This chapter regulates all land uses, lots, and structures within the Borough of Emsworth except those that are the property of the Borough itself. Every regulated land use, lot, or structure must either conform to the rules of this chapter or be a nonconforming use, nonconforming lot, or nonconforming structure. A "nonconformity" is defined as a use, lot, or structure that 1) was legally established before the effective date of this chapter's enactment (see § 245-6, Effective date of chapter's enactment); and 2) does not conform to the substantive requirements of this chapter. Because nonconformities were legally established, and because their owners could not have known what the regulations of this chapter were going to be in advance, the owners have a legal and ethical right to continue their nonconformities. However, all nonconformities, except nonconforming signs, are subject to the regulations of § 245-17, Nonconformities. Special regulations for nonconforming signs are given in Article VI, Signs. All regulated land uses, lots, and structures that are neither in conformance with the controls of this chapter nor nonconformities are illegal, and subject to the enforcement procedures and penalties specified in § 245-19, Enforcement; violations and penalties.

Zoning ordinances are always complex due to the complex nature of modern communities. However, this chapter is organized to be simple and to minimize the amount of reading required to determine how a property or project is restricted.

All of the provisions in this chapter that affect Emsworth's landowners on a daily basis and apply to all properties within the Borough are included in Article I, General Provisions. The sections in the remainder of Article I explain what the general purposes of this chapter are, what its basic rules are, when zoning or occupancy permits are needed, how to get these permits, what extra regulations apply to nonconforming uses, what a variance is, how to get a variance, how the chapter will be enforced, how landowners may contest the Zoning Officer's determinations, and how landowners may dispute the validity of this chapter. Anyone who has a question concerning how this chapter regulates a property should read Article I.

However, many of the regulations in this chapter should not be applied to all areas of the Borough due to the differing statuses and goals of these areas. So Article II, Zoning District Provisions, divides the Borough into seven "zoning districts," each of which is composed of areas with similar present-day statuses and goals, and faces a set of regulations that is different than the set faced by every other zoning district. Article II then provides this set of regulations for each district, addressing such subjects as permitted land uses, off-street parking and loading facilities, setbacks, building heights, lot designs, and more. Although § 245-27, Purposes, organization and applicability, explains how this article should be read in more detail, a general rule of thumb is that readers who have a question concerning how this chapter regulates a property need to read only the parts of Article II that concern the zoning district of that property.

Article III, Special Exceptions and Conditional Uses, explains what a special exception use is, reveals what a conditional use is, illustrates the procedures for obtaining permits for these uses, lists the standards that the Zoning Hearing Board is to utilize in determining whether or not to grant a special exception use, and lists the standards that the Borough Council is to employ in determining whether or not to grant a conditional use. Article IV, Temporary Uses, explains what a temporary use is, illustrates the procedures for obtaining permits for one, and lists the standards that the Borough Council is to utilize in determining whether or not to grant it. Article V, Supplemental Regulations, contains regulations that apply to only some kinds of land uses and structures. Article VI, Signs, contains all of the chapter's sign regulations. Article VII contains the chapter's administrative provisions that are relevant to municipal officials on a daily basis,[1] but not usually to landowners (administrative provisions that are more relevant to landowners are included in Article I). Article VIII, Terminology, provides a glossary of some of the terms used in this chapter.

The sections in Article I apply to every regulated land use, lot, and structure in the Borough. Because they address each one of Emsworth's seven zoning districts, the sections in Article II also apply to every regulated land use, lot, and structure in the Borough. However, the sections of Articles III through VII apply only when a provision of either Article I or Article II explicitly says so. Municipal officials should be familiar with this entire chapter, as well as the 1997 Emsworth Borough Comprehensive Plan. However, anyone who has a question concerning how this chapter regulates a property only needs to read the following:

This chapter is organized in this manner so that landowners can determine how the use of their property is restricted without reading the entire document.

The 1997 Emsworth Borough Comprehensive Plan. [Note that the 1997 Emsworth Borough Comprehensive Plan meets all requirements of the Pennsylvania Municipalities Planning Code, Act of 1968, P.L. 805, No. 247, as reenacted and amended, including Acts 67 and 68, 2000.[1] Adopting the set of community development goals and objectives from this plan as the primary purposes of this chapter satisfies the requirements of Section 606 of the Pennsylvania Municipalities Planning Code. The 1997 Emsworth Borough Comprehensive Plan also develops a "Future Land Use Plan" in Section III-A on pages 1-17 that provides a significant amount of guidance for this chapter.]

