A.
Establishment. Pursuant to the provisions of the Pennsylvania Municipality Planning Code, Article X, a Zoning Hearing Board is hereby established.
B.
Appointment.
(1)
Members of the Board shall be residents of the municipality,
appointed by resolution of the governing body. The Zoning Hearing
Board shall consist of three members, one of whom shall be designated
to serve until the first day of January following the adoption of
the Zoning Ordinance, one until the first day of the second January
thereafter and one until the first day of the third January thereafter.
Their successors shall be appointed on the expiration of their respective
terms to serve three years. Members of the Board shall hold no other
public office in the municipality.
(2)
Appointment to fill vacancies. The Board shall promptly
notify the governing body of any vacancies which occur. Appointment
to fill vacancies shall be for the unexpired term of the member or
members whose term or terms become vacant, and such appointments to
fill vacancies shall be made in the same manner as the original appointment.
(3)
Removal. Any Board member may be removed for malfeasance,
misfeasance or nonfeasance in office or for other just cause by a
majority vote of the governing body who 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.
(4)
Organization of Board.
(a)
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 Subsection D. 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 as requested by the governing body.
(b)
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 subsection shall be made
on a case-by-case basis in rotation according to declining seniority
among all alternates.
(5)
Appointment of alternate members. The governing body
may appoint by resolution at least one but no more than three residents
of the municipality to serve as alternate members of the Board. The
term of office of an alternate member shall be three years. When seated
pursuant to the provisions of Section 906 of Act 247, as amended,[1] an alternate shall be entitled to participate in all proceedings
and discussions of the Board to the same and full extent as provided
by law for Board members, including specifically the right to cast
a vote as a voting member during the proceedings, and shall have all
the powers and duties set forth herein and as otherwise provided by
law. Alternates shall hold no other office in the municipality, including
membership on the Planning Commission and Zoning Officer. Any alternate
may participate in any proceeding or discussion of the Board but shall
not be entitled to vote as a member of the Board nor be compensated
pursuant to Section 907 of Act 247, as amended,[2] unless designated as a voting alternate member pursuant
to Section 906 of Act 247, as amended.
C.
Expenditures for services. Within the limits of funds
appropriated by the governing body, 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 governing
body, but in no case shall it exceed the rate of compensation authorized
to be paid to the members of the governing body.
D.
Hearings. The Board shall conduct hearings and make
decision in accordance with the following requirements:
[Amended 12-9-2002 by Ord. No. 448]
(1)
Public notice shall be given and written notice shall
be given to the applicant, the Zoning Officer, such other persons
as the governing body shall designate by ordinance and to any person
who has made timely request for the same. Written notices shall be
given at such time and in such manner as shall be prescribed by ordinance
or, in the absence of ordinance provision, by rules of the Board.
In addition to the written notice provided herein, written notice
of said hearing shall be conspicuously posted on the affected tract
of land at least one week prior to the hearing.
(2)
The governing body may prescribe reasonable fees with
respect to hearing before the Zoning Hearing Board. Fees for said
hearings may include compensation for the secretary and members of
the Zoning Hearing Board, notice and advertising costs and necessary
administrative overhead connected with the hearing. The costs, however,
shall not include legal expenses of the Zoning Hearing Board, expenses
from engineering, architectural or other technical consultants or
expert witness costs.
(3)
The first hearing before the Board or hearing officer
shall be commenced within 60 days from the date of receipt of the
applicant's application, unless the applicant has agreed in writing
to an extension of time. Each subsequent hearing before the Board
or hearing officer shall be held within 45 days of the prior hearing,
unless otherwise agreed to by the applicant in writing or on the record.
An applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing. Upon the request of the applicant,
the Board or hearing officer shall assure that the applicant receives
at least seven hours of hearings within the 100 days, including the
first hearing. Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days
of the first hearing held after the completion of the applicant's
case-in-chief, provided the persons opposed to the application are
granted an equal number of additional hearings. Persons opposed to
the application may, upon the written consent or consent on the record
by the applicant and municipality, be granted additional hearings
to complete their opposition to the application provided the applicant
is granted an equal number of additional hearings for rebuttal.
