Albert Arking along with a group of homeowners appealed the decision of the Montgomery County Planning Board, which approved a plan for resubdivision of an undeveloped lot to build two separate single-family homes. The Tamara Corporation submitted the plan to the Board, the appellants submitted letters opposing the resubdivision, and a public hearing was held; the board subsequently approved the plan by a 3-0 vote. The appellants submitted a petition for reconsideration, but the Board maintained its decision, but stated that it approved the plan because the lots were of the “same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as to t other lots within the existing neighborhood.” The appellants eventually appealed to the circuit court where they sought to supplement the record, but the court denied their motion, and they appealed again.

Essentially, the appellants argued on appeal that the circuit court improperly denied their motion to supplement the record because without such additional information the court would not be able to determine if the Board exercised reasonable judgment in light of the facts. Thus, the appellants were not appealing whether the Board improperly denied their request to supplement the record, but whether the circuit court did in denying their motion. The court began by stating that it would adhere to the strict standard that a reviewing court is limited to the record as submitted, and not only could it not consider the appellants’ additional evidence, but the circuit court did not err in reaching the same determination. Thus, the court then analyzed whether the Board’s decision was unreasonable.

The statute governing the design of lots in a resubdivision stated, in relevant part, that the lots “shall be of the same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as other lots within the existing block neighborhood or subdivision.” Appellants contended that the Board did not “appropriately select the ‘existing neighborhood’” for comparison sake, and that the lots were of the same character as the lots in the existing neighborhood. The court stated that because the Board took into consideration the abutting properties, the access points to and from the lots, and the consistency of the zoning within the boundary that its standard of determining an “existing neighborhood” was reasonable. The court also found the Board had substantial evidence to support its determination because it when there is “an honest dispute as to what comprises the neighborhood making the issue fairly debatable” the City’s acceptance of one definition cannot be questioned. Because the Board considered specific quantitative data, such as comparable lot size, shape of the lots, and their relationship to the lots surrounding them, the court found that the Board properly applied its standard to the proposed lots, and upheld the Board’s decision.

Arking v. Montgomery County Planning Bd., 215 Md. App. 589 (Md. Ct. Spec. App. 2014)

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The City of Los Angeles’s granted a variance allowing a certain piece of property to operate a “sexual encounter establishment.” McQuiston brought suit in federal court challenging the variance, the defendants moved to dismiss, and the district court held for the defendants. McQuiston then appealed the decision of the district court, arguing a conspiracy claim, and other procedural arguments related to the finality of the defendant’s decision. The court found that McQuiston’s conspiracy claim failed because he did not allege, “any defendant’s actions were motivated by some racial, or … otherwise class-based, invidiously discriminatory animus.”

To successfully allege a conspiracy claim under 42 U.S.C § 1983, a plaintiff must set forth facts which demonstrate, if true, that “at least one private individual reached a specific agreement with at least one state actor to violate the plaintiff’s constitutional rights.” McQuiston failed to satisfy this requirement because he merely alleged that the defendants sought a variance, which they knew they were not entitled to receive, and that they “could not have obtained the variance without the cooperation of city officials.” Thus, McQuiston failed to allege a viable conspiracy claim.

McQuiston also argued that his claim under California state law was in fact timely because the City’s final decision on the variance was never mailed to him. However, the court found that McQuiston misinterpreted the relevant municipal law on this point, which states “the grant of a variance shall become final after 15 days from the date it was mailed to the applicant, unless an appeal is filed with the Council within that period.” The court found that it was uncontested that McQuiston filed an appeal within this fifteen-day window, and as such the proceedings were stayed until a final decision was made. The relevant law states that such an appeal would be decided by the Mayor, and once approved by the Mayor the ninety-day window to appeal would begin to run. Thus, because McQuiston did not file an appeal during that ninety-day window, his state law claim was untimely. The court found that McQuiston’s §1983 claims were precluded because the administrative proceedings were adjudicatory in nature, and the legal standard in the municipal law was followed, where facts were developed via testimony and evidence.

