[Amended 7-11-1991 by Ord. No. 1355]
A Zoning Hearing Board is hereby established
which shall consist of three members, residing within the City to
be appointed by the governing body of the city. One member shall be
appointed for one year, one member for two years and one member for
three years, and each subsequent term shall be for three years. Members
of the Board shall hold no other office in the municipality. 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 of the city, 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 requests it, in writing. Vacancies
shall be filled by resolution of the governing body of the City for
the unexpired term of the member affected.
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 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 § 260-131 hereof. Where two members of the Board are disqualified or disqualify themselves to act in a particular matter, the remaining member may act for the Board. The Board shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings shall be called by the Chairman. The Board may cancel the regular monthly meeting if no matters are pending for its consideration. The Board shall keep full public records of its business and shall submit a report of its activities to the governing body of the City once a year.
[Added 7-11-1991 by Ord. No. 1355]
A.
City Council may appoint by resolution at least one
but no more than three residents of the City to serve as alternate
members of the Board. The term of office of an alternate member shall
be three years. When seated, an alternate member 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 of regular members.
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.
B.
If, by reason of absence or disqualification of a
member, a quorum is not reached, the Chairman of the Board may 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.
C.
Designation of an alternate pursuant to this section
shall be made on a case-by-case basis in rotation according to declining
seniority among all alternates. The attorney retained to advise the
Board shall not be the legal adviser to City Council.
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Notice shall be given to the public, the applicant, the Planning Commission, the Zoning and Code Management Officer and to any person who has made timely request for the same. Notices shall be given at such time and in such manner as prescribed by § 260-132.
B.
The hearings shall commence within 60 days from the
date of the applicant's request and 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, but the parties may waive decision or findings by the Board
and accept the decision or findings of the hearing officer as final.
[Amended 7-11-1991 by Ord. No. 1355]
C.
The parties to the hearing shall be the city, 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 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.
D.
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.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
G.
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.
[Amended 7-11-1991 by Ord. No. 1355]
H.
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.
I.
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 act 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 the hearing officer's 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. The Board's decision shall be entered
no later than 30 days after the report of the hearing officer. 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.
[Amended 7-11-1991 by Ord. No. 1355]
J.
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 the date
that the final decision is published. 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.
K.
No proceeding before the Board shall commence until
a fee as prescribed by resolution of Council has been deposited with
the Secretary of the Board by the applicant. Fees for said hearings
may include 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.
[Amended 7-11-1991 by Ord. No. 1355]
The Zoning Hearing Board shall have the following
powers and duties:
A.
Appeals from the Zoning and Code Management Officer.
The Board shall hear and decide appeals where it is alleged by the
appellant that the Zoning and Code Management Officer has failed to
follow prescribed procedures or has misinterpreted or misapplied any
provision of this chapter or any valid rule or regulation governing
the action of the Zoning and Code Management Officer.
B.
Challenge to the validity of any ordinance or map
on substantive and procedural grounds.
[Amended 7-11-1991 by Ord. No. 1355]
(1)
A landowner who desires to challenge any provision of an ordinance or map which prohibits or restricts the use or development of land in which he has an interest may submit his challenge to the Board, or to City Council as a curative amendment (see § 260-138). Persons aggrieved by a use or development permitted on the land of another person by any provision of an ordinance or map and who desires to challenge the ordinance or map validity on substantive grounds shall submit their challenge to the Board. The challenging party shall make a written request that the Board schedule a hearing within 60 days of filing. The request shall contain the reasons for the challenge.
(2)
The Board shall hold a properly noticed hearing.
Within 45 days after the end of the hearing the Board shall render
a decision determining whether the challenged ordinance or map is
defective as alleged. If so, the decision shall include recommended
amendments which will cure the defects found. In reaching its decision
the Board shall consider, in addition to the materials provided by
the applicant, the impact of the development proposal on roads, utilities
and other public services, the impact upon provision of low and moderate
income housing if a residential development and the impact of the
proposal on its site's soils, slopes, woodlands, floodplains and other
natural features.
(3)
The challenge shall be deemed denied if the
Board fails to act within the 45 day limit after the hearing, or fails
to schedule the hearing within 60 days of the request.
(4)
The Board may also hear procedural challenges
where the applicant alleges that there were defects in the process
of adoption of amendments to this chapter or any other land use ordinance
of the city. Such challenges shall be made within 30 days after the
effective date of the amendment.
C.
Variances; conditions governing applications and procedures.
(1)
The Board shall hear requests for variances
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The variance from the terms of this chapter
shall not be granted by the Board unless:
(a)
To allow time for legal advertising, written
application for a variance must be submitted to the Secretary of the
Board not less than 30 days prior to the regular monthly meeting demonstrating
that:
[Amended 11-21-2013 by Ord. No. 1679]
[1]
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.
[2]
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.
[3]
Such unnecessary hardship has not been created
by the appellant.
[4]
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.
[5]
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)
Public notice shall be given by the Board in
a newspaper of general local circulation once each week for two consecutive
weeks, the first notice to be not more than 30 and the second notice
no less than seven days prior to the hearing. The owner of the property
for which a variance is sought or his agent shall be notified by mail.
In addition, property owners of record within 200 feet of the exterior
boundaries of the property for which variance is sought shall be notified
by mail at least seven days prior to the hearing. Notice of such hearings
shall be posted on the property for which a variance is sought, at
the City Building, and one notice shall be placed in a prominent location
on the affected tract of land at least seven days prior to public
hearing.
[Amended 7-11-1991 by Ord. No. 1355; 2-20-1997 by Ord. No. 1430]
(c)
The public hearing shall be held. Any party
may appear in person or by agent.
