Borough of Aldan, PA Chapter 163 Nonresidential Use and Occupancy

[HISTORY: Adopted by the Borough Council of the Borough of Aldan 12-14-1994 by Ord. No. 457. Amendments noted where applicable.]

GENERAL REFERENCES

Building construction — See Ch. 85.

Floodplain management — See Ch. 137.

Subdivision and land development — See Ch. 220.

Zoning — See Ch. 256.

§ 163-1 Purpose.

The purpose of this chapter is to ensure the proper use of land; to assure the safe use by the general public of property for nonresidential purposes; to maintain the appearance of the Borough of Aldan; to gather and disseminate information essential to the agencies who are entrusted to protect the health, safety and general welfare of the community; and to obtain information from those agencies to supply to nonresidential occupants.

§ 163-2 Title.

[Amended 2-11-1998 by Ord. No. 470]

This chapter regulating the use and controlling the occupancy of property for nonresidential purposes within the Borough of Aldan shall be known and may be cited as the "Nonresidential Use and Occupancy Ordinance."

§ 163-3 Scope.

A. All persons, partnerships, corporations and/or entities occupying, using, allowing to be occupied or used or intending to occupy or use any lot, building, real estate or section of any type of structure within the Borough of Aldan (hereafter referred to as "borough"), knowingly or unknowingly, are subject to this chapter.

B. No person, partnership, corporation and/or entity may operate a business or conduct other nonresidential uses without a valid, current use and occupancy permit, to be obtained annually.

C. The current use and occupancy permit must be prominently displayed at the place of business.

D. The "use" listed on the use and occupancy permit is the only permitted use for the designated "use" area.

E. Change of ownership of the property, change of use of the property or change of occupant of the property shall require a new use and occupancy certificate, thus necessitating a new application and inspection.

F. All persons, partnerships, corporations and/or entities must comply with Ordinance Nos. 388 and 458, Occupational Privilege Tax (as amended),[1] file forms and make timely payments to the Borough Tax Official.

[1] Editor's Note: See Ch. 231, Article II, Occupational Privilege Tax.

§ 163-4 Definitions.

Definitions shall be as listed in Ordinance No. 427, "Zoning Ordinance of the Borough of Aldan, Pennsylvania," Article II, Terminology, as amended,[1] and incorporating:

A. Business: providing goods and/or services in any manner regardless of compensation.

B. Multiple-family dwelling: hereafter referred to as "multifamily"; will include two-family structures as well as all previously defined multifamily structures.

C. Nonresidential definitions: as listed in the BOCA National Building Code version of 1993, Chapter Three, as amended.

[1] Editor's Note: See Ch. 256, Zoning, specifically §§ 256-5 and 256-6.

§ 163-5 Applicability.

Any person, partnership, corporation and/or entity (hereafter referred to as "applicant") using or causing to be used any lot, building, real estate or section of any type of structure for any purpose other than their private residence must make application to obtain a use and occupancy permit from the borough annually, on forms the borough will supply. All uses will be classified according to definitions outlined in § 163-4 of this chapter.

§ 163-6 Exclusions.

The following uses are not considered a business use for the purposes of this chapter:

A. Home office: storage and/or manipulation of records and information, incidental to the primary service or product of a business, when such work is performed solely by the resident of the dwelling in an area not to exceed 8% of the dwelling's habitable floor space.

B. Small business/educational: an accessory use for business, customarily conducted within a dwelling, which is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the dwelling's character, provided that such an occupation is operated and conducted solely by members of the family resident in the main building of a lot, provided that this use does not include on-site employees, salespersons or customers. This exception does allow for students, not more than three at one time and not more than six in any twelve-hour period.

§ 163-7 Restrictions.

A. Hours of operation are:

(1) Sunday through Thursday: 6:00 a.m. to 12:00 a.m.

(2) Friday and Saturday: 6:00 a.m. to 2:00 a.m.

B. All activity, displays, storage, etc., must be within the designated use area. No exterior activity or displays are permitted.

C. No consignment sales of merchandise are permitted unless these sales are the permitted use for and in the designated use area.

§ 163-8 Permit application requirements.

A. Zoning. All applicants must obtain a zoning permit for the subject property in accordance with the following provisions:

(1) Zoning Map of borough (as amended).

(2) Ordinance No. 427, Borough of Aldan Zoning Ordinance, Article III, Zoning Districts and Use Regulations (as amended).[1]

[1] Editor's Note: See Ch. 256, Zoning, Article III.

B. No application for a use and occupancy permit shall be processed by the borough before receipt of a zoning permit from the Zoning Officer.

C. Appeals from the determination of the Zoning Officer are to be made to the Aldan Borough Zoning Hearing Board, with fees and rules associated with such appeals, as outlined in Ordinance No. 427, Borough of Aldan Zoning Ordinance, Article VIII, Administration, §§ 256-56 and 256-57 (as amended).

D. All applicants for a use and occupancy permit must complete Form ABUO01 to be supplied by the borough, the contents of which are to be based on the following criteria.

