A Zoning Hearing Board shall be appointed by
the Borough Council in the manner prescribed in the Municipalities
Planning Code, as amended, and as provided below.
[Amended 4-8-1997 by Ord. No. 1186, approved 4-8-1997]
A. There shall be a Zoning Hearing Board consisting of
five residents of the Borough who shall be appointed by the Borough
Council. The members of the existing Zoning Hearing Board shall continue
in office until their terms of office would expire under the prior
law. Thereafter the term of office of each member of the five-member
Board shall be five years and shall be so fixed that the term of office
of one member of the five-member Board shall expire each year. The
Borough Council may reappoint members at the expiration of their terms.
Members of the Board shall hold no other office in the Borough, except
that one member of the Board may also be a member of the Planning
Commission. Any member of the Board 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 15 days' advance written notice of the intent to take
such a vote, and a hearing shall be held in connection with such vote
if the member shall so request, in writing.
B. The Borough Council may appoint by resolution one
resident of the Borough of Prospect Park to serve as an alternate
member of the Board, whose term shall be five years. If by reason
of absence or disqualification of any member of the Board, the Chairman
shall designate the alternate to act as voting alternate to serve
for the duration of the proceedings for which the alternate was appointed
to serve as voting alternate. When seated as voting alternate, the
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. An alternate shall hold no other office in
the Borough of Prospect Park, including but not limited to a member
of the Planning Commission or Zoning Officer. The 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 of the Board.
The Board shall elect from its own membership
its officers, who shall serve annual terms and may succeed themselves.
For the conduct of any hearing and the taking of any action, a quorum
shall be required, consisting of not less than a majority of all the
members of the Board; but where any member is absent or disqualified
to act in a particular matter, the alternate shall serve as voting
alternate of the Board. The Board may make, alter and rescind rules
and forms for its procedure consistent with this chapter and the laws
of the Commonwealth of Pennsylvania. The Board shall keep full public
records of its business and shall submit a report of its activities
to the Borough Council once each year. The Board may employ or contract
for secretaries, clerks, attorneys, consultants and other technical
and clerical services. However, the Solicitor for the Zoning Hearing
Board shall be a different individual than the Solicitor for the Borough
Council. Members of the Board may receive compensation for the performance
of their duties as may be fixed by the Borough Council; but in no
case shall it exceed the rate of compensation authorized to be paid
to the members of the Borough Council.
The Board shall conduct hearings and make decisions
in the following manner:
A. All hearings shall be published and shall be held
within 60 days of the filing of the application and payment of the
application fee unless waived, in writing, by the applicant.
B. Notice of hearing.
(1) Notice of hearing shall be given to the public and
to the persons hereafter designated in the following manner:
(a)
To the public, by publishing notice of the time,
place and purpose of the hearing once a week for two successive weeks;
the first public publication shall be not more than 30 days prior
to the hearing date and the second publication not less than seven
days prior to the hearing date in a newspaper of general circulation
in the Borough.
(b)
To the applicant, the Zoning Officer, the Borough
Secretary, each member of the Planning Commission, each member of
the Borough Council, to all parties in interest or their counsel,
if such counsel shall have filed an appearance with the Board and
to any person who has made timely request by providing a stamped self-addressed
envelope to the Secretary, by mailing notice of the time, place and
purpose of the hearing at least 10 days in advance of the date fixed
for the hearing.
(c)
By conspicuously posting written notice of the
time, place and purpose of the hearing on the effective tract of land
at least one week prior to the hearing.
(2) Notice of hearings, both published and written, shall
state, in addition to the time, place and purpose of the hearing,
the location of the lot, tract or structure involved and the nature
and extent of the relief sought and the general nature of the question
involved. Notice of said hearing shall be conspicuously posted on
the affected tract of land.
(3) In the event that more than one hearing is required to consider any application or hearing is continued while in progress to another date, public notice of the continued hearing must be provided as set forth in Subsections
B(1)(a) and
(b).
C. Hearings shall be conducted by the Board and the Chairman
or, in his absence, the Acting Chairman, who shall administer oaths
and may issue subpoenas to compel the attendance of witnesses and
the production of relevant documents and papers, including witnesses
and documents requested by the parties.
