In order that the objectives of this chapter may be more fully
and equitably achieved and a means for competent interpretation of
the chapter provided, the Borough Council shall maintain a Zoning
Hearing Board.
A.
The Zoning Hearing Board shall consist of five members, appointed
by resolution by the Borough Council for terms of five years and shall
be so fixed that the terms of office of no more than one member of
the Board shall expire each year.
B.
The Zoning Hearing Board shall promptly notify the Borough Council
of Perkasie Borough of any vacancies which occur. Any appointments
made to fill vacancies on the Zoning Hearing Board shall be only for
the unexpired portion of the term.
C.
Any Zoning Hearing Board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by a majority vote
of the Borough Council, taken after 15 days' advance notice of the
intent to take such a vote. A hearing shall be held in connection
with the vote if the member shall request it in writing. Vacancies
shall be filled for the unexpired term in the same manner as in the
case of original appointments.
D.
Members of the Zoning Hearing Board shall hold no other office in
the Borough nor shall any member be an employee of the Borough.
E.
Alternate members.
(1)
The Borough Council may appoint by resolution at least one, but no
more than three residents of the Borough to serve as alternate members
of the Zoning Hearing Board. The term of office of an alternate member
shall be three years.
(2)
Alternate members shall hold no other office in the Borough, including
membership on the Planning Commission and Zoning Officer, nor shall
any member be an employee of the Borough. Any alternate member may
participate in any proceeding or discussion of the Zoning Hearing
Board but shall not be entitled to vote as a member of the Zoning
Hearing Board unless designated as a voting alternate member.
(3)
The Chairman of the Zoning Hearing Board may designate alternate
members of the Board to replace any absent or disqualified member
and if, by reason of absence or disqualification of a Zoning Hearing
Board member, a quorum is not reached, the Chairman of the Zoning
Hearing Board shall designate as many alternate members of the Zoning
Hearing Board to sit on the Zoning Hearing Board as may be needed
to reach a quorum. Any alternate member of the Zoning Hearing Board
shall continue to serve on the Zoning Hearing Board in all proceedings
involving the matter or case for which the alternate member was initially
appointed until the Zoning Hearing Board has made a final decision
of the matter or case. Designation of an alternate member shall be
made on a case-by-case basis in rotation according to declining seniority
among all alternates.
The Zoning Hearing Board shall elect from its own membership
its officers, who shall serve annual terms as such and may succeed
themselves. For the conduct of any hearing and the taking of any action,
a quorum shall be not less than a majority of all the members of the
Zoning Hearing Board, but the Board may appoint a hearing officer
from its own membership to conduct a hearing on its behalf, in accordance
with the Pennsylvania Municipalities Planning Code (the Act), as amended.
The Zoning Hearing Board may make, alter and rescind rules and forms
for its procedure, consistent with ordinances of the Borough and laws
of the commonwealth.
All meetings other than executive sessions shall be open to
the public and shall be at the call of the Chairman and at such other
times as the Board shall specify in its rules of procedure.
A.
Minutes shall be recorded of all proceedings which shall contain
evidence and data relevant to every case considered, together with
the votes of the members and the final disposition of each case.
B.
Every decision of the Board shall bear the signature of a majority
of the members of the Board on the original thereof.
C.
All decisions of the Board shall be permanently filed with official
Borough records in the Borough building. The Board shall notify the
Borough Council, the Planning Commission and the Zoning Officer of
all decisions and resolutions within seven days after the decision
is made.
D.
The Board shall keep full public records of its business, which records
shall be the property of the Borough, and shall submit a report of
its activities to Borough Council upon request of Borough Council.
Within the limits of funds appropriated by the Borough, the
Zoning Hearing Board may employ or contract for secretaries, clerks,
legal counsel, consultants and other technical and clerical services.
Members of the Board may receive compensation for the performance
of their duties, as may be fixed by Borough Council, but in no case
shall it exceed the rate of compensation authorized to be paid to
the members of Borough Council. Alternate members of the Board may
receive compensation, as may be fixed by Borough Council, for the
performance of their duties when designated as alternate members,
but in no case shall such compensation exceed the rate of compensation
authorized to be paid to the members of Borough Council.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudications in the following matters:
A.
