Borough of Dalton, PA Article V Improvement Construction and Guarantees and Open Land

§ 300-26 General.

A. No project shall be considered in compliance with this chapter until the streets, parking facilities, storm drainage facilities, water and sewer facilities, lot line markers and survey monuments and all other required or proposed improvements have been installed in accord with this chapter.

B. No final plan shall be signed by the Council for recording in the office of the Lackawanna County Recorder of Deeds until:

(1) All improvements required by this chapter are installed to the specifications contained in Article VI of this chapter and other Borough requirements, and such improvements are inspected by the Borough Engineer and are certified as complete and in compliance with this chapter by the applicant's engineer; or

(2) An improvements construction guarantee in accord with § 503 of the Pennsylvania Municipalities Planning Code has been accepted by the Council.

C. Any approval granted by the Council for any improvement required by this chapter shall be for subdivision and/or land development approval purposes only and shall not constitute in any manner an approval for dedication of any improvements to the Borough.

§ 300-27 PennDOT required improvements.

An applicant shall not be required to provide financial security for the costs of any improvements for which financial security is required by and provided to the Pennsylvania Department of Transportation in connection with the issuance of a highway occupancy permit pursuant to § 420 of the Act of June 1, 1945 (P.L. 1242, No. 428) known as the "State Highway Law."[1]

[1] Editor's Note: See 36 P.S. § 670-420.

§ 300-28 Sections/stages.

In cases where final plan approval is proposed in sections or stages, the Council shall require the construction or guarantee of any and all development improvements required for the service or protection of any section or stage of the development proposed for final approval.

§ 300-29 Improvement construction guarantees.

A. Acceptable guarantees. The following are acceptable forms of improvement construction guarantees:

(1) Surety performance bond. A security bond from a surety bonding company authorized to do business in the Commonwealth of Pennsylvania and approved by the Council. The bond shall be payable to the Borough of Dalton.

(2) Escrow account. A deposit of cash either with the Borough or in escrow with a financial institution. The use of a financial institution for establishing an escrow account shall be subject to approval by the Council.

(3) Irrevocable letter of credit. A letter of credit provided by a developer from a financial institution or other reputable institution subject to the approval of the Council.

(4) Other forms. Other forms of collateral, including, but not limited to, real estate mortgages as the Council may require or accept as part of the security.

(5) Additional requirements. The following requirements shall apply to the financial guarantees set forth in § 300-29A:

(a) The funds of any guarantee shall be held in trust until released by the Council and may not be used or pledged by the developer as security in any other matter during that period.

(b) In the case of a failure on the part of the developer to complete said improvements, the institution shall immediately make the funds available to the Council for use in the completion of those improvements approved as part of the final plan and as may be required to service any lots or dwelling units as determined by the Council.

(c) The creditor shall guarantee funds in the amount required by this chapter.

(d) The guarantee shall not be withdrawn or reduced in amount until released by the Council.

B. Amount of security. The amount of financial security to be posted for the completion of the required improvements shall be equal to 110% of the cost of completion estimated as of 90 calendar days following the date scheduled for completion by the developer. Annually, the Council may adjust the amount of the financial security by comparing the actual cost of the improvements which have been completed and the estimated cost for the completion of the remaining improvements as of the expiration of the 90th calendar day after either the original date scheduled for completion or a rescheduled date of completion. Subsequent to said adjustment, the Council may require the developer to post additional security in order to assure that the financial security equals said 110%. Any additional security shall be posted by the developer in accord with this § 300-29.

(1) The amount of guarantee required shall be based upon an estimate of the cost of completion of the required improvements, prepared by the developer's engineer licensed as such in Pennsylvania and certified in writing by such engineer to be a fair and reasonable estimate of such cost. The Council, upon the recommendation of the Borough Engineer, may refuse to accept such estimate for good cause shown. If the applicant and the Council are unable to agree upon an estimate, then the estimate shall be recalculated and certified by another professional engineer licensed as such in Pennsylvania and chosen mutually by the Council and the developer. The estimate certified by the third engineer shall be presumed fair and reasonable and shall be the final estimate. In the event that a third engineer is so chosen, fees for the services of said engineer shall be paid equally by the Borough and the applicant or developer.

