Wrightstown passes flawed sewer inspection ordinance

On Aug. 17, Wrightstown Township, Bucks County, supervisors passed a sewer lateral inspection ordinance despite concerns it does not comply with the Pennsylvania Municipal Code and Ordinance Compliance Act (MCOCA).

The township solicitor acknowledged receiving comments from Suburban Realtors Alliance (SRA) but said that, because the ordinance had already been advertised, she recommended moving forward and addressing SRA's concerns through a future amendment. The board approved it unanimously with no public comment. The current version requires escrowing of funds for repairs, mandates that repairs are made within 60 days or by the settlement date, and allows the township to withhold a resale certificate until repairs are made — all of which run afoul of the state law. The meeting video is available here.

Realtors who work in Wrightstown are encouraged to contact the SRA if they have any concerns that the township is not following state law in the use and occupancy process.

The ordinance — Ordinance 343 as passed on Aug. 17 — can be viewed here.

The SRA's comments, sent on Aug. 12 to the township manager, are below:

I’m reaching out regarding Wrightstown Township’s draft sewer lateral ordinance. First, thank you for responding so quickly to our request for a copy. We’ve reviewed the proposal and have several concerns about provisions that appear to conflict with Pennsylvania’s Municipal Code and Ordinance Compliance Act (MCOCA), which I have attached for reference. The Suburban Realtors Alliance is not opposed to the Township requiring inspections of private sewer laterals or requiring property owners to correct identified defects or illegal connections. Our concern is with how those requirements are tied to the sale of a property and the issuance of occupancy-related certificates.

In particular, we would ask the Township to reconsider the following provisions:

• Repairs required before settlement or within 60 days. Section 18-506 of the draft ordinance requires deficiencies and violations to be corrected within 60 days of discovery or prior to settlement. Section 3(a) of MCOCA provides a purchaser with 12 months from the date of purchase to bring a property with known violations or substantial violations into compliance. Further, Section 3(a.1) expressly provides that while a municipality may negotiate a longer period at the property owner’s request, the 12-month period may not be shortened.
• Withholding a certificate until repairs are completed. Section 18-506 also provides that the Township will not issue a certificate of compliance until illegal connections or lateral defects have been corrected. Section 2.1(a) of MCOCA establishes the certificates that a municipality requiring a use and occupancy certificate must issue following a resale inspection: a use and occupancy certificate when no violations are found; a temporary use and occupancy certificate when violations, but no substantial violations, are found; and a temporary access certificate when at least one substantial violation is found. Accordingly, the existence of a violation does not generally provide a basis for withholding a certificate until the violation is corrected.
• Cash security requirements. Section 18-507 requires a buyer seeking a temporary certificate to post cash security equal to 120% of the cost of the required repairs. It also requires $2,000 in cash security when testing cannot be completed because of weather. Section 2.1(b) of MCOCA expressly provides that a municipality may not require the escrowing of funds, posting of a bond, or any similar financial security as a condition of issuing a certificate.
• 60-day temporary certificate. Section 18-507 makes the temporary certificate effective for only 60 days and provides for forfeiture of the cash security if compliance has not been achieved. This appears inconsistent with the 12-month compliance period for repairs established by Section 3(a) of MCOCA, as well as Section 3(a.1), which provides that the statutory period may not be shortened.
• Municipal lien and tax verification letters. Section 18-508 conditions issuance of municipal lien and tax verification letters on having a valid certificate of compliance or temporary certificate. We are concerned that this provision could effectively prevent or delay a property transfer because of outstanding sewer lateral violations, circumventing the protections and certificate process established by Sections 2.1 and 3 of MCOCA.

We also recommend that the ordinance incorporate MCOCA’s distinction between a “violation” and a “substantial violation,” as those terms are defined in Section 2 of the Act. A substantial violation is specifically defined as one that makes a building, structure, or part thereof unfit for human habitation. A failed sewer lateral inspection therefore should not automatically be treated as a substantial violation or prevent occupancy.

We believe the Township can accomplish its goal of identifying and correcting defective sewer laterals while remaining consistent with MCOCA. An inspection can occur in connection with the sale, identified deficiencies can be documented, and responsibility for correcting those deficiencies can transfer to the purchaser subject to the certificate requirements and timeframes established by state law.

Additionally, we have concerns with the requirement to submit inspection requests 45 days prior to the sale or transfer of property. This timeline is not consistent with the timeline of how some real estate transactions are structured.

We would appreciate the opportunity to discuss these concerns with the Township before the ordinance moves forward. We would also be happy to work with the Township and its solicitor on language that addresses the Township’s sewer-infrastructure concerns while bringing the resale provisions into compliance with MCOCA.

Thank you for your consideration, and please feel free to give me a call if you would like to discuss.

We will post any updates on ordinance amendments as they become available.