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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY CREIGHTON, BROOKS, CALTAGIRONE, CARROLL, CLYMER, DAVIS, GEIST, GIBBONS, GINGRICH, GROVE, HELM, KNOWLES, MILLER, MOUL AND MUSTIO, JUNE 23, 2011 |
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| REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, JUNE 23, 2011 |
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| AN ACT |
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1 | Amending the act of July 31, 1968 (P.L.805, No.247), entitled, |
2 | as amended, "An act to empower cities of the second class A, |
3 | and third class, boroughs, incorporated towns, townships of |
4 | the first and second classes including those within a county |
5 | of the second class and counties of the second through eighth |
6 | classes, individually or jointly, to plan their development |
7 | and to govern the same by zoning, subdivision and land |
8 | development ordinances, planned residential development and |
9 | other ordinances, by official maps, by the reservation of |
10 | certain land for future public purpose and by the acquisition |
11 | of such land; to promote the conservation of energy through |
12 | the use of planning practices and to promote the effective |
13 | utilization of renewable energy sources; providing for the |
14 | establishment of planning commissions, planning departments, |
15 | planning committees and zoning hearing boards, authorizing |
16 | them to charge fees, make inspections and hold public |
17 | hearings; providing for mediation; providing for transferable |
18 | development rights; providing for appropriations, appeals to |
19 | courts and penalties for violations; and repealing acts and |
20 | parts of acts," in subdivision and land development, further |
21 | providing for contents of subdivision and land development |
22 | ordinance, for completion of improvements or guarantee |
23 | thereof prerequisite to final plat approval, and for release |
24 | from improvement bond. |
25 | The General Assembly of the Commonwealth of Pennsylvania |
26 | hereby enacts as follows: |
27 | Section 1. Section 503(1) of the act of July 31, 1968 |
28 | (P.L.805, No.247), known as the Pennsylvania Municipalities |
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1 | Planning Code, amended November 30, 2004 (P.L.1613, No.206), is |
2 | amended to read: |
3 | Section 503. Contents of Subdivision and Land Development |
4 | Ordinance.--The subdivision and land development ordinance may |
5 | include, but need not be limited to: |
6 | (1) Provisions for the submittal and processing of plats, |
7 | including the charging of review fees, and specifications for |
8 | such plats, including certification as to the accuracy of plats |
9 | and provisions for preliminary and final approval and for |
10 | processing of final approval by stages or sections of |
11 | development. Such plats and surveys shall be prepared in |
12 | accordance with the act of May 23, 1945 (P.L.913, No.367), known |
13 | as the "Engineer, Land Surveyor and Geologist Registration Law," |
14 | except that this requirement shall not preclude the preparation |
15 | of a plat in accordance with the act of January 24, 1966 (1965 |
16 | P.L.1527, No.535), known as the "Landscape Architects' |
17 | Registration Law," when it is appropriate to prepare the plat |
18 | using professional services as set forth in the definition of |
19 | the "practice of landscape architecture" under section 2 of that |
20 | act. Review fees may include reasonable and necessary charges by |
21 | the municipality's professional consultants for review and |
22 | report thereon to the municipality. The municipality shall |
23 | designate by resolution or ordinance a minimum of three approved |
24 | professional consultants from different firms in each discipline |
25 | who are readily available to provide services in the |
26 | municipality and the applicant may select a professional |
27 | consultant from among the approved consultants and such |
28 | professional consultant shall be the municipality's professional |
29 | consultant for that particular application. If the applicant |
30 | selects a professional consultant, only review fees by the |
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1 | selected consultant may be charged to the applicant. Such review |
2 | fees shall be based upon a schedule established by ordinance or |
3 | resolution. Such review fees shall be reasonable and in |
4 | accordance with the ordinary and customary charges for similar |
5 | service in the community, but in no event shall the fees exceed |
6 | the rate or cost charged by the professional consultant for |
7 | comparable services to the municipality for services which are |
8 | not reimbursed or otherwise imposed on applicants. Fees charged |
9 | to the municipality relating to any appeal of a decision on an |
10 | application shall not be considered review fees and may not be |
11 | charged to an applicant. |
12 | (i) The governing body shall submit to the applicant an |
13 | itemized bill showing work performed, identifying the person |
14 | performing the services and the time and date spent for each |
15 | task. Nothing in this subparagraph shall prohibit interim |
16 | itemized billing or municipal escrow or other security |
17 | requirements. In the event the applicant disputes the amount |
18 | of any such review fees, the applicant shall, no later than |
19 | 45 days after the date of transmittal of the bill to the |
20 | applicant, notify the municipality and the municipality's |
21 | professional consultant that such fees are disputed and shall |
22 | explain the basis of their objections to the fees charged, in |
23 | which case the municipality shall not delay or disapprove a |
24 | subdivision or land development application due to the |
25 | applicant's dispute over fees. Failure of the applicant to |
