[HISTORY: Adopted by the Borough Council of the Borough of Kutztown 5-23-2005
by Ord. No. 16-2005.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 12, Code
Appeals Board, adopted 7-13-1999 by Ord. No. 9-1999.
A Code Appeals Board is hereby established for the purpose of hearing
appeals from permits issued, enforcement notices issued, determinations rendered
and for the purpose of hearing requests for modifications and waivers permitted
to be granted, all pursuant to the authority contained in certain ordinances,
codes and regulations of the Borough of Kutztown, including the Code of the
Borough of Kutztown, as amended from time to time, and all regulations issued
pursuant thereto, as is more fully provided hereinbelow in this article. The
aforesaid Code Appeals Board shall be known as the "Borough of Kutztown Code
Appeals Board" (hereinafter in this article the "Code Appeals Board").
The Code Appeals Board shall consist of five members, all of whom shall be residents of the Borough of Kutztown and shall be selected and appointed by the Borough Council of the Borough of Kutztown (hereinafter in this Chapter 12 referred to as the "Council") to serve in such position. The Council shall appoint two alternate members who shall be residents of the borough and who may be called by the Code Appeals Board Chairperson to hear appeals in the absence or disqualification of any member. All references in this § 12-2 to the Code Appeals Board members shall also be deemed to refer to Code Appeals Board alternate members, unless the context requires otherwise. The Code Appeals Board shall annually select one of its members to serve as Chairperson (hereinafter in this article the "Chairperson"), select one of its members to serve as Vice Chairperson (hereinafter in this article the "Vice Chairperson"), and select one of its members to serve as Secretary (hereinafter in this article the "Secretary").
A.
The initial term of all members of the Code Appeals Board
shall begin with their appointment and end as follows: one member for the
first five years; one member for four years; one member for three years; one
member for two years; and one member for one year. Thereafter, the terms of
office for members of the Code Appeals Board shall be five years.
B.
Vacancies on the Code Appeals Board, resulting from the
conclusion of a term of membership or the resignation, death or removal of
a member, shall be filled by the appointment and selection of a new member
by the Council. Members and alternates of the Code Appeals Board may be reappointed.
Alternate members of the Code Appeals Board shall be appointed for terms of
five years or until a successor has been appointed.
C.
Any member of the Code Appeals Board may be removed from
office by majority vote of the entire Council for failure to perform the duties
of such office.
Members of the Code Appeals Board shall serve as such without compensation.
A.
The Council shall employ and make available to the Code Appeals Board qualified persons to assist the Secretary and other officers of the Code Appeals Board, who shall appear at the meetings of the Code Appeals Board, shall keep minutes of the Code Appeals Board proceedings, votes, decisions and actions, as well as all dates, records and documents pertaining to the activities of the Code Appeals Board, as directed and authorized by the officers and solicitor of the Code Appeals Board. The Borough Code Office of the Borough of Kutztown established by Chapter 11 of the Kutztown Code, as amended and supplemented from time to time (hereinafter in this Chapter 12 referred to as the "Borough Code Office"), is hereby authorized to provide such clerical assistance to the Code Appeals Board, as and when needed.
B.
The Code Appeals Board shall obtain its own solicitor
to attend its meetings, provide legal advice and prepare decisions and orders
at the request of the Code Appeals Board, with the compensation of such solicitor
to be fixed annually by the Council and paid by the borough.
C.
The Code Appeals Board may, when it deems it appropriate,
provide for a stenographic record to be made of any hearing. If the Code Appeals
Board declines to provide for the making of a stenographic record of a hearing,
any party may do so at such party's expense and, in such event, shall
deliver a copy of any transcription thereof to the Secretary of the Code Appeals
Board.
A.
A quorum of the Code Appeals Board shall exist when at
least three members of the Code Appeals Board are present. Such quorum may
consist of regular and alternate members.
B.
The actions of the Code Appeals Board shall be determined
by the vote or other affirmative expression of a majority of its members present
at the time of the vote. All actions of the Code Appeals Board shall be certified
by the Chairperson or, in the Chairperson's absence, the Vice Chairperson
and attested to by its Secretary.
C.
No member of the Code Appeals Board shall participate
in any hearing or vote on any matter on which that member has a direct or
indirect personal or financial interest, or is engaged as a contractor, subcontractor
or professional consultant on the subject matter of the case at hand, or is
engaged in the preparation of plans and specifications, on the subject matter
of the case at hand.
D.
