[HISTORY: Adopted by the Council of the Borough of West Chester 20-2016 by Ord. No. 10-2016.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Stormwater management — See Ch. 94.
Subdivison and land development — See Ch. 97.
Zoning — See Ch. 112.
[1]
Editor's Note: This ordinance also superseded former Ch. 94A,
Stream Protection Fee, adopted 6-27-2016 by Ord. No. 5-2016.
This chapter shall be known as "the Borough of West Chester's
Stream Protection Fee Ordinance."
The Borough Council finds that:
A.
The Borough of West Chester owns, operates, and maintains stormwater
management facilities and infrastructure.
B.
The Borough currently incurs costs to operate and maintain the stormwater
management facilities and infrastructure, much of which was constructed
over 100 years ago.
C.
The collection and conveyance system for stormwater includes underground
pipes, inlets, catch basins, culverts, streets, curbs and drains.
D.
A comprehensive program of stormwater management is fundamental to
the public health, safety, and general welfare of the residents of
the Borough.
E.
The Borough must adhere to increased regulatory requirements for
managing the quantity and quality of stormwater runoff.
F.
Inadequate management of accelerated stormwater runoff increases
flooding, contributes to erosion and sedimentation, overtaxes the
capacity of surface streams and storm sewers, greatly increases the
cost of public facilities to convey and manage stormwater, undermines
floodplain management and flood reduction efforts in upstream and
downstream communities, reduces infiltration and groundwater recharge,
increases nonpoint source pollution to waterways, reduces ecological
health of the stream biota, and threatens public health and safety.
G.
Inadequate planning and management of stormwater runoff resulting
from land disturbance and development throughout a watershed can harm
surface water resources by changing the natural hydrologic patterns,
accelerating stream flows (which increase scour and erosion of stream
beds and stream banks, thereby elevating sedimentation), destroying
aquatic habitat, and elevating aquatic pollutant concentrations and
loadings such as sediments, nutrients, heavy metals, and pathogens.
H.
Groundwater resources are also impacted through loss of recharge
associated with the increased impervious area resulting from land
development and redevelopment.
I.
Stormwater is an important water resource that provides infiltration
and groundwater recharge for water supplies and baseflow of streams,
which also protects and maintains surface water quality.
J.
Impacts from stormwater runoff can be minimized by reducing the volume
of stormwater generated and by using project designs that maintain
the natural hydrologic regime and sustain high water quality, infiltration,
stream baseflow, and aquatic ecosystems.
K.
Public education on the control of pollution from stormwater is an
essential component in successfully addressing stormwater.
L.
Federal and state regulations require the Borough to implement a
program of stormwater controls. The Borough is required to obtain
a permit and comply with its provisions for stormwater discharges
from its Municipal Separate Storm Sewer System (MS4) under the National
Pollutant Discharge Elimination System (NPDES).
M.
Nonstormwater discharges to municipal or other storm sewer systems
can contribute to pollution of the waters of the Commonwealth.
N.
The Borough's streams have been designated as impaired by PADEP
and the Borough is required to control the discharge of certain pollutants
into the streams through a total daily maximum load. Specifically,
the following pollutant reduction requirements have been placed on
the Borough (Source: Draft MS4 Requirements Table revised 6-5-2016):
|
Impaired Downstream Waters or Applicable TMDL Name
|
Cause of Impairment
|
Requirement
| |
|---|---|---|---|
|
Chester Creek
|
Cause Unknown (5), flow alterations, water/flow variability
(4c)
|
Pathogens, siltation
| |
|
Goose Creek TMDL
|
Cause unknown (4a)
|
Nutrients
| |
|
Plum Run
|
Water/flow variability (4c)
|
Siltation
| |
|
Taylor Run
|
Cause unknown (4a), other habitat alterations (4c)
|
Siltation
| |
|
Brandywine Creek
|
n/a
|
Siltation
| |
|
Blackhorse Run
|
Other habitat alterations, water/flow variability (4c)
|
Siltation
|
O.
On December 9, 2013 and February 10, 2014, the Stormwater Management
Assessment Advisory Committee, hereinafter referred to as "SWMAC,"
presented a report to the Borough Council on "Stormwater Management
Assessment Fee Policy Options and Recommendations," which report summarized
the Borough's stormwater program needs and policy options for
funding those program needs.
P.