McQuiston v. City of Los Angeles, 2014 WL 1016789 (9th Cir. 3/18/2014)

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The City denied Flagship‘s application to rezone property “allowing Flagship to construct waste disposal and waste management facilities, methane gas facilities, recycling facilitates, and wetlands habitat preservation on the property.” Flagship alleged the City’s denial was arbitrary and capricious and in violation of Fourteenth Amendment procedural and substantive due process. Flagship further claimed that the hearing regarding the ordinance was an “unwieldy affair.” In sum, Flagship contended that the opponent’s conduct during the hearing was argumentative, hyperbolic, and extremely confusing. In addition to the unruly behavior at the hearing, Flagship argued that several of the board members engaged in ex parte communications because they conducted private research prior to the hearing, including a conversation with “an unidentified person about a landfill located in a different community.” Flagship also argued that the council members were clearly biased because they stated opposition to the ordinance prior to hearing any evidence at the hearing. The City’s reasons for denying the ordinance were: “(1) unpleasant odors, (2) attraction of rodents, (3) traffic increased due to garbage trucks, and (4) a purported requirement of two distance access point/entrance ways.” On appeal, Flagship’s argument was not any substantial or competent evidence to support these findings.

As to Flagship’s procedural due process claim, the court found that because Flagship did not avail itself to all state remedies, and did not allege that such adequate remedies were unavailable that there was no procedural due process violation because “only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation” occur. Flagship’s argument was that it was not required to exhaust all available administrative remedies prior to seeking judicial review. The court found that argument was not applicable because a due process violation requires the “unavailability of adequate remedies” which is not what occurred here. The court also found that Flagship’s substantive due process claim was barred because Flagship’s claims fell under state law and not the federal Constitution, as such there could be no substantive due process violation. The court affirmed the district court’s dismissal of both Flagship’s procedural and due process claims.

Flagship Lake County v. Mascotte, 2014 WL 961042 (11th Cir. (unpub) 3/13/2014)

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Defendants were attempting to obtain the various approvals required to build their new house from the City of Rye Planning Commission, and the plaintiffs commenced this action against the defendants for declaratory and injunctive relief alleging that the front and rear yard setback lines, which were drawn on the Forest Harbor subdivision map approved by the Planning Commission in 1967, required the front yard setbacks to be of at least 60 feet. The plaintiffs sought a declaration that the front and rear yard setback lines drawn on the subdivision map are deed restrictions that run with the land, and an injunction permanently enjoining the defendants from performing any construction in violation of those setback lines.

The appellate court held that the trial court should have denied the plaintiffs’ motion for summary judgment since, “[T]he policy of the law is to favor free and unobstructed use of realty” (Huggins v. Castle Estates, 36 N.Y.2d 427, 430, 369 N.Y.S.2d 80, 330 N.E.2d 48). Furthermore, the court noted that purchaser takes with notice from the record only of encumbrances in his direct chain of title. In the event that actual notice before or at the time of his purchase or of other exceptional circumstances are absent, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to himself or his direct predecessors in title. In this case, there was nothing in the defendants’ chain of title that indicated these setback lines are deed restrictions that run with the land. Since deed restrictions are strictly construed against those seeking to enforce them, it will be enforced only where their existence has been established by clear and convincing proof, the court found that the plantiffs failed to present any triable evidence in support of their argument. Accordingly, the court held that the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, and found that their motion should have been denied.

Butler v. Mathisson, 114 A.D.3d 894 (N.Y.A.D. 2d Dept. 2/26/2014)

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Lamar Advertising leases sign spacing for outdoor advertising and TLC has an ownership interest in several parcels of real property which Lamar leases for its outdoor advertising signs. In 2002, Rapid City made several changes to its Sign Code, including changes to the Off–Premises Sign Credit System (“Credit System”). This Credit System permitted owners of off-premises signs to receive “Off Premises Sign Credits” (“credits”) for removing an off-premises sign within the City or reducing the size of an off-premises sign to comply with the newly-enacted restrictions. Under it, an off-premises sign owner would receive 2 credits for removing a sign that did not conform to the Sign Code and 1 credit for removing a sign that did conform. Lamar contended the sunset provision of the Sign Code made it impossible for Lamar to use its sign credits before they expire, rendering them worthless. Lamar and TLC commenced this action against the City, asserting the Citizen Initiatives directly contradict the South Dakota Codified Laws, result in a taking of private property without just compensation, and violate their rights to freedom of speech and equal protection under the law provided in the United States and South Dakota Constitutions.

