§ 85.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act—The act of May 13, 1980 (No. 1980-48) (32 P. S. § §  5201—5215).

   Bluff—A high bank or bold headland with a broad precipitous cliff face overlooking a lake.

   Bluff line—The edge or crest of the bluff.

   Bluff recession—The loss of material along the bluff face caused by the direct or indirect action by one or a combination of groundwater seepage, water currents, wind generated water waves or high water levels.

   Bluff recession hazard area—An area or zone where the rate of progressive bluff recession creates a substantial threat to the safety or stability of nearby existing or future structures or utility facilities.

   Bluff setback ordinance and regulations—Building codes, zoning ordinances, subdivision regulations, health regulations, special purpose ordinances and other applications of the police power, which provide standards for the location of structures and facilities in bluff recession hazard areas.

   Department—The Department of Environmental Protection of the Commonwealth.

   Development—Development shall be defined as follows:

     (i)   The improvement of one lot or two or more contiguous lots, tracts, or parcels of land for any purpose including, but not limited to one of the following:

       (A)   A group of two or more buildings.

       (B)   The division or allocation of land or space between or among two or more existing or prospective occupants by means of or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features.

     (ii)   A subdivision of land.

   High bank—A bank over 5 feet high.

   Lake—A body of fresh water covering at least 9,000 square miles.

   Market value—The value of a structure determined by a certified appraisal or by determining the assessed value of a structure and applying the assessment ratio of the county in which the structure is located.

   Minimum bluff setback distances—The shortest horizontal distance from a point on the bluff line to a point on a structure.

   Municipality—A county, city, borough, town or township or any other governmental unit when acting as an agent thereof or any combination thereof acting jointly.

   Parcel—A piece of ground that existed as an independent tax lot on the records of the county prior to its inclusion in designated bluff recession hazard areas of a municipality.

   Persons—An individual, partnership, public or private association or corporation, firm, trust estate, municipality, governmental unit, public utility or other legal entity which is recognized by law as the subject of rights and duties. When used in a section prescribing or imposing a penalty, the term shall include members of a partnership; a corporation but shall exclude any department, board, bureau or agency of the Commonwealth.

   Plat—A map, drawing or print accurately drawn to scale showing the proposed or existing the Commonwealth.

   Structure—A man made object having an ascertainable stationary location on or in land whether or not affixed to the land; structures are classified into three categories residential, commercial and light and heavy industrial.

     (i)   Residential structures are defined as a place providing habitation for an individual or group of individuals. Structures in this category include, but are not limited to single family homes, duplexes and summer cottages as well as any secondary structure associated with the residential structure.

     (ii)   Commercial structures are defined as a place where commodities are exchanged, bought or sold. Structures in this category include, but are not limited to grocery stores, hardware stores, clothing shops and pharmacies as well as any secondary structure that is associated with the commercial structure.

     (iii)   Light and heavy industrial structures are defined as a place where materials are refined, produced or fabricated and stored prior to shipment to commercial establishments. Structures in this category include but are not limited to factories, power plants and warehouses, as well as a secondary structure that is associated with the industrial structure. Hospitals, nursing homes, schools and other public service facilities, because of the dangers inherent in bluff recession, will for purposes of setback requirements be considered light and heavy industrial structures.

   Structure life span—The useful life of the structure considering both economic and physical factors.

   Substantial improvement—Substantial improvement shall be defined as follows:

     (i)   A repair, reconstruction, or improvement of a structure the cost of which equals or exceeds 50% of the market value of the structure either:

       (A)   Before the improvement or repair is started.

       (B)   If the structure has been damaged and is being restored, before the damage occurred.

     (ii)   Repair, reconstruction, or improvement of a structure occurring over a 5 year period, the aggregate cost of which equals or exceeds 50% of the market value of the structure either:

       (A)   Before the first improvement or repair is started.

       (B)   If the structure has been damaged and is being restored, before the damage occurred.

 The basic purposes of the act and this chapter are as follows:

   (1)  Encourage planning and development in bluff areas which is consistent with sound land use practices.

   (2)  Protect people and property in bluff areas from the dangers and damages associated with the inevitable recession of bluffs.

   (3)  Prevent and eliminate urban and rural blight which results from the damages of bluff erosion and recession.

   (4)  Minimize the expenditure of public and private funds for shoreline protection and bluff stabilization structures and activities.