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to §§ 186-111 and 186-1141D of this chapter.
B.
Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption,
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said ordinance.
C.
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 therefore, or the issuance of any cease and
desist order.
F.
Appeals from the determination of the Zoning Officer or Borough 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 developments not involving
applications for subdivisions or land developments, as defined by
the Act, as amended.
G.
Appeals from a determination by the Borough Engineer or Zoning Officer
with reference to the administration of any floodplain or flood hazard
ordinance.
H.
Appeals from a determination by the Zoning Officer involving the
interpretation of any provision of this chapter, including the determination
of the exact location of any district boundary if there is uncertainty
with respect thereto; or where it is alleged there is error in any
order, requirement or determinations made by the Zoning Officer in
the enforcement of this chapter.
I.
Appeals from the Zoning Officer's determination under Section 916.2
of the Act, as amended.
The Board shall hear requests for variances where it is alleged
that the provisions of the zoning chapter inflict unnecessary hardship
upon the applicant. The Board may by rule prescribe the form of application
and may require preliminary application to the Zoning Officer. The
Board may grant a variance, provided that all of the following findings
are made where relevant in a given case:
A.
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 the zoning chapter in the neighborhood
or district in which the property is located.
B.
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 the zoning chapter and that the authorization
of a variance is therefore necessary to enable the reasonable use
of the property.
C.
That such unnecessary hardship has not been created by the appellant.
D.
That the variance, if authorized, will not alter the essential character
of the neighborhood or 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.
E.
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.
F.
In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this chapter.
Where this chapter has provided for stated special exceptions
to be granted or denied by the Board pursuant to express standards
and criteria, the Board shall hear and decide requests for such special
exceptions in accordance with such standards and criteria. In granting
a special exception, the Board may attach such reasonable conditions
and safeguards, in addition to those expressed in this chapter, as
it may deem necessary to implement the purposes of this chapter.
A.
In considering and passing upon applications for special exceptions and variances, the Board shall consider all relevant factors and procedures specified in all sections of this chapter, including Article IV, Use Regulations and Restrictions, and § 186-55, Transportation impact study. In the case of an application for a special exception or variance related to a use or activity within the Floodplain District, the Zoning Hearing Board shall refer to Chapter 94, Floodplain Management, of the Code of the Borough of Perkasie.
B.
Special exceptions and/or variances shall only be issued after the
Board has determined that the granting of such will not result in
additional threats to the public safety, extraordinary public expense,
create nuisances, cause fraud or victimization of the public, or conflict
with the local laws or ordinances.
A.
General rules and procedures for appeals and applications:
(1)
Any appeal shall be made by filing the same with the Zoning
Officer, within 30 days after the date of the Zoning Officer's adverse
decision.
(2)
All appeals and applications made to the Board shall be in writing
on standard forms prescribed by the Zoning Hearing Board.
(3)
All appeals and applications shall refer to the specific provisions
of this chapter involved.
(4)
All appeals and applications shall set forth names and addresses
of all adjoining owners, including those across public roads from
the subject property.
B.
Appeals concerning the interpretation of any provisions of this chapter
shall exactly set forth the interpretation that is claimed.
C.
Appeals for variance from the strict application of this chapter shall include the zoning permit application denied by the Zoning Officer, together with a statement with any supporting evidence regarding the requirements listed in § 186-101.
D.
Applications for special exceptions shall include a zoning permit
application with all information required therein and a statement
with any supporting evidence regarding the merits of the proposed
use at the proposed location and how the proposal complies with the
general and specific requirements of this chapter.
Hearings pursuant to this chapter shall be held by the Zoning
Hearing Board, the Borough Council, or hearing officer, as the case
may be, in accordance with the following requirements.
A.
Public notices shall be given and written notice shall be given to
the applicant, the Zoning Officer, such other persons as the Borough
Council shall designate by ordinance and to any person who has made
timely request for the same. Written notices shall be given at least
14 days in advance of said hearing. In addition to the written notice
provided herein, written notice of said hearing shall be conspicuously
posted on the affected tract of land at least one week prior to the
hearing.
B.
The Borough Council may prescribe reasonable fees by resolution with
respect to hearings. Fees for said hearings may include compensation
for the secretary and members of the Board, notice and advertising
costs and necessary administrative overhead connected with the hearing.
