Posted on January 26, 2012 by Kimberly Freimuth

Notice of Funding Availability - Rural Energy for America Program

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The United States Department of Agriculture recently issued a Notice of Funding Availability for the acceptance of applications under the Rural Energy for America Program (REAP) for fiscal year 2012.  The program will make available $12.5 million in grant funds and $48.5 million in guaranteed loan funds in order to provide financial assistance as follows:

  • grants, guaranteed loans and combined grants and guaranteed loans for the development and construction of renewable energy systems and for energy efficiency improvement projects;
  • grants for conducting energy audits;
  • grants for conducting renewable energy development assistance; and
  • grants for conducting renewable energy system feasibility studies.

Depending on the project, applications are due as early as February 21, 2012.  Are you an agricultural producer or rural small business that is eligible for financing under this program?

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Posted on January 20, 2012 by Kimberly Freimuth

Reminder to PA Residential Landlords - Security Deposits

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What are the requirements under the Pennsylvania Landlord Tenant Act with respect to security deposits:
 
1.    Deposits Required to be Placed in Escrow:  Pursuant to the Pennsylvania Landlord Tenant Act, 68 P.S. 250.101 et seq. (the "Act"), all funds over $100 deposited with a landlord to secure the execution of a rental agreement on residential property shall be deposited in an escrow account of an institution regulated by the Federal Reserve Board, the Federal Home Loan Bank Board, Comptroller of the Currency, or the Pennsylvania Department of Banking.  68 P.S. 250.511b(a).  When any funds are deposited in any escrow account, the landlord shall notify each of the tenants in writing, giving the name and address of the bank in which the deposits are held and the amount of such deposits.  Id.  A landlord may, in lieu of depositing escrow funds, guarantee that any escrow funds, less cost of necessary repairs, including interest thereon, shall be returned to the tenant upon termination of the lease, or on surrender and acceptance of the leasehold premises.  Id. at 250.511c.  The guarantee of repayment of the escrow funds shall be secured by a good and sufficient guarantee bond issued by a bonding company authorized to do business in Pennsylvania.  Id. 
 
2.    Amount of Deposit Permitted:  During the first year of a lease, no landlord may require a sum in excess of two months' rent to be deposited in escrow for the payment of damages to the leased premises and/or for default in rent .  I.d. at 250.511a(a).  During the second and subsequent years of the lease, or during any renewal, the amount required to be deposited may not exceed one months' rent.  Id. at 250.511a(b).  These provisions of the Act may not be modified by contract.  See id. at 250.511a(f).
 
3.    Requirement to Return Deposits / Landlord Liability:  Every landlord shall, within 30 days of termination of a lease or upon surrender and acceptance of the leased premises, provide tenant with a list of any damages to the premises for which landlord claims tenant is liable, along with return of the escrow deposit, less the actual amount of damages to the premises.  Id. at 250.512(a).  However, the landlord is not precluded from refusing to return the escrow funds for nonpayment of rent or for breach of any other condition in the lease by tenant.  Id.  Any landlord who fails to provide a written list within 30 days forfeits all rights to withhold any portion of sums held in escrow or to bring suit against the tenant for damages to the premises.  Id. at 250.512(b).  If the landlord fails to pay the tenant the difference between the sum deposited in escrow and the actual damages to the premises caused by tenant within 30 days after termination or surrender and acceptance of the premises, the landlord shall be liable in assumpsit to double the amount by which the escrow funds, including any unpaid interest thereon, exceeds the amount of actual damages to the leased premises.  Id.  The burden of proof of actual damages caused by the tenant shall be on the landlord.  Id.  However, failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the premises shall relieve the landlord from any liability under Section 250.512 of the Act.  Id. at 250.512(e).  

 

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Posted on January 16, 2012 by Kimberly Freimuth

Draft Chesapeake Bay WIP Open for Comments

The Pennsylvania Department of Environmental Protection recently released Pennsylvania’s Draft Phase 2 Chesapeake Watershed Implementation Plan (draft Phase 2 WIP) as part of its mandated requirement to clean up the Chesapeake Bay.  Forty-three (43) counties in Pennsylvania contribute to the Chesapeake Bay watershed.

The draft Phase 2 WIP was submitted to the United States Environmental Protection Agency (EPA) on December 15, 2011 – with formal notification appearing in the PA Bulletin – and outlines the state’s plan to address EPA’s expectations that the states develop a Phase 2 WIP so that local partners (1) are aware of the WIP strategies; (2) understand their contribution to meeting the TMDL allocations; and (3) have been provided with the opportunity to suggest any refinements to the WIP strategies.

