Birmingham Township, PA Zoning Ordinance

§ 122-63 Purposes.

The purposes of this article are:

To ensure that the provisions of this chapter which are concerned with the uniform treatment of dwelling type, bulk, density and open space within each zoning district shall not be applied to the improvement of land in a manner which would distort the objectives of this chapter.

To encourage innovations in residential development and renewal so that the growing demand for housing may be met by greater variety in type, design and layout of dwellings and by the conservation and more efficient use of open space ancillary to said dwellings.

To provide greater opportunities for better housing and recreation for all who are or will be residents of the Township.

To encourage a more efficient use of land and public services and to reflect changes in the technology of land development so that the economies so secured may enure to the benefit of those who need homes.

[Amended 6-5-1995 by Ord. No. 95-01]

To encourage more flexible land development which will respect and conserve natural resources, such as soils suitable for agriculture, streams, lakes, floodplains, groundwater, wooded areas, steeply sloped areas and areas of unusual beauty or importance to the natural ecosystem.

To encourage innovations in residential developments that are designed to minimize energy consumption and maximize recycling of materials in their layout, transportation, climate control, energy sources and solid and liquid waste treatment systems.

In aid of these purposes, to provide a procedure which can relate the type, design and layout of residential development to the particular site and the particular demand for housing existing at the time of development in a manner consistent with the preservation of the property values within existing residential areas and to assure that the increased flexibility of regulations over land development established hereby is carried out pursuant to sound, expeditious and fair administrative standards and procedures.

§ 122-64 Definitions.

As used in this article, the following words and phrases shall have the meanings indicated below:

APPLICANT

A landowner or developer, as hereinafter defined, who has filed an application for development, including heirs, successors and assigns.

BUFFER

A strip of land, which may include a mound or berm around the perimeter of a tract, to be planted and maintained in accordance with the requirements of § 122-67E(18)(c).

COMMON OPEN SPACE

A parcel or parcels of land or an area of water or a combination of land and water within a planned residential development and designed and intended for the use or enjoyment of residents of the planned residential development, excluding streets, off-street parking areas, areas set aside for public facilities and private yards.

CONVENIENCE COMMERCIAL

Shopping facilities designed solely to serve the residents of a planned residential development, such as a small food market or delicatessen, drugstore or newsstand.

DENSITY

AVERAGE GROSS RESIDENTIAL DENSITY

The total number of dwelling units per acre in a planned residential development, computed by dividing the total number of dwelling units proposed for construction by the total number of acres in the tract which are not proposed for convenience commercial use and are not within existing street rights-of-way.

NET RESIDENTIAL DENSITY, MULTI-FAMILY DEVELOPMENT

The total number of multifamily units of a given type per developed acre in a planned residential development computed by dividing the total number of a given type of dwelling unit within the area in which they are located by the number of acres so developed, including surrounding yard spaces and parking areas, but excluding adjacent common open space and interior streets.

DEVELOPER

Any landowner, agent of such landowner or tenant with the permission from a landowner who makes or causes to be made an application for approval of a planned residential development.

LANDOWNER

The legal or beneficial owner or owners of land, including the holder of an option or contract to purchase (whether or not such option or contract is subject to any condition), a lessee if authorized under the lease to exercise the rights of the landowner or other person having proprietary interest in the land.

STREET

A public or private way, including both paved cartway and surrounding right-of-way, intended to be used for passage or circulation of motor vehicles, and, when bikeways and/or pedestrian walkways are included within street rights-of-way for passage or circulation of bicycles and pedestrians. "Streets" are further classified according to function:

COLLECTOR STREET

A street which, in addition to providing access to abutting properties where permitted, intercepts local streets to provide a route giving access to other "collector streets" and arterial streets and community facilities. In addition to perimeter streets which intercept proposed access streets to a planned residential development, streets within the planned residential development meeting this definition shall be considered "collector streets."

LOCAL RESIDENTIAL STREET

A street within a planned residential development used primarily to provide access to abutting properties, including cul-de-sac streets where permitted.

§ 122-65 Conditions for planned residential development.

No applications for tentative approval of planned residential development shall be considered or approved unless the following conditions are met:

The planned residential development shall consist of an undivided area of at least 50 acres.

The planned residential development shall lie entirely within a district wherein planned residential development is permitted, as designated on the Planned Residential Development Overlay Map, which is declared to be a part of this chapter. The Planned Residential Development Overlay Map[1] contains two subzones, PRD-1 and PRD-2, as shown thereon.

[Added 1-22-1981 by Ord. No. 81-02]

[1]

Editor's Note: The Planned Residential Development Overlay Map is included at the end of this chapter.

The tract of land to be developed shall be in one ownership, or in the case of multiple ownership of the tract, it shall be developed according to a single plan with common authority and common responsibility.

The development shall be served by central water supply and central sewage collector and treatment systems, in accordance with the standards set forth in § 122-67E(13) and (14) hereof.

The proposed development shall be consistent with the Comprehensive Plan for Birmingham Township.

§ 122-66 Permitted uses.

A planned residential development may include the following uses:

Residential uses, including single-family detached, two-family and multifamily dwellings, as defined in § 122-6 of this chapter.

Recreational uses deemed to be appropriate by the Board of Supervisors for incorporation in the design of the PRD.

Commercial and institutional uses, to the extent that they are designed and intended solely to serve the residents of the planned residential development in accordance with the standards set forth in § 122-67D hereof.

Within the PRD-2 area, mobile home parks and mobile home subdivisions in accordance with the standards set forth herein.

[Added 1-22-1981 by Ord. No. 81-02]

The following uses shall be permitted as accessory uses to a permitted residential use:

[Added 12-15-2008 by Ord. No. 08-02]

(1)

Shed not to exceed 120 square feet.

(2)

Swimming pool, provided that it is located behind the front facade of the house and building line and is set back at least 15 feet from any side or rear property line, and further provided that lighting facilities shall not interfere with the use and enjoyment of, any neighboring property.

(3)

Attached artist’s studio.

(4)

Home occupation and no-impact home-based business when in compliance with § 122-103.

§ 122-67 Development standards.

General site design and natural features analysis.

(1)

A well-designed planned residential development, integrated with existing social and natural processes and making efficient use of common services should be an asset to the community. The site designer and architect, working together, must demonstrate to the satisfaction of the Township Supervisors that they considered both the opportunities provided and the constraints imposed by the existing natural and social features both on and off the site of the proposed development, in determining site layout (including the selection of areas for open space) and design of structures. Each must consider, for example, the effects of prevailing winds, seasonal temperatures and hours of sunlight in both site design and architecture.

(2)

In order to determine which specific areas of the total planned residential development site are best suited for high-density development, which areas are best suited for lower-density development and which areas should be preserved in their natural state as open space areas, a thorough analysis of the natural features of the site will be required. The following subject categories must be included in this analysis:

(a)

Hydrology: analysis of natural drainage patterns and water resources, including an analysis of streams, natural drainage swales, ponds or lakes, marsh areas, floodplain areas, permanent high-water table areas, and seasonal high-water table areas throughout the site.

(b)

Geology: analysis of characteristics of rock formations underlying the site, including defining aquifers (particularly those locally subject to pollution), shallow bedrock areas and areas in which rock formations are unstable.

(c)

Soils: analysis of types of soils present in the site area, including delineation of prime agricultural soil areas, aquifer recharge soil areas, unstable soils, soils most susceptible to erosion and soils suitable for urban development. The analysis of soils will be based on the Chester and Delaware Counties Soil Survey of the United States Department of Agriculture Conservation Service.

(d)

Topography: analysis of the terrain of the site, including mapping of elevation and delineation of slope areas over 25%, between 15% and 25%, between 8% and 15%, and under 8%.

