You may notice water being diverted from a neighboring property onto your property. Or, perhaps you have concerns that the property located above yours seems to be shifting, and you fear a landslide. If this happens, it would be natural to think about what could be causing this issue. Perhaps, it is related to the addition your neighbor added last year or the pool the above property built last summer. As you work through what could be causing your issue, the first place you may want to check is with your borough or municipality. You may want to take a look at the drawings or plans that your neighbor relied on in their construction project. However, getting to see those documents may not be as simple as serving your borough or municipality with a request under the Right to Know Law (“RTKL”).
Copies of residential building permit applications, building plans, floor plans, site plans, inspector reports, and final inspections may not be accessible under the RTKL. The Office of Open Records (“OOR”) recently upheld the denial of an RTKL request seeking exactly these types of documents in the case of Thomas Mueller v. Whitemarsh Township, AP 2021-0328 (March 26, 2021). In that case, Thomas Mueller sought construction documents from Whitemarsh Township (the “Township”) under the RTKL. The Township declined to provide certain documents because it argued they were protected under the Uniform Construction Code (“UCC”). Outside of a handful of documents where the OOR found the Township did not provide adequate justification, the OOR broadly upheld the denial of the RTKL law request for construction-related documents. The OOR’s rationale is that Section 403.85(e) of the UCC states that “[t]he Department [of Labor and Industry], a municipality and a third-party agency acting on behalf of a municipality may prohibit release of applications received, building plans and specifications, inspection reports and similar documents to the public under the [RTKL] .” 34 Pa. Code § 403.85(e).
The OOR’s ruling allows government entities to withhold broad categories of documents relating to a residential building’s construction. This ruling has the potential to negatively impact zoning and construction disputes throughout Pennsylvania. For example, a neighbor concerned that residential construction is not proceeding in a safe manner could be denied inspection reports. Likewise, a resident who believes that construction is not proceeding in accordance with an issued permit could be denied copies of prior denied applications.
While an OOR ruling can be appealed to the Court of Common Pleas or Commonwealth Court, the Mueller decision was not appealed. An appeal from an OOR ruling can be costly. But, in the near future, Houston Harbaugh expects that the OOR’s holding in Thomas Mueller will be challenged. The relevant section of the UCC is entitled “[r]elease, retention and sharing of commercial construction records.” “Commercial construction” is further defined as “[a] building, structure or facility that is not a residential building.” 34 Pa. Code § 401. Arguably, the UCC’s protections for documents relating to commercial construction do not apply to residential properties. Despite this fact, the OOR cited distinguishable case law for the proposition that the UCC applies to residential construction. The issue here is not whether the UCC applies to residential construction (certain sections do) but whether the section of the UCC dealing with construction records is limited to commercial projects.