The Doylestown law firm Clemons Reiss MacNair & Kushto, P.C. is proud to announce its opening as a result of Clemons Richter & Reiss, P.C. reorganizing. Under new leadership, the firm will focus its practice areas on municipal law, real estate law, estate planning and administration.

Shareholders Scott MacNair and Vicki Kushto are committed to ensuring that clients of Clemons Reiss MacNair & Kushto, P.C. receive the highest level of representation based upon the principles of professionalism, teamwork, integrity and discretion.

“Vigorously representing our clients and providing quality and dependable legal advice are our top priority” said Scott MacNair at Clemons Reiss MacNair & Kushto, P.C. He continued, “the attorneys at Clemons Reiss MacNair & Kushto, P.C. recognize that clients are seeking high level representation at affordable rates. We strive to provide exceptional legal service at a reasonable cost.”

Please visit www.clemonslaw.com to learn more about the firm, to view information about our attorneys or to schedule a consultation. Clemons Reiss MacNair & Kushto, P.C. is located at 2003 S. Easton Road, Suite 300, Doylestown, PA 18901.

The post Clemons Reiss MacNair & Kushto P.C. announces new leadership and focused practice areas appeared first on Clemons Reiss MacNair & Kushto, PC.

Janice Yager owns a house on Hamilton Street in Philadelphia and also owns a vacant lot next door. Yager applied for permits to use the vacant lot as non-accessory private parking with a six foot fence and gate. The City denied the request as not in compliance with the Zoning Code. Yager appealed to the Zoning Board of Adjustment. At the hearing, Yager testified that she wanted to park on the vacant lot due to the difficulty finding street parking and her husband’s recent Parkinson’s diagnosis.

Adams was the sole objector to the variance request and testified that she and other neighbors, including Yager’s husband, negotiated a neighborhood development agreement (NDA) that restricted the vacant lot to a landscaped area until it was developed for a single family use. Adams also raised safety concerns about a bus stop at the corner near the property, utility poles, parked cars and heavy traffic in the vicinity of the property.

The ZBA granted the variance but limited the fence to 4 feet in height, required that parking be only for the residents of the adjacent home and the approval was only good for a 5 year term. Adams appealed the decision to the Court of Common Pleas. Yager intervened and filed a motion to quash arguing that Adams was not an aggrieved person and therefore did not have standing. The trial court did not rule on the motion to quash but instead affirmed the ZBA’s grant of a variance. The trial court also found that Adam’s involvement in the NDA did not grant her aggrieved party standing but did not make a determination regarding her standing based on her home’s proximity to the vacant lot or her participation in the hearing. On remand, the trial court granted the motion to quash finding that Adams lacked standing.

Before the Commonwealth Court, Adams argued that she had standing because her home was only 250 feet away from the vacant lot. Yager argued that Adams was not an “aggrieved person” because she did not suffer direct, immediate or substantial impact by the variance being granted. The Court held that Adam’s home, which was located between 250 feet and 350 feet away but on the opposite side of the street, was not sufficiently close to the vacant lot to confer standing based on proximity alone. Adams did not set forth a particular harm that she will suffer due to the use of the vacant lot. Her general concerns about safety are abstract interests of all citizens. Therefore, Adams lacked standing to appeal the ZBA decision.

Judge Fizzano Cannon filed a dissenting opinion stating that Adams established adequate close proximity to the vacant lot to confer standing. Additionally, Adams was involved in negotiating the NDA that specifically restricted the use of the vacant lot. While a zoning board cannot enforce the NDA, it demonstrates Adams’s substantial, direct and immediate interest that is beyond an abstract interest in the proceedings. Taken together, these items represent a particular harm that would confer standing upon Adams.

If this case is appealed it will be interesting to see whether the Supreme Court agrees to hear it, as both the majority and dissenting opinions present compelling arguments. Although it is an unreported decision, it could change the way Zoning Hearing Board’s consider the issue of standing and could lead to more challenges to standing at the trial court level.

The post Standing to Appeal a Zoning Hearing Board Decision appeared first on Clemons Reiss MacNair & Kushto, PC.

Wawa proposed to develop a 4,736 square foot convenience store with 10 fueling stations and 58 parking spaces. The Zoning Ordinance indicates that a Retail Store that provides for gasoline or fuel sales is a G22 Automobile Gasoline Station Use. In addition, a Convenience Store that provides for the sale of gasoline or fuel is only permitted in the zoning districts that permit a G22 Motor Vehicle Gasoline Station. The G22 Use indicates that the sale of gasoline or fuel is the principal function of the use and the convenience commercial component is limited to 2,000 square feet. Wawa challenged the Ordinance as de facto exclusionary.

