B.
Appointment.
(1)
Members of the Board shall be residents of the municipality,
appointed by resolution of the governing body. The Zoning Hearing
Board shall consist of five members, one of whom shall be designated
to serve until the first day of January following the adoption of
the Zoning Ordinance, one until the first day of the second January
thereafter, one until the first day of the third January thereafter,
one until the first day of the fourth January thereafter, and one
until the first day of the fifth January thereafter. Their successors
shall be appointed on the expiration of their respective terms to
serve five years. Members of the Board shall hold no other public
office in the municipality.
(2)
Appointment to fill vacancies. The Board shall promptly
notify the governing body of any vacancies which occur. Appointment
to fill vacancies shall be for the unexpired term of the member or
members whose term or terms become vacant and such appointments to
fill vacancies shall be made in the same manner as the original appointment.
(3)
Removal. Any Board member may be removed for malfeasance,
misfeasance or nonfeasance in office or for other just cause by a
majority vote of the governing body who 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.
(4)
Organization of Board. 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 Subsection D. 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 governing body once a year.
(5)
Appointment of alternate members. The governing body
may appoint up to three alternate members of the Zoning Hearing Board
in accordance with the provisions of Section 903(b) of Act 247, as
amended. The term of office of an alternate member shall be three
years. When seated pursuant to the provisions of Section 906 of Act
247, as amended, an alternate shall be entitled to participate in
all proceedings and discussions of the Board to the same and full
extent as provided by law for Board members, including specifically
the right to cast a vote as a voting member during the proceedings,
and shall have all the powers and duties set forth in this act and
as otherwise provided by law. Alternates shall hold no other office
in the municipality, including membership on the Planning Commission
and Zoning Officer. Any alternate may participate in any proceeding
or discussion of the Board but shall not be entitled to vote as a
member of the Board nor be compensated pursuant to Section 907 of
Act 247, as amended, unless designated as a voting alternate member
pursuant to Section 906 of Act 247, as amended.
C.
Expenditures for services. Within the limits of funds
appropriated by the governing body, 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 governing
body, but in no case shall it exceed the rate of compensation authorized
to be paid to the members of the governing body.
D.
Hearings. The Board shall conduct hearings and make
decisions in accordance with the following requirements:
(1)
Notice; date of hearing.
(a)
Notice shall be given to the public, the applicant,
the local planning agency, 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.
The governing body may establish reasonable fees, based on cost, to
be paid by the applicant and by persons requesting any notice not
required by this chapter. In addition to the written notice provided
herein, notice of said hearing shall be conspicuously posted on the
affected tract of land at least one week 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.
(2)
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 decision or findings by the Board and
accept the decision or findings of the hearing officer as final.
(3)
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. 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.
(4)
The parties shall have the right to be represented
by counsel and shall be afforded the opportunity to respond and present
evidence and cross-examine adverse witnesses on all relevant issues.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
(5)
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.
(6)
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 unless the parties are
afforded an opportunity to contest the material so noticed and shall
not inspect the site or its surroundings after commencement of hearings,
with any party or his representative unless all parties are given
an opportunity to be present.
(7)
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, rules, or regulations shall contain a reference to the provisions 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 and the parties shall be entitled to make written representations thereon to the Board prior to the 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 Section 916.1 of the Pennsylvania Municipalities Planning Code, as amended, 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 D(1) of this section. If the Board fails to provide such notice, the appellant 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.
(8)
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.
(9)
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.
(10)
Jurisdiction. 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 governing body
pursuant to Sections 609.1 and 916.1(a)(2) of Act 247, as amended.
(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 therefor, the issuance
of any cease and desist order or the registration or refusal to register
any nonconforming use, structure or lot.
(d)
Appeals from a determination by a municipal
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.
(e)
Applications for variances from the terms of the zoning ordinance and flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 300-40 hereof.
(f)
Applications for special exceptions under the
zoning ordinance or floodplain or flood hazard ordinance or such provisions
within a land use ordinance, pursuant to Section 912.1 of Act 247,
as amended.
(g)
Appeals from the Zoning Officer's determination
under Section 916.2 of Act 247, as amended.
