal action.

If a tree on private property poses a danger to the public, the local government can require the landowner to remove or maintain the tree. It's crucial to understand the laws and regulations governing trees in your area to avoid legal trouble and ensure that your trees are cared for properly.

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If you have more questions, please contact us to schedule a consultation with Gilbert High Jr.

Trees are essential for the development and beautification of a municipality. Municipal authorities and property owners have a shared responsibility to maintain and manage street trees and those in public spaces and residential communities. It's crucial to understand the laws and regulations governing street, boundary, and private property trees in Pennsylvania.

If you're unsure about your rights and responsibilities regarding trees on your property or your neighbor's, it's best to consult with a knowledgeable attorney who specializes in municipal tree law. By doing so, you can avoid legal trouble and ensure that your trees are cared for properly.

The attorneys of High Swartz LLP’s Municipal Law Group continue the over 100-year-old legacy of resolving complex legal matters for local municipalities and their citizens.

By Bill Donahue | As seen in Suburban Life Magazine

Located in the suburbs of Philadelphia, High Swartz LLP has earned a distinguished reputation that traces back to its inception in 1914. The full-service law firm offers adept legal counsel in just about every legal facet—from appellate work through zoning law. However, it's the firm's municipal law practice that has proved to be foundational to its southeastern Pennsylvania presence.

Essentially, municipal law involves the practice of providing legal guidance to municipalities to facilitate the efficient and effective operation of local government. You'll find attorneys at High Swartz LLP involved in every level of local government – as zoning hearing board solicitors, general municipal solicitors, special counsel, labor counsel, and conflict counsel.

High Swartz’s Municipal Law Group includes nine full-time attorneys, practicing from their law offices in Norristown and Doylestown. The group has the honor of being ranked nationally by US News and World Report as a Tier 1 law firm for Land Use & Zoning Law, a big part of municipal work. Although their offices are based in Montgomery County and Bucks County respectively, the attorneys work with townships and boroughs throughout Eastern Pennsylvania, and that footprint is expanding.

Partner Gilbert P. High Jr. is a municipal law and estates attorney whose grandfather, Samuel H. High, helped found the firm. What High likes most about municipal work is the opportunity to make a tangible difference in the lives of fellow community members.

“A municipality is basically a corporation with thousands of shareholders, and you have to deal with and be responsive to their issues,” High says. “Municipal law is about being ‘of the people, by the people, for the people.’ I have a great deal of faith in local government, and I want the residents of local municipalities to sense that.”

“Developing relationships is the heart of this work,” says David J. Brooman, a partner and the head of High Swartz's municipal practice. “People love to tell their story, whether it’s about their business or their township, and having a sincere interest in listening to those stories helps you gain trust. If you love what you do, spend enough time doing it, and get to know your clients really well, people will rely on you. That’s a responsibility we all take very seriously.”

Brooman appreciates the “intellectual challenge” that comes from practicing in areas such zoning and land-use development and environmental law and litigation. He says the work requires him to be “a skilled generalist—someone who knows a little about everything.” Whether a case involves a municipality or a private entity, Brooman immerses himself in the interests of his clients.

“From the beginning when I started practicing law, I've wanted to delve into each client’s business– really get to know the senior management if I was going to help them solve problems,” he says. “I want to know what’s important to them and what their strategic plan is for the next six to 10 years. Clients come to view me as a business advisor—and that goes for townships, too. Before you know it, they’re asking you questions that have nothing to do with the law."

Attorney Thomas E. Panzer joined High Swartz LLP in 2015 when his firm, McNamara Bolla & Panzer, merged with High Swartz. Today, as a partner tasked with leading High Swartz’s Doylestown office, Panzer maintains a busy practice as a municipal, zoning, and workers’ compensation attorney. He attributes the strength of the firm’s municipal practice to three essential attributes.

