| |
| PRIOR PRINTER'S NOS. 2189, 3778 | PRINTER'S NO. 3804 |
|
| |
| 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 |
| |
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 |
|
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. Such review fees shall be |
23 | based upon a schedule established by ordinance or resolution. |
24 | Such review fees shall be reasonable and in accordance with the |
25 | ordinary and customary charges for similar service in the |
26 | community, but in no event shall the fees exceed the rate or |
27 | cost charged by the professional consultant for comparable |
28 | services to the municipality for services which are not |
29 | reimbursed or otherwise imposed on applicants. Fees charged to |
30 | the municipality relating to any appeal of a decision on an |
|
1 | application shall not be considered review fees and may not be |
2 | charged to an applicant. |
3 | (i) The governing body shall submit to the applicant an |
4 | itemized bill showing work performed, identifying the person |
5 | performing the services and the time and date spent for each |
6 | task. Nothing in this subparagraph shall prohibit interim |
7 | itemized billing or municipal escrow or other security |
8 | requirements. In the event the applicant disputes the amount |
9 | of any such review fees, the applicant shall, no later than |
10 | [45] 100 days after the date of transmittal of the bill to |
11 | the applicant, notify the municipality and the municipality's |
12 | professional consultant that such fees are disputed and shall |
13 | explain the basis of their objections to the fees charged, in |
14 | which case the municipality shall not delay or disapprove a |
15 | subdivision or land development application due to the |
16 | applicant's dispute over fees. Failure of the applicant to |
17 | dispute a bill within [45] 100 days shall be a waiver of the |
18 | applicant's right to arbitration of that bill under section |
19 | 510(g). |
20 | (ii) In the event that the municipality's professional |
21 | consultant and the applicant cannot agree on the amount of |
22 | review fees which are reasonable and necessary, then the |
23 | applicant and the municipality shall follow the procedure for |
24 | dispute resolution set forth in section 510(g), provided that |
25 | the arbitrator resolving such dispute shall be of the same |
26 | profession or discipline as the professional consultant whose |
27 | fees are being disputed. |
28 | (iii) Subsequent to a decision on an application, the |
29 | governing body shall submit to the applicant an itemized bill |
30 | for review fees, specifically designated as a final bill. The |
|
1 | final bill shall include all review fees incurred at least |
2 | through the date of the decision on the application. If for |
3 | any reason additional review is required subsequent to the |
4 | decision, including inspections and other work to satisfy the |
5 | conditions of the approval, the review fees shall be charged |
6 | to the applicant as a supplement to the final bill. |
7 | * * * |
8 | Section 2. Section 509(j) and (k) of the act, reenacted and |
9 | amended December 21, 1988 (P.L.1329, No.170), are amended to |
10 | read: |
11 | Section 509. Completion of Improvements or Guarantee Thereof |
12 | Prerequisite to Final Plat Approval.--* * * |
13 | (j) As the work of installing the required improvements |
14 | proceeds, the party posting the financial security may request |
15 | the governing body to release or authorize the release, from |
16 | time to time, such portions of the financial security necessary |
17 | for payment to the contractor or contractors performing the |
18 | work. Any such requests shall be in writing addressed to the |
19 | governing body, and the governing body shall have 45 days from |
20 | receipt of such request within which to allow the municipal |
21 | engineer to certify, in writing, to the governing body that such |
22 | portion of the work upon the improvements has been completed in |
23 | accordance with the approved plat. Upon such certification the |
24 | governing body shall authorize release by the bonding company or |
25 | lending institution of an amount as estimated by the municipal |
26 | engineer fairly representing the value of the improvements |
27 | completed or, if the governing body fails to act within said 45- |
28 | day period, the governing body shall be deemed to have approved |
29 | the release of funds as requested. The governing body may, prior |
30 | to final release at the time of completion and certification by |
|
1 | its engineer, [require retention of] retain 10% of the |
2 | [estimated cost of] original amount of the posted financial |
3 | security for the aforesaid improvements. |
4 | (k) Where the governing body accepts dedication of all or |
5 | some of the required improvements following completion, the |
6 | governing body may require the posting of financial security to |
7 | secure structural integrity of said dedicated improvements as |
8 | well as the functioning of said dedicated improvements in |
9 | accordance with the design and specifications as depicted on the |
10 | final plat for a term not to exceed 18 months from the date of |
11 | acceptance of dedication. Said financial security shall be of |
12 | the same type as otherwise required in this section with regard |
13 | to installation of such improvements, and the amount of the |
14 | financial security shall not exceed 15% of the actual cost of |
15 | installation of said dedicated improvements. |
16 | * * * |
17 | Section 3. Section 510(g) of the act, amended November 30, |
18 | 2004 (P.L.1613, No.206), is amended to read: |
19 | Section 510. Release from Improvement Bond.--* * * |
20 | (g) The municipality may prescribe that the applicant shall |
21 | reimburse the municipality for the reasonable and necessary |
22 | expense incurred in connection with the inspection of |
23 | improvements. The applicant shall not be required to reimburse |
24 | the governing body for any inspection which is duplicative of |
25 | inspections conducted by other governmental agencies or public |
26 | utilities. The burden of proving that any inspection is |
27 | duplicative shall be upon the objecting applicant. Such |
28 | reimbursement shall be based upon a schedule established by |
29 | ordinance or resolution. Such expense shall be reasonable and in |
30 | accordance with the ordinary and customary fees charged by the |
|
1 | municipality's professional consultant for work performed for |