The SWMAC worked with Borough staff to define those program needs,
level of service and costs, and evaluated alternative funding options
that support the need for a dedicated funding source and recommended
creation of an impervious area based fee, referred to as the "stream
protection fee," or hereinafter referred to as the "fee," that would
be paid by all owners of properties in the Borough in direct proportion
to the amount of impervious area that is on their property using a
system of tiers as presented in this chapter. In addition, the SWMAC
recommended that the Borough establish a system of credits to incentivize
property owners to build and maintain stormwater management systems
on their property, and therefore reduce their fee.
The Borough is empowered to regulate and manage stormwater within
the Borough by the following acts and laws:
For the purposes of this chapter, certain terms and words used
herein shall be interpreted as follows:
A.
Words used in the present tense include the future tense; the singular
number includes the plural, and the plural number includes the singular;
words of masculine gender include feminine gender; and words of feminine
gender include masculine gender.
B.
The word "includes" or "including" shall not limit the term to the
specific example, but is intended to extend its meaning to all other
instances of like kind and character.
C.
The word "person" includes an individual, partnership, public or
private association or corporation, firm, trust, estate, Borough,
governmental unit, public utility or any other legal entity whatsoever
which is recognized by law as the subject of rights and duties. Whenever
used in any section prescribing or imposing a penalty, the term "person"
shall include the members of a partnership, the officers, members,
servants and agents of an association, officers, agents and servants
of a corporation, and the officers of a Borough.
D.
The words "shall" and "must" are mandatory; the words "may" and "should"
are permissive.
E.
The words "used" or "occupied" include the words "intended, designed,
maintained, or arranged to be used, occupied, or maintained."
F.
The definitions in this chapter are for the purposes of enforcing
the provisions of this chapter and have no bearing on other municipal
regulations or ordinances.
The dollar rate per base unit per month calculated by the
Director, and adopted by the Borough Council from time to time by
resolution.
One thousand square feet of impervious surface.
Activities, facilities, designs, measures, or procedures
used to manage stormwater impacts from Regulated Activities, to provide
water quality treatment, infiltration, volume reduction, and/or peak
rate control, to promote groundwater recharge, and to otherwise meet
the purposes of this chapter. Stormwater BMPs are commonly grouped
into one of two broad categories or measures: "structural" or "nonstructural."
In this chapter, nonstructural BMPs or measures refer to operational
and/or behavior-related practices that attempt to minimize the contact
of pollutants with stormwater runoff, whereas structural BMPs or measures
are those that consist of a physical device or practice that is installed
to capture and treat stormwater runoff. Structural BMPs include, but
are not limited to, a wide variety of practices and devices from large-scale
retention ponds and constructed wetlands to small-scale underground
treatment systems, infiltration facilities, filter strips, low impact
design, bioretention, wet ponds, permeable paving, grassed swales,
riparian or forested buffers, sand filters, detention basins, and
manufactured devices. Structural stormwater BMPs are permanent appurtenances
to the site.
A property subject to a condominium regime established under
the Pennsylvania Uniform Condominium Act.
Any property owner of a property in the Borough.
The Borough's Department of Public Works.
The 2006 Pennsylvania Stormwater Best Management Practices
Manual, as revised from time to time, which serves as the official
guide for stormwater management principles, methods, and practices
in Pennsylvania.
Property where manmade changes have been made which add impervious
surfaces to the property, which changes may include, but are not limited
to, buildings or other structures for which a building permit must
be obtained under the requirements of the Pennsylvania Building Code
and this Code, mining, dredging, filling, grading, paving, excavation
or drilling operations, or the storage of equipment or materials.
A project that consists of subdividing land or adding buildings
and other improvements to individual parcels of land.
The Director of the Department of Public Works of West Chester
Borough or the Director's designee.
That land area contributing runoff to a single point, including,
but not limited to, the point/line of interest used for hydrologic
and hydraulic calculations, and that is enclosed by a natural or man-made
ridge line.
Small-scale stormwater management practices, nonstructural
techniques, and better site planning to mimic natural hydrologic runoff
characteristics and minimize the impact of development on water resources.
Methods to design GI practices are specified in the Design Manual.
A surface that has been compacted or covered with a layer
of material so that it prevents or is resistant to infiltration of
water, including, but not limited to, structures such as roofs, buildings,
storage sheds; other solid, paved or concrete areas such as streets,
driveways, sidewalks, parking lots, patios, decks, swimming pools,
tennis or other paved courts; or athletic playfields comprised of
synthetic turf materials. For the purposes of determining compliance
with this chapter, highly compacted soils or stone surfaces used for
vehicle parking and movement shall be considered impervious. Surfaces
that were designed to allow infiltration (i.e., areas of porous pavement)
will be considered on a case-by-case basis by the Borough Engineer,
based on appropriate documentation and condition of the material,
etc.
