Mr. Gallagher is a member of Thorp Reed & Armstrong’s Land Use, Zoning, Energy and Natural Resources Practice Group. He represents both public and private clients on a variety of matters, with particular emphasis on land use, environmental and land development issues.
He has served as a solicitor for several boroughs, townships, municipal authorities and zoning hearing boards, and also has served as special counsel to several municipal entities with respect to environmental and land use matters.
Mr. Gallagher has had significant experience in governmental affairs, administrative law, land use and environmental litigation and election law matters. He also has significant appellate court experience before the Pennsylvania Supreme, Commonwealth and Superior Courts.
Mr. Gallagher has been a member of the faculties of numerous seminars involving land use, environmental, energy development and municipal matters and has authored several articles involving subjects in his areas of practice.
Mr. Gallagher has been selected for inclusion in Pennsylvania Super Lawyers - Rising Stars Edition, 2008.
Land Use and Zoning
Counseled and represented municipal and private clients in land use, zoning, subdivision and real estate matters, including: zoning and planning commission hearings; land use appeals; variance, special exception and conditional use requests; non-conforming uses; and subdivision and land development issues.
Successfully struck conditions to special exception approval for coal bed methane drilling and operations. Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d 832 (Pa. Cmwlth. 2008).
Successfully challenged validity of zoning amendment rezoning property from manufacturing to residential as special legislation and illegal spot zoning.
Worked with city law department to revise and restate city planning commission’s subdivision regulations.
Represented wireless communications providers in zoning proceedings for development of various communications facilities.
Successfully represented landlord and provider of “transitional living services” to adjudicated independent minors in appeal of a Notice of Violation that found that the property changed use to a Group Home.
Successfully represented Pennsylvania non-profit provider of residential care for persons with mental retardation against a municipality with regard to zoning and building code permits and approvals for Intermediate Care Facilities for the Mentally Retarded.
Successfully represented landowners objecting to neighboring property owner’s special exception application, variance and rezoning requests.
Assisted in the successful representation of a landowner’s First Amendment retaliation case pursuant to Section 1983, 42 U.S.C. § 1983, against a township and various township officials concerning the township’s repeated efforts to thwart the landowner’s development of certain parcels within the township; and which case, in certain situations, has advanced a developer’s ability to seek redress in the land use context in the wake of United Artists and the “shocks the conscience” test.
Successfully obtained deemed approvals for variances related to development of shopping center.
Successfully argued the timeliness of a landowner’s appeal under the Pennsylvania Municipalities Planning Code notwithstanding the fact that the appeal was filed more than 30 days after the issuance date of the subject permit.
Successfully argued that city’s advisory study could not serve as a basis to deny special exception.
Successfully defended the reasonableness of conditions imposed upon the granting of a conditional use application restricting vehicular access.
Represented municipality in settlement negotiations between municipality and hospital concerning the hospital’s expansion efforts.
Successfully represented landowners opposing a proposed methadone treatment facility.
Environmental and Energy
Represented municipality and advised another in Pennsylvania Supreme Court appeals that defined the extent of locational and operational local regulation under the Pennsylvania Oil and Gas Act and related environmental statutes.
Co-Author, Chapter 11, State and Local Regulation of Oil and Gas Operations: Drilling Through the Maze of Preemption, Severed Mineral Estates, and Surface Owner Rights, Energy and Mineral Law Foundation Vol. 29 (2008).
Representation of clients identified as potentially responsible parties (“PRPs”) in Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) actions at Superfund sites in Environmental Protection Agency (“EPA”) Regions III and V.
Successfully represented a waste oil company designated by the EPA as a de maximis PRP at a CERCLA Superfund Site (see United States v. Allegheny Ludlum, et al., CA No. 97-1863), in which EPA agreed that the waste oil company was not a PRP and removed it from the list of PRPs at the Superfund Site.
Negotiated unique Consent Order and Agreement for Special Industrial Area under Pennsylvania’s Land Recycling and Environmental Remediation Standards Act (i.e., Act 2), to allow for the redevelopment of a gas station that was vacant for over a decade located in the center of the business district of a municipality.
