A.
Applicant responsibility. In all cases, the applicant shall be responsible
for the installation of all improvements required by this chapter.
B.
Preliminary plan approval required. Applicants shall not initiate
installation of any required improvements, site alterations or erection
of any buildings or structures in any proposed subdivision or land
development prior to preliminary plan approval being granted and prior
to receipt of all required local, state and federal permits and other
approvals.
C.
Compliance. 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.
D.
Signature of final plan. No final plan shall be signed by the Supervisors
for recording in the office of the Monroe County Recorder of Deeds
until:
(1)
All improvements required by this chapter and/or shown on the plan are installed to the specifications contained in Article VI of this chapter and other Township requirements and such improvements are verified by the Township Engineer and are certified as complete and in compliance with this chapter by the applicant's engineer; or
E.
Dedication of improvements. The approval of a final plan by the Board
of Supervisors shall not constitute an acceptance of the dedication
of any road, street, other proposed public way, space, or area, or
any other development improvement shown on the final plan. The Board
of Supervisors of Polk Township does not intend to accept the dedication
of any of the roads, streets, other proposed public ways, spaces,
or areas, or any other development improvements shown on this final
plan. The landowner, developer or an association of lot owners shall
be responsible for the maintenance of all development improvements
subsequent to the construction of the same.
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] Proof of such security shall be provided to the Township.
[1]
Editor's Note: See 36 P.S. § 670-420.
In cases where final plan approval is proposed in sections or
stages, the Supervisors 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.
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 Board of Supervisors. The bond shall be payable
to Polk Township.
(2)
Escrow account. A deposit of cash either with the Township 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 Supervisors.
(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 Supervisors.
(4)
Other forms. Other forms of collateral, including, but not limited
to, real estate mortgages as the Supervisors may require or accept
as part of the security.
(5)
Additional requirements. The following requirements shall apply to the financial guarantees set forth in § 345-504A:
(a)
The funds of any guarantee shall be held in trust until released
by the Supervisors 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 Supervisors 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 Supervisors.
(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 Supervisors.
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 Supervisors 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 Supervisors 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 § 345-504.
(1)
Cost estimate. 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 Supervisors, upon the recommendation of
the Township Engineer, may refuse to accept such estimate for good
cause shown. If the developer and the Supervisors 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 Supervisors 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 Township and the applicant or developer.
(2)
More than one year for completion. 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 § 345-504B.
C.
Terms of guarantee. Construction guarantees shall be submitted in
a form and with such surety as approved by the Supervisors 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.
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 Township 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 Township Engineer.
C.
Verifications. Based upon the construction schedule and the nature
of the required improvements and within 15 calendar days of receipt
of the said construction schedule, the Township Engineer shall prepare
Township verification requirements to ensure the construction of the
required improvements in accord with the approved plan and Township
standards. In addition to all final verifications required for all
improvements, verifications shall be required at all phases of construction
when a failure to verify would result in a physical impossibility
to verify compliance at the time of the final verification (e.g.,
backfilling of sewer or water line trenches). This may require a full-time
person.
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 verification. Construction shall not proceed
further until the Township Engineer conducts the verification and
approves the improvements.
E.
Cost. The cost of all verifications conducted by the Township shall
be borne by the developer.
A.
Guarantee. Before final approval is granted, the developer shall
provide to the Township a maintenance guarantee in an amount determined
by the Supervisors but not less than 15% of the cost of all required
improvements as estimated by the applicant's engineer and approved
by the Township Engineer.
(1)
Such maintenance guarantee shall be in such form as prescribed in § 345-504A and shall guarantee that the developer shall maintain all improvements in good condition during the 18 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 eighteen-month period, the Supervisors 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 eighteen-month period, the Supervisors, 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 18 months from the date of the final
approval of the subject improvements and if all improvements are certified
by the Township Engineer to be in good condition, the Supervisors
shall release the said maintenance guarantee and surety to the developer
or party posting the said maintenance guarantee and surety.
B.
Guarantee for central sewage, central water and stormwater management.
This section shall only apply if guarantees are not required by any
governing municipal authority.
(1)
In lieu of the requirements of § 345-506A above, the Supervisors may require a guarantee from the developer for the maintenance, operation and repair of any central sewage system, central water system or stormwater management structure. Said guarantee shall be posted immediately after the system receives final approval and before it is put into operation.