(h)
Appeals from the determination of the Zoning
Officer or municipal 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 the municipality's
Subdivision and Land Development Ordinance.[2]
A.
Variances.
(1)
The Board shall hear requests for variances where
it is alleged that the provisions of the zoning ordinance 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 ordinance 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 ordinance and
that the authorization of a variance is therefore necessary to enable
the reasonable use of this 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.
(3)
Upon approval of a variance, the Board shall direct
the Zoning Officer to issue a permit to the applicant, which permit
shall authorize the applicant to proceed with development in accordance
with the terms of the approved variance.
(4)
Variance approvals shall be valid for a period of
one year from the date of approval. If the proposed development is
not completed within one year of approval, the applicant shall submit
a new application for a variance and shall require approval thereof.
B.
Special exceptions.
(1)
Board action. Special exceptions, as enumerated in Article III, shall be permitted only upon authorization by the Zoning Hearing Board. The Board may refer such applications to the Planning Commission for its review and recommendations. The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria set forth herein. 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 Act 247, as amended.
(2)
Review criteria. Approval of special exceptions shall
be authorized only if they are found to comply with the following
requirements and other applicable requirements as set forth in this
chapter:
(b)
That the use is so designed, located and proposed
to be operated that the public health, safety, welfare and convenience
will be protected.
(c)
That the use will not cause substantial injury
to the value of other property in the neighborhood where it is to
be located.
(d)
That the use shall be compatible with adjoining
development and the character of the zoning district where it is proposed
to be located.
(e)
That adequate landscaping and screening is provided as required in § 300-19 and as otherwise provided herein.
(f)
That adequate off-street parking and loading
is provided and ingress and egress is so designed as to cause minimum
interference with traffic on abutting streets.
(g)
That the use conforms with all applicable regulations
governing the district where located, except as may otherwise be determined
for large-scale development.
(h)
That such use shall not result in unsafe traffic
conditions, traffic congestion or other dangerous traffic conditions.
(i)
That such use shall be located on a site where
the soils are suitable to safely support any structure to be erected;
and, where soils are not deemed suitable, a plan shall be submitted,
describing proposed methods to compensate for such unsafe soils conditions.
(3)
Special exceptions; effect of filing an application.
When an application for a special exception has been filed with the
Zoning Hearing Board, and the subject matter of such application would
ultimately constitute either a "land development" as defined in Section
107 or a "subdivision" as defined in Section 107 of the Pennsylvania
Municipalities Planning Code, Act 247, as amended, no change or amendment
of the zoning, subdivision or other governing ordinance or plans shall
affect the decision on such application adversely to the applicant
and the applicant shall be entitled to a decision in accordance with
the provisions of the governing ordinances or plans as they stood
at the time the application was duly filed. Provided, further, should
such an application be approved by the Zoning Hearing Board, the applicant
shall be entitled to proceed with the submission of either land development
or subdivision plans within a period of six months or longer or as
may be approved by the Zoning Hearing Board following the date of
such approval in accordance with the provisions of the governing ordinance
or plans as they stood at the time the application was duly filed
before the Zoning Hearing Board. If either a land development or subdivision
plan is so filed within said period, such plan shall be subject to
the provisions of Section 508(1) through (4) of the Pennsylvania Municipalities
Planning Code, Act 247, as amended, and specifically to the time limitations
of Section 508(4) which shall commence as of the date of filing such
land development or subdivision plan.
Parties appellant before the Board shall be
as set forth in Section 913.3 of Act 247, as amended.
A.
Filing proceedings with the Board. No person shall
be allowed to file any proceeding with the 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 on a tentative plan pursuant to Section 709 of Act 247, as
amended, or from an adverse decision by a Zoning Officer on a challenge
to the validity of this chapter pursuant to Section 916.2 of Act 247,
as amended, shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
B.
Appeals from adverse determinations. 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 proceeding referred to in Section
913.3 of Act 247, as amended,[1] 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 proceeding
before the Board.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
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 questions 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.
The Zoning Hearing Board shall perform all the
duties and have all the powers prescribed by the Pennsylvania Municipalities
Planning Code[1] and as herein more particularly provided.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
The procedure for appeals for any decision made
under Act 247, as amended, shall be pursuant to Article X-A of said
Act.