Represented three municipalities in the negotiation process with EPA, the Department of Environmental Protection and the Allegheny County Health Department to arrive at a municipal consensus consent order with regard to the region’s current sewage infrastructure problems.
Represented co-permitees, city and city water and sewer authority, in negotiations with DEP regarding implementation of mandated stormwater requirements and responsibilities.
Successfully represented borough in appeal of NPDES Permit which allocated responsibility of a combined sewer overflow (“CSO”) owned and operated by the Allegheny County Sanitary Authority (“ALCOSAN”) but located in the borough to the borough, Borough of Etna v. Department of Environmental Protection, EHB Docket No. 2006-102-R (2006).
Represented several municipalities with regard to the federally mandated “municipal separate storm sewer system” (“MS4s”) program, including the drafting of the ordinances implementing the MS4 requirements.
Served as special counsel to city with regard to potential environmental liability exposure resulting from its contemplated acquisition of a tax delinquent gas station and subsequent conveyance of the same.
Advised client on the applicability of the Resource Conservation and Recovery Act’s (“RCRA”) hazardous waste export requirements to “treatability study” samples.
Member of joint defense counsel that successfully defended class certification arising from the alleged disposal of various chemicals by various defendants, which allegedly contaminated environmental factors over a 54 square mile area, and allegedly caused property and personal injury damages. Lipinski v. Beazer East, Inc., 76 Pa. D. & C.4th 479 (Butler C.P. 2005).
Successfully defended chemical manufacturers with regard to statutory nuisance claims under the Pennsylvania Hazardous Sites Cleanup Act and negligence per se claims under the Pennsylvania Clean Streams Law and the Solid Waste Management Act.
Worked on various National Pollutant Discharge Elimination System (“NPDES”) permit modifications and applications.
Drafted public comments regarding point source discharges and examined wetland issues within the context of permitted discharges.
Advised client on issues concerning the closure and removal of several underground storage tanks.
Interned with the Pennsylvania Department of Environmental Protection.
Municipal
Served as a municipal solicitor and special counsel for several townships, boroughs, municipal authorities and zoning hearing boards.
Counseled several clients regarding various matters involving the Pennsylvania Right-to-Know Law and Sunshine Act.
Drafted comments and objections on behalf of ALCOSAN customer municipalities to lodging of ALCOSAN Consent Decree.
Drafted dye testing ordinance for city, dye testing regulations for water and sewer authority and presented Cable Cast presentation regarding city’s and authority’s sewer system related obligations necessary to address the region’s wet weather issues.
Worked with city law department, city planning departments and bureau of building inspection to amend city code, zoning code and building code to comply with mandated stormwater regulations.
Successfully represented municipality in proceedings before the Public Utility Commission (“PUC”) against railroad company advancing two legal theories expanding the subject matter jurisdiction of the PUC over railroad crossings, and which theories were opposed by the railroad company, the Bureau of Transportation and Safety, and PENNDOT. Harmar Township v. Norfolk Southern Railway, P.U.C. Doc. No. C-2003056 (2004).
Addressed a wide array of issues concerning the establishment of two tax increment financing districts in Allegheny County.
Negotiated cable franchise agreement between municipality and cable company.
Drafted several municipal ordinances, including revising and creating several new local taxes for municipality and drafting regulations regarding the payment and collection of the same.
Drafted several sewer dye test ordinances and advised municipalities concerning the implementation and enforcement of the same.
Counsel to 3 Rivers Wet Weather, Inc., a non-profit corporation which is coordinating regional efforts involving regulatory agencies and over 80 municipalities and authorities in developing comprehensive plans to comply with federal Clean Water Act requirements to address wet weather sewage issues, potentially costing $3 billion.
See Land Use & Zoning and Environmental & Energy experience.