26 | dispute a bill within 45 days shall be a waiver of the |
27 | applicant's right to arbitration of that bill under section |
28 | 510(g). |
29 | (ii) In the event that the municipality's professional |
30 | consultant and the applicant cannot agree on the amount of |
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1 | review fees which are reasonable and necessary, then the |
2 | applicant and the municipality shall follow the procedure for |
3 | dispute resolution set forth in section 510(g), provided that |
4 | the arbitrator resolving such dispute shall be of the same |
5 | profession or discipline as the professional consultant whose |
6 | fees are being disputed. |
7 | (iii) Subsequent to a decision on an application, the |
8 | governing body shall submit to the applicant an itemized bill |
9 | for review fees, specifically designated as a final bill. The |
10 | final bill shall include all review fees incurred at least |
11 | through the date of the decision on the application. If for |
12 | any reason additional review is required subsequent to the |
13 | decision, including inspections and other work to satisfy the |
14 | conditions of the approval, the review fees shall be charged |
15 | to the applicant as a supplement to the final bill. |
16 | * * * |
17 | Section 2. Section 509(j) and (k) of the act, reenacted and |
18 | amended December 21, 1988 (P.L.1329, No.170), are amended to |
19 | read: |
20 | Section 509. Completion of Improvements or Guarantee Thereof |
21 | Prerequisite to Final Plat Approval.--* * * |
22 | (j) As the work of installing the required improvements |
23 | proceeds, the party posting the financial security may request |
24 | the governing body to release or authorize the release, from |
25 | time to time, such portions of the financial security necessary |
26 | for payment to the contractor or contractors performing the |
27 | work. Any such requests shall be in writing addressed to the |
28 | governing body, and the governing body shall have 45 days from |
29 | receipt of such request within which to allow the municipal |
30 | engineer to certify, in writing, to the governing body that such |
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1 | portion of the work upon the improvements has been completed in |
2 | accordance with the approved plat. Upon such certification the |
3 | governing body shall authorize release by the bonding company or |
4 | lending institution of an amount as estimated by the municipal |
5 | engineer fairly representing the value of the improvements |
6 | completed or, if the governing body fails to act within said 45- |
7 | day period, the governing body shall be deemed to have approved |
8 | the release of funds as requested. [The governing body may, |
9 | prior to final release at the time of completion and |
10 | certification by its engineer, require retention of 10% of the |
11 | estimated cost of the aforesaid improvements.] |
12 | (k) Where the governing body accepts dedication of all or |
13 | some of the required improvements following completion, the |
14 | governing body may require the posting of financial security to |
15 | secure structural integrity of said dedicated improvements as |
16 | well as the functioning of said dedicated improvements in |
17 | accordance with the design and specifications as depicted on the |
18 | final plat for a term not to exceed 18 months from the date of |
19 | acceptance of dedication. Said financial security shall be of |
20 | the same type as otherwise required in this section with regard |
21 | to installation of such improvements, and the amount of the |
22 | financial security shall not exceed 15% of the actual cost of |
23 | installation of said dedicated improvements. |
24 | * * * |
25 | Section 3. Section 510 (a) and (g) of the act, reenacted and |
26 | amended December 21, 1988 (P.L.1329, No.179) and amended |
27 | November 30, 2004 (P.L.1613, No.206), are amended to read: |
28 | Section 510. Release from Improvement Bond.--(a) When the |
29 | developer has completed all of the necessary and appropriate |
30 | improvements, the developer shall notify the municipal governing |
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1 | body, in writing, by certified or registered mail, of the |
2 | completion of the aforesaid improvements and shall send a copy |
3 | thereof to the municipal engineer. The municipality shall |
4 | designate by resolution or ordinance a minimum of three approved |
5 | engineers from different firms who are readily available to |
6 | provide services in the municipality and the developer may |
7 | select an engineer from this list to perform the inspection of |
8 | the improvements on behalf of the municipality. The municipal |
9 | governing body shall, within ten days after receipt of such |
10 | notice, direct and authorize the [municipal] engineer selected |
11 | by the developer to inspect all of the aforesaid improvements. |
12 | The [municipal] selected engineer shall, thereupon, file a |
13 | report, in writing, with the municipal governing body, and shall |
14 | promptly mail a copy of the same to the developer by certified |
15 | or registered mail. The report shall be made and mailed within |
16 | 30 days after receipt by the [municipal] selected engineer of |
17 | the aforesaid authorization from the governing body; said report |
18 | shall be detailed and shall indicate approval or rejection of |
19 | said improvements, either in whole or in part, and if said |
20 | improvements, or any portion thereof, shall not be approved or |
21 | shall be rejected by the [municipal] selected engineer, said |
22 | report shall contain a statement of reasons for such nonapproval |
23 | or rejection. |
24 | * * * |
25 | (g) The municipality may prescribe that the applicant shall |
26 | reimburse the municipality for the reasonable and necessary |
27 | expense incurred in connection with the inspection of |