(2) If the developer requires more than one year from the date of posting the guarantee to complete the required improvements, the amount of the guarantee shall be increased by an additional 10% for each one-year period beyond the first anniversary date of posting the guarantee or to an amount not exceeding 110% of the cost of completing the improvements as reestablished on or about the expiration of the preceding one-year period, as estimated using the procedure established by this § 300-29B.

C. Terms of guarantee. Construction guarantees shall be submitted in a form and with such surety as approved by the Council to assure that all improvements shall be completed within a fixed period of time but not to exceed five years from the date of preliminary plan approval.

D. Release of improvement construction guarantees.

(1) Partial release. The developer may request the release of such portions of the construction guarantee for completed improvements.

(a) Request. All such requests shall be in writing to the Council with a copy to the Borough Engineer and shall include a certification from the developer's engineer that the subject improvements have been completed in accord with the approved plans and Borough standards.

(b) Inspection. Within 45 calendar days of receipt of such request, the Council shall direct the Borough Engineer to inspect the subject improvements and certify, in writing, to the Council the completion in accord with the approved plans and Borough standards, and the Council shall authorize release of such portion of the construction guarantee established by the Borough Engineer to represent the value of the completed improvements. If the Council fails to act within said forty-five-calendar-day period, the Council shall be deemed to have approved the release of funds as requested. The Council may, prior to final release at the time of completion and certification by the Borough Engineer, require retention of 10% of the estimated cost of the aforesaid improvements.

(2) Final release. When the developer has completed the construction of all required improvements, the developer shall so notify the Council.

(a) Notification. Such notification shall be in writing, by certified or registered mail, with a copy to the Borough Engineer and shall include a certification from the developer's engineer that all required improvements have been completed in accord with the approved plans and Borough standards.

(b) Inspection. Within 10 calendar days of receipt of said notice, the Council shall direct and authorize the Borough Engineer to make a final inspection of the subject improvements.

(c) Report. The Borough Engineer shall, within 30 calendar days of said authorization, file a detailed written report with the Council with a copy mailed to the developer by certified or registered mail, recommending approval or rejection of said improvements either in whole or in part, and if said improvements or any portion thereof shall not be approved or shall be rejected, said report shall contain, by specific ordinance reference, a statement of reasons for nonapproval or rejection.

(d) Action. Within 15 calendar days of receipt of the Borough Engineer's report, the Council shall act upon said report and shall notify the developer, in writing, by certified or registered mail, of its action. If the Council or the Borough Engineer fails to comply with the time limitation provisions contained herein, all improvements will be deemed to have been approved, and the developer shall be released from all liability pursuant to its performance guaranty.

(e) Rejected or unapproved improvements. If any portion of the subject improvements are not approved or are rejected by the Council, the developer shall proceed to rectify and/or complete the same and, upon completion, the same procedure of notification, as outlined in § 300-29D(2)(a) shall be followed.

(f) Remedies to effect completion of improvements. In the event that any improvements which may be required have not been installed as provided in this chapter or in accord with the approved plan, the Council may enforce any corporate bond or other guarantee by appropriate legal and equitable remedies. If proceeds of the guarantee are insufficient to pay the cost of installing or making repairs or corrections to all the improvements covered by the said security, the Council may, at its option, install part of such improvements in all or part of the subdivision and/or development and may institute appropriate legal or equitable action to recover the monies necessary to complete the remainder of the improvements. All of the proceeds, whether resulting from the guarantee or from any legal or equitable action brought against the developer, or both, shall be used solely for the installation of the improvements covered by such security and not for any other Borough purposes except for reimbursement of Borough court costs, reasonable attorneys' fees and other costs of enforcement.

§ 300-30 Improvements construction.

This section shall apply to all construction of improvements whether the improvements are completed prior to final plan approval or guarantees are provided.

A. Construction plans and drawings. The construction of any improvements shown on an approved preliminary plan or in conjunction with the final plan application and guarantee proposal shall be accomplished only in accord with the approved final construction plans detailing the design and installation of all improvements and documenting compliance with this chapter.

B. Schedule. The developer shall, at least 15 calendar days prior to the initiation of construction of any required improvements, submit to the Borough a schedule of construction for all required improvements, including the timing of the development of any proposed sections. The schedule may be revised from time to time upon mutual agreement of the applicant Engineer and the Borough Engineer.