The Code Appeals Board shall conduct all public hearings
and administrative business, and all votes, at advertised public meetings,
in accordance with the Sunshine Law of the Commonwealth of Pennsylvania,[1] as amended from time to time, except the deliberations for the
purpose of considering an appeal, including the receipt of the advice of the
solicitor for the Code Appeals Board, may occur in executive session.
[1]
Editor's Note: See 65 Pa. C.S.A. § 101 et seq.
E.
The Code Appeals Board shall meet no less frequently
than monthly, except that the Chairperson may cancel such meeting if the Code
Appeals Board has no pending business at the time a meeting is scheduled.
The Code Appeals Board shall publish, no less frequently than annually, during
the month of December, a list of its regularly scheduled public meeting dates,
times and places for the ensuing 12 monthly meetings during the following
year.
A.
The Code Appeals Board shall have authority and jurisdiction to hear and decide appeals from notices of violations, determinations, orders or permits issued by the Code Enforcement Officer appointed by the Council pursuant to Chapter 11 of the Kutztown Code, as amended and supplemented, or such person's assistants or designees (hereinafter in this Chapter 12, individually and collectively, the "Code Enforcement Officer") and may hear and decide appeals from any notices of violations, determinations, orders and permits issued and from the effects of any rule or regulation adopted pursuant to the authority of any of the following codes, ordinances and regulations of the Borough of Kutztown (other than provisions thereof, if any, governed by the Pennsylvania Municipalities Planning Code, the Pennsylvania Uniform Construction Code,[1] or which are enforceable only by sworn police officers), and may hear and decide requests for modifications and waivers specifically permitted to be granted by the Code Appeals Board pursuant to the authority of any of the following codes, ordinances and regulations of the Borough of Kutztown; provided, in each case, that the appeal and/or request pertains to premises upon which no regulated unit (as defined in § 135-2A of Chapter 135 of the Kutztown Code and, in this chapter, a "regulated unit") is located:
(3)
The public health; nuisances regulations, being Chapter 168 of the Kutztown Code, as amended and supplemented from time to time;
(4)
The solid waste regulations, being Chapter 185 of the Kutztown Code, as amended and supplemented, from time to time;
(6)
The Property Maintenance Code of the Borough of Kutztown, being Chapter 136 of the Code of the Borough of Kutztown, as amended and supplemented, from time to time; and
(7)
Those provisions of any other ordinance, code and/or
regulation of the Borough of Kutztown, as amended from time to time, which
the Council shall hereafter specifically include within the authority and
jurisdiction of the Code Appeals Board, provided that the same shall at no
time include any code, ordinance or regulation which is subject to the requirements
of the Municipalities Planning Code of the Commonwealth of Pennsylvania, as
amended from time to time.
[1]
Editor's Note: See 53 P.S. § 10101 et seq. and 35 P.S.
§ 7210.101 et seq., respectively.
B.
All of the foregoing codes, ordinances and regulations shall be deemed to include any regulations, amendments, supplements, substitutions and revisions hereafter adopted as pertains to any of the above-described codes, ordinances and regulations (all of the foregoing codes, ordinances, regulations, amendments, supplements, substitutions and revisions, individually and collectively, when applied to the cases permitted by Subsection A above, the "CAB Jurisdictional Laws").
The Code Appeals Board shall utilize the following procedures and rules
in the course of considering and deciding upon the various appeals and requests
for modifications and waivers brought before the Code Appeals Board for a
decision:
A.
Right to file appeal; time limits; form; fee; transmittal.
(1)
Any person or entity being affected by the enforcement
and application of any of the CAB Jurisdictional Laws and having the right
to file an appeal under the authority of any of the CAB Jurisdictional Laws
may appeal to the Code Appeals Board any permit, notice, determination or
order issued or rule or regulation promulgated under the authority of the
CAB Jurisdictional Laws.
(2)
Time limits.
(a)
Any such appeal must be filed in writing in the Borough
Code Office within:
[1]
Twenty days of receipt by the appellant of such notice,
permit, determination or order;
[2]
If the time period for compliance with a notice, permit,
determination or order is less than 20 days, then such appeal must be filed
within the compliance period required by the CAB Jurisdictional Laws; or
[3]
Within 30 days after any such rule or regulation is issued.
(b)
Requests for modifications and waivers permitted to be
granted may be filed at any time, but shall, in all other respects, be subject
to the same procedures and rules as appeals.
