The purpose of this Article is to describe the procedures for
administration and enforcement of this Chapter and the duties and
responsibilities of the Zoning Officer and Zoning Hearing Board as
they pertain to this Chapter.
A.
The duty and authority of administration and enforcement of the provisions
of this Chapter is hereby conferred upon the Zoning Officer and his
or her subordinates and/or designees, who may not hold an elective
office in Millcreek Township.
B.
The Zoning Officer and such assistants and subordinates as are designated
by the Board of Supervisors shall have such duties and powers as are
necessary to administer and enforce this Chapter, including but not
limited to the following, which shall apply to the Zoning Officer
and all other authorized employees:
(1)
Shall receive and act upon applications for Permits to authorize
the erection, reconstruction, alteration or repair of and additions
to Buildings and Structures, Use Certificates, Sign Permits, and other
matters under this Chapter, and enforce compliance with this Chapter.
(2)
Shall receive and refer to the Zoning Hearing Board all applications
for variance, Use on Special Exception and other matters within the
jurisdiction of said Board.
(3)
Shall receive and refer to the Planning Commission and Board
of Supervisors all petitions requesting rezoning of properties.
(4)
Shall refer to the Board of Supervisors such other applications
or petitions as are directed to the Board of Supervisors for action.
(5)
Shall receive and refer to the Solicitor applications for subdivision
waiver approval and assist in review of such applications.
(6)
May, with the prior approval of the Board of Supervisors, engage
such expert opinions as the Board of Supervisors deems necessary to
report upon unusual technical issues which arise.
(7)
May consult with the Solicitor as the Board of Supervisors deems
necessary to seek clarification on legal issues which arise.
(8)
Shall be responsible for enforcement of this Chapter.
(9)
Shall approve and issue a Permit or certificate only when all
requirements for its issuance have been met.
(a)
Where all requirements for a Permit or certificate have not
been met, such officials shall in writing deny such application, the
writing to state the reason(s) for such denial.
(10)
Where a Permit or certificate has been issued in reliance upon
information submitted by the applicant, which is later found to be
materially untrue, or has been issued improvidently, such officials
shall have authority to revoke such issued Permit or certificate.
Such revocation shall be in writing and state the reason(s) for revocation,
and shall be sent to the Person to whom the Permit or certificate
was issued via U.S. certified mail and any other registered delivery
service at the discretion of the Zoning Officer.
(11)
Shall make such investigations as they deem necessary or appropriate
in performance of their duties, and shall carry proper identification
should they inspect Buildings or Premises in the performance of their
duties.
(12)
Shall issue all notices or orders necessary to act upon applications
and ensure compliance with this Chapter.
(13)
Shall issue all stop-work orders which may be necessary in event
of violations of this Chapter or of any issued Permit or certificate.
(14)
Shall communicate with the Building Code Official retained by
the Township to administer and enforce the Pennsylvania Construction
Code, and shall receive and maintain on file reports, permits, certificates
and other documents received from said Building Code Official. Communications
shall include all necessary or appropriate to proper administration
of the ordinances, including but not limited to notices of violation
of the respective regulations and assistance in enforcement proceedings.
(15)
Shall issue all notices and prosecute all actions necessary
to enforce this Chapter and Permits or certificates as issued.
(16)
Shall retain in permanent files all applications for Zoning
Permits, Use Certificates, petitions for rezoning, applications for
variance or Use on Special Exception, appeals and other documents
submitted to the Township or to the Zoning Hearing Board pursuant
to this Chapter and all decisions thereon.
(18)
Shall submit to the Board of Supervisors monthly and annual
written reports of UCC Construction Permits and of Zoning Permits
for activities which are regulated by this Chapter, and shall submit
to other appropriate governmental entities reports of such activities
as directed by the Board of Supervisors or its designee.
A.
Membership. The membership of the Board shall consist of three residents
of the Township to be appointed by resolution of the Board of Supervisors.
The Board of Supervisors by resolution may appoint at least one but
not more than three residents of the Township to serve as alternate
members of the Zoning Hearing Board. Other matters pertaining to the
Zoning Hearing Board's membership, removal of members, vacancies,
organization and expenditures shall be governed by Sections 903 and
905 through 907 of the MPC.[1]
[1]
Editor's Note: See 53 P.S. §§ 10903, 10905
and 10907, respectively.
B.
Jurisdiction. The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final adjudications in the following matters pursuant
to Section 909.1(a) of the MPC:[2]
(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 Township 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, the
floodplain or floor hazard ordinance or such provisions within the
land use ordinance as authorized below:
(a)
The Board shall hear requests for variances where it is alleged
that the provisions of this Chapter inflict unnecessary hardship upon
the applicant. The Board may grant a variance, after public notice
and hearing, if all the following findings are made where relevant
in a given case:
[1]
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 the 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 zoning
district in which the property is located.
[2]
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 that the authorization of
a variance is therefore necessary to enable the reasonable use of
the property.
[3]
That such unnecessary hardship has not been created by the appellant.