Before the Zoning Hearing Board, competing expert testimony was presented. Wawa presented testimony from Charles Schmehl who is a zoning and land planning researcher and vice president of Urban Research & Development Corp. Mr. Schmehl opined that although 80% of nationwide gas sales are at convenience stores, the retail goods actually outsell gas at convenience stores. Mr. Schmehl also opined that the 2,000 square foot restriction was outdated and arbitrary and that most convenience stores range in size from 4,000 to 8,000 square feet.

The Township presented the testimony of Roshanee Bindra who owns five independent convenience stores and provides consulting services to similar convenience store retailers to turn around and grow their business. Ms. Bindra testified that based on her experience and that of her clients, retail stores of up to 2,000 square feet with gasoline sales are economically viable and profitable. The Zoning Hearing Board found Ms. Bindra’s testimony credible and found that the ordinance was not de facto exclusionary. On appeal, the Bucks County Court of Common Pleas reversed the Zoning Hearing Board and sustained the validity challenge and found that Wawa was entitled to site specific relief.

The Commonwealth Court noted that in analyzing a de facto exclusion claim, the Court focuses on whether the ordinance practically prevents the proposed use in the municipality. “If an ordinance, through its particular requirements, makes the development of a use permitted by the ordinance economically impossible, the ordinance is unconstitutional, because the municipality has essentially precluded a legitimate use by an indirect means.” (citation omitted). The Court has previously said that the question is not whether one use is more profitable but whether the proposed use is so unprofitable that it is effectively excluded. The Court then held that although there was conflicting testimony, the Zoning Hearing Board’s decision was supported by substantial evidence and therefore the Board did not abuse its discretion.

This case was a 2-1 panel decision with President Judge Leavitt filing a Dissenting Opinion in which she opined that the problem with the ordinance is the requirement that a G22 use involve primarily the sale of gasoline. This requirement means that a convenience store in which the sale of gasoline is accessory to the retail component is not provided for anywhere in the Township.

The interesting issue not addressed by the Court was the Township’s alternative argument that the ordinance was not exclusionary because it contains a “catch all” provision. Specifically, the ordinance says that “Any lawful use that is required to be permitted by the [MPC] and is not otherwise permitted in other use categories of this Chapter may be permitted as a conditional use…” A number of municipalities have a similar provision in their zoning ordinance and the issue of whether this provision will defeat a claim of exclusionary zoning will have to wait for another case.

We will continue to monitor this case to see if there is an appeal to the Pennsylvania Supreme Court. Once the appeal period expires, we will be able to advise our municipal clients regarding any potential zoning amendments that should be considered.

The post Plumstead Township Zoning Ordinance Not Exclusionary appeared first on Clemons Reiss MacNair & Kushto, PC.

Distributed antennae systems (DAS) are wireless facilities that are also often referred to as mini-cell towers. Simply put, DAS facilities use small antenna and a hub to relay and amplify cellular and data signals. The antenna are often placed in public rights-of-way on lampposts, street lights and telephone poles and are designed as a system of mini-towers “distributed” throughout the coverage area.

From 2005 until 2015, the Pennsylvania Public Utility Commission issued Certificates of Public Convenience to DAS providers and operators. This Certificate of Public Convenience provided DAS operators and providers with exemption from local zoning ordinances and also the power of eminent domain. A Certificate of Public Convenience pre-empts virtually all local control over the siting of mini-cell towers. In 2015, the Commission decided to review this practice to determine whether DAS operators and providers actually meet the definition of a “public utility”. If they do not meet that definition, then DAS operators and providers are not entitled to Certificates of Public Convenience. The Commission ultimately determined that providers and operators of DAS do not meet the definition of a “public utility” and, therefore are not entitled to obtain Certificates of Public Convenience. Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Pennsylvania Public Utility Commission Docket No. M-2016-2517831.

The Decision of the Public Utility Commission was appealed to the Pennsylvania Commonwealth Court. Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission, 697 CD 2017. The Commonwealth Court reversed the PUC and found that DAS providers were not exempt from PUC regulation and could continue to seek Certificates of Public Convenience.

On appeal, the Supreme Court upheld the Commonwealth Court’s decision holding that because the statute was not ambiguous, no deference was required to be given to the PUC’s interpretation of the same.

