[Amended 2-14-2023 by Ord. No. 3231.4]
The membership of the Zoning Hearing Board shall consist of
five residents of the City appointed by City Council. Their terms
of office shall be five years and shall be so fixed that the term
of office of one member shall expire each year. The Zoning Hearing
Board shall promptly notify City Council when vacancies occur. Appointments
to fill vacancies shall be only for the unexpired portion of the term.
Members of the Zoning Hearing Board shall not be employees of the
City.
A.
Appointment of alternate members. City Council may appoint by resolution at least one, but no more than three, residents of the City to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of Subsection B, an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing Board to the same and full extent as provided by law for Zoning Hearing 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 in this chapter and as otherwise provided by law. Alternates shall hold no other elected or appointed office in the City, including service as a member of the Planning Commission or as Zoning Officer, nor shall any alternate be an employee of the City. Any alternate may participate in any proceeding or discussion of the Zoning Hearing Board, but shall not be entitled to vote as a member of the Zoning Hearing Board unless designated as a voting alternate member pursuant to Subsection B of this section.
B.
Participation by alternate members. The Chairman of the Zoning Hearing
Board may designate alternate members of the Zoning Hearing Board
to replace any absent or disqualified members and if, by reason of
absence or disqualification of a member, a quorum is not reached,
the Chairman of the Zoning Hearing Board shall designate as many alternate
members of the Zoning Hearing Board to sit on the Zoning Hearing Board
as may be needed to reach a quorum. Any alternate member of the Zoning
Hearing Board shall continue to serve on the Zoning Hearing Board
in all proceedings involving the matter or case for which the alternate
was initially appointed until the Zoning Hearing 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.
Any Zoning Hearing Board member may be removed for malfeasance,
misfeasance or nonfeasance in the office or for other just cause by
a majority vote of City Council taken after the member has received
15 days advance notice of the intent to take such vote. A hearing
shall be held in connection with the vote if the member shall request
it, in writing.
A.
Officers. The Zoning Hearing Board shall elect from its own membership
its officers, who shall serve annual terms as such and may succeed
themselves.
B.
Quorum. For the conduct of any hearing and the taking of any action,
a quorum shall be not less than a majority of all members of the Zoning
Hearing Board except when a member of the Zoning Hearing Board is
disqualified to act in a particular matter, alternate members shall
be appointed to provide a quorum.
C.
Hearing Officer. The Zoning Hearing 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 Zoning Hearing Board and
accept the findings or decision of the Hearing Officer as final.
D.
Procedures. The Zoning Hearing Board may make, alter and rescind
rules and forms for its procedure, consistent with ordinances of the
City and laws of the Commonwealth of Pennsylvania.
E.
Files and annual report. The Zoning Hearing Board shall keep full
public records of its business, and shall submit a report of its activities
to City Council once a year.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudication in the following matters:
A.
Substantive challenges to the validity of any land use ordinance,
except curative amendments brought before City Council.
C.
Appeals from the determination of the Zoning Officer, including,
but not limited to: the granting or denial of any permit, or failure
to act on the application therefor, the issuance of any cease-and-desist
order or the registration or refusal to register any nonconforming
use, structure or lot.
D.
Appeals from a determination by the City Engineer or the Zoning Officer
with reference to the administration of any floodplain or flood hazard
ordinance or such provisions within a land use ordinance.
E.
Applications for variances from the terms of this chapter and flood hazard ordinance or such provisions within a land use ordinance pursuant to § 220-132.
H.
Appeals from the determination of the Zoning Officer or the City
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to development not involving
subdivision and land development.
The Zoning Hearing Board, upon appeal, shall have the power
to authorize variances from the requirements of this chapter, and
to attach such conditions to the variance as it deems necessary to
assure compliance with the purposes of this chapter. A variance may
be granted if all of the following findings are made where relevant
in a given case:
A.
That there are unique physical circumstances or conditions, including
irregularity, narrowness or shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the particular
property and that the unnecessary hardship is due to such conditions
and not the circumstances or conditions generally created by the provisions
of this chapter in the neighborhood or district in which the property
is located.