(3)
Any such written appeal must be filed, in complete and proper form, with the Borough Code Office on a form of application for hearing to be provided by the Borough Code Office in accordance with the resolutions of the Council, as provided in § 12-12 of this chapter. Such form shall require the appellant to state:
(a)
The precise notices, permits, determinations, orders,
rules or regulations from which the appellant appeals, or the precise modification
or waiver, and legal authority therefor, which the appellant requests;
(b)
The reasons for such appeal or request, including any
legal and/or technical authority which the appellant believes supports the
appellant's appeal or request (without prejudice the appellant's
right to present further supporting authority at the time of hearing);
(c)
The provisions of the CAB Jurisdictional Laws which the
appellant contends are applicable to such appeal; and
(d)
The nature of the relief which the appellant desires
the Code Appeals Board to grant to the appellant.
(4)
At the time of filing of such appeal or request, the
appellant shall pay to the Borough Code Office a fee, in the amount which
shall, from time to time, be established by resolution of the Council pursuant
to the authority of this chapter to defray the costs of such appeal.
(5)
Upon the filing with the Code Enforcement Officer of
an appeal to the Code Appeals Board, the Code Enforcement Officer shall transmit
a copy of such appeal to the Secretary of the Code Appeals Board.
B.
The Code Appeals Board shall commence a public hearing
on each appeal and request for modification or waiver at the next regularly
scheduled meeting of the Code Appeals Board occurring at least 20 days, but
no more than 45 days after the date that the appeal is filed with the Borough
Code Office.
C.
The Secretary of the Code Appeals Board shall cause written
notice of the initial public hearing on any appeal or request for modification
or waiver to be given not less than 15 days prior to the date of the hearing.
Such notice shall be issued by certified first-class United States mail, postage
prepaid, addressed to the appellant at the address of the appellant set forth
in the written appeal filed by the appellant and addressed to any other person
or entity who has requested (in writing) notice of such appeal or request
for modification or waiver.
D.
Public hearing.
(1)
At the public hearing, the Code Appeals Board shall review
the notices, determinations, orders, permits, regulations or rules which are
the subject of the appeal or the nature of and legal support for the modification
or waiver requested and take such testimony, hear such witnesses (including
members of the public), admit such evidence and make such findings as it shall
deem appropriate.
(2)
In any appeal hearing in which the appellant has appealed
from an enforcement notice or stop-work order issued by the Code Enforcement
Officer, the Borough of Kutztown shall have the burden of proceeding and the
burden of proof by a preponderance of the evidence with respect to such enforcement
notice or stop-work order. In all other instances, the appellant shall have
the burden of proceeding and the burden of proof by a preponderance of the
evidence.
(3)
The Code Appeals Board may, if it shall deem it appropriate,
order the party having such burden to proceed and burden of proof to present
relevant expert testimony in support of such party's case and shall dismiss
the appeal or request for modification or waiver if the party so ordered fails
to present such expert testimony at the time ordered by the Code Appeals Board.
Notwithstanding the foregoing, any party may choose to present expert testimony
at a hearing and, for this purpose, qualified representatives of any of the
Borough of Kutztown's duly appointed engineering firms shall be permitted
to testify as an expert witness on behalf of the Borough of Kutztown.
(4)
The Code Enforcement Officer or his designee shall be
present at all meetings of the Code Appeals Board, unless excused by the Code
Appeals Board.
(5)
The Borough of Kutztown, through its Solicitor and/or
other representatives, may appear and participate as a party in any proceedings
before the Code Appeals Board. The Code Enforcement Officer may request the
Borough of Kutztown Solicitor to represent the Borough of Kutztown at any
public hearing, with permission of the Council.
(6)
The procedures of the Code Appeals Board shall not require
compliance with strict rules of evidence, but shall mandate that only relevant
information be received. The Code Appeals Board may admit into evidence in
any hearing documentary evidence consisting of public or governmental records
and reports, records and reports of codes, standards, licensing or testing
organizations and records and reports of materials manufacturers.
(7)
The proceedings of the Code Appeals Board shall be governed
and regulated by the Chairperson or, in the Chairperson's absence, the
Vice Chairperson, in consultation with the members of the Code Appeals Board
and its solicitor.
E.
Any public hearing may be continued or rescheduled prior
to the scheduled time of the hearing, with the written agreement of the Chairperson
(or in the Chairperson's absence, the Vice Chairperson), the appellant
and the Code Enforcement Officer, or their respective legal counsel, or may
be rescheduled or continued by the Code Appeals Board at the time that the
hearing is convened, to one or more subsequent dates, as deemed appropriate
by the Code Appeals Board. All continued or rescheduled hearings shall be
continued or rescheduled to a regularly scheduled public meeting date of the
Code Appeals Board, unless all parties agree upon another date. No further
written notice by mail to the parties of any such continuance or rescheduling
shall be required. The appellant shall pay, in advance, a fee in the amount
which shall, from time to time, be established by resolution of the Council
pursuant to the authority of this chapter to defray the cost of advertising
the public notice of any agreed upon hearing date which is not a regularly
scheduled meeting date of the Code Appeals Board and the additional Code Appeals
Board solicitor cost.
