Kutztown City Zoning Code
ARTICLE VII
Administration and Enforcement
§ 225-42 Enforcement.
A.
Zoning Officer. A Zoning Officer shall be appointed by the governing body to administer and enforce this Zoning Chapter. The Zoning Officer shall not hold any elective office in the Borough, shall meet qualifications established by the borough and shall be able to demonstrate to the satisfaction of the borough a working knowledge of municipal zoning.
B.
Duties and powers of Zoning Officer. It shall be the duty of the Zoning Officer to enforce literally the provisions of this chapter, as from time to time amended, and he shall have such duties and powers as are conferred on him by this chapter and as are reasonably implied for that purpose. The Zoning Officer's duties shall include but are not limited to the following:
(1)
Receive applications for and issue zoning permits as permitted by the terms of this chapter.
(2)
Keep an official record of all business and activities, including complaints of a violation of any of the provisions of this chapter and of the action taken consequent on each such complaint. All such records shall be open to public inspection, but only to the extent required by law. File copies of all applications received, permits issued, reports and inspections made in connection with any structure, building, sign and/or land shall be retained as long as they remain in existence.
(3)
Make inspections as required to fulfill his duties. He shall have the right to enter any building or structure or enter upon any land at any reasonable hour in the course of his duties.
(4)
Issue permits for special exception uses or for variances only after such uses and/or buildings have been approved by the Zoning Hearing Board in accordance with the regulations of this chapter.
(5)
Be responsible for keeping this chapter and the Official Zoning Map up to date so as to include all amendments thereto.
(6)
Issue certificates of use and occupancy in accordance with the terms of this chapter.
C.
Enforcement notice.
(1)
If it appears to the borough's Zoning Officer that a violation of this Zoning Chapter has occurred, the Zoning Officer, in the name of the borough, shall initiate enforcement proceedings by sending 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 include the following:
(a)
The name of the owner of record and any other person against whom the Zoning Officer intends to take action.
(b)
The location of the lot or 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 Zoning 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 30 days after the enforcement notice shall have been mailed by certified United States mail, postage prepaid.
(f)
That failure to comply with the notice within the aforesaid thirty-day period, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with possible sanctions clearly described.
§ 225-43 Zoning permit.
No building, structure or sign, unless excepted by § 225-28A of this chapter, shall be erected, constructed, moved, added to or structurally altered, nor shall land be put to any use, without a permit therefor issued by the Zoning Officer. No such permit shall be issued except in conformity with the provisions of this chapter or upon written order from the Zoning Hearing Board in the form of a special exception, variance or as otherwise provided for by this chapter, any applicable laws or any court of competent jurisdiction.
A.
Form of application.
(1)
All applications shall be made in writing and shall be accompanied by two sets of plans showing at least the following information if applicable:
(a)
Actual dimensions and shape of the lot to be built upon.
(b)
The exact size and location on the lot of buildings, structures or signs, existing, proposed and/or proposed extensions thereto.
(c)
The number of dwelling units, if applicable.
(d)
Parking spaces provided and/or loading facilities.
(e)
Statement indicating the existing or proposed use.
(f)
Height of structure, building or sign.
(g)
All other information necessary for such Zoning Officer to determine conformance with and provide for enforcement of this chapter.
(h)
A detailed scale drawing of the signs showing intended location and stating how it shall be affixed.
(i)
A statement indicating the type of construction and the manner of installation for signs, together with the materials to be used.
(j)
Approved permit for sewage disposal (when connection to the borough's public sewer system is not available or required by the borough).
(2)
One copy of the plans shall be returned to the applicant by the Zoning Officer after he shall have marked such copies either as approved or disapproved and attested to the same by his signature on such copy.
(3)
One copy of all such plans shall be retained by the Zoning Officer for the permanent records of the borough.
(4)
The zoning permit shall be issued or refused within 30 days from the date of application. In case of refusal, the applicant shall be informed of his rights of appeal. The issuance or refusal of the zoning permit by the Zoning Officer shall be done in the following manner:
[Amended 3-26-1996 by Ord. No. 3-1996]
(a)
If a zoning permit is to be issued, the application filed by the applicant shall be marked "approved" and the zoning permit shall be issued.
