There is hereby established in and for the Borough a Zoning Hearing Board. The Board is hereby authorized to administer all procedures specifically charged to such boards in accordance with Article
IX of the Pennsylvania Municipalities Planning Code, as amended. Hereinafter, as used in this article, the
term "Board" shall refer to the Zoning Hearing Board, and the term
"Planning Code" shall refer to the Pennsylvania Municipalities Planning
Code.
[Amended 1-20-2011 by Ord. No. 1346]
A. The Zoning Hearing Board shall consist of five residents of the Borough
appointed by resolution of Council. Their terms of offices shall be
five years and shall be so fixed that the term of office of one member
shall expire each year. The Board shall promptly notify Council of
any vacancies which occur. Appointments to file the vacancies shall
be only for the unexpired portion of the term. Members of the Board
shall hold no other elected or appointed office in the Borough, nor
shall any member be an employee of the Borough.
B. Council may appoint by resolution at least one but no more than three
residents of the Borough to serve as alternate members of the Board.
The term of office of an alternate member shall be three years. Alternates
shall hold no other elected or appointed office in the Borough, including
service as a member of the Planning Commission or as Zoning Officer,
nor shall any alternate be an employee of the Borough. 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
unless designated as a voting alternate member.
Any member of the Zoning Hearing Board may be
removed for malfeasance, misfeasance or nonfeasance in office or for
other just cause by a majority rule of Council, taken after the member
has received 15 days' advance written notice of the intent to take
such a vote. A hearing shall be held in connection with the vote if
the member requests it in writing.
[Amended 1-20-2011 by Ord. No. 1346]
A. The Zoning Hearing 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 its 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 Section 908 of the Planning Code.
B. The Chairman of the Board may designate alternate members of the
Board to replace any absent or disqualified member, and 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 reach 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 decision
on the matter or case. Designation of an alternate shall be made on
a case-by-case basis in rotation according to declining seniority
among all alternates.
C. The Board may make, alter and rescind rules and forms for its procedure
consistent with Board ordinances and Pennsylvania law. The Board shall
keep full public records of its business, which records shall be the
property of the Borough.
D. The Board shall submit a report of its activities to Council once
a year.
[Amended 1-20-2011 by Ord. No. 1346]
Within the limits of funds appropriated by Council,
the Zoning Hearing Board may employ or contract for secretaries, clerks,
legal counsel, consultants and other technical and clerical services.
Members of the Board may receive such compensation for the performance
of their duties as may be fixed by Council, but in no case shall it
exceed the rate of compensation authorized to be paid to members of
Council.Alternate members of the Board may receive compensation, as
may be fixed by Council, for the performance of their duties when
designated as a voting alternate member, but in no case shall the
compensation exceed the rate of compensation authorized to be paid
to the members of Council.
[Amended 1-20-2011 by Ord. No. 1346]
The Board shall have exclusive jurisdiction to hear and render
final adjudication in the following matters:
A. Substantive challenges to the validity of any zoning ordinance, except
those brought before Council pursuant to Planning Code Sections 609.1
and 916.1(a)(2).
B. Appeals from the determination of the Code Enforcement 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.
C. Appeals from a determination by a municipal engineer or the Code
Enforcement Officer with reference to the administration of any floodplain
or flood hazard or ordinance or such provisions within the Zoning
Ordinance.
D. Applications for variances from the terms of the Zoning Ordinance
and flood hazard ordinance or such provisions within the Zoning Ordinance, pursuant
to Planning Code Section 910.2.
E. Application for special exceptions under the zoning ordinances or
floodplain or flood hazard ordinance or such provisions within a zoning
ordinance, pursuant to Planning Code Section 912.1.
F. Appeals from the determination of any officer or agency charged with
the administration of any transfers of development rights or performance
density provisions of the Zoning Ordinance.
G. Appeals from the Code Enforcement Officer's determination under
Planning Code Section 916.2.
H. Appeals from the determination of the Code Enforcement Officer or municipal engineer in the administration of any zoning 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 Planning Code.
[Amended 1-20-2011 by Ord. No. 1346]
The Board shall conduct hearings in accordance with the following
requirements:
A. Council may prescribe reasonable fees with respect to hearings before
the Board. Fees for said hearings may include compensation for the
secretary and 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.
