A. 
Membership of the Zoning Hearing Board.
(1) 
Number; appointment; terms.
(a) 
The membership of the Board shall be five persons, all residents of Indiana Borough, who shall be appointed by resolution of Borough Council and may succeed themselves.
(b) 
Council may reduce the number of members to three, at its option, by advertising as for a public hearing its intent to reduce the membership at a specific regular meeting and then by resolution, approved by a majority of the full Council, taking such action. Existing terms shall be allowed to expire and future terms of the three-member Board shall be for three years with one appointment to fill an expired term each year.
(2) 
Members of the Board shall hold no other office in Indiana Borough, either elective or appointed.
(3) 
Members of the Board shall be appointed for five-year staggered terms, with not more than one appointment each year not later than the March regular meeting of Council to refill a completed term.
(4) 
Any member may be reappointed to another five-year term when a preceding term is completed.
(5) 
Appointments to fill vacancies shall be made by Council for the unexpired portion of a term only. The Zoning Hearing Board shall promptly notify Council when a vacancy occurs.
B. 
Alternate members.
(1) 
Council may appoint by resolution one, two or three persons who are residents of Indiana Borough as alternate members of the Zoning Hearing Board for three-year terms. Such person or persons may, at the direction of the Hearing Board Chairman, replace a regular member who is unable to participate at the beginning of a proceeding before the Board, and shall during the proceeding function with the full authority of a regular Board member. Alternate members shall serve on a case-by-case basis in rotation beginning with the first alternate appointed.
(2) 
Such alternates shall hold no other office in Indiana Borough, either elective or appointed. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote unless designated as a voting replacement member.
C. 
Removal of members.
(1) 
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, taken after the Board member has received at least 15 days notice such vote will be taken.
(2) 
"Malfeasance" implies a deliberate illegal act; "misfeasance" means acting mistakenly when there is a clearly correct way to act; and "nonfeasance" means failure to act when an act is required. Generally a pattern of misfeasance or nonfeasance could result in Borough Council action, but one alleged act of malfeasance would be sufficient for Council investigation.
(3) 
The Board member thus accused may request, by written communication to the Borough Secretary no later than 15 days prior to the meeting of the Council at which the vote for removal is to be taken, hearing before Council after which Council, at its discretion, may take a vote for removal of the Board member.
D. 
Organization of the Board.
(1) 
The Board shall elect officers from among its membership, to include a Chairman and Vice Chairman.
(2) 
The Secretary shall call for a hearing upon receiving notice that a request for a hearing has been made.
(3) 
The Board shall reorganize at its first meeting in each calendar year.
(4) 
Board members may succeed themselves in their positions.
(5) 
The Chairman shall chair all meetings of the Board.
(6) 
The Vice Chairman shall act in the absence of the Chairman.
(7) 
A quorum shall be not less than a majority of all members of the Board.
(8) 
The Board may make, alter, or rescind rules and forms for its procedure consistent with this and other ordinances of Indiana Borough and the law of the commonwealth.
(9) 
In conducting its business, the Board shall utilize Roberts Rules of Order when procedural conflicts arise that are not addressed by this article.
E. 
Secretary of the Board.
(1) 
Borough Council shall annually, not later than the March regular meeting, appoint or reappoint the Secretary of the Zoning Hearing Board, who shall not be a member of the Board.
(2) 
The Secretary shall be responsible for scheduling public hearings, placing of newspaper and letter notices and posting properties affected by variance or special exception requests. In addition, the Secretary shall arrange for a stenographer to record hearing testimony verbatim, and shall distribute copies of the hearing record requested by the parties.
(3) 
The Secretary shall keep minutes of the Board's proceedings, noting the vote of each member on every motion, and shall distribute the Board's decisions.
(4) 
A written record, noting the location and exact nature of each variance and special exception, shall be kept by the Secretary and be a public record.
(5) 
The Secretary shall keep full public records of the Board's business and shall submit reports to Borough Council on the Board's actions within 30 days after each action is taken.
F. 
Conflicts of interest.
(1) 
A member who has a conflict of interest with a case to be heard shall excuse himself/herself from the hearing, in which case an alternate, if such exists, may be appointed by the Chairman to hear the case in place of the excused member.
(2) 
When the Board is unable to produce a quorum (three members) to conduct a hearing because of conflict of interest, illness or previously planned absence from the municipality, and sufficient alternate members are not available, for the same reasons, to complete the quorum, the Chairman may appoint one of the available members or designate himself as a Hearing Officer to act on behalf of the Board.
(3) 
The Hearing Officer shall conduct the hearing, and the parties to the hearing, including the Borough, may prior to release of the findings or decision, mutually agree to waive further action by the Board as a whole and accept the findings or decision of the Hearing Officer as final.