(4)
The hearings shall be conducted by the Board or the
Board may appoint any member or an independent attorney as a hearing
officer. The decision, or, where no decision is called for, the findings
shall be made by the Board; however, the appellant or the applicant,
as the case may be, in addition to the municipality, may, prior to
the decision of the hearing, waive decision or findings by the Board
and accept the decision or findings for the hearing officer as final.
(5)
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. 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. 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.
(6)
Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded.
(7)
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.
(8)
The Board of the hearing officer shall not communicate,
directly or indirectly, with any party or his representatives in connection
with any issue involved except upon notice and opportunity for all
parties to participate, shall not take notice of any communication,
reports, staff memoranda, or other materials, except advice from their
solicitor, unless the parties are afforded an opportunity to contest
the material so noticed and shall not inspect the site or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
(9)
The Board or the hearing officer, as the case may
be, shall render a written decision or, when no decision is called
for, make written findings on the application within 45 days after
the last hearing before the Board or hearing officer. Where the application
is contested or denied, each decision shall be accompanied by findings
of fact and conclusions based thereon together with the reasons therefor.
Conclusions based on any provisions of this act or of any ordinance,
rule or regulation shall contain a reference to the provision relied
on and the reasons why the conclusion is deemed appropriate in the
light of the facts found. If the hearing is conducted by a hearing
officer and there has been no stipulation that his decision or findings
are final, the Board shall make his report and recommendations available
to the parties within 45 days and the parties shall be entitled to
make written representations thereon to the Board prior to final decision
or entry of findings, and the Board's decision shall be entered no
later than 30 days after the report of the hearing officer. Except
for challenges filed under Section 916.1 of the PA Municipalities
Planning Code, as amended,[3] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection D(1), 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 D(1) 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.
[3]
Editor's Note: See 53 P.S. § 10916.1.
(10)
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.
E.
Functions of the Board.
(1)
Jurisdiction. The Zoning Hearing Board shall have
exclusive jurisdiction to hear and render final adjudications in the
following matters:
(a)
(b)
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.
(c)
Appeals from a determination by the Municipal
Engineer or the Zoning Officer with reference to the administration
of any floodplain ordinance or such provisions within a land use ordinance.
(g)
Appeals from the determination of the Zoning Officer or Municipal 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 applications under Chapter 220, Subdivision and Land Development.
(2)
Variances.
(a)
The Board shall hear requests for variances
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The Board may by rule prescribe the form
of application and may require preliminary application to the Zoning
Officer. The Board may grant a variance, provided that all of the
following findings are made where relevant in a given case:
[1]
That there are unique physical circumstances
or conditions, including irregularity, narrowness or shallowness of
lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property and that the unnecessary
hardship is due to such conditions and not the circumstances or conditions
generally created by the provisions of the Zoning Ordinance in the
neighborhood or district in which the property is located.
[2]
That because of such physical circumstances
or conditions, there is no possibility that the property can be developed
in strict conformity with the provisions of the Zoning Ordinance and
that the authorization of a variance is therefore necessary to enable
the reasonable use of this property.
[3]
That such unnecessary hardship has not been
created by the appellant.
[4]
That the variance, if authorized, will not alter
the essential character of the neighborhood or district in which the
property is located, nor substantially or permanently impair the appropriate
use or development of adjacent property, nor be detrimental to the
public welfare.
[5]
That the variance, if authorized, will represent
the minimum variance that will afford relief and will represent the
least modification possible of the regulation in issue.
(c)
Upon approval of a variance, the Board shall
direct the Zoning Officer to issue a permit to the applicant, which
permit shall authorize the applicant to proceed with development in
accordance with the terms of the approved variance.
(d)
Variance approvals shall be valid a period of
one year from the date of approval. If the proposed development is
not completed within one year of approval, the applicant shall submit
a new application for a variance and shall require approval thereof.
Exception: If the proposed development is subject to additional approvals
such as planning, engineering or other regulatory requirements, the
variance shall remain valid, provided progress related to the project
has not ceased for more than 180 consecutive days.
[Amended 8-11-2015 by Ord. No. 529]
(3)
Special exceptions.