(2)
The amount of said maintenance guarantee shall be determined
by the Supervisors but shall generally not exceed 25% of the estimated
cost of the system as verified by the Township Engineer.
(3)
In the event the system is not so maintained and operated, the
Supervisors, 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 the guarantee are insufficient to pay
the cost of maintaining the improvements the Supervisors, at its option,
may institute appropriate legal or equitable action to recover the
monies necessary for maintaining the improvements in good condition.
The developer shall provide to the satisfaction of the Supervisors,
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, 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 Supervisors.
(3)
Any improvements which will remain private. In the case of any subdivision or land development 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 § 345-504A to guarantee the operation and maintenance of the improvements. Said fund shall be established on a permanent basis with administrative provisions approved by the Supervisors. The amount of said fund shall be established by the Supervisors, but in no case shall be less than 15% nor more than 25% of the construction cost of the system as verified by the Township 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 Supervisors.
(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 Township requirements and/or the needs of the users of said improvements, the Supervisors 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 Supervisors 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 benefiting 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.[1]
This § 345-508 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 Supervisors (referred to as "common open space") as required by this chapter.
A.
Purpose. The requirements of this § 345-508 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 Supervisors with the recommendation
of the Township Solicitor. The provisions of the approved plan shall
be incorporated into a development agreement with the Township, deed
covenants and restrictions, or other legal document which will effect
the plan and which can be enforced by the Supervisors.
(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 Supervisors 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
Supervisors.
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.
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
Supervisors 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. All methods shall establish a mechanism for the Supervisors
to effect the use dedication and require operation and maintenance
of common open space, if the means established by the developer fail
to provide the same. 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 Supervisors. 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.
(1)
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:
(a)
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.
(b)
Participation in the POA/CA is mandatory for all owners.
(c)
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.
(d)
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.
(2)
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:
(a)
The deed contains the necessary covenants and restrictions in
favor of the Township to effect the use dedication and common open
space ownership and maintenance standards of this article and this
chapter.
(b)
The organization proposed is a bona fide, operating and stable
conservation organization with a perpetual existence, as approved
by the Supervisors.
(c)
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.
(d)
A maintenance agreement among the developer, organization and
Township is executed to the satisfaction of the Supervisors.
(3)
Deed-restricted (non-common) 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
Township, with provisions for reversion to the Township, POA or trustee
holding the remainder of the common open space.
(4)
Deed or deeds of trust. The landowner may provide, as approved
by the Supervisors, 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.
(5)
Conservation easements held by the Township. In the case of
open lands and recreation lands, the Supervisors 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 Township. 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.
(6)
Fee simple and/or easement dedication to the Township. In the
case of open lands or recreation lands, the Supervisors 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:
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 Supervisors shall have the right and authority to take all
necessary legal action to effect such use dedication, operation and
maintenance. The action of the Supervisors shall be in accord with
the following:
(1)
Notice. The Supervisors shall serve written notice on 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
Supervisors 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 Supervisors may enter
upon the common open space and maintain the same and/or correct the
deficiencies. The Supervisors 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 Supervisors 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.
(7)
Public costs. The costs of the preservation of use dedication, maintenance and operation of any open land conducted by the Township 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 Supervisors shall, at the time of the notice in § 345-508F(1) above, file the required notice of lien against the properties.
All applicants proposing any subdivision or land development
which provides for the installation of improvements required by this
chapter or any improvements or amenities which appear on the final
plan shall be required to enter into a legally binding development
agreement with the Township prior to final plan approval guaranteeing
the installation of said improvements in accord with all Township
requirements.
A.
Execution. The final plan shall not be approved by the Board of Supervisors
prior to the execution of this agreement.
B.
Form and level of detail. The development agreement shall be in the
form included in Appendix A[2] and a detailed and itemized listing of all improvements
in the subdivision or land development shall be included in Item 2
and Item 4a of the agreement. The improvements may vary from project
to project, but at a minimum include:
(1)
All facilities authorized by the approved plans (streets, drainage,
etc.).
(2)
Survey monuments and markers.
(3)
Water, sewer and utility lines.
(4)
The practices for the prevention of erosion, sedimentation and
water damage to the subject, adjacent and downstream properties.
[2]
Editor's Note: See Appendix A, which is an attachment to this
chapter.
[1]
Editor's Note: See Appendix A, an attachment to this chapter,
for format.