B.
That because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity
with the provisions of this chapter and that the authorization of
a variance is therefore necessary to enable the reasonable use of
the property.
C.
That such unnecessary hardship has not been created by the appellant.
D.
That the variance, if authorized, will not alter the essential character
of the neighborhood or district in which the property is located,
nor substantially or permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public welfare.
E.
That the variance, if authorized, will represent the minimum variance
necessary to afford relief and will represent the least modification
possible of the regulation in issue.
The Zoning Hearing Board shall have the power to hear and decide on applications for uses by special exception as authorized by this chapter, in harmony with its general purpose and intent, and in accordance with the standards set forth in Article XIII. The Zoning Hearing Board shall approve a use by special exception only if it meets all applicable requirements of this chapter and the express standards and criteria set forth in Article XIII. In granting a use by special exception, the Zoning Hearing Board may attach such reasonable safeguards in addition to those expressed in this chapter, as it may deem necessary to properly implement this chapter and protect the public health, safety and welfare.
A.
Notice.
(1)
Written notice of the hearing shall be given to the public,
the applicant, the Zoning Officer, City Council, the Planning Commission
and to any person who has made timely request for the same. A notice
of the hearing shall be given to other persons at such a time and
in such manner as City Council or the Zoning Hearing Board shall designate.
(2)
Public notice, as defined herein, shall be given for the public
hearing. In addition, written notice of said hearing shall be conspicuously
posted on the affected tract of land at least one week prior to the
public hearing.
B.
Conduct of hearing. The Zoning Hearing Board shall conduct hearings
in accordance with the following requirements:
(1)
The first hearing 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.
(2)
Each subsequent hearing before the Zoning Hearing 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 Zoning Hearing Board or Hearing Officer shall assure that the
applicant receives at least seven hours of hearings within the 100
days, including the first hearing. Persons opposed to the application
shall complete the presentation of their opposition to the application
within 100 days of the first hearing held after the completion of
the applicant's case in chief. And the applicant may, upon request,
be granted additional hearings to complete his case-in-chief, provided
the persons opposed to the application are granted an equal number
of additional hearings. Persons opposed to the application may, upon
the written consent or consent on the record by the applicant and
the City, be granted additional hearings to complete their opposition
to the application provided the applicant is granted an equal number
of additional hearings for rebuttal.
(3)
The hearings shall be conducted by the Zoning Hearing Board
or the Zoning Hearing 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 Zoning Hearing Board;
however, the appellant or the applicant, as the case may be, in addition
to the City, may, prior to the decision of the hearing, waive decision
or findings by the Zoning Hearing Board and accept the decision or
findings of the Hearing Officer as final.
(4)
The parties to the hearing shall be the City, any person affected
by the application who has made timely appearance of record before
the Zoning Hearing Board, and any other person including civic or
community organizations permitted to appear by the Zoning Hearing
Board. The Zoning Hearing Board shall have power to require that all
persons who wish to be considered parties enter appearances, in writing,
on forms provided by the Zoning Hearing Board for that purpose.
(5)
The Chairman or Acting Chairman of the Zoning Hearing 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.
(6)
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.
(7)
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
(8)
The Zoning Hearing Board or the Hearing Officer, as the case may be, shall keep a stenographic record of the proceedings. Fees for the stenographer and transcript are governed by § 220-137B of this chapter.
(9)
The Zoning Hearing Board or the Hearing Officer shall not communicate,
directly or indirectly, with any party or his representatives in connection
with any issue involved except upon notice and opportunity for all
parties to participate, shall not take notice of any communication,
reports, staff memoranda or other materials, except advice from their
solicitor, unless the parties are afforded an opportunity to contest
the material so noticed and shall not inspect the site or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
(10)
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 after
the last hearing before the Zoning Hearing 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
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 Zoning Hearing 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 Zoning Hearing Board prior to final decision or entry of findings,
and the Zoning Hearing Board's decision shall be entered no later
than 30 days after the report of the Hearing Officer.
