Significant Benefit to Developers and Landowners: PA Governor Signs Further Approval/Permit Suspension Legislation

Back on July 6, 2010, Governor Rendell signed the Fiscal Code Bill (Senate Bill 1042), providing, in part, for the automatic suspension, during the “extension period” (which begins after December 31, 2008 and ends before July 2, 2013), of approvals granted by a government agency for or in effect during the extension period, whether obtained before or after the beginning of the extension period. This meant that certain permits and approvals that may have expired since December 31, 2008, were suspended through July 2, 2013. 

On July 2, 2012, Governor Corbett signed the Fiscal Code Bill (Senate Bill 1263), which amended Act by redefining the “extension period”, which now begins after December 31, 2008 and ends before July 2, 2016. This new legislation is a welcome relief, and significant benefit, to Pennsylvania developers and landowners who have been hurt by the recession. Significantly, certain permits and approvals that may have expired since December 31, 2008 have now been suspended through July 2, 2016, thereby buying a developer or landowner significant additional time. 

 

The term “approval” has not changed and is still defined broadly to include any government agency approval, agreement, permit, including a building permit or extension permit, or other authorization or decision allowing a development or construction project to proceed or relating to or affecting development granted pursuant to a statute, regulation or ordinance adopted by a municipality (including, but not limited to the Planned Communities Act, the Condominium Act, the Clean Steams Law, the Municipalities Planning Code, the State Highway Law as it relates to the issuance of Highway Occupancy Permits, the Sewage Facilities Act, the Flood Plain Management Act, the Storm Water Management Act, the Construction Code, and the portion of the Pennsylvania Code relating to Erosion and Sediment Control as to Soil Erosion and Sediment Control Plans approved by Local Soil Conservation Districts). In addition, the term “approval” includes creating additional units and common elements out of convertible real estate in a condominium or planned community. During the extension period, however, a government agency shall retain the authority to suspend or revoke an approval for noncompliance with a written condition and to enforce conditions of approvals granted prior to the extension period. 

 

In Philadelphia, however, the suspension is not automatic. The approval is suspended only after the holder of the approval (i) provides notice to the issuing government agency of the holder’s intent to exercise their rights under the legislation to suspend the expiration date of the approval and (ii) pays a fee equal to fifty percent (50%) of the original application fee, but not to exceed $5,000. 

 

There are other exceptions to the automatic suspension that are notable. First, with regard to Highway Occupancy Permits, such permits shall only be extended by the Department of Transportation upon the submission of a complete and accurate application throughout the extension period for one year intervals. Second, any approval issued by the Department of Environmental Protection for a discharge into exceptional value or high quality waters is not subject to the automatic suspension. Third, approvals issued for compliance with federal law are not deemed suspended. Finally, with regard to an approval to connect to a public sewer system, the automatic suspension during the extension period is contingent on the availability of capacity for the extended approval. 

 

Any holder or recipient of an approval may seek written verification from the issuing government agency for any of the following: (i) the existence of a valid approval; and/or (ii) the expiration date of the approval under the new legislation. The request must state the approval in question and provide the anticipated expiration date in light of the extension period. Upon receipt of a request, the government agency shall have thirty (30) days within which to affirm or deny the existence of the approval, its expiration date, and any issues associated with its validity. If the agency fails to respond within thirty (30) days, the approval that was the subject of the request, as well as the anticipated expiration date, shall be deemed affirmed. The agency may charge a fee of not more than $100 for a residential approval request and $500 for a commercial approval request. 

PA BUILDING CODE COMMITTEE SAYS NO TO 2012 ICC CODE REVISIONS

 

 

Herbert K. Sudfeld, Jr. is a colleague, mentor and friend who wrote this guest post:

 

If you are a builder in Pennsylvania, you will want to know that the Uniform Construction Code (“UCC”) Review and Advisory Council (“RAC”) voted not to adopt any of the 2012 International Code Council’s (“ICC”) Code revisions in Pennsylvania.

 

The ICC Codes, which get revised every three (3) years, are reviewed by the UCC RAC which makes recommendations to the PA. Dept. of Labor and Industry on the adoption of any revisions. Currently, PA Building Codes are based upon the 2009 ICC Codes and since no 2012 revisions were recommended, the 2009 ICC Code will continue to form the basis for the Pennsylvania Building Code and the building industry.

 

The RAC evaluates the changes looking at the public health, safety and welfare impact; the economic and financial impact; and the technical feasibility of the provisions. 