The Emsworth Borough Planning Commission. The Emsworth Planning Commission used the following purposes to develop this chapter. These purposes serve as secondary general purposes of this chapter.

Words that are defined in Article VIII, Terminology, shall be interpreted as they are defined there. Undefined terms must be given their usual and ordinary meaning within the Borough.

Words used in the present tense shall imply the future tense as well.

The word "person" refers to firms, associations, organizations, trusts, partnerships, companies, corporations, and individual persons.

The word "shall" infers a mandatory sense.

The word "may" infers a permissive sense.

The word "lot" is a synonym of "plot," "piece," and "parcel."

The words "used" and "occupied" as applied to any lot or building shall be construed to imply the words "intended, arranged, maintained, and/or designed to be used or occupied."

The word "day" shall be interpreted as being a full calendar day.

When the meaning of a regulation as it applies to a given property is not clear, it shall be interpreted in favor of that property and against any implied extension of the regulation.

No permitted accessory use shall be constructed more than 180 days before the use to which it is accessory.

No structure shall be located closer than five feet from another structure unless that structure is a fence, is attached to the other structure, or forms an integral part of the other structure.

All commercial tanks that contain or carry more than 20 gallons of fuel, lubricants, or any other poisonous liquid shall be located at least 10 feet from all property lines and public rights-of-way.

Parking facilities and zoning district regulations. All parking facilities are subject to the regulations of the zoning district in which they are located unless this chapter specifically states otherwise. Furthermore, all parking garages are subject to the regulations on structures imposed by the zoning district in which they are located.

Emergency and nonprofit temporary events. Any parking or loading requirement of this chapter may be waived by Borough Council for emergency, community or nonprofit temporary events.

When a zoning permit is needed. Before a landowner may have a nonsign structure erected, reconstructed, structurally altered, or moved on his or her lot; or have a nonconforming, nonsign structure reconstructed, structurally altered, or moved on his or her lot, he or she must first obtain a zoning permit (unless this chapter specifically states otherwise). Article VI, Signs, explains when zoning permits are required for signs. No land improvements or other development activities shall be commenced before the involved landowner has a zoning permit for these activities.

The procedure for obtaining a zoning permit. Anyone who wishes to obtain a zoning permit shall follow the procedure below:

Vested rights. Nothing in this chapter shall require any change in the development or use of a lot or structure for which a zoning permit was lawfully issued prior to the effective date of this chapter's enactment (or the effective date of an amendment to this chapter), provided that development (other than excavations) has begun or contracts have been let pursuant to the permit. However, any zoning permit which was issued after the first public hearing on this chapter (or an amendment to this chapter) but prior to the effective date of this chapter's enactment (or the amendment's enactment) shall be declared void if the involved development does not conform to the provisions of this chapter, development (other than excavations) has not begun, and contracts have not been let pursuant to the permit.

Development changes. If a zoning permit is issued, the involved development shall not deviate from the plans and other information submitted to the Zoning Officer without the written approval of the Zoning Officer, or the Borough Council in the case of a conditional or temporary use and the Zoning Hearing Board in the case of a special exception. Requests for all such approvals shall be submitted in writing to the Zoning Officer.

The duration of zoning permits. A zoning permit shall expire within six months of the date of issuance if the involved development activities have not been commenced. All development activities must be completed no later than one calendar year from the date of issuance. If development activities are not completed in the specified time period a permit extension may be requested through the Zoning Hearing Board.

Inspections. In order to determine if the information submitted on or with an application is true and is being adhered to, the Zoning Officer shall have the authority to enter any building, structure, premises, property, or development in the Borough at any reasonable hour upon presentation of proper credentials.

Revocation of permits. If the Zoning Officer discovers that the development does not comply with the approved application or any applicable laws or ordinances, or if the Zoning Officer determines that an applicant has made any false statements or misrepresentations regarding the development, the Zoning Officer shall revoke the zoning permit and proceed with whatever legal action is necessary to correct the violation (see § 245-19, Enforcement; violations and penalties).

Permits issued in error. Any zoning permits issued in error shall be null and void.

Appealing the Zoning Officer's determination. The applicant may appeal the denial of a zoning permit, and aggrieved persons or neighbors may appeal the issuance of a zoning permit, as specified in § 245-22, Appealing determination of municipal officer.