“First is our core competence and being able to offer substantively sound advice,” he says. “Second is our demeanor and approach, remembering that we are advisors, not policy makers. Third is the ability to be present and respond to the needs of the people we represent. If we deliver on these attributes, we will continue to grow our reputation as a strong regional full-service law firm.”

Each of the attorneys in the firm’s municipal law group have their own niche. High, for example, has become known as one of the Pennsylvania's premier experts on tree law. Although tree-lined streets add to a community’s desirability, most Pennsylvania municipalities struggle to maintain so-called “street trees” because of the associated cost.

“Lower Merion Township has something like 18,000 trees that line its streets,” High says. “Whose responsibility is it to maintain those trees? You have to sort out, ‘OK, what is the law in terms of a limb from a street tree falling on a car or the whole tree coming down?’ That has spread out into, ‘OK, what is the law in terms of one neighbor dealing with a problem tree on another neighbor’s property?’ There are so many issues that come up.”

Brooman has a keen interest in preservation. He cites a project known as the Mattison Estate in Ambler. Once the personal estate of the late asbestos magnate Richard V. Mattison, M.D., the property fell into disrepair in the years after Mattison’s death in 1936. In recent years, Brooman worked closely with Upper Dublin Township to preserve and protect the property’s significant historic assets, including iconic Lindenwold Castle. At the same time, he facilitated opportunities for thoughtful residential development as a way to breathe new life into the area.

“The Mattison Estate is an example of what I like best about this kind of work,” Brooman says. “It allows for a great deal of creativity in solving problems, and it brings developers, townships, and community groups together to engineer a solution that everyone can support. It’s not always easy, but if you work hard enough, you can come to a consensus.”

High Swartz municipal lawyers' work doesn't end when they leave the office. All members are active in volunteer and civic organizations including Habitat for Humanity and The Support Center for Child Advocates. You'll find them in public official positions as well. Panzer, for example, served a four-year term as Bucks County treasurer; completed two terms as a supervisor in his hometown of Warminster; and served a five-year term as a member of the Warminster Municipal Authority Board of Directors.

“We have built a strong, stable, and respected presence in Bucks County,” Panzer adds. “I have seen a lot of law firms come and go, and I’m honored to have joined a firm with a 100–year history in and around the Philadelphia region. We can thank attorneys like Gil High, David Brooman, and the firm’s managing partner, Joel Rosen, for that.”

As High reflects on his storied career with the firm, he cannot help but look to the future. He forecasts continued growth in the firm’s municipal practice, among other practice areas, and expects to see the firm’s team of attorneys grow along with it. Just as it has done in the past, the firm will grow by attracting talented young attorneys who “appreciate the gratification that can be afforded to them by working in an established regional firm.”

“I have been affiliated with this firm for almost 65 years,” High adds. “In that period of time, the firm has maintained an ethical integrity and respect for clients, for other lawyers, for the court system, and for one another. That’s what I’m most proud of—the standard of ethical integrity I think the judicial system calls on lawyers to maintain—and that’s true for every practice area at the firm, not just our municipal practice.”

This article was originally published here.

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

If you have more questions, please contact us to schedule a consultation with Gilbert High Jr.

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.

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.

Can I cut overhanging branches from my neighbor's tree?
OR
Can my neighbor cut overhanging branches from my tree?

The owner of a tree can cut it down or trim its branches without the permission of their neighbor at anytime, but they are also solely responsible for any damage that the tree causes to their neighbor's property. This even applies to cases where the property owner's tree roots are causing damage to a neighbor's property.

In the 1990s, the Commonwealth court ruled that overhanging branches AND the roots are considered a trespass, and the neighbor whose property is being trespassed upon can remove the overhanging branches or roots. They can then sue the owner of the tree for the cost of removing the branches or roots. 

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.

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.

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.

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.

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.

 

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Don't see your answer here? Read Who's Responsible for That Tree?

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If you have more questions, please contact us to schedule a consultation with Gilbert High Jr.

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!