Borough of West Chester, PA Article X Administration and Enforcement

§ 112-1001 Zoning Officer.

There shall be a Zoning Officer who shall be appointed by the Borough Council and may not hold any elected office in the Borough. The Zoning Officer's duties shall include but not be limited to the following:

A. To enforce all provisions of this chapter and all amendments thereto.

B. To receive and examine all applications and permits required by this chapter and issue permits only for any use which is addressed in this chapter.

C. To refer applications for special exceptions to the Zoning Hearing Board.

D. To issue permits for construction of structures or uses requiring a special exception or variance only upon order of the Zoning Hearing Board. Permits requiring approval by the Borough Council, such as conditional use approval, shall be issued only after authorization from the Borough Council.

E. To receive applications for interpretation appeals and variances and forward these applications to the Zoning Hearing Board for action thereon.

F. To conduct inspections and surveys to determine compliance or noncompliance with the terms of this chapter.

G. To issue stop and cease-and-desist orders and order, in writing, correction of all conditions found to be in violation of the provisions of this chapter. Such written orders shall be served personally or by certified mail upon persons, firms or corporations deemed by the Zoning Officer to be violating the terms of this chapter. It shall be unlawful for any person to violate any such order lawfully issued by the Zoning Officer, and any person violating such order shall be guilty of a violation of this chapter.

H. To keep an official record of all business and activities, including complaints of a violation of any of the provisions of this chapter and of the subsequent action taken on each such complaint.

I. To maintain or cause to have maintained a map or maps showing the current zoning classification of all land in the Borough.

J. To approve a reasonable accommodation for handicapped persons pursuant to the provisions of the Federal Fair Housing Act.[1]

[1] Editor's Note: See 42 U.S.C. § 3601 et seq.

K. To issue use and occupancy permits in accordance with the terms of this article.

L. To communicate as necessary with the Borough Department of Building, Housing and Codes Enforcement and other Borough Departments to assure all required permits and approvals have been obtained and all fees have been paid prior to commencement of any use, land disturbance, construction or activity regulated by this chapter.

§ 112-1002 Building permit required.

A. A building permit shall be obtained from the Borough Department of Building, Housing and Codes Enforcement in accordance with Chapter 43, Building Construction. No building permit shall be issued until the Pennsylvania Department of Labor and Industry issues a permit for commercial uses, industrial uses, places of public assembly and other uses if and as required by the state.

B. It shall be unlawful for any person to commence construction and/or uses until a building permit has been duly issued and the applicant has complied with and obtained all permits required by Chapter 43, Building Construction.

C. After completion of construction in accordance with an issued building permit, it shall be unlawful for any person to occupy any building or structure until a use and occupancy permit has been issued in accordance with Chapter 43, Building Construction.

D. The Zoning Officer shall refuse to issue any permit and perform any inspection or other duty required by this article unless the applicant has complied with all applicable requirements of the Borough Code, regulations and policies.

E. Issuance of building permit; posting; notification of completion. In addition to any other requirements set forth by the Borough, the following shall apply: No building permit shall be issued until the Zoning Officer has certified that the proposed building, structure or alteration complies with the provisions of this chapter and other applicable codes, regulations and ordinances. A building permit, once issued, shall be posted on the property. Upon completion of the erection of, addition to or alteration of any building, structure or portion thereof authorized by any building permit obtained in compliance with this chapter and prior to use or occupancy, the holder of such permit shall notify the Zoning Officer of such completion.

§ 112-1003 Use and occupancy permit required.

It shall be unlawful for any person to use or occupy any building or other structure or land until a certificate of occupancy has been duly issued and, where applicable, a highway occupancy permit has been issued by the Pennsylvania Department of Transportation.

A use and occupancy permit shall be required prior to any of the following:

A. Use and occupancy of any building or other structure hereafter erected or altered for which a building permit is required.

B. Change in the use of any building or structure or any part thereof.

C. Use of land or change in the use thereof, except that the placing of vacant land under cultivation shall not require a use and occupancy permit.

D. Change in use or extension of a nonconforming use.

§ 112-1004 Fees.

