A zoning permit is required in many cases before a landowner may use their property, put up signs, have a structure erected, constructed, altered, razed, converted, or moved onto his or her lot; or continue a nonconforming use, or have a nonconforming sign or structure reconstructed, structurally altered, or moved on his or her lot (unless this chapter specifically states otherwise). Work that would require a zoning permit includes, but is not limited to, pools (in-ground and above), porches, decks, additions, fences, sheds, driveways, garages and carports, curbs, sidewalks, signs and trailers.

(2)

Land improvements or other development activities shall not be commenced before the involved landowner has secured the requisite zoning permit for these activities.

(3)

Remodeling or improvement of existing buildings which does not alter the basic structure, does not create additional lot area coverage or does not change the use of the parcel or building is exempt from this specific requirement, provided the estimated cost of such activities does not exceed 100% of the fair market value. Examples of this would be replacing the windows, replacing the roof, replacing the siding and/or replacing steps or sidewalks.

(a)

Sign permits. Article VII, Signs, explains when zoning permits are required for signs.

(b)

Temporary permits.

[1]

Temporary permits are required where it is intended that a mobile, temporary, or seasonal use be located anywhere within the Borough for a very short period of time. Temporary permits are limited to a one-week period renewable for a maximum of four weeks during any one calendar year.

[2]

Temporary permits are required for and in accordance with the following:

[a]

Selling of Christmas trees in commercial districts or at churches, schools, clubs and lodges: a maximum of four weeks;

[b]

Carnival, circus or street fairs: a maximum of one week;

[c]

Mobile amusements and lighting equipment for promotion, advertisement and grand openings: a maximum of two weeks; or

[d]

Temporary parking of camping or recreational equipment in residential districts: a maximum of two weeks.

[3]

Other seasonal/temporary uses may be permitted but only after being approved and authorized by Derry Borough Council.

[4]

No temporary permit shall be issued for any temporary use where said use would violate any of the provisions of this chapter except upon approval of the Derry Borough Council.

[5]

Written request to the Zoning Officer for a temporary permit shall be processed within one week upon receipt of the request and payment of a fee as predetermined from a fee schedule adopted by the Borough Council, provided the use does not violate any provisions of this chapter.

(c)

Occupancy permits.

[1]

Upon completion of the authorized new construction, alteration, remodeling or change of use under the provisions of a zoning permit, the building or land shall not be occupied until an occupancy permit has been issued by the Zoning Officer. Written request to the Zoning Officer shall be processed within one week of receipt of the request and payment of a fee as predetermined from a fee schedule adopted by Borough Council for a proposed use, provided the use is in conformity with the provisions of this chapter and other effective and applicable ordinances. Refusal by the Zoning Officer to issue an occupancy permit shall include a written statement to the applicant containing reasons for such denial.

[2]

Occupancy permits are required for the following:

[a]

Occupancy of a new building.

[b]

Occupancy and use of a building hereafter moved or altered so as to require a zoning permit.

[c]

Change in the use of an existing building other than a use of the same type.

[d]

Occupancy and use of unimproved or vacant land.

[e]

Change in the use of land except to another use of the same type.

[f]

Any change in use from a nonconforming use to a conforming use.

[3]

Occupancy permits shall state that the building or the proposed use of a building or land complies with all provisions of law and of this chapter and all other ordinances of the municipality. They are deemed to authorize and are required for both initial and continued occupancy and use of the building and land so long as such building and use are in full conformity with the provisions of this chapter.

Procedure for obtaining a zoning permit. Anyone who wishes to obtain a zoning permit shall follow the procedure below:

(1)

Who may apply. Any landowner, person with ownership interest or tenant who has the permission of his or her landlord/owner may apply for a zoning permit.

(2)

Application for permits. Applications for a zoning permit shall be submitted in writing on a form prescribed by the Zoning Officer along with payment of the required fees set by the Borough Council. Applications shall be submitted with plans prepared in accordance with the Zoning Officer's requirements, and shall contain all of the information, in a complete state, that is necessary to determine compliance with this and all other pertinent ordinances and laws. An application shall become public record when it is officially filed.

(3)

Preliminary opinions. In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposed to build is free from challenge, and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will occur by using the following procedure:

(a)

The landowner may submit plans and other materials describing his proposed use or development to the Zoning Officer for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative, or final approval or for the issuance of a zoning permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.

(b)

If the Zoning Officer's preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality. The costs for such notice shall be borne by the landowner and shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public.

Vested rights. Nothing in this chapter shall require any change in the development or use of a lot or structure for which a zoning permit was lawfully issued prior to the effective date of this chapter's enactment (or the effective date of an amendment to this chapter), provided that development (other than excavations) has begun or contracts have been let pursuant to the permit. However, any zoning permit which was issued after the first public hearing on this chapter (or an amendment to this chapter) but prior to the effective date of this chapter's enactment (or the amendment's enactment) shall be declared void if the involved development does not conform to the provisions of this chapter.

Development changes. If a zoning permit is issued, the involved development shall not deviate from the plans and other information submitted to the Zoning Officer without the written approval of the Zoning Officer; the Borough Council, in the case of a conditional or temporary use; or the Zoning Hearing Board, in the case of a special exception or variance. Requests for all such approvals shall be submitted in writing to the Zoning Officer.

Duration of zoning permits. A zoning permit shall expire one calendar year from the date of issuance if the involved development activities have not been commenced. All development activities must be completed no later than two calendar years from the date of issuance.

Inspections. In order to determine if the information submitted on or with an application is true and is being adhered to, the Zoning Officer (upon presentation of proper credentials) shall have the authority to enter any building, structure, premises, property, or development in the Borough at any reasonable hour after notification (or reasonable attempts to notify) and obtaining permission from a responsible adult. Visual inspections of a property are always legal if made from the right-of-way, sidewalk or other public place. If entry is refused, the Zoning Officer, within his scope of authority, may refer the matter to the Magisterial District Judge for resolution.

Revocation of permits. If the Zoning Officer discovers that the development does not comply with the approved application, or if the permit fee required by this chapter has not been paid, or if the Zoning Officer determines that an applicant has made any false statements or misrepresentations regarding the development, the Zoning Officer shall revoke the zoning permit and proceed with whatever legal action is necessary to correct the violation (see § 425-26, Enforcement; violations and penalties).

Permits issued in error. Any zoning permits issued in error shall be null and void. The applicant may appeal the denial of a zoning permit, and aggrieved persons may appeal the issuance of a zoning permit, as specified in § 425-19, Appeals from determination of Zoning Officer.

§ 425-12 Supplemental zoning permit requirements for sexually oriented business.

In order that the Zoning Officer may have a reasonable basis to consider forwarding an application to the Zoning Hearing Board to deliberate a proposed sexually oriented business or an expansion of an existing sexually oriented business for conformity to the requirements of this chapter, in addition to the requirements aforementioned for a zoning permit in § 425-11, Zoning permits, further information shall be submitted as per § 425-46, G-I General Industrial Zone, Subsection C, Special exceptions, and/or any other regulations in this chapter.

§ 425-13 Supplemental zoning permits requirements for industrial zones.

In order that the Zoning Officer may have a reasonable basis upon which to approve a proposed industrial operation or an expansion of an existing industrial operation for conformity to the requirements of this chapter, the data required in Article VI, Supplemental Regulations, and § 425-46, G-I General Industrial Zone, shall be submitted with an application for a permit, in addition to the requirements aforementioned for a zoning permit in § 425-11, Zoning permits, and/or any other regulations in this chapter.

§ 425-14 Zoning Officer.

Purposes, organization, and applicability of this section.