   (5)  Authorize a comprehensive and coordinated program to regulate development activities through the use of setback ordinances in bluff recession hazard areas to preserve and restore the natural ecological systems, and to prevent continuing destruction of property and structures.

 A municipality that fails to adopt and submit a bluff setback ordinance and regulations or fails to properly administer this chapter will be found in violation of the act and will be subject to the sanctions provided for in the act. A person who violates the provisions of the act or this chapter shall be subject to the sanctions provided for in the act.

Subchapter B. PROCEDURE FOR DESIGNATION OF AREAS WITH BLUFF RECESSION HAZARDS

Sec.

§ 85.11. General requirements.

 (a)  Under section 4 of the act (32 P. S. §  5204), studies will be conducted when necessary to identify bluff recession hazard areas in this Commonwealth. Studies prepared for these purposes shall do all of the following:

   (1)  Identify the geographic location of the potential hazard area; county, township, and so forth.

   (2)  Define and evaluate the bluff recession hazard in relation to geophysical processes such as recession and erosion related phenomena and examine the causative factors.

   (3)  Review and evaluate existing and potential damage to property and structures caused by progressive bluff recession.

   (4)  Develop a recession rate based on historical evidence.

   (5)  Develop conclusions and recommendations based on the findings of the studies.

 Following completion of the study, the Department will, by certified letter, notify the governing body of the municipality that it has been tentatively designated as possessing a bluff recession hazard area. The letter shall contain all of the following information:

   (1)  The geographic location of the hazard area.

   (2)  A summary of the findings of the study by the Department.

   (3)  The historic recession rate and the process used to calculate this rate.

   (4)  The minimum bluff setback distances that will be required by the Department.

   (5)  A request for comments from the municipality concerning the tentative designation and setback distances.

   (6)  Specification of the time limits for comment.

   (7)  Notice that a public hearing will be held concerning the designation of bluff recession hazard areas by the Environmental Quality Board prior to formal designation.

 (a)  When the Department receives comments from a tentatively designated municipality, it will prepare and transmit to the Environmental Quality Board a request for formal designation of the bluff recession hazard area of the municipality and the establishment of bluff setback distances in the bluff recession hazard area. The request will contain, at a minimum, all of the following:

   (1)  The findings of the Department concerning the location and deter- mination of the bluff recession hazard area in the municipality.

   (2)  The nature of the existing and potential damage to property and structures.

   (3)  All comments received from the affected municipality.

   (4)  A recommendation, incorporating consideration of the comments received from the municipality, that the area be designated as a bluff recession hazard area and subject to Subchapter D (relating to municipal bluff setback ordinance and regulations).

 (b)  In the event a municipality disagrees with the letter of the Department tentatively designating it as possessing a bluff recession area and the required setback distances and has not submitted comments acceptable to the Department, the appropriate representatives of the Department will contact and offer to meet with representatives of the municipality to review, discuss, and attempt to resolve the differences. This meeting will be held within 30 days from the date of the letter received from the municipality.

 (c)  In the event a municipality fails to comment within the time prescribed in §  85.13(6) (relating to Department notification to municipalities), the Department will assume the municipality is in agreement and will note that municipality provided no comment concerning the designation and the required setback distance within the allotted time.

 (d)  Following transmittal of the request by the Department to the Environmental Quality Board, the Environmental Quality Board will give public notice and hold public hearings on the request to formally designate areas within municipalities as bluff recession hazard areas.

 (e)  Following public hearings, the Department will consider the comments received at the public hearing and make appropriate revisions to the request and resubmit it to the Environmental Quality Board for final action. Following an affirmative action by the Environmental Quality Board, the Department will notify the municipality that it must within 6 months comply with the act and this chapter.

   This section cited in 25 Pa. Code §  85.26 (relating to designated municipalities and minimum bluff setback distances for identified categories of structures).

Subchapter C. BLUFF RECESSION HAZARD AREAS SETBACK REQUIREMENTS

Sec.

§ 85.21. General requirements.

 (a)  The Department will develop minimum bluff setback distances for each municipality tentatively designated as having a bluff recession hazard area by applying the following formula:

 (b)  When the Department receives the completed application, it will review the application based on the criteria for a variance pursuant to §  85.37(4) (relating to contents of ordinance and regulations submitted by municipality) within 45 days, and send a certified letter to the applicant approving or disapproving the variance. A copy of this letter will be sent to the municipality for its permanent record. If the Department does not take action regarding the application within 45 days, the application will be deemed approved.