The bottom line, DAS providers meet the definition of a “public utility” and are entitled to seek Certificates of Public Convenience. Once issued a Certificate of Public Convenience, DAS providers have access to public utility poles, public rights of way, exemptions from local zoning codes and the right to exercise the power of eminent domain. The Decision opens the door for

The post Distributed Antenna Systems Are Public Utilities Under PA Law appeared first on Clemons Reiss MacNair & Kushto, PC.

Governor Wolf requested that the Pennsylvania Supreme Court exercise its jurisdiction pursuant to its King’s Bench Powers and/or Powers to Grant Extraordinary Relief to declare H.R. 836 null and void. The Governor argued that the language in Section 7301(c) of the Code requires that the concurrent resolution be presented to him for approval in order for it to be effective. The Legislature argued that the language in Section 7301(c) compels the Governor to issue an executive order or proclamation ending the state of disaster emergency.

The Pennsylvania Supreme Court issued a split decision with the majority finding that the language in Section 7301(c) required presentment to the Governor for his approval or veto and without that presentment, H.R. 836 is a legal nullity. Justice Dougherty issued a concurring and dissenting opinion siding with the majority but finding that the language in Section 7301(c) could not be severed and therefore the statute was not salvageable. Justice Saylor issued a dissenting opinion, joined by Justice Mundy, in which he held that the Constitution does not require presentment of the resolution at issue here.

On July 8th, H.R. 836 was formally presented to Governor Wolf. Governor Wolf has indicated he will veto the Resolution. It would take a vote by a two-thirds majority of each House to override the veto and that is unlikely.

The post Governor Wolf’s Proclamation of Disaster Emergency appeared first on Clemons Reiss MacNair & Kushto, PC.

“Covid-19 Disaster Emergency” is defined as: The duration of the proclamation of disaster emergency issued by the Governor on March 6, 2020 … and any renewal of the state of disaster emergency.

“Authorized telecommunications device” is defined as: Any device which permits, at a minimum, audio communication between individuals.

As a result of this Act, many municipalities began holding meetings by conference call and on-line platforms such as Zoom and Skype. Now that almost all Pennsylvania Counties are moving to the Green Phase, municipalities are wondering when they must resume in-person meetings.

The Governor’s Disaster Emergency Declaration was set to expire on June 4th but was renewed by the Governor on June 3rd for another 90 days. The new expiration date for the disaster emergency is September 2nd. So, municipalities can continue to use authorized telecommunications devices to conduct meetings until September 2nd, unless the Governor terminates the disaster emergency sooner.

However, termination of the Disaster Emergency is currently the subject of litigation before the Pennsylvania Supreme Court. The Legislature passed a resolution in both houses to terminate the disaster emergency. Governor Wolf says that the resolution is not effective unless he signs it, which he did not. The Legislature does not have enough votes to override his veto. The Legislature argues that the resolution does not have to be signed by the Governor in order for it to become effective. The Supreme Court could rule on this issue before the end of the week.

Our office will provide updated information on the Supreme Court case when it becomes available.

The post When Must Municipalities Start to Conduct In-Person Meetings? appeared first on Clemons Reiss MacNair & Kushto, PC.

The standard for obtaining a Temporary Restraining Order or a Preliminary Injunction is a showing by the Plaintiff “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” The Court found that Petitioners could not show that they were likely to succeed on the merits of the following claims: Procedural Due Process, Substantive Due Process, Unjust Taking, Payment for Use of Petitioner’s Property, Equal Protection, First Amendment violations, the Guarantee Clause, Freedom of Religion and the Right to a Public Education.

The Court sympathized with the Petitioners but had to consider the circumstances under which the Governor’s orders were issued. “When faced with the real possibility that thousands of Pennsylvanians could lose their lives to COVID-19, the Governor took swift, reasonable action to prevent more widespread destruction – that the Pennsylvania death rate is not higher is a sign of the Orders’ efficacy, not their irrelevance.” It is not up to the Court to question the reasonable motives of elected officials and a Temporary Restraining Order cannot be granted based on political disagreements with the Orders. There are plenty of reasons for residents to disagree with the Governor’s means for fighting the pandemic but there is no legal basis for enjoining them. The Temporary Restraining Order was therefore denied.

The post Latest Challenge to Wolf Business Closure Order Unsuccessful appeared first on Clemons Reiss MacNair & Kushto, PC.

