Articles by Our Attorneys

Your engineer calls you as you’re standing over two alternative site plans one afternoon, deciding which you want to submit to the municipality for your project. Your engineer tells you that the municipality is planning to change its zoning ordinance and map in a way that will not permit your project. However, your project is permitted under the current zoning ordinance and map. Will you be able to develop your property as you planned? Because of the “Pending Ordinance Doctrine”, the answer depends on the type of approval you are seeking.

So, what is the “Pending Ordinance Doctrine”? In brief, it is a rule that allows a municipality to deny a building permit for a use (and, by extension, applications for zoning relief required for issuance of a building permit) if that use will be prohibited under an ordinance change that is “pending.” An ordinance change is “pending” once the municipality’s governing body: (1) proposes a new zoning ordinance; (2) makes the proposed change available for the public to inspect; and (3), advertises in an area newspaper of general circulation that the proposed change will be discussed at a future public meeting. If all three of those things have occurred, the municipality may deny an application for a use that will be prohibited by the ordinance change, even if the change has not yet been formally enacted into law.

However, there are important statutory exceptions to this general rule. First, the doctrine does not apply to subdivision and land development applications if the preliminary plan is submitted before the formal enactment of the ordinance change. If the preliminary plan is submitted before the formal enactment of an ordinance change, the entire subdivision or land development application will be shielded from the ordinance change, even if the final plan is submitted after the change is enacted. However, all aspects of the application and plan must conform to the municipality’s technical and design requirements in order for this protection to apply. In municipalities which require the submission of a sketch plan prior to a preliminary plan, the submission of the sketch plan is sufficient to protect the entire application from the ordinance change. Submitting a sketch plan will not shield you from a pending ordinance change if the municipality merely recommends a sketch plan rather than requiring it, so your attorney should take care to confirm the local plan requirements.

Another exception to the Pending Ordinance Doctrine is if an applicant applies for certain types of zoning relief for a project that would ultimately qualify as either “subdivision” or “land development.” For example, if an applicant files an application for a “special exception” to build multi-family homes before an ordinance change is enacted, then both the special exception application and the future land development application and plan will be shielded from the ordinance change if the land development application is submitted within six months of the special exception’s approval.

Unfortunately for property owners and developers, not all types of zoning relief applications submitted before the start of the land development or subdivision process are exempted from the Pending Ordinance Doctrine. Similarly, applications for special exceptions and conditional uses are not exempted where the project would not eventually require land development or subdivision approval. In both these situations, the new “pending” ordinance or zoning map would apply.

If you plan on submitting an application for zoning relief or subdivision/land development, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Developments in the employment world happened in April that could impact everything from mandatory employee onboarding documents to the price of your favorite cup of coffee.  Read about a few of them below.

Employers should be Aware of Significant Changes are Coming for the Form I-9

The Form I-9, an HR onboarding document used to record employment eligibility verification as required by the federal government, is slated to undergo a significant overhaul when the current form expires on Oct. 31.  The Department of Homeland Security is reportedly attempting to simplify the form, with proposed changes including:

• Compressing Sections 1 and 2 from two pages to one page to reduce paper use.
• Moving Section 3 to a separate Reverification and Rehire Supplement, making it a stand-alone section.
• Updating the List of Acceptable Documents to include a link to List C documents (on the U.S. Citizenship and Immigration Services website) issued by DHS. Some List C documents were unlisted.
• Reducing and simplifying the form’s instructions from 15 pages to 7 pages.

Employers can take advantage of the opportunity to submit public comment by May 31. In the past, DHS has implemented suggestions based on public comments, and therefore interested employers should take advantage.

Pittsburgh Starbucks the First Pa. Cafe to Vote for Union

Starbucks employees in a Pittsburgh café unanimously voted to unionize on Wednesday, becoming the first of the coffee chain’s shops in Pennsylvania to organize.  Five additional Starbucks stores in Pittsburgh are in the middle of unionization efforts, and cafes in Massachusetts, New York, Washington state, Arizona and Tennessee have also recently voted to unionize.  The unionization process has reportedly been tense at times, with employees accusing Starbucks of trying to stifle their efforts.

However, in response to the unionization efforts, Starbucks CEO Howard Schultz issued a seemingly positive statement: “We will become the best version of Starbucks by co-creating our future directly as partners, and we will strengthen the Starbucks community by upholding each other’s dreams, upholding the standards and rituals of the company, celebrating partner individuality and voice, and upholding behaviors of mutual respect and dignity.”

Time will tell whether the unionization will impact Starbucks’ already-premium prices.

Pittsburgh Commission, Post-Gazette Drop Racial Bias Dispute over Black Lives Matters Coverage

The Pittsburgh Commission on Human Relations announced will drop its investigation into allegations of racial bias over the Pittsburgh Post-Gazette’s reassignment of reporters covering Black Lives Matter protests, and the newspaper will drop a lawsuit claiming the First Amendment bars such an investigation, the parties told a Pennsylvania federal court.

