No plan shall be finally approved unless the
streets shown have been improved as required by this chapter, and
any walkways, curbs, gutters, streetlights, street signs, fire hydrants,
shade trees, water mains, sanitary sewers, storm sewers and any other
required improvements have been installed as required by this chapter.
A.
Notice of starting work. The Borough Engineer shall
be given at least 24 hours' notice by the subdivider or developer
prior to commencement of work at the site. Work shall not begin without
such prior notification.
B.
Inspection of improvements during construction. The
Borough Engineer may make as many unannounced visits as he deems necessary
to the site during normal working hours during the construction of
improvements in order to inspect the construction work for conformance
with the approved plans.
C.
Filing of report. The Borough Engineer shall file
a report, in writing, with the Council, with a copy to the Planning
Commission, after each such inspection and shall promptly mail a copy
of the same to the developer or subdivider by certified or registered
mail. The report shall be made and mailed within five days of the
inspection and shall indicate whether the improvements are being constructed
in accordance with the approved plan or whether they have been found
to be defective. The report shall contain a detailed statement of
the defects found. A time schedule for correction of the defects shall
be provided, and the subdivider or developer shall be notified that
no further work will be conducted until the corrections are made and
approved.
In lieu of the completion of any improvements
required as a condition for the final approval of a plan, including
improvements or fees required pursuant to Subsection H, Phasing of
developments, the deposit with the Borough of a financial security
shall be required in the amount sufficient to cover the costs of such
improvements or common amenities which may be required, including,
but not limited to, roads, stormwater detention and/or retention basins
and other related drainage facilities, recreational facilities, open
space improvements, or buffer or screen plantings. All final documentation
of the financial security shall be submitted to the Borough Solicitor
for his review 14 days prior to the public meeting at which the plan
will be submitted for final approval; otherwise, the plan will be
denied.
A.
Types of financial security. Without limitation as
to other types of financial security which the Borough may approve,
which approval shall not be unreasonably withheld, irrevocable letters
of credit and restrictive or escrow accounts from federal- or commonwealth-chartered
lending institutions shall be deemed acceptable financial security
for the purposes of this chapter.
B.
Posting of financial security. Such financial security
shall be posted with a bonding company or federal- or commonwealth-chartered
lending institution chosen by the party posting the financial security,
provided said bonding company or lending institution is authorized
to conduct such business within the commonwealth.
C.
Action to facilitate financing.
(1)
When requested by the developer, in order to facilitate
financing, the Borough Council or the financing agency, if designated,
shall furnish the developer with a signed copy of a resolution indicating
approval of the final plan, contingent upon the developer's obtaining
a satisfactory financial security.
(2)
The final plan or record plan shall not be signed
nor recorded until the financial improvements agreement is executed.
(3)
The resolution or letter of contingent approval shall
expire and be deemed to be revoked if the financial security agreement
is not executed within 90 days, unless a written extension is granted
by the Borough Council. Such extension shall not be unreasonably withheld
and shall be placed in writing at the request of the developer.
D.
Time period for completion of improvements. Such bond
or other security shall provide for, and secure to the public, the
completion of any improvements which may be required on or before
the date fixed in the formal action of approval or accompanying agreement
for completion of the improvements.
E.
Amount of financial security.
(1)
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 days following the date
scheduled for completion by the developer.
(2)
Annually, the Borough 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 day
after either the original date scheduled for completion or a rescheduled
date of completion.
(3)
Subsequent to said adjustment, the Borough 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 accordance with this subsection.
F.
Establishment of improvement cost.
(1)
The amount of financial security required shall be
based upon an estimate of the cost of completion of the required improvements,
submitted by an applicant or developer and prepared by a professional
engineer to be a fair and reasonable estimate of such cost.
(2)
The Borough, upon the recommendation of the Borough
Engineer, may refuse to accept such estimate for good cause shown.
(3)
If the applicant or the developer and the Borough
are unable to agree on an estimate, then the estimate shall be recalculated
and recertified by another professional engineer licensed as such
in the commonwealth and chosen mutually by the Borough and the applicant
or developer. The estimate certified by the third engineer shall be
presumed fair and reasonable and shall be the final estimate.