The draft Phase 2 WIP was developed to meet EPA’s August 1, 2011 revised nutrient and sediment allocations for the TMDL. The allocations are the result of EPA’s development of a revised Watershed Model.   

According to EPA’s current watershed model, when compared to 1985, Pennsylvania has achieved 27% of the nitrogen reductions, 31% of the phosphorus reductions, and 50% of the total suspended sediment reductions needed to reach the 2025 restoration targets.  When compared to current 2010 progress reported by the watershed model, Pennsylvania still needs to achieve an additional 33.23 million pound reduction in nitrogen, 1.26 million pound reduction in phosphorus, and 524.4 million pound reduction in sediment by 2025 to aid in restoring water quality in the Chesapeake Bay.  Failure to meet pollutant contribution reductions in the Chesapeake Bay watershed may result in EPA tightening limits on permits and/or denying permits outright. 

 Sen. Mike Brubaker (R-Lancaster) hosted a briefing with EPA, DEP & other officials outlining the Commonwealth’s draft Phase 2 WIP (Watch video – click on each speaker name to hear their respective briefings.)

The Department is accepting comments from the public on the draft Phase 2 WIP until January 30, 2012.

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Posted on December 28, 2011 by Kimberly Freimuth

Federal Funds to Support Small Business Job Creation

 

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The Pennsylvania Department of Community and Economic Development (DCED) recently announced the allocation of $29.2 million of funding from the U.S. Department of the Treasury's State Small Business Credit Initiative to economic, community and technology development partners in Pennsylvania. 

A full outline of the allocations are listed on DCED's website in the official announcement.  Here are some of the notable allocations:

  • $5 Million - Ben Franklin Technology Development Partners and the Life Science Greenhouses.  These are non-profit economic development intermediaries created by the state to accelerate innovation, economic growth and jobs in the high technology economy.  Expected to finance 17 early-stage Pennsylvania technology companies and create 163 high-paying jobs.
  • $2 Million - Philadelphia Industrial Development Corporation.  PIDC is a non-profit economic development corporation created as a joint venture between the City of Philadelphia and the Greater Philadelphia Chamber of Commerce to plan and implement real estate and financing transactions that attract investment, jobs and tax ratables to the City of Philadelphia.  This funding is projected to support 4 projects and create at least 40 jobs.
  • $9 Million - Pennsylvania Machinery and Equipment Loan Fund.  MELF is designed to stimulate growth and assist in the retention of Pennsylvania businesses by providing low interest loan financing for a portion of the cost of machinery and equipment purchases to eligible businesses that commit to creating or retaining jobs.  This new funding is projected to support 13 projects and create at least 828 jobs.
  • $262,500 - Economic Opportunities Fund of the Women's Opportunity Resource Center.  The Economic Opportunities Fund offers loans, investment products and services to low-income and underserved populations in the Philadelphia Metropolitan Area looking to start or expand their businesses, with a special focus on women and minorities.  This new funding is projected to finance 39 loans and create 26 jobs.

 

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Posted on December 14, 2011 by Kimberly Freimuth

Variances - What are They and What are the Standards?

 

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A variance is a strict departure from the literal enforcement of the provisions of a zoning ordinance.  Under the Pennsylvania Municipalities Planning Code, an applicant for a variance may be either the landowner or the equitable owner of the subject property.  A lessee is only permitted to pursue a variance if the lessee is specifically authorized to exercise the rights of the landowner under the lease.

An applicant may seek either a use variance or a dimensional variance.  An applicant for a use variance is requesting to use the subject property for a use that is not permitted by-right within the applicable zoning district, while an applicant for a dimensional variance is seeking a by-right permitted use under the zoning ordinance, but requires relief from the dimensional restrictions of the ordinance, such as setback or minimum lot size requirements. 

Generally, in order to obtain a variance, the applicant must demonstrate the following five (5) requirements to the municipal zoning hearing board: 

  1. That there are unique physical circumstances or conditions peculiar to the particular property which create an unnecessary hardship.
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
  3. That such unnecessary hardship has not been created by the applicant.
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. 

