PRINTER'S NO.  2189

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1718

Session of

2011

  

  

INTRODUCED BY CREIGHTON, BROOKS, CALTAGIRONE, CARROLL, CLYMER, DAVIS, GEIST, GIBBONS, GINGRICH, GROVE, HELM, KNOWLES, MILLER, MOUL AND MUSTIO, JUNE 23, 2011

  

  

REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, JUNE 23, 2011  

  

  

  

AN ACT

  

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Amending the act of July 31, 1968 (P.L.805, No.247), entitled,

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as amended, "An act to empower cities of the second class A,

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and third class, boroughs, incorporated towns, townships of

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the first and second classes including those within a county

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of the second class and counties of the second through eighth

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classes, individually or jointly, to plan their development

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and to govern the same by zoning, subdivision and land

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development ordinances, planned residential development and

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other ordinances, by official maps, by the reservation of

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certain land for future public purpose and by the acquisition

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of such land; to promote the conservation of energy through

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the use of planning practices and to promote the effective

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utilization of renewable energy sources; providing for the

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establishment of planning commissions, planning departments,

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planning committees and zoning hearing boards, authorizing

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them to charge fees, make inspections and hold public

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hearings; providing for mediation; providing for transferable

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development rights; providing for appropriations, appeals to

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courts and penalties for violations; and repealing acts and

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parts of acts," in subdivision and land development, further

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providing for contents of subdivision and land development

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ordinance, for completion of improvements or guarantee

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thereof prerequisite to final plat approval, and for release

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from improvement bond.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Section 503(1) of the act of July 31, 1968

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(P.L.805, No.247), known as the Pennsylvania Municipalities

 


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Planning Code, amended November 30, 2004 (P.L.1613, No.206), is

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amended to read:

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Section 503.  Contents of Subdivision and Land Development

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Ordinance.--The subdivision and land development ordinance may

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include, but need not be limited to:

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(1)  Provisions for the submittal and processing of plats,

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including the charging of review fees, and specifications for

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such plats, including certification as to the accuracy of plats

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and provisions for preliminary and final approval and for

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processing of final approval by stages or sections of

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development. Such plats and surveys shall be prepared in

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accordance with the act of May 23, 1945 (P.L.913, No.367), known

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as the "Engineer, Land Surveyor and Geologist Registration Law,"

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except that this requirement shall not preclude the preparation

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of a plat in accordance with the act of January 24, 1966 (1965

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P.L.1527, No.535), known as the "Landscape Architects'

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Registration Law," when it is appropriate to prepare the plat

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using professional services as set forth in the definition of

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the "practice of landscape architecture" under section 2 of that

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act. Review fees may include reasonable and necessary charges by

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the municipality's professional consultants for review and

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report thereon to the municipality. The municipality shall

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designate by resolution or ordinance a minimum of three approved

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professional consultants from different firms in each discipline

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who are readily available to provide services in the

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municipality and the applicant may select a professional

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consultant from among the approved consultants and such

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professional consultant shall be the municipality's professional

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consultant for that particular application. If the applicant

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selects a professional consultant, only review fees by the

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selected consultant may be charged to the applicant. Such review

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fees shall be based upon a schedule established by ordinance or

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resolution. Such review fees shall be reasonable and in

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accordance with the ordinary and customary charges for similar

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service in the community, but in no event shall the fees exceed

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the rate or cost charged by the professional consultant for

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comparable services to the municipality for services which are

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not reimbursed or otherwise imposed on applicants. Fees charged

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to the municipality relating to any appeal of a decision on an

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application shall not be considered review fees and may not be

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charged to an applicant.

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(i)  The governing body shall submit to the applicant an

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itemized bill showing work performed, identifying the person

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performing the services and the time and date spent for each

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task. Nothing in this subparagraph shall prohibit interim

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itemized billing or municipal escrow or other security

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requirements. In the event the applicant disputes the amount

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of any such review fees, the applicant shall, no later than

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45 days after the date of transmittal of the bill to the

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applicant, notify the municipality and the municipality's

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professional consultant that such fees are disputed and shall

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explain the basis of their objections to the fees charged, in

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which case the municipality shall not delay or disapprove a

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subdivision or land development application due to the

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applicant's dispute over fees. Failure of the applicant to

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dispute a bill within 45 days shall be a waiver of the

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applicant's right to arbitration of that bill under section

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510(g).

