The membership of the Zoning Hearing Board shall
consist of five residents of the Municipality appointed by the Council.
Their terms of office shall be four years and shall be so fixed that
the term of office of at least one member shall expire each year.
The Board shall promptly notify the Council when vacancies 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
Municipality, including membership on the Planning Commission and
Zoning Officer.
A.Â
Appointment of alternate members. The Council may appoint by resolution at least one but no more than three residents of the Municipality to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 220-95, 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 power and duties set forth in this chapter 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 unless designated as a voting alternate member pursuant to § 220-96B of this chapter.
B.Â
Participation by alternate members. If, by reason
of absence or disqualification of a member, a quorum is not reached,
the Chairman of the Board shall designate as many alternate members
of the Board to sit on the Board as may be needed to provide a quorum.
Any alternate member of the Board shall continue to serve on the Board
in all proceedings involving the matter or case for which the alternate
was initially appointed until the Board has made a final determination
of the matter or case. Designation of an alternate pursuant to this
subsection shall be made on a case-by-case basis in rotation according
to declining seniority among all alternates.
Any Zoning Hearing Board member may be removed
for malfeasance, misfeasance or nonfeasance in the office or for other
just cause by a majority vote of the Council taken after the member
has received 15 days' advance notice of the intent to take such vote.
A hearing shall be held in connection with the vote if the member
shall request it in writing.
A.Â
Officers. The Zoning Hearing Board shall elect from
its own membership its officers, who shall serve annual terms as such
and may succeed themselves.
B.Â
Quorum. For the conduct of any hearing and the taking
of any action, a quorum shall be not less than a majority of all members
of the Zoning Hearing Board except, when member(s) of the Zoning Hearing
Board are disqualified to act in a particular matter, alternate members
shall be appointed to provide a quorum.
C.Â
Hearing Officer. The Zoning Hearing 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 Zoning
Hearing Board and accept the findings or decision of the Hearing Officer
as final.
D.Â
Procedures. The Zoning Hearing Board may make, alter
and rescind rules and forms for its procedures consistent with ordinances
of the Municipality and laws of the Commonwealth of Pennsylvania.
E.Â
Files and annual report. The Zoning Hearing Board
shall keep full public records of its business and shall submit a
report of its activities to the Council once a year.
The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudication in the following
matters:
A.Â
Substantive challenges to the validity of any land
use ordinance, except curative amendments brought before the Council.
B.Â
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 the ordinance.
C.Â
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.Â
Appeals from a determination by the Municipality 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.Â
Applications for variances from the terms of this chapter and flood hazard ordinance or such provisions within a land use ordinance pursuant to § 220-100.
G.Â
Appeals from the Zoning Officer's determination under
Section 916.2 of the Pennsylvania Municipalities Planning Code (Act
247, as amended).
H.Â
Appeals from the determination of the Zoning Officer
or Municipality 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.
I.Â
Appeals from decisions of the Zoning Officer with respect to requests for reasonable accommodation under the Fair Housing Amendments Act or the Americans with Disabilities Act. In hearing such an appeal, the Board shall apply the criteria set forth in § 220-99 of this chapter. In granting a request for reasonable accommodation, the Board may attach such reasonable safeguards and/or limitations as it may deem necessary to properly implement this chapter and protect the public health, safety and welfare in a manner consistent with the requirements of the Fair Housing Amendments Act or the Americans with Disabilities Act. In handling a request for reasonable accommodation, the Board shall be governed by the provisions of this article to the fullest extent as may be consistent with the Fair Housing Amendments Act and the Americans with Disabilities Act.
The Board, upon appeal, shall have the power
to authorize variances from the requirements of this chapter and to
attach such conditions to the variance as it deems necessary to assure
compliance with the purposes of this chapter. A variance may be granted
if all of the following findings are made where relevant in a given
case:
A.Â
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.Â
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.Â
That such unnecessary hardship has not been created
by the appellant.