(e)

Vegetation and wildlife: analysis of tree and plant cover and wildlife habitats of the site, emphasizing the location of woodland and meadowland areas. Dominant tree, plant and animal species should be identified and the characteristics of each understood.

(f)

Micro climate: analysis of seasonal temperatures, seasonal precipitation, seasonal prevailing winds and daily hours of sunlight in specific areas of the planned residential development site.

(3)

The Board of Supervisors shall require site planning to be in accord with the results of such analysis and may require modifications where, in its opinion, site planning has been insufficiently attentive thereto.

Density.

(1)

Without acquisition of additional development rights.

(a)

The maximum allowable average gross residential density for a planned residential development, without acquisition of additional development rights in accordance with the provisions of Subsection B(2) hereof, shall be 0.6 dwelling units per acre for land within the PRD-1 area and 2.5 dwelling units per gross acre for land within the PRD-2 area.

(b)

Land with sensitive environmental attributes, which require protection in the form of less intensive development, shall be protected by limiting placement of dwelling units in such areas in accordance with the following table:

Type of Land	Limitation
Floodplain	No units permitted
Slope of 25% or more	No units permitted
Slope of 15% to 25%	Maximum total disturbance of soil surface, including removal, destruction or damaging of plants by methods including but not limited to cutting, grading, filling, bulldozing, plowing, regrading, digging or widespread use of herbicides shall not exceed 5% of the total area within 15% to 25% slope

(2)

With acquisition of development rights. The maximum allowable average gross residential density for a planned residential development when a developer acquires sufficient additional development rights in accordance with the provisions of Article XV hereof shall be 2.25 dwelling units per acre for land within the PRD-1 area and five dwelling units per acre for land within the PRD-2 area, as determined in accordance with Subsection B(1) above. For additional dwelling units in excess of 0.6 per acre in the PRD-1 area and 2.5 per acre in the PRD-2 area, the developer shall acquire additional development rights in accordance with § 122-75A.

(3)

Acquisition of rights determined invalid. In the event that the provisions for acquisition of additional development rights shall be finally determined by a court of competent jurisdiction to be invalid, then the maximum densities permitted within the PRD-1 area and the PRD-2 area shall be as set forth in Subsection B(1).

Housing types. All PRDs, except those containing a mobile home park or mobile home subdivision, shall conform to the minimum standards for a mix of dwelling unit types as set forth below:

[Amended 1-22-1981 by Ord. No. 81-02]

Number and Density of Dwelling Units			Minimum Percent Single-Family	Minimum Percent Two-Family	Minimum Percent Multi-Family
PRD-1
	Less than 100 dwelling units
		Density less than or equal to 1.5	60	0	0
		Density greater than 1.5	50	25	0
	Greater than 100 dwelling units
		Density less than or equal to 1.5	50	0	0
		Density greater than 1.5¹	40	20	20
PRD-2
	Less than 200 dwelling units
		Density less than or equal to 3.75¹	15	15	40
		Density greater than 3.75	0	0	60
	Greater than 200 dwelling units
		Density less than or equal to 3.75¹	20	20	40
		Density greater than 3.75¹	15	15	50
		NOTES:
		¹ All PRDs containing a mobile home park or mobile home subdivision shall have not less than 25% nor more than 50% of the total dwelling units as mobile homes, with the balance of dwelling units being in any mix of single-family, two-family and multifamily dwellings.

Supplemental nonresidential facilities. Supplemental facilities for commercial services solely to serve the residents of the planned residential development and for recreational purposes may be provided within a planned residential development, based upon the following requirements:

(1)

Recreational facilities may be located within required open space areas; provided, however, that no buildings shall be constructed within a floodplain area or within an area having a slope greater than 25%. Ownership and maintenance thereof shall be in accordance with Subsection F hereof.

(2)

No convenience commercial facilities may be provided in the PRD-1 area.

(3)

Within the PRD-2 area, no convenience commercial facilities may be provided unless the planned residential development shall contain a minimum of 200 dwelling units, in which event a total of 2,500 square feet of convenience commercial floor space may be provided. The total of such floor space may be increased by an additional 10 square feet for each dwelling unit in excess of 200 within the planned residential development.

(4)

All convenience commercial facilities shall comply with the following standards:

(a)

They shall be architecturally compatible with residential structures to be erected within the planned residential development.

(b)

No freestanding or illuminated signs shall be permitted, and all signs for convenience commercial facilities shall be attached to an exterior wall (not roof) of the structure and may be mounted either flush thereto or at right angles thereto. Total sign area, including both sides of a sign mounted at right angles to the wall, shall not exceed 20 square feet.

(c)

One parking space for each 200 square feet of floor space shall be provided.

(5)

Swimming pools may be constructed on individual residential lots, provided that any such swimming pool is located behind the front facade of the primary structure and building line and is set back at least 15 feet from any side or rear property line, and further provided that lighting facilities shall not interfere with the use and enjoyment of any neighboring property.

[Added 7-23-2001 by Ord. No. 01-11]

Site planning standards.

(1)

Area and spacing, single-family. Where single-family dwelling units are to be situated on individual lots, the following minimum area and spacing requirements shall be met:

(a)

Lot size: 12,000 square feet minimum.

(b)

Lot width at building line: 80 feet minimum width.

(c)

Side yards: 25 feet aggregate; 10 feet minimum.

(d)

Building setback (from all streets): 20 feet minimum from street right-of-way.

(e)

Rear yard: 28 feet minimum.

[Amended 11-20-1995 by Ord. No. 95-04]

(f)

Green space: 67.5% minimum.

[Added 12-15-2008 by Ord. No. 08-02]

(2)

Area and spacing, two-family (twin or duplex dwellings):

(a)

Lot size: 9,000 square feet per family.

(b)

Lot width at building line: 120 feet minimum aggregate.

(c)

Side yards: 15 feet minimum on each side of structure.

(d)

Building setback (from all streets): 20 feet minimum from street right-of-way.

(e)

Rear yard: 28 feet minimum.

[Amended 11-20-1995 by Ord. No. 95-04]

(f)

Green space: 65% minimum.

[Added 12-15-2008 by Ord. No. 08-02]

(3)

Area and spacing, multifamily (fourplex and townhouse):

(a)

Net density of development of fourplex and/or townhouse structures shall not exceed eight dwelling units per acre.

(b)

Width. Townhouse units shall not be less than 20 feet in width.

(c)

Building setback (from all streets) shall be 20 feet minimum from street right-of-way.

(d)

Rear yard shall be 28 feet minimum.

[Amended 11-20-1995 by Ord. No. 95-04]

(e)

Distances between structures. No fourplex or townhouse structure shall be situated less than 40 feet from any other residential structure.

(f)

Distances from solid waste collection stations, parking areas, and access roads thereto (except drive-ways) shall be 20 feet minimum.

(g)

Green space.

[Added 12-15-2008 by Ord. No. 08-02]

[1]

For end units: 55% minimum.

[2]

For interior units: 35% minimum.

(4)

Area and spacing; multifamily (apartments):

(a)

Net density of development of apartments shall not exceed 12 dwelling units per acre.

(b)

Building setback (from all streets) shall be 30 feet minimum from street right-of-way.

(c)

Distance between structures. No apartment structure shall be situated less than 40 feet from any other residential structure.

(d)

Distance from solid waste collection stations, parking areas and access roads thereto (except driveways) shall be 20 feet minimum.

(5)

Area and spacing, mobile home parks:

[Added 1-22-1981 by Ord. No. 81-02]

(a)

Lot size shall be 7,000 square feet minimum.

(b)

Lot width at building line shall be 50 feet minimum.

(c)

Side yards shall be 25 feet aggregate, 10 feet minimum.

(d)

Building setback (from all streets) shall be 20 feet minimum from street right-of-way.