(b)
If the zoning permit is refused, the application filed by the applicant shall be marked "not approved" and no zoning permit shall be issued.
(c)
The Zoning Officer may mark the application filed by the applicant "approved as noted" and may, in conjunction therewith, note upon such application conditions and changes which are in the determination of the Zoning Officer, required by this chapter. If the applicant shall, in writing, accept the conditions and notations set forth on the application by the Zoning Officer, then the zoning permit shall be issued, subject to such conditions and notations. If the applicant shall fail or refuse to accept, in writing, the conditions and notations placed upon the application by the Zoning Officer, then the Zoning Officer shall change the notation placed upon the application to "not approved" and shall refuse to issue the zoning permit.
B.
Expiration of application and zoning permit.
[Amended 2-10-1998 by Ord. No. 2-1998]
(1)
An application shall be deemed to have been abandoned and withdrawn if the applicant fails to pay all necessary fees, charges and expenses required by this Chapter 225 and take delivery of a zoning permit within six months after the date of the final approval of such application by the Zoning Officer, or the issuance of a final decision on the application by the Zoning Hearing Board or the courts of the Commonwealth of Pennsylvania, whichever occurs later.
(2)
A zoning permit shall expire at the conclusion of the six-month period following the date of issuance, if work described in the zoning permit has not begun. If work described in the zoning permit has begun, said zoning permit shall expire two years from the date of issuance thereof. However, an extension of time may be granted by the Zoning Officer, for good cause shown.
(3)
When an application for a special exception which would constitute a land development or a subdivision is approved, the applicant is entitled for a period of six months, or a longer period of time if approved, to proceed with the submittal of plans in accordance with the regulations of the Subdivision Chapter[1] as they stood at the time the application was filed.
§ 225-44 Certificate of use and occupancy.
A certificate of use and occupancy shall be required upon the completion of the work contemplated. It shall be unlawful to use and/or occupy any structure, building and/or lot or portions thereof or extensions thereto in any manner until a certificate of use and occupancy has been issued.
A.
Form of application. The application for a certificate of use and occupancy shall be submitted in such form as the Zoning Officer may prescribe.
B.
Issuance of certificate of use and occupancy.
(1)
Prior to the issuance of a certificate of use and occupancy, the Zoning Officer shall inspect any structure, building, sign and/or lot or portions thereof or extensions thereto and shall determine the conformity thereof with this chapter, the permit issued and all other applicable ordinances, rules and/or regulations of the Borough. If the Zoning Officer is satisfied that the completed work is in such conformity, the certificate of use and occupancy shall be issued.
[Amended 3-26-1996 by Ord. No. 3-1996]
(2)
A certificate of use and occupancy shall be granted or refused in writing, within 10 days from the date that the application is submitted to the Zoning Officer, unless said time period is extended in writing by the applicant.
(3)
In districts in which performance standards are imposed, no certificate of use and occupancy shall become permanent until 30 days after the facility is fully operating and only after, upon reinspection by the Zoning Officer, it is determined that the facility is in compliance with all performance standards. After said reinspection, the Zoning Officer shall notify the applicant that the facility is in full compliance with all performance standards and that the certificate of use and occupancy is permanent or that the facility does not comply and that the certificate of use and occupancy is still temporary and will be revoked by the Zoning Officer if such facility is not in compliance within an additional thirty-day time period, unless, because of the particular circumstances, said additional time period is extended in writing by the Zoning Officer.
§ 225-45 Schedule of fees, charges and expenses.
A.
The governing body shall establish, by resolution, a schedule of fees, charges and expenses and collection procedures for zoning permits, certificates of use and occupancy, special exceptions, variances and appeals and other matters pertaining to this chapter.
C.
Until all application fees, charges and expenses have been paid in full, no action shall be taken on any application or appeal.
§ 225-46 Amendments.