C. Inspections. Based upon the construction schedule and the nature of the required improvements and within 14 calendar days of receipt of the said construction schedule, the Borough Engineer shall prepare Borough inspection requirements to ensure the construction of the required improvements in accord with the approved plan and Borough standards. In addition to all final inspections required for all improvements, inspections shall be required at all phases of construction when a failure to inspect would result in a physical impossibility to verify compliance at the time of the final inspection (e.g., backfilling of sewer or waterline trenches). This may require a full-time inspector.

D. Notice. The developer shall provide a minimum of five working days' notice prior to the time when construction will have proceeded to the time of a required inspection. Construction shall not proceed further until the Borough Engineer conducts the inspection and approves the improvements.

E. Cost. The cost of all inspections conducted by the Borough shall be borne by the developer.

§ 300-31 Improvement maintenance guarantee.

A. Guarantee. Before final approval is granted, the developer shall provide to the Borough a maintenance guarantee in an amount determined by the Council but not less than 15% of the cost of all required improvements as estimated by the applicant's engineer and approved by the Borough Engineer.

(1) Such maintenance guarantee shall be in such form as prescribed in § 300-29A and shall guarantee that the developer shall maintain all improvements in good condition during the 26 months after the completion of construction or installation and final approval of all improvements. If the developer is negligent or fails to maintain all improvements in good condition during the twenty-six-month period, the Council may enforce the maintenance guarantee, bond or other surety by appropriate and equitable remedies. If proceeds of such bond or other surety are insufficient to pay the cost of maintaining the improvements during the said twenty-six-month period, the Council, at its option, may institute appropriate legal or equitable action to recover the monies necessary for maintaining the improvements in good condition.

(2) After the expiration of the 26 months from the date of the final approval of the subject improvements and if all improvements are certified by the Borough Engineer to be in good condition, the Council shall release the said maintenance guarantee and surety to the developer or party posting the said maintenance guarantee and surety.

B. Central sewage guarantee. This section shall only apply if guarantees are not required by the Borough Sewer Authority.

(1) In lieu of the requirements of § 300-31A above, the Council may require a guarantee from the developer for the maintenance, operation and repair of any central sewage system for three years after completion of construction. Said bond shall be posted immediately after the system receives final approval and before it is put into operation.

(2) In instances where the system use will not reach operational capacity within a period of one year, however, the Council may require that such guarantee provide for the maintenance and operation of the system for a period of three years from the time operational capacity is reached. The amount of said maintenance guarantee shall be determined by the Council but shall generally not exceed 25% of the estimated cost of the system as verified by the Borough Engineer.

(3) Upon the expiration of the term of the maintenance guarantee, the Council shall release said maintenance guarantee, provided that the system has been properly maintained and operated during the term of the guarantee and is currently operating properly and in conformance with the applicable DEP discharge requirements. In the event the system is not so maintained and operated, the Council, at any time during the term of the guarantee and upon 30 calendar days' notice, shall have the right to declare a forfeiture of a portion or all of the said maintenance guarantee, depending on the extent of the lack of maintenance and proper operation, and shall use the proceeds for such maintenance and corrective measures as shall be required. If proceeds of such bond or other surety are insufficient to pay the cost of maintaining the improvements during the said three-year period, the Council, at its option, may institute appropriate legal or equitable action to recover the monies necessary for maintaining the improvements in good condition.

§ 300-32 Continued ownership and maintenance of improvements.

The developer shall provide to the satisfaction of the Council, and prior to final plan approval, evidence of the provision for the succession of ownership and responsibility for maintenance of development improvements.

A. Private operation and maintenance.

(1) Land developments. In the case of land developments, such provision shall be in the form of deed covenants and restrictions clearly placing the responsibility of maintenance of all development improvements with the owner of the land development.

(2) Residential developments. In the case of subdivisions, cluster developments, multifamily housing projects and other residential developments involving the transfer of property, the developer shall provide, by deed covenants and restrictions, for the creation of a property owners' association (POA), or equivalent entity, to assume the ultimate ownership of all development improvements and responsibility for maintenance of such improvements. Membership in the POA shall be mandatory for all property owners in the development. The developer shall also be a member of the POA and shall remain responsible for payment of any per-lot dues or fees assessed by the POA which are associated with improvements serving said lots. The deed covenants and restrictions creating the POA shall be approved by the Council.