2 | similar services in the community, but in no event shall the |
3 | fees exceed the rate or cost charged by the professional |
4 | consultant to the municipality for comparable services when fees |
5 | are not reimbursed or otherwise imposed on applicants. |
6 | (1) The governing body shall submit to the applicant an |
7 | itemized bill showing the work performed in connection with |
8 | the inspection of improvements performed, identifying the |
9 | person performing the services and the time and date spent |
10 | for each task. In the event the applicant disputes the amount |
11 | of any such expense in connection with the inspection of |
12 | improvements, the applicant shall, no later than [30] 100 |
13 | days after the date of transmittal of a bill for inspection |
14 | services, notify the municipality and the municipality's |
15 | professional consultant that such inspection expenses are |
16 | disputed as unreasonable or unnecessary and shall explain the |
17 | basis of their objections to the fees charged, in which case |
18 | the municipality shall not delay or disapprove a request for |
19 | release of financial security, a subdivision or land |
20 | development application or any approval or permit related to |
21 | development due to the applicant's dispute of inspection |
22 | expenses. Failure of the applicant to dispute a bill within |
23 | [30] 100 days shall be a waiver of the applicant's right to |
24 | arbitration of that bill under this section. |
25 | (1.1) Subsequent to the final release of financial |
26 | security for completion of improvements for a subdivision or |
27 | land development or any phase thereof, the professional |
28 | consultant shall submit to the governing body a bill for |
29 | inspection services, specifically designated as a final bill, |
30 | which the governing body shall submit to the applicant. The |
|
1 | final bill shall include inspection fees incurred through the |
2 | release of financial security. |
3 | (2) If the professional consultant and the applicant |
4 | cannot agree on the amount of expenses which are reasonable |
5 | and necessary, then the applicant shall have the right, |
6 | within [45] 100 days of the transmittal of the final bill or |
7 | supplement to the final bill to the applicant, to request the |
8 | appointment of another professional consultant to serve as an |
9 | arbitrator. The applicant and professional consultant whose |
10 | fees are being challenged shall, by mutual agreement, appoint |
11 | another professional consultant to review any bills the |
12 | applicant has disputed and which remain unresolved and make a |
13 | determination as to the amount thereof which is reasonable |
14 | and necessary. The arbitrator shall be of the same profession |
15 | as the professional consultant whose fees are being |
16 | challenged. |
17 | (3) The arbitrator so appointed shall hear such evidence |
18 | and review such documentation as the arbitrator in his or her |
19 | sole opinion deems necessary and shall render a decision no |
20 | later than 50 days after the date of appointment. Based on |
21 | the decision of the arbitrator, the applicant or the |
22 | professional consultant whose fees were challenged shall be |
23 | required to pay any amounts necessary to implement the |
24 | decision within 60 days. In the event the municipality has |
25 | paid the professional consultant an amount in excess of the |
26 | amount determined to be reasonable and necessary, the |
27 | professional consultant shall within 60 days reimburse the |
28 | excess payment. |
29 | (4) In the event that the municipality's professional |
30 | consultant and applicant cannot agree upon the arbitrator to |
|
1 | be appointed within 20 days of the request for appointment of |
2 | an arbitrator, then, upon application of either party, the |
3 | President Judge of the Court of Common Pleas of the judicial |
4 | district in which the municipality is located (or if at the |
5 | time there be no President Judge, then the senior active |
6 | judge then sitting) shall appoint such arbitrator, who, in |
7 | that case, shall be neither the municipality's professional |
8 | consultant nor any professional consultant who has been |
9 | retained by, or performed services for, the municipality or |
10 | the applicant within the preceding five years. |
11 | (5) The fee of the arbitrator shall be paid by the |
12 | applicant if the [review fee charged is sustained by the |
13 | arbitrator; otherwise, it shall be divided equally between |
14 | the parties. If the disputed fees are found to be excessive |
15 | by more than $5,000, the arbitrator shall have the discretion |
16 | to assess the arbitration fee in whole or in part against |
17 | either the applicant or the professional consultant. The |
18 | governing body and the consultant whose fees are the subject |
19 | of the dispute shall be parties to the proceeding.] |
20 | applicant-disputed fee is sustained by the arbitrator. If the | <-- |
21 | amount of payment required in the decision is less than the |
22 | original bill by $2,500 or more, the party charging the |
23 | disputed fee shall pay the fee of the arbitrator. If the |
24 | amount of the payment required in the decision is less than |
25 | the original bill by $2,499 or less, the party charging the |
26 | disputed fee and the applicant shall each pay one-half of the |
27 | fee of the arbitrator. disputed fee is upheld by the | <-- |
28 | arbitrator. The fee of the arbitrator shall be paid by the |
29 | charging party if the disputed fee is $2,500 or greater than |
30 | the payment decided by the arbitrator. The fee of the |
|
1 | arbitrator shall be paid in an equal amount by the applicant |
2 | and the charging party if the disputed fee is less than |
3 | $2,500 of the payment decided by the arbitrator. |
4 | (6) In the event that the disputed fees have been paid |
5 | and the arbitrator finds that the disputed fees are |
6 | unreasonable or excessive by more than $10,000, the |
7 | arbitrator shall: |
8 | (i) award the amount of the fees found to be |
9 | unreasonable or excessive to the party that paid the |
10 | disputed fee; and |
11 | (ii) impose a surcharge of 4% of the amount found as |
12 | unreasonable or excessive to be paid to the party that |
13 | paid the disputed fee. |
14 | (7) A municipality or an applicant shall have 100 days |
15 | after paying a fee to dispute any fee charged as being |
16 | unreasonable or excessive. |
17 | Section 4. This act shall take effect in 60 days. |
|