When an occupancy permit is needed. Before any landowner may use or occupy his or her new and/or vacant lot; use or occupy his or her new, reconstructed, structurally altered, moved, and/or vacant nonsign structure; or change the use of his or her nonsign structure or lot, an occupancy permit must be obtained (unless this chapter specifically states otherwise). Article VI explains when occupancy permits are needed for signs.

The procedure for obtaining an occupancy permit. After the completion of all development activities, but before the involved structure and/or lot is used or occupied, the applicant shall notify the Zoning Officer and pay the required fee of $15. Said fee may hereafter be amended by ordinance or resolution of the Borough Council of the Borough of Emsworth. The Zoning Officer shall examine the involved structure and/or lot within 10 days of this notification and payment. If the Zoning Officer determines that some requirements may not have been met he or she may require an as-built survey to verify that setback and other site plan requirements have been met. If the structure, lot, and the involved use comply with the provisions of this chapter, other applicable ordinances and laws, and any plans approved for a zoning permit, then the Zoning Officer shall issue an occupancy permit. Otherwise, he or she shall not. If the Zoning Officer does not act within the required time period, then the permit shall be deemed to be issued.[1]

Temporary occupancy permits. The Zoning Officer may issue a temporary occupancy permit which allows the use, partial use, or occupancy of the involved structure or lot during development activities. Such a permit shall be valid for no longer than three months.

Inspections. In order to make the determinations required by Subsection B of this section, the Zoning Officer shall have the authority to enter any building, structure, premises, property, or development in the Borough at any reasonable hour upon presentation of proper credentials.

Revocation of permits. If the Zoning Officer discovers that the applicant has made any false statements or misrepresentations regarding the development, the Zoning Officer shall revoke the occupancy permit and proceed with whatever legal action is necessary to correct the violation (see § 245-19, Enforcement; violations and penalties).

Permits issued in error. Any occupancy permits issued in error shall be null and void.

Appealing the Zoning Officer's determination. The applicant may appeal the denial of an occupancy permit, and aggrieved persons or neighbors may appeal the issuance of an occupancy permit, as specified in § 245-22, Appealing determination of municipal officer.

The duration of occupancy permits. Nontemporary occupancy permits shall be valid for the lifespan of the involved development, except if that development is either a temporary sign on private property (in which case the permit shall only be valid for 30 days) or a temporary sign on a public right-of-way (in which case the permit shall only be valid for 60 days).

The purpose, organization, and applicability of this section.

General rules concerning nonconformities. The following rules apply to or concern all nonconforming structures, land uses, and lots:

Nonconforming structures or buildings. The following rules apply to all nonconforming structures:

Nonconforming uses. The following rules apply to all nonconforming uses:

The purpose of variances.

Who may apply for a variance. Any landowner or tenant who has the permission of his or her landowner may apply for a variance.

The procedure for obtaining a variance. A party listed in Subsection B above who wishes to obtain a variance must submit a written application to the Zoning Officer on a form supplied by the Zoning Hearing Board. This application shall specifically cite the provisions of this chapter from which the applicant is seeking relief. After determining that the application is complete, the Zoning Officer shall forward the application to the members of the Zoning Hearing Board. At the involved hearing, the Zoning Hearing Board shall follow the procedure specified in § 245-64, Zoning Hearing Board. In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code[1] and this chapter. Appeals to the Board's decision may be made to the court of common pleas in the judicial district where the involved property is located.

The conditions that the Zoning Hearing Board is to use. The Zoning Hearing Board may only grant a variance when it makes all of the following five findings:

The purpose, organization, and applicability of this section.

Borough enforcement procedure. If it appears to the Borough that a violation of this chapter has occurred, then enforcement proceedings shall be instituted as described below:

Aggrieved party enforcement procedure. Aggrieved parties, the governing body or an officer of the municipality may file an equity action in court (i.e., not with the District Justice) to enforce the provisions of this chapter, and prevent, restrain, correct, or abate an illegal structure, sign, lot, or land use. Such parties may file such an action only after serving notice to the Borough of Emsworth at least 30 days in advance. This notice is to allow the Borough time to investigate the situation and to issue a enforcement notice, if warranted.

