[Adopted 8-10-1981 by Ord. No. 81-9]
The policy and purpose of this Part 1 is to:
A.
Encourage planning and development in bluff areas which is consistent
with sound land use practices.
B.
Protect people and property in bluff areas from danger and damages
associated with the inevitable recession of bluffs.
C.
Prevent and eliminate urban and rural blight which results from the
damages of bluff erosion and recession.
D.
Minimize the expenditure of public and private funds for shoreline
protection and bluff stabilization structures and activities.
In any designated bluff recession hazard area, no person shall
construct, install, or engage in substantial improvement to any structure,
or any utility facility, such as but not limited to water, sewage,
electric, gas, oil, or telephone facilities, in violation of the bluff
setback requirements established by this Part 1.
As used in this Part 1, the following terms shall have the meanings
indicated:
A high bank or bold headland with a broad precipitous cliff
face overlooking Lake Erie.
The edge or crest of the bluff.
The loss of material along the bluff face caused by the direct
or indirect action by one or a combination of groundwater seepage,
water currents, wind-generated water waves, or high water levels.
An area or zone where the rate of progressive bluff recession
creates a substantial threat to the safety or stability of nearby
existing or future structures or utility facilities.
The Department of Environmental Protection of the Commonwealth.
A bank over five feet high.
The value of a structure determined by a certified appraisal
or by determining the assessed value of a structure and applying the
assessment ratio of Erie County in which the structure is located.
The shortest horizontal distance from a point on the bluff
line to a point on a structure.
A piece of ground that existed as an independent tax lot
on the records of the county prior to its inclusion in a municipality's
designated bluff recession hazard areas.
An individual, partnership, public or private association
or corporation, firm, trust estate, municipality, governmental unit,
public utility or other legal entity which is recognized by law as
the subject of right and duties. When used in a section prescribing
or imposing a penalty, the term shall include members of a partnership;
officers, members, servants, and agents of an association; and officers,
agents, or servants of a corporation but shall exclude any department,
board, bureau, or agency of the commonwealth.
A map, drawing, or print accurately drawn to scale showing
the proposed or existing location of all structures.
A man-made object having an ascertainable stationary location
on or in land, whether or not affixed to the land; structures are
classified into three categories: residential, commercial, and light
and heavy industrial.
RESIDENTIAL STRUCTURESA place providing the habitation for an individual or group of individuals. Structures in this category include but are not limited to single-family homes, duplexes, and summer cottages, as well as any secondary structure associated with residential structure.
COMMERCIAL STRUCTURESA place where commodities are exchanged, bought, or sold. Structures in this category include but are not limited to grocery stores, hardware stores, clothing shops, and pharmacies as well as any secondary structure that is associated with the commercial structure.
LIGHT AND HEAVY INDUSTRIAL STRUCTURESA place where materials are refined, produced, or fabricated and stored prior to shipment to commercial establishments. Structures in this category include but are not limited to factories, power plants, and warehouses, as well as a secondary structure that is associated with the industrial structure. Hospitals, nursing homes, schools, and other public service facilities, because of the dangers inherent in bluff recession, will for purposes of setback requirements, be considered light and heavy industrial structures.
The useful life of the structure considering both economic
and physical factors.
Repair, reconstruction, or improvement of a structure occurring
over a five-year period, the aggregate cost of which equals or exceeds
50% of the market value of the structure either:
Substantial improvement is considered to occur when the first
alteration of any wall, ceiling, floor, or other structure part of
the building commences, whether or not that alteration affects the
external dimensions of the structure. The term does not, however,
include any project for improvement of a structure to comply with
existing state or local health, sanitary, or safety specifications
which are solely necessary to assure safe living conditions or any
alteration of a structure listed on the National Register of Historic
Places or a state inventory of historic places.
No person shall construct, install, or engage in substantial
improvement to any structure or utility facility, such as but not
limited to water, sewage, electric, gas, oil, or telephone in a designated
bluff recession hazard area without first obtaining a written permit
from the Code Enforcement Officer of Millcreek Township.
