On July 6, 2010, the Governor signed into law Senate Bill 1042, as Act 46 of 2010 (the “Act”). Article XVI-I of the Act provides an automatic suspension of expiring state and local governmental approvals authorizing or affecting any development or construction project. In general, any approval that authorizes or affects any development or construction project with an expiration date after December 31, 2008 and prior to July 1, 2013 is extended to July 1, 2013.

Application

The Act grants an automatic extension of an approval that has or had expired after December 31,2008 and prior to July 2,2013, (the “Extension Period”). There is no requirement of the approval being granted during the Extension Period. Furthermore, the Act prohibits the application of any new law, regulation or policy enacted, adopted or modified during the Extension Period for any applicable approval, until the Extension Period terminates. The prohibition is almost identical to that found in Section 508(4) of the MPC. The Act includes the tolling of the Extension Period during litigation; however, it is limited to those approvals under the MPC. There are very limited exceptions provided under the Act.

During the extension period, agencies shall still have the authority to enforce conditions of approval. Enforcement of conditions of approval granted under the MPC are limited to those conditions required to be performed prior to final plan approval.

Agency Required Actions

All affected agencies must immediately prepare a notice to be published in the PA Bulletin by no later then July 31, 2010. The notice must provide the applicability of the extension period to approvals, subject to the Act, granted by the agency.

Furthermore, agencies are required to provide on request, a written verification of an approval and the new extended expiration date. The request must provide information of the approval in question and the holder’s belief of the anticipated expiration date under the Act. Agencies have 30 days to respond in writing to confirm if a valid approval exists, the expiration date of an approval under the Act, and any issues associated with the approvals validity. Failure to respond within 30 days shall result in a deemed affirmation of the existence of the approval and expiration date set forth in the request. Agencies may charge a $100 fee for residential verifications and $500 for commercial verifications. An appeal of the verification shall be in accordance with either the Local Agency Law or the MPC as applicable. Verifications involving zoning approvals should be issued by the Zoning Officer.

The Act permits agencies to charge a fee to extend the approval beyond July 2, 2013, which may be no more that 25% of the original application fee, but in no event greater than $5,000. It would appear that this payment of this fee is not required in order to obtain the automatic extension provided for in the Act.

Sewer and Water Systems

Application of the Extension Period remains subject to the availability of sufficient capacity in sewer and water systems to accommodate the development. However, if sufficient capacity is unavailable at the time, the Act requires allocation of capacity by priority in order of the granting of the original approval for the connection.

Attached is a copy of the relevant sections of the Act from SB 1042.

Vincent M. Pompo
Voice (610) 430-8000
Fax (610) 692-6210
vpompo@chescolaw.com

Robert T. McClintock
Voice (610) 430-8000
Fax (610) 692-6210
bmcclintock@chescolaw.com