Carlson v. Ciavarelli, PICS Case No. 14-0120 (C.P. Montgomery Jan. 9, 2014) Braxton, J. (7 pages).

COURTS OF COMMON PLEAS

The Legal Intelligencer

LAND USE AND PLANNING

Pennsylvania Environmental Immunity Statute • Noerr-Pennington Defense • False and Misleading Statements

Carlson v. Ciavarelli, PICS Case No. 14-0120 (C.P. Montgomery Jan. 9, 2014) Braxton, J. (7 pages).

Respondent was not entitled to Noerr-Pennington defense or to statutory immunity for claims raised in petition related to zoning and land use proceeding. Commonwealth Court should deny appeal.

Respondent submitted a minor subdivision plan to township to divide his lot, retaining a funeral home and residence on one, and building a single family mansion-style dwelling on the other. Township refused the subdivision based on ordinance violations. Respondent withdrew the application and instructed his architect to prepare plans for a building to fit the foot print of the house on the subdivision plan, but styled a "cabana" in all submissions to the township. In reality, respondent was building a "McMansion."

Once the permit was issued and construction began, respondent directed that the building be constructed as drawn on the original plans. Township issued a stop work order.

Petitioners field a petition to assess counsel fees, based on numerous applications and appeals filed by respondent. Respondent moved for hearing to determine immunity. The motion also raised the Noerr-Pennington doctrine, a defense based on the right to petition the government for redress of grievances. The court denied relief under Noerr-Pennington, dismissed the motion, and ruled that respondent was not immune from the claims asserted in the petition. Respondent appealed to the Commonwealth Court.

In its 1925(a) statement, the trial court argued that respondent had no right to interlocutory appeal of its denial of the Noerr-Pennington defense. Rather such decision, a ruling on the applicability of a defense, is not appealable prior to final judgment in federal court. In any event, the defense should be denied for same reason respondent's environmental immunity claim was denied, i.e., that the core factual allegations in the application for zoning relief were false and misleading.

Respondent also sought immunity under 27 Pa.C.S. §8302, the Pennsylvania Environmental Immunity Statute, arguing that, because zoning, subdivision and land development ordinances have references to the environment, his applications involved the enforcement or implementation of environmental law or regulation. Zoning and land use proceedings are not the type of action or litigation protected by statutory immunity under the act. Moreover, the act denies immunity in cases where the statement is "knowingly false, deliberately misleading or made with malicious and reckless disregard for the truth or falsity."

Petitioners met their burden of proving the applications were knowingly false and misleading, so neither statutory immunity nor the Noerr-Pennington doctrine apply in the case.