   (1)  The rate of bluff recession is the average annual rate of recession for all the municipality’s bluff as calculated by the Department.

   (2)  The appropriate life span of structure is 50 years for residential homes, 75 years for commercial structures, and 100 years for light and heavy industrial structures.

 (c)  In no case shall the minimum bluff setback distance be less than 50 feet. When use of the formula identified in subsection (a) would produce a minimum bluff setback distance of less than 50 feet, the formula shall not apply and 50 feet shall be the minimum bluff setback distance.

 A minimum bluff setback distance for a municipality may be modified upon presentation of formal studies acceptable to the Department documenting annual recession rates at variance with the recession rate data of the Department. Upon Department review and acceptance of the data as accurate and compatible with the objectives of the act, a new minimum bluff setback distance will be calculated. The Department will request the Environmental Quality Board to amend the designation in accordance with this subchapter concerning the minimum bluff setback distances.

 In any bluff recession hazard area, no person shall construct, install or engage in substantial improvement to any structure or any utility facility such as water, sewage, electric, gas, oil or telephone within the minimum bluff setback distances established under §  85.22 (relating to methods of determining minimum bluff setback distances) except as provided under §  85.25 (relating to variances granted by the Department) or §  85.37(4) (relating to contents of ordinance and regulations submitted by municipality).

 (a)  Under §  85.15 (relating to Department notification to the Quality Board), the municipalities identified in subsection (c) have been designated as possessing a bluff recession hazard area.

 (b)  The municipalities designated in subsection (c) are required to adopt and implement a bluff setback ordinance and regulations which incorporate the bluff setback distances listed in subsection (c).

 (c)  Designated municipalities and setback distances in feet.

   Environmental Quality Board Regulations

   The Bluff Recession and Setback Act and regulations promulgated by the Environmental Quality Board contain substantive provisions governing bluff setbacks and variances from those setbacks; therefore, variances contained in the Municipalities Planning Code were not applicable to amusement park’s request for variance from setback requirements of township’s bluff setback ordinance. Candela v. Millcreek Township Zoning Hearing Board, 887 A.2d 335, 340 (Pa. Cmwlth. 2005).

Subchapter D. MUNICIPAL BLUFF SETBACK ORDINANCE
AND REGULATIONS

Sec.

 A municipality in developing a bluff setback ordinance may use an existing ordinance and regulations, amend an existing ordinance and regulations, or develop a new ordinance and regulations.

   (1)  When an existing ordinance and regulations are utilized, the municipality shall forward one copy of the proposed ordinance and regulations to the Department along with comments on how the ordinance and regulations meet the requirements of the act and this chapter.

   (2)  When an existing ordinance and regulations are amended to meet the requirements of the act, the municipality shall forward one copy of the ordinance and regulations and amendments to the Department along with comments on how the proposed amendment of the ordinance and regulations meet the requirements of the act and this chapter.

 The ordinance and regulations submitted by a municipality to the Department shall include at a minimum the following components:

   (1)  A setback ordinance and regulations shall meet the minimum requirements and contain a minimum setback distance for each class of structure under this chapter.

   (2)  The municipality shall provide a mechanism for permitting all proposed construction, installation, or substantial improvement of structures, or utility facilities such as water, sewage, electric, gas and telephone facilities in designated bluff recession hazard areas. This bluff setback permitting process may be incorporated into any existing permitting process administered by a municipal building code or zoning officer. At the request of the municipality, the Department will provide assistance to the municipality in developing this procedure.

   (3)  A municipality shall provide a procedure, as a part of the ordinance and regulations, that enables monitoring of substantial improvements to structures bisected by or within the bluff setback distance. The procedure must ascertain the market value of the property prior to the first improvement and document subsequent improvements to the structure to ensure that they do not exceed 50% of the market value for a consecutive 5-year period. At the request of the municipality, the Department will provide assistance to the municipality in developing this procedure.

   (4)  The municipality shall provide a variance to its bluff setback ordinance and regulations only in the following cases:

     (i)   When a parcel established prior to a bluff recession hazard area designated does not have adequate depth considering the minimum bluff setback requirements to provide for any reasonable use of the land, a variance may be applied for. The variance shall be authorized when the following standards and criteria are met:

       (A)   The structure and all associated structures and utilities facilities shall be located on the property as far landward of the bluff line as allowed by other municipal ordinances.

