A.
If any mandatory provisions of these regulations, not the Zoning
Ordinance regulations, are shown by the applicant, to the satisfaction
of a majority of the Borough Council present at a regular meeting,
to be unreasonable and to cause undue hardship as they apply to his
proposed subdivision or land development, the Borough Council may
grant an exception to such applicant from such mandatory provisions
so that substantial justice may be done and the public interest secured,
provided that such exception will not have the effect of nullifying
the intent and purpose of these regulations.
[Amended 11-2-1987 by Ord. No. 87-4]
B.
It is not sufficient proof of hardship to show that greater profit
would result if the exception were granted. Furthermore, hardship
complained of cannot be claimed by one who purchases with or without
knowledge of restrictions. It must be from the application of this
chapter; it must be suffered directly by the property in question;
and evidence of exception granted under similar circumstances shall
not be considered.
C.
In granting exceptions and modifications, the Borough Council may
impose such conditions as will, in its judgment, secure substantially
the objectives of the standards or requirements so varied or modified.
The applicant shall reimburse the Borough for all reasonable professional expenses, including but not limited to engineering, legal, consultant fees for review, modification or supplementing the feasibility studies required under Article V pursuant to the provisions of this chapter. Prior to the filing of a preliminary plan and prior to the filing of a final plan, the applicant shall, for expenses, deposit with the Borough Secretary the appropriate nonrefundable filing fee and a deposit towards the professional expenses in accordance with the fee schedule adopted by resolution by the Borough Council. Thereafter, as the deposit for expenses is expended, the applicant shall make further deposits upon notice from the Borough Secretary until approval of the plan. Upon approval of the final plan, the Borough Secretary shall forthwith refund to the applicant any uncommitted portion of the deposit remaining after payment of all expenses incurred by the Borough.[1]
A.
Improvements. Before approving any subdivision or land development plan for recording, the Borough Council shall either require that the necessary grading, paving and other improvements herein specified shall have been installed in strict accordance with the standards and specifications of the Borough or that the Borough Council be assured by means of a proper contract and completion guarantee, as set forth in Subsection B hereof, that the improvements will subsequently be installed by the developer.
B.
Contracts. In all cases where the necessary grading, paving and other improvements required herein, both on site and off site, shall not have been installed in strict accordance with the standards and specifications of the Borough prior to approval of the final plan, the developers shall enter into a written agreement with the Borough in accordance with the requirements of the Municipalities Planning Code in the manner and form approved by the Borough Solicitor (in a form similar to the agreement attached hereto as Appendix A[1]), wherein the developer shall agree, to the extent applicable:
(1)
To construct or cause to be constructed at his own expense all streets,
street signs, curbs, sidewalks, street and buffer plantings, streetlights,
fire hydrants, water supply system, sanitary sewer system (including
capped sewers and water mains), storm sewers, drainage and erosion
control improvements, and other improvements, including off-site improvements
as may be required by the Borough, shown on said subdivision or land
development plan, all in strict accordance with the standards and
specifications of the Borough and within the time specified in said
agreement.
(2)
To make adequate provisions with the Borough Engineer for the inspection
of the construction of the aforesaid improvements to assure strict
compliance with Borough standards and specifications.
(3)
To secure the structural integrity of the required improvements for
the subdivision as well as the functioning of the required improvements
in the subdivision in accordance with the design and specifications
of that particular final plat of the required improvements, including
streets, street signs, curbs, sidewalks, street and buffer plantings,
streetlights, fire hydrants, water mains (including capped water mains),
sanitary sewers (including capped sewers), storm sewers, drainage,
grading and erosion control improvements, including off-site improvements
as may be required by the Borough and other improvements, for the
period of 18 months from the date of acceptance of dedication of some
or all of the required improvements following completion.
(4)
To pay all costs, charges or rates of the utility furnishing electric
service for the streetlighting facilities installed by the developer
until such time as the streets shown on the subdivision and/or land
development plan shall have been accepted or condemned by the Borough
for public use, and to indemnify and save harmless the Borough from
and against all suits, actions, claims and demands for electric service
as aforesaid, or any part thereof, to the time that said streets shall
be accepted or condemned as public streets in the manner hereinabove
set forth.
(5)
To post, contemporaneous with the execution of such agreement, financial
security as is required by the Pennsylvania Municipalities Planning
Code, as amended.
[Amended 11-2-1987 by Ord. No. 87-4]
(6)
To obtain the easements and releases required by this chapter.