F.
Within 45 days after the conclusion of the public hearing
concerning an appeal or request for modification or waiver, the Code Appeals
Board shall advise the appellant and all parties appearing in the appeal or
request for modification or waiver, in writing by certified first-class United
States mail, postage prepaid, of its decision, and a copy of said decision
shall be filed with the Secretary of the Borough of Kutztown and with the
Borough Code Office. Such written decision shall set forth the evidentiary
and legal findings of the Code Appeals Board and shall contain an order entirely
disposing of the appeal or request for modification or waiver in question.
The decisions and orders of the Code Appeals Board shall be in accordance
with the CAB Jurisdictional Laws, all applicable codes, ordinances and regulations
of the Borough of Kutztown, including the Kutztown Code, as well as the statutes,
laws, judicial decisions and regulations of the Commonwealth of Pennsylvania
and the United States of America.
G.
All decisions and orders of the Code Appeals Board shall
be retained in the files of the Code Appeals Board, and copies thereof shall
be retained in the files of the Borough Code Office, which files shall be
available for inspection by the public.
H.
The Code Appeals Board shall have the authority to interpret
the CAB Jurisdictional Laws and grant such relief as is consistent therewith
and such modifications or waivers as are specifically authorized therein.
The mere showing of financial hardship shall be an insufficient basis for
the granting of relief by the Code Appeals Board to the appellant, except
in those specific instances where the CAB Jurisdictional Laws expressly permit
the consideration of financial hardship as a basis for the granting of any
relief. Except to the extent that the CAB Jurisdictional Laws specifically
permit and regulate limited encroachments into the right-of-way of public
ways of the Borough of Kutztown, the Code Appeals Board shall have no authority
to grant relief which will or may have the effect of encroaching upon or encumbering
the real property, rights-of-way and rights therein owned and held by the
Borough of Kutztown.
The decisions and orders of the Code Appeals Board may be further appealed
to the Court of Common Pleas of Berks County, Pennsylvania, by any party within
30 days after the date of mailing to the appellant and all other parties of
the decision and order of the Code Appeals Board.
Whenever the Code Enforcement Officer determines that an emergency condition
exists which requires immediate action to protect public health and/or safety,
he may, if authorized by any of the CAB Jurisdictional Laws, issue an order
declaring the existence of such emergency and requiring action to be taken
(or requiring that persons refrain from taking certain actions) to remedy
such emergency. Such emergency order shall be effective immediately upon issuance.
Any person to whom such order is directed shall comply therewith immediately.
Said person may file an appeal or request for modification or waiver to the
Code Appeals Board regarding such order, but such appeal or request for modification
or waiver shall not serve as a supersedeas to the Code Enforcement Officer's
emergency order.
Nothing contained herein shall be deemed to alter or affect the power and authority of the Code Enforcement Officer or other enforcement authority to issue or file summary citations and to prosecute such summary citations and/or to file and pursue civil proceedings, whether at law and/or in equity, before a District Justice, the Court of Common Pleas of Berks County and/or other permitted authority, regarding violations of the CAB Jurisdictional Laws and the abatement of such violations; provided, however, that summary citations may be issued or filed and prosecuted during the pendency of proceedings before the Code Appeals Board only if a violation of § 12-10 of this chapter is alleged.
The Council may from time to time, by resolution, adopt regulations
to provide for the forms and procedures to be utilized in the filing and processing
of appeals and requests for modification or waivers before the Code Appeals
Board.[1]
[1]
Editor's Note: Said forms, as adopted by Res. No. 20-2005, are on
file in the Borough offices.
The Code Enforcement Officer and the appellant shall take prompt action
in accordance with the final decisions and orders of the Code Appeals Board,
from which no appeal has been or may properly be filed.
A Housing License Appeals Board is hereby established for the purpose of hearing appeals from licenses issued, enforcement notices issued, determinations rendered, disruptive conduct reports, or DCRs (as defined in Chapter 135 of the Kutztown Code and, in this Article II, each a "DCR") issued, and for the purpose of hearing requests for modifications and waivers permitted to be granted, all pursuant to the authority contained in certain ordinances, codes and regulations of the Borough of Kutztown, including the Code of the Borough of Kutztown, as amended from time to time, and all regulations issued pursuant thereto, as is more fully provided hereinbelow. The aforesaid Housing License Appeals Board shall be known as the "Borough of Kutztown Housing License Appeals Board" (hereinafter the "Housing License Appeals Board").