In its analysis of these claims the court noted that “fundamental rule of statutory construction that statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them retrospective effect clearly appears.” In re Scott’s Estate, 133 N.W.2d 1, 3 (S.D.1965); see also Gasper v. Freidel, 450 N.W.2d 226, 233 (S.D.1990) (“statutes are presumed to have prospective application and may be construed as retroactive only when such intention plainly appears.”). Since the sunset provision of the Sign Code contained no language signifying retroactivity, did not mention a specific date the provision should be applied, nor include any form of the word “retroactive ”, the court concluded that there is no language in § 15.28.250(F) to get the sunset provision past the fundamental rule regarding prospective operation. The court therefore found the plain language of the sunset provision to only apply prospectively, and thus granted the Defendant’s motion for summary judgment in regarded to this claim.

The court found an issue of material fact exists regarding whether the amended spacing requirements for off-premises signs contained in § 15.28.160(D) of the Sign Code are reasonable, since the issue of whether the increased spacing requirements were reasonable was a material fact to be decided at trial. Finally, the court found that the Sign Code did not restrict speech based on content nor does it create an arbitrary classification between Lamar and other outdoor advertisers since all off-premises advertisers are treated the same and there is no classification between Lamar and other outdoor advertisers.

Lamar Advert. of S. Dakota, Inc. v. City of Rapid City, 2014 WL 692956 (D.S.D. 2/21/2014)

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In 2010, Miller acquired a parcel of property located within the Pocono Ranch Lands Property Owners Association Inc. Miller’s third amended complaint—the operative complaint used in this appeal—alleges that the Association, the individuals who control it, and certain Lehman Township officials (collectively, “the defendants”) have acted improperly in the following ways: (1) they have failed to recognize that Miller’s property is deeded commercial, not residential; (2) they have sent fee and assessment bills to her; (3) they denied her request for a variance that would have allowed her to use the property for commercial purposes; and (4) by placing an easement on the property and refusing to allow her to use the property for commercial purposes, they have effectively taken the property.

As to Miller’s claims under 42 U.S.C. § 1983, the court upheld the District Court’s holding in favor of dismissing them. Miller first contended that the defendants, by denying her request for a variance, violated her procedural-due-process rights. To state a procedural-due-process claim, however, Miller needed to show that the state “procedures available to [her] did not provide due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir.2006). The court did not find this applicable to the case at bar since Pennsylvania affords a full judicial mechanism for an aggrieved landowner to challenge the decision to deny a variance. See, e.g., DeFilippo v. Cranberry Twp. Bd. of Supervisors, 49 A.3d 939, 941–42 (Pa.Commw.Ct.2012). Since courts have held that these procedures provide due process, Miller’s claim was defeated.

Miller further contended that the defendants violated her substantive-due-process rights. To state a substantive-due-process claim in a land-use case, the plaintiff was required to show that the defendants’ conduct “shocks the conscience.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir.2004). However, the court cited that in several cases having claims similar to Miller’s—such as that the defendants applied zoning requirements unfairly, pursued unnecessary enforcement actions, and delayed permits and approvals—failed to satisfy this standard. Accordingly, the Third Circuit dismissed these claims as well.

Miller v. Pocono Ranch Lands Prop. Owners Ass’n Inc., 2014 WL 661573 (3d Cir. 2/21/2014)

The opinion can be accessed at:

Davidson County Broadcasting, Inc. (DCBI), sought to construct a 1,350-foot radio tower on property owned by Richard and Dorcas Parker. The Board denied DCBI’s application because it posed “an air safety hazard” to a nearby private airport. DCBI and the Parkers appealed the Board’s decision twice, but it was affirmed both times. DCBI then applied to the Board to build a 1,200-foot radio tower in essentially the same location as the first proposed tower. DCBI also applied for a “supplemental application to include property owned by Maurice E. Parker and May Lee Parker as a fall zone.” After a hearing, the Board found that the new proposed tower would not create a hazardous safety condition and granted the conditional use permit. Petitioners then filed a writ seeking review of the approval arguing that the new tower application was barred by res judicata and collateral estoppel. The Rowan County Superior Court reversed the Board’s approval of the new tower application finding that it was barred by res judicata and collateral estoppel, and DCBI appealed.

