Amendment to Permit Extension Act

Alyson J. McDonald, Barbara R. Merlie, David J. Sander, Michael Yanoff

This week Governor Corbett signed SB 1263, Act 87, the budget bill adopted by the General Assembly, which included an amendment to Act 46 of 2010 (the Permit Extension Act) to extend the life of permits, approvals, and other authorizations that are in effect as of January 1, 2009 or issued after that date, until July 1, 2016, thus giving applicants/permittees another three years beyond the original deadline of July 1, 2013 to act on the approved permits.

There was no change to the applicability of the Permit Extension Act, which applies to virtually any approval granted by any government agency, under any state law, such as the Municipalities Planning Code (MPC), municipal codes (Borough, First Class Township, Second Class Township, etc.), the Uniform Construction Code, and other applicable statutes such as the Municipal Claim and Tax Lien Law, the Pennsylvania Sewage Facilities Act, and other environmental laws affecting flood plain management, storm water management, dam safety and encroachments, and the Clean Streams Law. There are some exceptions, however, as discussed below.

The extension continues to be automatic (with some exceptions applicable to Philadelphia) and applies broadly to any authorizations issued for development including permits, development approvals, agreements, decisions and other authorizations, whether issued by the governing body, such as a borough council or board of supervisors, or other board, commission, department or authority of the municipality. Thus, decisions or approvals made by the governing body, the zoning officer, the code enforcement officer or building code official, or a zoning hearing board will be subject to the extension.

Despite the automatic nature of the extensions, a municipality is required to provide written verification, upon written request by any person who has received an approval, that the extension applies to such approval. If the municipality does not respond in writing within 30 days after receiving such a request, the approval will be deemed extended until the date specified in the request.

To summarize the other provisions of the Act, as amended, development is defined to include all of the following:

  • Subdivision of land, as defined in the MPC;
  • Construction, reconstruction, conversion, structural alteration, relocation or enlargement of a building or other structure;
  • Site preparation;
  • A use, or change in the use, of a building or other structure, or change in land use;
  • Land development, as defined in the MPC;
  • Demolition, moving or removing a building or other structure; and
  • The right to convert convertible real estate or withdraw real estate pursuant to the laws governing condominiums and planned communities.

Although it is unlikely that any pending approval is set to expire after the new deadline of July 1, 2016, any such expiration would not be affected; i.e., will not be shortened, as a result of this legislation.

The Act does NOT limit the authority of a municipality to:

  • Suspend or revoke an approval for noncompliance with a written condition of the approval;
  • Enforce conditions of approvals granted prior to the extension period; or
  • Enforce conditions that must be met prior to final plan approval.
  • There are significant exceptions to the term approval as defined in the Act: For example:
  • The Act appears to limit relief for certain Department of Environmental Protection storm water control permits that include provisions implementing DEPTMs anti-degradation rules for discharges to surface waters or wetlands classified as high-quality waters or exceptional-value waters during construction activities, and may not apply at all for certain federal permits controlling such discharges.
  • The Act does not apply to Pennsylvania Department of Transportation approvals, except that PennDOT highway occupancy permits will be extended, upon submission of an application, throughout the extension period for one-year intervals, subject to modifications based on changed circumstances.

A municipality may charge a fee of up to $100 for confirmation relating to a residential approval and up to $500 for confirmation relating to a commercial approval. There is another provision that limits the amount charged to extend an approval to 25% of the fee for the original permit, or a maximum of $5,000.