Borough of Duncannon, PA Article XVII Administration and Enforcement

§ 225-121 Zoning Officer.

For the administration of this chapter, a Zoning Officer, who may not hold any elective office in the Borough, shall be appointed. The Zoning Officer shall administer this chapter in accordance with its literal terms and shall not have the power to permit any construction or any use or change of use which does not conform to this chapter.

§ 225-122 Enforcement.

It shall be the duty of the Zoning Officer, and he is hereby given the power and authority, to enforce the provisions of this chapter. The Zoning Officer shall examine all applications for permits, issue permits for construction and uses which are in accordance with the requirements of this chapter, record and file all applications for permits with accompanying plans and documents, and make such reports as the Borough Council may require. Permits for construction and uses which are a special exception or a variance to requirements of this chapter shall be issued only upon written order of the Zoning Hearing Board. Permits for construction and uses which are a conditional use shall be issued only upon approval of such conditional use by the Borough Council.

§ 225-123 Zoning appeals.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

All appeals from a decision of the Zoning Officer shall be taken in the manner set forth in Article X-A of the Pennsylvania Municipalities Planning Code (Act 247), as amended.

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

§ 225-124 Zoning Hearing Board.

The Borough Council shall appoint a Zoning Hearing Board, which shall have three members and such powers and authority as set forth in Article IX of Act 247 of the Commonwealth of Pennsylvania, as enacted or hereafter amended.

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

The duly established Zoning Hearing Board shall have the following functions:

A. Hearings. The Zoning Hearing Board shall conduct hearings and make decisions in accordance with Section 908, Pennsylvania Municipalities Planning Code (Act 247), as amended.

Editor's Note: See 53 P.S. § 10908.

Notice shall be given to the public, the applicant, the County Planning Commission, the Zoning Officer, such other persons as the Zoning Hearing Board shall designate and any person who has made timely request for the same. Notices shall be given at such time and in such manner prescribed by adopted rules of the Zoning Hearing Board. The Borough Council may establish reasonable fees, based on cost, to be paid by the applicant and persons requesting any notice or materials not required by ordinance.

B. Appeals. The Zoning Hearing Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of this chapter or map or any valid rule or regulation governing the action of the Zoning Officer. The Board shall prescribe the form of application to be used. Nothing contained herein shall be construed to deny the appellant the right to proceed directly in court where appropriate.

C. Challenge to validity. Except as provided in Subsection D, relating to variances, the Zoning Hearing Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the Borough Council. Recognizing that challenges to the validity of an ordinance or map may present issues of fact and interpretation which may lie within the special competence of the Zoning Hearing Board and to facilitate speedy disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or interpretation not hitherto properly determined at a hearing before another competent agency or body and shall take evidence and make a record thereon as provided in Subsection A above. At the conclusion of the hearing, the Zoning Hearing Board shall decide all contested questions of interpretation and make findings on all relevant issues of fact, which shall become part of the record on appeal to court.

D. Variances.

(1) The Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the application and require application to the Zoning Officer. The Zoning Hearing Board may grant a variance, provided the following findings are made where relevant in a given case:

(a) That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to that particular property, and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located;

(b) That, because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter, and the authorization of a variance is therefore necessary to enable the reasonable use of the property;

(c) That such unnecessary hardship had not been created by the appellant;

(d) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare; and

(e) That the variance, if authorized, will represent the minimum variance which will afford relief and represent the least modification possible of the regulation in issue.

(2) In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

E. Special exceptions. Special exceptions may be granted or denied by the Zoning Hearing Board pursuant to expressed standards and criteria contained in this chapter. The Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria and prescribe the application form to be used. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter. The Board shall pursue the following procedure:

(1) The Board's decision to grant a permit for special exception use shall be made only after public notice and hearing. Such permit shall apply specifically to the application and plans submitted and presented at said public hearing. Any subsequent amendments or additions shall be submitted to review and public hearing by the Zoning Hearing Board as a special exception.

(2) No application for a permit shall be granted by the Zoning Hearing Board for any special exception use until said Board has first received and considered an advisory report thereon from the Planning Commission with respect to the location of such use in relation to the needs and growth pattern of the Borough and, where appropriate, with reference to the adequacy of the site area and the arrangement of buildings, driveways, parking areas, off-street loading and unloading spaces, and other pertinent features of the proposal.

(3) The Planning Commission shall have 30 days from the date of its receipt of the application within which to file its report thereon. In the event that the Commission shall fail to file its report within 30 days, such application shall be deemed to have been recommended for approval by the Planning Commission. The Commission may have representation at the public hearing held by the Zoning Hearing Board on such application. After receipt of the report, the Zoning Hearing Board shall hear the application in the same manner and under the same procedure as it is empowered by law and ordinance to hear cases and make exceptions to the provisions of this chapter. The Zoning Hearing Board may thereafter direct the Zoning Officer to issue a permit if, in its judgement, any one of such cases will not be detrimental to the health, safety, and general welfare of the Borough.