D.Â
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.Â
That the variance, if authorized, will represent the
minimum variance necessary to afford relief and will represent the
least modification possible of the regulation in issue.
A.Â
Notice.
(1)Â
Written notice of the hearing shall be given
to the public, the applicant, the Zoning Officer, the Council, the
Planning Commission and to any person who has made timely request
for the same. A notice of the hearing shall be given to other persons
at such a time and in such manner as the Council or the Zoning Hearing
Board shall designate.
(2)Â
Public notice, as defined herein, shall be given
for the public hearing. In addition, written notice of said hearing
shall be conspicuously posted on the affected tract or tracts of land
or water body at least one week prior to the public hearing.
B.Â
Conduct of hearing. The Board shall conduct hearings
in accordance with the following requirements:
(1)Â
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)Â
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.
(3)Â
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.
(4)Â
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.
(5)Â
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.
(6)Â
Formal rules of evidence shall not apply, but
irrelevant, immaterial or unduly repetitious evidence may be excluded.
(7)Â
The Board or the Hearing Officer, as the case may be, shall keep a stenographic record of the proceedings. Fees for the stenographer and transcript are governed by § 220-104 of this chapter.
(8)Â
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.
(9)Â
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 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. 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.
A.Â
Where the Board fails to render a decision within
the required forty-five-day period or fails to hold the required hearing
within 60 days 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.
B.Â
When a decision has been rendered in favor of the
applicant because of failure of the Board to meet or render a decision,
the Board shall give public notice of the decision within 10 days
from the last day it could have met to render a decision. If the Board
shall fail to provide such notice, the applicant may do so. Nothing
in this section shall prejudice the right of any party opposing the
application to appeal the decision to the Court of Common Pleas.
A.Â
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 article 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.
B.Â
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
Municipality, 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:
(1)Â
Funding mediation.
(2)Â
Selecting a mediator who, at a minimum, shall
have a working knowledge of municipal zoning and subdivision procedures
and demonstrated skills in mediation.
(3)Â
Completing mediation, including time limits
for such completion.
(4)Â
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 Municipality decisionmaking body if
either is not a party to the mediation.
(5)Â
Identifying all parties and affording them the
opportunity to participate.
(6)Â
Subject to legal restraints, determining whether
some or all of the mediation sessions shall be open or closed to the
public.
(7)Â
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.
C.Â
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.
A.Â
Fees. The Council may prescribe reasonable fees with
respect to hearings before the Zoning Hearing Board or mediation.
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.
B.Â
Stenographer's appearance fee and transcripts. 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.
C.Â
Expenditures. Members of the Board may receive compensation
for the performance of their duties as may be fixed by the Council,
but in no case shall it exceed the rate of compensation authorized
to be paid to the members of the Council. Within the limits of funds
appropriated by the Council, the Board may employ or contract for
secretaries, clerks, legal counsel, consultants and other technical
services.
A.Â
No person shall file any proceeding before the Zoning
Hearing Board later than 30 days after a preliminary or final application
for development has been approved by an appropriate Municipality 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.
B.Â
The failure of anyone, other than the landowner, to
appeal from an adverse decision on an application for tentative approval
of a planned residential development or from an adverse decision by
a Zoning Officer on a challenge to the validity of an ordinance or
map filed pursuant to Section 916.2 of the Pennsylvania Municipalities
Planning Code shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
C.Â
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.Â
Upon filing of any proceeding 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 the zoning appeals to order such persons to post bond
as a condition to continuing the proceedings before the Board. 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.
B.Â
All appeals from decisions rendered by the Zoning
Hearing Board shall be taken to the Westmoreland County Court of Common
Pleas and shall be filed within 30 days after the entry of the decision
or, in the case of a deemed decision, within 30 days after the date
upon which notice of said deemed decision is given as required by
Subsection 908(9) of the Pennsylvania Municipalities Planning Code
(Act 247, as amended).