G. 
Expenditures for services.
(1) 
Within the limits of its annual budget, the Board may employ secretarial, legal, technical, or other consulting services to assist it in carrying out its duties.
(2) 
In setting fees for public hearings, Council may not include the costs of legal services for the Board or expenses for technical consultants or expert witnesses.
(3) 
The attorney retained by Borough Council shall not also provide legal services for the Zoning Hearing Board.
A. 
General rules.
(1) 
Before acting on any request for a decision, the Zoning Hearing Board shall consider the recommendations of the Planning Commission which shall review each request and indicate to the Board, as expressed in its meeting minutes, a favorable, unfavorable or conditional reaction to the request, as well as a record of its discussion on the matter.
(2) 
If the Board approves an action that will authorize the issuance of a building permit, such a permit shall be in the possession of the applicant within six months of the date of the Board's decision unless the Board's decision grants a specific longer delay.
(3) 
If the Board denies an action, the applicant or his agent may not resubmit the same or substantially the same request for action for at least one year after the date of denial unless the Board determines conditions affecting the application, such as changes in the State Planning Code, warrant a rehearing.
B. 
Appeals from decisions of the Zoning Officer.
(1) 
The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Office has failed to follow prescribed procedures or has misrepresented or misapplied any provision of any ordinance governing land development adopted by Indiana Borough.
[Amended 2-2-2016 by Ord. No. 2016-03]
(2) 
Appeals may include, but are not limited to, the granting or denial of a permit or failure to act on the application therefor; the issuance or failure to issue any cease and desist order; or failure to administer or improper administration of the flood hazard area regulations.
C. 
Variances.
(1) 
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.
(2) 
Variance from the terms of this chapter shall not be granted by the Board unless a written application for a variance is submitted in advance of the hearing to the Secretary of the Board demonstrating all of the following findings where relevant:
(a) 
That there are unique physical circumstances or conditions, including but not limited to 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 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 therefore necessary to enable the reasonable use of the property;
(c) 
That such unnecessary hardship has not been created by the appellant; and
(d) 
That the variance, if authorized, will not alter the essential character of the neighborhood 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.
(3) 
In addition to the written statement described above, the applicant shall submit a sketch plan prepared by a registered surveyor showing the location of all boundary lines on the property proposed for the variance, the position of building walls, and the required and proposed dimensions between boundary line and wall that are the subject of the variance.
(4) 
If authorized, the variance shall represent the least deviation from the regulations that will afford relief and will represent the least modification possible of the regulation in question.
(5) 
In granting a variance the Board may attach appropriate conditions necessary to protect the intent of this chapter, the Comprehensive Plan of Indiana Borough and the public health and safety.
D. 
Special exceptions.
(1) 
Special exceptions are listed for each zone district in Article III of this chapter. Only those uses expressly listed as special exceptions in a particular zone district may be considered for property within that zone district.
(2) 
A landowner proposing a special exception to a particular property shall submit a written statement and a site plan in support of the project to the Zoning Hearing Board with copies of each provided to the Board.
[Amended 5-3-2005 by Ord. No. 2005-02]
(3) 
The written statement shall demonstrate, where applicable considering the site, that the following concerns will be addressed:
(a) 
The applicant is the owner of record of the property to receive the proposed use;
(b) 
The proposed use is a bona fide special exception based on a detailed description of all aspects of the use;
(c) 
The use will not endanger the public health, safety or welfare if located where proposed, and will not deteriorate the environment or generate nuisance conditions;
(d) 
The use is compatible with or will support the existing and projected development in the neighborhood of the site;
(e) 
The use can be accommodated on the site within the lot area, setback and coverage requirements of the zone district with no, or at worst, minor variances from the terms of this chapter;
(f) 
The use will have access to public sanitary sewer and water lines, and will drain to a storm sewer or established drainage-way;
[Amended 2-2-2016 by Ord. No. 2016-03]
(g) 
The use will not create excessive traffic congestion or dangerous conditions on streets abutting the property, unless such congestion or dangerous conditions will be mitigated by off-site improvements provided by the developer;
(h) 
Areas of the property to be disturbed but not to be covered by buildings, driveways or parking will be landscaped and maintained;
(i) 
Adequate off-street parking will be provided on the same property as the use, in accordance with Article VI; and
(j) 
Access points to the property will be located as remote as possible from street intersections, and adequate sight distances will be available at access points for entering and departing vehicles as well as for through traffic on abutting roads.