[4]
That the variance, if authorized, will not alter the essential
character of the neighborhood or zoning 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.
[5]
That the variance, if authorized, will represent the minimum
variance that will afford relief and will represent the least modification
possible of the regulation in issue.
(b)
In granting any variance, the Zoning Hearing Board may attach
such reasonable conditions and safeguards as it may deem necessary
to implement the purposes this Chapter.
(c)
When a variance that has been granted by the Zoning Hearing
Board is discontinued or Abandoned for 12 consecutive months, the
variance shall expire and is no longer authorized.
(5)
Applications for Special Exceptions under this Chapter, or floodplain
or flood hazard ordinance or such provisions within a land use ordinance
as authorized below:
(b)
The Zoning Hearing Board shall not approve a Use by Special
Exception unless and until a written application for approval of a
Use by Special Exception is submitted to the Zoning Officer, which
includes the following:
(c)
In approving a Special Exception request, the Zoning Hearing
Board may attach whatever reasonable conditions and safeguards it
deems necessary in order to ensure that the proposed development is
consistent with the purposes of this Chapter.
(d)
Approval of a Use by Special Exception shall expire automatically
without written notice to the applicant, if no application for a land
development plan, a Building Permit or an occupancy Permit to undertake
the construction or authorize the occupancy described in the application
for approval of the Use by Special Exception is submitted within 12
months of said approval, unless the Zoning Hearing Board, in its sole
discretion, extends approval of the Use by Special Exception upon
written request of the applicant received prior to its expiration.
The maximum extension permitted shall be one twelve-month extension.
(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 the zoning ordinance.
(8)
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving Article V or Article VII of the MPC applications.
[2]
Editor's Note: See 53 P.S. § 10909.1(a).
C.
Appeals and applications.
(1)
Forms. Appeals and applications to the Zoning Hearing Board
shall be submitted to the Zoning Officer on such Millcreek Township
forms, which may require such additional information as deemed appropriate.
(3)
Deadlines for submission of appeals and applications.
(a)
All appeals from determinations of the Zoning Officer or the Township Engineer under § 145-106B(2), (3), (7) and/or (8) of this Chapter shall be filed with the Zoning Officer not later than 30 days after the date of the determination or of enactment to which said appeal pertains.
(b)
The Board of Supervisors shall have authority to establish deadlines
for submission of appeals and applications for inclusion on a monthly
agenda of the Zoning Hearing Board, such deadlines to ensure that
public notice and other notice requirements of the MPC[6] and/or this Chapter are complied with.
[6]
Editor's Note: See 53 P.S. § 10101 et seq.
(4)
Transmission of documents to Board. The Zoning Officer shall
transmit to the Zoning Hearing Board all documents submitted with
an appeal or application and, where appeals from determinations or
enacted ordinances are filed, all documents constituting the record
upon which the action appealed from was taken.
(5)
Hearings. The Zoning Hearing Board shall conduct hearings and
make decisions in accordance with the following requirements:
(a)
Public Notice. Public notice shall be given in accordance with
the MPC[7] and written notice shall be given to the applicant, the
Zoning Officer, such other persons as the Board of Supervisors shall
designate by ordinance and to any Person who has made timely request
for the same. Written notices shall be given at such time and in such
manner as provided in Section 109 of the MPC.[8] 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.
(b)
Fees. The Board of Supervisors may prescribe reasonable fees
with respect to hearings before the Zoning Hearing Board. Fees for
said hearings may include compensation for the secretary and members
of the Zoning Hearing Board, notice and advertising costs and necessary
administrative overhead connected with the hearing. The costs, however,
shall not include legal expenses of the Zoning Hearing Board, expenses
for engineering, architectural or other technical consultants or expert
witness costs.
(c)
Scheduling of Hearing.
[1]
The first hearing before the Zoning Hearing Board or hearing
officer shall be commenced within 60 days from the date of receipt
of the applicant's application or appeal, unless the applicant
has agreed in writing to an extension of time.
[2]
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.
[3]
An applicant shall complete the presentation of their 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.
[4]
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.
[5]
An applicant may, upon request, be granted additional hearings
to complete their 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.
(d)
Discovery. At the discretion of the Chair of the Board, parties
may be permitted to conduct discovery, including depositions, to prepare
for the hearing. The Chair may issue an order within 20 days after
the filing of the appeal to allow for discovery, but in no event shall
discovery extend beyond 15 days prior to the first scheduled hearing,
unless approved by the Chair of the Board. Any party wishing to conduct
discovery shall submit a request to do so with the Board prior to
conducting such discovery, and no later than 20 days after the filing
of the appeal. All discovery disputes shall be resolved by the Chair
of the Board.
(e)
Conduct of Hearings. The hearings shall be conducted by the
Zoning Hearing Board or the Zoning Hearing 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 Township, 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.
[1]
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.
[2]
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
(f)
Parties. The parties to the hearing shall be the Township, 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 Zoning
Hearing 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.
(g)
Authority of Chair/Presiding Officer. 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.