(1)

The Zoning Officer is an appointed officer of the Borough of Derry. As such, he or she is a nonelected member of the Borough's executive branch. The Zoning Officer is this chapter's chief administrative official, and thus, is key to the success of this chapter in meeting its goals.

(2)

The provisions of this section only apply to the Zoning Officer and the parties with which he or she comes into contact. Like the other sections of Article II, these provisions do not apply to the property owners regulated by this chapter unless a section of Article I or Article II specifies.

Appointment of the Zoning Officer. A Zoning Officer shall be appointed by Borough Council to administer this chapter. This officer shall:

(1)

Not hold any elected offices within the Borough of Derry;

(2)

Meet qualifications established by the Borough;

(3)

Be able to demonstrate to the satisfaction of the Borough Council a working knowledge of municipal zoning; and

(4)

Be familiar with this chapter, the Comprehensive Plan and the Pennsylvania Municipalities Planning Code.

Powers of the Zoning Officer. The Zoning Officer shall enforce this chapter and the Zoning Map in accordance with its literal terms. He or she shall not have the power to permit any construction, use, or change of use, which does not conform to the provisions of this chapter and the Zoning Map.

Inspections. In fulfilling the duties listed under Subsection E below, the Zoning Officer is hereby authorized (upon presentation of proper credentials) to enter any building, structure, premises, property, or development in the Borough at any reasonable hour after notification (or reasonable attempts to notify) and obtaining permission from a responsible adult. Visual inspections of a property are always legal if made from the right-of-way, sidewalk or other public place. If entry is refused, the Zoning Officer, within his scope of authority, may refer the matter to the Magisterial District Judge for resolution.

Duties of the Zoning Officer. The Zoning Officer's duties are as follows:

(1)

Zoning permits. The Zoning Officer shall receive, process, file copies of, and make decisions on all applications for zoning permits as required by § 425-11, Zoning permits. Where such a permit is denied, the Zoning Officer shall inform the applicant, in writing, of the basis for this denial, including a reference to the applicable chapter section or sections.

(2)

Occupancy permits. The Zoning Officer shall receive, process, file copies of, and make decisions on all applications for occupancy permits as required by § 425-11A(3)(c), Occupancy permits. Where such a permit is denied, the Zoning Officer shall inform the applicant, in writing, of the basis for this denial, including a reference to the applicable chapter section or sections.

(3)

Preliminary opinions. The Zoning Officer shall receive, process, file copies of, and make decisions on all requests for preliminary opinions as required by § 425-11B(3), Preliminary opinions. The Zoning Officer shall inform the applicant, in writing, of his or her decision and the basis therefor.

(4)

Certificates of nonconformity. The Zoning Officer shall grant a certificate of nonconformity to the owner of a nonconforming structure, building, sign, lot, or land use when the owner requests such a certificate; and if his or her property is found to be nonconforming (as opposed to conforming or legal) (see Article III, Nonconforming Buildings and Uses). Where such a certificate is denied, the Zoning Officer shall inform the applicant, in writing, of the basis for this denial.

(5)

Nonconforming uses and structures listing. The Zoning Officer may make and maintain a list of all nonconforming structures, buildings, signs, lots, and land uses within the Borough, as required by Article III, Nonconforming Buildings and Uses.

(6)

Official Zoning Map. The Zoning Officer shall maintain the Official Zoning Map of the Borough of Derry as required by Article IV, § 425-37, Establishment of Zoning Map.

(7)

The Zoning Officer shall receive, process, file copies of and forward all applications and documents for hearings and challenges to the appropriate Borough officials, including applications for:

(a)

Variances (see § 425-16, Variances);

(b)

Special exceptions (see § 425-17);

(c)

Appeals from the determination of the Zoning Officer (see § 425-19, Appeals from determination of Zoning Officer);

(d)

Procedural challenges to the procedural validity of this chapter (see § 425-23, Procedural challenges);

(e)

Substantive challenges to the substantive validity of a provision of this chapter (see § 425-22, Substantive challenges to validity of chapter or map);

(f)

Expanding a nonconforming land use (see Article III, Nonconforming Buildings and Uses); and

(g)

Changing one nonconforming use for another (see Article III, Nonconforming Buildings and Uses).

(8)

In all Zoning Hearing Board hearings, the Zoning Officer shall provide all involved parties with copies of the items sent to the Board, advertise the hearing as required by the public notice provisions of § 425-15, Zoning Hearing Board, and represent the Borough of Derry as a party to the hearing. The Zoning Officer should not prepare the Board's decisions, as this would be a conflict of interest.

(9)

In all Borough Council hearings, the Zoning Officer shall provide all involved parties with copies of the items sent to the Borough Council, advertise the hearing as required by the public notice provisions of § 425-24, Borough Council, and represent the Borough of Derry as a party to the hearing. The Zoning Officer should not prepare the Council's decisions, as this would be a conflict of interest.

(10)

The Zoning Officer shall collect all zoning-related fees required by this or any other pertinent ordinance.

(11)

The Zoning Officer shall properly maintain all filings required by this section, including adequate record retention measures.

(12)

The Zoning Officer shall interpret this chapter in accordance with § 425-5, Word usage; interpretation.

(13)

The Zoning Officer shall send enforcement notices to whom he or she deems to be violators of this chapter as specified in § 425-26, Enforcement; violations and penalties. Such notices should be sent via certified mail, return receipt requested, or personally served, to provide proof that the notice was received.

(14)

The Zoning Officer shall determine the adequacy of any buffering required by this chapter and require more buffering when necessary according to the requirements of § 425-55, Buffer yards and screening.

(15)

The Zoning Officer shall perform all other duties prescribed for him or her by this or any other pertinent sections of this chapter.

§ 425-15 Zoning Hearing Board.

Purpose and procedure.

(1)

The Zoning Hearing Board of the Borough of Derry is a quasi-judicial body within the municipal government. It has no legislative power, has no enforcement power, and cannot make or modify zoning law. It is instead a judicial-like body that helps to assure fair and equitable application and administration of this chapter. The purposes of this section are to establish the Board, outline its duties, and prescribe procedures that it is to use in fulfilling its duties.

(2)

The Zoning Hearing Board must use the same procedure in each of its hearings, regardless of which one of its duties from Subsection F that a hearing falls under.

(3)

Throughout this chapter, provisions that concern the Zoning Hearing Board have indicated that it is to hear the involved case via the procedure outlined in § 425-15. This procedure is provided in Subsection H below.

(4)

The provisions of § 425-15 only apply to the Zoning Hearing Board and the parties with which it comes into contact.

Formation of the Zoning Hearing Board.

(1)

The Zoning Hearing Board of the Borough of Derry shall consist of five residents of the Borough, appointed by Borough Council via a resolution. Each member's term of office shall be five years, and shall be fixed so that the term of one member shall expire each year. Members of the Zoning Hearing Board shall hold no other office in the municipality.

(2)

The Borough Council may also appoint, by resolution, from one to three residents of the Borough to serve as alternate members of the Board. The term of office of an alternative member shall also be five years. When an alternate is seated on the Board (see Subsection D below), he or she shall be entitled to participate in all proceedings to the same extent as any other member of the Board. However, alternates shall not be entitled to vote as a member of the Board or be compensated unless they have been designated as a voting alternate member as required by Subsection D below. Alternates shall also hold no other office in the municipality.

Removal of Zoning Hearing Board members. 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 Council. However, the member must receive notice of the intent to take such a vote at least 15 days before the actual vote is taken, and he or she may request that a hearing be held in connection with the vote.

Organization of the Board.

(1)

The Zoning Hearing Board shall elect officers from its own membership. Such officers shall serve annual terms and may succeed themselves.