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(ii)  In the event that the municipality's professional

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consultant and the applicant cannot agree on the amount of

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review fees which are reasonable and necessary, then the

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applicant and the municipality shall follow the procedure for

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dispute resolution set forth in section 510(g), provided that

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the arbitrator resolving such dispute shall be of the same

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profession or discipline as the professional consultant whose

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fees are being disputed.

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(iii)  Subsequent to a decision on an application, the

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governing body shall submit to the applicant an itemized bill

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for review fees, specifically designated as a final bill. The

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final bill shall include all review fees incurred at least

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through the date of the decision on the application. If for

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any reason additional review is required subsequent to the

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decision, including inspections and other work to satisfy the

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conditions of the approval, the review fees shall be charged

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to the applicant as a supplement to the final bill.

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* * *

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Section 2.  Section 509(j) and (k) of the act, reenacted and

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amended December 21, 1988 (P.L.1329, No.170), are amended to

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read:

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Section 509.  Completion of Improvements or Guarantee Thereof

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Prerequisite to Final Plat Approval.--* * *

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(j)  As the work of installing the required improvements

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proceeds, the party posting the financial security may request

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the governing body to release or authorize the release, from

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time to time, such portions of the financial security necessary

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for payment to the contractor or contractors performing the

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work. Any such requests shall be in writing addressed to the

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governing body, and the governing body shall have 45 days from

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receipt of such request within which to allow the municipal

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engineer to certify, in writing, to the governing body that such

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portion of the work upon the improvements has been completed in

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accordance with the approved plat. Upon such certification the

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governing body shall authorize release by the bonding company or

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lending institution of an amount as estimated by the municipal

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engineer fairly representing the value of the improvements

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completed or, if the governing body fails to act within said 45-

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day period, the governing body shall be deemed to have approved

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the release of funds as requested. [The governing body may,

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prior to final release at the time of completion and

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certification by its engineer, require retention of 10% of the

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estimated cost of the aforesaid improvements.]

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(k)  Where the governing body accepts dedication of all or

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some of the required improvements following completion, the

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governing body may require the posting of financial security to

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secure structural integrity of said dedicated improvements as

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well as the functioning of said dedicated improvements in

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accordance with the design and specifications as depicted on the

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final plat for a term not to exceed 18 months from the date of

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acceptance of dedication. Said financial security shall be of

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the same type as otherwise required in this section with regard

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to installation of such improvements, and the amount of the

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financial security shall not exceed 15% of the actual cost of

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installation of said dedicated improvements.

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* * *

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Section 3.  Section 510 (a) and (g) of the act, reenacted and

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amended December 21, 1988 (P.L.1329, No.179) and amended

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November 30, 2004 (P.L.1613, No.206), are amended to read:

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Section 510.  Release from Improvement Bond.--(a)  When the

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developer has completed all of the necessary and appropriate

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improvements, the developer shall notify the municipal governing

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body, in writing, by certified or registered mail, of the

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completion of the aforesaid improvements and shall send a copy

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thereof to the municipal engineer. The municipality shall

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designate by resolution or ordinance a minimum of three approved

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engineers from different firms who are readily available to

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provide services in the municipality and the developer may

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select an engineer from this list to perform the inspection of

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the improvements on behalf of the municipality. The municipal

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governing body shall, within ten days after receipt of such

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notice, direct and authorize the [municipal] engineer selected

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by the developer to inspect all of the aforesaid improvements.

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The [municipal] selected engineer shall, thereupon, file a

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report, in writing, with the municipal governing body, and shall

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promptly mail a copy of the same to the developer by certified

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or registered mail. The report shall be made and mailed within

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30 days after receipt by the [municipal] selected engineer of

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the aforesaid authorization from the governing body; said report

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shall be detailed and shall indicate approval or rejection of

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said improvements, either in whole or in part, and if said

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improvements, or any portion thereof, shall not be approved or

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shall be rejected by the [municipal] selected engineer, said

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report shall contain a statement of reasons for such nonapproval

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or rejection.

