In order that the objectives of this chapter
may be more fully and equitably achieved and a means for competent
interpretation thereof provided, there is hereby established a Zoning
Hearing Board which shall conduct hearings and perform the duties
herein set forth.
[Amended 8-13-2007 by Ord. No. 2007-09]
The Mayor and Town Council shall appoint a Board
consisting of five residents of the Borough. The terms of office of
a five-member Board shall be five years and shall be so fixed that
the term of office of one member of a five-member Board shall expire
each year. Appointments to fill vacancies shall be only for the unexpired
portion of the term. Members of the Board shall hold no other elected
or appointed office in the Borough, nor shall any member be an employee
of the municipality. The Mayor and Town Council shall appoint no more
than three residents of the Borough to serve as alternate members
of the Board. The term of office of an alternate member shall be three
years.
Any Board member may be removed for malfeasance,
misfeasance or nonfeasance in office or for other just cause by a
majority vote of the Mayor and Town Council which appointed the member,
taken after the member has received 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.
[Amended 4-23-2007 by Ord. No. 2007-04]
A. Notice of hearing. Upon filing with the Board of an
application for special exception, registration and/or request for
expansion of a nonconforming use, variance or appeal from alleged
error of the Zoning Officer, the Board shall fix a reasonable time
and place for a public hearing thereof and give notice of the time
and place of the public hearing and the issue to be considered, as
follows:
(1)
At least seven days prior to the date fixed
for public hearing, publishing notice in a newspaper of general circulation
in the Borough.
(2)
Posting a conspicuous notice in a conspicuous
place, as determined by the Zoning Enforcement Officer, on the property
involved, such posting to take place at least seven days prior to
the public hearing.
(3)
By personal delivery of the notice at the principal
residence or business located on the premises, of those properties
adjoining the property in question as well as those properties located
within 300 feet of the property in question. While it is desirable
for the personal notice to be delivered to an occupant, in the event
no occupant is available at the time of delivery, the notice can be
left at a conspicuous place to be found by the occupant.
(4)
The giving of written notice, by ordinary mail,
by mailing not less than 10 days prior to the scheduled hearing, to
the owners of record of properties adjacent to the lot in question
as well as the owners of all properties within 300 feet of the property
in question.
B. Standard of proof. The standard of proof for registration
of a nonconforming use or to establish the extent of a nonconforming
use at the time a property or building(s) first became nonconforming
shall be on the applicant to prove by clear and convincing evidence.
[Amended 5-27-1992 by Ord. No. 92-5]
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A. Public notice shall be given and written notice shall
be given to the applicant, the Zoning Officer, such other persons
as the governing body 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 shall be prescribed by ordinance
or, in the absence of ordinance provision, by rules of the Board.
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 governing body 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. The 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.
D. The hearings shall be conducted by the Board, or the
Board may appoint any member 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 municipality, 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.
E. The parties to the hearing shall be the municipality,
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 opportunity for all
parties to participate, 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 or 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, 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 act or of any ordinance,
rule or regulation 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.
(1)
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.
(2)
Where the Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, 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 Subsection
A of this section. If the Board shall fail to provide such notice, the applicant may do so.
(3)
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.
Upon appeal from a decision by the Zoning Officer,
the Board shall decide any question:
A. Involving the interpretation of any provisions of
this chapter, including determination of the exact location of any
district boundary if there is uncertainty with respect thereto.
B. Where it is alleged there is error in any order, requirements,
decisions or determinations, including any order requiring an alleged
violation to stop, cease, and desist, made by the Zoning Officer in
the enforcement of this chapter.
Except as provided in §
300-113 hereunder, relating to variances, the Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the Mayor and Town Council. Recognizing that challenges to the validity of an ordinance or map may present issues of fact and of interpretation which may lie within the special competence of the Board, and to facilitate speedy disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation not hitherto properly determined at a hearing before another competent agency or body and shall take evidence and make a record. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact which shall become part of the record.
Challenges to the validity of a subdivision
and land development ordinance or to the validity of a planned residential
development ordinance and appeals from any action of the Zoning Officer thereunder shall be governed by §§
300-110 and
300-111 above, but when the Planning Commission or Mayor and Town Council have held a hearing upon an application for development under the subdivision and land development ordinance or the planned residential development ordinance, such hearing shall be deemed in lieu of a hearing by the Board provided for under §
300-111.
The Board shall hear requests for variances
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant.
A. Findings
required.
(1)
The Board may grant a variance provided 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 provision 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 therefor 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.
(2)
Grant under certain circumstances.
[Added 12-10-2018 by Ord.
