Pennsylvania Act 1936-38X (session 1) — FLOOD CONTROL, MUNICIPAL

Act text

Special Session No. 1 of 1936

No. 1936-38 1/2

AN ACT

To authorize and empower cities, boroughs, towns, and townships, separately or jointly, to provide for protection against floods by erecting and constructing certain works and improvements, located within or without their territorial limits, and within or without the county in which situate; and to expend moneys and incur indebtedness; to assess benefits against property benefited; to issue improvement bonds imposing no municipal liability; and to acquire, take, injure or destroy property for such purposes.

Section 1. Be it enacted, &c., That the word "municipality," as used in this act, shall be construed to include cities, boroughs, towns, and townships.

Section 2. Any municipality may erect or construct dikes, river bank protection, and other flood control works, and may widen, deepen, straighten, and otherwise improve the channels and banks of creeks, streams, and rivers, within or without its territorial limits and within or without the county in which such municipality is situated, if such works and improvements will be of benefit to the municipality providing the same and to the inhabitants thereof.

Any two or more municipalities may jointly erect, construct, and provide such works and improvements within the territorial limits of any municipality joining, or within the territorial limits of some other municipality, and within or without the county in which such municipality or municipalities are situate.

No such works or improvements shall be erected under the provisions of this act in any municipality not joining in the erection or construction thereof, unless such municipality shall first consent thereto.

Nothing contained in this section or in this act shall be deemed to authorize any municipality to erect or construct any dam for flood control or other purposes.

Section 3. (a) No such works or improvements, involving expenditure by any municipality or municipalities of more than the base amount of eighteen thousand five hundred dollars ($18,500), subject to adjustment under subsection (b.1), shall be erected, constructed or provided, except by contract let to the lowest responsible bidder after due advertisement, once a week for two successive weeks in at least one newspaper of general circulation: Provided, however, That no contract shall be required to be let for the performance of the work on any such work or improvement where the cost of the labor shall be paid by the Federal Government, or any agency thereof, without cost to the municipality or municipalities.

(b) Written or telephonic price quotations from at least three qualified and responsible contractors shall be requested for all contracts in excess of the base amount of ten thousand dollars ($10,000), subject to adjustment under subsection (b.1), but are less than the amount requiring advertisement and competitive bidding or, in lieu of price quotations, a memorandum shall be kept on file showing that fewer than three qualified contractors exist in the market area within which it is practicable to obtain quotations. A written record of telephonic price quotations shall be made and shall contain at least the date of the quotation, the name of the contractor and the contractor's representative, the construction, reconstruction, repair, maintenance or work which was the subject of the quotation and the price. Written price quotations, written records of telephonic price quotations and memoranda shall be retained for a period of three years.

(b.1) Adjustments to the base amounts specified under subsections (a) and (b) shall be made as follows:

(1) The Department of Labor and Industry shall determine the percentage change in the Consumer Price Index for All Urban Consumers: All Items (CPI-U) for the United States City Average as published by the United States Department of Labor, Bureau of Labor Statistics, for the twelve-month period ending September 30, 2012, and for each successive twelve-month period thereafter.

(2) If the department determines that there is no positive percentage change, then no adjustment to the base amounts shall occur for the relevant time period provided for in this subsection.

(3) (i) If the department determines that there is a positive percentage change in the first year that the determination is made under paragraph (1), the positive percentage change shall be multiplied by each base amount, and the products shall be added to the base amounts, respectively, and the sums shall be preliminary adjusted amounts.

(ii) The preliminary adjusted amounts shall be rounded to the nearest one hundred dollars ($100) to determine the final adjusted base amounts for purposes of subsections (a) and (b).

(4) In each successive year in which there is a positive percentage change in the CPI-U for the United States City Average, the positive percentage change shall be multiplied by the most recent preliminary adjusted amounts, and the products shall be added to the preliminary adjusted amount of the prior year to calculate the preliminary adjusted amounts for the current year. The sums thereof shall be rounded to the nearest one hundred dollars ($100) to determine the new final adjusted base amounts for purposes of subsections (a) and (b).

(5) The determinations and adjustments required under this subsection shall be made in the period between October 1 and November 15 of the year following the effective date of this subsection and annually between October 1 and November 15 of each year thereafter.

(6) The final adjusted base amounts and new final adjusted base amounts obtained under paragraphs (3) and (4) shall become effective January 1 for the calendar year following the year in which the determination required under paragraph (1) is made.