 

In addition to holding the line on any revisions, the RAC voted to send a recommendation to the Pennsylvania Legislature to further amend the UCC to extend the Code adoption cycle from every three (3) years to every six (6) years.

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.

Variances - What are They and What are the Standards?

This image is credited to Archipoch on FreeDigitalPhotos.net.

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?

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 Formwhich 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.

International Green Construction Code

 

 

 This photo belongs to wonderlane and is licensed for reuse under this Creative Commons License.

The International Code Council is expected to release the International Green Construction Code (IGCC) in March 2012.  The following are some bullet points on IGCC taken from the Synopsis of Public Version 2.0, which was issued in November 2010:

·         Applicable to new construction, as well as alterations and additions to existing buildings.

·         Intended to be adopted by jurisdictions on a mandatory basis.

·         Incorporates features which allow jurisdictions to customize requirements to suit local geographical conditions and environmental priorities and agendas.

·         Incorporates a relatively small number of “project electives”, a minimum number of which must be selected by the owner or design professional and implemented on each project, as a means to:

o        Encourage practices which are difficult to mandate; and

o        Encourage higher performance buildings (buildings with lower environmental impact which exceed the minimum requirements of the IGCC).

 

The Maryland legislature has already passed House Bill 972, adopting the IGCC and making Maryland the first state in the country to authorize use of the IGCC for private and public construction.  It will be interesting to see whether the Pennsylvania legislature follows suit. 

Don't You Wish Your Projects Received an Expedited Review??

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Yesterday, the Obama Administration announced the selection of 14 infrastructure projects around the country that would receive an expedited permitting and environmental review process.  These projects were granted expedited review status because they are expected to create a significant number of jobs. 

I admit, I was glad to see that the Tappan Zee Bridge project was on the list.  I often drive over that bridge on my way to Connecticut to visit my in-laws.  Unfortunately, for me and others who drive over the bridge, the project is not "shovel ready" and will not begin for several years. 

There is something else that is unfortunate,  The projects on this list are only being expedited with respect to federal permitting and environmental reviews.  Wouldn't it have been nice if the Governor could order a decree including your project on the short list for an expedited review by, say, DEP or the Army Corps of Engineers? 

I have seen many projects ready to move forward, but awaiting one last permit from an outside agency.  Applying the Obama Administration's standards locally, sounds like if your project has the ability for significant job creation, you should approach your legislators and see how you can get your project on the short list for an expedited review. 

Permit Extension Act - Did You Forget About It?

 Last week marked the one year anniversary of the permit suspension legislation signed by Governor Rendell on July 6, 2010.  In case anyone out there forgot the significance of this legislation, now seems like a good time for a refresher. 

The legislation, known as Act 46, provides for the automatic suspension, during the “extension period” (which begins after December 31, 2008 and ends before July 2, 2013), of certain permits and approvals granted by a government agency for or in effect during the extension period, whether obtained before or after the beginning of the extension period.  That means that certain permits and approvals that were thought to have expired since December 31, 2008, have actually been suspended or extended , thereby buying a developer or landowner significant additional time. 

 

I underline the words "suspended or extended" because, although the legislation calls for an "automatic suspension", there is dispute out there as to whether the life of a permit or approval is simply extended through July 1, 2013 such that all permits and approvals so extended would expire on July 1, 2013, or whether the permit or approval life existing on January 1, 2009 gets added after July 1, 2013 thereby creating an actual suspension. 

 

In the case of In Re: Appeal of Keystone Custom Homes, Inc., brought before the Lancaster County Court of Common Pleas, the Court considered the issue as to whether Act 46 results in an extension through July 1, 2013 or a suspension, with approval life to be tacked on after July 1, 2013. In its decision, the Court held that the legislature’s use of the phrase “suspended during the Extension Period” suggests the General Assembly intended Act 46 to toll the running of the expiration dates, rather than merely postpone all expiration dates until July 1, 2013.  Additionally, the Court also noted that Act 46 incorporates a formal process for approval holders to verify their approval’s expiration date, which the Court construed as meaning that the Act contemplated varying expiration dates, rather than just one mass expiration date of July 1, 2013 for all approvals. 

While the Lancaster County Court of Common Pleas decision offers precedential value only within Lancaster County, the ruling does lend persuasive authority in other parts of the Commonwealth for approval holders confronted with municipalities or agencies arguing for a uniform July 1, 2013 expiration date.