Relevant to the court’s analysis, was its determination that the hearing the Board held in consideration of the new tower application constituted a quasi-judicial hearing. The question then became whether res judicata bars a quasi-judicial proceeding, and if so under what conditions would it apply. The court looked to In re Broughton Estate, 210 N.C. 62 (1936), as its basis for finding that res judicata could preclude the defense of res judicata in quasi-judicial decisions. In Broughton, the court held that a “material change” was required to preclude such a defense. The court then defined “material change” as one “which precludes the use of the defense of res judicata . . . when the specific facts or circumstances which led to the prior quasi-judicial land use decision have changed to the extent that they ‘vitiate the reasons which produced and supported’ the prior decision, such that the application can no longer be characterized as the same claim.”

Therefore, because the original tower application was denied because the tower was determined to be a safety hazard to the airport, DCBI needed to “have materially changed the design of the proposed tower in such a way as to vitiate the concerns regarding air safety,” which led to the denial of the original tower. The 150-foot decrease in the tower’s height constituted a change from the original application, but the court found that “the Board’s finding in the instant case that there was a material change in the [new] application was not supported by the evidence.” Essentially, the court found that the safety evidence presented against the original tower application could have been equally applicable to the new tower. Thus, the court found that the difference in height did not constitute a material change such that “res judicata barred the Board from reconsidering its previous decision,” and that the superior court correctly found that the Board should have dismissed the new application based on res judicata.

Mount Ulla Historical Preservation Society, Inc., v. Rowan County, 2014 WL 619584 (N.C. App. 2/18/2014)

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Baltimore County owns a 2.63-acre parcel in Oregon Ridge Park, which the County leased to Oregon to use for the restaurant it operated in the historic building located on the property. The County functions not only as Oregon’s landlord for the property, but also as its land use regulator. The parties entered into the original lease in 1985, which essentially stated that Oregon agreed to comply with all necessary laws, that the County had the right to exercise full governmental control, and that the County could cancel the lease if Oregon were to violate any of its terms or conditions. In 1994, the County, in its capacity as owner of the property, filed three petitions with the Zoning Commissioner with regard to Oregon’s use of the property. The petitioners were for (1) a special hearing to determine if the County was exempt from zoning regulations, (2) a special exception to convert the existing historic building to a restaurant, and (3) a variance allowing for fewer parking lot spaces than required for a restaurant of that size under the zoning regulations. The Zoning Commissioner granted the second and third petitions, but the use of the property was subject to several conditions.

The relevant conditions to the litigation were that Oregon was “prohibited from hosting parties, weddings, and other outdoor events,” and while Oregon was permitted to utilize outdoor seating it was only permitted to use that outdoor seating for sit-down dining. Also, Oregon was not permitted to have any tents or canopies on the property, but table umbrellas were permitted. Later, Oregon requested that its petition for a variance allowing for fewer parking spaces be dismissed because it wished to expand the lot. The Zoning Commissioner granted the request but the parking lot was to “be of crushed stone or other permeable surface” in order to match the preexisting surface. Eventually, these terms were merged into a restrictive covenant entered into between planning council and Oregon. In 1994, the County and Oregon executed a supplemental lease extending the 1985 lease, but also amending it to include the restrictive covenant.