(7) The department shall publish notice in the Pennsylvania Bulletin prior to January 1 of each calendar year of the annual percentage change determined under paragraph (1) and the unadjusted or final adjusted base amounts determined under paragraphs (3) and (4) at which competitive bidding is required under subsection (a) and written or telephonic price quotations are required under subsection (b), respectively, for the calendar year beginning the first day of January after publication of the notice. The notice shall include a written and illustrative explanation of the calculations performed by the department in establishing the unadjusted or final adjusted base amounts under this subsection for the ensuing calendar year.

(8) The annual increase in the preliminary adjusted base amounts obtained under paragraphs (3) and (4) shall not exceed three per centum.

(c) No municipality shall evade the provisions of this section as to advertising for bids or purchasing materials or contracting for services piecemeal for the purpose of obtaining prices under the amount required by this section upon transactions which should, in the exercise of reasonable discretion and prudence, be conducted as one transaction amounting to more than the amount required by this section. This provision is intended to make unlawful the practice of evading advertising requirements by making a series of purchases or contracts each for less than the advertising requirement price or by making several simultaneous purchases or contracts each below said price, when in either case the transaction involved should have been made as one transaction for one price.

(d) Any member of a governing body of a municipality who votes to unlawfully evade the provisions of this section and who knows that the transaction upon which he so votes is or ought to be a part of a larger transaction and that it is being divided in order to evade the requirements as to advertising for bids commits a misdemeanor of the third degree for each contract entered into as a direct result of that vote.

(e) Every contract for the construction, reconstruction, alteration, repair, improvement or maintenance of public works shall comply with the provisions of the act of March 3, 1978 (P.L.6, No.3), known as the "Steel Products Procurement Act."

(3 amended Nov. 3, 2011, P.L.357, No.88)

Compiler's Note: Section 2 of Act 88 of 2011, which amended section 3, provided that Act 88 shall apply to contracts and purchases advertised after December 31 of the year in which section 2 takes effect.

Section 4. Any municipality may expend public moneys and may, in accordance with existing law, incur or increase its indebtedness for the purpose of erecting, constructing, and providing such works and improvements, in accordance with the provisions of this act.

Section 5. Any municipality shall have power to acquire any private property, easements or rights of way, except property, easements or rights of way already devoted to any public or quasi-public purposes, deemed necessary for the erection or construction of any such works or improvements, by purchase or by the right of eminent domain, and shall have power to enter upon, injure, and destroy any private property deemed necessary, except any property already devoted to a public or quasi-public purpose. The proceedings for the condemnation of property and for the assessment of damages to property taken, injured or destroyed, shall be in accordance with existing law providing for the assessment of damages and benefits, where property is taken, injured or destroyed by such municipality for municipal purposes.

Section 6. Any municipality shall have power to provide for the assessment of benefits against private property located within its corporate limits benefited or to be benefited by such works or improvements. No assessment of benefits shall be made against private property unless, in the opinion of the board of viewers making the assessment, such property will be benefited by the prevention or lessening of future flood damage. The fact that private property has been damaged by flood arising, directly or indirectly, from the waters of the creek, stream or river on which the work is being done or improvement provided, shall be conclusive evidence that benefit will accrue to such property, by reason of the works or improvements to be provided under the authority of this act. No exemption from benefits shall exist for any private property by reason of the fact that the same does not abut on any such work or improvement, or on the creek, stream or river carrying the flood waters.

Section 7. The court of common pleas of any county shall, upon the petition of any municipality located within such county, appoint a board of three viewers from the county board of viewers, whose duty it shall be to assess all benefits to private property to be occasioned by such works or improvements after the same are completed. It shall be the duty of the authorities of any such municipality to furnish to each board of viewers, so appointed, a complete set of any official plans which it may have adopted, showing the proposed works and improvements and the private property within its corporate limits which will be benefited by such proposed works or improvements.

Section 8. The viewers having been duly sworn or affirmed faithfully, justly and impartially to decide and a true report to make concerning all matters before them or to be submitted to them and in relation to which they are authorized to inquire, and having viewed each parcel of private property, which it appears will be benefited, shall hear all parties and their witnesses and shall determine the benefits, if any, to accrue to each such parcel of private property, and shall prepare a schedule of such property showing the amount of benefits assessed against each parcel of property.

Section 9. The viewers shall give notice to all persons against whose property benefits have been assessed, of a time and place when and where the viewers will meet and exhibit their schedule and hear all exceptions thereto. Such notice shall be given by registered mail addressed to the last known post office address of the owner or reputed owner of the property, and by publication once a week for two weeks in at least two newspapers of general circulation in such municipality or in the county if so many be published therein. The failure of an owner to receive the registered notice shall not be deemed to invalidate the proceedings, but in such case the notice by publication shall be deemed sufficient.