(2)

For the conduct of any hearing and the taking of any action or votes, a quorum shall be no less than a majority of all of the members of the Board. However, the Board may appoint a Hearing Officer or Officers from its own membership to conduct any hearing on its behalf. As noted under Subsection H below, the applicant/appellant and the Borough may agree to accept the decision or findings of the Hearing Officer as final, and to relieve the Board of voting on any final decisions.

(3)

If, for reasons of absence or disqualification, a quorum is not reached, the Chairman of the Board shall designate enough alternates as voting alternate members to reach the quorum. Any alternate so designated shall continue to serve on the Board in all proceedings involving the matter or case for which he or she was designated until the Board has made a final determination on that matter or case. Such designations shall be made on a rotating basis among all alternates on the order of declining seniority.

(4)

Tie votes shall be interpreted as maintaining the status quo in the matter at hand. For instance, special exceptions are denied when the Board is tied. However, if the appellant were a person aggrieved complaining of the issuance of a permit by the Zoning Officer, the effect of a tie vote would be to sustain the status quo, that is, uphold the issuance of the permit.

(5)

The Board may make, alter, and rescind rules and forms for its procedure, consistent with the requirements of this chapter and the laws of the Commonwealth of Pennsylvania. The Board shall keep full public records of its business,[1] and shall submit a report of its activities to Borough Council if requested.

[1]

Note: Such records shall be the property of the Borough.

Expenditures for services. Within the limits of funds available, 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 fixed by the Borough Council, but this compensation may not exceed the Borough Council's own compensation. Alternates may also be paid compensation, as fixed by the Borough Council, when they are designated as voting alternative members of the Board. However, their compensation shall also not exceed the compensation paid to members of Borough Council.

Duties of the Zoning Hearing Board. The Board's duties shall be as follows. All hearings conducted in pursuit of these duties shall be held according to the rules of Subsection H below.

(1)

Variances. The Board shall hear applications for variances in accordance with § 425-16, Variances. In granting a variance, the Board may attach any reasonable additional conditions and safeguards as it may deem necessary to implement the purposes of this chapter;

(2)

Special exceptions. The Board shall hear applications for special exceptions in accordance with § 425-17, Special exceptions. In granting a special exception, the Board may attach any reasonable additional conditions and safeguards as it may deem necessary to implement the purposes of this chapter;

(3)

Appeals from the determination of the Zoning Officer. The Board shall hear appeals from the zoning-related determinations of any municipal officer, including the Zoning Officer, in accordance with § 425-19, Appeals from determination of Zoning Officer;

(4)

Procedural challenges. The Board shall hear procedural challenges to the validity of this chapter or one of its amendments in accordance with § 425-23, Procedural challenges;

(5)

Substantive challenges to the validity of this chapter. The Board shall hear substantive challenges to the validity of this chapter and its amendments in accordance with § 425-22, Substantive challenges to validity of chapter or Map; and

(a)

Based on the testimony presented at the hearing or hearings, the Board shall determine whether the challenged ordinance, ordinance provision, or Map is defective as alleged by the applicant. If the challenge is found to have merit, then the final decision of the Board shall include recommended amendments to the challenged ordinance, which will cure the involved defects.

(b)

In reaching its decision on a substantive challenge to validity of this chapter or its amendments, the Board shall consider:

[1]

The impact of the proposal on roads, sewer facilities, water supplies, schools, and other public service facilities;

[2]

If the proposal is for a residential use, the impact of the proposal on 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;

[3]

The suitability of the site for the intensity of use proposed, considering the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources, and other natural features;

[4]

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; and

[5]

The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

(c)

The challenge shall be deemed to be denied if the Board votes against the challenge; fails to commence the hearing within 60 days; or fails to act on the application within 45 days of the close of the last involved hearing. In the latter two of these cases, the involved time limit may be extended by mutual consent of the applicant and the municipality. If no such consent is reached, the challenge shall be denied on the day after the last day that the Board could have taken the involved action.

(6)

Appeals from the determinations of the Municipal Engineer. The Board shall hear appeals from the determinations of the Municipal Engineer with reference to any floodplain provisions of any land use ordinance in accordance with § 425-19, Appeals from determination of Zoning Officer.

(7)

Preliminary opinions. The Board shall hear appeals to the Zoning Officer's preliminary opinions [see § 425-11B(3), Preliminary opinions].

(8)

Expand or change nonconforming uses. The Board shall hear applications to expand a nonconforming land use or to change one nonconforming land use to another nonconforming land use in accordance with Article III, Nonconforming Buildings and Uses.

(9)

The Board shall hear all other applications and appeals that are assigned to it by this chapter or the laws of the Commonwealth of Pennsylvania.

Appeals. All decisions rendered by the Zoning Hearing Board may be appealed to the Court of Common Pleas of the judicial district where the involved land is located, so long as these appeals are filed no more than 30 days after the Board renders its written decision.

Hearing procedures. In fulfilling its duties listed under Subsection E above, the Board shall follow the rules and procedures for all hearings specified for the Board as follows:

(1)

Time limitations.

(a)

Each hearing that is to be held shall begin within 60 days of the date that the request for that hearing was officially filed, unless the applicant has agreed in writing to an extension of time.

(b)

The Zoning Hearing 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 of the end of the hearing.

(c)

If the hearing is conducted by a Hearing Officer (see Subsection D above), and there has been no stipulation that his or her decisions or findings are final, the Zoning Hearing Board shall make the Hearing Officer's report and recommendations available to all of the involved parties within 45 days of the end of the hearing. The parties are then entitled to make written responses to this report. The Zoning Hearing Board shall make a final decision after reading these responses, but no later than 30 days after the Hearing Officer's report is issued.

(d)

Where the Zoning Hearing Board fails to render this decision within the required period, or where the Board fails to hold the hearing within the required period, the decision shall be deemed to have been rendered in favor of the applicant or appellant (as the case may be), unless either the applicant/appellant has agreed in writing or on the record to an extension of time; or the hearing concerns a challenge to the substantive validity of the ordinance[2] (see § 425-22, Substantive challenges to validity of chapter or Map). When a deemed decision is rendered, the Board shall give notice of this, within 10 days of the last day that it could have met to render a decision, to the parties and at the locations listed under Subsection H(2), Required public notice, below. If the Board fails to provide such notice, the applicant/appellant may do so. Protesting or aggrieved parties cannot obtain a deemed decision.

[2]

Note: Where the Zoning Hearing Board fails to commence a hearing on the substantive validity of the ordinance within 60 days of the involved request, or where the Board fails to act on such a hearing within 45 days of its closure, the challenge shall be deemed to be valid.

(2)

Required public notice.

(a)

Upon receipt from the Zoning Officer of an official application for a hearing before the Board, the Zoning Hearing Board shall set a time and place for said hearing. The hearing shall be no later than 60 days from the official date of receipt of said application.

(b)

Within 30 days of receipt of the official application for hearing before the Board, the Board shall advertise the public notice once each week for two successive weeks in a newspaper of general circulation within the Borough of Derry stating:

[1]

The time and place of the hearing of said application or appeal.

[2]

The type of application or appeal.

[3]

The name and address of the applicant/appellant.

[4]

The purpose of the hearing and the particular issue or issues that will be discussed there shall be summarized.

[5]

The location or locations of the involved property or properties.

[6]

Any applicable sections of the ordinance shall be cited.

[7]

If the involved hearing involves a substantive challenge to the validity of this chapter or one of its amendments, then the notice shall state that the validity of the ordinance is being questioned and note where the public may examine a copy of the challenge including any plans, explanatory materials, or proposed amendments.

[8]

The following language must also be included:

"All persons having an interest in these matters are encouraged to attend this meeting. Persons with a disability who wish to attend this hearing and require an auxiliary aid, service, or other disability accommodation to participate in the proceedings can be accommodated by contacting the Borough Office."