(7)
To reimburse the Borough promptly for attorney's and engineer's
inspection fees and fees for other professionals employed by the Borough
to review or process subdivision and land development plans.
(8)
To file as-built plans of public improvements and utilities with
the Borough and Borough Engineer.
(9)
To post, contemporaneous with the execution of such agreement, financial security in an amount sufficient to cover the cost of any improvements or common amenities, including but not limited to roads, stormwater detention and/or retention basins and other related drainage facilities, recreational facilities, open space improvements, or buffer or screen plantings, which may be required, as well as the improvements mentioned in Subsection B(3) above.
(a)
Acceptable security. The owner shall be permitted to submit
financial security which includes federal or Commonwealth of Pennsylvania
chartered lending institution irrevocable letters of credit and restrictive
or escrow accounts in such lending institutions which shall be deemed
acceptable financial security for the purpose of this section. Such
financial security shall be posted with the bonding company or a federal
or commonwealth chartered lending institution chosen by the party
posting the financial security, provided such bonding company or lending
institution is authorized to conduct such business within the commonwealth.
Such bond or other security shall provide for and secure to the public
the completion of any improvements which may be required within one
year of the date fixed in the subdivision plan or land development
plan for completion of such improvements.
(b)
Amount of security. The amount of the financial security shall
be equal to 110% of the cost of completion estimated as of 90 days
following the date scheduled for completion by the developer. The
cost of the improvements shall be established by submission to the
Borough of bona fide bid or bids from the contractor or contractors
chosen by the party posting the financial security to complete the
improvements or, in the absence of such bona fide bids, the cost shall
be established by estimates prepared by the Borough's Engineer.[2]
(c)
Increase in amount of security. If the party posting the financial
security requires more than one year from the date of posting of financial
security to complete the required improvements, the amount of financial
security may be increased by an additional 10% for each one-year period
beyond the first anniversary date from the posting of financial security
or to an amount not exceeding 110% of the cost of completing the required
improvements as reestablished on or about the expiration of the preceding
one-year period by using the above bidding procedure.
(d)
Completion in stages. In the case where development is projected
over a period of years, the Borough may authorize submission of final
plans or land development plans by section or stages of development,
subject to such requirements or guarantees as to improvements in future
sections or stages of development as it finds essential for the protection
of any finally approved section of the development.
(e)
Release of escrow. As the work of installing the required improvements
proceeds, the party posting the financial security may request the
Borough to release or authorize the release, from time to time, of
such portions of the financial security necessary for payment to the
contractor or contractors performing the work. Any such request 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 Borough Engineer to certify, in writing, to the Borough that such
portion of the work upon the improvements has been completed in accordance
with the approved plan. Upon such certification, the Borough shall
authorize release by the bonding company or lending institution of
an amount as estimated by the Borough Engineer fairly representing
the value of the improvements completed, or if the Borough fails to
act within said forty-five-day period, the Borough shall be deemed
to have approved the release of funds as requested.
(f)
Retention of 10%. The Borough may, prior to final release at
the time of completion and certification by its Engineer, require
retention of 10% of the estimated cost of the aforesaid improvements.
(g)
Maintenance guarantee. 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 improvements as well as the functioning
of said improvements in accordance with the design and specification
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 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 improvements.
(h)
Waterlines and sewer lines. If water mains or sanitary sewer
lines, or both, along with apparatus or facilities related thereto,
are to be installed under the jurisdiction and pursuant to the rules
and regulations of a public utility or municipal authority separate
and distinct from the municipality, financial security to assure proper
completion and maintenance thereof shall be posted in accordance with
the regulations of the controlling public utility or municipal authority
and shall not be included with the financial security as otherwise
required by this section.
(i)
Permits. If financial security has been provided in lieu of
the completion of improvements required as a condition for the final
approval of a plat as set forth in this section, the municipality
shall not condition the issuance of building, grading or other permits
relating to the erection or placement of improvements, including buildings,
upon the lots or land as depicted upon the final plat upon actual
completion of the improvements depicted upon the approved final plat.
Moreover, if said financial security has been provided, occupancy
permits for any building or buildings to be erected shall not be withheld
following the improvement of the streets providing access to and from
existing public roads to such building or buildings to a mud-free
or otherwise permanently passable condition, as well as the completion
of all other improvements as depicted upon the approved plat, either
upon the lot or lots or beyond the lot or lots in question if such
improvements are necessary for the reasonable use of or occupancy
of the building or buildings.
[1]
Editor's Note: Appendix A is included at the end of this chapter.
