Subchapter C. BLUFF RECESSION HAZARD AREAS SETBACK REQUIREMENTS

§ 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).