A Zoning Hearing Board shall be appointed by the Borough Council
in the manner prescribed in the Municipalities Planning Code,[1] as amended, and as provided below.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
There shall be a Zoning Hearing Board consisting of five residents
of the Borough who shall be appointed by the Borough Council to serve
a term of five years. The terms shall be so fixed that the term of
office of one member shall expire each year. Borough Council shall
fill any vacancy on the Board by appointing a new member to serve
for the unexpired portion of such vacant term. The Borough Council
may reappoint members at the expiration of their term. Members of
the Board shall hold no other office in the Borough.
B.
Any member of the Board 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 the Board member has received
15 days' advance written notice of the intent to take such a vote,
and a hearing shall be held in connection with such vote if the member
shall so request in writing.
A.
The Board shall elect from its own membership its officers, who shall
serve annual terms and may succeed themselves. For the conduct of
any hearing and the taking of any action, a quorum shall be required,
consisting of not less than a majority of all the members of the Board,
but the Board may appoint a hearing officer from its own membership
to conduct any hearing on its behalf. The Board may make, alter and
rescind rules and forms for its procedure consistent with this chapter
and the laws of the Commonwealth of Pennsylvania. The Board shall
keep full public records of its business and shall submit a report
of its activities to the Borough Council once each year.
B.
Within the limits of funds appropriated by the Borough Council, the
Zoning Hearing Board may employ or contract for secretaries, clerks,
attorneys, consultants and other technical and clerical services.
However, the Solicitor for the Zoning Hearing Board shall be a different
individual than the Solicitor for the Borough Council. Members of
the Zoning Hearing Board may receive compensation for the performance
of their duties, as may be fixed by the Borough Council, but in no
case shall it exceed the rate of compensation authorized to be paid
to the members of the Borough Council.
A.
The Board shall conduct hearings and make decisions in the following
manner:
(1)
The first hearing before the Zoning Hearing Board shall be commenced
within 60 days from the date of receipt of the applicant's application,
unless the applicant has agreed, in writing, to an extension of time.
(2)
Each hearing subsequent to the initial hearing shall be held
within 45 days of the prior hearing, unless otherwise agreed by the
applicant in writing or on the record.
(3)
The applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing.
(4)
The applicant shall be given at least seven hours of hearing
time within that 100-day period, assuming that number of hours is
required or requested.
(5)
Protestants, if any, shall complete their case in opposition
to the application within 100 days of the first hearing held after
completion of the applicant's case-in-chief.
(6)
The applicant may request additional hearings to complete his
case-in-chief, provided protestants are given an equal number of additional
hearings.
(7)
Protestants may be given additional hearings to complete their
opposition, provided the applicant is granted an equal number of additional
hearings for rebuttal and both the applicant and the Zoning Hearing
Board give their written consent or their consent is stated on the
record.
B.
Notice of hearings shall be given in the following manner:
(1)
To the public, by providing public notice, which is notice published
once each week for two successive weeks in a newspaper of general
circulation in the Borough. Such notice shall state the time and place
of the hearing and the particular nature of the matter to be considered
at the hearing. The first publication shall not be more than 30 days
and the second publication shall not be less than seven days from
the date of the hearing.
(2)
To the applicant, the Zoning Officer, the Borough Secretary,
the Secretary of the Planning Commission, to abutting owners and owners
within 500 feet along the frontage of the lot and within a 150-foot
radius of the side and rear lot lines and to any person who has made
timely request for the same, or their legal counsel, if such counsel
shall have filed appearance with the Board, by mailing notice of the
time, place and purpose of the hearing at least 14 days in advance
of the date fixed for hearing.
(3)
Notice of hearings, both published and written, shall state,
in addition to the time, place and purpose of the hearing, the location
of the lot or structure involved and the nature and extent of the
relief sought and the general nature of the question involved. Notice
of said hearing shall be conspicuously posted on the affected tract
of land.
(4)
In the event that more than one hearing is required to consider
any application or a hearing is continued while in progress to another
date, announcement at the hearing to be continued of the next hearing
date shall be deemed adequate notice of said continued or subsequent
hearing. In the event that the date or time of the hearing is changed,
then public notice must again be provided as set forth above.
C.
Hearings shall be conducted by the Board, or hearing officer, and
the Chairperson or, in his absence, the Acting Chairperson, shall
administer oaths and may issue subpoenas to compel the attendance
of witnesses and the production of relevant documents and papers,
including witnesses and documents requested by the parties.