The Housing License Appeals Board shall consist of five members, all of whom shall be selected and appointed by the Council to serve in such position. The members shall have the following qualifications: two of the members shall each be nonstudent residents of the Borough of Kutztown and shall not be an owner of one or more regulated units (as defined in § 135-2 of the Code of the Borough of Kutztown), two of the members shall each be an owner of one or more regulated units and each shall be a nonstudent resident of the Borough of Kutztown, and one of the members shall be a Kutztown University student of at least 18 years of age residing in the Borough of Kutztown during his or her appointed term who has received a written recommendation for appointment to the Housing License Appeals Board from the Student Government Board of Kutztown University. An owner and tenant of the same regulated unit cannot serve at the same time. The Council shall appoint three alternate members. One alternate member shall be a nonstudent resident of the Borough of Kutztown and shall not be the owner of one or more regulated units and one shall be an owner of one or more regulated units and shall be a non-student resident of the Borough of Kutztown, and one of the alternate members shall be a Kutztown University student of at least 18 years of age residing in the Borough of Kutztown during his or her appointed term who has received a written recommendation for appointment to the Housing License Appeals Board from the Student Government Board of Kutztown University. Alternate members may be called by the Housing License Appeals Board Chairperson to hear appeals in the absence or disqualification of any member. An alternate shall be called to serve who has the same qualifications as the member who is absent or disqualified (i.e., a resident alternate shall replace a resident member). All references in this § 12-22 to the Housing License Appeals Board members shall also be deemed to refer to Housing License Appeals Board alternate members, unless the context requires otherwise. The Housing License Appeals Board shall annually select one of its members to serve as Chairperson (hereinafter in this article the "Chairperson"), select one of its members to serve as Vice Chairperson (hereinafter in this article the "Vice Chairperson"), and select one of its members to serve as Secretary (hereinafter in this article the "Secretary").
A.
The terms of office for members and alternates of the
Housing License Appeals Board shall be one year.
B.
Vacancies on the Housing License Appeals Board, resulting
from the conclusion of a term of membership or the resignation, death or removal
of a member, shall be filled by the appointment and selection of a new member
by the Council. Members and alternates of the Housing License Appeals Board
may be reappointed.
Members of the Housing License Appeals Board shall serve as such without
compensation.
A.
The Council shall employ and make available to the Housing
License Appeals Board qualified persons to assist the Secretary and other
officers of the Housing License Appeals Board, who shall appear at the meetings
of the Housing License Appeals Board, shall keep minutes of the Housing License
Appeals Board proceedings, votes, decisions and actions, as well as all dates,
records and documents pertaining to the activities of the Housing License
Appeals Board, as directed and authorized by the officers and solicitor of
the Housing License Appeals Board. The Borough Code Office is hereby authorized
to provide such clerical assistance to the Housing License Appeals Board,
as and when needed.
B.
The Housing License Appeals Board shall obtain its own
solicitor to attend its meetings, provide legal advice and prepare decisions
and orders at the request of the Housing License Appeals Board, with the compensation
of such solicitor to be fixed annually by the Council and paid by the borough.
C.
The Housing License Appeals Board may, when it deems
it appropriate, provide for a stenographic record to be made of any hearing.
If the Housing License Appeals Board declines to provide for the making of
a stenographic record of a hearing, any party may do so at such party's
expense and, in such event, shall deliver a copy of any transcription thereof
to the Secretary of the Housing License Appeals Board.
A.
A quorum of the Housing License Appeals Board shall exist
when at least three members of the Housing License Appeals Board are present.
Such quorum may consist of regular and alternate members.
B.
The actions of the Housing License Appeals Board shall
be determined by the vote or other affirmative expression of a majority of
its members present at the time of the vote. All actions of the Housing License
Appeals Board shall be certified by the Chairperson or, in the Chairperson's
absence, the Vice Chairperson and attested to by its Secretary.
C.
No member of the Housing License Appeals Board shall
participate in any hearing or vote on any matter on which that member has
a direct or indirect personal or financial interest, or is engaged as a contractor,
subcontractor or professional consultant on the subject matter of the case
at hand, or is engaged in the preparation of plans and specifications on the
subject matter of the case at hand.
D.