Although, Oregon agreed to not pave the parking lot, the parking lot was in-fact paved in early 2006, but it was undetermined who directed the parking lot to be paved. In 2008, the Falls Road Community Association filed in Circuit Court for Baltimore County against both Oregon and the County. “The first three counts of the complaint asked the court to issue writs of mandamus ordering the County to enforce limitations on the paved surface area of the parking lot, the number and location of parking spaces, and the use of the Property for outdoor events.” The final count of the complaint was brought under the Maryland Uniform Declaratory Judgments Act (Act), which in relevant part, requested injunctive relief. The Circuit Court found that the claims requesting mandamus were not available because the duties were discretionary, and therefore mandamus relief was not an option. The court also found that the objects on the patio constituted very large umbrellas, and therefore, did not violate the agreement. With regard to the parking lot, the court found that the “paving of the entire parking lot did not violate the impervious surface limitation in the zoning regulations,” but that paving the lot and adding spaces violated the Board of Appeals orders. However, the court did not grant declaratory relief because “a declaratory judgment would not terminate the uncertainty or controversy giving rise to the action.” Additionally, the circuit court found that there was no basis for ordering Oregon to tear up the parking lot, and that it did not have authority to grant an injunction under the Act.

On appeal, the issues were (1) whether the Community Association was required to pursue administrative relief prior to its action in court, (2) whether the circuit correctly denied mandamus relief, and (3) whether the circuit court did or did not have authority to issue a declaratory judgment under the particular circumstances. With regard to the issue of administrative relief, the court found that because “the courts did not interfere with an efficient administrative process on a matter within the expertise of the agency,” that the Community Association was not required to pursue further administrative relief prior to litigation. The court supported this determination stating that in some cases an owner or tenant of property would remain trapped in a cycle of administrative proceedings, and never have the opportunity for judicial review.

Next, the court addressed the issue of mandamus relief, where it began by stating, “common law mandamus is an extraordinary remedy that is generally used to compel inferior tribunals, public officials or administrative agencies to perform their function . . . [and] [t]he writ ordinarily does not lie where the action to be reviewed is discretionary or depends on personal judgment.” The court found that the County was clearly within its discretion in choosing not to enforce every violation because choosing to prosecute an enforcement “involves the consideration of potential outcomes, the odds of success, the cost to the taxpayers,” and the benefit to the community. These choices are thus inherently discretionary.

Lastly, the court addressed whether the circuit court had the authority to grant declaratory relief under the Act. The court found that the circuit court did in-fact have the authority to grant declaratory relief under the Act, but that the particular relief requested in the complaint, an injunction, may not have been the most appropriate.

Falls Road Community Ass’n, Inc., v. Baltimore County, 2014 WL 712665 (M.D. 2/25/2014)

The opinion can be accessed at:

Homer L. Gibson owned approximately 84 acres of property zoned “A-20” where the previous owner received a conditional use permit “for gravel extraction on one 13.4-acre parcel of the property” in 1997. It was undisputed that gravel extraction was a permitted conditional use in A-20 zones. In 2008, Gibson applied for a gravel extraction permit for 60 acres from the Department of Natural Resources (DNR). Kittitas County contacted DNR confirming that the extraction for the 60 acres had been approved, and DNR subsequently approved Gibson’s permit. However, in 2009, the County sent Gibson a notice of violation warning him that there was no conditional use permit for the gravel extraction he was conducting on his property. In 2010, Gibson applied for another conditional use permit seeking to amend the 1997 permit to include both rock crushing and gravel extraction. The application included a copy of the State Environmental Policy Act (SEPA) checklist that was submitted with Gibson’s 2008 application to DNR. The original checklist stated the subject area was for 60 acres, but the list submitted to the County stated 84 acres.

Ellensburg Cement objected to Gibson’s 2010 application noting the discrepancies in the applications. The County held two hearings; one closed record hearing on the SEPA appeal, and one open record hearing on the conditional use permit issue. At the open hearing, Ellensburg Cement objected to the application and argued “rock crushing was not a permitted conditional use on A-20 land.” The Board approved Gibson’s application anyway. Ellensburg appealed but the superior court affirmed the decision. Ellensburg then appealed to the Court of Appeals, which held that the County was in error when it held a closed record hearing on the SEPA appeal. The Court of Appeals also held that rock crushing was not a permitted conditional use in the A-20 zone. The County and Gibson appealed.