(d)
The Board shall make findings that the requirements of Subsection C(1) hereof have been met by the applicant for variance and shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and with the comprehensive plan of the city.
(2)
In granting any variance, the Board may prescribe
appropriate conditions and safeguards in conformity with this chapter.
(3)
The Board shall prescribe a time limit within
which the action for which the variance is required shall be begun
or completed, or both. Failure to comply with the time limit set shall
void the variance.
(4)
Under no circumstances shall the Board grant
a variance to allow a use not permissible under the terms of this
chapter in the district involved or any use expressly or by implication
prohibited by the terms of this chapter in the district.
D.
Special exceptions; conditions governing application
and procedure.
(1)
The Board shall hear and decide requests for
such special exceptions as stated in this chapter. A special exception
shall not be granted by the Board unless:
(a)
To allow time for legal advertising, written
application for a special exception must be submitted to the Secretary
of the Board not less than 30 days prior to the regular monthly meeting
demonstrating that the development:
[Amended 11-21-2013 by Ord. No. 1679]
[1]
Will not endanger the public health or safety
if located where proposed and that the use will not generate nuisance
conditions such as traffic congestion, noise, dust, glare or vibration.
[2]
Meets all requirements of this chapter in the
zoning district where the use is proposed.
[3]
Is in general conformity with the Comprehensive
Plan for the City and in harmony with the area in which it is proposed.
(b)
The developer shall submit drawings to the Board
indicating the boundaries of the property, location of adjacent streets,
the location and height of proposed buildings on the property with
dimensions from property lines, access to the property and the location
and number of proposed parking spaces.
(d)
The public hearing shall be held. Any party
may appear in person or by agent.
(2)
The Board, before it grants a special exception,
shall make findings of fact and state its reasons for granting the
special exception.
(a)
The Board shall have the authority to require
and approve specific plans, to increase the requirements set forth
above and elsewhere in this chapter, but in no case shall the Board
have the authority to decrease the requirements of this chapter for
any use in the district in which a special exception is proposed to
locate. Any such decrease in the requirements of this chapter shall
only be granted upon the issuance of a variance or an amendment to
the chapter.
(b)
All conditions required by the Board shall be
entered in the minutes of the meeting at which the permit is granted
and also on the certificate of special exception.
(3)
The Board shall prescribe a time limit within
which the action for which the special exception is required shall
be begun or completed, or both. Failure to begin or complete or begin
and complete such action within the time limit set shall void the
special exception permit.
(4)
The following special exceptions are subject
to special conditions as listed:
(a)
Conversion of an existing single-family residence
to two or more dwelling units does not require review by the Zoning
Hearing Board unless a variance is requested:
[1]
Such structures shall contain at least 450 square
feet of living space per dwelling unit.
[2]
Each dwelling unit shall conform to the Housing
Code of the City as well as all other codes of the city.
[3]
Adequate ingress and egress shall be provided
in accordance with state and local law.
[4]
If no exterior alteration such as enlarging
the structure is made, the existing structure shall be presumed to
be in accordance with yard, height, coverage and setback requirements.
However, if exterior additions are made, all lot, yard, height and
all other requirements of this chapter for the zone in which the conversion
is located shall be complied with.
[5]
In R-2 Zone Districts, the minimum lot area
for a two-family conversion with no exterior addition shall be 3,000
square feet. In R-3 Districts the minimum lot area for a two-family
conversion with no exterior addition shall be 3,000 square feet, plus
an additional 1,500 square feet of lot area for each dwelling unit
in excess of two.
(b)
Boarding and lodging houses, funeral homes,
membership clubs and tourist homes.
[1]
A rooming house shall be permitted on a zoning
lot having a minimum area of 7,200 square feet, plus 300 square feet
for each sleeping room in excess of four, provided that the prescribed
yard, lot width and height requirements for a one-family dwelling
are met.
[2]
A membership club shall be permitted, provided
that neither restaurant nor bar facilities are established, and provided
that the time of operation and the intensity of the use will not be
disturbing to the adjacent residential uses.
[3]
A funeral home shall be permitted on a zoning
lot having a minimum area of 7,200 square feet, plus 300 square feet
for each chapel, provided that the prescribed yard, lot width and
height requirements for a one-family dwelling are met, the main building
is located not nearer than 100 feet to an R-1 District, there is no
crematory, receiving vault or preparation as part of the operation,
there is no display of merchandise or advertising visible from outside
the main or accessory building, there is no loading or unloading of
merchandise or bodies of deceased persons on public property and there
is no parking or standing of motor vehicles on public property.
[4]
A tourist home shall be permitted on a zoning
lot having a minimum area of 7,200 square feet, plus 300 square feet
for each sleeping room in excess of four, provided that the prescribed
yard, lot width and height requirements for a one-family dwelling
are met, only overnight accommodations for not more than five transient
guests are offered and the location of the use with respect to other
dwelling uses is such as to be not disturbing to such uses.
Upon the filing of any proceeding and during
its pendency before the Zoning Hearing Board, all land development
pursuant to any challenged ordinance, order or approval of the Zoning
and Code Management Officer or of any agency or body and all official
action thereunder shall be stayed unless the Zoning and Code Management
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 and Code Management 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 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.
Any person or persons, or any board, taxpayer,
department or bureau of the City aggrieved by any decision of the
Zoning Hearing Board may seek review by the Court of Common Pleas.
Such appeal shall be initiated by serving and filing a petition for
the writ within 30 days after the Board's decision has become final.
If an application for a variance, appeal from
the Zoning and Code Management Officer or special exception is denied
by the Zoning Hearing Board, another application for the same variance,
appeal or special exception on the same property shall not be filed
within a period of one year from the date of denial, except upon the
initiation of the Zoning Hearing Board after a showing of a change
of circumstances which would warrant a rehearing.