(c)

The first printing of the public notice shall not be more than 30 days before the date of the hearing, and the second printing shall not be less than seven days before the date of the hearing.

(d)

The Zoning Officer shall also conspicuously post the public notice on the involved tract of land at least one week prior to the hearing.

(3)

Stays of proceedings:

(a)

All land development or use must stop upon official notice from Derry Borough representatives to the landowner or their tenants and/or on the date of receipt by Derry Borough of an official notice, application or appeal to Derry Borough Council or the Zoning Hearing Board regarding any questionable/disputed development or use. However, if the Zoning Officer certifies that such a halt would cause an imminent danger to life or property, then the development may be stopped only with a restraining order granted by the Zoning Hearing Board or by any court with competent jurisdiction for the judicial district where the involved land is located, following notice to the Zoning Officer.

(b)

An applicant or appellant may petition a court of competent jurisdiction for the judicial district where the involved land is located to force those contesting an authorized permit or approval to either post bond or drop their appeal. The burden of proof shall be on the applicant/appellant to prove that the appeal is frivolous. If the party contesting an authorized permit or approval refuses to post bond as ordered by the involved court, appeals to an appellate court, and loses, then that party is liable for all reasonable costs, expenses, and attorney fees incurred by the applicant/appellant.

(c)

The parties to the hearing shall be: the Borough, any person affected by the application or appeal 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 may require that everyone who wishes to be considered a party to a hearing fill out a form that asks the person's name and address, who he or she is representing, and whether or not he or she desires a copy of any final decision in the case.

(4)

Fees.

(a)

Through a separate resolution, the Borough Council may prescribe reasonable fees for a Zoning Hearing Board hearing which may include: compensation for the Secretary and members of the Board; public notice and advertising costs; necessary administrative overhead connected with the hearing; and 1/2 the cost of a stenographer (the other 1/2 must be paid by the Board). If the appellant needs and/or requests a continuance, they will be responsible for additional (prevailing) fees for another hearing. These fees must be paid at the time of the request for the continuance. Regardless of the outcome of the hearing, upon conclusion of the matter before the Zoning Hearing Board and all relevant notices, any unused portion of the aforementioned fee shall be rebated by the Zoning Hearing Board to the appellant.

(b)

The cost of the original transcript shall be paid by the Board if the original is ordered by the Board or the Hearing Officer, and shall be paid by the applicant/appellant if he or she orders it. Additional copies shall be paid for by the parties requesting them.

(c)

Fees may not compensate for the legal expenses of the Board. Furthermore, fees may not be used to compensate engineering, architectural, planning, or other technical consultants or expert witnesses.

(5)

The Zoning Hearing Board's solicitor.

(a)

The Zoning Hearing Board may hire its own solicitor.

(b)

The Zoning Hearing Board's solicitor shall be a different person, and shall be from a different law firm, than the Borough's Solicitor.

(6)

Conducting the hearing.

(a)

Either the Zoning Hearing Board or a Hearing Officer (see Subsection D above) shall conduct all hearings.

(b)

A stenographic record that conforms to civil trial transcripts must be taken in all hearings. Furthermore, written minutes shall be taken of all Board meetings and/or hearings. The substance of all official actions, the names of people who appear officially, and the subject of their testimony must be recorded.

(c)

Each party has the right to be represented by counsel, to present and respond to evidence, and to cross-examine adverse witnesses on all relevant issues.

(d)

The Chairman of the Zoning Hearing Board (if a Hearing Officer has not been appointed) or the Hearing Officer (if one has been appointed, see Subsection D above) has the power to administer oaths and issue subpoenas to compel both the attendance of relevant witnesses and the production of relevant papers. All testimony should be affirmed, as unaffirmed statements (hearsay) do not constitute legal evidence to make a record.

(e)

Formal rules of evidence do not apply to hearings. However, the Zoning Hearing Board may exclude any irrelevant, immaterial, or unduly repetitious evidence. Hearsay evidence, if not objected to, may be given its natural probative value. Yet, the Board has the power to reject even uncontradicted testimony if it finds this testimony to be lacking in credibility.

(f)

In the time following the commencement of a hearing and prior to a rendering of the decision or findings, the Board shall not communicate with any party or party representatives unless all parties are given an opportunity to participate. No communication, reports, staff memoranda, or other materials, except advice from the Board's own solicitor, may be accepted or noticed by the Board unless all parties are given an opportunity to contest that information. The Board should not inspect the involved site or its surroundings during the hearings unless all parties are given an opportunity to be present. Any reports by the Zoning Officer shall be filed with all involved parties of record.

(g)

A case should not be postponed to a later date without substantial or compelling reasons, especially if the issue is of great concern and has attracted an audience. However, where a new issue is raised for the first time at a hearing, and the applicant/appellant had no notice of this issue, the hearing should be continued at a later date to give the applicant/appellant an opportunity to react properly [see Subsection H(5)(a) above]. When a case is continued at a second hearing, a notice shall be prominently posted at the hearing site, and all involved parties must be notified.

(7)

Making a decision.

(a)

The decision or, where no decision is called for, the findings shall be made by the Zoning Hearing Board. However, the applicant/appellant and the Borough may agree before this decision to waive this and instead accept the decision or findings of the Hearing Officer as final (if a Hearing Officer has been appointed).

(b)

In voting on a final decision, the vote cast by each member of the Board (or the Hearing Officer, where appropriate) shall be made publicly.

(c)

Where an application or appeal is contested or denied, the resulting decision must be accompanied by a finding of fact, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned, and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

(d)

Even where an application or appeal is not contested, the resulting decision should be accompanied by a statement of findings or an opinion that is detailed enough to substantiate the Zoning Hearing Board's decision.

(e)

A copy of the final decision, or where no decision is called for, the findings must be delivered or mailed to the applicant/appellant no later than one business day after the date of the report.

(f)

All other parties to the hearing, as well as all of the parties that are listed under Subsection H(2), Required public notice, above, shall be sent a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

(8)

Appeals from the decision of the Zoning Hearing Board. The decision of the Zoning Hearing Board may be appealed to the relevant Court of Common Pleas in the judicial district where the involved property is located. Any appeal must be filed no more than 30 days after the Board renders its decision.

§ 425-16 Variances.

Purpose.

(1)

The regulations of this chapter apply to, and are designed to address, the conditions of either the entire Borough or an entire zone. Thus, they are not precisely geared to any one property. The regulations were designed in this manner to avoid unequal, unfair, or arbitrary treatment of different landowners. Because these generalized regulations were not designed with any one property in mind, however, it is possible, in a few situations, that they could prevent any use of a property. The function of a variance is to provide relief from such a situation. A variance gives a landowner or tenant permission to do something that violates a provision of this chapter in order to keep him or her from suffering an unnecessary hardship due to that provision.

(2)

However, variances should not be given freely. If every landowner or tenant who suffered any kind of a hardship due to the regulations of this chapter were granted a variance, then this chapter would be unable to fulfill its purposes. Thus, Subsection D below specifies conditions that the Zoning Hearing Board uses to distinguish genuine unnecessary hardships from common inconveniences.

Who may apply. Any landowner, person with ownership interest or tenant who has the permission of his or her landowner may apply for a variance.