(h)
Hearing Transcripts. 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.
(i)
Conduct of Board. The Zoning Hearing Board or the hearing officer
shall not communicate, directly or indirectly, with any party or their
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 their representative unless all parties are given an
opportunity to be present.
(j)
Decision. The Zoning Hearing 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 this Chapter,
the MPC,[9] or of any ordinance, rule, regulation or statute 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 their decision or findings are final, the Board
shall make the hearing officer's 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. Except
for challenges filed under Section 916.1 of the MPC,[10] where the Board fails to render the decision within the
period required by this subsection or fails to commence, conduct or
complete the required hearing as provided in Section 908(1.2) of the
MPC,[11] 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 in the same manner as provided
in Section 908(1) of the MPC. 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.
(k)
Service of Decision and Findings. 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 them 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 otherwise, brief notice of the
decision or findings and a statement of the place at which the full
decision or findings may be examined.
A.
When Permit Required. An application shall be submitted to the Zoning
Officer for the following activities, and it shall be unlawful and
a violation of this Chapter for any of the following activities to
commence without a Zoning Permit first being issued in accordance
with this Article:
(1)
Use of any Building or other Structure, or portion thereof,
hereinafter erected, reconstructed, changed, improved, enlarged, or
otherwise altered regardless of requirements for issuance of a Building
Permit, including placement of a manufactured home on a property.
(2)
Change in Use or occupancy of any Building or Structure, or
portion thereof.
(3)
Any change in the Use of land, except that the placing of vacant
land under cultivation shall not require a Permit.
(4)
Change in Use or expansion of a Nonconforming Structure, or
portion thereof.
(5)
Change in intensity of Use, or extending or displacing the Use
of any Building, Structure, and/or land.
(6)
Demolition or moving of a Building or Structure.
(7)
Construction of installation of swimming pools or spas holding
over 24 inches of water in depth.
(8)
Construction or alteration of Signs.
(9)
Beekeeping.
B.
Repairs. Application or notice to the Township is not required for ordinary repairs to Buildings or Structures, but such repairs shall not include: the cutting away of any wall, partition or portion thereof; removal or cutting of any structural beam or load-bearing support; removal or change of any required means of egress and/or rearrangement of parts of a Structure affecting the egress requirements; or addition to, alteration of or replacement or relocation of any standpipe, water supply, sewer, drainage, drain leader, gas, soil, waste, vent or similar piping, electric wiring, mechanical or other work affecting the public health or general safety. Certain repairs will require issuance of a UCC Permit and inspection(s) under Chapter 29, Code Enforcement, Part 3, Uniform Construction Code, even where a Zoning Permit is not required.
C.
Authorized Applicant. Application for a Zoning Permit shall be made
by the owner or lessee of the Building or Structure; or authorized
agent of either, or by the Building contractor or design professional
employed or retained by such owner or lessee in connection with such
work.
(1)
If the application is made by a Person other than the owner
in fee of the property, it shall be accompanied by an affidavit of
the owner to the effect that the proposed work is authorized by the
owner in fee, that the Person making such application is authorized
to do so on behalf of the owner; and that the owner shall be bound
by all representations made on the application and by all regulations
governing issuance of any Permit(s).
(2)
The full names and addresses of the owner, applicant and the
responsible officers, if the owner or the applicant is a corporation,
shall be set forth in the application.
D.
Application requirements.
(1)
All applications for Zoning Permits shall be made to the Zoning
Officer in writing on forms furnished by the Township and shall include
all information necessary to enable the Zoning Officer to ascertain
compliance with this Chapter along with such plans, documents and
fees as may be required.
(a)
Whenever the Use involves a new Building or Structure or alterations
to an existing Building or Structure, an application for a Zoning
Permit shall be made prior to application for a Building Permit.
(b)
When no construction is involved, application for a Zoning Permit,
Building Permit, and/or a Certificate of Occupancy may be made simultaneously
at any time prior to the Use or occupancy of the land, Building or
Structure.
(2)
Approvals required. No Zoning Permit shall be issued unless
the applicant submits with the application therefor written confirmation
or photocopies of all approvals of Township and other governmental
agencies required prior to such construction and/or Use, these including
but not limited to:
(a)
If a Building or Structure is to be served by public sewer,
a copy of the issued Permit to connect to the sewer system;
(b)
If a Building or Structure is to be served by on-Lot septic,
a copy of the Erie County Department of Health's septic approval
for the proposed Building, Structure and/or Use;
(c)
If a Building or Structure is to be served by public water and
water mains do not abut the Premises, written confirmation by the
water authority that it is prepared to extend such mains and that
applicant has furnished all required applications and fees therefor;
(d)
If required, recordation of an approved subdivision or land
development plan;
(e)
If required, a decision of the Zoning Hearing Board authorizing
issuance of such Permit;
(f)
A certification that the applicant has identified all government
agency approvals necessary which shall be sworn to before a notary
public or verified subject to 18 Pa.C.S.A. § 4904 regarding
unsworn falsification to authorities.