D.
The parties to the hearing shall be the Borough, any person affected
by the application who has made a timely appearance of record before
the Board and any other person, including civic or community organizations,
permitted to appear by the Board. All persons who wish to be considered
parties must enter appearances in writing.
E.
The parties shall have the right to be represented by legal counsel
and shall be afforded the opportunity to respond and present evidence
and argument and cross-examine adverse witnesses.
F.
The Zoning Hearing 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 Zoning Hearing Board. The cost of the original transcript shall
be paid by the Zoning Hearing 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 copies or copy. In all other cases, the party requesting the
original transcript shall bear the cost thereof.
G.
The Board, or hearing officer, shall not communicate, directly or
indirectly, with any party or his 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 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 his respective counsel unless all parties are given an
opportunity to be present.
H.
The Zoning Hearing Board or 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 Zoning Hearing 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 Pennsylvania Municipalities Planning Code ("MPC"),[1] or any rule or regulation in the Borough Code shall contain
a reference to the provision relied on 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 Zoning Hearing Board
shall make its report and recommendations available to the parties
within 45 days and the parties shall be entitled to make written representations
thereon to the Zoning Hearing Board prior to final decision or entry
of findings, and the Zoning Hearing 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,[2] where the Zoning Hearing 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 § 112-1104A, 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 Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision. If the Zoning Hearing 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.
I.
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 in accordance with the law; and to all other persons
who have filed their names and addresses 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 where the full decisions or findings may be examined.
A.
The Board shall have and perform the following functions:
B.
Appeals from the Zoning Officer. The Board shall hear and decide
appeals where it is alleged by the applicant that the Zoning Officer
has failed to follow prescribed procedures or has misinterpreted or
misapplied any provision of any ordinance or map or any rule or regulation
governing the action of the Zoning Officer.
C.
Variances.
(1)
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, provided that 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 this 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 this 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 applicant.
(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 or ordinance in issue.
D.
Special exceptions. The Board shall hear and decide special exceptions
in accordance with the standards set forth below, and, in granting
special exceptions, 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:
(1)
Whenever the Board hears a special exception for uses specified in this chapter, the standards of § 112-1008 applicable to conditional uses shall apply. Special exceptions related to areas regulated by the requirements of the FP Floodplain Conservation District shall be evaluated in accordance with such requirements.
E.
Unified appeals. The Board shall also hear all appeals which an applicant
may elect to bring before it with respect to any Borough ordinance
or requirement pertaining to the same development plan or development.
In any such case, the Board shall have no power to pass upon the nonzoning
issues but shall take evidence and make a record thereon. At the conclusion
of the hearing, the Board shall make findings on all relevant issues
of fact, which shall become part of the record on appeal to the court.
Any variance or special exception granted in accordance with
this chapter shall be void if the applicant fails to obtain the necessary
Borough approvals and permits within 12 months from the date of the
grant of a variance or special exception or, having obtained the necessary
approvals or permits, fails to commence work thereunder within six
additional months. If the Zoning Hearing Board finds that a good reason
exists for the failure to comply with the time periods specified above,
an extension may be granted.
A.
The rules of the Zoning Hearing Board of West Chester Borough of
March 1987, and as may be amended from time to time, shall be followed.
B.
All appeals and applications made to the Board shall be in writing,
on forms prescribed by the Board.
C.
Every appeal or application shall refer to the specific provision
of this chapter involved and shall exactly set forth the interpretation
that is claimed, the grounds for any challenges to the validity of
this chapter, the use for which a special exception is sought or the
details of the variance that is applied for and the grounds on which
it is claimed that the variance should be granted, as the case may
be.
D.
Applications and appeals, together with the required filing fee as
established by the Borough, shall be submitted to the Zoning Officer.
E.
No action by the Zoning Hearing Board will begin until a complete
application form is filed along with the required fee.
F.
All applications and appeals shall be forwarded to the Borough Planning
Commission, which may review and offer comment on such applications
and appeals at its discretion. At his own discretion, an applicant
or appellant may appear before the Planning Commission to review his
submission. Similarly, the Planning Commission shall not be required
to schedule such appearances prior to taking action, if any, on a
particular application or appeal. The failure of the Planning Commission
to offer comment on any application or appeal shall not invalidate
any action taken by the Board.