Construction
Obtained summary judgment dismissing a Mechanics’ Lien Complaint for Judgment on Mechanics’ Lien by demonstrating that client was not a party to a contract, either express or implied, with the claimant and that client did not otherwise owe a debt to the claimant. L. Germek Heating & Cooling, Inc. v. Mon-Yough Area Industrial Development Corp., No. 1615 WDA 2005 (Pa. Super. 2007).
Successfully struck and discharged a Mechanics’ Lien where the lower court dismissed a Mechanics’ lien Complaint for Judgment on Mechanics’ Lien and the underlying Mechanics’ Lien could not be reduced to judgment under any circumstances. L. Germek Heating & Cooling, Inc. v. Mon-Yough Area Industrial Development Corp., No. 2071 WDA 2005 (Pa. Super. 2007).
Successfully dismissed a Mechanics’ Lien Complaint for Judgment on Mechanics’ Lien where there was no underlying Mechanics’ Lien and where a Mecahnics’ Lien Complaint for Judgment on Mechanics’ Lien otherwise did not comply with the statutory requirements of the Mechanics’ Lien Law. L. Germek Heating & Cooling, Inc. v. Edward Vangura, No. 2137 WDA 2005 (Pa. Super. 2007).
Successfully represented water and sewer authority in Pennsylvania One-Call litigation.
Worked for two years on a multimillion dollar construction case involving the new Allegheny County Jail and Pittsburgh International Airport.
Successfully tried bad faith claim and bill of costs against U.S. Senate candidate and his attorney before the Commonwealth Court in first election law case in which attorneys fees were awarded and the first time fees were assessed against a candidate’s lawyer. In re Nomination Paper of Rogers, 942 A.2d 915 (Pa. Cmwlth. 2008), aff’d, ---A.2d---, 2008 WL 4646182 (Pa. 2008).
Successfully tried and won petition to set aside the nomination of candidate for United States Congress. In re Porter, 957 A.2d 232 (Pa. 2008).
Assisted in the successful defense to nomination papers of state senate candidate. In re Nomination of Farnese, 945 A.2d 274 (Pa. Cmwlth. 2008), aff’d, 944 A.2d 752 (Pa. 2008).
Successfully defended state representative against challenge to nomination petition. In re Payton, 945 A.2d 279 (Pa. Cmwlth. 2008), aff’d, 945 A.2d 162 (Pa. 2008).
Tried and won nomination petition challenge to city council candidate. Nomination Petition of Rachel E. Cooper as Candidate for the Democratic Nomination for Districk 9 Representative, City of Pittsburgh Council, in the Primary Election of May 15, 2007, G.D. 07-5113 (Allegheny C. C.P. 2007).
Successfully oversaw the largest nomination petition challenge in Pennsylvania history, which involved a 6-week review of 100,000 nomination petition signatures at the Pennsylvania Department of State through the court-monitored use of the Statewide Uniform Registry of Electors.
Represented Pennsylvania State Democratic Committee in challenge to U.S. Senate Candidate and served as second chair in Commonwealth Court trial. In re Nomination Paper of Rogers, 914 A.2d 457 (Pa. Cmwlth. 2006), aff’d, 907 A.2d 503 (Pa. 2006).
Successfully argued that to appear on ballot for a general election, a candidate was required to have a number of signatures at least equal to two percent of the votes cast for winning statewide candidate in the last general election, rather than two percent of the votes cast in statewide judicial retention election. In re Nomination Papers of Rogers, 913 A.2d 298, (Pa. Cmwlth 2006) aff’d, 909 A.2d 299 (Pa. 2006), cert. denied, Romanelli v. Board of Elections, 127 S.Ct. 1265 (U.S. Pa. 2007).
On a matter of first impression, successfully argued that objections to individual signatures on a nomination petition could be amended and that persons signing nomination petitions and papers were required to be registered voters, rather than “qualified electors.” In re Nomination Paper of Rogers, 908 A.2d 942 (Pa. Cmwlth. 2006).
Successfully argued that Pennsylvania Election Code’s different nomination processes for political parties and independent candidates does not violate provision of the Pennsylvania Constitution declaring that elections are to be “free and equal.” In re Nomination Paper of Rogers, 908 A.2d 948 (Pa. Cmwlth. 2006).