       (B)   The structure shall be designed and constructed to be movable. Construction activities shall meet the minimum erosion and sediment control practices established by Chapter 102 (relating to erosion and sediment control) and reflect guidance contained in municipal stormwater ordinances or county watershed stormwater management plans. All construction materials, including foundations, shall be removed and disposed of in accordance with Chapter 75 (Reserved) as part of the moving operation. Access to and from the structure shall be of sufficient width and acceptable grade to allow for moving of the structure.

     (ii)   When a proposed structure or utility facility requires access to the body of water and there is no feasible alternative for obtaining such access, a variance may be applied for. The variance shall be authorized only when the following standards and criteria are met:

       (A)   The variance may be granted only for bluff recession control devices designed to reduce bluff recession; water withdrawal lines or discharge lines; power cables; natural gas or oil pipelines; or communication cables; or other public service lines which require access through the bluff recession hazard area to the body of water.

       (B)   To achieve adequate protection of the bluff, the construction activity shall occur in a manner that minimizes potential short term and long term disruption of the bluff recession hazard area, shall be in conformance with Chapter 102 and shall reflect guidance contained in municipal stormwater ordinances or county watershed stormwater management plans.

       (C)   To help ensure that increased turbidity levels on the lake are not caused, all construction activities shall comply with the erosion and sedimentation control practices established by Chapter 102.

       (D)   The area of the construction site shall be reestablished to ensure that subsequent erosion will not damage the structure or harm the environment or adjacent properties.

   (5)  The municipality shall provide a procedure to amend municipal setback ordinances. The Department will, at the request of the affected municipality, provide assistance in incorporating revisions to this chapter into the municipal ordinance and regulations.

   (6)  The municipality shall provide an administrative procedure for maintaining records of all correspondence, applications for permits, and issuance and denial of such permits. The Department will assist if requested. On February 28 of each year, a copy of the records from the preceding calendar year shall be submitted to the Department for its review and permanent record. This procedure shall require that all necessary records include the name and address of the applicant and the location and description for the following activities:

     (i)   Construction, installation or engagement in any substantial improvement to structures affected by the minimum bluff setback distance including the information collected as a result of the monitoring procedure established in paragraph (3).

     (ii)   Improvement projects for an existing structure located within the minimum bluff setback distance.

     (iii)   Variances granted by the municipality in bluff recession hazard areas.

   (7)  The municipality has alerted and shall continue to alert permit applicants, when permits are granted, that the bluff setback requirements are at best a minimum distance and, because of variations in local bluff recession rates, cannot guarantee that a structure located in a bluff recession hazard area will not be endangered by bluff recession within its useful life span.

   The provisions of the §  85.37 issued under section 5 of the Bluff Recession and Setback Act (32 P. S. §  5205).

   The provisions of this §  85.37 amended March 30, 1984, effective March 31, 1984, 14 Pa.B. 1080. Immediately preceding text appears at serial pages (53923) to (53925).

   This section cited in 25 Pa. Code §  85.22 (relating to methods of determining minimum bluff setback distances); 25 Pa. Code §  85.24 (relating to activities within a bluff recession hazard area); 25 Pa. Code §  85.32 (relating to time limit for municipal adoption of bluff setback ordinance and regulations); and 25 Pa. Code §  85.42 (relating to Department review and approval of a municipality setback ordinance and regulations).

Subchapter E. DEPARTMENT OVERSIGHT OF MUNICIPAL COMPLIANCE

Sec.

§ 85.41. General requirements.

 (a)  The Department will, within 90 days of receiving a written request to approve a bluff setback ordinance and regulations of a municipality, review the proposal pursuant to the requirements contained in §  85.37 (relating to contents of ordinance and regulation submitted by municipality).

 (b)  The Department will, upon ascertaining that the proposed bluff setback ordinance and regulations meet the minimum requirements set forth in §  85.37 (relating to contents of ordinance and regulations submitted by municipality), notify the municipality by certified letter of the approval of the ordinance and regulations.

 (c)  Should the Department fail to respond within the allotted 90 day time limit, the ordinance and regulations shall be deemed to be approved, and the municipality shall use such ordinance and regulations to enforce the provisions of the act.