(3)
Service connections (demolition). Before a Building or Structure
is demolished or removed, the owner or owner's agent shall notify
all utilities having service connections within the Structure. A Zoning
Permit authorizing the demolition or removal of a Building or Structure
shall require that prior to issuance of a UCC Permit, the owner shall
submit to the Building Code Official a certification that all service
utilities and adjacent property owners have been notified of the proposed
demolition and that service connections have been removed. Such certification
shall be sworn or affirmed to before a notary public or verified subject
to the penalties governing unsworn falsification to authorities.
(4)
Permit Fees. All Zoning Permit applications or amended Zoning
Permit applications shall be accompanied with a fee in the amount
as set by the Board of Supervisors, and failure to do so renders the
application incomplete.
E.
Conditions on Permits.
(1)
A Zoning Permit issued shall authorize only the Use or construction
specified on the Permit and application, and no other.
(2)
A Zoning Permit shall not be issued until the fees prescribed
for it have been paid and all information required for its issuance
has been submitted in proper form to the Zoning Officer.
(3)
All work shall conform to the approved application for which
the Zoning Permit has been issued and any approved amendments to the
approved application or Permit.
(4)
All new work shall be located strictly in accord with the approved
site or plot plan.
(5)
If the land subject to the proposed Building, Structure, renovation
and/or addition is located within a subdivision or land development
previously approved by the Board of Supervisors, the owner(s) shall
be responsible for ensuring that all grading, stormwater management,
easements, conditions and other terms imposed on the approved plan
are preserved and/or complied with during and after construction.
A grading plan shall be required whenever revision to the approved
grading plan is proposed.
(6)
If the applicant proposes to construct sidewalks and/or a driveway or other Street access, the owner shall be responsible for ensuring that such sidewalks, driveway(s) and other Street access are constructed in full conformity with the Americans with Disabilities Act and associated regulations and Township specifications therefor as set forth in the Required Improvements Section of Chapter 125, Subdivision and Land Development, of the Millcreek Township Code.
(7)
A Zoning Permit shall be a license to proceed with the work and shall not be construed as authority to violate, cancel or set aside any of the provisions of this Chapter, Chapter 29, Code Enforcement, Part 3, Uniform Construction Code, or any other ordinance or regulation governing the work, except as specifically stipulated by legally granted variance as described in the application.
(8)
No Permit shall be issued to any applicant or owner who is then
in violation of the terms of a Zoning Permit, Sign Permit, Building
Permit, development plan approval or agreement, Use Certificate, Certificate
of Occupancy or other governmental approval and/or Township ordinance
or regulation.
F.
Amendments to applications.
(1)
Subject to the limitations of § 145-107J, amendments to a plan, application or other records accompanying the same shall be filed at any time before completion of the work for which the Zoning Permit is sought or issued.
(2)
Such amendment(s), if approved and accompanied by any required
fee, shall be deemed part of the original application and shall be
filed therewith.
G.
Action on application. The Zoning Officer shall examine or cause
to be examined all applications for Permits and certificates and amendments
thereto within a reasonable time after filing of all required documents.
The following shall apply:
(1)
If the application does not conform to the requirements of all
pertinent laws, the Zoning Officer shall reject such application in
writing, stating the reasons for rejection.
(2)
If the Zoning Officer is satisfied that the proposed work conforms
to the requirements of this and other applicable ordinances, they
shall issue a Permit or certificate as soon as practicable.
H.
Suspension or revocation of Permit. A Permit issued under this Chapter
may be suspended or revoked by the Zoning Officer if it is determined
that the terms of the Permit as issued have been violated, that the
application was based upon false or misleading information, that conditions
imposed on the Permit as issued have not been satisfied by the applicant
in timely fashion or that applicant has failed to commence or complete
work authorized within the time period authorized by the Permit.
I.
Signature to Permit. The signature of the Zoning Officer or his or
her designee shall be attached to every Permit or certificate issued
by the Township.
J.
Time limitations on applications and Permits.
(1)
An application for a Zoning Permit for any proposed work and/or
a Sign Permit shall be deemed to have been Abandoned six months after
the date of filing, unless such application has been diligently prosecuted
or a Permit shall have been issued; provided, that the Zoning Officer
shall have authority to grant one or more extensions of time for additional
periods not exceeding 90 days each where good cause is shown.
(2)
A Zoning Permit shall become invalid if the applicant has not
obtained a Building Permit, where required, within six months after
issuance of the Zoning Permit, or if the authorized work has not commenced
within six months after the date on which the Zoning Permit or Building
Permit for the activity was issued, whichever is later.
(3)
Authorization granted by the Zoning Hearing Board or a court
of appropriate jurisdiction under a variance allowing issuance of
a Permit shall be valid for a period of six months from the date of
the Zoning Hearing Board's or court's decision, whichever
is later, and shall expire and become null and void if an application
for the authorized Permit is not submitted as required by this Article
within six months after the date of said decision.
A.
A Use Certificate shall serve as confirmation that a property is
zoned for the Use proposed in the application and that requirements
established in this Chapter for application for, issuance of and compliance
with Permits as issued have been met.