(4) A special exception use for which a permit is granted by the Zoning Hearing Board pursuant to the provisions of this section shall be construed to be a conforming use.

F. Parties appellant before the Board.

(1) Appeals under Subsection B above and proceedings to challenge an ordinance under Subsection C above may be filed with the Board, in writing, by an officer or agency of the Borough or any person aggrieved. Requests for variance under Subsection D above and special exception under Subsection E above may be filed with the Board by any landowner or any tenant with the permission of such landowner.

(a) Time limitations. The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:

[1] No issue of alleged defect in the process of enactment of any ordinance or map or any amendment thereto shall be raised in any proceeding filed with the Board later than 30 days from the time such ordinance, map, or amendment takes effect, unless the person raising such issues alleges and proves that he failed to receive adequate notice of the enactment of amendment. If such person has succeeded to his interest after the enactment of the ordinances, adequate notice to his predecessor in interest shall be deemed adequate notice to him.

[2] No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by the appropriate Borough official, agency, or body if such proceeding is designed to secure reversal or limit the approval in any manner, unless such person alleges and proves that he failed to receive adequate notice of such approval. If such person has succeeded to his interest after such approval, adequate notice to his predecessor in interest shall be deemed adequate notice to him.

(b) Stay of proceedings. Upon filing of any proceeding referred to in this item and during its pendency before the Board, all land development pursuant to any challenged ordinance, order, or approval of the Zoning Officer or any agency or body and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body.

(2) When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. The question of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.

§ 225-125 Permits.

A. Requirements of permits. A building and/or zoning permit shall be required prior to the erection, addition, or alteration of any building or portion thereof, prior to the use or change in use of a building or land, and prior to the change or extension of a nonconforming use. It shall be unlawful for any person to commence work for the erection or alteration of any building or for a change in land use, until a permit has been duly issued therefor. No such building permit or zoning permit shall be required in case of normal maintenance activities, minor repairs, and alterations which do not structurally change a building or structure.

B. Application for permits. All applications for permits shall be accompanied by plans in duplicate, drawn to scale, showing the actual shape and dimensions of the lot to be built upon, the exact size and location of any buildings existing on the lot, the lines within which the proposed building or structure shall be erected or altered, the existing and intended use of each building or part of a building, the number of families or dwelling units the building is designed to accommodate and such information as may be necessary to determine compliance with this chapter and all other ordinances. One copy of such plans shall be returned to the owner when such plans have been reviewed and acted upon by the Zoning Officer. All applications with accompanying plans and documents shall become a public record after a permit is issued or denied.

C. Issuance of permits. No permit shall be issued until the Zoning Officer has certified that the proposed building, addition, or alteration complies with all the provisions of this chapter, as well as the provisions of all other applicable ordinances. A permit issued hereunder shall become void 12 months after issuance date, unless a request for extension has been submitted to and approved by the Zoning Officer. Such request shall be filed with the Zoning Officer at least 30 days prior to the permit expiration date.

D. Temporary permits. A temporary permit may be authorized by the Borough Council for a structure or use which it deems necessary to promote the proper development of the community, provided that such nonconforming structure or use shall be completely removed upon expiration of the permit without cost to the municipality. Such permits shall be issued for a specified period of time not to exceed one year and may be renewed annually for an aggregate period not exceeding two years.

§ 225-126 Certificate of nonconformance.

A certificate of nonconformance shall be issued by the Zoning Officer to the owner of any property which, at the time of the effective date of this chapter, is identified as containing a nonconforming use or structure. The owner's property and the issuance date of such certificates shall be registered in the records of the municipality as follows:

A. Such certificates of nonconformance shall be issued within 180 days after the effective date of this chapter.

B. The certificate of nonconformance shall set forth in detail all of the nonconforming conditions of said property.

C. A copy of the certificate of nonconformance shall be retained and filed by the Zoning Officer.

D. The certificate shall be for the purposes of ensuring the owner the right to continue a nonconforming use in accordance with the regulations of this chapter.

§ 225-127 Special exceptions.

Applications for any special exception permitted by this chapter shall be made to the Zoning Hearing Board through the Zoning Officer. The Zoning Hearing Board shall refer the matter to the Borough Planning Commission for report thereon as to its effect on the Duncannon Borough Comprehensive Plan and pursuant to § 225-124E of this article.

§ 225-128 Conditional uses.

Applications for any conditional use permitted by this chapter shall be made to the Borough Council through the Zoning Officer. The Zoning Officer shall refer all such applications to the Borough Planning Commission for review and recommendation. The Borough Planning Commission shall review the application pursuant to applicable standards and criteria and submit its recommendations to the Borough Council for approval or denial.

§ 225-129 Fees.

A. The Borough Council shall establish a schedule of fees, charges and expenses, as well as a collection procedure for zoning permits, certificates of occupancy, appeals, variances, conditional uses, special exceptions, amendments, bonds, and other matters pertaining to this chapter. The schedule of fees shall be posted in the office of the Zoning Officer.