A. The Borough Council shall establish, by resolution, a schedule of fees, charges and expenses and collection procedures for building permits, occupancy permits, sign permits, conditional uses, special exceptions, variances, validity challenges, curative amendments, petitions for a zoning change, appeals, parking demand review and other matters pertaining to this chapter. The Schedule of Fees shall be posted in the office of the Zoning Officer and may be altered or amended only by the Borough Council.

B. No action shall be taken on any application for any conditional use, special exception, variance, validity challenge, curative amendment, petition for a zoning change or appeal or other approval or permit until all application fees, charges and expenses have been paid in full.

C. The applicant shall reimburse the Borough for any fees of the Borough Engineer or other experts and consultants for reviews on applications for conditional use, petitions for zoning change, curative amendments, parking demand review and any other application or request that requires review and recommendations by Borough consultants.

§ 112-1005 Notice of violation.

A. If it appears to the Borough that a violation of any provision of this chapter or any amendment thereto, any detailed statement or a plan approved under the provisions of this chapter or any amendment thereto or any condition of a variance or special exception granted by the Zoning Hearing Board or of a conditional use granted by the Borough Council has occurred or is occurring, the Zoning Officer, his designated agent or other enforcement officer shall initiate enforcement proceedings by providing notice thereof to the owner of record of the parcel, to any person who has filed a written request to receive such a notice regarding that parcel and to any other person requested, in writing, by the owner of record of the parcel.

B. The enforcement notice shall state at least the following:

(1) The name of the owner of record and any other person against whom the municipality intends to take action.

(2) The location of the property in violation.

(3) The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance.

(4) The date before which the steps for compliance must be commenced and the date before which the steps must be completed.

(5) That the recipient of the notice has the right to appeal to the Zoning Hearing Board or otherwise as prescribed herein within a prescribed period of time in accordance with procedures set forth in this chapter.

(6) That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board or otherwise as provided in this chapter, constitutes a violation, with possible sanctions clearly described.

§ 112-1006 Violations and penalties.

Any person who has violated or permitted the violation of the provisions of this chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced hereunder, pay a judgment of not more than $500, plus all court costs, including reasonable attorney's fees incurred by the Borough as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the District Justice. In the event that any such person against whom a judgment has been rendered by the District Justice neither pays nor timely appeals the judgment, the Borough may enforce the judgment pursuant to the applicable Pennsylvania Rules of Civil Procedure. Each day that a violation continues shall constitute a separate violation, unless the District Justice determining that there has been a violation further determines that there was a good faith basis for such person violating this chapter to have believed that there was no such violation. In that latter event, there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the District Justice, and, thereafter, each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney's fees collected for the violation of this chapter shall be paid over to the Borough.

§ 112-1007 Remedies.

In case any building, sign or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building, sign, structure or land is used or any hedge, tree, shrub or other growth is maintained in violation of this chapter or of any regulations pursuant thereto, in addition to other remedies provided by law, any appropriate action or proceeding, whether by legal process or otherwise, may be instituted or taken to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use; to restrain, correct or abate such violation; to prevent the occupancy of said building, structure or land; or to prevent any illegal act, conduct, business or use in or about such premises.

§ 112-1008 Criteria and procedures for conditional uses.

A. In evaluating an application to the Borough Council for a conditional use, the Council shall require the applicant to provide information to indicate that the standards and criteria have been met. The applicant shall submit a report which describes how the standards and criteria have actually been met or will be met to ensure that:

(1) The proposed use is consistent with the purpose of the chapter whereby it is permitted, the overall purpose of the zoning as contained in Article I and all applicable provisions of this chapter.

(2) The proposed use will satisfy all of the relevant provisions and requirements of the West Chester Subdivision and Land Development Ordinance[1] and any other applicable ordinance, code and/or regulation.

[1] Editor's Note: See Ch. 97, Subdivision and Land Development.

(3) The proposed use and its location are consistent with and responsible to the Comprehensive Plan and, in particular, to the plans for land use, circulation, community facilities and utilities.

