The Zoning Hearing Board (hereinafter referred
to as "Board") is the authorized body that hears and decides specified
subject matters that are designated in this chapter.
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.
The Borough Council shall make provisions in
its budget and appropriate funds for the operation of the Board. 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.
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 and to any person who
has made timely request for the same. The public notice and the written
notice to the applicant shall be prepared and delivered by the Board
Solicitor. Written notice shall be given through the use of certified
United States mail. 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
with respect to hearings before the Board. Fees for said hearings
may include compensation for the Secretary and the 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 commenced 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 Zoning Hearing 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 Zoning Hearing 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. The applicant may,
upon request, be 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 the Borough, be granted an equal
number of additional hearings to complete their opposition to the
application provided the applicant is granted an equal number of additional
hearings for rebuttal.
[Amended 9-28-2010 by Ord. No. 918]
D. The hearings shall be conducted by the Zoning Hearing
Board or the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board and accept the decision or
findings of the Hearing Officer as final.
[Amended 9-28-2010 by Ord. No. 918]
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 and
community organizations permitted to appear by the Board. The Board
shall have the 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 the 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 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 commencement of hearings with any party or his representatives
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 the hearing officer.
(1) 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 provision of the Pennsylvania Municipalities Planning Code
(Act 247, as amended), or of any Borough 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.
(2) 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.
(3) Where the Zoning Hearing Board fails to render a decision within the required forty-five-day period or fails to commence or complete the required hearing as provided in §
245-93C, 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.
[Amended 9-28-2010 by Ord. No. 918]
(4) 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. If the Board shall fail to provide such notice, the applicant may do so.
(5) Nothing in Subsection
K of this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(6) 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 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 at which the full decision or findings
may be examined.
L. Mediation option.
[Added 9-28-2010 by Ord. No. 918]
(1) Parties to proceedings authorized in this article may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this §
245-93 once they have been formally initiated. Nothing in this subsection shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
(2) Participation in mediation shall be wholly voluntary. The appropriateness
of mediation shall be determined by the particulars of each case and
the willingness of the parties to negotiate. The Borough, in offering
the mediation option, shall assure that in each case the mediating
parties, assisted by the mediator as appropriate, develop terms and
conditions for:
(b)
Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedures and demonstrated
skills in mediation.
(c)
Completing mediation, including time limits for such completion.
(d)
Suspending time limits otherwise authorized in this chapter
or in the Pennsylvania Municipalities Planning Code (Act 247, as amended), provided there is written consent by the mediating parties,
and by an applicant or Borough decision-making body, if either is
not a party to the mediation.
(e)
Identifying all parties and affording them the opportunity to
participate.
(f)
Subject to legal restraints, determining whether some or all
of the mediation sessions shall be open or closed to the public.
(g)
Assuring that mediated solutions are in writing and signed by
the parties, and become subject to review and approval by the appropriate
decisionmaking body pursuant to the authorized procedures set forth
in this chapter.
(3) No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
The Board shall have exclusive jurisdiction
to hear and render final adjudication in the following matters:
A. Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council by a landowner as a curative amendment (see §
245-95C).
B. Challenges to the validity of any 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 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.
E. Appeals from the Zoning Officer's preliminary opinion determination under §
245-80 of this chapter.
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 development
not involving subdivision and land development applications.
G. Applications for variances from the terms of this chapter, flood hazard ordinance or such provisions within a land use ordinance (see §
245-95A).
H. Applications for special exception under this chapter, floodplain or flood hazard ordinance or such provisions within a land use ordinance (see §
245-95B).
Appeals from the determination or decisions
of the Board shall be filed and handled as prescribed by the Pennsylvania
Municipalities Planning Code (Act 247, as amended).