Twp. of Salem v. Miller Penn Dev., LLC, 142 A.3d 912 (Pa. Commw. Ct. 2016)
The nullum tempus doctrine applies when governments are enforcing strictly public rights. Where the nullum tempus doctrine applies, a municipality’s claim is not barred by the statute of limitations. Section 511 of the Pennsylvania Municipalities Planning Code (MPC) requires that developers bear the cost of correcting improperly installed improvements. Even though Section 511 of the MPC presumes the existence of a security instrument and refers to enforcement of improvements covered by a security instrument, municipalities have the right to recover the cost of improvements even where there is no security.
Developer obtained approval from the Township on a final plan for a residential development (Development). The plan included a street (Street) which ran through the Development, ending in a cul-de-sac. The Township did not require that Developer enter into a financial security agreement or post any form of security for the street improvements. After the Street was constructed, Developer and Township entered into a financial security agreement which required Developer to post financial security for improvements to ensure proper construction. The relevant subdivision and land development ordinance (SALDO) and the Township’s street ordinance (together, Road Ordinance) included certain construction requirements for roads in the Township. The Street deteriorated and, approximately eight years after its construction, Developer refused the Township’s request to repair the Street in accordance with the Road Ordinance. The Township filed an action against Developer seeking to compel Developer to post a bond and fix the defects in the Street. Developer argued the claim was barred by the statute of limitations. The matter eventually was appealed to the Commonwealth Court.
With respect to Developer’s claim, the Commonwealth Court considered the nullum tempus doctrine. The nullum tempus doctrine stands for the proposition that claims by government entities to enforce strictly public rights are not barred by a statute of limitations unless the statute specifically states otherwise. “For the nullum tempus doctrine to exempt a municipality from the statute of limitations, the municipality’s claims must both 1) accrue to the municipality in its governmental capacity and 2) seek to enforce an obligation imposed by law, as distinguished from one arising out of a voluntary agreement.”
In Developer’s case, the Township’s claim involved the Township’s obligations to its residents to ensure adequate and safe streets. This is a purely public purpose. Further, the Township’s claim was born in a statute. Section 509 of the MPC imposed a duty on the Township to require that developers complete public improvements in accordance with the relevant SALDO requirements. Section 511 of the MPC also requires that developers bear the cost of correcting improperly installed improvements. Even though Section 511 of the MPC presumes the existence of a security instrument and refers to enforcement of improvements covered by a security instrument, municipalities have the right under Section 511 of the MPC to recover the cost of improvements even where there is no security. Accordingly, the Township’s claim was not barred by any statute of limitations despite the claim arising more than eight years after the Street was constructed and the financial security agreement was entered into.
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