B.
Issued in conjunction with zoning permit. When a Zoning Permit and
a Use Certificate are required under this Chapter, an approved and
issued Zoning Permit also shall act as the Use Certificate.
(1)
A Use Certificate, either for the whole or any part of a new
Building or Structure or for alteration of an existing Building or
Structure shall be applied for contemporaneously with application
for a Zoning Permit, at which time all fees prescribed therefor shall
be paid.
(2)
A Use Certificate shall also be required in order to maintain,
renew, change, expand or extend a Nonconforming Use existing at the
time of the enactment of the Zoning Ordinance and Zoning Map, or any
amendments thereto, and shall state that the Use does not conform
with the provisions of the Zoning Ordinance and/or Zoning Map.
C.
Issued independent of Zoning Permit.
(1)
A Use Certificate for Use of vacant land or for the change in
Use of land or for the change in Use of an existing Building or Structure
not requiring a Zoning Permit shall be applied for and issued before
any change in the Use of land or of any Building or Structure may
be made.
(2)
The owner or authorized representative may apply for a Use Certificate
in order to demonstrate that the property is zoned for the Use proposed
in the application and that requirements established in this Chapter
for application for, issuance of and compliance with Permits as issued
have been met.
(3)
A Use Certificate shall not be deemed or interpreted to constitute a Certificate of Occupancy or a certification by Millcreek Township that construction, reconstruction, alteration, demolition or other like activity has been conducted in accordance with standards prescribed in this Chapter, in the Millcreek Township Code, Chapter 29, Code Enforcement, Part 3, Uniform Construction Code, and Chapter 125, Subdivision and Land Development, and other ordinance enacted by the Township or other governmental entity nor shall it be presumed to involve an inspection of such construction activity.
(4)
A record of all Use Certificate applications and issued certificates
shall be kept on file in the office of the Zoning Officer.
(5)
The Zoning Officer shall refuse to issue a Use Certificate until
and unless all requirements for its issuance have been met. If an
application for a Use Certificate is not made and/or fees therefor
paid in the time and manner prescribed in this Section, no Use Certificate
shall be warranted or issued.
Applications for Permits. In all cases, any application for
a Permit of any of the types described in this Chapter shall be decided
not only on the basis of compliance with this Chapter, but also on
the basis of compliance with all other applicable Township ordinances
and all other applicable rules and regulations of the various Township
authorities and agencies which might be concerned, as well as applicable
state and federal requirements and permits known by the Township.
A.
Procedure for Approval. The Township Board of Supervisors shall hear
and decide requests for Conditional Uses; however, the Board of Supervisors
shall not approve a Conditional Use unless and until:
(1)
A written application for Conditional Use approval is submitted
to the Zoning Officer no less than 10 working days prior to the regular
meeting of the Planning Commission. The application shall indicate
the Section of this Chapter under which Conditional Use approval is
sought and shall state the grounds upon which it is requested. The
application shall include the following:
(a)
A preliminary land development plan, if required by the Subdivision
and Land Development Ordinance,[1] or if a land development plan is not required, a current
drawing of the property indicating all existing and proposed Structures
and all proposed construction, additions or alterations on the site
in sufficient detail to determine the feasibility of the proposed
development and compliance with all applicable requirements of this
Chapter.
(b)
A written statement showing compliance with the applicable Supplemental Regulations of Article V of this Chapter for the proposed Use.
(c)
The application fee required by this Chapter.
(2)
A written recommendation is received from the Planning Commission
or 45 days has passed from the date of the Planning Commission meeting
at which the application is first considered as complete and properly
filed for approval.
(3)
A public hearing is conducted by the Board of Supervisors pursuant
to public notice and said hearing is scheduled no more than 60 days
following the date of submission of a complete and properly filed
application.
(4)
The Board of Supervisors shall render a written decision within
45 days after the last public hearing. Where the application is contested
or denied, the decision shall be accompanied by findings of fact and
conclusions based thereon. Conclusions based on any provision of this
Chapter or any other applicable rule or regulation shall contain a
reference to the provision relied upon and the reasons why the conclusion
is deemed appropriate in light of the facts found.
(5)
Standards and Criteria for Approval. In deciding all applications
for Conditional Uses, the Board of Supervisors shall be guided by
the following standards and criteria:
(a)
The proposed Use conforms to the applicable regulations of the
zoning district.
(b)
The recommendation of the Millcreek Township Planning Commission.
(c)
Anticipated levels of traffic congestion, noise, Glare, and
pollution created by the proposed Use will be similar to the levels
created by the Uses permitted in that zoning district.
(d)
Any visual or functional conflicts between the proposed Use
and surrounding existing Uses shall be kept to a minimum. Increased
Setbacks, planted buffers, wooden fences or other measures may be
required by the Township to minimize potential conflicts, or to reduce
anticipated levels of noise. Visual and functional conflicts include,
but are not limited to, loading docks, parking lots, service driveways,
or large nonresidential Buildings adjacent to residential neighborhoods
or open space areas, without adequate buffering.