A.
Where the Zoning Hearing Board fails to render a decision within the required forty-five-day period or fails to commence, conduct or complete the required hearing as provided in § 220-134B, 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.
B.
When a decision has been rendered in favor of the applicant because of failure of the Zoning Hearing Board to meet or render a decision, the Zoning Hearing Board shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as provided in § 220-134A. If the Zoning Hearing Board shall fail to provide such notice, the applicant may do so. Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to the Court of Common Pleas.
A.
Parties to proceedings authorized in this article may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this article once they have been formally initiated. Nothing in this § 220-136 shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
B.
Participation in mediation shall be wholly voluntary. The appropriateness
of mediation shall be determined by the particulars of each case and
the willingness of the parties to negotiate. The City, in offering
the mediation option, shall assure that in each case, the mediating
parties, assisted by the mediator as appropriate, develop terms and
conditions for:
(1)
Funding mediation;
(2)
Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedures and demonstrated
skills in mediation;
(3)
Completing mediation, including time limits for such completion;
(4)
Suspending time limits otherwise authorized in this chapter
or in the Pennsylvania Municipalities Planning Code (Act 247, as amended),
provided there is written consent by the mediating parties, and by
an applicant or City decisionmaking body, if either is not a party
to the mediation;
(5)
Identifying all parties and affording them the opportunity to
participate;
(6)
Subject to legal restraints, determining whether some or all
of the mediation sessions shall be open or closed to the public;
(7)
Assuring that mediated solutions are in writing and signed by
the parties, and become subject to review and approval by the appropriate
decision-making body pursuant to the authorized procedures set forth
in this chapter.
C.
No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
A.
Fees. City Council may prescribe reasonable fees with respect to
hearings before the Zoning Hearing Board. Fees for said hearings may
include compensation for the secretary, notice and advertising costs
and necessary administrative overhead connected with the hearing.
The costs, however, shall not include legal expenses of the Zoning
Hearing Board, expenses for engineering, architectural or other technical
consultants or expert witness costs.
B.
Stenographer's appearance fee and transcripts. The appearance fee
for a stenographer shall be shared equally by the applicant and the
Zoning Hearing Board. The cost of the original transcript shall be
paid by the Zoning Hearing Board if the transcript is ordered by the
Zoning Hearing Board or Hearing Officer or shall be paid by the person
appealing from the decision of the Zoning Hearing 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.
C.
Expenditures. Within the limits of funds appropriated by City Council,
the Zoning Hearing Board may employ or contract for secretaries, clerks,
legal counsel, consultants and other technical services.
A.
No person shall file any proceeding before the Zoning Hearing Board
later than 30 days after a preliminary or final application for development
has been approved by an appropriate City 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.
B.
The failure of anyone, other than the landowner, to appeal from an
adverse decision by the Zoning Officer on a challenge to the validity
of an ordinance or map filed pursuant to Section 916.2 of the Pennsylvania
Municipalities Planning Code (Act 247, as amended),[1] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved preliminary approval.
[1]
Editor's Note: See 53 P.S. § 10916.2.
C.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
Upon filing of any proceeding and during its pendency before
the Zoning Hearing 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 Zoning Hearing 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, that may be granted by the Zoning Hearing 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 Zoning Hearing Board by persons other than the applicant, the
applicant may petition the court having jurisdiction of the zoning
appeals to order such persons to post bond as a condition to continuing
the proceedings before the Zoning Hearing Board. 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. All appeals from
decisions rendered by the Zoning Hearing Board shall be taken to the
McKean County Court of Common Pleas and shall be filed within 30 days
after the entry of the decision or, in the case of a deemed decision,
within 30 days after the date upon which notice of said deemed decision
is given as required by Subsection 908(9) of the Pennsylvania Municipalities
Planning Code (Act 247, as amended).[1]
[1]
Editor's Note: See 53 P.S. § 10908(9).