(1) If a license is required by the Commonwealth of Pennsylvania or any other governmental agency for any activity associated with the use applied for on Form ABUO01, this license must be current and in the possession of the person required to be licensed. [See the Pennsylvania Small Business Operations and Resources Guide (as updated) for a partial list of business-related Pennsylvania state licenses.] A copy of this license must be attached to the application and the original must be prominently displayed at the location for which the application is made. No application for use and occupancy permit shall be processed by the borough before this license is acquired and a copy supplied to the borough with the Form ABUO01.

(2) New or changed business uses will require review and approval by the Pennsylvania Department of Labor and Industry. A copy of this approval and a copy of the approved plans must be attached to the application.

(3) Use must comply with all Pennsylvania and federal accessibility requirements. A statement of compliance and indications on the approved plans from the Pennsylvania Department of Labor and Industry must be attached to the application.

(4) All applicants must supply on the Form ABUO01 either their Commonwealth of Pennsylvania identification number or their federal employment identification number or their Commonwealth of Pennsylvania employer number.

§ 163-9 Issuance of permit.

A. Applications for a business use and occupancy permit will be accepted for processing only when all the following conditions are met:

(1) Completed form ABUO01.

(2) Zoning permit is issued and a copy is attached.

(3) Copy of current license(s) (as required).

(4) Copy of Commonwealth of Pennsylvania Department of Labor and Industry permit (new and or changed uses).

(5) Certificates of insurance:

(a) General liability: all properties.

(b) Workers' compensation: employers only.

(6) Fees as set by Borough Council resolution are paid.

B. Inspections.

(1) Action on applications shall be made by the borough within 60 days of acceptance of the completed application. These actions may include, but are not limited to:

(a) Inspection of property for compliance with all conditions of this chapter; and

(b) Issuance of use and occupancy permit indicating location, holder of permit, approved use and approved occupancy; or

(c) Issuance of refusal of use and occupancy permit, which will include:

[1] Name and address of applicant.

[2] Address of proposed use.

[3] Proposed use and occupancy.

[4] Reason(s) for denial.

[5] Name and signature of denying official.

[6] Notification of next Council meeting date for appeal purposes as outlined in § 163-12, Appeals, of this chapter.

(d) Issuance of temporary use and occupancy permit for the following reasons:

[1] Noncompliance with any provision of this chapter which does not, in the discretion of the borough, present sufficient reason for issuance of refusal; or

[2] Uncompleted correctional work which, in the discretion of the borough, does not present sufficient reason for issuance of refusal.

(2) Reinspection of businesses with temporary use and occupancy permits shall occur within 60 days. Temporary permits are not valid for more than 120 days from first date of issuance. Only one temporary permit is permitted within a twelve-month period.

(3) Inspections to determine continued compliance with all provisions of this chapter may be conducted by the borough at any time during regular business hours without notice.

C. A use and occupancy permit shall be issued when all of the following conditions are met:

(1) A proper zoning permit is issued by the Zoning Officer or variance/special exception is granted by the Zoning Hearing Board.

(2) Required license(s) from all appropriate government agencies are obtained and proof is supplied to the borough with the application.

(3) Commonwealth of Pennsylvania Department of Labor and Industry approval is obtained, when applicable.

(4) Requirements of federal and commonwealth handicap accessibility legislation have been met.

(5) Physical structure meets standards outlined in Ordinance No. 398, Borough of Aldan Building Code (as amended).[1]

[1] Editor's Note: See Ch. 85, Building Construction.

(6) Physical structure meets provisions outlined in Ordinance No. 399, Sanitation Code, Borough of Aldan (as amended).[2]

[2] Editor's Note: See Ch. 177, Plumbing and Sanitation.

(7) The exterior of the structure complies with Ordinance No. 396, the Borough of Aldan Property Maintenance Ordinance (as amended);[3] Ordinance No. 424, the Ordinance of the Borough of Aldan Regulating Curb Cuts and Driveway Construction (as amended);[4] and Ordinance No. 393, amending Ordinance No. 1, Sidewalks (as amended).[5]

[3] Editor's Note: See Ch. 181, Property Maintenance.

[4] Editor's Note: See Ch. 108, Driveways.

[5] Editor's Note: See Ch. 213, Art. I, Maintenance of Sidewalks.

(8) Off-street parking and signs conform as outlined in Ordinance No. 427, the Borough of Aldan Zoning Ordinance, Article VI, Signs (as amended).[6]

[6] Editor's Note: See Ch. 256, Zoning, Art. VI, Signs.

(9) All provisions of Ordinance No. 362, "The Protection of Public Health" (as amended),[7] are met and a certificate of compliance is issued by the Health Official.

[7] Editor's Note: See Ch. 185, Public Health.

D. A use and occupancy permit will be revoked by the borough and a cease operation order may be issued for the following causes:

(1) Making false or misleading statements on any application or information sheet.

(2) Failure to maintain applicable licenses associated with use stated in use and occupancy permit.

(3) Loss of Pennsylvania Department of Labor and Industry approval.

(4) Violations of Pennsylvania or federal handicap accessibility requirements.

(5) Failure to maintain physical structure in accordance with Subsection C of this section as outlined in issuance requirements.