(e)
In granting a Conditional Use, the Board of Supervisors may
attach whatever reasonable conditions and safeguards it deems necessary
in order to ensure that the proposed development is consistent with
the purposes of this Chapter.
(6)
Conditional Use approval shall expire automatically without
written notice to the applicant, if no application for a Building
Permit or an occupancy Permit to undertake the construction or authorize
the occupancy described in the application for Conditional Use approval
is submitted within 12 months of said approval, unless the Board of
Supervisors, in its sole discretion, extends Conditional Use approval
upon written request of the applicant received prior to its expiration.
The maximum extension permitted shall be one twelve-month extension.
(7)
All appeals from all decisions rendered pursuant to this Section
shall be taken to the Court of Common Pleas of Erie County and shall
be filed within 30 days after entry of the decision as provided in
42 Pa.C.S.A. § 5572 (relating to time of entry of order)
or, in the case of a deemed decision, within 30 days after the date
upon which notice of said deemed decision is given as set forth in
Section 908(9)2 of the MPC.[2]
[2]
Editor's Note: See 53 P.S. § 10908(2).
A.
The Board of Supervisors may introduce and/or consider amendments
to this Chapter and to the Zoning Map, as proposed by the Board of
Supervisors or by the Township Planning Commission or by a petition
of landowners of property within the Township.
B.
Petitions for amendments shall be filed with the Millcreek Township
Planning Commission at least 30 calendar days prior to the meeting
at which the petition is to be heard. In the case of a petition for
rezoning of property, the petitioners, upon such filing, shall submit
a legal description of the property proposed to be rezoned. All petitions
shall include a statement justifying the request and documenting consistency
with the Comprehensive Plan and a filing fee, in accordance with the
fee schedule fixed by resolution of the Township Board of Supervisors.
The Planning Commission shall review the proposed amendment and report
its findings and recommendations in writing to the Township Board
of Supervisors.
C.
Any proposed amendment presented to the Township Board of Supervisors
without written findings and recommendations from the Planning Commission
and the Erie County Planning and Community Development Department
shall be referred to these agencies for review at least 30 days prior
to the public hearing of the Board of Supervisors. The Board of Supervisors
shall not hold a public hearing upon such amendments until the required
reviews are received or the expiration of 30 days from the date of
referral, whichever comes first.
D.
Public Notice of Hearing.
(1)
Before acting on a proposed amendment, the Township Board of
Supervisors shall hold a public hearing thereon, pursuant to public
notice, and pursuant to mailed notice and electronic notice to an
owner of a tract or Lot of land located within the Township or an
owner of the mineral rights in a tract or Lot of land within the Township
who has made a timely request in accordance with the MPC.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
If the proposed amendment involves a change to the Zoning Map,
notice of the public hearing shall be conspicuously posted by the
Township at points deemed sufficient by the Township along the tract
to notify potentially interested citizens at least seven days prior
to the date of the public hearing.
(3)
In addition to the requirement that notice must be posted, where
the proposed amendment involves a Zoning Map change, notice of the
public hearing shall be mailed by the Township at least 30 days prior
to the date of the hearing by first class mail to the addresses to
which real estate tax bills are sent for all real property located
within the area being rezoned, as evidenced by tax records within
the possession of the Township. The notice shall include the location,
date and time of the public hearing. The notice shall also include
a reference to the place in the Township where copies of the proposed
amendment may be examined without charge or obtained for a charge
not greater than the cost thereof. This subsection shall not apply
when the rezoning constitutes a comprehensive rezoning.
E.
If after any public hearing is held upon a proposed amendment, the
amendment is substantially changed or revised to include land not
previously affected by the amendment, the Township Board of Supervisors
shall hold another public hearing, pursuant to public notice, mailed
notice and electronic notice before proceeding to vote on the amendment.
F.
The Township Board of Supervisors shall publish the proposed amendment
once a week for two successive weeks in a newspaper of general circulation
in the Township not more than 30 nor less than seven days prior to
passage. Publication of the proposed amendment shall include either
the full text thereof or the title and a brief summary prepared by
the Township Solicitor setting forth all the provisions in reasonable
detail. If the full text is not included:
G.
Within 90 days of the date when the public hearing on the proposed
amendment is officially closed, the Township Board of Supervisors
shall vote on the proposed amendment. In the event substantial amendments
are made in the proposed amendment, The Township Board of Supervisors
shall re-advertise in one newspaper of general circulation in the
Township a brief summary of the amendments at least 10 days prior
to enactment.
H.
Within 30 days after enactment, a copy of the amendment to this Chapter
shall be forwarded to Erie County Planning and Community Development
Department.
If the Township determines that its Zoning Ordinance or any
portion thereof is substantially invalid, it shall take the following
actions:
A.
The Township shall declare, by formal action, its Zoning Ordinance
or portions thereof substantively invalid and propose to prepare a
curative amendment to overcome such invalidity. Within 30 days following
such declaration and proposal the Board of Supervisors shall:
B.