Apparently, some NHs and ALFs are claiming that because the funds recipients are on Medicaid, the facilities are entitled to the economic stimulus payments, and are requiring the residents to turn those funds over. This is not lawful. According to the CARES Act, the economic stimulus payments are tax credits, and tax law says that tax credits do not count as “resources” for federal benefits programs like Medicaid. The government may not seize these payments; nor can nursing homes or ALFs.

If your loved one lives in a nursing facility and you are not sure what happened to their stimulus payment, talk with them soon, and consider having a talk with the facility’s management to investigate. If you suspect that the facility has taken the payment, get in touch with the state’s Attorney General’s office and ask them to help you get it back.

The post Nursing Homes/Assisted Living Facilities Not Entitled to Stimulus Check appeared first on Clemons Reiss MacNair & Kushto, PC.

§125 Cafeteria Plans are employee benefit plans maintained by an employer under which all participants are employees and all participants may choose among two or more benefits consisting of cash and “qualified benefits”. Like 401 (k) contributions, these benefits are excludible from the employee’s gross income under the Internal Revenue Code (IRC). Possible benefits may include employer-provided accident and health plans, health FSAs and dependent care assistance programs.

Employee elections under these plans generally are irrevocable and must be made prior to the first day of the plan year, e.g. no later than December 31, 2019 for the 2020 plan year. Specific employer plan provisions may allow or prohibit certain mid-year elections under certain circumstances.

The IRS Notice is very detailed, but in general it allows employers to revise their plans (i) to permit employees who initially declined coverage an opportunity to elect coverage, (ii) to allow already enrolled employees to change the coverage they initially elected, and (iii) to allow employees to increase or decrease amounts in their health FSAs, and to increase or decrease amounts allocated dependent care assistance programs. Normally, none of these actions would be permitted.

Normally, unused amounts remaining in an employee’s account at the end of a plan year (sometimes plus a “grace period” of, for example, 2 ½ months) are forfeited (unusable). The Notice allows employers to amend plans to extend the period within which an unused allowance from a prior year may be used to pay or reimburse medical care expenses or dependent care expenses. For example, an employee who had an unused balance of $1000 in her plan at the end of 2019 might lose that amount if it was not used by March 15, 2020. The Notice permits the plan to be amended to extend until December 31, 2020 the ability to use the unused amount. This is particularly helpful since some procedures that may have been scheduled for the early months of 2020 have been postponed due to the coronavirus pandemic through no fault of the patient.

This is just an overview of the many provisions in the Notice, which provides welcome relief to the many employees covered by these plans who have been adversely affected by the health emergency.

The post IRS Allows New Flexibility in Section 125 Cafeteria Plan Elections appeared first on Clemons Reiss MacNair & Kushto, PC.

Dr. Fask applied for a special exception to operate a professional office within a residential dwelling on Brennan Drive within the Township. Pursuant to the Zoning Ordinance, a psychologist’s office qualifies as a professional office. The testimony indicated that Dr. Fask saw clients during the week and on Sunday nights but did not anticipate working more than 40 hours per week. Appointments lasted 45 to 50 minutes and there is 10 to 15 minutes between appointments meaning that it is unlikely that more than one client would be at the home at a time. Dr. Fask also presented additional evidence that he could comply with all other specific requirements for the special exception use.

Several neighbors testified that through traffic is prohibited from the Darby Road intersection with Brennan Drive between 7 am and 9 am but the same prohibition does not apply to the Route 320 entrance to Brennan Drive. They also expressed concerns about the type of patients that Dr. Fask would treat.

The Zoning Hearing Board (“ZHB”) approved the special exception subject to 6 conditions. One of the conditions was that the business hours would be no more than 40 hours per week, Monday through Friday only and that office hours could not begin before 9 am and no appointments would start after 7 pm. Dr. Fask appealed this condition. On appeal, the ZHB conceded that the condition limiting the hours of operation were based on the traffic restriction. The weekend prohibition was because more families and children are present on the weekends and the ZHB had a desire to preserve the residential character of the neighborhood.

The Commonwealth Court cited the well-established principle that a “special exception is a use expressly permitted by the local zoning code, so long as the proposed use does not have a detrimental effect on the community.” The ZHB can impose reasonable conditions in granting a special exception. “However, where there is no evidence in the record to support the imposition of a condition it is considered manifestly unreasonable and an abuse of discretion.” The record in this case contained only speculative concerns raised by the neighbors that did not amount to substantial evidence. The restriction on days and hours of operation was therefore unreasonable and the Commonwealth Court struck it.

The post Can a Zoning Hearing Board Restrict Hours of Operation? appeared first on Clemons Reiss MacNair & Kushto, PC.