The provisions of this chapter and boundaries of districts as set forth on the Official Zoning Map may from time to time be amended or changed by the governing body of the Borough, in accordance with the provisions of the Pennsylvania Municipalities Planning Code, as amended.[1]
A.
Procedure. The following procedures shall be observed prior to making any amendment to or change of this chapter or the Official Zoning Map:
(1)
Every such proposed change not initiated by the Planning Commission shall be referred to the Planning Commission at least 30 days prior to the governing body holding a public hearing to provide the Planning Commission opportunity to submit recommendations.
(2)
The recommendations of the Planning Commission shall be submitted in writing to the governing body.
(3)
At least 30 days prior to the public hearing, the governing body shall submit the proposed ordinance to the Berks County Planning Commission for recommendation.
(4)
Public hearing; notice.
[Amended 7-20-2006 by Ord. No. 14-2006]
(a)
Before voting on the enactment of an amendment, the Borough Council shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a change on the Official Zoning Map, notice of said public hearing shall be conspicuously posted by the Borough at points deemed sufficient by the Borough along the perimeter of the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the public hearing.
(b)
In addition to the requirement that notice be posted, where the proposed amendment involves a Zoning Map change, notice of the public hearing shall be mailed by the Borough at least 30 days prior to the date of the hearing by first class mail to the addressees to which real estate tax bills are sent for all real property located within the area being rezoned, unless the rezoning constitutes a comprehensive rezoning as evidenced by tax records within the possession of the Borough. The notice shall include the location, date and time of the public hearing. A good-faith effort and substantial compliance shall satisfy the requirements of this subsection. Proposed action shall not be taken until Planning Commission and Berks County Planning Commission recommendations are made. If, however, the Planning Commission and Berks County Planning Commission fail to act within 30 days, the governing body shall proceed without such recommendation.
(5)
Procedure for landowner curative amendments.
(a)
A landowner who desires to challenge on substantive grounds the validity of this Zoning Chapter or the Official Zoning Map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the governing body with a written request that his challenge and proposed amendment be heard and decided as provided in Section 916.1 of the Pennsylvania Municipalities Planning Code, as amended.[2] The governing body shall commence a public hearing thereon within 60 days of the request, as provided for in Section 916.1 of the Pennsylvania Municipalities Planning Code, as amended. The curative amendment and challenge shall be referred to the Berks County Planning Commission and the Planning Commission, and notice of the hearing thereon shall be given as provided in Section 610 and Section 916.1 of the Pennsylvania Municipalities Planning Code, as amended.[3]
(b)
The public hearing shall be conducted in accordance with Section 908 of the Pennsylvania Municipalities Planning Code,[4] as amended, and all references therein to the Zoning Hearing Board shall, for purposes of this section be references to the governing body; provided, however, that the deemed approval provisions of Section 908(9) of the Pennsylvania Municipalities Planning Code, as amended, shall not apply and the provisions of Section 916.1(f)[5] of the Pennsylvania Municipalities Planning Code, as amended, shall control. If the Borough does not accept a landowner's curative amendment brought in accordance with this subsection 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 Official Zoning Map, but only for those provisions which specifically relate to the landowner's curative amendment and challenge. Section 908(1.2) of the Pennsylvania Municipalities Planning Code, as amended, pertaining to hearing procedures, and Section 908(9) of the Pennsylvania Municipalities Planning Code, as amended, pertaining to decision, findings and deemed approval, shall not apply to landowner curative amendments and that the corresponding provisions in Section 916.1(c), (d) and (f) of the Pennsylvania Municipalities Planning Code, as amended, shall control.
[Amended 7-20-2006 by Ord. No. 14-2006]
(c)
If the governing body determines that a validity challenge has merit, the borough may accept a landowner's curative amendment, with or without revisions, or may adopt an alternative amendment which will cure the challenged defects. The governing body shall consider the curative amendment, 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 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 Zoning Chapter and Official Zoning 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;
[5]
The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare; and
[6]
The impact of the proposal upon existing conditions within the area; the health, safety, morals and general welfare of the residents and occupants within the forenoted area; and the essential character of the neighborhood or district.