No. 2018-17]
(a) The Board shall have the limited authority to grant a use variance
if the evidence provided to the Board, in judgement of the Board establishes
one or more of the following circumstances:
[1] The physical features of the property are such that it cannot be
used for a purpose permitted in the applicable zoning district; or
[2] The property can be conformed for a use permitted within the applicable
zoning district only at a prohibitive expense; or
[3] The property has no value for any purpose permitted within the applicable
zoning district.
(b) A use variance granted under these circumstances must be for a use
which, in the judgement of the Board, would constitute the least conflict
with adjacent uses. In this context, a use permitted as a special
exception use shall be considered a permitted use, but shall only
be allowed by full compliance with the applicable special exception
use process and criteria.
B. Variances within the floodplain district. If compliance with any
of the requirements of this article or the use requirements of the
Floodplain Management Ordinance would result in an exceptional hardship for a prospective
builder, developer, or landowner, the Zoning Hearing Board may, upon
request, grant relief from the strict application of the requirements.
[Amended 11-28-2011 by Ord. No. 2011-14]
(1)
Variance procedures and requirements. Requests for variances
shall be considered by the Zoning Hearing Board in accordance with
the following:
(a)
No variance shall be granted for any construction, development,
use or activity within any floodway area that would cause any increase
in the one-hundred-year flood elevation.
(b)
Except for a possible modification of the freeboard requirements
involved, no variance shall be granted for any of the other requirements
pertaining specifically to development which may endanger human life.
(c)
If granted, a variance shall involve only the least modification
necessary to provide relief.
(d)
In granting any variance, the Zoning Hearing Board shall attach
whatever reasonable conditions and safeguards it considers necessary
in order to protect the public health, safety, and welfare and to
achieve the objectives of this chapter.
(e)
Whenever a variance is granted, the Zoning Hearing Board shall
notify the applicant in writing that:
[1]
The granting of the variance may result in increased premium
rates for flood insurance.
[2]
Such variances may increase the risks to life and property.
(f)
In reviewing any request for a variance, the Zoning Hearing
Board shall consider, but not be limited to, the following:
[1]
That there is good and sufficient cause.
[2]
That failure to grant the variance would result in exceptional
hardship to the applicant.
[3]
That the granting of the variance will not result in an unacceptable
or prohibited increase in flood elevations, additional threats to
public safety, extraordinary public expense, create nuisances, cause
fraud on or victimization of the public or conflict with any other
applicable local or state ordinances and regulations.
[4]
Notwithstanding any of the above, however, all structures shall
be designed and constructed so as to have the capability of resisting
the one-hundred-year flood.
(2)
A complete record of all variance requests and related actions
shall be maintained by the Zoning Hearing Board. In addition, a report
of all variances granted during the year shall be included in the
annual report to the Federal Emergency Management Agency.
C. In granting any variance, the Board may attach some reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this chapter.
[Amended 11-28-2011 by Ord. No. 2011-14]
D. The Board shall have no authority to hear a request for a use variance.
[Added 11-28-2011 by Ord.
No. 2011-14]
[Amended 5-27-1992 by Ord. No. 92-5; 10-23-1996 by Ord. No.
96-10]
A. The Board shall have the power to approve issuance
of a special exception permit for any of the uses for which this chapter
requires the obtaining of such permits and for no other use or purpose.
B. In granting such permit, the Board shall make findings
of fact consistent with the provisions of this chapter and shall not
grant such permit except in conformance with the conditions and standards
outlined in this chapter.
C. Bed-and-breakfast residential use. A bed-and-breakfast
residential use may be granted a special exception in the Low-Density
Residential District and the Moderate-Density Residential District
by the Zoning Hearing Board, provided that it meets the following
requirements:
(1)
The bed-and-breakfast residential use establishment
does not adversely affect the residential character of the neighborhood
and such use is carried on in an existing residential structure.
(2)
The building proposed for use as a bed-and-breakfast
residential use must have the owner of the bed-and-breakfast residential
use residing in the building as his/her principal residence.
(3)
Primary use of the building shall remain residential.
(4)
The quarters to be utilized by the guests and
the occupants of the premises shall be in the principal residential
structure. Separate structures, accessory buildings and garages are
not permitted to be used as living units or sleeping rooms.
(5)
One off-street parking space shall be provided
for each sleeping area designated for guests, plus two off-street
parking spaces for the owners of the bed-and-breakfast residential
use.
(6)
All off-street parking areas for the bed-and-breakfast
residential use and for the owner shall be in the rear yard area,
and the area of the parking lots, including driveways, shall be graded,
surfaced with asphalt or other suitable material and drained to the
satisfaction of the Borough Engineer to the extent necessary to prevent
dust, erosion or excessive water flow across streets or adjoining
properties.