(e)

Rear yard shall be 30 feet minimum.

(6)

Setback from tract boundaries. All structures shall meet the following minimum setbacks from the property lines of the tract to be developed:

(a)

Single-family residences: 60 feet.

(b)

All other structures: 75 feet.

(7)

Height regulations. No structure shall exceed 35 feet in height, as measured from the mean finished grade, nor contain more than three stories, exclusive of attic and basement.

(8)

Lighting.

(a)

Lighting facilities shall be designed and located so as not to shine directly into residential buildings, private yards or pedestrian eye level and shall not exceed 20 feet in height.

(b)

Except for single-family dwellings, all off-street parking, steps, ramps, walkways of high pedestrian use and directional signs shall be adequately and safely lighted in accordance with the standards set forth in § 122-102G of this chapter.

(c)

The Supervisors may require lighting in other areas for reasons of public safety.

(d)

Costs of maintenance and illumination of lighting facilities shall be borne by the developer of and/or property owners in the PRD in a similar manner as costs for maintenance of common open space.

(9)

Signs. In all respects, outdoor signs shall conform to the provisions of Article XVII and where applicable, Subsection D(4)(b).

(10)

Streets and walkways.

(a)

The street and walkway systems shall be designed so as to relate harmoniously with land uses and adjacent streets and to minimize through traffic in residential areas. All residential parking areas and recreational areas shall be connected by pedestrian walkways. Walkways that connect residential areas and parking areas shall be of a durable surface satisfactory to the Board of Supervisors.

(b)

All collector streets shall have a minimum right-of-way width of 50 feet and a minimum cartway width of 24 feet.

(c)

All local residential streets shall have a minimum right-of-way width of 50 feet and a minimum cartway width of 18 feet.

(d)

Cul-de-sac roads shall have a turning circle with a minimum radius of 40 feet of paved surface and 50 feet to the edge of the right-of-way.

(e)

The maximum number of dwelling units, other than townhouses and apartments, which may be served by a single cul-de-sac road, shall be 16. The maximum number of townhouse and/or apartment units which may be served by a single cul-de-sac road shall be 50.

(f)

Separation of vehicular from pedestrian and bicycle traffic is encouraged. Where pedestrian walkways are not within a street right-of-way, a walkway easement at least 10 feet in width shall be designated. Where a walkway crosses over open space land, however, the easement shall not be subtracted from the open space land for purposes of calculating the area thereof.

(g)

All street cartways and off-street loading areas shall be surfaced with porous pavement where practicable or otherwise with asphalt or Portland cement.

(h)

Where dwelling units front on a perimeter collector street, no direct access from the lot to the street shall be permitted.

(11)

Common parking.

(a)

There shall be at least two off-street parking spaces, each measuring ten by twenty (10 x 20) feet, for each dwelling unit, with aisles, where appropriate, at least 20 feet wide.

(b)

Parking areas shall be arranged so as to prevent through traffic to other parking areas.

(c)

Parking areas shall be adequately screened from adjacent structures, roads and properties by use of facilities, such as hedges, dense plantings, earth berms, changes in grade or walls. All parking areas shall be at least 20 feet from all structures, roads and other parking areas.

(d)

Landscaping, consisting of a minimum of one shade tree in accordance with Subsection E(18), shall be provided for every eight congregate parking spaces.

(e)

Each congregate parking area shall contain a maximum of 40 parking spaces.

(f)

All parking areas shall be surfaced in accordance with the standards of Subsection E(10)(g).

(g)

No recreational vehicles, boats, trailers, heavy trucks or similar vehicles shall be stored by residents of a planned residential development except in a covered and enclosed structure.

(12)

Utilities. All utilities shall be placed underground.

(13)

Sanitary sewage disposal.

(a)

All planned residential developments shall be serviced by a central sewage collector and treatment system providing for land disposal of effluent (including spray irrigation methods and subsurface disposal methods) and meeting the following requirements:

[1]

It shall be in accord with the applicable Sewage Facilities Plan or a duly enacted revision or supplement thereto, as set forth in the rules and regulations of the Department of Environmental Protection Regulations (Department of Environmental Protection Title 25, Chapter 71).

[2]

All requirements of the Department of Environmental Protection shall be complied with and a permit for the system issued thereby.

(b)

Spray irrigation land disposal techniques must comply with all requirements therefor promulgated by the Department of Environmental Protection in its Spray Irrigation Manual, Bureau of Water Quality Management Publication No. 31, 1972 Edition, as amended.

(c)

Ownership and maintenance of all privately owned sewage disposal facilities shall be in accordance with ownership and maintenance provisions for common open space as set forth in Subsection F(2), (3) or (5) hereof.

(d)

All sewage collection and treatment facilities, except pumping stations and underground pipes, shall be set back a minimum of 150 feet from the property line of the tract to be developed, shall be buffered with a planting screen from neighboring properties, whether or not developed, and shall be designed and maintained in a manner where there is no persistent odor therefrom.

(e)

The Board of Supervisors may modify the requirements pertaining to central sanitary sewage disposal in the event that the applicant successfully demonstrates that such system would not be feasible and that service by individual on-site septic tank and tile field systems would not constitute a potential hazard to public health and safety and obtains Chester County Health Department approval for such on-site treatment systems.

(14)

Water supply.

(a)

All planned residential developments shall be serviced by a central water supply system in accordance with the following requirements:

[1]

All requirements for the Department of Environmental Protection, the Chester County Health Department and the Pennsylvania Public Utilities Commission (PUC) shall be complied with and permits for the water supply system issued thereby.

[2]

Ownership and maintenance of such facilities shall be in accordance with ownership and maintenance provisions for common open space as set forth in Subsection F(2), (3) and (5) hereof.

(b)

All distribution systems shall be designed to furnish an adequate supply of water to each dwelling unit, with main sizes and fire hydrant locations meeting specifications of the Middle States Department Association of Fire Underwriters.

(c)

The Board of Supervisors may modify the requirements pertaining to central water supply system in the event that the applicant successfully demonstrates that such system would not be feasible, that service by individual wells would not constitute a potential hazard to public health and safety and obtains Chester County Health Department approval for individual wells.

(15)

Storm drainage.

(a)

All planned residential developments shall incorporate storm drainage facilities which will protect downstream life and property from increased flood hazard, protect downstream banks from increased erosion, maintain base flow of local streams and recharge local and regional aquifers and prevent adverse effects on local vegetation from a lowered water table.

(b)

Such storm drainage system must comply with the following requirements:

[1]

Runoff shall be calculated for before, during and after construction conditions for a subdivision or other land use altered from present use. It is recommended that runoff and peak discharge calculations be determined using the Soils Cover Complex Method available from the United States Department of Agriculture Natural Resources Conservation Service. Other hydrologic methods may be used, provided that they are approved by the Chester County Soil Conservation District and calculate volume of runoff, peak discharges, velocities of flow and the time of concentration.

[2]

There shall not be any change in the average annual net groundwater recharge (defined as infiltration minus evapo-transpiration) on the site from that under natural conditions due to impervious surfaces and altered permeability of site soils. "Natural condition" is defined as the preexisting condition of surface vegetation, except for those parcels which may have been denuded of cover. Maintenance of such structure(s) or such device(s) shall be in accordance with the provisions of Subsection F(5) hereof.

[3]

The rate of stormwater runoff from any planned residential development shall not exceed the rate of runoff prior to development.

[4]

Increased runoff shall be controlled by permanent runoff control measures meeting the above specifications pertaining to the rate of runoff and recharge. All runoff control devices will be evaluated for effectiveness in maintaining said standards for all storms with a return period of up to 100 years.

[5]

In addition to detention-retention basins, other techniques for controlling the rate and quantity of stormwater runoff may be utilized.