(4) 
The accurately drawn and scaled illustrative site plan shall show the arrangement of the proposed use on the site, including:
(a) 
Property lines around the periphery of the site;
(b) 
Uses on adjacent properties and across streets abutting the applicant's property;
(c) 
Abutting streets, including paved and right-of-way widths and intersections;
(d) 
Buildings existing and proposed on the site by use, height, and number of stores;
(e) 
Point or points of access into the site from abutting streets;
(f) 
Internal driveways and parking area layout with each parking space delineated;
(g) 
Signs to remain or proposed, indicating sign area, location relative to road and property lines, and height;
(h) 
Location of public sanitary sewer and water lines and storm sewer lines or drainageways to which the property has access, including sewer laterals serving the building on the property;
(i) 
Plan for collecting and disposing of stormwater; and
(j) 
If the proposal is commercial, business or institutional, the location of proposed landscaping and other pertinent information to illustrate the proposal.
(5) 
The Planning Commission shall review the written statement and plan, and shall make recommendations to the Zoning Hearing Board. The Commission's meeting minutes shall indicate that the Commission views the proposal favorably, with reservations, or without comments, and may include conditions recommended to be attached to the Board's approval.
(6) 
The Zoning Hearing Board shall review the applicants presentation and shall approve, deny, or approve with conditions, the proposed special exception. Conditions shall be noted on the building permit issued to erect the special exception. If the applicant does not accept any or all of the conditions, the application shall be considered denied. The conditions shall be designed to protect the intent of this chapter and the public health and safety.
[Amended 5-3-2005 by Ord. No. 2005-02]
(7) 
Expansion of special exceptions.
(a) 
When approving a special exception application, the Board shall be specific about exactly what is approved. Approval may include future expansion, if requested by the applicant and agreed to by the Board, but only for specific expansions on land already owned by the applicant or under option to be purchased by him/her.
(b) 
Any expansion proposed after the initial specific approval shall require reapplication to the Board for approval.
(c) 
Any property in a use which is listed as a special exception in Article III of this chapter for the zone district where the property is located at the time of adoption of this chapter or subsequent amendment affecting the property, may continue to operate as usual, but if the owner proposes to expand the use, he/she shall apply to the Board for special exception approval.
E. 
Challenges to the validity of this chapter.
(1) 
The Board shall hear substantive challenges to the validity of this chapter, except those brought as curative amendments, which shall be considered by Borough Council; and challenges raising procedural questions or alleged defects in the process of enactment or adoption of an ordinance or an amendment, provided such challenge is brought to the Board within 30 days after the effective date of the ordinance or amendment.
(2) 
A substantive challenge may be brought by a landowner who contends that any part of a land development ordinance prohibits or restricts the proposed use or development of his land, or by persons aggrieved by a use or development permitted on lands of another party by any part of such an ordinance.
(3) 
The appellant shall file a written request with the Secretary of the Board for a hearing on his challenge. Such a request shall include the reasons for the challenge, the use or development proposed in lieu of that permitted by the challenged section of the ordinance, and other relevant materials in support of the challenge.
(4) 
In making its decision on a substantive challenge, the Board shall consider, in addition to the filed statement, evidence of the impact of the proposed use or development on municipal services and facilities; the extent to which the use or development provides low- and/or moderate-income housing units if it is a residential plan; the suitability of the site for the proposed intensity of the use; and the effect of the development or use upon soils, slopes, woodlands, drainage, floodplains, aquifers, and natural features.
(5) 
If the Board finds the challenge has merit, the Board's decision shall include recommended amendments to the challenged ordinance which will cure the defects found.
(6) 
The public notice on a hearing for a challenge shall state that the validity of the ordinance is challenged and shall specify the specific part of the particular ordinance whose validity is in question. The notice shall also indicate where and when plans, documents and/or proposed amendments may be examined prior to the hearing.
(7) 
The challenge shall be deemed to have been denied if the Board fails to commence the hearing within 60 days of receiving the request, or the Board fails to act on the request within 45 days after the end of the hearing.
F. 
Determinations upon nonconforming uses.
(1) 
The Board shall hear appeals when an applicant proposes to change an existing legitimate nonconforming use to a second nonconforming use.
(2) 
If approving a nonconforming use, the Board shall determine that the proposed nonconforming use is more compatible with the uses permitted in the zone district than the preceding nonconforming use and will not downgrade the neighborhood of which it is a part.
(3) 
The Board may attach conditions to approval designed to minimize or eliminate any negative impacts of the proposed nonconforming use.
A. 
An appeal, challenge, or request for a variance or special exception or other action may be filed, in writing, with the Secretary of the Board by, or on behalf of, any owner of land in the Borough, by any tenant wishing a variance with the permission of his landowner, by any officer or agency of the Borough, or by any aggrieved person.
B. 
When a request for a hearing is received by the Secretary of the Zoning Hearing Board, the Board shall schedule and commence the hearing within 60 days, unless the applicant has agreed in writing to an extension.
