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WHO?
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Who administers, regulates, enforces and interprets these
regulations for the Borough? Successful implementation of this
chapter to fulfill the community development objectives of the Borough
Comprehensive Plan involves many individuals and groups who work together
to advance the common interests of the community. The Borough Council,
Planning Commission, Zoning Officer, Code Enforcement Officer, and
Zoning Hearing Board all have important roles.
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It is the purpose of these regulations to prescribe the procedures
by which the administration of this chapter shall take place. Nothing
contained within this section shall be interpreted as limiting the
adoption of administrative regulations which do not supersede required
stated procedures.
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1.
For the administration of this chapter, a Zoning Officer, who shall
not hold any elective office in the Borough, shall be appointed by
the Borough Council.
2.
The Zoning Officer shall administer the Zoning Ordinance 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.
3.
It shall be the duty of the Zoning Officer, and the Zoning Officer
is hereby given the power and authority, to administer and enforce
the provisions of this chapter.
4.
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 may require.
5.
Permits for construction and uses which are a special exception or
variance to the requirements of this chapter shall be issued only
upon written order of the Zoning Hearing Board. Permits for a conditional
use to the requirements of this chapter shall be issued only upon
the written order of the Borough Council.
6.
With the approval of the Borough Council, or when directed by the
Borough Council or the Borough Manager, the Zoning Officer may institute
any appropriate action or proceeding to enforce the provisions of
this chapter.
7.
It shall be the duty of the Zoning Officer, or other qualified individual
authorized by the Borough Council, to make the minimum number of inspections
of property as deemed necessary by the Zoning Officer to ascertain
compliance with this chapter.
8.
The Zoning Officer shall issue denials of applications for permits
when noncompliance with the provisions of this chapter exists and
refer any appeal of the denial to the Zoning Hearing Board for action
thereon.
9.
The Zoning Officer shall revoke any order or permit issued under
a mistake of fact or contrary to the law or provisions of this chapter.
1.
Failure to comply with any provision of this chapter, or failure
to secure permit or Zoning Hearing Board certification, when required,
shall be violations of this chapter.
2.
Enforcement notice.
A.
The Zoning Officer is hereby authorized and directed to enforce the
provisions of this chapter and to institute civil enforcement when
acting within the scope of his or her employment.
B.
If it appears to the Borough that a violation of any provision of
this chapter has occurred, the Zoning Officer shall initiate enforcement
proceedings by sending an enforcement notice, as provided by Section
616.1 of the Pennsylvania Municipalities Planning Code, Act 247 of
1968, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10616.1.
C.
The enforcement notice shall be sent to the owner of record of the
tract on which the violation has occurred, to any person who has filed
a written request to receive enforcement notices regarding said tract,
and to any other person requested in writing by the owner of record.
D.
An enforcement notice shall state the following at a minimum:
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)
That the owner of record or other person against whom the Borough
of Mount Oliver intends to take action has 15 days to commence steps
to comply with this chapter and 30 days within which to complete such
steps to be in compliance with this chapter, unless such times are
extended, in writing, by the Zoning Officer, for cause shown.
5)
That the recipient of the notice has the right to appeal to
the Zoning Hearing Board within 30 days of the date of the enforcement
notice or not later than the expiration of any extension granted,
in writing, by the Zoning Officer.
6)
The 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.
E.
Any filing fees paid by a party to appeal an enforcement notice to
the Zoning Hearing Board shall be returned to the appealing party
by the municipality if the Zoning Hearing Board, or any court in a
subsequent appeal, rules in the appealing party's favor.
In the event that any building, structure, or land is, or is
proposed to be erected, constructed, reconstructed, altered, converted,
maintained, or used in violation of this chapter, the Borough Council
or, with the approval of the Borough Council, an officer of the Borough,
or any aggrieved owner or tenant or real property owner who shows
that his or her property or person will be substantially affected
by the alleged violation, in addition to other remedies, may institute
any appropriate action or proceeding to prevent, restrain, correct,
or abate such building, structure, landscaping of land, or to prevent,
in or about such premises, any act, conduct, business, or use constituting
a violation. Such action is instituted by a landowner or Borough Council
at least 30 days prior to the time the action is begun by serving
a copy of the complaint to the Borough Council.
1.