(7)
All parking areas for bed-and-breakfast residential
use shall be screened from adjacent properties by five-foot-high sight-obscuring
vegetation.
(8)
No exterior additions shall be made to a building
or structure for additional sleeping area rooms for guests. Additions
may be permitted for purposes such as kitchen areas, dining rooms,
bathrooms or additional living area for the owner's living quarters
only, necessary to accommodate the change of use to a bed-and-breakfast
residential use.
(9)
The owner of the bed-and-breakfast residential
use shall have the kitchen area inspected by the Health Officer of
the Borough of Chambersburg and secure the necessary health permit.
(10)
Serving of meals shall be permitted only to
overnight guests and shall be limited to breakfast only.
(11)
The owner of the bed-and-breakfast residential
use shall secure the necessary bed-and-breakfast permit from the Borough
of Chambersburg on an annual basis and pay the necessary fee. Such
fee will be established by resolution by the Mayor and Town Council.
(12)
Each room that is designated for guest occupancy
must be provided with an operating smoke detector.
(13)
The total allowable signage for a bed-and-breakfast
residential use, including freestanding signs, shall be no larger
than 1,000 square inches on the property. Such signs may be illuminated
if such lighting is shielded but shall not include neon signs.
(14)
Any lighting used to illuminate off-street parking
shall be arranged so that the direct rays from the lights will not
fall on any residential property beyond the property line. In no case
shall any lighting standard used to illuminate the off-street parking
area be higher than eight feet.
(15)
The owner is advised that he/she may need Pennsylvania
Department of Labor and Industry approval.
D. Special exceptions in floodplain districts.
[Added 11-28-2011 by Ord. No. 2011-14]
(1)
Review factors. In reviewing applications for special exceptions
in floodplain districts, as permitted by the Floodplain Management
Ordinance or the Zoning Ordinance, the Zoning Hearing Board shall
consider all relevant factors and procedures specific in other sections
of the Zoning Ordinance and:
(a)
The danger to life and property due to increased flood elevations
or velocities caused by encroachments.
(b)
The danger that materials may be swept onto other lands or downstream
to the injury of others.
(c)
The proposed water supply and sanitation systems and the ability
of these systems to prevent disease, contamination, and unsanitary
conditions.
(d)
The susceptibility of the proposed facility and its contents
to flood damage and the effect of such damage on the individual owners.
(e)
The importance of the services provided by the proposed facility
to the community.
(f)
The requirements of the facility for a waterfront location.
(g)
The availability of alternative locations not subject to flooding
for the proposed use.
(h)
The compatibility of the proposed use with existing development
and development anticipated in the foreseeable future.
(i)
The relationship of the proposed use to the comprehensive plan
and floodplain management program for the area.
(j)
The safety of access to the property in time of flood of ordinary
and emergency vehicles.
(k)
The expected heights, velocity, duration, rate of rise, and
sediment transport of the floodwaters expected at the site.
(l)
Such other factors which are relevant to the purposes of this
chapter.
(2)
Supplemental technical review. The Zoning Hearing Board may
refer any application and accompanying documentation pertaining to
any request for a special exception to any engineer or other qualified
persons or agency for technical assistance in evaluating the proposed
project in relation to flood heights and velocities and the adequacy
of the plans for protection and other related matters.
(3)
Conditions for approving special exceptions.
(a)
Special exceptions shall only be issued after the Zoning Hearing
Board has determined that the granting of such will not result in:
[1]
Unacceptable or prohibited increases in flood heights;
[2]
Additional threats to public safety;
[3]
Extraordinary public expense;
[4]
The creation of nuisances;
[5]
Any fraud or victimization of the public; or
[6]
Any conflict with local laws or ordinances.
(b)
No special exception shall be granted for any proposed use,
development, or activity within any Floodway District (FW) that will
cause any increase in flood elevations.
In exercising the above-mentioned powers, the
Board may, in conformity with law and the provisions of this chapter,
reverse or affirm, wholly or partly, or modify the order, requirement,
decision, or determination, including a stop order or orders to cease
and desist, as ought to be made. Notice of such decision shall forthwith
be given to all parties in interest.
Appeals under §
300-110 and proceedings to challenge an ordinance under §
300-111 or
300-112 may be filed with the Board in writing by any officer or agency of the Borough or any person aggrieved. Requests for a variance under §
300-113 and for special exception under Article
XXI of this chapter may be filed with the Board by any landowner or any tenant with the permission of such landowner.
Upon filing of any proceeding referred to in §
300-118 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body.