 (d)  Should the Department, during the review of the proposed ordinance and regulations, find that the ordinance and regulations do not meet the minimum requirements of this chapter, the Department will disapprove the ordinance and regulations and will notify the municipality. The letter will contain the reasons for disapproval and suggestions for correcting the problem. Upon receipt of this letter, the municipality shall have 30 days to correct the problem and resubmit the proposed ordinance and regulations. If the municipality disagrees with the findings of the Department, the municipality may appeal the decision of the Department under the procedures in this chapter.

 (a)  The Department will review the implementation and administration of the municipal bluff setback ordinance and regulations at least once a year to assure coordinated and consistent enforcement of its bluff setback ordinance and regulations. The review will occur on a date and location mutually agreed upon by the representative of the Department and the appropriate municipal officials.

 (b)  If the Department finds that a municipality has failed to implement and enforce in a consistent and effective manner the bluff setback ordinance and regulations required by the act and this chapter, then the municipality shall be subject to the sanctions provided in the act. The municipality will be deemed to have implemented and enforced in a consistent and effective manner the bluff setback ordinance and regulations when in any area designated as having a bluff recession hazard no person shall have constructed, installed, or engaged in a substantial improvement to any structure, or any utility facility in violation of the bluff setback requirements established under the act and this chapter.

 The Department and all municipalities designated as having a bluff recession hazard area are still subject to requirements of other environmental protection programs. These programs include but are not limited to erosion and sedimentation control, water obstruction, clean water, sewage treatment facilities, gas well drilling, stormwater management and floodplain management.

Subchapter F. GRANTS AND REIMBURSEMENTS TO MUNICIPALITIES

Sec.

§ 85.51. General requirements.

 Grants shall be available from the Department to municipalities to reimburse them for allowable costs incurred in complying with the requirements of the act. Grants shall be limited to:

   (1)  Seventy-five percent of the costs incurred for the development and implementation of a bluff setback ordinance and regulations required by this chapter as well as 75% for the costs incurred by a municipality in revising a setback ordinance and regulations established prior to the act to comply with this chapter.

   (2)  Fifty percent of the allowable costs for the ongoing administration of an ordinance incurred by a municipality. Allowable costs for administration of bluff setback ordinance shall not include those costs which are offset by reasonable permit fees imposed by the municipality.

 (a)  All applications for grants shall be made on forms provided by and in a manner prescribed by the Department and shall contain and be supplemented with such information as may be required by the Department.

 (a)  Municipalities shall maintain books, records, documents, correspondence and other evidence pertaining to the costs and expenses incurred under §  85.52 (relating to limitation of grants and reimbursements) to the extent and in such detail as will properly reflect all costs, direct and indirect, of labor, materials, equipment, supplies and services, and other costs and expenses of whatever nature for which funding has been provided under the grant. Such records shall be maintained in accordance with generally accepted accounting principles. A detailed explanation of the accounting procedures and types of records are contained in the ‘‘Manual of Accounting and Related Financial Procedures for Pennsylvania Municipalities,’’ published and distributed by the Department of Community Affairs, Forum Building, Harrisburg, Pennsylvania 17120.

 (b)  A municipality shall maintain accounting records and supporting documentation which identify all revenue and costs from the effective date to expiration date of the grant. As a minimum, the following books of account shall be used:

   (1)  Cash receipts journal.

   (2)  Cash disbursement journal.

   (3)  Payroll journal.

   (4)  General journal.

 (c)  In the event a municipality records transactions by the accrual method of accounting, additional records shall be required.

 (d)  The following documentation should be retained in file:

   (1)  Copies of revenue documents.

   (2)  Original vendor invoices.

   (3)  Payroll records.

   (4)  Cancelled checks.

   (5)  Worksheets used to prepare grant reports and other related grant information. All records should be retained for a period of three years from the grant expiration date or until all pending matters are resolved.

Subchapter G. APPEALS

Sec.

§ 85.61. Appeals.

 (a)  A person or municipality aggrieved by an action of the Department shall have the right within 30 days of the receipt of the notice of such action to appeal such action to the Environmental Hearing Board, under 2 Pa.C.S. § §  501—508 and 701—704.

 (b)  An appeal of an action under the act shall not act as a supersedeas. A supersedeas may be granted by the Environmental Hearing Board upon a showing by the petitioner:

   (1)  that irreparable harm to the petitioner or other interested parties will result if supersedeas is denied.

   (2)  That there is a likelihood of the success of the petitioner on the merits.

   (3)  That the grant of a supersedeas will not result in irreparable harm to the Commonwealth.