(6)
Procedure for borough curative amendments. If the Borough determines that this Zoning Chapter or any portion thereof is substantially invalid, it shall take the following actions:
(a)
The Borough shall, by formal action, declare this Zoning Chapter or appropriate portions thereof substantively invalid and propose to prepare a curative amendment to overcome such invalidity. Within 30 days following such declaration and proposal the governing body of the borough shall:
(b)
Within 180 days from the date of the declaration and proposal, the borough shall enact a curative amendment to validate, or reaffirm the validity of, this Zoning Chapter pursuant to the provisions required by Section 609 of the Pennsylvania Municipalities Planning Code, as amended,[6] in order to cure the declared invalidity of this Zoning Chapter.
[6]
Editor's Note: See 53 P.S. § 10609.
(c)
Upon the initiation of the procedures as set forth in Subsection A(6)(a) above, the governing body shall not be required to entertain or consider any landowner's curative amendment filed under § 225-46A of this Zoning Chapter, nor shall the Zoning Hearing Board be required to give a report requested under Sections 909.1 and 916.1 of the Pennsylvania Municipalities Planning Code, as amended,[7] 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(6)(a)[1] above. Upon completion of the procedures as set forth in Subsection A(6)(a) and (b) above, no rights to a cure pursuant to the provisions of Sections 609.1 and 916.1 of the Pennsylvania Municipalities Planning Code, as amended,[8] 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.
(d)
The borough, having utilized the procedures as set forth in Subsection A(6)(a) and (b) above, may not again utilize said procedure for a thirty-six-month period following the date of the enactment of a curative amendment, or reaffirmation of the validity of this Zoning Chapter, pursuant to Subsection A(6)(b) above; provided, however, that if after the date of declaration and proposal there is a substantially new duty or obligation imposed upon the borough by virtue of a change in statute or by virtue of a Pennsylvania Appellate Court decision, the borough may utilize the provisions of this section to prepare a curative amendment to this Zoning Chapter to fulfill said duty or obligation.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 225-47 Procedure to obtain preliminary opinion.
In order not to unreasonably delay the time when a landowner may secure assurance that this Zoning Chapter or Official Zoning Map is free from challenge, and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to this Zoning Chapter or Official Zoning Map will run under § 225-52B(2) of this Zoning Chapter by the following procedure:
A.
The landowner may submit plans and other materials describing his proposed use or development to the Zoning Officer for preliminary opinion as to their compliance with this Zoning Chapter and other applicable ordinances and Official Zoning Map. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.
B.
If the Zoning Officer's preliminary opinion is that the use or development complies with this Zoning Chapter and other applicable ordinances and Official Zoning Map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the borough. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and time where the plans and other materials may be examined by the public. The favorable preliminary approval under § 225-52B(2) of this Zoning Chapter and the time therein specified for commencing a proceeding with the Zoning Hearing Board shall run from the time when the second notice thereof has been published.
§ 225-48 Publication, advertisement and availability of amendments.
A.
Proposed amendments to this Zoning Chapter shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section, and shall include the time and place of the meeting of the governing body at which passage will be considered and a reference to a place within the borough where copies of the proposed amendment may be examined without charge or obtained for a charge not greater than the cost thereof. The governing body shall publish the proposed amendment once in one newspaper of general circulation in the borough not more than 60 days nor less than seven days prior to passage. Publication of the proposed amendment shall include either the full text or the title and a brief summary, prepared by the borough's Solicitor and setting forth all the provisions in reasonable detail. If the full text is not included:
(1)
A copy thereof shall be supplied to a newspaper of general circulation in the borough at the time the public notice is published.
(2)
An attested copy of the proposed ordinance shall be filed in the Berks County Law library or other county office designated by the Berks County Commissioners, who may impose a fee no greater than that necessary to cover the actual costs of storing said ordinance.
B.
In the event that substantial amendments are made in the proposed amendment, before voting upon enactment the governing body shall, at least 10 days prior to enactment, readvertise, in one newspaper of general circulation in the borough, a brief summary setting forth all the provisions in reasonable detail together with a summary of the amendments.