The Post-Gazette employee, who is African-American, had claimed in June 2020 that she was barred from covering the nationwide Black Lives Matter protests after she posted a message on Twitter sarcastically comparing property damage from the protests to the trash left behind by a country music concert in Pittsburgh.  The Pittsburgh Commission on Human Relations had launched an investigation into the Post-Gazette’s actions after the employee complained that she and other reporters who shared her tweet in solidarity had been barred from further protest coverage, which the Post-Gazette justified under the rationale that coverage she could not provide unbiased coverage.  The Post-Gazette and its parent company, Block Communications Inc., then filed a lawsuit against the commission, claiming its reassignment of reporters was an editorial decision protected by the First Amendment and not subject to second-guessing by the commission or courts.

The case is PG Publishing Co. et al. v. Pittsburgh Commission on Human Relations, case number 2:20-cv-01222, in the U.S. District Court for the Western District of Pennsylvania.  The case presented interesting issues in the overlap of First Amendment law and personnel decisions.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

The Standard Contact Guidelines are guidelines that suggest provisions for contact, holidays, extracurricular activities, and incidental issues related to custody.  The guidelines are just that—guidelines—based upon assumptions that both parents are able and fit to care for the child.  Second, the guidelines are not legally binding, nor do they create a presumption of shared custody.  If your custody case goes to a hearing before a Judge, the Court will apply the best interest of the child standard, without any presumption on what custody should be.

The Guidelines are useful in that they form a backdrop of what the Court may do if the parents cannot agree on certain issues, like how to share holidays.  If the Guidelines are applied, holidays will be shared on an alternating year on, year off basis.  The Guidelines also create expectations for what should happen in particular situations, such as a medical emergency, or ensuring that children complete homework.

Finally, even when the application of the Guidelines is deemed to be generally appropriate, they can and are adjusted to meet the needs of the particular family.  Holidays can be adjusted, added, and/or dropped.  As guidelines, any provision can be amended or discarded as deemed appropriate by the Court or agreed upon by the parents.

A parent engaged in custody litigation should review the Guidelines and speak to a knowledgeable family law attorney to determine whether and to what extent the Guidelines are appropriate for the case.  Assuming the case is appropriate for the Guidelines, a parent should determine which if any provisions should be changed, and if so, how.

At MacElree Harvey, we have a family law team with several attorneys experienced and knowledgeable in family law.  If you are wondering how the Guidelines could affect your case, you should contact our Delaware office at 302-654-4454.

The link to the standard contact guidelines can be found here: https://courts.delaware.gov/family/visitation/visitation.aspx

An ex parte order is an emergency order issued upon the application of one party before the other party is afforded a chance to respond. Because these orders are only issued in emergencies without the Court hearing from both parties, the movant must demonstrate the likelihood of immediate and irreparable harm in the absence of such an order. In Family Court, these orders are most often issued to protect victims of domestic violence and at risk children, but are not limited to those types of cases.

If a motion for an ex parte order is denied, the case continues to proceed in the normal course of business. If an ex parte order is issued, a hearing will be scheduled in short order to afford the non-moving party a chance to respond. This can either be an interim hearing, most often in custody cases, or a final hearing, most often in domestic violence cases where someone is seeking a Protection from Abuse Order.

A knowledgeable family law attorney can help you determine whether your situation will likely be considered appropriate for an ex parte order. Should you need to file for an ex parte order, a knowledgeable family law attorney can help present your application in a way that highlights the exigency of your situation and the need for an immediate order. If an ex parte order has been granted to the other party, you should seek the advice of an attorney right away. You will have the right to contest the ex parte order, and applicants often present an incomplete version of events in their ex parte filings.

Patrick J. Boyer concentrates his practice on family law. He advocates in various areas including, but not limited to, divorce, property division, alimony, child custody and visitation, child support, and domestic violence. In addition, Patrick assists his clients with issues involving guardianship and third-party visitation. He is licensed in Delaware and Pennsylvania and works out of the firm’s Centreville, Delaware office.

A scheduling order is an order issued by a Judge before trial that sets deadlines on when certain events in a case must occur. Often the most significant deadlines concern discovery and exchange of trial exhibits. Discovery is the process where a party can formally request information that is relevant to the case, such as documents or answers to questions in writing or orally. Discovery is usually requested from the opposing party but can be requested from non-parties as well. The scheduling order will usually set a deadline when discovery must be completed, and can prohibit discovery outside the timeframe set forth in the scheduling order.

Similarly, many scheduling orders require each side to provide copies of exhibits to the other side in advance of trial. Exhibits not provided in accordance with the scheduling order may not be admitted as evidence, even if they would otherwise be admissible. It is very helpful to have a knowledgeable family law attorney assist you after a Judge has issued a scheduling order. A knowledgeable family law attorney can work with you to seek information through discovery that will help prepare the case for trial or foster settlement. Similarly, a knowledgeable attorney can determine which documents will be admissible at trial, and if so, under what conditions, and select exhibits that will present your case in a persuasive manner.

At MacElree Harvey, Ltd., we have knowledgeable, experienced attorneys practicing exclusively in the area of family law, who have handled numerous cases with scheduling orders. We would be happy to assist with your matter as well.

Patrick J. Boyer concentrates his practice on family law. He advocates in various areas including, but not limited to, divorce, property division, alimony, child custody and visitation, child support, and domestic violence. In addition, Patrick assists his clients with issues involving guardianship and third-party visitation. He is licensed in Delaware and Pennsylvania and works out of the firm’s Centreville, Delaware office.