Borough of New Salem, PA Article V Operation and Maintenance

§ 195-26 Operation and maintenance program.

A. The municipality shall make the final determination as to the adequacy of ownership operation and maintenance provisions prior to final approval of the SWM site plan.

B. The operation and maintenance plan shall be recorded as a restrictive covenant that runs with the land in perpetuity, and a reference to the plan, all easements (see § 195-27), and all operation and maintenance agreements (see § 195-28), including, at a minimum, the place, book, and page where each is recorded, shall also be included on each deed.

C. Each SWM site plan shall contain provisions which clearly set forth ownership, operation and maintenance responsibilities for all permanent stormwater management facilities. At a minimum, the provisions shall include:

(1) A description of the routine and periodical operation and maintenance activities that are necessary to ensure proper operation and function of the stormwater management facilities such as is required to meet the intent of the approved SWM site plan.

(2) Establishment of suitable easements as specified in § 195-27. The municipality, agents and employees shall have the right to enter easement areas where stormwater management and erosion and sediment control facilities are located for the purpose of inspecting said facilities.

(3) Identification of the responsible party or entity for ownership and maintenance of community permanent stormwater management facilities. In meeting this requirement, the following priority for ownership is herein established:

(a) First. As a first priority, ownership and maintenance of stormwater management facilities shall be the responsibility of a homeowners' association. The municipality shall have complete discretion in determining whether or not the first priority can be achieved. The stated responsibilities of the homeowners' association in terms of owning and maintaining the stormwater management facilities shall be submitted with final plans for determination of their adequacy and, upon their approval, shall be recorded with the approved subdivision and/or land development plan with the Recorder of Deeds of York County, Pennsylvania. In addition, the approved subdivision and/or land development plan and any deed written from said plan for a lot or lots shown therein shall contain a condition that it shall be mandatory for the owner or owners of said lot to be members of said homeowners' association. As part of this ownership priority, in the event that both the owner of the property on which the facility is located and the homeowners' association are to pay such costs in full, the owners of each lot in the subdivision shall be responsible for their proportionate share of the operation and maintenance costs, which share shall be determined by the percentage each lot bears to the total number of lots in the subdivision. This priority shall not apply to minor subdivisions as defined in § 205-6 of the New Salem Borough Subdivsion and Land Development Ordinance, which shall be addressed pursuant to the terms of the second priority, below.

(b) Second. As a second priority, in the event that the first priority cannot be achieved, or for minor subdivisions, the stormwater management facilities shall be incorporated within individual lots so that respective lot owners will own and be responsible for maintenance in accordance with this section and the recorded deed restrictions, agreements, and other related documents. In addition, a nonrefundable deposit in an amount to be set by the municipality shall be made by the developer for each stormwater management facility that is intended for ownership by the lot owner to cover the cost of inspections and necessary maintenance and repairs, except that the municipality can waive this deposit and require that the developer create covenants to permit the municipality to place a lien on the residual tract of the subdivision as well as the lot on which the facility is located in the event that a lot owner's failure to maintain or repair the facility requires the municipality to maintain or repair it.

(c) Third. Municipal ownership. The municipality reserves the right to accept or reject the ownership, operation and maintenance responsibility for any or all of the stormwater management facilities.

§ 195-27 Easements.

Easements provided in compliance with this section shall be depicted graphically on all subdivision, land development and SWM site plans. The provisions in Subsections C through F of this section shall be stated in note form on all subdivision, land development and SWM site plans.

A. Where a development site is traversed by federal or state-regulated natural watercourses, drainage easements shall be provided conforming to the alignment of the watercourse and the physical limits of any associated features that are regulated. If the physical limits of the regulated features are not known, then the width of the easement shall be equal to the top width of the maximum anticipated flow in the watercourse during a one-hundred-year design storm event or 20 feet, whichever is greater.

B. Access easements shall be provided around all stormwater management facilities are required to provide ingress to and egress from a public right-of-way. Access easements shall have a minimum width of 20 feet and be centered on the facility (i.e., pipe, swale) to which access is being provided. For storage, retention and infiltration facilities, easements shall be provided conforming substantially to the size, shape and configuration of each facility.

C. Where individual on-lot controls are proposed, the municipality shall be granted access to inspect on-lot facilities in the event of a malfunction.

D. No person shall place any obstruction or encroachment in an easement associated with a federal or state-regulated resource without prior written authorization by the appropriate regulatory authority.

E. No person shall place any obstruction or encroachment in a stormwater facility or drainage easement without prior written authorization by the municipality.

F. The Borough, its agents and employees shall have the right to enter easement areas where stormwater management and erosion and sediment control facilities are located for the purpose of inspecting and, if necessary, maintaining or repairing, said facilities.

§ 195-28 Operation and maintenance agreements.

A. The applicant shall prepare and execute an operation and maintenance agreement (see the sample agreement in Appendix A).[1]

[1] Editor's Note: Appendix A is included as an attachment to this chapter.

B. When ownership will ultimately be the responsibility of a homeowners' association an agreement shall be provided to the Borough by the applicant/owner/developer defining the terms and conditions under which ownership and maintenance responsibilities will be transferred to the homeowners' association. Other items may be required in the agreement where determined necessary to guarantee satisfactory installation and maintenance of all facilities. The agreement shall be subject to a review and approval by the municipality, shall be recorded with the County Recorder of Deeds, and shall constitute a covenant running with the property and/or equitable servitude and shall be binding on the landowner, his administrators, executors, assigns, heirs and any other successors in interests in perpetuity. The agreement shall also be included, or specifically referred to (including, at a minimum, the place, book, and page where it is recorded), in any and all documents relating to the homeowners' association, including but not limited to any declarations or restrictive covenants.

C. If the landowner fails to adhere to the operation and maintenance agreement, the municipality may perform the services required and charge the landowner appropriate fees.

D. Payment of any fees, costs, or expenses incurred by the municipality as a result of this section shall be the responsibility of the homeowners' association, the landowner, or the owners of each lot in the subdivision, as the case may be. Failure by any owners to pay their share, whether all or part, may result in a lien against the property and/or any other action authorized by law or agreement.

§ 195-29 Municipal Stormwater BMP Operation and Maintenance Fund.

Persons installing stormwater management facilities the purpose of which is to control stormwater runoff for community uses shall be required to pay a specified amount to the Borough for a stormwater maintenance fund to help defray the Borough's costs of periodic inspections. In addition, the Borough may require other stormwater management facilities to pay a specified amount to the stormwater maintenance fund if, in the discretion of the Borough or its engineer or other designated official, such facility exhibits characteristics that pose a threat or potential threat to public health or safety. The amount of the deposit shall be calculated to cover the cost of periodic inspections performed by the Borough for a minimum of 11 years, as estimated by the Borough's engineer. The Borough, at its discretion, may require the amount of the deposit to be calculated for terms exceeding 11 years. After the designated period of time for Borough inspections, inspections shall be performed by the then-current owner of the stormwater management facility at the owner's expense; a copy of these inspection reports are to be sent to the Borough and its engineer on the schedule established by § 195-35.