(3) Any improvements which will remain private. In the case where roads, drainage facilities, a central sewage treatment system or central water supply, or any other improvements are to remain private, the developer shall provide for the establishment of an escrow fund in accord with § 300-29A to guarantee the operation and maintenance of the improvements. Said fund shall be established on a permanent basis with administrative provisions approved by the Council. The amount of said fund shall be established by the Council, but in no case shall be less than 15% nor more than 25% of the construction cost of the system as verified by the Borough Engineer. The maintenance and operation of the improvements and the administration of any required maintenance fund account shall be clearly established as the joint responsibility of the owner(s) of each structure or dwelling unit served by such system. Such responsibility and the mechanism to accomplish same shall be established by deed covenants and restrictions which shall be approved by the Council.

(4) Failure to operate and maintain improvements. If any private improvements are not operated or maintained adequately to assure the function of said improvements consistent with Borough requirements and/or the needs of the users of said improvements, the Council shall have the right to perform said operation and maintenance to meet the intent of this chapter and otherwise protect the public health, safety and welfare. The Council shall use any and/or all legal authority and remedies in law available to accomplish same and shall assess the legal, construction and other costs for same to the person(s) responsible for or benefitting from said proper operation and maintenance. Such actions may include, but are not limited to, those prescribed in Article X of this chapter, injunctive relief, or the formation of special districts to assess costs.

B. Dedication to Borough. Where a plan includes a proposed dedication of roads, neither the plan approval nor the developer's completion of the roads shall obligate the Council to accept the roads. Acceptance of a proposed dedication shall be a matter of discretion for the Council. If determined by the Council to be in the interest of the public health, safety and general welfare, the Council may accept roads and associated drainage facilities, but shall generally not accept any stormwater control facilities used to manage stormwater within any subdivision or land development, sewage disposal systems, water supply systems, sidewalks or other improvements unless the Council deems it necessary to fulfill the purposes of this chapter or the Borough's Official Wastewater Facilities Plan. In accepting any improvements, the Council may attach such reasonable conditions necessary to fulfill the purposes of this chapter.

§ 300-33 Open land and recreation land — ownership and maintenance.

This § 300-33 shall apply to any development which involves the ownership and maintenance of open land or recreation land held in common or owned and maintained through other arrangements approved by the Council (referred to as "common open space") as required by this chapter.

A. Purpose. The requirements of this § 300-33 are intended to assure in perpetuity the ownership, use and maintenance of common open space. The general principle shall be to assign ownership and maintenance responsibility to that entity which is best suited for the same and which will allocate any associated costs to the individuals which directly benefit from the use of the common open space.

B. Plan and legal documents. The developer shall submit a plan and proposed legal documents for the purpose of dedicating, in perpetuity, the use, ownership and maintenance of the approved common open space. The plan shall be approved by the Council with the recommendation of the Borough Solicitor. The provisions of the approved plan shall be incorporated into a development agreement with the Borough, deed covenants and restrictions, or other legal document which will effect the plan and which can be enforced by the Council.

(1) The plan shall define ownership.

(2) The plan shall establish necessary regular and periodic operation and maintenance responsibilities for the various kinds of open space (i.e., lawns, playing fields, meadow, pasture, crop land, woodlands, etc.).

(3) The plan shall estimate staffing needs, insurance requirements and associated costs, and define the means for funding the maintenance of the conservation open space and operation of any common facilities on an ongoing basis. Such funding plan shall include the means for funding long-term capital improvements as well as regular yearly operating and maintenance costs.

(4) The Council may require the applicant to escrow sufficient funds for the maintenance and operation costs of common facilities for up to 18 months.

(5) Any changes to the maintenance plan shall be approved by the Council.

C. Use restriction. The use of any common open space shall be limited to those uses which are specifically permitted or required by the applicable sections of this chapter and Chapter 400, Zoning.

D. Development plan designations. The subdivision/land development plan which will be recorded following final approval of the development shall clearly show all common open space and specifically note the use, ownership and maintenance responsibility of the same. Reference to the legal document(s) governing the use, ownership and maintenance of common open space shall be noted on the plan. The plan shall also contain the following statement: "Common open land, common recreation land, common facilities and development improvements shall not be sold separately or be further subdivided or developed, nor shall such land be used for density for any other development."

