THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY CREIGHTON, CALTAGIRONE, CLYMER, DAVIS, GEIST, GIBBONS, GINGRICH, HELM, KNOWLES, MILLER, MOUL, MUSTIO, DAVIDSON AND MALONEY, JUNE 23, 2011

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 21, 2012   

AN ACT

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

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

and third class, boroughs, incorporated towns, townships of

the first and second classes including those within a county

of the second class and counties of the second through eighth

classes, individually or jointly, to plan their development

and to govern the same by zoning, subdivision and land

development ordinances, planned residential development and

other ordinances, by official maps, by the reservation of

certain land for future public purpose and by the acquisition

of such land; to promote the conservation of energy through

the use of planning practices and to promote the effective

utilization of renewable energy sources; providing for the

establishment of planning commissions, planning departments,

planning committees and zoning hearing boards, authorizing

them to charge fees, make inspections and hold public

hearings; providing for mediation; providing for transferable

development rights; providing for appropriations, appeals to

courts and penalties for violations; and repealing acts and

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

providing for contents of subdivision and land development

ordinance, for completion of improvements or guarantee

thereof prerequisite to final plat approval, and for release

from improvement bond.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

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

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

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

amended to read:

Section 503.  Contents of Subdivision and Land Development

Ordinance.--The subdivision and land development ordinance may

include, but need not be limited to:

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

including the charging of review fees, and specifications for

such plats, including certification as to the accuracy of plats

and provisions for preliminary and final approval and for

processing of final approval by stages or sections of

development. Such plats and surveys shall be prepared in

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

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

except that this requirement shall not preclude the preparation

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

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

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

using professional services as set forth in the definition of

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

act. Review fees may include reasonable and necessary charges by

the municipality's professional consultants for review and

report thereon to the municipality. Such review fees shall be

based upon a schedule established by ordinance or resolution.

Such review fees shall be reasonable and in accordance with the

ordinary and customary charges for similar service in the

community, but in no event shall the fees exceed the rate or

cost charged by the professional consultant for comparable

services to the municipality for services which are not

reimbursed or otherwise imposed on applicants. Fees charged to

the municipality relating to any appeal of a decision on an

application shall not be considered review fees and may not be

charged to an applicant.

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

itemized bill showing work performed, identifying the person

performing the services and the time and date spent for each

task. Nothing in this subparagraph shall prohibit interim

itemized billing or municipal escrow or other security

requirements. In the event the applicant disputes the amount

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

[45] 100 days after the date of transmittal of the bill to

the applicant, notify the municipality and the municipality's

professional consultant that such fees are disputed and shall

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

which case the municipality shall not delay or disapprove a

subdivision or land development application due to the

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

dispute a bill within [45] 100 days shall be a waiver of the

applicant's right to arbitration of that bill under section

510(g).

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

consultant and the applicant cannot agree on the amount of

review fees which are reasonable and necessary, then the

applicant and the municipality shall follow the procedure for

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

the arbitrator resolving such dispute shall be of the same

profession or discipline as the professional consultant whose

fees are being disputed.

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

governing body shall submit to the applicant an itemized bill

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

final bill shall include all review fees incurred at least

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

any reason additional review is required subsequent to the

decision, including inspections and other work to satisfy the

conditions of the approval, the review fees shall be charged

to the applicant as a supplement to the final bill.

* * *

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

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

read:

Section 509.  Completion of Improvements or Guarantee Thereof

Prerequisite to Final Plat Approval.--* * *

(j)  As the work of installing the required improvements

proceeds, the party posting the financial security may request

the governing body to release or authorize the release, from

time to time, such portions of the financial security necessary

for payment to the contractor or contractors performing the

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

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

receipt of such request within which to allow the municipal

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

portion of the work upon the improvements has been completed in

accordance with the approved plat. Upon such certification the

governing body shall authorize release by the bonding company or

lending institution of an amount as estimated by the municipal

engineer fairly representing the value of the improvements

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

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

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

to final release at the time of completion and certification by

its engineer, [require retention of] retain 10% of the

[estimated cost of] original amount of the posted financial

security for the aforesaid improvements.

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

some of the required improvements following completion, the

governing body may require the posting of financial security to

secure structural integrity of said dedicated improvements as

well as the functioning of said dedicated improvements in

accordance with the design and specifications as depicted on the

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

acceptance of dedication. Said financial security shall be of

the same type as otherwise required in this section with regard

to installation of such improvements, and the amount of the

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

installation of said dedicated improvements.