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* * *

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(g)  The municipality may prescribe that the applicant shall

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reimburse the municipality for the reasonable and necessary

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expense incurred in connection with the inspection of

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improvements. If the developer selects an engineer pursuant to

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subsection (a), the applicant may be required to reimburse the

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governing body only for inspection fees of the selected

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engineer. The applicant shall not be required to reimburse the

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governing body for any inspection which is duplicative of

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inspections conducted by other governmental agencies or public

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utilities. The burden of proving that any inspection is

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duplicative shall be upon the objecting applicant. Such

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reimbursement shall be based upon a schedule established by

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ordinance or resolution. Such expense shall be reasonable and in

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accordance with the ordinary and customary fees charged by the

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municipality's professional consultant for work performed for

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similar services in the community, but in no event shall the

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fees exceed the rate or cost charged by the professional

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consultant to the municipality for comparable services when fees

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are not reimbursed or otherwise imposed on applicants.

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(1)  The governing body shall submit to the applicant an

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itemized bill showing the work performed in connection with

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the inspection of improvements performed, identifying the

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person performing the services and the time and date spent

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for each task. In the event the applicant disputes the amount

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of any such expense in connection with the inspection of

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improvements, the applicant shall, no later than [30] 180 

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days after the date of transmittal of a bill for inspection

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services, notify the municipality and the municipality's

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professional consultant that such inspection expenses are

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disputed as unreasonable or unnecessary and shall explain the

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basis of their objections to the fees charged, in which case

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the municipality shall not delay or disapprove a request for

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release of financial security, a subdivision or land

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development application or any approval or permit related to

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development due to the applicant's dispute of inspection

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expenses. Failure of the applicant to dispute a bill within

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[30] 180 days shall be a waiver of the applicant's right to

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arbitration of that bill under this section.

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(1.1)  Subsequent to the final release of financial

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security for completion of improvements for a subdivision or

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land development or any phase thereof, the professional

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consultant shall submit to the governing body a bill for

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inspection services, specifically designated as a final bill,

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which the governing body shall submit to the applicant. The

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final bill shall include inspection fees incurred through the

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release of financial security.

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(2)  If the professional consultant and the applicant

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cannot agree on the amount of expenses which are reasonable

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and necessary, then the applicant shall have the right,

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within [45] 180 days of the transmittal of the final bill or

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supplement to the final bill to the applicant, to request the

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appointment of another professional consultant to serve as an

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arbitrator. The applicant and professional consultant whose

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fees are being challenged shall, by mutual agreement, appoint

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another professional consultant to review any bills the

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applicant has disputed and which remain unresolved and make a

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determination as to the amount thereof which is reasonable

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and necessary. The arbitrator shall be of the same profession

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as the professional consultant whose fees are being

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challenged.

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(3)  The arbitrator so appointed shall hear such evidence

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and review such documentation as the arbitrator in his or her

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sole opinion deems necessary and shall render a decision no

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later than 50 days after the date of appointment. Based on

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the decision of the arbitrator, the applicant or the

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professional consultant whose fees were challenged shall be

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required to pay any amounts necessary to implement the

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decision within 60 days. In the event the municipality has

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paid the professional consultant an amount in excess of the

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amount determined to be reasonable and necessary, the

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professional consultant shall within 60 days reimburse the

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excess payment.

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(4)  In the event that the municipality's professional

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consultant and applicant cannot agree upon the arbitrator to

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be appointed within 20 days of the request for appointment of

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an arbitrator, then, upon application of either party, the

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President Judge of the Court of Common Pleas of the judicial

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district in which the municipality is located (or if at the

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time there be no President Judge, then the senior active

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judge then sitting) shall appoint such arbitrator, who, in

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that case, shall be neither the municipality's professional

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consultant nor any professional consultant who has been

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retained by, or performed services for, the municipality or

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the applicant within the preceding five years.

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(5)  The fee of the arbitrator shall be paid by the

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applicant if the review fee charged is sustained by the

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arbitrator; otherwise, it shall be divided equally between

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the parties. If the disputed fees are found to be excessive

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by more than $5,000, the arbitrator shall have the discretion

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to assess the arbitration fee in whole or in part against

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either the applicant or the professional consultant. The

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governing body and the consultant whose fees are the subject

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of the dispute shall be parties to the proceeding.

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Section 4.  This act shall take effect in 60 days.

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