Procedure. A party listed in Subsection B above who wishes to obtain a variance must submit a written application to the Zoning Officer on a form supplied by the Zoning Hearing Board. This application shall specifically cite the provisions of this chapter from which the applicant is seeking relief. After determining that the application is complete, the Zoning Officer shall forward the application to the members of the Zoning Hearing Board. At the involved hearing, the Zoning Hearing Board shall follow the procedure specified herein. In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

Conditions. The Zoning Hearing Board may only grant a variance when it makes all of the following six findings:

(1)

That there are unique and peculiar physical conditions present on the involved property, such as the size, shape, or topography of the involved lot, that were not created by the provisions of this chapter;

(2)

That, because of these conditions, there is no possibility that the involved property can be developed in strict conformity with the provisions of this chapter, that if these provisions were rigidly implemented, the property would be virtually unusable and without any economic value;

(3)

That this unnecessary hardship was not created by the applicant, property owner/tenant, or any of his or her predecessors;

(4)

That the variance requested, if granted, will not alter the essential character of the involved neighborhood or zoning district, will not substantially or permanently impair the appropriate use or development of any adjacent (or abutting) properties, and will not be detrimental to the public welfare;

(5)

That the variance, if granted, will be the smallest possible modification of the involved regulation that will provide relief from this regulation; and

(6)

That the variance, if granted, does not permit the use of the land to change.

Burden of proof. In variance hearings, the burden of proof shall be on the applicant/appellant to prove that his or her proposed use or development meets the standards prescribed in this chapter.

Hearing procedures. See § 425-15, Zoning Hearing Board, for the details on the Zoning Board's hearing procedures, which procedures are to be followed for all of the Board's hearings.

§ 425-17 Special exceptions.

Within the Borough generally, or within certain zoning districts, certain uses specified in this chapter are appropriate for certain zoning districts only if adequate precautions are taken to assure that they do not generate adverse impacts and to assure that they comply with the purpose of the zoning district and this chapter. These uses are of such a nature that the heightened scrutiny of special and intensive review is required to determine whether they should be permitted in specific locations, and if any special conditions and safeguards should be applied if a special exception is granted.

It is important to note that special exceptions are not deviations from this chapter or its purposes listed in § 425-3, Purpose. These uses are both envisioned by this chapter and, if the location and operation standards prescribed by this article are followed, may be permitted by this chapter.

A special exception permit may be granted to an applicant to use land in a zoning district for a purpose or land use that is not permitted outright (i.e., that is not a permitted principal or accessory use) in that district. Special exceptions are utilized by this chapter because merely allowing and not allowing land uses is too narrow for sound planning in some zones. Some land uses fall in between what is consistent and what is not consistent with a zone's plan for practical and quality use. Furthermore, some uses should be located in a zone, but should be very carefully sited or controlled in order to protect the zone's overall design. Establishing a special exception use system for the Borough of Derry that allows such land uses in appropriate zones, subject to location and operation standards that are to protect the quality of life for residents in those zones, is the general purpose of this section.

Procedures for granting special exception Use permits as provided herein are intended to assure that such review is made on the basis of findings of fact, that due process is assured, and appropriate conditions and safeguards are attached, if warranted, by the findings of facts. Such conditions shall be based upon the standards in this chapter. Special exception use permit procedures shall be applied, and such permits granted, only as specified in this chapter.

Special exception use permits are granted or denied by the Zoning Hearing Board. Land uses that are allowed as special exceptions generally affect only their particular neighborhoods.

§ 425-18 Special exception procedure.

The procedure that an applicant is to use in obtaining a special exception is provided in this section. Special exceptions can only be considered where the ordinance calls for them and only when the standards established by the ordinance for the grant of a special exception are met. The standards that the Zoning Hearing Board is to use in determining whether or not a special exception should be granted to the applicant are provided in the sections of Article V, District Regulations, and/or in Article VI, Supplementary Regulations, or other parts of this chapter that pertain to the applicant's property. This article and its regulations only apply to land uses that are proposed to be established in a zone where those uses are allowed only as special exceptions. The Zoning Hearing Board may include additional criteria if deemed applicable and/or necessary by the Zoning Hearing Board at their discretion. All applications for special exceptions shall be made according to the following rules:

Who may apply. Any landowner, person with ownership interest, or tenant who has the permission of his or her landowner may apply for a special exception.

Procedure. A party listed in Subsection A above who wishes to obtain a special exception must submit a written application to the Zoning Officer on a form supplied by the Zoning Hearing Board. This application shall specifically cite the provisions of this chapter from which the applicant is seeking relief. After determining that the application is complete, the Zoning Officer shall forward the application to the members of the Zoning Hearing Board. At the involved hearing, the Zoning Hearing Board shall follow the procedure specified herein. In granting any special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

Burden of proof. In special exception hearings, the burden of proof shall be on the applicant/appellant to prove that his or her proposed use or development meets the standards prescribed in this chapter.

Hearing procedure. See § 425-15, Zoning Hearing Board, for the details on the Zoning Board's hearing procedures, which procedures are to be followed for all of the Board's hearings.

§ 425-19 Appeals from determination of Zoning Officer.

Any landowner or party who is affected by a zoning-related determination of the Zoning Officer may appeal this determination to the Zoning Hearing Board. Such appeals may concern (but are not limited to):

The granting or denial of any permit, including a failure to act on the application;

The issuance of any enforcement notice via § 425-26, Enforcement; violations and penalties; or

The registration or refusal to register any nonconforming use, structure, or lot.

§ 425-20 Time limitations for appeals from determination by Zoning Officer.

If the period of time in which a landowner could file an appeal concerning a decision that was adverse to his or her proposed use or development was unlimited, then the difficulty and costs of enforcing this chapter could become prohibitively high. Likewise, if the period of time in which a party who opposed this proposed use or development could file an appeal concerning a decision that approved the use or development was unlimited, then the costs of development could become prohibitively high. The purpose of this section is to avoid both of these situations by limiting the amount of time that both landowners and aggrieved parties have to file for a hearing before the Zoning Hearing Board or (where applicable) the Borough Council when a proposed use or development is involved. The rules of this section, which are listed in the following section, § 425-21, Time limitation rules, only apply to:

A landowner who wishes to appeal a determination by the Zoning Officer not to grant a zoning permit for his or her proposed use, construction, reconstruction, alteration, or other physical development (see § 425-11, Zoning permits);

An aggrieved party who wishes to appeal a determination by the Zoning Officer to grant a zoning permit to another party's proposed use, construction, reconstruction, alteration, or other physical development (see § 425-11, Zoning permits);

A landowner or an aggrieved party who wishes to appeal a determination by the Zoning Officer concerning the nonconforming status of a structure, land use, or lot (see Article III, Nonconforming Buildings and Uses);

A landowner who wishes to contest the Zoning Officers issuance of a enforcement notice for his or her property (see § 425-26, Enforcement; violations and penalties);

A landowner who wishes to reverse or limit a determination that was made by the Zoning Officer according to the provisions of this chapter, and opposes the landowners proposed use or development,[1] by challenging the procedural or substantive validity of this chapter before either the Zoning Hearing Board or (where applicable) Borough Council (see § 425-23, Procedural challenges, or § 425-22, Substantive challenges to validity of chapter or Map); and

[1]

Note: Such a determination might involve the refusal of a zoning permit or grant of nonconformity status.

An aggrieved party who wishes to reverse or limit a determination that was made by the Zoning Officer according to the provisions of this chapter, and approves a proposed use or development on another party's land by challenging the procedural or substantive validity of this chapter before either the Zoning Hearing Board or (where applicable) Borough Council (see § 425-23, Procedural challenges, or § 425-22, Substantive challenges to validity of chapter or Map).

§ 425-21 Time limitation rules.

If the reason behind a hearing before either the Zoning Hearing Board or Borough Council is to reverse or limit the Zoning Officers determination[1] of a third party's proposed use or development in any manner,[2] then the request for that hearing must be filed no later than 30 days after the involved approval was given. If the person filing such a request has seceded his or her interest after the involved approval was given, then he or she shall be bound by the knowledge of his or her predecessor in interest.

