The Council shall appoint a Zoning Hearing Board
consisting of three members as prescribed by the Pennsylvania Municipalities
Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
A.
Officers. The Board shall elect a Chairman from its
membership, shall appoint a Secretary and shall prescribe rules in
accordance with the provisions of the Municipalities Planning Code
and this chapter for the conduct of its affairs. The Chairman, or
in his absence, the Acting Chairman, may administer oaths and compel
the attendance of witnesses.
B.
Meetings. Meetings shall be open to the public and
shall be at the call of the Chairman and at such other times as the
Board shall specify in its rules of procedure. For the conduct of
any hearing and the taking of any action, a quorum shall be no less
than a majority of all members of the Board.
C.
Records and decisions. The Board shall keep minutes
of its proceedings, showing the vote of each member upon each question,
or, if absent or failing to vote, indicating such fact and shall keep
records of its examinations and other official actions, all of which
shall be immediately filed in the office of the Board and shall be
a public record.
A.
Jurisdiction:
(1)
The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudications in the following
matters:
(a)
Substantive challenges to the validity of any
land use ordinance, except those brought before Borough Council pursuant
to Sections 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities
Planning Code, Act 247, as amended.[1]
[1]
Editor's Note: See 53 P.S. §§ 10609.1
and 10916.1(a)(2), respectively.
(b)
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 said ordinance. Where
the ordinance appealed from is the initial Zoning Ordinance of the
Borough and a Zoning Hearing Board has not been previously established,
the appeal raising procedural questions shall be taken directly to
court.
(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 a 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.
(g)
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.
(i)
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 Article V or VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended,[5] applications.[6]
(2)
Borough Council shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
(e)
All petitions for amendments to land use ordinances,
pursuant to the procedures set forth in Section 609 of the Pennsylvania
Municipalities Planning Code, Act 247, as amended.[11] Any action on such petitions shall be deemed legislative
acts, provided that nothing contained in this clause shall be deemed
to enlarge or diminish existing law with reference to appeals to court.
[11]
Editor's Note: See 53 P.S. § 10909.
(f)
Appeals from the determination of the Zoning Officer or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for land development under Articles V and VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer or the Borough Engineer shall be to the Zoning Hearing Board.
B.
Interpretation. Upon appeal from a decision by the
Zoning Officer, the Zoning Hearing Board shall decide any questions:
(1)
Involving the interpretation of any provisions
of this chapter, including determination of the exact location of
any district boundary if there is uncertainty with respect thereto.
(2)
Where it is alleged there is error in any order,
requirements, decision or determination, including any order requiring
an alleged violation of this chapter to be mitigated through a cease
and desist or stop work order.
C.
Variances:
(1)
Applicability. Upon appeal from a decision by
the Zoning Officer, the Zoning Hearing Board shall have the power
to vary or adapt the strict application of any of the requirements
of this chapter where, by reason of exceptional narrowness, shallowness
or shape of a specific piece of property at the time of the enactment
of this chapter or by reason of exceptional topographic conditions
or other extraordinary and exceptional situation or condition on such
piece of property, the strict application of any regulation enacted
under this chapter would result in peculiar and exceptional and undue
hardship upon the owner of such property, but in no other case.
(2)
Conditions:
(3)
Requirements and standards. No variance in the
strict application of the provisions of this chapter shall be granted
by the Board unless the Board finds that the requirements and standards
of this subsection are satisfied.
(a)
The applicant must prove that the variance will
not be contrary to the public interest and that practical difficulty
and unnecessary hardship will result if it is not granted. In particular,
the applicant shall establish and substantiate that the appeal for
the variance is in conformance with the requirements and standards
listed herein:
[1]
That the granting of the variance shall be in
harmony with the general purpose and intent of this chapter and shall
not be injurious to the neighborhood or otherwise detrimental to the
public welfare.
[2]
There must be proof of unnecessary hardship.
It is not sufficient proof of hardship to show that greater profit
would result if the variance were granted. Furthermore, hardship complained
of cannot be claimed by one who purchases with or without knowledge
of restrictions, it must result from the application of this chapter,
it must be suffered directly by the property in question, and evidence
of relief granted under similar circumstances shall not be considered.
(b)
The Board may prescribe any safeguard that it
deems to be necessary to secure substantially the objectives of the
regulation or provision to which the variance applies.
(c)
The applicant shall demonstrate compliance with the specific provisions of the Pennsylvania Municipalities Planning Code, Article IX, § 910.2,[12] as follows:
[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
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 the Zoning Ordinance 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 the provisions of the Zoning Ordinance 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, nor substantially or permanently impair the appropriate
use or development of adjacent property, nor be detrimental to the
public welfare.
[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.
[12]
Editor's Note: See 53 P.S. § 10910.2.
D.
Special exceptions:
(1)
Applicability. The Zoning Hearing Board shall
have the authority to approve special exceptions when this chapter
specifically requires the obtaining of such approval and for no other
use or purpose.
(2)
Conditions and standards. In granting a special
exception, the Zoning Hearing Board shall make findings of fact consistent
with the provisions of this chapter. The Board shall not approve a
special exception except in conformance with the conditions and standards
outlined in this chapter.