[6]

All detention-retention basins shall be designed to detain the quantity of water resulting from a one-hundred-year, twenty-four-hour storm under full development conditions, to be released at a maximum outflow rate equal to that resulting from a ten-year twenty-four-hour storm under existing conditions. All flows in excess of the above-mentioned standard shall flow over an emergency spillway.

[7]

Where feasible, detention capacity shall be designed with sufficient storage capacity to provide for use as auxiliary water sources in event of fire.

(c)

The developer shall submit calculations, drawings and assumptions pertaining to cover, direction of flow, location of recharge structures, timing of recharge, location of retention basins and release timing that summarize compliance with the above requirements.

(d)

All storm drainage facilities shall be designed in accordance with Chapter V, Regional Standards and Criteria for Stormwater Management (Delaware Valley Regional Planning Commission, Technical Report Number 11, May 1974).

(16)

Erosion and sedimentation control.

(a)

All earthmoving activities occurring in the tract shall be conducted in accordance with the erosion and sedimentation control plan required to accompany tentative and final plans, as required in § 122-69A(2)(d) and B(2)(d).

(b)

The erosion and sedimentation control plan shall be in accordance with the following standards:

[1]

It shall be prepared by a person duly qualified by education and experience in the techniques and methods of erosion and sedimentation control.

[2]

The developer is directed to use techniques approved by the Chester County Conservation District in calculating soil loss, such as the universal soil-loss equation (A = RLSK CP).

[3]

During construction, the dropping of mud on existing roads from construction on vehicles leaving the site shall be minimized by covering the first 100 feet of construction entrances and exits with stone and other measures which may be necessary.

[4]

Both during and after construction, clearing of vegetation, earthmoving or other surface-disturbance activities, the total water-borne sediment leaving the site and/or entering a watercourse on the site shall not exceed the amount of sediment which would have naturally left the site prior to surface-disturbing activities, assuming in the case of sites previously tilled that natural conditions are equivalent to meadow.

[5]

It shall, in addition, comply with the standards and specifications of the Department of Environmental Protection, Title 25, Chapter 102, Erosion Control, and of the United States Department of Agriculture Natural Resources Conservation Service as then-adapted for use by the Chester County Soil and Water Conservation District. In case of any conflict between the standards set forth in this subsection, those of the Department of Environmental Protection Regulations and those of the Chester County Soil and Water Conservation District, the more stringent standard shall apply.

(c)

Periodic inspections of the site during construction shall be conducted by the Birmingham Township Supervisors or their representatives and any observed violations of this chapter shall be cause for immediate issuance of an order to cease construction activity until such conditions are corrected.

(17)

Conservation of trees and natural features.

(a)

The development shall be designed and programmed so as to minimize earthmoving, erosion, tree clearance and the destruction of natural amenities.

(b)

No portions of tree masses or trees with caliper (denoting those to be removed) of four inches or greater shall be cleared unless clearly necessary for effectuation of the proposed development. Developers shall make all reasonable efforts to harmonize their plans with the preservation of existing trees.

(c)

Developers shall exercise care to protect remaining trees from damage during construction. The following procedures shall be followed in order to protect remaining trees:

[1]

Where existing ground levels are lowered, a circular retention wall of sufficient size shall be built around the tree to maintain the old soil level. Where existing ground levels are raised, drainage tiles shall be placed at the old soil level and open into a permanent well built around the base of the tree. Such well may be left open or can be filled with coarse stones (at least two inches). Tiles must be installed in a radiating pattern.

[2]

Trees within 25 feet of a building site or bordering entrances or exits to building sites shall be protected by wiring wooden slats or snow fencing around each tree.

[3]

No boards or other material shall be nailed to trees during construction.

[4]

Heavy equipment operators shall be warned to avoid damaging existing tree trunks and roots. Feeder roots shall not be cut closer than the tree drip-line.

[5]

Tree trunks and exposed roots damaged during construction shall be protected from further damage by being properly treated immediately.

[6]

Tree limbs damaged during construction shall be sawed flush to tree trunks, and the tree or trunk properly treated immediately.

[7]

The operation of heavy equipment over root systems of such trees shall be minimized in order to prevent soil compaction.

[8]

Nondormant trees shall be given a heavy application of fertilizer to aid in their recovery from possible damage caused by construction operations.

[9]

Construction debris shall not be disposed of near or around the bases of such trees or foundations of houses, except for mulched vegetative matter used to prevent soil compaction.

(18)

Landscaping and buffers.

(a)

All parking areas shall be landscaped with trees and shrubs of varying species. At least one tree of minimum two-inch caliper and minimum six-foot height shall be provided within the interior of each parking lot for every eight parking spaces.

(b)

Trees of varying species shall be planted along all streets within the street right-of-way. At least one tree of minimum two-inch caliper and minimum six-foot height on each side of the street shall be provided for each 25 feet of street length, or fraction thereof. The Township Supervisors may, where they deem it advisable, require additional trees of the same caliper and height to be planted.

(c)

The entire perimeter of the tract undergoing development shall be provided with a minimum of twenty-foot planting strip, which may be included in private yard space or common open space or a combination thereof, based upon the following criteria:

[1]

All existing trees in the planting strip above two inches in caliper and/or six feet in height shall be preserved, except when cutting thereof is specifically approved by the Supervisors or is necessary for ensuring adequate sight distance at road intersections.

[2]

The amount, density of planting and types of plantings shall be based upon physiographic features, proximity to existing dwellings, compatibility of adjacent uses and natural views. Where adjacent property has been developed in such a manner that privacy from the PRD is desirable, the planting strip adjacent thereto shall be of sufficient density and contain sufficient evergreen material to effectively screen the portions of the PRD from which privacy is desired. In other areas, particularly where physiographic features and existing vegetation provide an attractive setting, the planting strip may be left in its natural state or enhanced with additional plant material of lesser density than a full screen.

[3]

No plantings shall be placed with their center closer than five feet from a property line of the tract.

[4]

Plantings shall be permanently maintained and replaced in event of death, if necessary to maintain an effective screen in accordance with open space maintenance procedures, as set forth in Subsection F(5) hereof.

[5]

Planting species shall be mixed; generally a minimum of 25% shall be evergreen and 10% flowering material.

(d)

In addition to perimeter planting strips, the following landscaping requirements shall be met:

[1]

Disturbed topsoil shall be stockpiled, protected from erosion and replaced after construction.

[2]

Planting and protection of landscape material shall be in accordance with plan and schedule subject to Township approval and shall be completed within six months of initial occupancy of each stage of development.

[3]

Maintenance specifications for all plant material shall be submitted with the final plan.

(19)

Restrictions into required yards. The following shall apply to all planned residential developments:

[Added 11-20-1995 by Ord. No. 95-04]

(a)

An arbor, trellis, flagpole, unroofed patio, unroofed terrace, recreational and drying yards or movable canopy may project into any required yard not more than 25 feet and cannot be closer than 15 feet from any property line.

(b)

An open fire escape may project not more than six feet into any required yard.

Common open space.

(1)

Amount. Not less than 40% of the total area of the planned residential development shall be designated as and used exclusively for common open space.

(2)

Ownership. Any of the following methods may be used, either individually or in combination, to preserve, own and maintain open space: condominium, homeowners' association, dedication in fee simple, easements and transfers to a private conservation organization. Such land shall not be eligible for transfer to another party, except for transfer to another method of ownership permitted under this section, and then only where there is no change in the open space ratio. The following specific requirements are associated with each of the various methods:

(a)

Condominium. The open space may be controlled through the use of condominium agreements. Such agreement shall be in conformance with the Uniform Condominium Act (68 Pa.C.S.A. § 3101 et seq.). All open space land shall be held as common element.