The purpose and applicability of this section. The Pennsylvania Municipalities Planning Code, as reenacted and amended through 2001,[1] specifies procedures that are to be used to adopt and amend this chapter. These procedures are designed to offer ample opportunities for public participation and to make the chapter as fair as possible. It is feasible, however, that this chapter or any one of its amendments was not adopted according to these procedures, and thus, is procedurally flawed. The purpose of this section is to give landowners and other parties aggrieved by such a flaw, as well as officers and agencies of the Borough itself, a process through which they may challenge the procedural validity of the chapter or amendment. This process may be used to guarantee adequate public participation and fairness in the adoption process, and to overturn any unfair ordinances or amendments.

Where procedural challenges may be heard. The parties named in Subsection A above may file a procedural challenge with either the relevant court of common pleas or the Zoning Hearing Board. However, challenges made to the initial zoning ordinance before the Zoning Hearing Board is established may only be taken to court. Procedural challenges taken to the Zoning Hearing Board may have to follow the rules established by § 245-23, Time limitations, and the Board shall hear all such challenges according to the procedure given in § 245-64, Zoning Hearing Board.[2]

Time limitations. All such challenges shall be raised by an appeal taken within 30 days of the effective date of enactment for the involved ordinance or amendment.

The purpose and applicability of this section. The Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania, and various federal and state laws significantly limit what this chapter may regulate, so that the rights and property of Emsworth's citizens and neighbors are protected. It is feasible, however, that one or more of this chapter's provisions violate these laws, and are, thus, substantively flawed. The purpose of this section is to give landowners and other parties aggrieved by such a flaw, as well as officers and agencies of the Borough itself, a process through which they may challenge the substantive validity of the involved provision. This process may be used to insure that this chapter respects the laws of the United States and the commonwealth, as well as to overturn any illegal or unconstitutional provisions.

Landowner curative amendments and substantive validity challenges.

Landowner curative amendments. Applications for a landowner curative amendment shall be governed by the rules on the next page.

Substantive validity challenges before the Zoning Hearing Board. Requests for a hearing before the Zoning Hearing Board on a substantive validity challenge to this chapter shall be governed by the rules below:

Any landowner or party who is affected by a zoning-related determination of a municipal officer (e.g., the Zoning Officer) may appeal this determination to the Zoning Hearing Board. Such appeals may concern (but are not limited to):

Time limitations may be placed on such appeals by § 245-23, Time limitations. The Zoning Hearing Board shall hear all such appeals according to the provisions of § 245-64, Zoning Hearing Board.

The purpose, organization, and applicability of this section. If the period of time in which a landowner could file an appeal concerning a decision that was adverse to his or her proposed use or development was unlimited, then the difficulty and costs of enforcing this chapter could become prohibitively high. Likewise, if the period of time in which a party who opposed this proposed use or development could file an appeal concerning a decision that approved the use or development was unlimited, then the costs of development could become prohibitively high. The purpose of this section is to avoid both of these situations by limiting the amount of time that both landowners and aggrieved parties have to file for a hearing before the Zoning Hearing Board or (where applicable) the Borough Council when a proposed use or development is involved. The rules of this section, which are listed under Subsection B below, only apply to:

Time limitation rules:

The purpose of preliminary opinions. According to § 245-23, Time limitations, any aggrieved party who wishes to stop or limit a proposed construction, reconstruction, alteration, or other physical development by challenging either the procedural or substantive validity of this chapter (see § 245-20, Procedural challenges, and § 245-21, Substantive challenges) may only do so within 30 days of the development's receiving a zoning permit (see § 245-15, Zoning permits). Likewise, any aggrieved party who wishes to stop or limit a proposed land use by challenging either the procedural or substantive validity of this chapter may only do so within 30 days of the use's receiving an occupancy permit (see § 245-16, Occupancy permits). "Preliminary opinions" are a tool that the landowner who is proposing the involved development or use may employ to shorten this thirty-day time period.

The procedure for obtaining a preliminary opinion. Preliminary opinions may be obtained by following this procedure:

How an approved preliminary opinion affects the time limits of § 245-23. If the Zoning Officer approves the proposed use or development as specified under Subsection B above, then the thirty-day period during which an aggrieved party may stop or limit the proposed use or development by challenging the procedural or substantive validity of this chapter (see § 245-20, Procedural challenges, and § 245-21, Substantive challenges) begins on the date that the second notice is published, instead of the date on which the proposed use or development receives the applicable permit.