C. 
Hearings shall be conducted by the Board or by a Hearing Officer member, whose decision, or findings where no decision is required, may be considered final by the parties prior to the decision, requiring no further action by the Board.
D. 
The parties to a hearing shall be the Borough, the appellant, and anyone affected by the application and/or any civic or community organization who or which requests, in writing, the opportunity to appear prior to the hearing, or on appearance forms provided at the hearing.
E. 
Notice of a hearing shall be mailed at least 14 days before the hearing to all parties of the hearing, and in addition to the Zoning Office, Borough Council and to owners of properties within 100 feet of any boundary of the property or properties affected by the hearing, and within 200 feet from the boundaries along both sides of the street upon which the property or properties front, as well as to others who have filed a timely request to receive notice.
[Amended 2-2-2016 by Ord. No. 2016-03]
F. 
Public notice shall be placed twice in a newspaper of general local circulation, once in each of two consecutive weeks, the first not more than 30 days and the second notice not less than seven days before the hearing. In addition, if a variance or special exception approval is sought, or an appeal requested, notice shall be placed conspicuously on the affected property and posted at the Borough Building at least seven days before the hearing.
G. 
Newspaper and letter notices shall indicate the date, time, and place of the hearing and the specific nature of the matter to be heard.
A. 
The Chairman or Hearing Officer shall conduct the hearing and shall have the power to administer oaths and issue subpoenas to compel attendance of witnesses and the production of relevant documents, including those witnesses and documents requested by the parties.
B. 
The parties shall have the right to be represented by counsel and shall have the opportunity to respond and present evidence and arguments, and to 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.
C. 
The Board shall cause to have kept 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 for by the Board, if the Board requests it, or by the appellant if contesting a decision of the Board. Any other transcript of the proceedings and/or copies of graphic or written material received in evidence shall be made available to any party at cost to that party.
D. 
The Board or the Hearing Officer shall not communicate, directly or indirectly, with any party and/or representatives of any party in connection with any issue relevant to the hearing, except upon notice and opportunity for all parties to participate; shall not take notice of any communications, reports or other materials, except advice from the Board's solicitor, unless all parties are afforded an opportunity to contest the material so noticed; and shall not inspect any site or its surroundings with any party and/or representative of any party after the start of hearings unless all parties are given an opportunity to be present.
E. 
The Board or Hearing Officer shall render a written decision, or, when no decision is required, written findings on the application within 45 days after the conclusion of the hearing before the Board or Hearing Officer. When the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based on them together with the reasons therefor.
F. 
If the hearing is conducted by a Hearing Officer and there has been no stipulation that the Hearing Officer's decision or findings are final, the Board shall make the Officer's report and recommendations available within 45 days after the hearing to the parties who shall be entitled to make written representations thereon to the Board which shall convene as a whole and render a final decision and entry of findings not later than 30 days after the Hearing Officer's decision.
G. 
When the Board or Hearing Officer fails to render a decision within 45 days after hearing the application, or fails to hold the public hearing within 60 days of receiving the request for one, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant and Board have agreed, in writing, to a specific time extension.
H. 
A copy of the final decision, or the findings if no decision is required, shall be mailed to the applicant no later than the day after the date of the decision. All others requesting notice of the decision not later than the last day of the hearing shall receive by mail a brief summary of the findings or decision and a statement of the place at which the full decision or findings may be examined.
A. 
Once the Zoning Office has acted on a development proposal pursuant to the regulations of this chapter, any party may appeal the decision to the Zoning Hearing Board not later than 30 days after the Zoning Office has issued a permit, unless the appealing party can prove he/she had no knowledge of the decision within the thirty-day period. Before taking action, the Board shall consider recommendations and a written record from the Planning Commission. A second party succeeding in interest shall be bound by the first party's knowledge.
[Amended 2-2-2016 by Ord. No. 2016-03]
B. 
Upon the filing of an appeal to overturn or limit an approved action, and while an appeal is pending before the Board, any development affected by the appeal shall be halted unless the Zoning Office certifies to the Board that suspension would cause imminent peril to life and property. In this case, suspension will occur only by a restraining order granted by the Board or Indiana County Court. When an application for development has been duly approved, and proceedings intended to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant shall have the right to petition the Court to require the appealing party to post a bond as a condition of continuing the appeal, the amount to be determined by the Court. The Court shall hear the petition, determine whether the appeal is frivolous, and if so, may require the posting of the bond.
[Amended 2-2-2016 by Ord. No. 2016-03]
C. 
Appeals from decision of the Board, or upon reports of the Board in proceedings to challenge the validity of any ordinance, shall be filed within 30 days of the decision or completion of the report, with the Clerk of Indiana County Court of Common Pleas.