[Amended 6-5-1995 by Ord. No. 95-01]

(b)

Homeowners' association. The open space may be held in common ownership by a homeowners' association. This method shall be subject to all of the provisions for homeowners' associations set forth herein and in Article VII of the Municipalities Planning Code.[1]

[1]

Editor's Note: See 53 P.S. § 10702.1 et seq.

(c)

Fee simple dedication. The Township may, but shall not be required to, accept any portion or portions of the open space, provided that such land is accessible to the residents of the Township, there is no cost of acquisition (other than any costs incident to the transfer of ownership, such as title insurance) and the Township agrees to and has access to maintain such lands.

(d)

Dedication of easements. The Township may, but shall not be required to, accept easements for public use of any portion or portions of open space land, title of which is to remain in the ownership of the condominium or homeowners' association, provided that such land is accessible to the residents of the Township, there is no cost of acquisition (other than any costs incident to the transfer of ownership, such as title insurance) and a satisfactory maintenance agreement is reached between the developer and the Township.

(e)

Transfer of easements to a private conservation organization. With permission of the Township, an owner may transfer easements to a private, nonprofit organization among whose purposes is to conserve open space land and/or natural resources, provided that, the organization is acceptable to the Township and a bona fide conservation organization with perpetual existence, the conveyance contains appropriate provision for proper reverter or retransfer in the event that organization becomes unwilling or unable to continue carrying out its functions and a maintenance agreement acceptable to the Township is entered into by the developer and the organization.

(3)

Specific requirements for homeowners' association. If a homeowners' association is formed, it shall be governed according to the following regulations:

(a)

The developer shall provide a description of the organization, including its bylaws and methods for maintaining the open space.

(b)

The organization is organized by the developer and operating with financial subsidization by the developer, if necessary, before the sale of any lots within the development.

(c)

Membership in the organization is mandatory for all purchasers of homes therein and their successors.

(d)

The organization shall be responsible for maintenance of insurance and taxes on common open space.

(e)

The members of the organization shall share equitably the costs of maintaining and developing such common open space in accordance with the procedures established herein.

(f)

In the event of any proposed transfer, within the methods here permitted, of common open space land by the homeowners' association or of the assumption of maintenance of common open space land by the Township as hereinafter provided, notice of such action shall be given to all property owners within the planned residential development.

(g)

The organization shall have or hire adequate staff to administer common facilities and maintain the common open space.

(h)

The property owners' organization may lease back open space lands to the developer, the developer's heirs or assigns or to any other qualified person or corporation for operation and maintenance of open space lands, but such a lease agreement shall provide that the residents of the planned residential development shall at all times have access to the open space lands contained therein, that the common open space to be leased shall be maintained for the purposes set forth in this chapter and that the operation of open space facilities may be for the benefit of the residents only or may be open to the residents of the Township at the election of the developer and/or the property owners' organization as the case may be.

(i)

The lease shall be subject to the approval of the Board of Supervisors, and any transfer or assignment of the lease shall be further subject to the approval of the Board. Lease agreements so entered upon shall be recorded with the Recorder of Deeds of Chester County within 30 days of their execution, and a copy of the recorded lease shall be filed with the Secretary of the Township.

(4)

Location, design and layout.

(a)

The open space shall be laid out to the satisfaction of the Board of Supervisors in accordance with the best principles of site design, shall be consistent with the Township Comprehensive and Open Space Plans and shall be located and designed as areas easily accessible to residents of the planned residential development and preserving natural features. Common open space areas should include both active recreation areas for all age groups and, particularly where the site includes a watercourse or hilly or wooded areas, land which is left as a natural area. At least 10% of the open space areas shall be appropriate for active recreational use, and, subject to the provisions of § 122-59A(1)(c), at least 60% shall be located outside of floodplain areas and areas of greater than twenty-five-percent slope. In addition, no less than 50% of the open space area shall remain as a natural area.

(b)

The tentative and final plans shall designate the use of open space, the type of maintenance to be provided and a planting plan or schedule. In designating use and maintenance, the following classes may be used:

[1]

Lawn: a grass area with or without trees which may be used by the residents for a variety of purposes and which shall be mowed regularly to ensure a neat and tidy appearance.

[2]

Natural area: an area of natural vegetation undisturbed during construction, or replanted; such areas may contain pathways. Meadows shall be maintained as such. Maintenance may be minimal but shall prevent the proliferation of undesirable plants. Litter, dead trees and brush shall be removed and streams kept in free-flowing conditions. Spraying of treated effluent is permitted within natural areas consistent with Subsection E(13).

[3]

Recreation area: an area designated for a specific recreational use, including but not limited to tennis, swimming, shuffle board, playfields and tot-lots. Such areas shall be located and maintained in such manner as not to create a hazard or nuisance and shall perpetuate the proposed use.

(c)

Designated planting and recreation facilities within the open space areas shall be provided by the developer. A performance bond or other securities may be required to cover costs of installation in accordance with this chapter.

(5)

Maintenance.

(a)

In the event that the organization established to own and maintain a common open space or any successor organization shall at any time after establishment of the planned residential development fail to maintain the common open space in reasonable order and condition in accordance with the development plan, the Township may serve written notice upon such organization or upon the residents and owners of the planned residential development, setting forth the manner in which the organization has failed to maintain the common open space in reasonable condition; and said notice shall include a demand that such deficiencies of maintenance be cured within 30 days thereof and shall state the date and place of a hearing thereon, which shall be held within 14 days of the notice. At such hearing, the Township may modify the terms of the original notice as to the deficiencies and may give an extension of time within which they shall be corrected. If the deficiencies set forth in the original notice or if the modifications thereof shall not be corrected within said 30 days or any extension thereof, the Township, in order to preserve the taxable values of the properties within the planned residential development and to prevent the common open space from becoming a public nuisance, may enter upon said common open space and maintain the same for a period of one year. Said entry and maintenance shall not constitute a taking of said common open space and shall not vest in the public any rights to use the common open space, except when the same is voluntarily dedicated to the public by the residents and owners, and such dedication is acceptable to the Township. Before the expiration of said year, the Township shall, upon its initiative or upon the request of the organization heretofore responsible for the maintenance of the common open space, call a public hearing upon notice to such organization or to the residents and owners of the planned residential development to be held by the Township, at which hearing such organization or the residents and owners of the planned residential development shall show cause why such maintenance by the Township shall not, at the election of the Township, continue for a succeeding year. If the Township shall determine that such organization is ready and able to maintain said common open space in reasonable condition, the Township shall cease to maintain said common open space at the end of said year. If the Township shall determine such organization is not ready and able to maintain said common open space in a reasonable condition, the Township may, in its discretion, continue to maintain said common open space during the next succeeding year and subject to a similar hearing and determination in each year thereafter. The decision of the Township in any such case shall constitute a final administrative decision subject to judicial review.

(b)

The cost of such maintenance and enforcement proceedings by the Township shall be assessed ratably in accordance with tax assessments, against the properties within the planned residential development that have a right of enjoyment of the common open space and shall become a lien on said properties. Said assessments or charges shall be subordinate in lien to the lien of any prior mortgage or mortgages on the property which is subject to such assessments or charges. The Township, at the time of entering upon such common open space for the purpose of maintenance, shall file a notice of such lien in the office of the prothonotary of the county upon the properties affected by such lien within the planned residential development.

(6)

Enforcement of plan provisions. In accordance with Section 706 of Act 247,[2] the provisions of the development plan relating to the use, bulk and location of buildings and structures, the quantity and location of common open space and the intensity of use or the density of residential units shall run in favor of the Township and shall be enforceable in law or in equity by the Township without limitation on any powers of regulation otherwise granted the Township by law. The development plan shall specify those of its provisions which shall run in favor of and be enforceable by residents of the planned residential development and, in addition, the manner in which such residents may modify or release such rights.