B. The first hearing before the Board or hearing officer shall be commenced
within 60 days from the date of receipt of the applicant's application,
unless the applicant has agreed in writing to an extension of time.
Each subsequent hearing before the 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 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,
provided the persons opposed to the application are 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 Borough, be granted additional hearings to complete their opposition
to the application, provided the applicant is granted an equal number
of additional hearings for rebuttal.
C. 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, when 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 share 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 office 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.
[Amended 1-20-2011 by Ord. No. 1346]
Public notice shall be given and written notice shall be given
to the applicant, Council, the Borough Secretary, the Code Enforcement
Officer, all property owners who adjoin the property in question or
are within a two-hundred-foot radius of the property in question and
to any person who has made timely request for the same. Written notices
shall be sent by mail or be hand-delivered. 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.
[Amended 1-20-2011 by Ord. No. 1346]
A. 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. When 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 the Planning Code or 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.
Except for challenges filed under Planning Code Section 916.1, where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in §
300-25B, 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 within 10 days from the last day it could have met to render a decision in the same manner as provided in §
300-26. 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 a court of competent jurisdiction.
B. 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.
[Amended 4-19-2001 by Ord. No. 1279]
In any instance where the Zoning Hearing Board
is required to consider a variance or special exception in this chapter
or the Zoning Map in accordance with this chapter, the Board shall,
among other things, consider the following standards:
A. Variances.
(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, environmental or technological
conditions peculiar to the particular property or use, and that the
unnecessary hardship is due to such conditions and not the circumstances
or conditions generally created by 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 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 appellant;
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in which the property
is located, will not substantially or permanently impair the appropriate
use or development of adjacent property and will not be detrimental
to the public welfare; and
(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. Special exceptions. See Article
XVII for standards and criteria for special exceptions.
C. In granting
any variance or special exception, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of the Planning Code and the Zoning Ordinance.
[Added 1-20-2011 by Ord.
No. 1346]
[Amended 1-20-2011 by Ord. No. 1346]
A. Generally. All appeals from decisions of the Board shall be subject
to the time limitations and requirements of Article XI-A and any other applicable provision of the Planning Code.
The proceedings set forth in Article XI-A of the Planning Code shall
constitute the exclusive mode for securing a review of any decision
of the Board.
B. Manner of filing. Appeals under Section 909.1(a)(1), (2), (3), (4),
(7), (8) and (9) of the Planning Code may be filed with the Board, in writing, by the landowner
affected, by an officer or agency of the Borough or by any aggrieved
person. A request for a variance under Section 910.2 and for a special exception under Section 912.1 may be filed with the Board by any landowner or by any
tenant with the permission of such landowner.
C. Time limitation. No person shall be allowed to file any proceeding
with the Board later than 30 days after any application for development,
preliminary or final, has been approved by the appropriate Borough
officer, agency or body, if such proceeding is designed to secure
a reversal or to limit the approval in any manner, unless such person
alleges and proves that he or she had no notice, knowledge or reason
to believe that such approval had been given. If such person has succeeded
to this interest after such approval, he or she shall be bound by
the knowledge of his or her predecessor in interest. The failure of
anyone other than the landowner to appeal from an adverse decision
by the Code Enforcement Officer on a challenge to the validity of
an ordinance or map pursuant to Section 916.2 shall preclude an appeal from a final approval, except
in the case where the final submission substantially deviates from
the approved tentative plans. All appeals from determinations adverse
to the landowners shall be filed by the landowner within 30 days after
notice of the determination is issued.
D. Stay of proceedings. Upon a filing of any proceeding referred to
in Section 913.3 of the Planning Code and during the pendency before the Board, all land development
pursuant to any challenged ordinance, order or approval of the Code
Enforcement Officer or of any agency or body, and all official action
thereunder, shall be stayed unless the Code Enforcement 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 over zoning appeals on petition,
after notice, to the Code Enforcement 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
over zoning appeals to order such persons to post bond as a condition
to continuing the proceedings before the Board. The question of whether
or not such petition should be granted and the amount of the bond
shall be within the sound discretion of the court.