[1]

Note: A "determination" might be the issuance of a zoning permit or the grant of nonconformity status.

[2]

Note: This includes procedural or substantive validity challenges. In these cases, the thirty-day period shall begin when the proposed construction, reconstruction, alteration, or other physical development receives its zoning permit.

All appeals from decisions[3] that are adverse to the involved landowner shall be filed with the involved body within 30 days of the notice of this decision.

[3]

Note: Such a "decision" might be the issuance of a enforcement notice or the denial of a zoning permit or nonconformity status.

§ 425-22 Substantive challenges to validity of chapter or map.

Purpose.

(1)

The Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania, and various federal and state laws limit what this chapter may regulate, so that the rights and property of Derry Borough's citizens and neighbors are protected. It is feasible, however, that one or more of this chapter's provisions violate these laws and are thus substantively flawed.

(2)

The purpose of this section is to give landowners and other parties aggrieved by such a flaw, as well as officers and agencies of the Borough itself, a process through which they may challenge the substantive validity of the involved provision. This process may be used to insure that this chapter respects the laws of the United States and the Commonwealth, as well as to overturn any illegal or unconstitutional provisions.

(3)

A party named above who wishes to challenge the substantive validity of this chapter has the following two choices. A person or party who wishes to challenge the substantive validity of this chapter because he or she is aggrieved by a use or development permitted on another person's land must initially select as their choice Subsection A(3)(b). However, all of the other named parties are free to choose from either option.

(a)

Application to the Borough Council for a landowner curative amendment, or

(b)

Request that the Zoning Hearing Board hear a substantive validity challenge.

(4)

Landowner curative amendments and substantive validity challenges are essentially the same type of appeal, with some minor procedural differences.

(5)

A validity challenge must be in writing and contain reasons for the challenge but does not have to contain the proposed development or amendments.

(6)

A curative amendment must be in writing and contain reasons for the challenge and must contain materials describing the proposed development or amendments.

Landowner curative amendments. Applications for a landowner curative amendment shall be governed by the rules outlined below.

(1)

All such applications shall be made to the Zoning Officer, who shall forward them to the Borough Council. These applications may be subject to the time limitations of § 425-20, Time limitations, Subsection A.

(2)

All such applications shall be made in writing and shall contain the following:

(a)

The reasons why the ordinance should be amended as proposed;

(b)

Plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development allowed by this chapter (these plans must be of sufficient quality and detail to allow an evaluation of this chapter in light of the proposed use or development); and

(c)

The amendment or amendments that the landowner proposes to cure the alleged defects in this chapter.

(3)

The Borough Council shall hear and decide on applications for landowner curative amendments as required in § 425-24, Borough Council.

(4)

Appeals to the Borough Council's decision shall be taken to the Court of Common Pleas in the judicial district where the involved property is located.

Substantive validity challenges. Requests for a hearing before the Zoning Hearing Board on a substantive validity challenge to this chapter shall be governed by the rules below.

(1)

All such requests shall be made to the Zoning Officer, who shall forward them to the Zoning Hearing Board. These applications may be subject to the time limitations of § 425-21, Time limitations rules.

(2)

All such requests shall be made in writing, and shall contain the reasons for the involved challenge.

(3)

The Zoning Hearing Board shall decide whether or not to hear such a request and whether or not to grant such a request according to the procedures for other hearings as outlined herein.

(4)

Appeals to the Zoning Hearing Board's decision shall be taken to the Court of Common Pleas in the judicial district where the involved property is located.

(5)

When a landowner curative amendment proposal is approved by Borough Council; a substantive validity challenge is sustained by the Zoning Hearing Board; or the relevant court sustains either of these actions in a final appeal, the involved developer may:

(a)

Apply for a zoning permit within one year without losing the rights granted to him in the relevant validity challenge to a subsequent change or amendment in any land use ordinance; and/or

(b)

File a subdivision application within two years.

See § 425-15, Zoning Hearing Board, for the details on the Zoning Board's hearing procedures, which procedures are to be followed for all of the Board's hearings.

§ 425-23 Procedural challenges.

The Pennsylvania Municipalities Planning Code specifies procedures that are to be used to adopt and amend this chapter. These procedures are designed to offer ample opportunities for public participation and to make this chapter as fair as possible. It is feasible, however, that this chapter or any of its amendments were not adopted according to these procedures, and thus, is procedurally flawed. The purpose of this section is to give landowners and other parties aggrieved by such a flaw, as well as officers and agencies of the Borough itself, a process through which they may challenge the procedural validity of the ordinance or amendment. This process may be used to guarantee adequate public participation and fairness in the adoption process, and to overturn any unfair ordinances or amendments.

Where procedural challenges may be heard. The parties named in § 425-26, Enforcement; violations and penalties, may file a procedural challenge with either the relevant Court of Common Pleas or the Zoning Hearing Board. Procedural challenges taken to the Zoning Hearing Board may have to follow the general rules established for standard hearing procedures for other types of hearings as per § 425-15.

Time limitations. All such challenges shall be raised by an appeal taken within 30 days of the intended effective date of enactment for the involved ordinance or amendment.

Hearing procedures. If the Zoning Hearing Board hears any such challenge, see § 425-15, Zoning Hearing Board, for the details on the Zoning Board's hearing procedures, which procedures are to be followed for all of the Board's hearings.

§ 425-24 Borough Council.

The Council of the Borough of Derry is the chief governing body of the Borough, and is the only body that can set the Borough's Zoning Policy/Law. The purpose of this section is to address only Council's zoning-related duties, outlining these duties and prescribing the procedures that Council is to use in fulfilling them. The provisions of this section only apply to the Borough Council and the parties with which it comes into contact on zoning-related issues.

Zoning-related duties. The Borough Council's major duties under this chapter, as well as some rules that apply to these duties, are provided below.

(1)

The Borough Council shall appoint the Borough's Zoning Officer according to the requirements of § 425-14, Zoning Officer.

(2)

The Borough Council shall appoint the Borough's Planning Commission and Zoning Hearing Board Members.

(3)

The Borough Council shall hear all applications for temporary uses according to both the following rules and the express requirements of § 425-11A(3)(b), Temporary uses.

(a)

The Borough Council shall commence a hearing for appeal due to denial by the Zoning Officer for an application for a temporary use within 60 days of that application's being filed, in a complete state, with the Zoning Officer.

(b)

The Zoning Officer shall provide public notice of this hearing in the same manner as the public notice of a special exception hearing before the Zoning Hearing Board would be provided (see § 425-15) but making appropriate changes and indicating Borough Council will conduct the proceedings.

(c)

The Borough Council shall render a written decision on the temporary use application within 45 days of the last involved hearing before Council.

(d)

Where Council fails to commence the hearing within the first period stipulated above, or where Council fails to render the decision within the second period stipulated above, 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 deemed in this manner, Council shall give public notice of the decision within 10 days of the last day that it could have met to render a decision.

(e)

Where the application is contested or denied, it shall be accompanied by findings of facts, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

(f)

A copy of the final decision shall be delivered to the applicant personally or mailed to him no later than one business day following its date.

(g)

The Council's decision concerning an application for a temporary use may be appealed to any court of competent jurisdiction.

(4)

The Borough Council shall hear all application for conditional uses according to the following rules and the express provisions as follows:

(a)

The Borough Council shall commence a hearing on an application for a conditional use within 60 days of that application's being filed, in a complete state, with the Zoning Officer.

(b)

(c)

Borough Council shall render a written decision within 45 days of the last involved hearing before the Council.

(d)

Where Council fails to commence the hearing within the first period stipulated above, or where Council fails to render the decision within the second period stipulated above, the decision shall be deemed to have been rendered in the 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 deemed in this manner, Council shall give public notice of the decision within 10 days of the last day that it could have met to render a decision.