Section 10. After hearing all parties and their witnesses, and after making whatever changes in their schedule are deemed necessary, the viewers shall prepare a revised schedule of benefits to private property, and file a copy of the same in the court of common pleas of the county. When the report of viewers is filed, it shall be confirmed nisi, and notice thereof shall immediately be given by the board of viewers, by publication once in the newspapers in which the notice of the hearings before the viewers was published. Such notice shall state the date of the filing of the report, shall contain the schedule of property assessed, and shall state that, unless exceptions are filed thereto, or an appeal to the court of common pleas is taken therefrom within thirty days from the filing of the report, the same will be confirmed absolutely.

Section 11. Within thirty days after the filing of the report of viewers, any person interested may file exceptions to the same or may appeal to the court of common pleas and demand a jury trial.

Each person filing exceptions or taking an appeal shall except to or appeal from so much of the report only as affects property in which he has an interest, and the part of the report of the viewers not excepted to or appealed from shall be confirmed absolutely after said thirty day period.

Section 12. Where exceptions to a report of viewers are filed, the court shall proceed to hear and determine the same in the manner exceptions to reports of viewers are generally proceeded with within the county. Where an appeal is taken, it shall state the grounds upon which it is taken and shall be accompanied by an affidavit that it is not taken for the purpose of delay, but because the appellant believes that injustice has been done.

Upon the trial of any appeal or the hearing of any exceptions, in case the appellant or party excepting does not obtain a verdict or decree more favorable than was the report of viewers, he shall not recover any costs.

The court of common pleas shall order what notices shall be given in connection with such proceedings by exceptions or appeals and may by rule or otherwise prescribe the form of the pleadings.

The court may also in proper cases consolidate proceedings by exceptions or by appeals into a single proceeding.

Section 13. (13 repealed June 3, 1971, P.L.118, No.6)

Section 14. All assessments of benefits shall become due and payable to the municipality when the works and improvements have been completed, which date shall be fixed by the official order of the corporate authorities of the municipality, notice of which order shall be published by the board in the newspapers in which notice of the hearing before the viewers was published, by one insertion.

Any person may pay any part or all of the benefits assessed against him to the municipality before the due date thereof. If such payment is made within one month after the amount of the benefits have been finally ascertained, a discount of ten per centum of the amount thereof paid shall be allowed. All benefits, or any part thereof, paid after such one-month period and before the date of the completion of the works and improvements, shall be subject to a discount of five per centum of the amount paid. All assessments of benefits, or parts thereof, remaining unpaid when the improvements are completed, shall bear interest at the rate of six per centum per annum from the date of the completion of the works or improvements until paid.

The municipality shall send by registered mail addressed to the last known post office address, a statement of the amount due by each person after the same has been finally ascertained, together with a notice of the discounts allowed by this act for prompt payment, and when or approximately when interest will be added to the amount due.

Section 15. All assessments for benefits against private property shall remain a lien thereon from the time the report of viewers is filed in court until paid, unless the liens thereof be lost by failure to revive the same. It shall be the duty of the municipality within six months after its order that the works and improvements have been completed, to file in the office of the prothonotary of the proper county liens for all benefits assessed which remain unpaid. But no such lien shall be filed unless the municipality shall first notify by mail addressed to the last known post office address of the owner or reputed owner of the property against which an assessment has been made, of its intention to have said lien filed if payment of the amount due is not made before a time prescribed by the municipality. Such lien shall be filed in the same manner as is provided by law for the filing of municipal claims and shall have priority over all other liens except taxes and other municipal claims, and except also mortgages and judgments of record prior to the time the report of the viewers was filed in court.

Such liens shall be revived, prosecuted to judgment, executed and collected by the municipality in the same manner in all respects as is provided by law in the case of municipal claims.

Section 16. In order to enable municipalities to erect and construct the works and improvements authorized by this act, if benefits are to be assessed against private property as herein provided, the municipality may issue improvement bonds based solely upon the assessment of benefits made or to be made by reason of such works and improvements, and imposing no municipal liability.

Section 17. Nothing contained in this act shall be construed to repeal the provisions of any law, the enforcement of which is vested in the Department of Health or the Sanitary Water Board, or the provisions of any law the enforcement of which is vested in the Department of Forests and Waters or the Water and Power Resources Board.