[2]

Editor's Note: See 68 Pa.C.S.A. § 3101 et seq.

§ 122-68 Development in stages.

A developer may construct a planned residential development in stages if the following criteria are met:

The application for tentative approval covers the entire planned residential development and shows the location and approximate time of construction for each stage, in addition to other information required by this chapter.

At least 15% of the dwelling units in the plan given tentative approval are included in the first stage.

The second and subsequent stages are completed consistent with the tentatively approved plan and are of such size and location that they constitute economically sound units of development. In no event shall such stages contain less than 15% of the dwelling units receiving tentative approval.

Average gross residential density may be varied from stage to stage; provided, however, that final approval shall not be given to any stage if the gross residential density by type of dwelling of the area, which included stages already finally approved and the stage for which final approval is being sought, exceeds by more than 10% of the gross residential density for each type of dwelling unit allowed for the entire planned residential development in the tentatively approved plan. Where it is necessary to allocate open space to early stages to avoid exceeding maximum gross residential densities, the developer may be required to grant an open space easement or covenant to the Township specifying the amount and, if necessary, the location of open space.

§ 122-69 Contents of application.

Application for tentative approval.

(1)

The application for tentative approval shall include documentation illustrating compliance with all of the standards for planned residential development set forth in § 122-67 hereof.

(2)

The application for tentative approval shall include but not necessarily be limited to the following documents:

(a)

A key map drawn at a scale of not less than one inch equals 800 feet showing the location and size of the property to adjoining areas and streets and showing the nature of the landowner's interest in the land proposed to be developed.

(b)

Plans at a scale of not less than one inch equals 50 feet of existing natural and man-made features of the land, including topography, vegetation, drainage and soils. The following information shall be included in such plan:

[1]

Contour lines at vertical intervals of no greater than two feet and showing location and elevation of the closest established benchmark(s) from which the contour elevations are derived.

[2]

Total tract boundaries of the property being developed showing bearings and distances and a statement of the total acreage of the property.

[3]

Locations of all existing tree masses and all other trees in excess of six inches in caliper, rock outcroppings, watercourses, floodplain areas and other significant natural features.

[4]

Slope differentials delineating all slopes less than 8%, between 8% and 15%, between 15% and 25% and in excess of 25%.

[5]

Delineation of existing drainage patterns on the property.

[6]

Existing soil classifications.

[7]

Any existing sewer lines, waterlines, electric and telephone utility lines, pipelines, culverts, bridges, railroads, roads and other significant man-made features.

(c)

A site plan at a scale of not less than one inch equals 50 feet showing proposed use areas, common open space and location of buildings and improvements to be installed. The following shall be shown on the site plan:

[1]

The total number of residential units proposed with subtotals for each residential housing type.

[2]

The total acreage of the tract.

[3]

The average gross residential density.

[4]

The approximate location of all buildings, roads, parking areas, sidewalks or pathways, descriptions of the use of all structures, dimensions (including height) of all buildings (other than single-family dwellings) and other structures, road rights-of-way and cartway widths.

[5]

The location, function, size, ownership and manner of maintenance of common open space areas, indicating the nature of the facilities or structures therein and proposed uses thereof.

[6]

Connections to public utilities and streets accompanied by documentation as to the impact of the proposed development on such utilities and streets.

[7]

Lot lines with approximate dimensions for all residential units for which individual ownership is proposed.

[8]

Proposed utility easement locations.

(d)

A plan at a scale of not less than one inch equals 50 feet, showing proposed surface drainage of the tract and proposed erosion and sedimentation plan and proposed sanitary sewage treatment system. The plan need not be completely detailed but shall be accompanied by a narrative documenting the feasibility of the proposals for control of stormwater, erosion and sedimentation and for the sanitary sewage treatment system and a copy of the planning module for land development submitted to Chester County Health Department.

(e)

The substance of covenants, grant of easements or other restrictions to be imposed upon the use of land, buildings and structures, including proposed grants and/or easements for public utilities.

(f)

A site plan and narrative illustrating phasing, including a time schedule for all on-site and off-site improvements which shall be made, and the proposed times within which applications for final approval of all sections of the planned residential development are intended to be filed. The schedule must be up-dated annually on the anniversary of its approval until the development is completed and accepted.

(g)

A written statement by the landowner setting forth reasons why, in the landowner's opinion, the planned residential development would be in the public interest and would be consistent with the Township's Comprehensive Plan, including a discussion of criteria used in site planning.

(h)

A description of the performance guaranty to comply with § 122-71A.

(3)

Where the landowner proposes to employ transfer of development rights as authorized by § 122-67B of this chapter, the landowner shall submit the following additional information:

(a)

A statement of the number of development rights proposed to be acquired.

(b)

For each property from which development rights are to be acquired, a copy of all information required by § 122-75A transferable development rights.

(4)

The applicant shall, if water is to be provided by means other than private wells owned and maintained by the individual owners of lots within the planned residential development, present with the application a signed statement that the development is to be supplied by a certificated public utility, a bona fide cooperative association of lot owners or a municipal corporation, authority or utility.

[Amended 4-16-1990 by Ord. No. 90-01]

Application for final approval.

(1)

The application for final approval may be for all the land included in the tentative application or, to the extent set forth in the tentative approval, for a section thereof. The application for final approval shall include documents illustrating compliance with all of the standards for planned residential development set forth in § 122-67 hereof.

(2)

The application for final approval shall include but not necessarily be limited to the following documents:

(a)

A key map in accordance with the requirements of Subsection A(2)(a).

(b)

Plans at a scale of not less than one inch equals 50 feet of existing natural and man-made features of the land, including topography vegetation, drainage and soils in accordance with the requirements of Subsection A(2)(b) of this chapter.

(c)

A site plan at a scale of not less than one inch equals 50 feet showing common open space and location of buildings and improvements to be installed. In addition to the requirements of Subsection A(2)(c), the site plan shall show the following:

[1]

The total tract boundary lines of the area being developed with accurate distances to hundredths of a foot and bearings to 1/4 of a minute. Boundaries shall be determined by an accurate field survey and shall show the location of all boundary line monuments.

[2]

The exact location of all buildings, roads, parking areas, sidewalks or pathways.

[3]

Lot lines with exact dimensions for all residential units for which individual ownership is proposed, together with proposed building setback lines for each lot and the proposed placement of each building.

[4]

Clear sight triangles for all street intersections.

[5]

Accurate dimensions of common open space areas and, where structures are to be situated therein, the exact location and dimensions of all such structures.

[6]

Proposed names of all streets.

(d)

A plan at a scale of one inch equals 50 feet showing all information pertaining to surface drainage, proposed erosion and sedimentation control, proposed sanitary sewage treatment system and water supply and distribution system. In addition to the requirements of Subsection A(2)(d), the plan shall also show the following:

[1]

A complete erosion and sedimentation control plan meeting all the requirements of the Pennsylvania Department of Environmental Protection and § 122-67E(16) hereof, including a narrative documenting feasibility.

[2]

A complete stormwater control plan meeting all the requirements of § 122-67E(15) hereof.

[3]

A complete plan of sanitary sewage disposal facilities demonstrating compliance with the requirements of § 122-67E(13) hereof.

[4]

A complete plan of water supply facilities demonstrating compliance with the requirements of § 122-67E(14) hereof.

(e)

Profile sheets for all proposed streets, whether to be dedicated or to be privately owned, within the tract showing at least the following information:

[1]

Existing natural profiles along the center line of each proposed street and, if the slope within the cartway area exceeds 5%, along both cartway edges. In no event shall cartway slopes exceed 7% without approval of the Board of Supervisors.

[2]

Proposed finish grade of the center line and in any case where the street shall not conform to typical cross section, the proposed finish grade at the top of both curbs or pavement edges.