First, the court addressed whether the County’s appeal procedures were in compliance with state law under SEPA. Under Washington state law, an agency cannot conduct a hearing of only the alleged SEPA violation, but must also have a “hearing on the action to which the SEPA determination relates.” Thus, the hearings should have occurred simultaneously if the state were providing for a SEPA appeal. Moreover, “a SEPA appeal must provide for the preparation of a record for use in any subsequent appeal proceedings.” The court interpreted the governing statutes for SEPA appeals procedure to mean that “a county that chooses to provide an appeal of its SEPA determination must provide a single simultaneous open record hearing on both the SEPA determination and the underlying action, followed by an optional single closed record appeal.” Therefore, the County was clearly engaging in unlawful procedure, or at least failing to comply with the statutory requirements.

Second, the court addressed whether the Court of Appeals should have afforded more deference to the local decision makers when it held that rock crushing was not a permitted conditional use. The court found that the Court of Appeals was correct in not giving deference to the hearing board’s decision because the transcript showed “the absence of any preexisting policy regarding interpretation of the zoning ordinance at issue.” Thus, because rock crushing was not specifically listed in the statute as a permissible use, the court inferred that it was prohibited on A-20 land. The court affirmed the decision of the Court of Appeals.

Ellensburg Cement Products, Inc., v. Kittitas County, 317 P.3d 1037 (WA 2014)

The opinion can be accessed at:

Tri-County Landfill (“Tri-County”) filed an application with the zoning board for approval of a proposed landfill. With regard to the subject property, Tri-County sought an appeal from the denial of the certificate of use and occupancy, for its alleged nonconforming transfer station use. It also sought a use variance and dimensional variance, and challenged the ordinance for an alleged de facto exclusion of landfills. The subject property was in an area zoned for residential use, which does not allow for landfill, but the industrial zoning did allow for landfills. The zoning ordinance also stated that certain structures were subject to a 40-foot maximum height requirement for residential districts, and sanitary landfills were not listed as one of the exceptions. Tri-County expanded the landfills without proper approval over several years, but then sought approval from the board to use the subject property as a landfill instead of a transfer station. On appeal, Tri-County essentially argued that the ordinance’s definition of “structure” should not be read to encompass landfills, and that the 40-foot height limitation on those structures created an unconstitutional and exclusionary effect on the use of landfills.

The ordinance defines structure as: “A combination of materials forming a construction for occupancy and/or use including among other[s], a building, stadium, gospel tent, circus tent, review stand, platform, staging, observation tower, radio tower, water tank, trestle, wharf, open shed, coal bin, shelter, fence, wall and a sign.” Thus, in order to determine if a landfill qualified as one of the permitted structures, the board needed to determine what constituted a modern landfill. Referring to the determination of the board, the court stated that a modern landfill was not only highly sophisticated and highly engineered, but contained a list of specific features, which essentially consists of several types of liners, drainage systems, collection systems, and pumps. The trial court determined that the landfill was in fact a structure because the statute merely required “that the object be a construction for some type of use.” The Commonwealth Court agreed with the trial court.

Next, the court addressed whether the statute created a de facto exclusion of landfills. “A de facto exclusion exists where an ordinance permits a use on its face, but when applied acts to prohibit the use throughout a municipality.” The challenger has the burden of proving that the ordinance excludes landfills. However, the board determined that because there was extreme conflict in the testimony regarding whether the landfill would be economically feasible with a 40-foot height restriction, that it “did not meet its burden of showing the zoning ordinance’s 40-foot height limitation effectively excludes landfill use.”

With regard to Tri-County’s application for a dimensional variance, the court considered analyzed the application according to the unnecessary hardship standard. The court stated that “a landowner’s desire to increase profitably or maximize development potential” does not constitute a hardship. Thus, because Tri-County “has been operating a transfer station for over 20 years” it was clearly already operating a profitable business on the property, and as such could not demonstrate a hardship because that was its main argument for seeking the dimensional variance. The court affirmed the decision of the trial court, holding that the landfill constituted a structure under the zoning ordinance subject to the 40-foot height limitation, and that Tri-County failed to establish hardship warranting dimensional variance.

Tri-County Landfill, Inc., v. Pine Township Zoning, 83. A.3d 488 (Pa. Cmmw. Ct. 2014)

The opinion can be accessed at:

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