The passage or movement of water into the soil surface.
National Pollutant Discharge Elimination System, the Federal
government's system for issuance of permits under the Clean Water
Act, which is delegated to PADEP in Pennsylvania.
Pennsylvania Department of Environmental Protection.
Each and every parcel of real estate located within West
Chester Borough.
A person, company or other entity hired by a property owner
to manage a Property.
The owner of record for a given property within the Borough,
as registered in the Office of the Recorder of Deeds for Chester County,
Pennsylvania.
Water that originates from precipitation.
The collection, conveyance, storage, treatment, and control
of stormwater as needed to reduce accelerated stream channel erosion,
flood damages and water pollution.
An infiltration device, filtering device, stormwater pond,
stormwater wetland, hydrodynamic structure, or other practice designed
and constructed to control stormwater to reduce accelerated stream
channel erosion and pollution of surface waters. A stormwater management
facility does not include environmental site design practices or any
nonstructural stormwater management systems.
The fund established from the collection of the Stream Protection
Fees authorized pursuant to this chapter.
The system of collection and conveyance, including underground
pipes, conduits, mains, inlets, culverts, catch basins, gutters, ditches,
manholes, outfalls, dams, flood control structures, natural areas,
structural and non-structural stormwater best management practices,
channels, detention ponds, public streets, curbs, drains and all devices,
appliances, appurtenances and facilities appurtenant thereto used
for collecting, conducting, pumping, conveying, detaining, discharging
and/or treating stormwater.
An assessment levied by the Borough to cover the cost of
constructing, operating, and maintaining stormwater management facilities
and to fund expenses related to the Borough's compliance with
PADEP NPDES permit requirements under applicable state law based on
the impact of stormwater runoff from impervious areas of developed
land in the Borough.
The inspection, construction, reconstruction, modification,
repair, and cleaning of any part of a stormwater management facility
undertaken to assure that the facility remains in the proper working
condition to serve its intended purpose and prevent failure. Structural
maintenance does not include landscaping, grass cutting, or trash
removal.
Any land that has not been altered from its natural state
and which contains no impervious surfaces, or, if previously developed,
land that has been allowed to return to its natural state with no
impervious surfaces.
The total drainage area contributing runoff to a single point.
A.
For the use of, benefit by and the services rendered by the stormwater
management system, including its operation, maintenance, repair, replacement
and improvement of said system and all other expenses, a stream protection
fee ("fee") as described, defined, and calculated herein is hereby
imposed upon each and every developed property within the Borough
that is connected with, uses, is serviced by or is benefitted by the
Borough's stormwater management system, either directly or indirectly,
and upon the owners of such developed property as set forth herein.
B.
Impervious area property tiers. For purposes of determining the appropriate
assessment rate for the fee, all properties are assigned to one of
the following tiers ("tier" or "tiers"):
(1)
Tier 1: For properties where the total impervious surface area is
greater than zero square feet and less than or equal to 1,000 square
feet.
(2)
Tier 2: For properties where the total impervious surface area is
greater than 1,000 square feet and less than or equal to 1,500 square
feet.
(3)
Tier 3: For properties where the total impervious surface area is
greater than 1,500 square feet and less than or equal to 2,000 square
feet.
(4)
Tier 4: For properties where the total impervious surface area is
greater than 2,000 square feet and less than or equal to 2,500 square
feet.
(5)
Tier 5: For properties where the total impervious surface area is
greater than 2,500 square feet and less than or equal to 3,000 square
feet.
(6)
Tier 6: For properties where the total impervious surface area is
greater than 3,000 square feet.
C.
Impervious area property tiers were developed using impervious estimates
based on Chester County's geographic information system (GIS)
impervious cover data layer from 2010.
A.
The Director will prepare the necessary data for collecting the fee
from property owners subject to the fee, including the identification
of every parcel of property to be charged and the amount of the fee.
B.
Prior to receipt of the first bill for the fee, all properties will
be issued an assessment notice by the Borough with the property's
estimated fee and the basis of that fee.
C.