Often, the most difficult requirement for an applicant to prove is that the alleged unnecessary hardship has been created by the conditions of the property itself and that the hardship has not been self-imposed by the applicant.  The test for determining whether a hardship exists is not whether the proposed use is more desirable than the permitted use, but whether the property can be used in a reasonable manner within the restrictions of the ordinance. 

In addition, it is important to remember that in granting any variance, the zoning hearing board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the zoning ordinance. 

Do you need a variance in order to complete your project?  Are you able to prove that a hardship exists and that you did not create the hardship?

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Posted on December 7, 2011 by Kimberly Freimuth

Common Elements, Common Facilities, Controlled Facilities, Oh My!

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Municipalities often require developers to create Planned Community Associations as part of residential subdivisions.  The Association is then required to own, maintain and/or regulate certain improvements within the Community.  As the Declarant of the Planned Community, it can be a daunting task for developers to properly identify Common Elements, Common Facilities and Controlled Facilities.  What is the difference between Common Elements, Common Facilities and Controlled Facilities within a Planned Community? 

  • Common Facilities include any real estate within the Planned Community which is owned by or leased to the Association.  For example, Common Facilities may include the open space, stormwater management facilities, private drives, entrance gates, retaining walls, etc. 
  • Controlled Facilities, on the other hand, are any improvements within the Planned Community that are not owned by the Association, but which are maintained, improved, repaired, replaced, regulated, managed, insured or controlled by the Association.   Controlled Facilities are often located on a Unit, such as storm sewer easement areas, drainage easement areas, clear sight triangle easement areas, snow storage easement areas, on-lot sewage systems, etc.  Furthermore, specific restrictions set forth in the Rules and Regulations of the Association may create Controlled Facilities.  For instance, if the Association regulates the design of all storm doors to be used on dwellings in the Community, the storm doors would be considered Controlled Facilities since they are regulated by the Association. 
  • Common Elements are defined by the Pennsylvania Uniform Planned Community Act as Common Facilities or Controlled Facilities.  This is important to note when referring to Common Elements in Planned Community documents as it can be unclear as to whether the Common Facilities, Controlled Facilities, or both, are being identified.  Often times, the term Common Elements is used when one actually intends to refer to Common Facilities.  Though confusing, it is important to correctly and appropriately identify the improvements within the Community so that members of the Association are able to clearly identify their maintenance obligations.

Are you appropriately identifying Common Facilities, Controlled Facilities and Common Elements in your communities? 

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Posted on November 17, 2011 by Kimberly Freimuth

PA UCC Review & Advisory Committee Begins Work on 2012 Building Codes

The Uniform Construction Code Review and Advisory Council (the “Council”) was established by Act 106 of 2008.  Appointed by the governor, the 19-member Council is drawn from various construction industry trades and professions and local government.  The Council is charged with making recommendations to the governor, the General Assembly and the Department of Labor & Industry regarding proposed changes to Act 45, the Pennsylvania Construction Code Act, and reviewing the latest triennial code revisions issued by the International Code Council (ICC) contained in the International Codes enforceable under the Uniform Construction Code.

With the release of 2012’s triennial ICC code revisions, the Council must determine which revisions they should adopt, if any, as part of the Uniform Construction Code.

Act 1 of 2011 made changes to the Council and the code adoption process including: (1) the Council is required to submit a report to the secretary of Labor & Industry within 12 months following publication of the latest triennial codes specifying each code revision that is to be adopted as part of the Uniform Construction Code; (2) public hearings must be held around the commonwealth; and (3) require a two-thirds vote of Council members to approve recommended code revisions.

 

The Council must also apply the following criteria when reviewing the merits of code revisions:

  1. The provision’s effect on the public’s health, safety and welfare;
  2. The provision’s economic and financial effect; and
  3. The provision’s technical feasibility.

The general public may request the Council address a particular subject or issue related to the PA Uniform Construction Code that is within the purview of the Council.  Three public hearings have been scheduled between September and November 2012.  Furthermore, to facilitate this review the Council has developed the “2012 Code Change Recommendation Form" which must be completed by any person recommending that a specific code change be adopted or not adopted.  Completed recommendation forms must be received by the Council no later than December 31, 2011.

 

The Council is expected to determine controversial versus non-controversial code changes and vote for the adoption of the non-controversial as a group at its first meeting next year, then vote on controversial changes individually.  Proponents and opponents of a code change will be given the opportunity to provide testimony.

 

The final report of recommended code changes is expected be approved by Council members and presented to the Pennsylvania Department of Labor & Industry in July 2012.

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