[3]

Location and profile of all existing and proposed sanitary sewer mains and manholes, storm sewer mains, inlets, manholes and culverts and water mains and fire hydrants.

[4]

Typical cross sections of all streets, culverts, manholes, typical driveway entrance and other improvements.

(f)

Approvals by the Pennsylvania Department of Environmental Protection for water supply and sanitary sewage disposal system and documentation from all utilities companies of the availability of such utility services.

(g)

Architectural drawings illustrating exterior and interior designs of typical residential buildings of each type and of each nonresidential structure to be constructed, including statements and illustrations of materials to be used in construction.

(h)

Final drafts of all offers of dedication, covenants, easements, deed restrictions and maintenance agreements to be imposed upon the use of land, buildings and structures and pertaining to the ownership, use and maintenance of all common open space areas and any other common facilities, as set forth in § 122-67F hereof, and including proposed grades and/or easements for such utilities.

(i)

Landscaping plan and schedule prepared by a registered landscape architect, as required by § 122-67(18)(d)[2].

(3)

Where the landowner proposes to employ transfer of development rights as authorized by § 122-67B of this chapter, the landowner shall submit additional information as required by § 122-75A hereof.

(4)

Arrangements for and documents governing performance and maintenance and guaranties as required by § 122-71A and B hereof.

§ 122-70 Submission and review procedures.

Preapplication procedures. A landowner proposing to develop a planned residential development is strongly encouraged to submit a sketch plan to the Planning Commission for informal discussion prior to the drafting of the tentative plan.

Procedure for tentative approval.

(1)

The application for tentative approval shall be executed by or on behalf of the landowner and filed with the Township Secretary. An initial deposit in the amount as set by resolution by the Board of Supervisors shall be paid upon filing of the application, and additional deposits shall be made from time to time as requested by the Township to be applied against the expenses of processing the application, not to exceed actual expenses incurred by the Township.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

(2)

The developer shall submit 10 copies of all required plans and information; the Township Secretary shall thereafter distribute copies of the plans to all appropriate agencies, including but not limited to the Township Planning Commission, the Board of Supervisors, the County Planning Commission, the County Health Department, the Township Engineer, the Natural Resources Conservation Service and the Pennsylvania Department of Environmental Protection.

(3)

All pertinent reviews, including those of the Township and County Planning Commissions and the Township Engineer, shall be effected within 45 days of referral or at least five days prior to the public hearing to be held by the Board of Supervisors on the tentative application, whichever shall first occur. The Township Planning Commission shall forward to the governing body copies of reports received from the Township Engineer and all other reviewing agencies, together with its own recommendations within the aforesaid time limitations. Copies of such reports and recommendations shall also be furnished to the landowner within the aforesaid time limitations.

(4)

Prior to the public hearing which is held on the application for tentative approval, the applicant shall send a copy of the public notice which the Township prepares for advertisement of the public hearing, as well as a map identifying the location of the property which is the subject of the application, to the last known address of all property owners within a five-hundred-foot radius of the property, regardless of whether a roadway or Township boundary intersects such radius. The public notice and map shall be sent by regular mail and certified mail, return receipt requested, and mailed a minimum of two weeks before the first scheduled public hearing on the application. At the hearing, the applicant shall provide a copy of each notification and map that were sent and the certified mail green cards, if available. The hearing shall not proceed unless the applicant provides such evidence of mailing.

[Added 11-17-2003 by Ord. No. 03-05]

Public hearings.

(1)

Within 60 days after the filing of an application for tentative approval of a planned residential development pursuant to this chapter, a public hearing pursuant to public notice on said application shall be held by the Board of Supervisors in the manner prescribed in this chapter for the enactment of an amendment. The Chair or if absent the Acting Chair of the Board of Supervisors or its designated agency may administer oaths and compel the attendance of witnesses. All testimony by witnesses at any hearing shall be given under oath, and every party of record at a hearing shall have the right to cross-examine adverse witnesses.

(2)

A verbatim record of the hearing shall be caused to be made by the Board of Supervisors whenever such records are requested by any party to the proceedings, but the cost of making the request and the expense of copies of such record shall be borne by those who wish to obtain such copies. All exhibits accepted in evidence shall be identified and duly preserved or, if not accepted in evidence, shall be properly identified and the reason for the exclusion clearly noted in the record.

(3)

The Board of Supervisors may continue the public hearings; provided, however, that the ensuing hearings shall be concluded within 60 days from the date of the first public hearing.

Findings.

(1)

Time for decision.

[Amended 6-5-1995 by Ord. No. 95-01; 4-15-2002 by Ord. No. 02-03]

(a)

The Board of Supervisors, within 60 days following the conclusion of the public hearing provided for in this article, or within 180 days after the date of filing of the application, whichever occurs first, shall, by official written communication to the landowner, either:

[1]

Grant tentative approval of the development plan as submitted;

[2]

Grant tentative approval subject to specified conditions not included in the development plans as submitted; or

[3]

Deny tentative approval to the development plan.

(b)

Failure to so act within said period shall be deemed to be a grant of tentative approval of the development plan as submitted. In the event, however, that tentative approval is granted subject to conditions, the landowner may, within 30 days after receiving a copy of the official written communication of the Board of Supervisors, notify such Board of Supervisors of the landowner's refusal to accept all said conditions, in which case the Board of Supervisors shall be deemed to have denied tentative approval of the development plan. In the event that the landowner does not, within said period, notify the Board of Supervisors of refusal to accept all said conditions, tentative approval of the development plan, with all said conditions, shall stand as granted.

(2)

The grant or denial of tentative approval by official written communication shall include not only conclusions but also findings of fact related to the specific proposal and shall set forth the reasons for the grant, with or without conditions, or for the denial, and said communication shall set forth with particularity in what respects the development plan would or would not be in the public interest, including but not limited to findings of fact and conclusions on the following:

(a)

Those respects in which the development plan is or is not consistent with the Comprehensive Plan for the development of the municipality.

(b)

The extent to which the development plan departs from zoning and subdivision regulations otherwise applicable to the subject property, including but not limited to density, bulk and use, and the reasons why such departures are not deemed to be in the public interest.

(c)

The purpose, location and amount of the common open space in the planned residential development, the reliability of the proposals for maintenance and conservation of the common open space and the adequacy or inadequacy of the amount and purpose of the common open space as related to the proposed density and type of residential development.

(d)

The physical design of the development plan and the manner in which said design does or does not make adequate provision for public services and recreation facilities, provide adequate control over vehicular traffic and further the amenities of light and air and recreation and visual enjoyment.

(e)

The relationship, beneficial or adverse, of the proposed planned residential development to the neighborhood in which it is proposed to be established.

(f)

In the case of a development plan which proposes development over a period of years, the sufficiency of the terms and conditions intended to protect the interests of the public and of the residents of the planned residential development in the integrity of the development plan.

(3)

In the event that a development plan is granted tentative approval, with or without conditions, the Board of Supervisors may set forth in the official written communication the time within which an application for final approval of the development plan shall be filed or, in the case of a development plan which provides for development over a period of years, the periods of time within which applications for final approval of each part thereof shall be filed. Except upon the consent of the landowner, the time so established between the grant of tentative approval and application for final approval shall not be less than three months, and, in case of developments ever a period of years, the time between applications for final approval of each part of a plan shall be not less than 12 months.

Status of plan after tentative approval.

(1)

The official written communication provided for in Subsection D of this section shall be certified by the Secretary of the Board of Supervisors and shall be filed in such office, and a certified copy shall be mailed to the landowner. Where tentative approval has been granted, the same shall be noted on the Zoning Map.