In the event of the failure of a majority of the Board of Supervisors
to declare this Chapter or portions thereof substantially invalid
within the 30 days following such declaration, the declaration shall
be deemed null and void.
C.
Within 180 days from the date of the declaration and proposal, pursuant to Subsection A, above, the Township shall enact a curative amendment to validate or reaffirm the validity of this Chapter pursuant to the provisions required by the Section 609 of the MPC[1] in order to cure the declared invalidity of this Chapter.
[1]
Editor's Note: See 53 P.S. § 10609.
D.
Upon the initiation of the procedures by the Township as set forth in Subsection A, the Board of Supervisors shall not be required to entertain or consider any landowner's curative amendment as provided for within the Municipalities Planning Code,[2] nor shall the Zoning Hearing Board be required to give a report requested under Sections 909.1 or 916.1 of the MPC subsequent to the declaration and proposal based upon the grounds identical to or substantially similar to those specified in the resolution required by Subsection A(1) above.
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
E.
Upon completion of the procedures as set forth in Subsection A(1) and (2) above, no rights to a cure pursuant to the provisions of the Municipalities Planning Code,[3] shall, from the date of the declaration and proposal,
accrue to any landowner on the basis of the substantive invalidity
of the unamended Zoning Ordinance for which there has been a curative
amendment pursuant to this Section.
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
F.
The Township, having utilized the procedures as set forth in Subsections A and C above, may not again utilize said procedures for a thirty-six-month period following the date of the enactment of a curative amendment or reaffirmation of the validity of this Chapter, pursuant to Subsection C; provided, however, if after the date of declaration and proposal there is a substantially new duty or obligation imposed upon the Township by virtue of a change in statute or by virtue of a Pennsylvania Appellate Court decision, the Township may utilize the provisions of this Section to prepare a curative amendment to this Chapter to fulfill said duty or obligation; provided, however, that the Township shall not be deemed to have utilized the procedures set forth in Subsections A and B either if the Township takes formal action to not declare this Chapter invalid in accordance with Subsection A or if they fail to act in accordance with Subsection A.
A.
Any landowner in the Township may submit a written proposal, on the
form provided by the Township, requesting an amendment of this Chapter
or Zoning Map as they relate to the landowner's property, and
shall pay the fee fixed by the Township for such a submission.
B.
Applications for amendment of this Chapter shall be presented or
postmarked to Township and shall contain the materials specified below:
(1)
The applicant's name and address and his representative
and the interest of every Person represented in the application;
(2)
A fee as specified by the Township charged to any Person or
persons desiring to amend this Chapter;
(3)
A plan showing the extent of the area to be rezoned; Streets
bounding and intersecting the area; the land Use and zone classifications
of abutting zoning districts, and photographs of the area to be rezoned
and abutting areas;
(4)
A statement of the circumstances in the proposed zoning district
and the abutting zoning districts and any other factors on which the
applicant relies as reasons for supporting the proposed rezoning;
(5)
The approximate time schedule for the beginning and completion
of development in the area;
(6)
A site plan to scale, indicating the location of Structures,
Uses, and areas for off-Street parking and loading.
C.
The Township shall commence a hearing thereon within 60 days of the
request.
D.
The curative amendment and challenge shall be referred to the Planning
Commission and the Erie County Planning Agency for review and commentary.
The Township shall also advertise the proposed amendment as required
by the MPC[1] and, if the proposal involves any change to the Zoning
Map, any affected property shall be posted.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
E.
If the Township determines that a validity challenge has merit, the
Township may accept a landowner's curative amendment, with or
without revision, or may adopt an alternative amendment that will
cure the challenged defects. The Township shall consider the curative
amendments, plans, and explanatory material submitted by the landowner
and shall also consider:
(1)
The impact of the proposal upon Roads, sewer facilities, water
supplies, schools and other public service facilities;
(2)
If the proposal is for a residential Use, the impact of the
proposal upon regional housing needs and the effectiveness of the
proposal in providing housing units of a type actually available to
and affordable by classes of persons otherwise unlawfully excluded
by the challenged provisions of this Chapter or Map;
(3)
The suitability of the site for the intensity of Use proposed
by the site's soils, slopes, woodlands, wetlands, floodplains,
aquifers, natural resources, and other natural features;
(4)
The impact of the proposed Use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources, and natural features;
the degree to which these are protected or destroyed, the tolerance
of the resources to development and any adverse environmental impacts;
and
(5)
The impact of the proposal on the preservation of agriculture
and other land Uses which are essential to public health and welfare.
F.
If the Township does not accept a landowner's curative amendment
and a court subsequently rules that the challenge has merit, the court's
decision shall not result in a declaration of invalidity for the entire
zoning ordinance and map, but only for those provisions which specifically
relate to the landowner's curative amendment and challenge.
A.
Notice of Enforcement.
(1)
If it appears to the Township that a violation this Chapter
has occurred, in order to initiate enforcement proceedings, the Township
shall send an Enforcement Notice as provided in this Section.
