2022 Municipality Reorganization Meeting Tips

January 3, 2022 is the day municipalities are required by law to meet for reorganization. Here are a few tips for the meeting:

Advertise the reorganization meeting date and time.

The reorganization meeting must be held on the first Monday of each January unless that date is an official holiday in which case it must be held the first day after the holiday.  The meeting may be held at anytime that day.  The meeting must be advertised in the newspaper and notice posted at the municipal offices at least three days prior to the meeting. The advertisement can be done alone or as part of the notice for all regular meetings to be held in the upcoming year.  Second Class Townships must reorganize every year.  Boroughs are only required to reorganize in even-numbered years.

The reorganization meeting can be your regular meeting for the month.

Municipalities are required to meet at least once per month.  The reorganization meeting can be your regular meeting for January.  We recommend the meeting be advertised as a reorganization meeting and regular business meeting if you plan to conduct other business at the meeting.  Remember also that the new agenda requirements will still apply so you must post an agenda with all action items for the meeting at least 24 hours in advance.

Make sure all new or re-elected public officials that will participate in the meeting have been sworn-in ahead of time.

Newly-elected or re-elected or appointed public officials must take an oath of office prior to serving.  The oath may be administered by a notary, district justice or judge.  In Boroughs, the Mayor must take the oath of office and may then administer the oath to other elected or appointed officials.  The Township Secretary must keep on file a copy of the oath or affirmation of each official.

Establish bond amounts for your bonded public officials.

The Township Treasurer and Manager must be bonded.  The bonds should be set each year at reorganization.  Depository banks should also be set at the meeting.

Have your appointments list, wages and fees ready for approval.

All municipal appointments for the coming year should be made at the reorganization meeting.  These can be done individually with a motion on each appointment or as one resolution or motion with a list of appointments attached to the minutes.  Wages must also be set each year by resolution or motion if not previously included in or set by the adopted budget.  A comprehensive schedule of fees should also be approved each year.  If your municipality has a policy to allow Supervisors to participate in insurance plans, remember that a Supervisor wishing to participate must submit a written letter requesting enrollment prior to the start of a new term or else they must wait until the next term to participate.

Know what to do if there is a contested election for your chairman.

There is no legally-required method to run a meeting.  Most municipalities try to follow Robert Rules of Order.  The first order of business at each reorganization meeting must always be the election of a chairman.  The meeting may be called to order by the Township Manager or Solicitor who can then take nominations for a temporary Chairman who must be from the Board of Supervisors.  Once elected, the temporary Chairman can take nominations for Chairman.  Nominations do not require a second.  Once all nominations are received, the Chairman should conduct a vote on each nominee in order received until a nominee receives a majority of votes.  A nominee may vote for himself or herself.  Once a Chairman is elected, the Chairman takes the gavel and will lead the meeting, including the election of the Vice-Chairman, Secretary and Treasurer.   A five-member Board may also wish to elect a President Pro Tem who would be third in line to chair a meeting if the Chairman and Vice-Chairman are both absent.

PSATS publishes an annual cheat sheet for reorganization meetings, which you may find helpful as well.

If you have other specific questions about reorganization, please don’t hesitate to call (717-845-1524) or email James Sanders, (jsanders@mpl-law.com), Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) with any questions or comments.

HB 2104 – Proposed Rules for Decommissioning Alternate Energy Facilities

On November 23, 2021 13 Pennsylvania House members introduced HB 2104 to regulate the decommissioning of all alternative energy facilities in Pennsylvania. The bill was immediately referred to the House Committee on Environmental Resources and Energy for consideration. This bill is clearly a first draft, with many details to be filled in, as we will discuss.

The bill’s purpose is to provide state-wide standards for the removal (decommissioning) of alternative energy facilities (AEFs), defined as solar or wind energy facilities, and the amount, form and timing of financial assurance that must be provided by the owner of an AEF on leased property (referred as a grantee) for decommissioning. The Pennsylvania Department of Environmental Protection (DEP) is the agency designated to implement the bill. The bill requires all AEF agreements to provide that the grantee is responsible for decommissioning within 18 months after the AEF has ceased producing electricity, unless actively working to recommence electricity production after a disruption, such as a natural disaster.

The bill requires that a grantee provide a decommissioning plan (DP) and proof of financial assurance (e.g. a bond or an escrow account) from a licensed banking institution or credit union. Interestingly, the bill designates each county’s recorder of deeds (Recorder) as the agency with which the DPs and the financial assurances are filed. The decommissioning cost shall be determined by a third-party licensed professional engineer (PE), and must be at least $10,000 per megawatt as measured by “nominal nameplate capacity” for an AEF. At least thirty days before construction begins, the grantee must provide the Recorder with the DP and “proof of financial assurance” of 20% of the cost of decommission as determined by the PE. Every five years an updated DP must be filed with the Recorder, along with proof of financial assurance for an additional 20% of the decommissioning cost. Thus, in year five, the financial assurance would be 40%, 60% in year 10, 80% in year 15, and 100% in year 20.