D. The parties to the hearing shall be the Borough, any
person affected by the application who has made a timely appearance
or record before the Board and any other person, including civic or
community organizations, permitted to appear by the Board.
E. The parties have the right to be represented by counsel
and shall be afforded the opportunity to respond and present evidence
and cross-examine adverse witnesses; and the Board shall keep a stenographic
record of the proceedings and a copy of graphic or written material
received in evidence shall be made available to any party at cost.
F. The Board 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 the commencement of hearings with any party
or his respective counsel unless all parties are given an opportunity
to be present.
G. The Board 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 unless waived
by the applicant according to law. Each decision shall be accompanied
by findings of fact and conclusions based thereon, together with the
reasons therefor. Conclusions based on any provision of the Municipalities
Planning Code or any Borough 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. Where the Board
fails to render a decision within the period required or hold a hearing
within 60 days of the filing of the application, the decision shall
be deemed to have rendered in favor of the applicant, unless the applicant
has agreed in writing or on the record to an extension of time.
H. When a decision has been rendered in favor of the
applicant because of the failure of the Board to meet or render a
decision, the Board shall give public notice of said decision within
10 days from the last day it could have met to render a decision.
If the Board shall fail to provide notice, the applicant may do so.
Any party opposing the application may appeal the deemed decision
to the Court of Common Pleas of Delaware County.
I. 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 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 where the full decisions or findings
may be examined.
J. Notice of all hearings by the Zoning Hearing Board
shall be given to the Borough Planning Commission and the Borough
Council.
The Board shall have and perform the following
functions:
A. Appeals from the Zoning Officer. The Board shall hear
and decide appeals where it is alleged by the applicant that the Zoning
Officer has failed to follow prescribed procedures or has misinterpreted
or misapplied any provision of any ordinance or map or any rule or
regulation governing the action of the Zoning Officer.
B. Variances. The Board shall hear requests for variances
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The Board may grant a variance, provided
that the following findings are made where relevant in a given case:
(1) That there are unique physical circumstances or conditions,
including irregularity, narrowness 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) 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.
(3) That such unnecessary hardship has not been created
by the applicant.
(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 of 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 or ordinance in issue; and,
in granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this chapter.
C. Special exceptions. The Board shall hear and decide special exceptions in accordance with the standards set forth below; and, in granting special exceptions, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter. Whenever the Board hears a special exception for uses specified in this chapter, the following general standards shall be considered in addition to those set forth in Article
XIV, Administration, § 71-85:
(1) If the use(s) is in accordance with the Borough Comprehensive
Plan and consistent with the spirit, purposes and intent of this chapter.
(2) If the use(s) is in the best interest of the Borough,
the convenience of the community, the public welfare and is an improvement
to the property in the immediate vicinity.
(3) If the use(s) is suitable for the property in question
and designed, constructed, operated and maintained so as to be in
harmony with the existing or intended character of the general vicinity.
(4) If the use(s) is suitable in terms of the logical,
efficient and economical extension of public services and facilities,
such as public water, public sewer, police and fire protection, public
schools and the like.
(5) If the use(s) is suitable in terms of effects on street
traffic and safety with adequate pedestrian and vehicular access arrangements
to protect streets from undue congestion and hazard. The Zoning Hearing
Board may impose whatever conditions regarding layout, circulation
and performance it deems necessary to ensure that any proposed development
will substantially secure the objectives of this chapter.
D. Challenge to the validity of any ordinance or map. The Board shall hear challenges to the validity of a zoning ordinance or map, except those related to questions of an alleged defect in the process of enactment or adoption or those related to a request for a curative amendment. In those challenges which apply herein, the Board shall take evidence and make a record thereon, as provided in §
70-89 herein. At the conclusion of the hearing, the Board shall decide all contested questions and make findings on all relevant issues of fact which shall become part of the record on appeal to the Court.
E. Unified appeals. The Board, having jurisdiction over zoning matters pursuant to Subsections
A,
B and
D, 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 §
70-89 herein. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
Any variance or special exception granted in
accordance with this chapter is void if action in compliance therewith
is not commenced within one year from the date of the opinion and
decree granting the same.
Parties to proceedings before the Zoning Hearing
Board may utilize a mediation option as an aid in completing such
proceedings. Such proceedings shall be in accordance with Section
908.1 of the Municipalities Planning Code, as amended.