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." Proof of such security
shall be provided to the Township.
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.
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.
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.
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, 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.
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.
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.