The fee fixed and established by this chapter shall be effective
as to all developed properties that use, are served by or benefitted
by the stormwater management system existing as of the effective date
of this chapter. The first billing pursuant to this chapter shall
be on or about, October 1, 2016 and shall cover the fourth quarter
of 2016 Thereafter for subsequent years, the fee imposed by this chapter
shall be assessed and billed by the Borough effective as of January
1 each calendar year. Property owners shall have the option to pay
the fee in full within 30 days following the date on which the bill
was mailed and receive a 2% discount of the fee, Alternatively, owners
may pay the fee on a quarterly basis at face amount of the bill and
upon a schedule designated by Council.
D.
Bills for the fee or charges shall be paid by the owner of the property
and mailed to the address listed in the Chester County tax records
for the property served by the stormwater management system, unless
and until a different address is specified, in writing, by the owner
of such property to the Borough. Failure of the owner to receive a
bill as a result of an incorrect address or otherwise shall not excuse
payment of the fee or charges or extend the time for payment thereof.
It shall be incumbent upon all owners of developed property who are
subject to the fee to provide the Borough with the correct billing
address or any changes thereto.
E.
All fees not paid within 21 days of the due date of the bill shall
be deemed to be delinquent and shall be subject to a penalty of 1 1/2%
per month. All delinquent fees, together with interest, penalties,
charges and costs thereof, shall constitute a municipal claim against
the property or properties served by the stormwater management system
from the date the same first became due and payable. If such fees,
penalties and charges are not timely paid, the Borough shall file
a municipal lien against the property served pursuant to the procedure
established in the Pennsylvania Municipal Lien Law[1] and such lien shall be collected in the manner provided
for by law for the filing and collecting of such municipal liens.
The Borough is further authorized to collect reasonable attorneys'
fees that it incurs in the collection of any delinquent accounts.
In addition, the Borough may collect all delinquent fees, penalties,
interest and charges, including attorneys' fees, by referring
such delinquent claims to a collection agency, by filing an action
in assumpsit, or in any manner or by proceeding otherwise provided
by law. Any fees that the Borough incurs in exercising its legal remedies
shall be added to the amount of the delinquent account. All of the
Borough's remedies shall be cumulative.
[Amended 12-12-2017 by Ord. No. 20-2017]
[1]
Editor's Note: See 53 P.S. 37101 et seq.
F.
The Borough shall deposit all payments collected under this section
into the Borough Stormwater Management Fund.
G.
When Developed Properties are altered such that the amount of impervious
surface on the property increases or decreases, the fee will by revised
as of the date of the issuance of a building permit for the proposed
improvements which will alter the amount of impervious surface on
the property. A bill will be issued in the next billing cycle and
will be prorated for the number of days in which service was provided.
A.
The stream protection fee shall be calculated by multiplying the
base rate by the percentage amount listed herein for the appropriate
tier as follows:
(1)
The fee for each Tier 1 property is 50% of the applicable base rate.
(2)
The fee for each Tier 2 property is 125% of the applicable base rate.
(3)
The fee for each Tier 3 property is 175% of the applicable base rate.
(4)
The fee for each Tier 4 property is 225% of the applicable base rate.
(5)
The fee for each Tier 5 property is 275% of the applicable base rate.
B.
The stream protection fee for each Tier 6 property shall be computed
based on the actual impervious area on the property. The Director
shall compute the stream protection fee by dividing the actual impervious
area of the property by the number of base units, and then multiplying
the result by the base rate.
C.
The base rate utilized by the Director shall be the base rate as
established from time to time by Resolution of Borough Council.
D.
If the property is a condominium property, the Director shall calculate
the stream protection fee to be billed in equal shares to the condominium
units owners by dividing the total number of base units by the number
of individual condominium units and then multiplying that by the base
rate to determine the amount billable to each condominium unit owner
or in such other manners as may be promulgated by the Director in
policies and procedures based on square footage, types of condominium
units or other similar classification and calculations.
A.
All sums collected from the payment of stream protection fees shall
be deposited into the West Chester Borough Stormwater Management Fund.
B.
The Stormwater Management Fund shall be used by the Borough for:
(1)
Implementation and management of a program to manage stormwater within
the Borough.
(2)
Constructing, operating, and maintaining the Borough's Stormwater
Management System.
(3)
Debt service for financing stormwater capital projects.
(4)
Payment for other project costs and performance of other functions
or duties authorized by law in conjunction with the maintenance, operation,
repair, construction, design, planning and management of stormwater
facilities, programs and operations.