(4) The proposed use will not adversely affect the health, safety, morals and general welfare of the Borough.

(5) The proposed land use is consistent with the nature of the land uses existing on any immediately adjacent properties and it will not detract from or cause harm to neighboring properties and will be maintained in a manner in keeping with the character of the neighborhood.

(6) The proposed use is located in an area or areas for which the lot is suited.

(7) The proposed use is consistent with the logical extension of public services and utilities, such as a public water and public sewer, and will not have a negative effect on the public services and utilities of the surrounding properties.

(8) Proposed construction will be consistent with good design principles and sound engineering and land development practices and is in keeping with the character of any existing quality construction within the neighborhood.

(9) The proposed use reflects an environmentally sensitive approach to land planning and design based on thorough site analysis and evaluation related to topography, soils, vegetation, hydrology, visual quality and related site conditions and characteristics.

(10) The proposed use will provide safe and adequate access to roads and public services, existing or proposed.

(a) For all conditional use applications, except those noted in 112-1008A(10)(g) below, the applicant shall demonstrate that the proposed conditional use will not adversely affect traffic flow and/or current traffic controls within the Borough by creating a level of service below that which is specified in this subsection.

(b) To minimize potential adverse conditions from the proposed conditional use, the level of service for all signalized intersections within a distance of 1,000 feet from the tract which is the subject of the conditional use application shall be a level of service of D or better. The level of service for all unsignalized intersections within a distance of 1,000 feet from the tract which is the subject of the conditional use application shall be a level of service of C or better. The term "level of service" and the categories thereof are used herein in accordance with the definitions or meanings ascribed thereto in the document entitled "Highway Capacity Manual, Transportation and Research Board," most recent edition.

(c) The determination of levels of service shall be made after an experienced transportation engineer/traffic consultant conducts a transportation impact study in accordance with the requirements in Code § 97-38.2.

(d) Signalized intersections showing a projected level of service E or F and volume-to-capacity (v/c) ratios equal to or greater than 1.0 shall be considered deficient, and specific recommendations for the elimination of these deficiencies shall be listed.

(e) Unsignalized intersections showing a projected level of service D, E or F shall be considered deficient and specific recommendations for the elimination of these deficiencies shall be listed.

(f) The listing of recommended improvements required by Subsection A(10)(d) and (e) above shall include but not be limited to the following elements: internal circulation design, site access location and design; external street and intersection design and improvements; pedestrian facilities and accommodations; public transportation availability; and traffic signal installation and operation, including signal timing.

(g) The requirements in § 112-1008A(10)(a) through (f) shall not apply to the following conditional use applications: adaptive reuse of a historic carriage house, wireless communications facilities, agricultural operations, public service facilities or fences and walls over six feet in height.

(11) The proposed use will provide for effective sanitation.

(12) The proposed use will create the required screening and landscaping as required in this chapter and the West Chester Subdivision and Land Development Ordinance.[2]

[2] Editor's Note: See Ch. 97, Subdivision and Land Development.

(13) The proposed use, as depicted in the plans for subdivision and/or land development, includes proposals for landscaping, in addition to that required as stated above, in areas such as the entrance, along property boundaries, in areas which are highly visible, such as along streets or sidewalks, and in other places where the use of trees, shrubs and ground covers would be functional and appropriate.

(14) The proposed use will be properly sited and not be disruptive to existing topography, streams and ponds, vegetation and other natural resources, especially within the areas subject to floodplain regulations of this chapter.

(15) The proposed use will provide for adequate off-street parking and loading.

(16) The proposed use will provide for adequate signage.

(17) The proposed use will provide for adequate environmental controls in accordance with Article V.

(18) A satisfactory impact assessment report is submitted for any proposed use subject to the provisions of Article IX.

(19) The proposed use can be adequately serviced by the type of water supply and sewage disposal system which is proposed.

(20) The proposed use will be developed using effective stormwater management techniques and soil erosion and sedimentation control techniques.

B. The Council may impose such conditions of approval as may be necessary to ensure compliance with any or all of the above standards as well as compliance with any other relevant ordinances, regulations and codes.