E. Methods for use dedication and common open space ownership and maintenance.

(1) The use of common open space and common open space ownership and maintenance shall be addressed by one or a combination of the methods which follow. In any case, the developer shall document to the satisfaction of the Council that the chosen method(s) will preserve the common open space use rights established in accord with this article and provide for the perpetual ownership and maintenance of all open land and recreation land.

(2) All methods shall establish a mechanism for the Council to effect the use dedication and required operation and maintenance of common open space, if the means established by the developer fail to provide the same.

(3) All methods for use dedication and common open space ownership and maintenance, and any combination of methods, and any change in method, which may be proposed by the ownership and maintenance entity, shall be subject to the approval of the Council. Operation and maintenance provisions shall include, but not be limited to, capital budgeting for repair and/or replacement of development improvements and common facilities, working capital, operating expenses, casualty and liability insurance, and contingencies.

(a) Property owners' association or condominium agreements. All common open space may be owned and maintained by a property owners' association (POA) or condominium agreements (CA), including all lot and/or condominium owners in the development, provided:

[1] The POA/CA is established by the developer as a nonprofit corporation for the express purpose of ownership and maintenance of the common open space or as otherwise may be required by state statute.

[2] Participation in the POA/CA is mandatory for all owners.

[3] Provision is made for the maintenance of common open space during the sale period and the orderly transition of responsibility from the developer to the POA/CA.

[4] The POA/CA is empowered to assess POA/CA members to fund the administration of the POA/CA and other costs associated with the common open space responsibilities.

(b) Transfer to a private conservation organization. In the case of open land and recreation land, the landowner may transfer fee simple title to the said areas, or parts thereof, to a private, nonprofit organization among whose purposes is the conservation of open land and/or natural resources, provided that:

[1] The deed contains the necessary covenants and restrictions in favor of the Borough to effect the use dedication and common open space ownership and maintenance standards of this article and this chapter.

[2] The organization proposed is a bona fide, operating, and stable conservation organization with a perpetual existence, as approved by the Council.

[3] The conveyance of title contains the necessary provisions for proper retransfer or reversion should the organization be unable to continue to execute the provisions of title.

[4] A maintenance agreement among the developer, organization and Borough is executed to the satisfaction of the Council.

(c) Deed-restricted (noncommon) private ownership. Deed restrictions on privately held lands may be used to preserve open land, provided such restrictions include a conservation easement in favor of the Borough, with provisions for reversion to the Borough, POA or trustee holding the remainder of the common open space. Up to 80% of the required conservation open space may be included within one or more large conservancy lots of at least 10 acres, provided the open space is permanently restricted from future development through a conservation easement, except for those uses permitted for conservation open space by the Borough's Zoning Ordinance, and that the Council is given the ability to enforce these restrictions. Title to such restricted lands may be transferred to other parties for use as restricted by the deed.

(d) Deed or deeds of trust. The landowner may provide, as approved by the Council, for the use, ownership and maintenance of common open space by establishing a trust for the same via a deed or deeds. The trustee shall be empowered to levy and collect assessments from the property owners for the operation and maintenance of the development.

(e) Conservation easements held by the Borough. In the case of open lands and recreation lands, the Council may, but shall not be required to, accept title to conservation easements on any such lands. In such cases, the land remains in the ownership of an individual, POA/CA, while the development rights are held by the Borough. The lands may be used in accord with the requirements of this chapter, and title to such lands may be transferred to other parties for use as restricted by the conservation easement.

(f) Fee simple and/or easement dedication to the Borough. In the case of open lands or recreation lands, the Council may, but shall not be required to, accept in fee the title to any such lands or any interests (such as development rights or conservation easements) therein for public use and maintenance, provided:

(4) There is no consideration paid by the Borough.

(5) Such land is freely accessible to the public.

(6) The Council agrees to and has access to maintain such lands.

F. Failure to preserve dedication of use and operation and maintenance of common open space. If the method established for the dedication of use, operation, and maintenance of common open space fails to do so in reasonable order and condition in accord with the approved development plan, the Council shall have the right and authority to take all necessary legal action to effect such use dedication, operation, and maintenance. The action of the Council shall be in accord with the following:

(1) Notice. The Council shall serve written notice on the assigned entity or the property owners in the development, setting forth the details of the failure of the entity with regard to use dedication and operation and maintenance of common open space.

