[Ord. 687, 10/6/1986, § 1001; as amended by Ord.
812, 7/13/1998]
1.
Creation and Membership.
A.
There is hereby continued, to be appointed by the Town Council, a
Zoning Hearing Board, consisting of three residents. Of the initial
appointees to this Board, one shall be designated until the first
day of January following the date of this Chapter, one until the first
day of the second January thereafter and one until the first day of
the third January thereafter. Their successors in office shall be
appointed on the expiration of their respective terms to serve three
years. The Board shall promptly notify the Town Council of any vacancies
which occur. Vacancies shall be filled for the unexpired term of any
member whose term becomes vacant. Members of the Board shall hold
no other office in the Town, except that no more than one member of
the Board may also be a member of the Planning Commission.
B.
The governing body may appoint by resolution two residents of the
Town to serve as alternate members of the Board. The term of office
of an alternate member shall be three years. When seated pursuant
to subsection (3)(B), 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, specifically including
the right to cast a vote as a voting member during the proceedings
and shall have all the powers and duties as set forth in this Chapter
and as otherwise provided by law. Alternates shall hold no other office
in the Town, including Zoning Officer or membership on the Planning
Commission. Any alternate may participate in any proceeding or discussion
of the Board but shall not be entitled to a vote as a member of the
Board nor be compensated pursuant to subsection (4), unless designated
as a voting alternate member pursuant to subsection (3)(B).
2.
Removal of 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 Town Council which appointed the member, taken
after the member has received 15 days advance notice of the charges
and 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.
3.
Organization.
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 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 § 27-1002 below.
B.
If, by reason of absence or disqualification of a member, a quorum
is not reached, the Chairperson of the Board shall designate as many
alternate members of the Board to sit on the Board as may be needed
to provide a quorum. Any alternate member of the Board shall continue
to serve on the Board in all proceedings involving the matter or case
for which the alternate was initially appointed until the Board has
made a final determination of the matter or case. Designation of an
alternate pursuant to this Section shall be made on a case-by-case
basis in rotation according to declining seniority among all alternates.
C.
The Board may make, alter and rescind rules and forms for its procedures,
consistent with the provisions of its charter and with the provisions
of this Part. The Board shall keep full public records of its business
and shall submit a report of its activities to the Town Council once
a year.
4.
Expenditures for Services. Within the limits of funds appropriated
by the Town Council, the Board may employ or contract for secretaries,
clerks, legal counsel, consultants and other technical and clerical
services. Members of the Board may receive compensation for the performance
of their duties, as may be fixed by the Town Council, but in no case
shall it exceed the rate of compensation authorized to be paid to
the members of the Town Council. Alternate members of the Board may
receive compensation, as may be fixed by the Town Council, for the
performance of their duties when designated as voting alternate members
pursuant to subsection (3)(B) above, but in no case shall such compensation
exceed the rate of compensation authorized to be paid to the members
of the Town Council.
5.
Meetings. Meetings shall be held at the call of the Board Chairman
and at such other times as appeals are brought before the Board.
[Ord. 687, 10/6/1986, § 1002]
Hearings. The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Notice of Hearings. Notice shall be given to the public, the applicant,
the Zoning Officer, such other persons as the Town Council shall designate
by ordinance and to any person who has made timely request for the
same. 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. The Town Council may establish reasonable fees,
based on cost, to be paid by the applicant and by persons requesting
any notice not required by ordinance. In addition to the notice required
herein, notice of said hearing shall be conspicuously posted on the
affected tract of land.
B.
Hearing Officer. The hearings shall be conducted by the Board or
the Board may appoint any member as a hearing officer. The decision
or, where no decision is called for, the findings shall be made by
the Board, but the parties may waive decisions or findings by the
Board and accept the decision or findings of the hearing officer as
final.
C.
Parties to the Hearing. The parties to the hearing shall be the Town
Council, 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 by the Board to appear.
The Board shall have the 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.
D.
Oaths and Subpoenas. The chairman or acting chairman of the Board
or the hearing officer presiding shall have the 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.
E.
Representation by Counsel. 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.
F.
Evidence. Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
G.
Stenographic Record. The Board or the hearing officer, as the case
may be, shall keep a stenographic record of the proceedings, and a
transcript of the proceedings and copies of graphic or written material
received in evidence shall be made available to any party at cost.
H.
Conduct of Board or Hearing Officer. The Board or the hearing officer
shall not communicate, directly or indirectly, with any party or his
representatives in connection with any issue involved except upon
notice and opportunity for all parties to participate; shall not take
notice of any communication, reports, staff memoranda or other materials
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.
I.