(4)
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.
G.
Increase in time period and amount of financial security for completion of improvements. If the party posting the financial security requires more than one year from the date of posting of the financial security to complete the required improvements, the amount of financial security may be increased by an additional 10% for each one-year period beyond the first anniversary date from posting of the financial security or to an amount not exceeding 110% of the cost of completing the required improvements as reestablished on or about the expiration of the preceding one-year period by using the procedure described in Subsection E above.
H.
Phasing of developments. In the case where development
is projected over a period of years, the Council may authorize the
submission of final plans by sections or phases of development, subject
to such requirements or guarantees as to improvements in future sections
or phases of development as it finds essential for the protection
of any finally approved section of the development.
I.
Notice of starting work. The Borough Engineer shall
be given at least 24 hours' notice by the subdivider or developer
prior to commencement of work at the site. Work shall not begin without
such prior notification.
J.
Inspection of improvements during construction. The
Borough Engineer may make as many unannounced visits as he deems necessary
to the site during normal working hours during the construction of
improvements in order to inspect the construction work for conformance
with the approved plans.
K.
Filing of report.
(1)
The Borough Engineer shall file a report, in writing,
with the Council, with a copy to the Planning Commission, after each
such inspection and shall promptly mail a copy of the same to the
developer or subdivider by certified or registered mail.
(2)
The report shall be made and mailed within five days
of the inspection and shall indicate whether the improvements are
being constructed in accordance with the approved plan or whether
they have been found to be defective. The report shall contain a detailed
statement of the defects found. A time schedule for correction of
the defects shall be provided, and the subdivider or developer shall
be notified that no further work will be conducted until the corrections
are made and approved.
L.
Release of portions of financial security.
(1)
As the work of installing the required improvements
proceeds, the party posting the financial security may request the
Council to release or authorize the release, from time to time, of
such portions of the financial security necessary for payment to the
contractor or contractors performing the work.
(2)
Any such request shall be in writing, addressed to
the Council, and the Council shall have 45 days from receipt of such
request within which to allow the Borough Engineer to certify, in
writing, to the Council that such portion of the work upon the improvements
has been completed in accordance with the approved plan.
(3)
Upon such certification, the Council shall authorize
release by the bonding company or lending institution of an amount,
as estimated by the Borough Engineer, as fairly representing the value
of the improvements completed. Failure of the Council to act within
the said forty-five-day period shall be deemed an approval of the
release of the funds requested.
(4)
The Council may require retention of 10% of the estimated
cost of the aforesaid improvements prior to final release at the time
of completion and certification by its Engineer.
M.
Financial security for maintenance of improvements.
(1)
Where the Council accepts dedication of all or some
of the required improvements following completion, it may require
the posting of financial security to secure structural integrity of
said improvements, as well as the functioning of said improvements
in accordance with the design and specifications as shown on the final
plan, for a term not to exceed 18 months from the date of acceptance
of dedication.
(2)
Said financial security shall be of the same type
as otherwise required in this section with regard to installation
of such improvements, and the amount of the financial security shall
not exceed 15% of the actual cost of installation of said improvements.
N.
Financial security for improvements under jurisdiction
of public utility or municipal authority. If water mains or sanitary
sewer lines, or both, along with apparatus or facilities related thereto,
are to be installed under the jurisdiction and pursuant to the rules
and regulations of a public utility or municipal authority separate
and distinct from the municipality, financial security to assure proper
completion and maintenance thereof shall be posted in accordance with
the regulations of the controlling public utility or municipal authority
and shall not be included within the financial security as otherwise
required by this section.
O.
Issuance of permits when financial security has been
posted. If financial security has been provided in lieu of the completion
of improvements required as a condition for final plan approval as
set forth in this section, the Borough shall not condition the issuance
of zoning, building, grading or other permits relating to the erection
or placement of improvements, including buildings, upon the lots or
land as shown on the final plan upon actual completion of the improvements
shown on the approved final plan.
P.