(e)

In granting a conditional use, Borough Council shall find that each and every condition required in the ordinance for such use is met, and may attach reasonable conditions and safeguards, in addition to those expressed in this chapter as it may deem necessary to implement the purposes of this chapter.

(f)

Where the application is contested or denied, it shall be accompanied by findings of facts, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned, and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

(g)

A copy of the final decision shall be delivered to the applicant personally or mailed to him no later than one business day following its date.

(h)

Applications for conditional uses may be appealed to any court of competent jurisdiction in the judicial district where the involved property is located.

(5)

Borough Council shall enact all amendments to this chapter that are not landowner curative amendments according to the rules below.

(a)

Before voting on the enactment of such an amendment, the Borough Council shall hold a public hearing.

(b)

Public notice of this hearing shall be provided according to the rules below:

[1]

The public notice shall include the time and place of the hearing, the full text, or a brief summary, of the proposed amendment prepared by the Borough Solicitor, the date of the publication, and a statement that reads "All persons having an interest in these matters are encouraged to attend this meeting. Persons with a disability who wish to attend this hearing and require an auxiliary aid, service, or other disability accommodation to participate in the proceedings can be accommodated by contacting the Borough Office."

[2]

If a summary of the proposed amendment is included in the public notice instead of its full text, then:

[a]

The notice shall include a place within the municipality where copies of the full text may be examined without charge or copied at cost;

[b]

A copy of the full text shall be supplied to a newspaper of general circulation in the Borough at the time the public notice is published in that paper; and

[c]

An attested copy of the full text shall be filed in the Westmoreland County, Pennsylvania, law library or another county office designated by the County Commissioners.

[3]

This public notice shall be published in a newspaper of general circulation once each week for two consecutive weeks. The first of these publications shall not be more than 60 days prior to passage or 30 days before the hearing. The second of these shall not be less than seven days before either the hearing or passage.

[4]

If substantial changes are made in the proposed amendment before passage, but after the involved public hearing, then a notice shall be published in a newspaper of general circulation within Derry Borough at least 10 days prior to enactment that sets forth the provisions in reasonable detail, together with a summary of the changes made. If these changes involve land that was previously not affected by the proposed amendment, then the above requirement shall be dropped, and the public hearing process shall start all over again.

[5]

If the amendment at hand involves a Zoning Map change, then notice of the hearing shall be posted by the Borough at points deemed sufficient along involved tracts to notify potentially interested citizens. Such postings shall be made at least one week prior to the date of the hearing.

(c)

If the amendment was prepared by a group other than the Planning Commission, then Borough Council shall submit it to the Planning Commission at least 30 days prior to that amendment's hearing so that the Planning Commission may submit its recommendations.

(d)

Council shall submit the proposed amendment to the Westmoreland County Planning Committee for recommendations at least 30 days before that amendment's public hearing. If the amendment is enacted, then a copy of it shall be forwarded to the Westmoreland County Planning Commission within 30 days of said enactment.

(e)

The Borough may offer a mediation option as an aid in completing this section's proceedings. Mediation is described in § 425-27.

(6)

The Borough Council shall hear all applications for landowner curative amendments according to the following rules and provisions:

(a)

The Council shall commence a hearing on a proposed landowner curative amendment within 60 days of the filing of a complete application for that amendment.

(b)

Public notice of this hearing shall be given in the same manner as the public notice of a special exception hearing before the Zoning Hearing Board would be provided (see § 425-15) but making appropriate changes and indicating Borough Council will conduct the proceedings. This notice shall include notice that the validity of the ordinance or map is in question, and the place and times where a copy of the proposed amendment, including any plans or explanatory materials, may be examined by the public.

(c)

Borough Council shall submit the proposed amendment to the Planning Commission at least 30 days prior to that amendment's hearing so that the Planning Commission may submit its recommendations.

(d)

The Borough Council shall render a written decision within 45 days of the end of the hearing.

(e)

The Borough Council may prescribe reasonable fees for such a hearing which may include; 1) compensation for the secretary, 2) public notice and advertising costs, 3) necessary administrative overhead connected with the hearing, and 4) 1/2 of the stenographer's fee. The cost of the original transcript shall be paid by the Borough if the original is ordered by the Borough, and shall be paid for by the parties requesting them. Fees may not compensate for the legal expenses of the Council. Furthermore, fees may not be used to compensate engineering, architectural, planning, or other technical consultants or expert witnesses.

(f)

The hearing shall be conducted according to the same basic hearing procedures used by the Zoning Hearing Board in § 425-15H.

(7)

If Borough Council determines that this chapter or a portion thereof is substantially invalid or defective, then Council may initiate a municipal curative amendment as follows:

(a)

Council shall declare this chapter or the substantially invalid portion or portions thereof to be invalid by formal action, and propose to prepare a municipal curative amendment to overcome these invalidations.

(b)

Within 30 days of the declaration and proposal, Council shall:

[1]

Make findings by resolution that set forth the declared invalidity or invalidities (this may include references to specific use which are either not permitted or not permitted in sufficient quantity, to a class or use or uses which require revision, or to the entire ordinance); and

[2]

Begin to prepare and consider a curative amendment to the Zoning Ordinance that will correct these invalidities.

(c)

Within 180 days of the declaration and proposal, Council shall either enact this curative amendment according to the provisions of Subsection A(6) of this section or reaffirm the validity of this chapter.

(d)

During this one-hundred-eighty-day period, the Borough of Derry, its Council, and its Zoning Hearing Board shall not be required to entertain or consider any substantive challenges to the validity of this chapter (as laid out in § 425-22, Substantive challenges to validity of chapter or Map) that are based on the same invalidities declared under Subsection A(7)(b) above.

(e)

The Borough may not initiate another municipal curative. Amendment for 36 months after the date that either the curative amendment is enacted or the validity of this chapter is reaffirmed. However, if a new duty or obligation is imposed on the Borough by a statute or a Pennsylvania Appellate Court decision, then the Borough may ignore this rule in order to amend this chapter to fulfill said duty or obligation.

§ 425-25 Planning Commission.

Power and duties of the Planning Commission.

(1)

Literally, the Derry Borough Planning Commission has two functions at the request of the governing body: to prepare a Comprehensive Plan and to keep records of all of its actions and, under the Pennsylvania Municipalities Planning Code, Act, § 209.1,[1] it is also empowered to:

(a)

Make recommendations to the Derry Borough Council concerning the adoption or amendment of an official map.

(b)

Prepare and present to the Derry Borough Council a zoning ordinance, and make recommendations to the Council on proposed amendments to the same.

(c)

Prepare, recommend and administer subdivision and land development and planned residential development regulations.

(d)

Prepare and present to the Derry Borough Council a building code and housing code and make recommendations concerning proposed amendments thereto.

(e)

Do such other acts or make studies as may be necessary to fulfill the duties and obligations imposed by the Pennsylvania Municipalities Planning Code.

(f)

Prepare and present to the Derry Borough Council an environmental study.

(g)

Submit to the Derry Borough Council a recommended capital improvements program.

(h)

Promote public interest in, and understanding of, the Comprehensive Plan and planning in general.

(i)

Make recommendations to governmental, civic, and private agencies and individuals as to the effectiveness of the proposals of such agencies or individuals.

(j)

Take surveys; hold public hearings and meetings.

(k)

Present testimony before any Board.

(l)

Require from other departments and agencies of the Borough of Derry such available information as relates to the work of the Planning Commission.

(m)

In the performance of its functions, enter upon any land to make examination and land surveys with the consent of the owner.

(n)

Prepare and present to the governing body a study regarding the feasibility and practicability of using renewable energy sources in specific areas within the community.

