Pursuant to Article IX of the Pennsylvania Municipalities Planning Code, Act 247, as amended,[1] the Bell Acres Borough Zoning Hearing Board shall possess the powers and duties with respect to the Borough as set forth more fully hereafter.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
A. 
The membership of the Board shall consist of three individuals.
[Amended 11-11-2002 by Ord. No. 226]
B. 
All members shall be residents of the municipality.
C. 
The terms of office shall be three years and shall be so fixed that the term of office of one member shall expire each year.
D. 
When any vacancies occur, the Board shall promptly notify the governing body which appointed the member whose office has become vacant, and such governing body shall appoint a member for the unexpired portion of the term.
E. 
Members of the Board shall hold no other office in the municipality.
[Amended 11-11-2002 by Ord. No. 226]
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 which appointed the member, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
The 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 § 165-208.
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 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. 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 Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality and laws of the commonwealth.
The Board shall keep full public records of its business, which records shall be the property of the municipality, and shall submit a report of its activities to the governing body once a year.
Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. 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. Alternate members of the Board may receive compensation, as may be fixed by the Borough Council, for the performance of their duties when designated as alternate members pursuant to § 165-195, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Borough Council.
A. 
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
(1) 
Substantive challenges to the validity of any land use ordinance, except landowner curative amendments brought before Borough Council, brought in accordance with the procedures specified in 53 P.S. § 10916.1.
(2) 
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 the ordinance.
(3) 
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.
(4) 
Appeals from a determination by the 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.
(5) 
Applications for variances from the terms of this chapter and Article VIII, Floodplain District,[1] pursuant to § 165-200.
[1]
Editor's Note: Former Art. VIII, Floodplain District, was repealed 9-8-2014 by Ord. No. 280. For current provisions on floodplain management, see Ch. 61, Art. II, Floodplain Management.
(6) 
Appeals from the Zoning Officer's determination under 53 P.S. § 10916.2, as amended.
(7) 
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 subdivision and land development or planned residential development applications.
(8) 
Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of this chapter.
B. 
The governing body or, except as to Subsection A(3), (4) and (5), shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1) 
All applications for approvals of planned residential developments under Article VII pursuant to the provisions of 53 P.S § 10702.
(2) 
All applications pursuant to 53 P.S. § 10508 for approval of subdivisions or land developments.
(3) 
Applications for conditional use under the express provisions of Article X of this chapter pursuant to 53 P.S. § 10603(c)(2).
(4) 
Applications for curative amendment to a zoning ordinance pursuant to § 165-218G and 165-211A(2).
(5) 
All petitions for amendments to land use ordinances, pursuant to the procedures set forth in Article XVI. Any action on such petitions shall be deemed legislative acts, provided that nothing contained in this subsection shall be deemed to enlarge or diminish existing law with reference to appeals to court.
(6) 
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 Chapter 149, Subdivision and Land Development, and Article VII of this chapter. Where such determination relates only to development not involving a Chapter 149, Subdivision and Land Development, or Chapter 165, Article VII, application, the appeal from such determination of the Zoning Officer or the Borough Engineer shall be to the Zoning Hearing Board pursuant to Subsection A(7).
A. 
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.
B. 
Condition. In general, the power to authorize a variance from the terms of this chapter shall be sparingly exercised and only under peculiar and exceptional circumstances.
C. 
Requirements and standards.
(1) 
The Board may grant a variance, provided that the following findings are made where relevant in a given case:
(a) 
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 this chapter in the neighborhood or district 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.
(d) 
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.
(e) 
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.
(2) 
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of Pennsylvania Municipalities Planning Code, Act 247, as amended,[1] and this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(3) 
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.
A. 
A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:
(1) 
To the Zoning Hearing Board under § 165-199; or
(2) 
To the governing body under § 165-199B(4), together with a request for a curative amendment under § 165-218G.
B. 
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenges to the zoning hearing board for a decision thereon under § 165-209A(1).
C. 
The submission referred to in Subsections A and B shall be governed by the following:
(1) 
In challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Board that it hold a hearing on its challenge. The request shall contain the reasons for the challenge. Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment under § 165-218G, his application to the Borough Council shall contain, in addition to the requirements of the written request hereof, the plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans or other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit, so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in light thereof. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his challenge.
(2) 
If the submission is made by the landowner to the governing body under Subsection A(2), the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
(3) 
If the submission is made to the Borough Council, the Borough Solicitor shall represent and advise it at the hearing or hearings referred to in § 165-199B(4).
(4) 
The Borough Council may retain an independent attorney to present the defense of the challenged ordinance or map on its behalf and to present their witnesses on its behalf.