* * *

Section 3.  Section 510(g) of the act, amended November 30,

2004 (P.L.1613, No.206), is amended to read:

Section 510.  Release from Improvement Bond.--* * *

(g)  The municipality may prescribe that the applicant shall

reimburse the municipality for the reasonable and necessary

expense incurred in connection with the inspection of

improvements. The applicant shall not be required to reimburse

the governing body for any inspection which is duplicative of

inspections conducted by other governmental agencies or public

utilities. The burden of proving that any inspection is

duplicative shall be upon the objecting applicant. Such

reimbursement shall be based upon a schedule established by

ordinance or resolution. Such expense shall be reasonable and in

accordance with the ordinary and customary fees charged by the

municipality's professional consultant for work performed for

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

fees exceed the rate or cost charged by the professional

consultant to the municipality for comparable services when fees

are not reimbursed or otherwise imposed on applicants.

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

itemized bill showing the work performed in connection with

the inspection of improvements performed, identifying the

person performing the services and the time and date spent

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

of any such expense in connection with the inspection of

improvements, the applicant shall, no later than [30] 100 

days after the date of transmittal of a bill for inspection

services, notify the municipality and the municipality's

professional consultant that such inspection expenses are

disputed as unreasonable or unnecessary and shall explain the

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

the municipality shall not delay or disapprove a request for

release of financial security, a subdivision or land

development application or any approval or permit related to

development due to the applicant's dispute of inspection

expenses. Failure of the applicant to dispute a bill within

[30] 100 days shall be a waiver of the applicant's right to

arbitration of that bill under this section.

(1.1)  Subsequent to the final release of financial

security for completion of improvements for a subdivision or

land development or any phase thereof, the professional

consultant shall submit to the governing body a bill for

inspection services, specifically designated as a final bill,

which the governing body shall submit to the applicant. The

final bill shall include inspection fees incurred through the

release of financial security.

(2)  If the professional consultant and the applicant

cannot agree on the amount of expenses which are reasonable

and necessary, then the applicant shall have the right,

within [45] 100 days of the transmittal of the final bill or

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

appointment of another professional consultant to serve as an

arbitrator. The applicant and professional consultant whose

fees are being challenged shall, by mutual agreement, appoint

another professional consultant to review any bills the

applicant has disputed and which remain unresolved and make a

determination as to the amount thereof which is reasonable

and necessary. The arbitrator shall be of the same profession

as the professional consultant whose fees are being

challenged.

(3)  The arbitrator so appointed shall hear such evidence

and review such documentation as the arbitrator in his or her

sole opinion deems necessary and shall render a decision no

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

the decision of the arbitrator, the applicant or the

professional consultant whose fees were challenged shall be

required to pay any amounts necessary to implement the

decision within 60 days. In the event the municipality has

paid the professional consultant an amount in excess of the

amount determined to be reasonable and necessary, the

professional consultant shall within 60 days reimburse the

excess payment.

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

consultant and applicant cannot agree upon the arbitrator to

be appointed within 20 days of the request for appointment of

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

President Judge of the Court of Common Pleas of the judicial

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

time there be no President Judge, then the senior active

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

that case, shall be neither the municipality's professional

consultant nor any professional consultant who has been

retained by, or performed services for, the municipality or

the applicant within the preceding five years.

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

applicant if the [review fee charged is sustained by the

arbitrator; otherwise, it shall be divided equally between

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

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

to assess the arbitration fee in whole or in part against

either the applicant or the professional consultant. The

governing body and the consultant whose fees are the subject

of the dispute shall be parties to the proceeding.] 

applicant-disputed fee is sustained by the arbitrator. If the

<--

amount of payment required in the decision is less than the

original bill by $2,500 or more, the party charging the

disputed fee shall pay the fee of the arbitrator. If the

amount of the payment required in the decision is less than

the original bill by $2,499 or less, the party charging the

disputed fee and the applicant shall each pay one-half of the

fee of the arbitrator. disputed fee is upheld by the

<--

arbitrator. The fee of the arbitrator shall be paid by the

charging party if the disputed fee is $2,500 or greater than

the payment decided by the arbitrator. The fee of the

arbitrator shall be paid in an equal amount by the applicant

and the charging party if the disputed fee is less than

$2,500 of the payment decided by the arbitrator.

(6)  In the event that the disputed fees have been paid

and the arbitrator finds that the disputed fees are

unreasonable or excessive by more than $10,000, the

arbitrator shall:

(i)  award the amount of the fees found to be

unreasonable or excessive to the party that paid the

disputed fee; and

(ii)  impose a surcharge of 4% of the amount found as

unreasonable or excessive to be paid to the party that

paid the disputed fee.

(7)  A municipality or an applicant shall have 100 days

after paying a fee to dispute any fee charged as being

unreasonable or excessive.

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