Written Decision or Findings. The Board or the hearing officer, as
the case may be, shall render a written decision or, when no decision
is called for, make written findings on the application within 45
days after the last hearing before the Board or hearing officer. Where
the application is contested or denied, each decision shall be accompanied
by findings of fact and conclusions based thereon together with the
reasons therefor. Conclusions based on any provisions of the Pennsylvania
Municipalities Planning Code (Act 247 as amended) 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 decisions or findings
are final, the Board shall make his report and recommendations available
to the parties and the parties shall be entitled to make written representations
thereon to the Board prior to the final decision or entry of findings
and the Board's decision shall be entered no later than 45 days after
the decision of the hearing officer. Where the Board fails to render
the decision within the period required by this subsection, or fails
to hold the required hearing within 60 days from the date of the applicant's
request for a hearing, the decision shall have been deemed to have
been rendered in favor of the applicant unless the applicant has agreed,
in writing, 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 Town shall give
public notice of said decision within 10 days in the same manner as
provided in subsection 1 of this Section. Nothing in this subsection
shall prejudice the right of any party opposing the application to
urge that such decision is erroneous.
J.
Copy of Final Decision or Findings. 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 the date of the decision. 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.
[Ord. 687, 10/6/1986, § 1003]
The Board shall have the power to carry on the following functions:
A.
Appeals from the Zoning Officer. The Board shall hear and decide
appeals where it is alleged by the appellant that the Zoning Officer
has failed to follow prescribed procedures or has misinterpreted or
misapplied any provision of a valid ordinance or map or any valid
rule or regulation governing the action of the Zoning Officer. Nothing
contained herein shall be construed to deny to the appellant the right
to proceed directly in court, where appropriate, pursuant to Pa.R.C.P.,
§§ 1091 and 1098 relating to mandamus.
B.
Challenge to the Validity of Zoning Ordinance or Map. The Board shall hear challenges to the validity of this Chapter or Map except as indicated in §§ 27-1102 and 27-1103(1)(B). In all such challenges, the Board shall take evidence and make a record thereon as provided in § 27-1002 above. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
C.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this Chapter inflict unnecessary hardship upon the applicant. Subject to the provisions of Part 11, "Appeals" the Board may by rule prescribe the form of the application and may require preliminary application to the Zoning Officer. The Board may grant a variance provided 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 generally created by the
provisions of this Chapter in the neighborhood or district in which
the property is located.
(2)
That because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity
with the provisions of this Chapter and that the authorization of
a variance is therefore necessary to enable the reasonable use of
the property.
(3)
That such unnecessary hardship has not been created by the 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 nor 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. In granting any variance, the
Board may attach such reasonable conditions and safeguards as it may
deem necessary to implement the purposes of the Pennsylvania Municipalities
Planning Code (Act 247 as amended) and this Chapter.
D.
Special Exceptions. Where this Chapter allows for special exceptions
to be granted or denied by the Board pursuant to express standards
and criteria, the Board shall hear and decide requests for special
exceptions in accordance with such standards and criteria. 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 the Pennsylvania
Municipalities Planning Code (Act 247 as amended) and this Zoning
Chapter.
[Ord. 687, 10/6/1986, § 1004]
Where the Board has jurisdiction over a zoning matter pursuant
to §§ 27-1003(A)(B) and (C), above, the Board shall
also hear all appeals which an applicant may elect to bring before
it with respect to any Town ordinance or requirement pertaining to
the same development plan or development. In any such case, the Board
shall have no power to pass upon the nonzoning issues, but shall take
evidence and make a record thereon as provided in § 1002.
At the conclusion of the hearing, the Board shall make findings on
all relevant issues of fact which shall become part of the record
on appeal to the court.
[Ord. 687, 10/6/1986, § 1005]
Appeals from the Zoning Officer § 27-1003(A) and proceedings
to challenge the validity of this Chapter § 27-1003(B) may
be filed with the Board, in writing, by the landowner affected, any
officer or agency of the Town or any person aggrieved. Requests for
a variance § 27-1003(C) and for a special exception § 27-1003(D)
may be filed with the Board by any landowner or any tenant with the
permission of such landowner.
[Ord. 687, 10/6/1986, § 1006]
No person shall be allowed to file any proceeding with the Board
later than 30 days after any application for development, preliminary
or final, has been approved by an appropriate Town 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
has 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 by the Zoning Officer on a challenge to the
validity of this Chapter or map pursuant to § 1103(2)(b)
shall preclude an appeal from the final approval except in the case
where the final submission substantially deviates from the approved
tentative or preliminary approval.
[Ord. 687, 10/6/1986, § 1007]
1.
Upon filing of any proceeding referred to in § 27-1005 above and during its pendency before the Board, all land development pursuant to the 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 the proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board.
2.
After the petition is presented, the court shall hold a hearing to
determine if the filing of the appeal is frivolous and is for the
purpose of delay. At the hearing evidence may be presented on the
merits of the case. After consideration of all evidence presented,
if the court determines that the appeal is frivolous and is for the
purpose of delay, it shall grant the petition.
3.
The right to petition the court to order 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. 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.
4.
Except as provided for in this Chapter or in the Municipalities Planning
Code, the Zoning Hearing Board shall not have jurisdiction to grant
stay of summary proceedings or other legal actions. Nor shall it render
advisory opinions.
