[Amended 1-3-1995 by Ord. No. 1995-2]
A.
There is hereby created for the Borough a Zoning Hearing Board in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
B.
The membership of the Board shall consist of three
residents of the Borough appointed by resolution by the Borough Council.
The terms of office shall be for three years and shall be so fixed
that the term of office of one member shall expire each year. The
Board shall promptly notify the Borough Council of any vacancies which
occur. Appointments to fill vacancies shall be only for the unexpired
portion of the term. Members of the Board shall hold no other office
in the Borough.
C.
Any 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 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.
D.
The 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 Board,
but the Board may appoint a hearing officer from its own membership
to conduct any hearing on its behalf and the parties may waive further
action by the Board as provided in this chapter.
E.
The Board may make, alter and rescind rules and forms
for its procedure, consistent with ordinances of the Borough and laws
of the Commonwealth. 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 the Borough Council as requested
by the Borough Council.
F.
Within the limits of funds appropriated by the Borough
Council, the 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 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.
The Zoning Hearing Board shall conduct hearings
and made decisions in accordance with the following requirements:
A.
Notice of all Zoning Hearing Board hearings shall
be provided as follows:
[Amended 3-2-2009 by Ord. No. 2009-01]
(1)
Public notice: Public notice, as defined herein, shall be given and
written notice shall be given to the applicant, the Zoning Officer,
Borough Council and to any person who has made timely request for
the same.
(2)
Delivery of notice: Notice should be given by personal delivery or
by regular first-class mail, not less than seven days prior to the
scheduled hearing, to the last known owners of record of property
within a two-hundred-foot radius of the lot lines of the subject property.
(3)
Posting: In addition to the written notice provided herein, written
notice of said hearing shall be posted on the affected tract of land
in a conspicuous place, as determined by the Zoning Enforcement Officer,
at least seven days prior to the hearing.
B.
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.
C.
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 Borough, 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.
D.
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.
E.
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.
F.
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.
G.
Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded.
H.
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.
I.
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 their
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.
J.
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 chapter or of any law, 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. 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. 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 the 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.
K.
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 person 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.
L.
The Borough Council shall establish, by resolution,
fees with respect to hearings before the Zoning Hearing Board.
A.
The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land
use ordinance, except those brought before the Borough Council pursuant
to §§ 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities
Planning Code (hereinafter "MPC"), 53 P.S. §§ 10609.1
and 10916.1.
(2)
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. Where
the ordinance appealed from is the initial zoning ordinance of the
Borough and a Zoning Hearing Board has not been previously established,
the appeal raising procedural questions shall be taken directly to
court.
(3)
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 therefor, the issuance of any
cease-and-desist order or the registration or refusal to register
any nonconforming use, structure or lot.
(4)
Appeals from a determination by the Borough Engineer
or the Zoning Officer with reference to the administration of any
floodplain or flood hazard ordinance or such provisions within a land
use ordinance.
(5)
Applications for variances from the terms of this
chapter and flood hazard ordinance or such provisions within a land
use ordinance, pursuant to § 910.2 of the MPC, 53 P.S. § 10910.2.
(6)
Applications for special exceptions under this chapter
or floodplain or flood hazard ordinance or such provisions within
a land use ordinance, pursuant to § 912.1 of the MPC, 53
P.S. § 10912.1.
(7)
Appeals from the determination of any officer or agency
charged with the administration of any transfers of development rights
or performance density provisions of this chapter.
(8)
Appeals from the Zoning Officer's determination under
§ 916.2 of the MPC, 53 P.S. § 10916.2.
(9)
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 development not involving applications under Article V or VII of the MPC, 53 P.S. §§ 10501 et seq. and 10701 et seq.
B.
The Borough Council shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments under Article VII of the MPC pursuant to the provisions of § 702 of the MPC, 53 P.S. § 10702.
(2)
All applications pursuant to § 508 of the MPC, 53 P.S. § 10508, for approval of subdivisions or land developments under Article V of the MPC, 53 P.S. § 10501 et seq.
(3)
Applications for conditional use under the express
provisions of this chapter.
(4)
Applications for curative amendment to this chapter
or pursuant to §§ 609.1 and 916.1(a) of the MPC, 53
P.S. §§ 10609.1 and 10916.1(a).