The costs, however, shall not include legal expenses of the Board,
expenses for engineering, architectural or other technical consultants
or expert witness costs.
C.
The first hearing shall be held within 60 days from the date of the
applicant's request, unless the applicant has agreed in writing to
an extension of time. Each subsequent hearing before the Board or
hearing officer shall be held within 45 days of the prior hearing,
unless otherwise agreed to by the applicant in writing or on the record.
An applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing. Upon the request of the applicant,
the Board or hearing officer shall assure that the applicant receives
at least seven hours of hearings within the 100 days, including the
first hearing. Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days
of the first hearing held after the completion of the applicant's
case-in-chief. An applicant may, upon request, be granted additional
hearings to complete his case-in-chief provided the persons opposed
to the application are granted an equal number of additional hearings.
Persons opposed to the application may, upon the written consent or
consent on the record by the applicant and Borough, 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.
The hearings shall be conducted by the Board, or the Board may appoint
any member or an independent attorney as a hearing officer. The decision
or, where no decision is called for, the findings shall be made by
the Board; however, the appellant or the applicant, as the case may
be, in addition to the Borough, may, prior to the decision of the
hearing, waive decisions or findings by the Board accept the decision
or findings of the hearing officer as final.
E.
The parties to the hearing shall be the Borough, any person affected
by the application who has made timely appearance of record before
the Board, and any other person, including civic or community organizations,
permitted to appear by the Board. The Board shall have power to require
that all persons who wish to be considered parties enter appearances
in writing on forms provided by the Board for that purpose.
F.
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.
G.
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.
H.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
I.
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.
J.
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party or his representatives in connection
with any issue involved, except upon notice and where all parties
have opportunity to participate. The Board or hearing officer shall
not take notice of any communication, reports, staff memoranda or
other materials, except advice from its 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 of his representative unless all parties
are given an opportunity to be present.
K.
The Board or the hearing officer, as the case may be, shall render a written decision or, where 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 the provisions of any act of the commonwealth or any ordinance, 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. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the hearing officer. Except for challenges filed under § 186-100A 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 § 186-104C, 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 herein above 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 Subsection A of this section. 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.
L.
A copy of the final decision or, where no decision is called for,
of the findings shall be delivered to the applicant personally or
mailed to him not later than the day following its date. To all other
persons who have filed their name and address with the Board not later
than the last day of the hearing, the Board shall provide, by mail
or otherwise, brief notice of the decision or findings and a statement
of the place at which the full decision or findings may be examined.
Appeals under § 186-100 of this chapter may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the municipality or any person aggrieved. Requests for a variance under § 186-101 and for special exception under § 186-102 of this chapter may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of such landowner.
A.
No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than 30 days after an application for development,
preliminary or final has been approved by an appropriate municipal
officer, agency or body if such proceeding is designed to secure reversal
or to limit the approval in any manner unless such person alleges
and proves that he had no notice, knowledge or reason to believe that
such approval had been given. If such person has succeeded to his
interest after such approval, he shall be bound by the knowledge of
his predecessor in interest. The failure of anyone other than the
landowner to appeal from an adverse decision by a zoning officer on
a challenge to the validity of an ordinance or map pursuant to Section
916.2 of the Act, as amended, shall preclude an appeal from a final
approval.
B.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
Upon filing of any proceeding referred to in § 186-106 and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged chapter, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder shall be stayed in accordance with the provisions of Section 915.1 of the Pennsylvania Municipalities Planning Code, as amended.
A.
A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof which prohibits
or restricts the use or development of land in which he has an interest
shall submit the challenge either:
(2)
To the Borough Council under § 186-114.1D of this chapter, together with a request for a curative amendment.
B.
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 186-100A of this chapter.
C.