Any person, partnership, or corporation, who or which has violated
or permitted the violation of the provisions of this chapter, shall,
upon being found liable therefore in a civil enforcement proceeding
commenced by the Borough, pay a judgment of or 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 District Justice. If the defendant neither pays
nor timely appeals the judgment, the Borough may enforce pursuant
to the applicable rules of civil procedure. Each day that a violation
continues shall constitute a separate violation, unless the District
Justice determining that there has been a violation further determines
that there was a good faith basis for 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 District Justice and thereafter each day that a violation continues
shall constitute a separate violation. All judgments, costs, and reasonable
attorney fees collected for the violation shall be paid over to the
Borough of Mount Oliver.
2.
The Court of Common Pleas, upon petition of the defendant, may grant
an order of stay, upon cause shown, tolling the per diem fine pending
a final adjudication of the violation and judgment.
3.
Nothing contained in this section shall be construed or interpreted
to grant to any person or entity other than the Borough the right
to commence any action for enforcement pursuant to this section.
4.
All judgments, costs, and reasonable attorney fees collected for
the violation of this chapter shall be paid over to the Borough of
Mount Oliver.
1.
In addition to other remedies provided for herein, the Borough of
Mount Oliver may institute and maintain appropriate actions in law
or in equity to restrain, correct or abate violations, to prevent
unlawful construction, recover damages and to prevent illegal occupancy
of a building, structure or premises. The description by metes and
bounds in the instrument of transfer or other documents used in the
process of selling or transferring shall not exempt the seller or
transfer from such penalties or from the remedies herein provided.
2.
The Borough of Mount Oliver, its Zoning Officer or other officers
or officials, may refuse to issue any permit or grant any approval
necessary to further improve or develop any real property which has
been developed or which has resulted from a subdivision of real property
in violation of any provisions of this chapter. This authority to
deny any such permits or approvals shall apply to any of the following
applicants:
A.
The owner or record at the time of such violation.
B.
The vendee or lessee of the owner of record at the time of such violation
without regard as to whether such vendee or lessee had actual or constructive
knowledge of the violation.
C.
The current owner of record who acquired the property subsequent
to the time of violation, without regard as to whether such vendee
or lessee has actual or constructive knowledge of the violation.
D.
The vendee or lessee of the current owner of record who acquired
the property subsequent to the time of violation without regard as
to whether such vendee of lessee has actual or constructive knowledge
of the violation.
The Mount Oliver Borough Council shall, by resolution and in
accordance with Section 903 of Act 247 of 1968, as amended[1], appoint a Zoning Hearing Board consisting of three members,
and in accordance with Section 906 of Act 247 of 1968, as amended,[2] two alternate members. Said Zoning Hearing Board shall
have such duties, powers, jurisdiction, and authority as set forth
in Article IX of Act 247 of 1968, as amended.[3] Members and alternative members of the Zoning Hearing
Board shall be residents of Mount Oliver Borough and shall hold no
other elected or appointed office in Mount Oliver Borough.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
1.
Public notice shall be given and written notice shall be given to
the applicant, the landowner, the Zoning Officer, all owners of property
immediately adjacent to the affected tract of land, and to any person
who has made a written request for the same. Written notice shall
be given at least 15 days prior to the scheduled hearing. In addition
to the written notice provided herein, written notice of said hearing
shall be conspicuously posted on the affected tract of land at least
one week prior to the hearing.
2.
The first hearing before the Board or Hearing Officer shall be held
within 60 days from the date of receipt of the applicant's application,
unless the applicant has agreed, in writing, to an extension of time.
Each subsequent hearing before the Board or hearing officer shall
be held within 45 days of the prior hearing, unless otherwise agreed
to by the applicant in writing or on the record. An applicant shall
complete the presentation of his case-in-chief within 100 days of
the first hearing. Upon the request of the applicant, the Board or
hearing officer shall assure that the applicant receives at least
seven hours of hearings within the 100 days, including the first hearing.
Persons opposed to the application shall complete the presentation
of their opposition to the application within 100 days of the first
hearing held after the completion of the applicant's case-in-chief.
An applicant may, upon request, be granted additional hearings to
complete his case-in-chief, provided the persons opposed to the application
are granted an equal number of additional hearings. Persons opposed
to the application may, upon the written consent or consent on the
record by the applicant and municipality, be granted additional hearings
to complete their opposition to the application, provided the applicant
is granted an equal number of additional hearings for rebuttal.
3.