C. General procedures.

(1) In the case of an application for a conditional use, the Planning Commission shall perform a review and provide a report to the Borough Council concerning the grant of approval or disapproval of the proposed use.

(2) The Borough Council shall, in the case of an application for a conditional use, schedule a hearing for public review and comment. Such hearing shall be held within 60 days of the application for conditional use approval.

(3) Review and decision process for conditional use applications. The hearing shall be conducted by the Borough Council or the Council may appoint any member or an independent attorney as a hearing officer. The decision, or, where no decision is called for, the findings, shall be made by the Borough Council. However, the appellant or the applicant, as the case may be, in addition to the Borough, may, prior to the decision of the hearing, waive decision or findings by the Council and accept the decision or findings of the hearing officer as final. Hearings shall be conducted and concluded in accordance with the following regulations.

(a) Each hearing subsequent to the initial hearing shall be held within 45 days of the prior hearing, unless otherwise agreed by the applicant in writing or on the record.

(b) The applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing.

(c) The applicant shall be given at least seven hours of hearing time within that 100-day period, assuming that number of hours is required or requested.

(d) Protestants, if any, shall complete their case in opposition to the application within 100 days of the first hearing held after completion of the applicant's case-in-chief.

(e) The applicant may request additional hearings to complete his case-in-chief, provided protestants are given an equal number of additional hearings.

(f) Protestants may be given additional hearings to complete their opposition, provided the applicant is granted an equal number of additional hearings for rebuttal and both the applicant and the Borough give their written consent, or their consent is stated on the record.

(4) All notices shall be made or shall occur in conformance with § 112-1104B hereof.

(5) The Borough Council shall render a written decision or, when no decision is called for, make written findings on the conditional use application within 45 days after the last hearing before the Council. The date for the Council's decision may be extended by the applicant either on the record or in writing addressed to the Council. Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefor. Conclusions based upon this chapter, the Pennsylvania Municipalities Planning Code[3] or any rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found, and shall be mailed to the applicant and his attorney at the addresses listed on the application. If, after the conclusion of the public hearing(s), the application is amended or revised, the Council shall hold one or more public hearings thereon as may be necessary and shall issue a new decision thereon in conformance with the procedure established in this section.

[3] Editor's Note: See 53 P.S. § 10101 et seq.

(6) The President of Borough Council may issue subpoenas to compel attendance of witnesses and the production of relevant documents and papers, including witnesses and documents required by the parties.

(7) The parties to the hearing shall be the Borough, any person affected by the application who has made a timely appearance of record before the Borough Council and any other person, including civic or community organizations, permitted to appear by the Borough Council. All persons who wish to be considered parties must enter appearances in writing.

(8) The parties shall have the right to be represented by legal counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses.

(9) The Borough Council shall keep a stenographic record of the proceedings, and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.

(10) In the event of approval, should the applicant fail to obtain the necessary Borough approvals and permits within 12 months of notification or, having obtained the necessary approvals and permits, fail to commence work thereunder within six additional months, it shall be conclusively presumed that the applicant has waived, withdrawn or abandoned his appeal or application; and all provisions, conditional use(s) and permits granted to him shall be deemed automatically rescinded by the Borough Council. If the Borough Council finds that a good reason exists for the failure to comply with the time periods specified above, an extension may be granted.

(11) The grant of approval by the Borough Council for a conditional use shall in no way release the applicant from his obligation to comply with the applicable provisions of this chapter, the Subdivision and Land Development Ordinance[4] and any other applicable Borough, state and federal regulations.

[4] Editor's Note: See Ch. 97, Subdivision and Land Development.

(12) In the event that the Council fails to render a decision or fails to commence, conduct or complete the required hearing(s) as provided in this § 112-1008C, unless extended by the applicant either on the record or in writing, the decision shall be deemed to have been rendered in favor of the applicant. When a decision has been rendered in favor of the applicant because the Council failed to commence the hearings, complete the hearings, or render a decision as required by this section, the Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this section. If the Council shall fail to provide such notice, the applicant may do so. Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.