Township of Kidder, PA Article V Improvement Construction and Guarantees and Open Land

§ 153-35 General.

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 Board of Supervisors for recording in the office of the 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 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

(2) An improvements construction guarantee in accord with § 153-38 and the Pennsylvania Municipalities Planning Code has been accepted by the Board of Supervisors.

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 Kidder Township does not intend to accept the dedication any of the roads, streets, other proposed public ways, spaces, or areas, or any other development improvements shown on this final plan. The land owner, developer or an association of lot owners shall be responsible for the maintenance of all development improvements subsequent to the construction of the same.

F. Development agreement required. A development agreement shall be required in accord with § 153-43.

§ 153-36 PA DOT 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)[1] known as the "State Highway Law." Proof of such security shall be provided to the Township.

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

§ 153-37 Sections/stages.

In cases where final plan approval is proposed in sections or stages, the Board of 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.

§ 153-38 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 Board of Supervisors. The bond shall be payable to Kidder 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 Board of 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 Board of Supervisors.

(4) Other forms. Other forms of collateral including, but not limited to, real estate mortgages as the Board of 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 § 153-38A:

(a) The funds of any guarantee shall be held in trust until released by the Board of 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 Board of 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 Board of 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 Board of 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 Board of 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 Board of 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 § 153-38.

(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 Board of Supervisors, upon the recommendation of the Township Engineer, may refuse to accept such estimate for good cause shown. If the developer and the Board of 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 Board of 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 may, as determined by the Board of Supervisors, shall be increased up to 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 § 153-38B.

C. Terms of guarantee. Construction guarantees shall be submitted in a form and with such surety as approved by the Board of 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.

D. Release of improvement construction guarantees. The release of improvement construction guarantees shall follow the procedure of the development agreement.

§ 153-39 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 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.

§ 153-40 Improvement maintenance guarantee.

Before final approval is granted, the developer shall provide to the Township a maintenance guarantee in an amount determined by the Board of 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.

A. Such maintenance guarantee shall be in such form as prescribed in § 153-38A 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 Board of 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 Board of Supervisors, at its option, may institute appropriate legal or equitable action to recover the monies necessary for maintaining the improvements in good condition.

B. 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 Board of Supervisors shall release the said maintenance guarantee and surety to the developer or party posting the said maintenance guarantee and surety.

§ 153-41 Continued ownership and maintenance of improvements.

The developer shall provide to the satisfaction of the Board of Supervisors, and prior to final plan approval, evidence of the provision for the succession of ownership and responsibility for maintenance of development improvements. To the extent that a subdivision or land development is subject to the Pennsylvania Uniform Planned Community Act, as amended, and/or the Pennsylvania Uniform Condominium Act, as amended,[1] the provisions of said Act(s) shall apply in lieu of the requirements of this § 153-41, and the developer shall provide documentation of compliance.

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. Until such time as the developer no longer owns any property 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 Board of 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 § 153-38A to guarantee the operation and maintenance of the improvements. Said fund shall be established on a permanent basis with administrative provisions approved by the Board of Supervisors. The amount of said fund shall be established by the Board of 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 Board of Supervisors. All issues concerning performance and enforcement of such improvements shall be with the property owners of said subdivision and/or land development as identified herein.

B. 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 Kidder Township does not intend to accept the dedication any of the roads, streets, other proposed public ways, spaces, or areas, or any other development improvements shown on this final plan. The land owner, developer or an association of lot owners shall be responsible for the maintenance of all development improvements subsequent to the construction of the same.

[1] Editor's Note: See 68 Pa.C.S.A. § 5101 et seq. and 68 Pa.C.S.A. § 3101 et seq., respectively.

§ 153-42 Open land and recreation land ownership and maintenance.

This § 153-42 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 Board of Supervisors (referred to as "common open space") as required by this chapter.

A. Purpose. The requirements of this § 153-42 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 Board of 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 may be enforced by the Board of 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 on-going basis. Such funding plan shall include the means for funding long-term capital improvements as well as regular yearly operating and maintenance costs.

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 180 (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.

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 Board of 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 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 Board of 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 Board of 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 acceptable to the Township is executed between the developer and organization.

(3) 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 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 Board of 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 Board of 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 Board of 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:

(a) There is no consideration paid by the Township.

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

(c) The Board of Supervisors 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 Board of 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 Board of Supervisors shall be in accord with the following:

(1) Notice. The Board of 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 Board of 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 Board of Supervisors may enter upon the common open space and maintain the same and/or correct the deficiencies. The Board of 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 Board of 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.

(6) Appeal. Any party to the action of the Board of Supervisors 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 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 Board of Supervisors shall, at the time of the notice in § 153-42F(1), file the required notice of lien against the properties.

§ 153-43 Development agreement.

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 required by the Township and a detailed and itemized listing of all improvements in the subdivision or land development shall be included in 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.

§ 153-44 (Reserved)