(2)
The Enforcement Notice shall be sent to the owner of record
of the Lot on which the violation has occurred, to any Person who
has filed a written request to receive Enforcement Notices regarding
that Lot, and to any other Person requested in writing by the owner
of record.
(3)
An Enforcement Notice shall state at least the following:
(a)
The name of the owner of record and any other Person against
whom the municipality intends to take action.
(b)
The location of the property in violation.
(c)
The specific violation with a description of the requirements
which have not been met, citing in each instance the applicable provisions
of this Chapter.
(d)
The date before which the steps for compliance must be commenced
and the date before which the steps must be completed.
(e)
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 procedures set forth in this Chapter.
(f)
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.
(4)
In any appeal of an Enforcement Notice to the Zoning Hearing
Board, the Township shall have the responsibility of presenting its
evidence first.
(5)
Any filing fee paid by a party to appeal an Enforcement Notice
to the Zoning Hearing Board shall be returned to the appealing party
by the Township if the Zoning Hearing Board or any court in a subsequent
appeal rules in the appealing party's favor.
B.
Enforcement Remedies.
(1)
District Magisterial Judges shall have initial jurisdiction
over proceedings brought under this Section.
(2)
Any Person who or which has violated or permitted the violation of any provision(s) of this Chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the Township in accordance with Chapter 48, Enforcement and Collection Activities, Article I, Ordinance Enforcement, as amended, pay a judgment of $500 for each such violation, plus all court costs and including reasonable attorney's fees incurred by the Township as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of determination of a violation by the District Magisterial Judge. If the defendant neither pays nor timely appeals the judgment entered by the District Magisterial Judge, the Township 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 District Magisterial Judge determining that there has been a violation further determines that there was a good faith basis for the Person violating the 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 Magisterial Judge. Thereafter, each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of this Chapter shall be paid over to Millcreek Township.
(3)
The Court of Common Pleas, upon petition, may grant an order
of stay, upon cause shown, tolling the per diem fine pending a final
adjudication of the violation and judgment.
(4)
Nothing contained in this Section shall be construed or interpreted
to grant to any Person or entity other than the Township the right
to commence any action for enforcement pursuant to this Section.
C.
Action to Prevent, Restrain, Correct or Abate.
(1)
In case any Building, Structure, landscaping or land is, or
is proposed to be, erected, constructed, reconstructed, altered, converted,
maintained or used in violation of this Chapter, the Board of Supervisors,
or, with the approval of the Board of Supervisors, a Zoning Officer
and/or the Township Solicitor, in addition to other remedies, may
institute any appropriate action or proceeding to prevent, restrain,
correct or abate such Building, Structure, landscaping or land, or
to prevent, in or about such Premises, any act, conduct, business
or Use constituting a violation. Election by the Township of one or
more remedies shall not be deemed to exclude exercise of other available
remedies.
(2)
Removal of Signs.
(a)
Upon written notice by the Township, the owner, Person, or firm
maintaining a Sign shall remove the Sign when it is Abandoned or unlawfully
erected in violation of any of the provisions of this Chapter.
(b)
Any Sign in violation of the regulations in Article VI governing prohibited Signs shall be removed within 10 days after notice from the Township to do so.
(c)
The Township may remove or cause to be removed the Sign at the
expense of the owner and/or lessee in the event of the owner or the
Person or firm maintaining the Sign has not complied with the terms
of the notice within 30 days of the date of the notice.
(d)
If a Sign presents an immediate danger, the Township may remove
the Sign immediately and to the extent possible issue notice of said
removal to the owner, Person, or firm maintaining the Sign.
D.
Remedies Nonexclusive. In the event of a violation of any provision
of this Chapter, the Township shall have authority to exercise or
pursue any or all remedies available to it under this Article, the
MPC[1] and other applicable laws and ordinances. Election by
the Township of one or more remedies shall not be deemed to exclude
exercise of other available remedies.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
Fees, deposits and other charges shall be imposed and shall be paid
at the time any application for Permit, renewal, certificate or other
approval, appeal or other item is submitted, in accordance with the
schedule of fees established from time to time by resolution of the
Board of Supervisors. The Board of Supervisors shall have authority,
by resolution, to modify the amount and/or nature of such items.
B.
Petitions requesting rezoning of property shall be accompanied by
a filing fee as prescribed by the Board of Supervisors to defray costs
and fees for professional services.
C.
Each appeal or application to the Zoning Hearing Board or Board of
Supervisors, exclusive of appeals from action of the Zoning Officer,
shall be accompanied by a filing fee as prescribed by the Board of
Supervisors to defray costs and fees for professional services.
D.
Each appeal to the Zoning Hearing Board challenging propriety of
action by the Zoning Officer shall be accompanied by a filing fee
as prescribed from time to time by the Board of Supervisors to defray
costs of advertising, processing and professional services.
E.
No petition, application, appeal or other submission shall be deemed
complete until and unless accompanied by payment of all fees, deposits
and other charges required for it.