A.
The location and boundaries of the designated bluff recession hazard area shall be as defined in § 70-3 hereof and shall extend inland a horizontal distance of 100 feet from the bluff line.
B.
There is hereby established a minimum bluff setback distance from
the top of the bluff. The minimum bluff setback distance is 50 feet
for residential structures, 75 feet for commercial structures, and
100 feet for industrial structures. It should be noted that the foregoing
are minimum distances, and because of variations in local bluff recession
rates, cannot guarantee that a structure located in a bluff recession
hazard area will not be endangered by bluff recession within its useful
life span.
C.
Except as provided in § 70-5 hereof, no permit shall be granted under this Part 1 for the construction, installation, or substantial improvement of structures or utility facilities within the minimum bluff setback distance established by § 70-4B hereof. Substantial improvement does not include any project for improvement of a structure to comply with existing state or local health, sanitary, or safety specifications which are solely necessary to assure safe living conditions or any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places.
D.
A permit may be transferred only upon application to and written
approval by the Code Enforcement Officer. No permit shall be transferred
if a violation of this Part 1 exists at the time of application for
transfer unless the transfer will expedite correction of the violation.
A request for a variance to the permit requirements of § 70-4 thereof may be granted only in the following cases:
A.
When a parcel, established prior to a bluff recession hazard area
designation, does not have adequate depth considering the minimum
bluff setback requirements to provide for any reasonable use of the
land. The variance may be granted only when each of the following
criteria are met:
(1)
The structure and all associated structures and utility facilities
shall be located on the property as far landward of the bluff line
as allowed by other municipal ordinances.
(2)
The structure shall be designed and constructed to be movable in
accordance with proper engineering standards and building moving restrictions
applicable to the subject area prior to damage by bluff recession.
Structures in this category may include trailers or modular homes.
Review and approval of the design shall be conducted by the Code Enforcement
Officer. All construction materials, including foundations, shall
be removed or disposed of as part of the moving operation. Access
to and from the structure site shall be of sufficient width and acceptable
grade to allow for moving of the structure.
B.
When the proposed structure or utility facilities require access
to the body of water and there is no feasible alternative for obtaining
such access. A variance may be granted only for the discharge and
withdrawal lines (infrastructure) that provide lake water for operating
purposes and only when each of the following criteria are met:
(1)
During the construction, the applicant or persons engaged in the
actual placement of the infrastructure must utilize sound land use
practices which will reduce disruption of the bluff edge and bluff
face. These sound land use practices include but are not limited to
methods to minimize stormwater runoff, increased soil erosion, changes
to local drainage patterns, and changes to protective vegetative cover.
(2)
The infrastructure providing the utility facility or structure access to the lake will be designed and constructed so that it is adequate protection of the bluff, the construction of the infrastructure will occur in a manner that minimized potential adverse or long-term disruption of the bluff face and in conformance with the provisions of Title 25, Chapter 102, Erosion Control.
The Code Enforcement Officer, prior to issuing a building permit
for an improvement to a structure or utility facility within a bluff
setback distance, shall:
A.
Determine the cost of the proposed improvement.
B.
Calculate the market value of the structure or utility facility in
the manner prescribed by this Part 1.
C.
Review the municipal building permit records to determine if previous
permits for improvements have been issued during the previous five-year
period for this structure or utility facility.
D.
Determine whether this proposed improvement will be a substantial
improvement of the structure or utility facility.
E.
The Code Enforcement Officer will periodically inspect all permitted
activities in the bluff recession hazard area to ensure that all building
activities are being conducted in conformance with the provisions
of this Part 1.
F.
The Code Enforcement Officer will periodically tour the bluff recession
hazard area. The purpose of this tour will be to ensure that all building
activities are being conducted in conformance with the provisions
of this Part 1.
The Code Enforcement Officer shall maintain, in a permanent
file, all correspondence, requests for variance, applications for
permits, and issuance or denial of such permits.
A.