(1)
In challenges before the Zoning Hearing Board, the challenging
party shall make a written request to the Zoning Hearing Board that
it hold a hearing on its challenge. The request shall contain the
reasons for the challenge. Where the landowner desires to challenge
the validity of such ordinance and elects to proceed by curative amendment,
his application to the Borough Council shall contain, in addition
to the requirements of the written request hereof, the plans and explanatory
materials describing the use or development proposed by the landowner
in lieu of the use or development permitted by the challenged ordinance
or map. Such plans or other materials shall not be required to meet
the standards prescribed for preliminary, tentative or final approval
or for the issuance of a permit, so long as they provide reasonable
notice of the proposed use or development and a sufficient basis for
evaluating the challenged ordinance or map in light thereof. Nothing
herein contained shall preclude the landowner from first seeking a
final approval before submitting his challenge.
(2)
If the submission is made by the landowner to the Borough Council under Subsection A(2), the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
(3)
If the submission is made to the Borough Council, the Borough
Solicitor shall represent and advise it at the hearing or hearings.
(4)
The Borough Council may retain an independent attorney to present
the defense of the challenged ordinance or map on its behalf and to
present its witnesses on its behalf.
(5)
Based upon the testimony presented at the hearing or hearings,
the Borough Council or the Zoning Hearing Board, as the case may be,
shall determine whether the challenged ordinance or map is defective,
as alleged by the landowner. If a challenge heard by the Borough Council
is found to have merit, the Council may accept a landowner's curative
amendment, with or without revision, or may adopt an alternative amendment
which will cure the challenged defects. If a challenge heard by the
Zoning Hearing Board is found to have merit, the decision of the Zoning
Hearing Board shall include recommended amendments to the challenged
ordinance which will cure the defects found. In reaching its decision,
the Zoning Hearing Board or the Borough Council, as the case may be,
shall consider the amendments, plans and explanatory material submitted
by the landowner and shall also consider:
(a)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities.
(b)
If the proposal is for a residential use, the impact of the
proposal upon regional housing needs and 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 the ordinance or map.
(c)
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.
(d)
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, aquifers, 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.
(e)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(6)
The Borough Council or the Zoning Hearing Board, as the case
may be, shall render its decision within 45 days after the conclusion
of the last hearing.
D.
The Zoning Hearing Board or Borough Council, as the case may be,
shall commence its hearings within 60 days after the request is filed
unless the landowner requests or consents to an extension of time.
The hearings shall be conducted in accordance with §§ 186-104F
through J of this chapter.
E.
Public notice of the hearing shall include notice that the validity
of the ordinance or map is in question and shall give the place where
and the times when a copy of the request, including any plans, explanatory
material or proposed amendments, may be examined by the public.
F.
The challenge shall be deemed denied when:
(1)
The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in Subsection C;
(2)
The Borough Council notifies the landowner that it will not
adopt the curative amendment;
(3)
The Borough Council adopts another curative amendment which
is unacceptable to the landowner; or
(4)
The Zoning Hearing Board or Borough Council, as the case may
be, fails to act on the request 45 days after the close of the last
hearing on the request, unless the time is extended by mutual consent
by the landowner and municipality.
G.
Where, after the effective date of this chapter, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to § 186-114.1D of this chapter or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 186-100A of this chapter or the Court acts finally on appeal from denial of a curative amendment proposal or a validity challenge and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary approval pursuant to Chapter 164, Subdivision and Land Development, of the Code of the Borough of Perkasie. Within the two-year period, no subsequent change or amendment in the zoning, subdivision and land development or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit within the one-year period, no subsequent change or amendment in the zoning, subdivision and land development or other governing ordinance or plan shall be applied in any manner which adversely affects the right of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the Court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
H.
If the Borough 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.
I.
A landowner who has challenged on substantive grounds the validity of a zoning ordinance or map either by submission of a curative amendment to the governing body under Subsection A(2) or to the Zoning Hearing Board under § 186-100A shall not submit any additional substantive challenges involving the same parcel, group of parcels or part thereof until such time as the status of the landowner's original claim has been finally determined or withdrawn; provided, however, that if after the date of the landowner's original challenge the municipality adopts a substantially different zoning ordinance or zoning map, the landowner may file a second substantive challenge to the new or different zoning ordinance or zoning map under Subsection A.
All appeals from all land use decisions rendered pursuant to this chapter shall be taken to the Court of Common Pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision, or in the case of a deemed decision, within 30 days after the notice of said deemed decision is given as set forth in § 186-105K of this chapter. Such appeals shall be made in accordance with the Act, as amended.