(5) 
Based upon the testimony presented at the hearing or hearings, the Borough Council or the Zoning Hearing Board, as the case may be, shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If a challenge heard by the Borough Council is found to have merit, the Council shall proceed as provided in § 165-218G. If a challenge heard by the Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision, the Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
(a) 
The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities.
(b) 
If the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map.
(c) 
The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features.
(d) 
The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts.
(e) 
The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.
(6) 
The Borough Council or the Zoning Hearing Board, as the case may be, shall render its decision within 45 days after the conclusion of the last hearing.
(7) 
If the Borough Council or the Zoning Hearing Board, as the case may be, fails to act on the landowner's request within the time limits referred to in Subsection C(6), a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.
D. 
The Zoning Hearing Board or Borough Council, as the case may be, shall commence its hearings within 60 days after the request is filed unless the landowner requests or consents to an extension of time.
E. 
Public notice of the hearing shall include notice that the validity of the ordinance or map is in question and shall give the place where and the times when a copy of the request, including any plans, explanatory material or proposed amendments may be examined by the public.
F. 
The challenge shall be deemed denied when:
(1) 
The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in Subsection D.
(2) 
The Borough Council notifies the landowner that it will not adopt the curative amendment.
(3) 
The Borough Council adopts another curative amendment which is unacceptable to the landowner.
(4) 
The Zoning Hearing Board or Borough Council, as the case may be, fails to act on the request 45 days after the close of the last hearing on the request, unless the time is extended by mutual consent by the landowner and municipality.
G. 
Where, after the effective date of this act, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to § 165-199B(4) or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 165-199A(1) or the court acts finally on appeal from denial of a curative amendment proposal or a validity challenge and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval pursuant to Chapter 149, Subdivision and Land Development, or this chapter. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of 53 P.S. § 10508(4) shall apply. Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
Where the Board has jurisdiction over a zoning matter pursuant to §§ 165-190, 165-200 and 165-202 the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal 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 §§ 165-193 through 165-198 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.
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 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 Officer 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 governing body.
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 municipal 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.
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 Zoning Officer, the Borough Secretary, the Secretary of the Planning Commission and the President of the Borough Council.
(1) 
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. Notices shall also comply with the definition of public notice as defined in § 165-5C. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land.
(2) 
The governing body does hereby require any applicant who requests a hearing by the Zoning Hearing Board to pay with the application a fee as set forth by resolution of the Borough Council to be used by the Zoning Hearing Board for the attendance of a Secretary of the Board at such hearing and for the payment of any advertising and/or posting of notices. If, in the opinion of the Board members, additional cost may occur, such as attendance of the Solicitor, etc., an additional sum as set forth by resolution of the Borough Council shall be deposited with the Bell Acres Borough Secretary at least 15 days prior to the date of hearing. All money remaining after deducting the actual expenses of hearing shall be returned to the applicant by the Borough Secretary upon instructions by the Zoning Hearing Board Chairman.
B. 
The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time.
C. 
The hearings shall 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.
D. 
The parties to the hearing shall be the municipality, 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 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.
I. 
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 the 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.
J. 
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 MPC or this chapter or any 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. 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 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.
K. 
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. The Zoning Hearing Board shall serve upon the President of the Borough Council, upon the Borough Secretary and upon the Secretary of the Borough Planning Commission, by registered or certified mail, a copy of each decision or order rendered by the Board on any appeal heard by the Board within seven days following the date of such decision, opinion or order.
A. 
Parties to proceedings authorized in this article and Article X-A of Municipalities Planning Code[1] may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this article and Article X-A of the MPC once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.
B. 
Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. Any municipality offering the mediation option shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
(1) 
Funding mediation.
(2) 
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(3) 
Completing mediation, including time limits for such completion.
(4) 
Suspending time limits otherwise authorized in the MPC and this chapter, provided that there is written consent by the mediating parties, and by an applicant or municipal decisionmaking body if either is not a party to the mediation.
(5) 
Identifying all parties and affording them the opportunity to participate.
(6) 
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
(7) 
Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in the other sections of this chapter.
C. 
No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
A. 
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to § 165-107 or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 165-201 shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
B. 
All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.
A. 
Upon filing of any proceeding referred to in § 165-205 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning 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 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.
B. 
After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court.
C. 
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. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.
D. 
If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by the petitioner.
Any persons aggrieved by any decision of the Zoning Hearing Board or any taxpayer or the governing body may, within 30 days after such decision of the Board, appeal to the Court of Common Pleas of Allegheny County, setting forth specific grounds upon which he or she relies. Such appeals shall be made in accordance with Article X-A of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.