An agent or employee of the municipality shall have the power to,
upon presentation of proper credentials:
(1)
Enter any land for the purpose of surveying bluff recession hazard
areas.
(2)
Enter any land in a bluff recession hazard area for the purpose of
ascertaining the location of structure or structures.
(3)
Enter land or any structure located in a bluff recession hazard area
for the purpose of ascertaining the compliance or noncompliance with
this bluff setback ordinance.
B.
When an agent or employee has been refused access to property for the purposes of conducting a survey or inspection as authorized by this section or reasonably requires access to such property without prior notice to the owner, such agent or employee may apply for an inspection warrant to any commonwealth official authorized by law to issue a search or inspection warrant to enable him or her to have access and inspect such property. It shall be sufficient probable cause to issue an inspection warrant that the inspection is necessary to properly enforce the provisions of this Part 1.
A.
Civil penalties.
[Amended 8-28-2007 by Ord. No. 2007-6[1]]
(2)
A person found to have committed a first violation of this Part 1
shall pay a fine for violation in the sum of $600. A person found
to have committed a second or subsequent violation of this Part 1
shall pay a fine for violation in the sum of $1,000. In addition,
persons found to have violated this Part 1 shall pay all costs of
the enforcement, including attorney's fees incurred by the Township
in enforcement.
B.
Civil remedies.
(1)
Any activity conducted in violation of this Part 1 is declared to
be a public nuisance.
(2)
Suits to restrain, prevent or abate violations of this Part 1 adopted
may be instituted in equity or a law by any affected county or municipality,
or any aggrieved person. Such proceedings may be prosecuted in the
Commonwealth Court, or in the Court of Common Pleas of the County
where the activity has taken place, the condition exists, or the public
affected, and to that end jurisdiction is hereby conferred in law
and equity upon such courts. Except in cases of emergency where, in
the opinion of the court, the circumstances of the case require immediate
abatement of the unlawful conduct, the court may, in its decree, fix
a reasonable time during which the person responsible for the unlawful
conduct shall correct or abate the same. The expense of such proceedings
shall be recoverable from the violator in such manner as may now or
hereafter be provided by law.
A.
The following procedures shall be used by the municipality:
(1)
Appeals from the decision of the Code Enforcement Officer may be
made to the Zoning Hearing Board by any person aggrieved by any decision
of the Code Enforcement Officer. Such appeal shall be taken within
reasonable time as provided by the Rules of the Board, by filing with
the Code Enforcement Officer and with the Board a notice of appeal
specifying the grounds thereof. The Code Enforcement Officer shall
forthwith transmit to the Board all papers constituting the record
upon which the action appealed from was taken.
(2)
The Board shall hear and decide appeals and review any order, requirement,
decision, or determination made by the Code Enforcement Officer in
the enforcement or application of this Part 1, and upon such appeal
may, in accordance with the provisions of this Part 1, reverse or
affirm, wholly or in part, or modify any such order, requirement,
decision, or determination.
(3)
If after a permit has been authorized by the Board, and such permit
is not lifted from the office of the Code Enforcement Officer within
a period of six months from the date of authorization, then such authorization
shall be null and void and no permit shall be issued thereunder.
(4)
The Board shall fix a reasonable time for the hearing of an appeal,
shall give notice thereof as well as due notice, at least six days
prior to the hearing, in the press and by mail to the parties of interest
at the address filed with the appeal, and shall decide the same within
45 days from the Code Enforcement Officer's decision. Upon the hearing
of such appeal, any party may appear in person or be represented by
agent or attorney.
B.
An appeal of any action under this Part 1 shall not act as a supersedeas.
A supersedeas may be granted upon a showing by the petitioner:
(1)
That irreparable harm to the petitioner or other interested parties
will result if supersedeas is denied;
(2)
That there is a likelihood of the petitioner's success on the merits;
and
(3)
That the grant of a supersedeas will not result in irreparable harm
to the commonwealth, the court of competent jurisdiction may grant
such a supersedeas subject to such security as it may deem proper.