(5)
All petitions for amendments to land use ordinances,
pursuant to the procedures set forth in § 609 of the MPC,
53 P.S. § 10609.
(6)
Appeals from the determination of the Zoning Officer or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to applications for land development under Articles V and VII of the MPC, 53 P.S. §§ 10501 et seq. and 10701 et seq. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer or the Borough Engineer shall be to the Zoning Hearing Board pursuant to this section. Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission and all appeals from the decision of the Planning Commission shall be to court.
A.
The Zoning Hearing 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 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:
(1)
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.
(2)
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.
(3)
That such unnecessary hardship has not been created
by the applicant.
(4)
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.
(5)
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.
B.
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 and the Pennsylvania Municipalities Planning
Code, 53 P.S. § 10101 et seq.
C.
Variance procedures and requirements. Requests for variances within
an identified floodplain area shall be considered by the Zoning Hearing
Board in accordance with the following:
[Added 1-3-2012 by Ord. No. 2012-03[1]]
(1)
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.
(2)
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.
(3)
If granted, a variance shall involve only the least modification
necessary to provide relief.
(4)
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.
(6)
In reviewing any request for a variance, the Zoning Hearing Board
shall consider, but not be limited to the following:
(a)
That there is good and sufficient cause.
(b)
That failure to grant the variance would result in exceptional
hardship to the applicant.
(c)
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 ordinance and regulations.
(d)
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.
(7)
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.
[1]
Editor's Note: This ordinance provided for an effective date
of 1-18-2012.
A.
Where
the Borough Council, in this chapter, has stated special exceptions
to be granted or denied by the Zoning Hearing 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 and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101
et seq.
B.
Review factors for special exceptions in floodplain districts.
[Added 1-3-2012 by Ord. No. 2012-03[1]]
(1)
In reviewing applications for special exceptions in floodplain districts,
as permitted by the Floodplain Management Ordinance[2] 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 flood waters 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:
(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.
[1]
Editor's Note: This ordinance provided for an effective date
of 1-18-2012.
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 the Borough
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 on a tentative plan or from an adverse decision
by the Zoning Officer on a challenge to the validity of this chapter
or an amendment hereto or map or an amendment thereto shall preclude
an appeal from a final approval except in the case where the final
submission substantially deviates from the approved tentative 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.
A.
Upon filing of any appeal proceeding before the Zoning
Hearing Board 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. When an
application for development, preliminary or final, has been duly approved
and proceedings designed to reverse or limit the approval are filed
with the Board by persons other than the applicant, the applicant
may petition the court having jurisdiction of zoning appeals to order
such persons to post bond as a condition to continuing the proceedings
before the Board.
B.
After the petition is presented, the court shall hold
a hearing to determine if the filing of the appeal is frivolous. At
the hearing, evidence may be presented on the merits of the case.
It shall be the burden of the applicant for a bond to prove the appeal
is frivolous. After consideration of all evidence presented, if the
court determines that the appeal is frivolous, it shall grant the
petition for a bond. The right to petition the court to order the
appellants to post bond may be waived by the appellee, but such waiver
may be revoked by him if an appeal is taken from a final decision
of the court.
C.
The question whether or not such petition should be
granted and the amount of the bond shall be within the sound discretion
of the court. An order denying a petition for bond shall be interlocutory.
An order directing the responding party to post a bond shall be interlocutory.
D.
If an appeal is taken by a respondent to the petition
for a bond from an order of the court dismissing a zoning appeal for
refusal to post a bond and the appellate court sustains the order
of the court below to post a bond, the respondent to the petition
for a bond, upon motion of the petitioner and after hearing in the
court having jurisdiction of zoning appeals, shall be liable for all
reasonable costs, expenses and attorney fees incurred by the petitioner.
Appeals raising the substantive validity of
any land use ordinance (except those to be brought before the Borough
Council pursuant to the Pennsylvania Municipalities Code), procedural
questions or alleged defects in the process of enactment or adoption
of a land use ordinance; or 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 therefor, the issuance of any
cease-and-desist order or the registration or refusal to register
any nonconforming use, structure or lot; from a determination by the
Borough Engineer or the Zoning Officer with reference to the administration
of any floodplain or flood hazard ordinance or such provisions within
a land use ordinance; from the determination of any officer or agency
charged with the administration of any transfers of development rights
or performance density provisions of this chapter; 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 development not involving subdivision and land development
or planned residential development, may be filed with the Zoning Hearing
Board in writing by the landowner affected, any officer or agency
of the Borough, or any person aggrieved. Requests for a variance and
for special exception may be filed with the Board by any landowner
or any tenant with the permission of such landowner.