The Housing License Appeals Board shall conduct all public
hearings and administrative business, and all votes, at advertised public
meetings, in accordance with the Sunshine Law of the Commonwealth of Pennsylvania,[1] as amended from time to time, except the deliberations for the
purpose of considering an appeal, including the receipt of the advice of the
solicitor for the Housing License Appeals Board, may occur in executive session.
[1]
Editor's Note: See 65 Pa. C.S.A. § 701 et seq.
E.
The Housing License Appeals Board shall meet no less
frequently than monthly, except that the Chairperson may cancel such meeting
if the Housing License Appeals Board has no pending business at the time a
meeting is scheduled. The Housing License Appeals Board shall publish, no
less frequently than annually, during the month of December, a list of its
regularly scheduled public meeting dates, times and places for the ensuing
12 monthly meetings during the following year.
A.
The Housing License Appeals Board shall have authority
and jurisdiction to hear and decide appeals from notices of violations, determinations,
orders or licenses issued by the Code Enforcement Officer and may hear and
decide appeals from any notices of violations, determinations, orders and
licenses issued and from the effects of any rule or regulation adopted pursuant
to the authority of any of the following codes, ordinances and regulations
of the Borough of Kutztown (other than provisions thereof, if any, governed
by the Pennsylvania Municipalities Planning Code, the Pennsylvania Uniform
Construction Code,[1] or which are enforceable only by sworn police officers), and may
hear and decide requests for modifications and waivers specifically permitted
to be granted by the Housing License Appeals Board pursuant to the authority
of any of the following codes, ordinances and regulations of the Borough of
Kutztown; provided, in each case, that the appeal and/or request pertains
to premises upon which a regulated unit is located:
(1)
The Housing Standards of the Borough of Kutztown, being Chapter 135, entitled "Housing Standards," of the Kutztown Code, as amended and supplemented from time to time;
(4)
The public health; nuisances regulations, being Chapter 168 of the Kutztown Code, as amended and supplemented from time to time;
(5)
The solid waste regulations, being Chapter 185 of the Kutztown Code, as amended and supplemented, from time to time;
(7)
The Property Maintenance Code of the Borough of Kutztown, being Chapter 136 of the Code of the Borough of Kutztown, as amended and supplemented, from time to time; and
(8)
Those provisions of any other ordinance, code and/or
regulation of the Borough of Kutztown, as amended from time to time, which
the Council shall hereafter specifically include within the authority and
jurisdiction of the Housing License Appeals Board, provided that the same
shall at no time include any code, ordinance or regulation which is subject
to the requirements of the Municipalities Planning Code of the Commonwealth
of Pennsylvania, as amended from time to time.
[1]
Editor's Note: See 53 P.S. § 10101 et seq. and 35 P.S.
§ 7210.101 et seq., respectively.
B.
All of the foregoing codes, ordinances and regulations shall be deemed to include any regulations, amendments, supplements, substitutions and revisions hereafter adopted as pertains to any of the above-described codes, ordinances and regulations (all of the foregoing codes, ordinances, regulations, amendments, supplements, substitutions and revisions, individually and collectively, when applied to the cases permitted by Subsection A above, the "HLAB Jurisdictional Laws").
The Housing License Appeals Board shall utilize the following procedures
and rules in the course of considering and deciding upon the various appeals
and requests for modifications and waivers brought before the Housing License
Appeals Board for a decision:
A.
Right to file appeal; time limits; form; fee; transmittal.
(1)
Any person or entity being affected by the enforcement
and application of any of the HLAB Jurisdictional Laws and having the right
to file an appeal under the authority of any of the HLAB Jurisdictional Laws
may appeal to the Housing License Appeals Board any license, notice, determination,
DCR or order issued or rule or regulation promulgated under the authority
of the HLAB Jurisdictional Laws.
(2)
Time limits.
(a)
Any such appeal must be filed in writing in the Borough
Code Office within:
[1]
Twenty days of receipt by the appellant of such notice,
license, determination, DCR or order;
[2]
If the time period for compliance with a notice, license,
determination, DCR or order is less than 20 days, then such appeal must be
filed within the compliance period required by the HLAB Jurisdictional Laws;
or
[3]
Within 30 days after any such rule or regulation is issued.
(b)
Requests for modifications and waivers permitted to be
granted may be filed at any time, but shall, in all other respects, be subject
to the same procedures and rules as appeals.