B. Such fees shall be payable to the Borough, and until applicable fees, charges, and expenses have been paid in full, the application shall be considered incomplete and no action shall be taken on any application or appeal.

§ 225-130 Inspections.

It shall be the duty of the Zoning Officer, or his duly appointed representative, to make the following minimum number of inspections of property for which a permit has been issued:

A. At the beginning of construction. A record shall be made indicating the time and date of inspection and the finding of the Zoning Officer in regard to conformance of the construction with plans submitted with the approved permit application.

(1) If the actual construction does not conform to the application, a written notice of violation shall be issued by the Zoning Officer, and such violation shall be discontinued. Upon proper correction of the violation and receipt of written notice from the Zoning Officer, construction shall proceed.

B. At the completion of construction. A record shall be made indicating the time and date of the inspection; the findings of the Zoning Officer in regard to conformance to this chapter, and the opinion of the Zoning Officer in regard to the issuance of a certificate of use permit.

§ 225-131 Certificate of use.

A. A certificate of use shall be a statement issued by the Zoning Officer setting forth that a building, structure, parcel, or use of land complies with the provisions of this chapter.

B. No vacant land shall be occupied or used and no structure or part of a structure hereafter erected, substantially altered or changed in use shall be occupied or used until a certificate of use shall have been issued by the Zoning Officer.

C. A certificate of use for the use or occupancy of vacant land or for a change in the use of land, or for a change in the use of an existing building, either for the whole or part of a new building or for the alteration of an existing building, shall be applied for coincident with the application for a building or zoning permit and shall be issued or denied within 15 days after a final inspection by the Zoning Officer.

D. A certificate of use for changing or extending a nonconforming use, existing at the time of the passage of this chapter or of an amendment thereto, shall be applied for and issued before any such nonconforming use shall be changed or extended. Such certificate shall be issued within 15 days after a final inspection and approval by the Zoning Officer.

E. A record of all certificates of use shall be kept on file in the office of the Zoning Officer, and a copy shall be furnished on request to any person having a proprietary or tenancy interest in the building or land affected.

§ 225-132 Notice of violation; violations and penalties.

Failure to comply with any provision of this chapter shall constitute a violation.

A. Notice of violation. If it appears that a violation of this chapter has occurred, the Zoning Officer shall initiate enforcement proceedings by sending an enforcement notice. Such notice shall be sent to the owner of record of the parcel on which the violation has occurred, to any person who has filed a written request to receive enforcement notices regarding that parcel, and to any other person requested in writing by the owner of record. The enforcement notice shall state:

(1) The name of the owner of record and any other person against whom the Borough 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 this chapter;

(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 within a prescribed period of time in accordance with the procedures set forth herein;

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

B. Penalties. Any person, partnership, or corporation who or which has violated or permitted the violation of this chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the municipality, pay a judgment of not more than $500, plus all court costs, including reasonable attorney 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 Magisterial District Judge. If the defendant neither pays nor timely appeals the judgment, the Borough may enforce the judgment pursuant to the applicable Rules of Civil Procedure. Each day that a violation continues shall constitute a separate violation, unless the Magisterial District Judge determining that there has been a violation further determines that there was a good faith basis for the person, partnership, or corporation violating this chapter to have believed that there was no such violation, in which 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 Magisterial District Judge, and thereafter, each day that a violation continues shall constitute a separate violation. All judgments, costs, and reasonable attorney fees collected for the violation of zoning ordinances shall be paid over to the Borough whose ordinance has been violated.

§ 225-133 Appeals; applications.

An appeal or application for an amendment, special exception, conditional use, or variance from the terms of this chapter shall be filed with the Zoning Officer and shall contain:

A. The name and address of the applicant.

B. The name and address of the owner of the real estate to be affected by such proposal.

C. A brief description and location of the real estate to be affected by such proposal.

D. A statement of the present zoning classification of the real estate in question, the improvements thereon, and the present use thereof.

E. A statement of the section of this chapter under which the appeal or application requested may be allowed, and reasons why it should be granted; or a statement of the section of this chapter governing the situation in which the alleged erroneous ruling is being appealed, and reasons for the appeal.

F. An accurate description of the present improvements and the additions intended to be made under this application, indicating the size and use of such proposed improvements and general construction thereof. In addition, there shall be attached a plot plan of the real estate to be affected, as required to accompany applications for permits, indicating the location and size of the lot and location of improvements now erected and proposed to be erected thereon.

G. Any other pertinent data required by the Zoning Hearing Board, Borough Council, or Zoning Officer, as appropriate to their individual authorities set forth in this article.

§ 225-134 Interpretation; conflicting provisions.

In interpreting and applying the provisions of this chapter, they shall be held to be the minimum requirements for the promotion of health, safety, morals, and general welfare. It is not intended to interfere with or abrogate or annul other rules, regulations, or ordinances, provided that where this chapter imposes a greater restriction upon the use of buildings or premises, or upon the height of a building, or requires larger open spaces than are imposed by such other rules, easements, covenants, restrictions, regulations, or ordinances, the provisions of this chapter shall control.