[Ord. 687, 10/6/1986, § 1001; as amended by Ord. 812, 7/13/1998]
Creation and Membership.
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.
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).
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
Evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
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.
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.
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.
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:
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.
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.
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.
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.
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.
That such unnecessary hardship has not been created by the appellant.
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.
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.
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]
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.
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.
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.
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.