A.
The Borough may provide a system of credits against stream protection
fees for properties on which stormwater facility construction or maintenance
substantially mitigates the peak discharge or runoff pollution flowing
from such properties or substantially decreases the Borough's
cost of maintaining the stormwater management system.
B.
The Borough has developed written policies and procedures to implement
the credit system, known as the Stream Protection Fee Program Rebate
and Credit Policies and Procedures Manual ("Credit Manual"). The Credit
Manual may be updated from time to time by the Borough Council.
A.
The Borough has developed written policies and procedures to implement
the appeal process, known as Stream Protection Fee Program Appeal
Policies and Procedures Manual ("Appeals Manual"). The Appeals Manual
may be updated from time to time by the Borough Council.
B.
A property owner who believes the provisions of this chapter have
been applied in error may appeal in accordance with the provisions
of this section and as described in greater detail in the Appeals
Manual.
C.
An appeal of the assigned tier and/or the fee must be filed in writing
to the Borough Director of Public Works or his designee within 30
days of receipt of the notice of the assigned tier or fee. The appeal
must state in detail the basis and reasons for the appeal.
[Amended 12-12-2017 by Ord. No. 20-2017]
D.
The Director of Public Works or his/her designee shall review the
issues raised by the appeal and conduct an inspection of the property
if necessary. Within 30 days of the filing of the appeal, the Director
shall issue a written decision on the appeal and mail it to the property
owner by United States Postal Service first class mail. The date of
the decision shall be the date of mailing. The Director may adjust
the fee applicable to the property based on the decision and in accordance
with the provisions of this chapter.
[Amended 12-12-2017 by Ord. No. 20-2017]
E.
The property owner may file an appeal, in writing, from the decision of the Director of Public Works and request for a hearing to the office of the Borough Manager on a form provided by the Borough. The appeal must be received by the Borough within 10 days of the date of the decision under Subsection D hereinabove. Untimely appeals will be dismissed without further action or hearing. The appeal shall be heard and decided by the Borough Manager or his/her designee in accordance with §§ 553 through 555 of the Pennsylvania Local Agency Law. Written notice of the date, time and place of the hearing shall be mailed to the property owner by United States Postal Service first class mail to the address on the appeal form. A stenographic record of the hearing shall be made. The appearance fee of the stenographer shall be shared equally by the property owner and the Borough. The cost of the transcript shall be paid by the party requesting the transcript or taking an appeal under Subsection F herein below. The Borough Manager or his/her designee shall issue a written decision on the appeal within 30 days of the conclusion of the hearing and mail the decision to the property owner and the Borough Director of Public Works by United States Postal Service first class mail the day following the date of the decision. The date of the decision shall be the date of mailing.
[Added 12-12-2017 by Ord.
No. 20-2017[1]
F.
Any person aggrieved by a decision of the Borough Manager relevant
to the provisions of this chapter may appeal to the Court of Common
Pleas of Chester County, Pennsylvania.
G.
Borough Council may, from time to time, by Resolution, establish
fees for the processing and handling of an appeal.
The Borough Council or the Director may promulgate policies
and procedures, appeal applications and other forms relating to the
interpretation, enforcement and application of the provisions of this
chapter.
A.
Floods from runoff may occur that exceed the capacity of stormwater
facilities constructed and maintained by funds made available pursuant
to this chapter. This chapter does not imply that property subject
to the fees and charges established herein will be free from stormwater
flooding or flood damage. The Borough shall not be liable to any person
for any flood damage. Further, payment of a stream protection fee
to the Borough does not relieve a property owner from any local state
or federal requirements to obtain flood insurance or other laws applicable
to the property.
B.
The Borough, by taking any action pursuant to this chapter, does
not waive, reduce, lessen or impair the lawful police powers vested
in the Borough under applicable federal, state and local laws and
regulations.
C.
The failure of the Borough to insist on timely performance or compliance
shall not constitute a waiver of the Borough right to later insist
on the same. Further, the failure of the Borough to enforce any provision
of this chapter on any occasion shall not operate as a waiver or estoppel
of its right to enforce any provision of this chapter on any other
occasion, nor shall the failure to enforce any prior ordinance or
rule or regulation relating to sewer services, water services, stormwater
services, sewer charges, water charges or the stream protection fee,
act as a waiver or estoppel against enforcement of this chapter or
any other provision of applicable law.