(3)
Any such written appeal must be filed, in complete and proper form, with the Borough Code Office on a form of application for hearing to be provided by the Borough Code Office in accordance with the resolutions of the Council, as provided in § 12-32 of this chapter. Such form shall require the appellant to state:
(a)
The precise notices, licenses, determinations, DCR orders,
rules or regulations from which the appellant appeals, or the precise modification
or waiver, and legal authority therefor, which the appellant requests;
(b)
The reasons for such appeal or request, including any
legal and/or technical authority which the appellant believes supports the
appellant's appeal or request (without prejudice the appellant's
right to present further supporting authority at the time of hearing);
(c)
The provisions of the HLAB Jurisdictional Laws which
the appellant contends are applicable to such appeal; and
(d)
The nature of the relief which the appellant desires
the Housing License Appeals Board to grant to the appellant.
(4)
At the time of filing of such appeal or request, the appellant shall pay to the Borough Code Office a fee, in the amount which shall, from time to time, be established by resolution of the Council pursuant to the authority of this chapter to defray the costs of such appeal; provided, however, that no fee shall be due in a matter involving proceedings pursuant to § 135-10C(3) and (5) of the Code of the Borough of Kutztown.
(5)
Upon the filing with the Borough Code Officer of an appeal
to the Housing License Appeals Board, the Borough Code Officer shall transmit
a copy of such appeal to the Secretary of the Housing License Appeals Board.
B.
The Housing License Appeals Board shall commence a public
hearing on each appeal and request for modification or waiver at the next
regularly scheduled meeting of the Housing License Appeals Board occurring
at least 20 days, but no more than 45 days after the date that the appeal
is filed with the Borough Code Office.
C.
The Secretary of the Housing License Appeals Board shall
cause written notice of the initial public hearing on any appeal or request
for modification or waiver to be given not less than 15 days prior to the
date of the hearing. Such notice shall be issued by certified first-class
United States mail, postage prepaid, addressed to the appellant at the address
of the appellant set forth in the written appeal filed by the appellant and
addressed to any other person or entity who has requested (in writing) notice
of such appeal or request for modification or waiver.
D.
Public hearing.
(1)
At the public hearing, the Housing License Appeals Board
shall review the notices, determinations, DCRs, orders, licenses, regulations
or rules which are the subject of the appeal or the nature of and legal support
for the modification or waiver requested and take such testimony, hear such
witnesses (including members of the public), admit such evidence and make
such findings as it shall deem appropriate.
(2)
In any appeal hearing in which the appellant has appealed
from an enforcement notice or stop-work order issued by the Code Enforcement
Officer, the Borough of Kutztown shall have the burden of proceeding and the
burden of proof by a preponderance of the evidence with respect to such enforcement
notice or stop-work order. In all other instances, the appellant shall have
the burden of proceeding and the burden of proof by a preponderance of the
evidence.
(3)
The Housing License Appeals Board may, if it shall deem
it appropriate, order the party having such burden to proceed and burden of
proof to present relevant expert testimony in support of such party's
case and shall dismiss the appeal or request for modification or waiver if
the party so ordered fails to present such expert testimony at the time ordered
by the Housing License Appeals Board. Notwithstanding the foregoing, any party
may choose to present expert testimony at a hearing and, for this purpose,
qualified representatives of any of the Borough of Kutztown's duly appointed
engineering firms shall be permitted to testify as an expert witness on behalf
of the Borough of Kutztown.
(4)
The Code Enforcement Officer or his designee shall be
present at all meetings of the Housing License Appeals Board, unless excused
by the Housing License Appeals Board.
(5)
The Borough of Kutztown, through its Solicitor and/or
other representatives, may appear and participate as a party in any proceedings
before the Housing License Appeals Board. The Code Enforcement Officer may
request the Borough of Kutztown Solicitor to represent the Borough of Kutztown
at any public hearing, with permission of the Council.
(6)
The procedures of the Housing License Appeals Board shall
not require compliance with strict rules of evidence, but shall mandate that
only relevant information be received. The Housing License Appeals Board may
admit into evidence in any hearing documentary evidence consisting of public
or governmental records and reports, records and reports of codes, standards,
licensing or testing organizations and records and reports of materials manufacturers.
(7)
The proceedings of the Housing License Appeals Board
shall be governed and regulated by the Chairperson or, in the Chairperson's
absence, the Vice Chairperson, in consultation with the members of the Housing
License Appeals Board and its Solicitor.
E.