28 | improvements. If the developer selects an engineer pursuant to |
29 | subsection (a), the applicant may be required to reimburse the |
30 | governing body only for inspection fees of the selected |
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1 | engineer. The applicant shall not be required to reimburse the |
2 | governing body for any inspection which is duplicative of |
3 | inspections conducted by other governmental agencies or public |
4 | utilities. The burden of proving that any inspection is |
5 | duplicative shall be upon the objecting applicant. Such |
6 | reimbursement shall be based upon a schedule established by |
7 | ordinance or resolution. Such expense shall be reasonable and in |
8 | accordance with the ordinary and customary fees charged by the |
9 | municipality's professional consultant for work performed for |
10 | similar services in the community, but in no event shall the |
11 | fees exceed the rate or cost charged by the professional |
12 | consultant to the municipality for comparable services when fees |
13 | are not reimbursed or otherwise imposed on applicants. |
14 | (1) The governing body shall submit to the applicant an |
15 | itemized bill showing the work performed in connection with |
16 | the inspection of improvements performed, identifying the |
17 | person performing the services and the time and date spent |
18 | for each task. In the event the applicant disputes the amount |
19 | of any such expense in connection with the inspection of |
20 | improvements, the applicant shall, no later than [30] 180 |
21 | days after the date of transmittal of a bill for inspection |
22 | services, notify the municipality and the municipality's |
23 | professional consultant that such inspection expenses are |
24 | disputed as unreasonable or unnecessary and shall explain the |
25 | basis of their objections to the fees charged, in which case |
26 | the municipality shall not delay or disapprove a request for |
27 | release of financial security, a subdivision or land |
28 | development application or any approval or permit related to |
29 | development due to the applicant's dispute of inspection |
30 | expenses. Failure of the applicant to dispute a bill within |
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1 | [30] 180 days shall be a waiver of the applicant's right to |
2 | arbitration of that bill under this section. |
3 | (1.1) Subsequent to the final release of financial |
4 | security for completion of improvements for a subdivision or |
5 | land development or any phase thereof, the professional |
6 | consultant shall submit to the governing body a bill for |
7 | inspection services, specifically designated as a final bill, |
8 | which the governing body shall submit to the applicant. The |
9 | final bill shall include inspection fees incurred through the |
10 | release of financial security. |
11 | (2) If the professional consultant and the applicant |
12 | cannot agree on the amount of expenses which are reasonable |
13 | and necessary, then the applicant shall have the right, |
14 | within [45] 180 days of the transmittal of the final bill or |
15 | supplement to the final bill to the applicant, to request the |
16 | appointment of another professional consultant to serve as an |
17 | arbitrator. The applicant and professional consultant whose |
18 | fees are being challenged shall, by mutual agreement, appoint |
19 | another professional consultant to review any bills the |
20 | applicant has disputed and which remain unresolved and make a |
21 | determination as to the amount thereof which is reasonable |
22 | and necessary. The arbitrator shall be of the same profession |
23 | as the professional consultant whose fees are being |
24 | challenged. |
25 | (3) The arbitrator so appointed shall hear such evidence |
26 | and review such documentation as the arbitrator in his or her |
27 | sole opinion deems necessary and shall render a decision no |
28 | later than 50 days after the date of appointment. Based on |
29 | the decision of the arbitrator, the applicant or the |
30 | professional consultant whose fees were challenged shall be |
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1 | required to pay any amounts necessary to implement the |
2 | decision within 60 days. In the event the municipality has |
3 | paid the professional consultant an amount in excess of the |
4 | amount determined to be reasonable and necessary, the |
5 | professional consultant shall within 60 days reimburse the |
6 | excess payment. |
7 | (4) In the event that the municipality's professional |
8 | consultant and applicant cannot agree upon the arbitrator to |
9 | be appointed within 20 days of the request for appointment of |
10 | an arbitrator, then, upon application of either party, the |
11 | President Judge of the Court of Common Pleas of the judicial |
12 | district in which the municipality is located (or if at the |
13 | time there be no President Judge, then the senior active |
14 | judge then sitting) shall appoint such arbitrator, who, in |
15 | that case, shall be neither the municipality's professional |
16 | consultant nor any professional consultant who has been |
17 | retained by, or performed services for, the municipality or |
18 | the applicant within the preceding five years. |
19 | (5) The fee of the arbitrator shall be paid by the |
20 | applicant if the review fee charged is sustained by the |
21 | arbitrator; otherwise, it shall be divided equally between |
22 | the parties. If the disputed fees are found to be excessive |
23 | by more than $5,000, the arbitrator shall have the discretion |
24 | to assess the arbitration fee in whole or in part against |
25 | either the applicant or the professional consultant. The |
26 | governing body and the consultant whose fees are the subject |
27 | of the dispute shall be parties to the proceeding. |
28 | Section 4. This act shall take effect in 60 days. |
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