(o)

Review the Zoning Ordinances, subdivision and land development ordinance, official map, provisions for planned residential development, and such other ordinances and regulations governing the development of land no less frequently than it reviews the Comprehensive Plan.

[1]

Editor's Note: See 53 P.S. § 10209.1

(2)

Administrative and technical services may be employed by the Borough of Derry to carry out any of these duties and responsibilities. Also, the Planning Commission can accept and utilize funds, personnel, and other services made available to it with the consent of the Derry Borough Council, and Derry Borough Council can enter into agreements or contracts for the acceptance and utilization of any such funds or assistance.

(3)

A major role or function of any Planning Commission should be one of coordination, and should participate in the preparation and development and review of development proposals. A Planning Commission should endeavor to be involved in opportunities to review and comment on development proposals when it has relevant information to contribute.

(4)

When dealing with matters of planning and zoning, a Planning Commission should attempt to take the approach of heading off any potential problems or difficulties before they occur. Although the Planning Commission serves in an advisory capacity, this does not prevent the Planning Commission from acting as a pilot to chart change within the community. A Planning Commission that is alerted and made informed of matters in the community could present both the problem and possible solutions to the Derry Borough Council.

(5)

A Planning Commission can be a fact finder by holding public hearings and/or meetings to filter concerns and ideas from citizens. It can serve as a sounding board for new or innovative concepts. A Commission can then report its findings and recommendations to the Derry Borough Council for legislative action. Planning Commission members give the Borough of Derry an opportunity to expand its contact and understanding of community concerns by increasing the interest and participation of the residents for the betterment of service to the community.

Removal from office. Any member of a Planning Commission, once qualified and appointed, may be removed from office for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body 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. Any appointment to fill a vacancy created by removal shall be only for the unexpired term.

§ 425-26 Enforcement; violations and penalties.

Purpose.

(1)

The purpose of this section is to prescribe procedures that will effectively enforce the provisions of this chapter while protecting the legal rights of landowners, and adhering to the rules for zoning ordinance enforcement that are established in the Pennsylvania Municipalities Planning Code (Act of 1968, P.L. 805, No. 247, amended through 2005).[1] These procedures apply to situations in which a person, partnership, or corporation, reconstructs, repairs, alters, maintains, establishes, or uses a structure, sign, building, lot, or land use in a manner that violates one or more of the provisions of this chapter. In other words, these procedures apply to situations involving an illegal structure, sign, lot, or use.

[1]

Editor's Note: See 53 P.S. § 10101 et seq.

(2)

In Pennsylvania, zoning ordinances are enforced through legal proceedings. The following groups of people may institute these proceedings:

(a)

The Borough Council and/or its authorized agents;

(b)

The Borough's Zoning Officer; or

(c)

An aggrieved party who would be substantially affected by the alleged violation.

(3)

The procedure that is to be used by the first two of the above groups is discussed under Subsection B below. The procedure that is to be used by aggrieved parties is discussed under Subsection C below.

Borough enforcement procedure. If it appears to the Borough that a violation of this chapter has occurred, then enforcement proceedings shall be instituted as described below.

(1)

Before any other enforcement actions begin, the Zoning Officer shall send enforcement notice to the following parties:

(a)

The owner of record of the parcel on which the violation has occurred;

(b)

Any person who has filed a written request to receive enforcement notices regarding the involved parcel; and

(c)

Any person that the owner requested, in writing, to receive a copy.

(2)

Each enforcement notice required by this section shall contain:

(a)

The name of the involved landowner and any other persons against whom the Borough intends to take action;

(b)

The location of the property in violation;

(c)

A description of the specific violation involved;

(d)

Citations and descriptions of the specific provisions of this chapter which have been violated;

(e)

The date before which the steps for compliance must be commenced, as well as the date before which said steps must be completed; and

(f)

A statement noting that the recipient has the right to appeal the enforcement notice to the Zoning Hearing Board within 30 days, and that failure to comply with the notice within the time specified, unless it is extended by appeals, constitutes a violation of this chapter, with possible sanctions clearly described.

(3)

In a Zoning Hearing Board hearing where an enforcement notice is appealed, the Borough shall present its evidence against the appellant first.

(4)

After all necessary enforcement notices are sent as required above, the Borough Council, or, acting with Council's approval, officers of the Borough, as well as certain aggrieved parties, may institute civil proceedings with the appropriate Magisterial District Judge to enforce the provisions of this chapter, and to prevent, restrain, correct, or abate an illegal structure, sign, lot, or land use. Any person, partnership, or corporation who has violated or permitted the violation of this chapter shall, upon being found liable in a civil enforcement proceeding, pay a judgment of not more than $500 plus all court costs, including all reasonable attorney fees incurred by the Borough. No penalties shall be imposed on the liable party until the date of the determination of a violation by the involved Magisterial District Judge. If the liable party neither pays nor appeals the judgment in a timely manner, the Borough shall enforce the judgment pursuant to the applicable rules of civil procedure.

(5)

Each day that a violation continues shall constitute a separate violation, unless the Magisterial District Judge finds that there was a good-faith basis for the liable party to have believed that there was no such violation. In this situation, there shall be only one violation until the fifth day following the date of the determination of a violation by the Magisterial District Judge, after which each day that the violation continues shall constitute a separate violation.

(6)

The Court of Common Pleas, upon petition, may grant an order of stay, upon cause shown, tolling the per diem fine pending a final adjudication of the violation and judgment.

Aggrieved party enforcement procedure. Aggrieved parties may file an equity action in the Court of Common Pleas in the judicial district where the involved property is located (i.e., not with the Magisterial District Judge) to enforce the provisions of this chapter, and prevent, restrain, correct, or abate an illegal structure, sign, lot, or land use. Such parties may file such an action only after serving notice to the Borough of Derry at least 30 days in advance. This notice is to allow the Borough time to investigate the situation and to issue an enforcement notice, if warranted.

§ 425-27 Mediation.

Mediation is "a voluntary negotiating process in which parties in a dispute mutually select a neutral mediator to assist them in jointly exploring and settling their differences, culminating in a written agreement which the parties themselves create and consider acceptable" (from The Pennsylvania Municipalities Planning Code).

Mediation is intended to supplement, but not replace, the procedures for Zoning Hearing Board hearings specified herein. It can provide a potentially less costly mechanism for resolving land use disputes, as well as a less polarized process.

In no case may the Zoning Hearing Board initiate mediation or participate as a mediating party. Participation in mediation must be voluntary, and the involved parties must agree to:

(1)

Funding;

(2)

The selection of a mediator;

(3)

The completion of mediation (including the time limits for such a completion);

(4)

The suspension of the time limits authorized by this chapter and the Pennsylvania Municipalities Planning Code;[1]

[1]

Note: The suspension of these time limits must be agreed to in writing by the involved parties and by both the applicant/appellant and the municipality (not the Zoning Hearing Board), even if neither one of these two is a party to the mediation.

(5)

The identification of all parties;

(6)

The determination of whether some or all sessions shall be open or closed; and

(7)

The issuance of mediation solutions in writing, subject to review and approval by the decision making body.

No offers or statements made in the mediation sessions, excluding the final written mediated agreement, can be admissible as evidence in any subsequent judicial or administrative proceedings.

§ 425-28 Appeals to court.

The final adjudication of any Borough officer or body is appealable to the Court of Common Pleas of the involved property's county and judicial district. Nothing in this chapter shall be construed to deny an appellant the right to bypass either the Zoning Hearing Board or Borough Council, and proceed directly to court, where appropriate. Furthermore, nothing in this chapter shall be construed to deny the right to bypass the procedures for challenging the procedural or substantive validity of this chapter that are given in this article.