Any public hearing may be continued or rescheduled prior
to the scheduled time of the hearing, with the written agreement of the Chairperson
(or in the Chairperson's absence, the Vice Chairperson), the appellant
and the Code Enforcement Officer, or their respective legal counsel, or may
be rescheduled or continued by the Housing License Appeals Board at the time
that the hearing is convened, to one or more subsequent dates, as deemed appropriate
by the Housing License Appeals Board. All continued or rescheduled hearings
shall be continued or rescheduled to a regularly scheduled public meeting
date of the Housing License Appeals Board, unless all parties agree upon another
date. No further written notice by mail to the parties of any such continuance
or rescheduling shall be required. The appellant shall pay, in advance, a
fee in the amount which shall, from time to time, be established by resolution
of the Council pursuant to the authority of this chapter to defray the cost
of advertising the public notice of any agreed upon hearing date which is
not a regularly scheduled meeting date of the Housing License Appeals Board
and the additional Housing License Appeals Board solicitor cost.
F.
Within 45 days after the conclusion of the public hearing
concerning an appeal or request for modification or waiver, the Housing License
Appeals Board shall advise the appellant and all parties appearing in the
appeal or request for modification or waiver, in writing by certified first-class
United States mail, postage prepaid, of its decision, and a copy of said decision
shall be filed with the Secretary of the Borough of Kutztown and with the
Borough Code Office. Such written decision shall set forth the evidentiary
and legal findings of the Housing License Appeals Board and shall contain
an order entirely disposing of the appeal or request for modification or waiver
in question. The decisions and orders of the Housing License Appeals Board
shall be in accordance with the HLAB Jurisdictional Laws, all applicable codes,
ordinances and regulations of the Borough of Kutztown, including the Kutztown
Code, as well as the statutes, laws, judicial decisions and regulations of
the Commonwealth of Pennsylvania and the United States of America.
G.
All decisions and orders of the Housing License Appeals
Board shall be retained in the files of the Housing License Appeals Board,
and copies thereof shall be retained in the files of the Borough Code Office,
which files shall be available for inspection by the public.
H.
The Housing License Appeals Board shall have the authority
to interpret the HLAB Jurisdictional Laws and grant such relief as is consistent
therewith and such modifications or waivers as are specifically authorized
therein. The mere showing of financial hardship shall be an insufficient basis
for the granting of relief by the Housing License Appeals Board to the appellant,
except in those specific instances where the HLAB Jurisdictional Laws expressly
license the consideration of financial hardship as a basis for the granting
of any relief. Except to the extent that the HLAB Jurisdictional Laws specifically
license and regulate limited encroachments into the right-of-way of public
ways of the Borough of Kutztown, the Housing License Appeals Board shall have
no authority to grant relief which will or may have the effect of encroaching
upon or encumbering the real property, rights-of-way and rights therein owned
and held by the Borough of Kutztown.
The decisions and orders of the Housing License Appeals Board may be
further appealed to the Court of Common Pleas of Berks County, Pennsylvania,
by any party within 30 days after the date of mailing to the appellant and
all other parties of the decision and order of the Housing License Appeals
Board.
Whenever the Code Enforcement Officer determines that an emergency condition
exists which requires immediate action to protect public health and/or safety,
he may, if authorized by any of the HLAB Jurisdictional Laws, issue an order
declaring the existence of such emergency and requiring action to be taken
(or requiring that persons refrain from taking certain actions) to remedy
such emergency. Such emergency order shall be effective immediately upon issuance.
Any person to whom such order is directed shall comply therewith immediately.
Said person may file an appeal or request for modification or waiver to the
Housing License Appeals Board regarding such order, but such appeal or request
for modification or waiver shall not serve as a supersedeas to the Code Enforcement
Officer's emergency order.
Nothing contained herein shall be deemed to alter or affect the power and authority of the Code Enforcement Officer or other enforcement authority to issue or file summary citations and to prosecute such summary citations and/or to file and pursue civil proceedings, whether at law and/or in equity, before a District Justice, the Court of Common Pleas of Berks County and/or other permitted authority, regarding violations of the HLAB Jurisdictional Laws and the abatement of such violations; provided, however, that summary citations may be issued or filed and prosecuted during the pendency of proceedings before the Housing License Appeals Board only if a violation of § 12-30 of this chapter is alleged.
The Council may from time to time, by resolution, adopt regulations
to provide for the forms and procedures to be utilized in the filing and processing
of appeals and requests for modification or waivers before the Housing License
Appeals Board.[1]
[1]
Editor's Note: Said forms, as adopted by Res. No. 20-2005, are
on file in the Borough offices.
The Code Enforcement Officer and the appellant shall take prompt action
in accordance with the final decisions and orders of the Housing License Appeals
Board, from which no appeal has been or may properly be filed.