(2) Correction of deficiencies. The notice shall include a demand that the deficiencies be corrected in a reasonable period of time, which shall be stated in the notice.

(3) Public hearing. A public hearing shall be conducted subsequent to the notice and shall be advertised in accord with the definition of "public notice" contained in this chapter. At such hearing, the Council may modify the terms of the original notice as to the deficiencies and may extend the time for correction of the deficiencies.

(4) Failure to correct. In the event the deficiencies in the notice, as may have been modified at the public hearing, are not corrected in accord with the established time period, the Council may enter upon the common open space and maintain the same and/or correct the deficiencies. The Council shall continue such action for such time as may be necessary to correct the deficiencies. Said action shall not constitute a taking or dedication of any common open space, nor vest in the public the right to use any common open space.

(5) Reinstatement of responsibility. The responsibility of operation and maintenance shall not be reinstated to the assigned entity until such time as the entity has demonstrated to the Council that the proper steps have been effected to modify the terms of use dedication, operation and/or maintenance and/or to reorganize or replace the responsible entity so that use dedication, operation and maintenance established by the approved development plan will be assured.

(6) Appeal. Any party to the action of the Council may appeal such action to court as provided for in the Pennsylvania Municipalities Planning Code, as amended.

(7) Public costs. The costs of the preservation of use dedication, maintenance and operation of any open land conducted by the Borough in accord with this article, including any administrative and legal costs, shall be assessed ratably against the properties in the subject development which have a right of enjoyment and/or use of the common open space. The assessment shall be made a lien on the properties, and, the Council shall, at the time of the notice in § 300-33F(1) above, file the required notice of lien against the properties.

§ 300-34 Subdivision and/or land development improvements agreement.

All applicants proposing any subdivision and/or land development requiring the installation of improvements as required by this chapter shall, prior to final plan approval by the Council and if so directed by the Council, enter into a legally binding development agreement with the Borough whereby the developer guarantees the installation of the required improvements in accord with the approved plan and all Borough requirements.

A. Contents. The development agreement shall be in a form suitable for execution by the Council and shall provide for the following, where applicable:

(1) The construction of all facilities authorized by the approved plans (streets, drainage, etc.) in itemized format.

(2) Installation of survey monuments and lot markers.

(3) Installation of all water, sewer and utility lines.

(4) Prevention of erosion, sedimentation and water damage to the subject, adjacent and downstream properties.

(5) Developer's responsibility for any damages to adjacent or neighboring properties.

(6) A work schedule setting forth the beginning and ending dates ad such other details as the Council deems fit and appropriate for improvements contained herein, including the timing of the development of any proposed sections.

(7) The estimated cost of the improvements not yet completed, including the amount of performance guarantee to be submitted.

(8) Security in the form of a construction guarantee approved by the Council to ensure the installation of the required improvements.

(9) Security in the form of a maintenance guarantee approved by the Council for the repair or reconstruction of improvements which are found by the Borough Engineer to be defective within 18 months from the date of formal acceptance of the said improvements, together with provisions for disbursement thereof.

(10) A set of reproducible "as-built" plans prepared by and certified to by a registered professional engineer and/or a registered professional surveyor of all roadways and streets, bridges, drainage systems, sewage collection and treatment systems, water distribution systems and all other required or provided improvements.

(11) Ownership of any improvements.

(12) Public liability insurance for the duration of improvements construction. A copy of the said policy or other evidence of coverage shall be submitted to the Council.

(13) A hold-harmless clause to protect the Borough from any and all liability.

(14) The developer's responsibility for all reasonable engineering and consulting costs and expenses for inspection, consultations and preparation of agreements, to the extent such costs and expenses exceed the monies paid by the developer in accordance with the standard fee schedules.

(15) Provisions for changing the approved final plan, supporting plans, profiles, data, specifications and related documents.

(16) Provisions for violations of the development agreement.

(17) Provisions for severability of any article.

(18) Provisions for any additional agreements deemed necessary.

B. Execution. The final plan shall not be approved by the Council prior to the execution of this agreement if so required by the Council.