(6) Violation of Ordinance No. 410, "An Ordinance Requiring the Installation of Approved Automatic Fire and Smoke Devices" (as amended);[8] Ordinance No. 423, the False Burglar Alarm And Fire Alarm Control Devices Ordinance (as amended);[9] Ordinance No. 450, the Borough of Aldan Fire Insurance Escrow Ordinance (as amended);[10] Ordinance No. 422, "Ordinance Providing for and Regulating the Collection of Ashes, Rubbish and Garbage" (as amended);[11] or Ordinance No. 436, the Borough of Aldan Nuisance Ordinance (as amended).[12]

[8] Editor's Note: See Ch. 202, Smoke Detectors.

[9] Editor's Note: See Ch. 64, Alarm Systems.

[10] Editor's Note: See Ch. 150, Art. I, Fire Insurance Claims.

[11] Editor's Note: See Ch. 206, Art. III, Ashes, Rubbish and Garbage.

[12] Editor's Note: See Ch. 167, Nuisances.

(7) Failure to file any and all tax returns required and pay all amounts when due pursuant to the Borough of Aldan Local Services Tax (as amended).[13]

[Amended 12-12-2007 by Ord. No. 496]

[13] Editor's Note: See Ch. 231, Art. II, Local Services Tax.

§ 163-10 Enforcement remedies.

A. If any building, structure or land is or is proposed to be erected, constructed, maintained or used in violation of this chapter or any cease operations order or similar order issued by the Building Inspector, the Borough Council or its authorized representative and or the Zoning/Building Official may, in addition to other remedies, institute in the name of the borough any and all appropriate civil, equitable or administrative proceedings or causes of action to prevent, restrain, correct or abate such building, structure or land use or to prevent in or about such premises any act, conduct, business or use constituting a violation of either this chapter or an order of the Building Inspector/Zoning Officer by any person, partnership, corporation or entity which owns, maintains, possesses or otherwise has control of the offending building, structure or land.

B. The Borough Council or its authorized representative and/or the Building Inspector may, in addition to the civil, equitable and administrative remedies authorized in Subsection A above, commence a civil enforcement proceeding, in the name of the borough, against any person, partnership, corporation or entity which has violated or permitted the violation of the provisions of this chapter or any order of the Building Official; and, upon a finding of liability against a defendant in any such civil enforcement proceeding, shall require the payment of a judgment of not more than $1,000, in addition to all court costs, expenses and attorney fees incurred by the borough as a result of such action.

C. The Court of Competent Jurisdiction within whose authority the building, activity, business or land which is the subject matter of any civil, equitable, administrative or civil enforcement action permitted by Subsections A and B above shall be the proper forum and venue for such proceedings.

D. If the defendant in any action or proceeding commenced within Subsections A and/or B above neither pays nor timely appeals the judgment, including all costs, fees and expenses regarding the proceedings contained with Subsections A and/or B above, the borough may enforce the judgment pursuant to the applicable Rules of Civil Procedure.

E. Each day that a violation of this chapter or any order of the Building Inspector/Zoning Officer continues shall constitute a separate and distinct violation.

§ 163-11 Violations and penalties.

A. Any person, partnership, corporation or entity who violates any provision of this chapter shall upon conviction thereof, be guilty of a summary offense punishable by a fine not to exceed $1,000 and or a term of incarceration not to exceed 30 days, in addition to all court costs, expenses and attorney fees incurred by the Borough.

B. Each day that a violation of this chapter continues shall constitute a separate and distinct offense.

§ 163-12 Appeals.

A. Appealable matters. The owner of a building, land or structure or any other person, partnership, corporation or entity with a direct involvement in the decision of the Borough Building Inspector may appeal a decision contrary to their interest to the Borough Council when such decision involves:

(1) The refusal to grant an exclusion from this chapter as per § 163-6;

(2) The refusal to grant a use and occupancy permit;

(3) The issuance of a temporary use and occupancy permit; or

(4) The issuance of a cease operations order.

B. Appeal procedures. Such an appeal shall be in writing, shall set forth the decision appealed from and the reasons for the appeal and shall be verified by affidavit. The original appeal shall be filed with the Borough Secretary, while simultaneously, a true and correct copy of the same shall be forwarded to the Borough Solicitor. It shall be the duty of the Borough Secretary to bring said appeal to the attention of the Borough Council, which shall proceed to consider said appeal at a special meeting to be fixed therefor or at the next regular meeting to be held at least 10 days but not more than 60 days after the date of the filing of such appeal. The appellant will be notified of this decision within 60 days of the date of this hearing, in writing. Any party participating in an appeal before the Borough Council shall have the right to:

(1) Appear and be heard.

(2) Be represented by counsel.

(3) Give or present a short opening or introductory statement.

(4) Present witnesses, evidence and testimony and cross-examination of hostile or opposing witnesses, so long as all of the foregoing is accomplished pursuant to the same rule applied by the courts of Pennsylvania or such lesser rules of evidence as permitted by the Borough Council.

(5) Give or present a short closing or concluding summary statement.

§ 163-13 Fee schedule.

Fees for application, inspections and issuance of use and occupancy permits will be set by the Borough Council by resolution.