The hearings shall be conducted by the Board or the Board may appoint
any member or an independent attorney as a hearing officer. The decision,
or, where no decision is called for, the findings shall be made by
the Board; however, the appellant or the applicant, as the case may
be, in addition to the municipality, may, prior to the decision of
the hearing, waive decision or findings by the Board and accept the
decision or findings of the Hearing Officer as final.
4.
The parties to the hearing shall be the municipality, any person
affected by the application who has made timely appearance of record
before the Board, and any other person, including civic or community
organizations, permitted to appear by the Board. The Board shall have
power to require that all persons who wish to be considered parties
enter appearances, in writing, on forms provided by the Board for
that purpose.
5.
The Chairman or Acting Chairman of the Board or the hearing officer
presiding shall have power to administer oaths and issue subpoenas
to compel the attendance of witnesses and the production of relevant
documents and papers, including witnesses and documents requested
by the parties.
6.
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and argument and cross-examine adverse witnesses on all relevant issues.
7.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
8.
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. The appearance fee for a
stenographer shall be shared equally by the applicant and the Board.
The cost of the original transcript shall be paid by the Board if
the transcript is ordered by the Board or Hearing Officer or shall
be paid by the person appealing from the decision of the Board if
such appeal is made, and, in either event, the cost of additional
copies shall be paid by the person requesting such copy or copies.
In other cases, the party requesting the original transcript shall
bear the cost thereof.
9.
The Board or the Hearing Officer shall not communicate, directly
or indirectly, with any party or his representatives in connection
with any issue involved, except upon notice and opportunity for all
parties to participate, shall not take notice of any communication,
reports, staff memoranda, or other materials, except advice from their
Solicitor, unless the parties are afforded an opportunity to contest
the material so noticed, and shall not inspect the site or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
10.
The Board or the Hearing Officer, as the case may be, shall render
a written decision or, when no decision is called for, make written
findings on the application within 45 days after the last hearing
before the Board or Hearing Officer. Where the application is contested
or denied, each decision shall be accompanied by findings of fact
and conclusions based thereon together with the reasons therefor.
Conclusions based on any provisions of the Pennsylvania MPC[1] or of any ordinance, rule or regulation shall contain
a reference to the provision relied on and the reasons why the conclusion
is deemed appropriate in the light of the facts found. If the hearing
is conducted by a hearing officer and there has been no stipulation
that his decision or findings are final, the Board shall make his
report and recommendations available to the parties within 45 days
and the parties shall be entitled to make written representations
thereon to the Board prior to final decision or entry of findings,
and the Board's decision shall be entered no later than 30 days
after the report of the hearing officer.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
11.
Where the Board fails to render the decision within the period required
by this section or fails to commence, conduct or complete the required
hearing as herein provided, the decision shall be deemed to have been
rendered in favor of the applicant unless the applicant has agreed,
in writing or on the record, to an extension of time. When a decision
has been rendered in favor of the applicant because of the failure
of the Board to meet or render a decision as hereinabove provided,
the Board shall give public notice of said decision within 10 days
from the last day it could have met to render a decision. If the Board
shall fail to provide such notice, the applicant may do so. Nothing
in this subsection shall prejudice the right of any party opposing
the application to appeal the decision to a court of competent jurisdiction.
12.
A copy of the final decision or, where no decision is called for,
of the findings shall be delivered to the applicant personally or
mailed to him not later than the day following its date. To all other
persons who have filed their name and address with the Board not later
than the last day of the hearing, the Board shall provide, by mail
or other delivery, brief notice of the decision or findings and a
statement of the place at which the full decision or findings may
be examined.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudications in the following matters:
1.
Substantive challenges to the validity of any land use ordinance.
2.
Appeals from the determination of the Zoning Officer, including,
but not limited to, the granting or denial of any permit, or failure
to act on the application therefor, the issuance of any cease-and-desist
order or the registration or refusal to register any nonconforming
use, structure or lot.
3.
Appeals from a determination by a Municipal Engineer or the Zoning
Officer with reference to the administration of any floodplain or
flood hazard ordinance or such provisions within a land use ordinance.
4.
Applications for variances from the terms of this chapter and flood
hazard ordinance or such provisions within a land use ordinance.
5.
Applications for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
6.
Appeals from the determination of any officer or agency charged with
the administration of any transfers of development rights or performance
density provisions of this chapter.
7.
Appeals from the Zoning Officer's determination.
8.
Appeals from the determination of the Zoning Officer or Municipal
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and stormwater
management.