Counsel for Bob Casey for Senate: assisted in the implementation of Statewide Election Protection Program and served as Statewide electronic voting machine counsel. (2006).
Represented Candidate Barbara McIlvaine Smith in computation of absentee and provisional ballots and argued several matters of first impression concerning provisional ballot requirements before Chester County Board of Elections. (2006).
Represented Pennsylvania State Democratic Committee, House Democratic Campaign Committee, and Rep. Barbara McIlvaine Smith in post-election law recount and recanvass challenge, and which representation resulted in the majority control of the Pennsylvania House. (2006).
Assisted in successful defense to nomination challenge of candidate for United States Congress, In re: Nomination Petition of Chad Kluko, Pennsylvania Commonwealth Court, No. 150 M.D. 2006 (2006).
Counsel for Kerry-Edwards Campaign (2004).
Miscellaneous
Tried and won bench trial regarding dispute over ownership and responsibility of sewer line. Lesoon v. Pittsburgh Water & Sewer Authority, P.L.J., p. 59, (C.P. Allegheny Co., February 29, 2008).
Successfully expended the subject matter jurisdiction of the Pennsylvania Public Utility Commission. Norfolk Southern Ry. Co. v. Pennsylvania Public Utility Com'n, 875 A.2d 1243 (Pa.Cmwlth. 2005).
Successfully represented multinational corporation with regard to the transfer of Source Materials License and financial assurances for the decommissioning of Nuclear Regulatory Commission (“NRC”) radioactive materials licensed facilities and the remediation of hazardous waste.
Successfully represented client before Superior Court in reversing preliminary injunction enjoining client from interfering with neighboring business’s construction of advertising sign. Pedrow v. Vangura, No. 2188 WDA 2005 (Pa. Super. September 13, 2006).
Successfully represented clients in the following published opinions:
In re Porter, 957 A.2d 232 (Pa. 2008).
In re Payton, 945 A.2d 279 (Pa. Cmwlth. 2008), aff’d, 945 A.2d 162 (Pa. 2008).
In re Nomination Paper of Rogers, 942 A.2d 915 (Pa. Cmwlth. 2008), aff’d, ---A.2d---, 2008 WL 4646182 (Pa. 2008).
Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d 832 (Pa. Cmwlth. 2008).
In re Nomination of Farnese, 945 A.2d 274 (Pa. Cmwlth. 2008), aff’d, 944 A.2d 752 (Pa. 2008).
Edward J. Lesoon v. Pittsburgh Water & Sewer Authority, P.L.J., p. 59, (C.P. Allegheny Co., February 29, 2008).
In re Nomination Papers of Rogers, 913 A.2d 298 (Pa. Cmwlth. 2006), aff’d, 909 A.2d 299 (Pa. 2006), cert. denied, Romanelli v. Board of Elections, 127 S.Ct. 1265 (U.S. Pa. 2007).
In re Rogers, 934 A.2d 696 (Pa. 2007).
In re Nomination Paper of Rogers, 908 A.2d 942 (Pa. Cmwlth. 2006).
In re Nomination Papers of Rogers, 908 A.2d 948 (Pa. Cmwlth. 2006).
In re Nomination Paper of Rogers, 914 A.2d 457 (Pa. Cmwlth. 2006), aff’d, 907 A.2d 503 (Pa. 2006).
Lipinski v. Beazer East, Inc., 76 Pa. D. & C..4th 479 (C.P. Butler Co. 2005).
Norfolk Southern Ry. Co. v. Pennsylvania Public Utility Com’n, 875 A.2d 1243 (Pa. Cmwlth. 2005).
Conceptual Development, Inc. v. Zoning Hearing Board of Hampton Twp., 875 A.2d 1205 (Pa. Cmwlth. 2005).
Toney v. Harmar Township, P.L.J., p. 225, (C.P. Allegheny Co., September 16, 2005).
Eichenlaub v. Township of Indiana, 385 F.3d 274 (3rd Cir. 2004).