Certificates of zoning compliance (occupancy) not
to be withheld under certain conditions. If said financial security
has been provided, certificates of zoning compliance or occupancy
permits for any building or buildings to be erected shall not be withheld
following the improvement of the streets providing access to and from
existing public roads to such building or buildings to a mud-free
or otherwise permanently passable condition, as well as the completion
of all other improvements as shown on the approved final plan, either
upon the lot or lots beyond the lot or lots in question, if such improvements
are necessary for the reasonable use of or occupancy of the building
or buildings.
Q.
Any ordinance
or statute inconsistent herewith is hereby expressly repealed.
A.
Notification of completion of improvements. When the
developer or subdivider has completed all of the necessary and appropriate
improvements, the developer or subdivider shall notify the Council,
in writing, by certified or registered mail, of the completion of
the aforesaid improvements and shall send a copy thereof to the Borough
Engineer.
B.
Authorization of inspection of improvements. The Council
shall, within 10 days after receipt of such notice, direct and authorize
the Borough Engineer to inspect all of the aforesaid improvements.
The Borough Engineer shall be a duly registered professional engineer
(PE) employed by the Borough or engaged as a consultant thereto.
C.
Filing of report.
(1)
The Borough Engineer shall thereupon file a report,
in writing, with the Council, with a copy to the Planning Commission,
and shall promptly mail a copy of the same to the developer or subdivider
by certified or registered mail.
(2)
The report shall be made and mailed within 30 days
after receipt by the Borough Engineer of the aforesaid authorization
from the Council. The report shall be detailed and shall indicate
approval or rejection of said improvements, either in whole or in
part. If said improvements, or any portion thereof, shall not be approved
or shall be rejected by the Borough Engineer, said report shall contain
a statement of the reasons for such nonapproval or rejection.
D.
Notification of Borough action. The Council shall
notify the developer or subdivider, within 15 days of receipt of the
Engineer's report, in writing, by certified or registered mail, of
the action of said Council with relation thereto. The Council shall
also notify the Planning Commission, in writing, of its action.
E.
Failure of Borough to act within time limit. 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 or subdivider shall be released from
all liability, pursuant to its performance guarantee bond or other
security agreement.
F.
Responsibility of developer upon disapproval of improvements.
If any portion of the said improvements shall not be approved or shall
be rejected by the Council, the developer or subdivider shall proceed
to complete the same and, upon completion, the same procedure of notification,
as outlined in this section, shall be followed.
G.
Developer's right to contest action. Nothing herein,
however, shall be construed in limitation of the developer's or subdivider's
right to contest or question, by legal proceedings or otherwise, any
determination of the Council or Borough Engineer.
A.
Where
herein reference is made to the Borough Engineer, he shall be as a
consultant thereto.
B.
The Borough
may prescribe that the applicant shall reimburse the Borough for the
reasonable and necessary expense incurred in connection with the inspection
of improvements. The applicant shall not be required to reimburse
the Borough Council for any inspection which is duplicative of inspections
conducted by other governmental agencies or public utilities. The
burden of proving that any inspection is duplicative shall be upon
the objecting applicant. Such reimbursement shall be based upon a
schedule established by ordinance or resolution. Such expense shall
be reasonable and in accordance with the ordinary and customary fees
charged by the Borough's professional consultant for work performed
for similar services in the community, but in no event shall the fees
exceed the rate or cost charged by the professional consultant to
the Borough for comparable services when fees are not reimbursed or
otherwise imposed on applicants.
(1)
The Borough Council shall submit to the applicant
an itemized bill showing the work performed in connection with the
inspection of improvements performed, identifying the person performing
the services and the time and date spent for each task. In the event
the applicant disputes the amount of any such expense in connection
with the inspection of improvements, the applicant shall, no later
than 30 days after the date of transmittal of a bill for inspection
services, notify the Borough and the Borough's professional consultant
that such inspection expenses are disputed as unreasonable or unnecessary
and shall explain the basis of their objections to the fees charged,
in which case the Borough shall not delay or disapprove a request
for release of financial security, a subdivision or land development
application or any approval or permit related to development due to
the applicant's dispute of inspection expenses. Failure of the applicant
to dispute a bill within 30 days shall be a waiver of the applicant's
right to arbitration of that bill under this section. Subsequent to
the final release of financial security for completion of improvements
for a subdivision or land development, or any phase thereof, the professional
consultant shall submit to the Borough Council a bill for inspection
services, specifically designated as a final bill. The final bill
shall include inspection fees incurred through the release of financial
security.