(a)
Board action. Special exceptions, as enumerated in Article IV, shall be permitted only upon authorization by the Zoning Hearing Board. The Board may refer such applications to the Planning Commission for its review and recommendations. The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria set forth herein. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this Zoning Ordinance and Act 247, as amended.[10]
[10]
Editor's Note: See 53 P.S. § 10101
et seq.
(b)
Review criteria. Approval of special exceptions
shall be authorized only if they are found to comply with the following
requirements and other applicable requirements as set forth in this
chapter.
[2]
That the use is so designed, located and proposed
to be operated that the public health, safety, welfare and convenience
will be protected.
[3]
That the use will not cause substantial injury
to the value of other property in the neighborhood where it is to
be located.
[4]
That the use shall be compatible with adjoining
development and the character of the zone district where it is proposed
to be located.
[5]
That adequate landscaping and screening is provided as required in § 260-25 and as otherwise provided herein.
[6]
That adequate off-street parking and loading
is provided and ingress and egress is so designed as to cause minimum
interference with traffic on abutting streets.
[7]
That the use conforms with all applicable regulations
governing the district where located, except as may otherwise be determined
for large-scale development.
(c)
Special exceptions: affect of filing an application.
When an application for a special exception has been filed with the
Zoning Hearing Board and the subject matter of such application would
ultimately constitute either a "land development" as defined in Section
107 or a "subdivision" as defined in Section 107 of the Pennsylvania
Municipalities Planning Code, Act 247, as amended,[11] no change or amendment of the zoning, subdivision or other
governing ordinance or plans shall affect the decision on such application
adversely to the applicant and the applicant shall be entitled to
a decision in accordance with the provisions of the governing ordinances
or plans as they stood at the time the application was duly filed;
provided, further, that should such an application be approved by
the Zoning Hearing Board, the applicant shall be entitled to proceed
with the submission of either land development or subdivision plans
within a period of six months or longer or as may be approved by the
Zoning Hearing Board following the date of such approval in accordance
with the provisions of the governing ordinance or plans as they stood
at the time the application was duly filed before the Zoning Hearing
Board. If either a land development or subdivision plan is so filed
within said period, such plan shall be subject to the provisions of
Section 508(1) through (4) of the Pennsylvania Municipalities Planning
Code, Act 247, as amended,[12] and specifically to the time limitations of Section 508(4)[13] which shall commence as of the date of filing such land
development or subdivision plan.
F.
Parties appellant before the Board. Appeals under
Section 909.1(a)(1), (3), (4), (7), (8) and (9) of Act 247, as amended, [14] may be filed with the Board in writing by the landowner
affected, any officer or agency of the municipality or any person
aggrieved. Requests for a variance under Section 910.2 of Act 247,
as amended,[15] and for special exception under Section 912.1 of Act 247,
as amended,[16] may be filed with the Board by any landowner or any tenant
with the permission of such landowner.[17]
G.
Time limitations.
(1)
Filing proceedings with the Board. 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 Section 709 of Act 247, as
amended,[18] or from an adverse decision by a Zoning Officer on a challenge
to the validity of this chapter pursuant to Section 916.2 of Act 247,
as amended,[19] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
(2)
Appeals from adverse determinations. All appeals from
determinations adverse to the landowner shall be filed by the landowner
within 30 days after notice of the determination is issued.
H.
Stay of proceedings.
(1)
Upon filing of any proceeding referred to in Section
913.3 of Act 247, as amended,[20] 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 proceeding
before the Board.
[20]
Editor's Note: See 53 P.S. § 10913.3.
(2)
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.
(3)
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.
(4)
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.
I.
General grant of power. The Zoning Hearing Board shall
perform all the duties and have all the powers prescribed by the Pennsylvania
Municipalities Planning Code and as herein more particularly provided.
C.
Mediation. The municipality may offer a mediation option as an aid in resolving conflicts which may arise under this chapter. In exercising such an option, the municipality and mediating parties shall meet the stipulations and follow the procedures set forth in Article IX of Act 247, as amended.[3]
[3]
Editor's Note: See 53 P.S. § 10901
et seq.