(2)

Tentative approval of a development plan shall not qualify a plot of the planned residential development for recording nor authorize development or the issuance of any building permits. A development plan which has been given tentative approval as submitted or which has been given tentative approval with conditions which have been accepted by the landowner (and provided that the landowner has not defaulted nor violated any of the conditions of the tentative approval) shall not be modified or revoked nor otherwise impaired by action of the Township pending an application or applications for final approval without the consent of the landowner, provided that an application for final approval is filed or in the case of development over a period of years provided that applications are filed within the periods of time specified in the official written communication granting tentative approval.

(3)

In the event that a development plan is given tentative approval and thereafter but prior to final approval the landowner shall elect to abandon said development plan and shall so notify the Board of Supervisors, in writing, or in the event that the landowner shall fail to file application or applications as the case may be, the tentative approval shall be deemed to be revoked and all that portion of the area included in the development plan for which final approval has not been given shall be subject to those local ordinances otherwise applicable thereto, as they may be amended from time to time, and the same shall be noted on the Zoning Map and in the records of the Secretary of the Township.

[Amended 6-5-1995 by Ord. No. 95-01]

Procedure for final approval.

(1)

An application for final approval may be for all the land included in a development plan or, to the extent set forth in the tentative approval, a section thereof. Said application shall be made to the official review agency and within the time or times specified by the official written communication granting tentative approval. If the application for final approval is in compliance with the tentatively approved development plan, a public hearing need not be held.

(2)

In the event that the application for final approval has been filed, together with all drawings, specifications and other documents in support thereof, and the application meets all the requirements of § 122-69B hereof and the official written communication of tentative approval, the Township shall, within 45 days of such filing, grant such development plan final approval.

[Amended 6-5-1995 by Ord. No. 95-01]

(3)

Refusal.

[Amended 6-5-1995 by Ord. No. 95-01]

(a)

In the event that the development plan as submitted contains variations from the development plan given tentative approval or fails to meet all the requirements of § 122-69B hereof, the Board of Supervisors may refuse to grant final approval and shall, within 45 days from the filing of the application for final approval, so advise the landowner, in writing, of said refusal, setting forth in said notice the reasons why one or more of said variations are not in the public interest. In the event of such refusal, the landowner may either:

[1]

Refile the application for final approval without the variations objected; or

[2]

File a written request with the Board of Supervisors that it hold a public hearing at the applicant's expense on the application for final approval.

(b)

If the landowner wishes to take either such alternate action, the landowner may do so at any time within which the landowner shall be entitled to apply for final approval as set forth in the written communication by which tentative approval was granted by the Township Supervisors or within 45 additional days if the time for applying for final approval shall have already passed at the time when the landowner was advised that the development plan was not in substantial compliance. In the event that the landowner shall fail to take either of these alternate actions within said time, the landowner shall be deemed to have abandoned the development plan. Any such public hearing shall be held pursuant to public notice within 45 days after request for the hearing is made by the landowner, and the hearing shall be conducted in the manner prescribed in this chapter for public hearings on applications for tentative approval. Within 45 days after the conclusion of the hearing, the Board of Supervisors shall by official written communication either grant final approval to the development plan or deny final approval. The grant or denial of final approval of the development plan shall, in cases arising under this section, be in the form and contain the findings required for an application for tentative approval set forth in this chapter.

(4)

A development plan or any part thereof which has been given final approval shall be so certified without delay by the Board of Supervisors and shall be filed of record forthwith in the office of the Recorder of Deeds before any development shall take place in accordance therewith. Upon the filing of record of the development plan, the zoning and subdivision regulations otherwise applicable to the land included in such plan shall cease to apply thereto. However, Birmingham Township ordinances containing provisions concerning sedimentation and erosion control which are more stringent than those in this chapter shall be applicable.

(5)

In the event that a development plan or a section thereof is given final approval and thereafter the landowner shall abandon such plan or the section thereof that has been finally approved and shall so notify the Board of Supervisors, in writing, or in the event that the landowner shall fail to commence and carry out the planned residential development within such reasonable period of time as may be fixed by ordinance after final approval has been granted, no development or further development shall take place on the property included in the development plan until after said property is resubdivided and is reclassified by enactment of an amendment to this chapter.

§ 122-71 Administration.

Performance guaranty.

(1)

Prior to release of the approved final plan for recording, the developer shall guarantee the installation of all required improvements by posting a performance guaranty in the amount of 125% of the cost of all improvements as estimated by the Township Engineer for that portion of the development for which final plan approval has been granted.

(2)

The performance guaranty may be either a performance bond with a corporate surety, an escrow deposit or other security acceptable to the Township. The performance guaranty shall be submitted in a form and with a surety approved by the Township Solicitor, guaranteeing the construction and installation of all improvements within a stated period not in excess of three years from the time of final approval.

(3)

The amount of performance guaranty may be reduced as and when portions of the required improvements have been installed and shall be released upon completion of all improvements in a manner satisfactory to the Township Supervisors.

Dedication and maintenance guaranty.

(1)

All streets, recreational facilities, surface drainage, water and sewer facilities and other improvements shown on the final plan shall be privately owned until such time as they have been offered for dedication to the Township and accepted by resolution of the Township Supervisors.

(2)

Before accepting any such offer of dedication, the Township Supervisors shall require the developer to file a maintenance guaranty in an amount not less than 10% of the Township Engineer's estimate of the cost of such improvements to be dedicated. Such maintenance guaranty shall be in a form and with a surety approved by the Township Solicitor, guaranteeing that the developer shall maintain all such improvements in good condition for a period of two years after completion of construction or installation of all such improvements.

(3)

At the end of said two-year period, if the improvements shall be in good condition and the applicant has delivered as-built drawings showing any changes from final plan submissions, the Township shall release the maintenance bond. Prior to such release, the Township may require any needed items of maintenance to be performed.

Permits.

(1)

Issuance of permits and all matters pertaining to administration of the plan as finally approved shall be the responsibility of the Township Zoning Officer.

(2)

Upon application of the landowner showing compliance with the requirements of final approval, the Zoning Officer shall issue permits for construction pursuant to the plan or any section thereof.

(3)

The provision of Article XX hereof governing administration shall be fully applicable to the plan as finally approved insofaras the provisions thereof are consistent with the provisions of this article and the conditions of final approval. The Building Inspector shall review the progress and status and construction of the plan and render monthly reports thereon to the Board in order to ensure compliance with the provisions of this article and the conditions of final approval.

Fees. The Township Supervisors shall establish by resolution a schedule of fees[1] to be paid by the developer at the time of filing the tentative and final applications, which schedule shall be available upon request.

[1]

Editor's Note: The Fee Schedule is on file in the office of the Township Secretary.

Abandonment after final approval. If, after development in accordance with a final plan is started, the landowner shall abandon such plan or the section thereof and shall so notify the Board, in writing, the Board may require that the property be resubdivided and reclassified as provided in § 122-70E(3), or, if any portion of a PRD is substantially completed in accordance with final plans submitted and approved by the Board, the Board shall have the option of recording the master plan and requiring subsequent construction to be within the framework of the plan, unless substantial economic hardship can be demonstrated.

Birmingham Township
City Zoning Code

ARTICLE XIV

§ 122-63 Purposes.

§ 122-64 Definitions.

§ 122-65 Conditions for planned residential development.

§ 122-66 Permitted uses.

§ 122-67 Development standards.

§ 122-68 Development in stages.

§ 122-69 Contents of application.

§ 122-70 Submission and review procedures.

§ 122-71 Administration.

Birmingham TownshipCity Zoning Code

ARTICLE XIV

§ 122-63 Purposes.

§ 122-64 Definitions.

§ 122-65 Conditions for planned residential development.

§ 122-66 Permitted uses.

§ 122-67 Development standards.

§ 122-68 Development in stages.

§ 122-69 Contents of application.

§ 122-70 Submission and review procedures.

§ 122-71 Administration.

Birmingham Township
City Zoning Code