(2)
If the professional consultant and the applicant cannot
agree on the amount of expenses which are reasonable and necessary,
then the applicant shall have the right, within 45 days of the transmittal
of the final bill or supplement to the final bill to the applicant,
to request the appointment of another professional consultant to serve
as an arbitrator. The applicant and professional consultant whose
fees are being challenged shall, by mutual agreement, appoint another
professional consultant to review any bills the applicant has disputed
and which remain unresolved and make a determination as to the amount
thereof which is reasonable and necessary. The arbitrator shall be
of the same profession as the professional consultant whose fees are
being challenged.
(3)
The arbitrator so appointed shall hear such evidence
and review such documentation as the arbitrator in his or her sole
opinion deems necessary and shall render a decision no later than
50 days after the date of appointment. Based on the decision of the
arbitrator, the applicant or the professional consultant whose fees
were challenged shall be required to pay any amounts necessary to
implement the decision within 60 days. In the event the Borough has
paid the professional consultant an amount in excess of the amount
determined to be reasonable and necessary, the professional consultant
shall, within 60 days, reimburse the excess payment.
(4)
In the event that the Borough's professional consultant
and applicant cannot agree upon the arbitrator to be appointed within
20 days of the request for appointment of an arbitrator, then, upon
application of either party, the President Judge of the Court of Common
Pleas of the judicial district in which the Borough is located (or,
if at the time there be no President Judge, then the senior active
judge then sitting) shall appoint such arbitrator, who, in that case,
shall be neither the Borough's professional consultant nor any professional
consultant who has been retained by, or performed services for, the
Borough or the applicant within the preceding five years.
(5)
The fee of the arbitrator shall be paid by the applicant
if the review fee charged is sustained by the arbitrator; otherwise,
it shall be divided equally between the parties. If the disputed fees
are found to be excessive by more than $5,000, the arbitrator shall
have the discretion to assess the arbitration fee, in whole or in
part, against either the applicant or the professional consultant.
The Borough Council and the consultant whose fees are the subject
of the dispute shall be parties to the proceeding.
A.
Enforcement of financial security. 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 final plan,
the Council can enforce any corporate bond or other security by appropriate
legal and equitable remedies.
B.
Insufficiency of financial security. If the proceeds
of such bond or other security are insufficient to pay the cost of
installing or making repairs or corrections to all the improvements
covered by said security, the Council may, at its option, install
part of such improvements in all or part of the subdivision or land
development and may institute appropriate legal or equitable action
to recover the moneys necessary to complete the remainder of the improvements.
C.
Proceeds from financial security limited as to use.
All of the proceeds, whether resulting from the security or from any
legal or equitable action, or from both, brought against the developer
or subdivider shall be used solely for the installation of the improvements
covered by such security and not for any other municipal purpose.
A.
Violation of consumer protection laws. No zoning permit
or certificate of zoning compliance (occupancy permit) shall be granted
or issued if a developer or subdivider shall have violated any federal,
state, or local law pertaining to consumer protection of real estate
land sales, promotion, or practices, or any applicable conflict of
interest legislation with respect to the lot or parcel of land which
is the subject of the permit or certificate, until so ordered by a
court of competent jurisdiction.
B.
Revocation of permits. With respect to said lot or
parcel of land, in the event a zoning permit or certificate of zoning
compliance (occupancy permit) has been granted or issued, it shall
be subject to revocation by the Borough until so ordered otherwise
by a court of competent jurisdiction, provided that in no event shall
the rights of intervening innocent third parties in possession of
a certificate of zoning compliance (occupancy permit) be prejudiced
by any such revocation.
C.
Subdivision chapter violation. Any violation of a federal, state, or local consumer protection law (including but not limited to the Postal Reorganization Act of 1970, the Federal Trade Commission Act of 1970, the Interstate Land Sales Full Disclosure Act, the Truth in Lending Act, the Uniform Commercial Credit Code) or conflict of interest statute, law, or ordinance shall be deemed a violation of the regulations of this chapter and subject to all the penalties and proceedings as set forth in Article IX.