(3)
General requirements and standards applicable
to all special exceptions: The Board shall grant a special exception
only if it finds adequate evidence that any proposed development submitted
will meet all of the following general requirements as well as any
specific requirements and standards listed in this chapter for the
proposed use.
(a)
The Board shall, among other things, require
that any proposed use and location be:
[2]
In the best interests of the Borough, the convenience
of the community and the public welfare and be a substantial improvement
to the property in the immediate vicinity.
[3]
Suitable for the property in question and designed,
constructed, operated and maintained so as to be in harmony with and
appropriate in appearance to the existing or intended character of
the general neighborhood.
[4]
In conformance with all applicable requirements
of this chapter and all applicable Borough ordinances.
[5]
Suitable in terms of impacts on highway traffic
and safety with adequate access arrangement to protect streets from
undue congestion and hazard.
[6]
In accordance with sound standards or subdivision
practice where applicable.
(b)
The Zoning Hearing Board may impose whatever
conditions regarding layout circulation and performance it deems necessary
to ensure that any proposed development will secure substantially
the objectives of this chapter.
(4)
Review by the Planning Commission on application
for special exception. The Zoning Hearing Board shall request an advisory
opinion from the Planning Commission on any application for a special
exception. The Planning Commission is to submit a report of such advisory
opinion prior to the date of the public hearing held by the Board
on an application.
E.
Challenge to the validity of ordinance or map. The
Board shall hear challenges to the validity of this chapter or the
Zoning Map,[13] except as otherwise indicated in the Pennsylvania Municipalities
Planning Code.[14] In all such challenges, the Board shall take evidence and make a record thereon as provided in § 130-106, Subsection C. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the court.
F.
Unified appeals. Where the Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Borough ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the nonzoning issues but shall take evidence and make a record thereon as provided in § 130-106, Subsection C. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact, which shall become a part of the record on appeal to the court.
G.
All variances and special exceptions approved by the
Zoning Hearing Board will automatically lapse if not used for six
consecutive months.
[Added 9-21-1999 by Ord. No. 476]
In exercising the above-mentioned powers, the
Zoning Hearing Board may, in conformity with law and the provisions
of this chapter, reverse or affirm, wholly or partly, or may modify
the order, requirement, decision or determination appealed from and
may make such order, requirement, decision or determination as, in
its opinion, ought to be made. Notice of such decision shall forthwith
be given to all parties in interest.
A.
Any appeal from the ruling of the Zoning Officer concerning
the enforcement and interpretation of the provisions of this chapter
shall be filed with the Zoning Office within 30 days after the date
of the Zoning Officer's adverse decision.
B.
All appeals and applications made to the Board shall
be in writing on standard forms prescribed by the Zoning Hearing Board
and accompanied by fees prescribed by resolution of the Council.
C.
All appeals and applications shall refer to the specific
provisions of this chapter involved.
Appeals to the Zoning Hearing Board may be taken
by any person or Borough official aggrieved or affected by any provisions
of this chapter or by any decision, including any order to stop, cease
and desist, issued by the Zoning Officer in enforcing the provisions
of this chapter.
Upon the filing with the Zoning Hearing Board of an application for a special exception, variance or interpretation of this chapter, the Board shall fix a reasonable time and place for a public hearing thereon and give notice as defined in § 130-112, Subsection A, and give written notice to parties in interest, who shall be at least those persons whose properties adjoin or are across public roads from the property in question.
All hearings shall be conducted in accordance
with the following procedures:
A.
Public notice shall be given and written notice shall
be given to the applicant, the Zoning Officer, Borough Council, such
other persons as Borough Council shall designate by ordinance and
to any person who has made timely request for the same. Written notices
shall be given at such time and in such manner as shall be prescribed
by ordinance or, in the absence of ordinance provision, by rules of
the Board. 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 10-20-2015 by Ord. No. 541]
(1)
Borough Council may prescribe reasonable fees
with respect to hearings before the Zoning Hearing Board. 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.
(2)
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. And applicant may, upon request, be
granted additional hearings to complete his 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
municipality, be granted additional hearings to complete their opposition
to the application provided the applicant is granted an equal number
of additional hearings for rebuttal.
B.
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, 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 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.
C.
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.
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 argument 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.
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, 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.
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 the Pennsylvania Municipalities
Planning Code, Act 247, as amended, 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
Section 916.1 of the Pennsylvania Municipalities Planning Code, Act
247, as amended,[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 Subsection A(2), 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 in the same manner as provided in Subsection A of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
[1]
Editor's Note: See 53 P.S. § 10916.1.
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/her 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.
Any persons aggrieved by any decision of the
Zoning Hearing Board or any taxpayer of the Borough may appeal such
decision. Such appeals shall be made in accordance with the Pennsylvania
Municipalities Planning Code[1] and any other applicable law.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
The applicant for any hearing before the Zoning
Hearing Board shall pay to the Zoning Officer a fee in accordance
with a fee schedule adopted by resolution of the Council.[1]
[1]
Editor's Note: A copy of the Fee Schedule
is on file in the office of the Borough Secretary and may be inspected
during regular business hours.