The bill requires DEP to create temporary regulations “in consultation with the AEF industry” creating a provisional form for a decommissioning plan and financial assurance. Per bill, to facilitate prompt implementation, such regulations are temporary regulations, exempt from the usual regulatory review process, specifically the requirements for:  public notice; receipt and consideration of public comments; approval of their legality by the Attorney General; and review by the state’s Independent Regulatory Review Commission. In short, the temporary regulations would be adopted by DEP without stakeholder input (except that DEP would “consult with” the AEF industry, but not be bound by their suggestions), or any other review or oversight. Likely, this would limit, if not preclude, challenges to the temporary regulations. The temporary regulations would remain in full force until permanent regulations following all of the required reviews take effect, and there is no timeline for that to happen (the bill says upon approval or two years, “whichever is later”). Thus, if the final regulations take more than two years, then the temporary regulations could go on indefinitely. Past history does not instill confidence that the state will act within two years.

The DP forms DPs must include the financial assurance, and (unless the property owner agrees on an “alternative condition for restoring the property”):  the removal of all equipment, conduits, structures, fencing, and foundations down to at least three feet below grade and graveled areas and access roads (unless the property owner requests that they remain); restoration of the property to a “condition reasonably similar” to the property’s condition before construction, including “the replacement of topsoil removed or eroded on previously productive agricultural land”, and the reseeding of “a cleared area” (unless the owner requested not to reseed for agricultural reasons). The DP filed on or before year twenty shall include an estimate of materials that will be salvaged, recycled, refurbished, or disposed of in a landfill (which is capped at 20% of the total combined mass). Most elements of an AEF, except cement support structures, are included in this calculation.

The bill exempts nonutility owners or operators of net-metered distributed generation systems with nameplate capacity of not greater than 3,000 kilowatts, and owners or operators of farms who own and operate an AEF on the farm premises, regardless of location or consumption of the energy generated.

The good news for municipalities is that there is little that they must do. They must presumably assure that the DP and financial assurance are in place before issuing a construction permit, and counties, municipalities, or other local governments are precluded from passing or enforcing any “ordinance/regulation that “materially impedes” the purposes of the Chapter, whatever that means.

There are other issues with the current bill. First, there are no penalty or enforcement provisions to assure compliance. Second, there is no provision for who will hold the financial security. The bill requires that the DP, including the financial assurances, be filed with the county Recorder, but does not seem to require that the actual bond or escrow agreement be filed with them. (And do we really want them to hold those documents or funds for 20 years? It is a safe bet that they will not want to do so.) Who would keep those? Third, our experience with any requirements that stretch over many years is that they often fall between the cracks. Who will assure that the 5-, 10-, 15-, and 20-year updates are done? Fourth, the bill is unclear about when the financial assurance is posted. According to one section, the decommissioning costs would not be fully funded until year 20. What happens if the grantee stops operation before then, when the plan is not yet fully funded?

It appears that this bill is an opening gambit, and that if it moves forward much of it certainly will change significantly. However, any interested parties should keep an ear to the ground.

For any other questions related (or unrelated) to decommissioning or solar farm development, please don’t hesitate to email Andy Miller (amiller@mpl-law.com), Cory Dillinger (cdillinger@mpl-law.com) or anyone in our office with questions or comments.

Author: Andy Miller

Don’t Get Stuck in the Sewer, File a Municipal Lien Claim!

Municipal liens can be a powerful tool to not only recoup on unnecessary municipal expenses, but also to dissuade frequent offenders of municipal ordinances from doing so in the future. Once a municipality creates a rigid process to deal with these types of claims, they can be filed quickly with little to no additional expense incurred by the municipality. Before your municipality jumps head first into this process, here are some items to consider:

What is a Municipal Lien Claim?

A municipal lien claim is a municipality’s answer for a delinquent resident. If a resident has failed to pay water, sewer, or trash rates, or has failed to properly maintain their property in conformity with the municipality’s zoning ordinance (and that municipality has incurred a loss maintaining their property as a result), a municipality may file a claim for these losses in the court of common pleas of the county in which the property is located. A claim for municipal improvements must be filed within six (6) months of when the improvements were finished, otherwise, these claims must be filed within three (3) years.

Confirm property details

A municipality does not want to go through the time and effort in filing this type of claim, if their pleadings will be defective. Double-check the property owner details by checking deeds if necessary. Confirm property owner’s contact information for future notices. The municipality can streamline this entire process by obtaining correct property owner information early on.

Confirm that written notice of intention to file a municipal claim has been properly sent to the property owner

A municipality cannot file a municipal lien claim without affording the property owner a chance to rectify their violation. The municipality, at least one month before the claim is filed, must serve a written notice of their intention to file a municipal lien claim upon the property owner.

Determine if your municipality’s ordinance provides for a schedule of attorney’s fees

In the event that there is a challenge to the reasonableness of the attorney’s fees, a court, among other things, will take into account an established schedule of attorney’s fees. A municipality may not want to file a municipal lien for an amount less than what they will pay their attorney’s to properly file that lien.

Contact a law firm to file the municipal lien claim and all other mandatory notices

At this stage, the municipality has done everything they are able to do. As long as the municipality has documented the above-mentioned information, they should forward this information and contact a firm with experience in filing these types of claims.

Our firm has filed hundreds of municipal lien claims on behalf of municipalities across Central Pennsylvania. If you have any questions concerning these types of claims, or anything else, don’t hesitate to email Andy Miller (amiller@mpl-law.com), Douglas Myers (dmyers@mpl-law.com), Cory Dillinger (cdillinger@mpl-law.com) or anyone in our office with questions or comments.

Author: Cory Dillinger