Last week, Governor Rendell signed the Permit Extension Act ("Act") into law as part of the approval of the budget, breathing life into expired and expiring permits and the development projects they represent.
The Act, found at pages 99-110 of the budget bill, extends the expiration date of many governmental approvals, permits and agreements, including building permits and construction permits, relating to construction and development projects.
What Permits Does It Affect?
The Act applies to certain permits issued under more than thirty statutes, including:
- The Pennsylvania Municipalities Planning Code ("MPC"),
- The Clean Streams Law,
- the First Class City Home Rule Act (applicable to Philadelphia and Pittsburgh),
- The Pennsylvania Sewage Facilities Act,
- The Pennsylvania Construction Code,
- The Storm Water Management Act, and
- certain permits issued by the Pennsylvania Department of Transportation.
The Act also applies to certain permits issued to condominiums, cooperatives and planned communities.
The Act Does Not Apply to All Permits
The Act does not apply to other statutes, including the:
- "Keystone Opportunity Zone, Keystone Opportunity Expansion Zone and Keystone Opportunity Improvement Zone Act,"
- "The Underground Utility Line Protection Law," and
- certain other permits issued by the Pennsylvania Department of Transportation.
The Act also does not apply to permits with expiration dates determined by federal law, or to administrative consent orders and enforcement actions for a permit subject to the extension period.
How Long is a Permit Extended?
Under the Act, a permit granted under an applicable statute and having an expiration date after December 31, 2008 may have its expiration date extended until July 1, 2013, regardless of whether the permit was issued before or after the extension period. The Act does not shorten the life of a permit with an expiration date after July 1, 2013.
How Can You Find Out If the Act Applies to Your Permit?
The permit holder can request verification, subject to a fee, from the issuing agency of the existence of a valid permit and its expiration date, but must identify the permit in question and its anticipated expiration date. The issuing agency must tell you in writing within 30 days of receiving your request:
- whether you have a permit;
- its expiration date; and
- stating any issues related to the validity of the permit.
Except in Philadelphia and Pittsburgh, the failure of the issuing agency to respond within 30 days will result in the "deemed affirmation of the existence of the [permit] and the expiration date set forth in the request."
In the City of Philadelphia, in order to exercise its right to extend the permit under the Act, the permit holder must provide the issuing agency with notice of its intent to extend the permit and pay the agency a fee equal to fifty percent of the original application fee, not to exceed $5000. Elsewhere, the issuing agency may charge a fee up to twenty five percent of the original application fee, but no more than $5000, to extend the Permit.
Permits granted pursuant to the MPC are protected from changes in a "zoning, subdivision or other governing ordinance or plan," such that those changes will not affect the permit holder’s right to begin or complete the activities authorized by the permit during the extension period. The extension period is further extended for the length of litigation, including appeals, concerning permits issued under the MPC that prevent the completion of the work authorized by the permit.
The Act brings Pennsylvania into line with New Jersey which enacted its own permit extension legislation in 2008. The Act gives needed flexibility and time to developers who may be facing financial challenges in the current economy. At a minimum, permit holders should consider verifying the viability of permits, and extending them as required, now so they will be in a position to proceed when market conditions warrant.
Alfred R. Fuscaldo is a Director in the Gibbons Real Property and Environmental Department.