[Amended 7-6-2004 by Ord. No. 662]
A. Membership of the Zoning Hearing Board. The membership of the Board
shall, upon determination of the Borough Council, consist of either
three or five residents of the Borough appointed by resolution of
the Borough Council. The terms of office of a three-member Board shall
be three years and shall be so fixed that the term of office of one
member shall expire each year. The terms of office of a five-member
Board shall be five years and shall be so fixed that the term of office
of one member of a five-member Board shall expire each year. If a
three-member Board is changed to a five-member Board, the members
of the existing three-member Board shall continue in office until
their term of office would expire under prior law. The Borough Council
shall appoint two additional members to the Board with terms scheduled
to expire in accordance with the provision of this section. The Board
will promptly notify the Borough Council of any vacancies which occur.
Appointments to fill vacancies shall be only for the unexpired portion
of the term. Members of the Board shall hold no other office in the
Borough.
B. The Borough Council may appoint by resolution at least one but no
more than three residents of the Borough to serve as alternate members
of the Board. The term of office of an alternate member shall be three
years. 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 need
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.
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 in the Municipalities Planning Code and as otherwise provided by law. Alternates shall hold
no other office in the Borough, including membership on the Planning
Commission and Zoning Officer or his designee.
C. 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 Borough Council which 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.
[Added 9-17-2012 by Ord.
No. 775]
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 §
450-60.
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 cause
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 procedure,
consistent with ordinances of the Borough and laws of the commonwealth.
The Board shall keep full public records of its business, which records
shall be the property of the Borough, and shall submit a report of
its activities to the Borough Council as requested by the Borough
Council.
[Added 9-17-2012 by Ord.
No. 775]
Within the limits of funds appropriated by the Borough 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 Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council. Alternate members of the Board may receive compensation as may be fixed by the Borough Council for the performance of their duties when designated as alternate members pursuant to §
450-58, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Borough Council.
[Amended 7-6-2004 by Ord. No. 662]
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
A. Public notice shall be given and written notice shall be given to
the applicant, the Zoning Officer or his designee, such other persons
as the Borough Council 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.
B. The Borough Council may prescribe reasonable fees with respect to
hearings 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 overheard
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.
C. 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.
An 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 on the record by
the applicant and Borough, be granted additional hearings to complete
their opposition to the application, provided the applicant is granted
an equal number of hearings for rebuttal.
D. 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 Borough, may, prior to the decision of the
hearing, waive decision or findings by the Board and accept the decision
or findings of the hearing officer as final.
E. The parties to the hearing shall be the Borough, 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.
F. 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.
G. 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.
H. Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
I. The Board or 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.
J. 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, except advice from its
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.
K. 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 provision of the Municipalities Planning
Code or of any ordinance, rule or regulations 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 § 916.1 of the Pennsylvania
Municipalities Planning Code, 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
C, 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
A 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.
L. 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.
[Added 9-17-2012 by Ord. No. 775]
A. Parties to proceedings authorized by this article and Article X-A
of the Pennsylvania Municipalities Planning Code 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 and Article X-A of the
Pennsylvania Municipalities Planning Code once they have been formally
initiated. Nothing in this section shall be interpreted as expanding
or limiting Borough 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. Any municipality offering
the mediation option shall assure that, in each case, the mediating
parties, assisted by the mediator as appropriate, develop terms and
conditions for:
(2) Selecting a mediator who, at a minimum, shall have a working knowledge
of municipal zoning and subdivision procedures and demonstrated skill
in mediation.
(3) Completing mediation, including time limits for such completion.
(4) Suspending time limits otherwise authorized in this article, provided
there is written consent by the mediating parties and by an applicant
or Borough 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
decisionmaking body pursuant to the authorized procedures set forth
in the other sections of this article.
C. No offers or statements made in the mediation sessions, excluding
the final written mediation agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
[Added 9-17-2012 by Ord. No. 775]
A. The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1) Substantive challenges to the validity of any land use ordinance,
except those brought before the Borough Council pursuant to §§ 609.1
and 916.1 of the Pennsylvania Municipalities Planning Code.
(2) Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption,
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said ordinance. Where the ordinance appealed
from is the initial zoning ordinance of the Borough, and Zoning Hearing
Board has not been previously established, the appeal raising procedural
questions shall be taken directly to court.
(3) Appeals from the determination of the Zoning Officer or his designee,
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.
(4) Appeals from the determination by the Borough Engineer or the Zoning
Officer or his designee with reference to the administration of any
floodplain and/or flood hazard ordinance or such provisions within
a land use ordinance, including but not limited to appeals from the
granting or denial of any permit or the failure to act on the permit
application or from an appeal from the issuance of any cease-and-desist
order. The floodplain administrator, as defined in any floodplain
ordinance or flood hazard ordinance, is the Borough Zoning Officer
or his designee.
[Amended 12-2-2013 by Ord. No. 783]
(5) Applications for variances from the terms of this chapter and flood hazard ordinance or such provisions within a land use ordinance, pursuant to §
450-65.
(6) Applications for special exceptions under this chapter or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to §
450-64.
(7) Appeals from the determination of any officer or agency charged with
the administration of any transfer of development rights or performance
density provisions of this chapter.
(8) Appeals from a determination of the Zoning Officer or his designee
under § 916.2 of the Pennsylvania Municipalities Planning
Code.
(9) Appeals from the determination of the Zoning Officer or his designee or Borough 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 Article
V or
VII applications of the Pennsylvania Municipalities Planning Code.
B. The Borough Council or, except as to Subsection
B(3),
(4) and
(5), the planning agency, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1) All applications for approvals of planned residential developments under Article
VII pursuant to the provisions of § 702 of the Pennsylvania Municipalities Planning Code.
(2) All applications pursuant to § 508 for approval of subdivisions or land development under Article
V of the Pennsylvania Municipalities Planning Code. Any provision in a subdivision and land development ordinance
requiring that final action concerning subdivision and land development
applications be taken by a planning agency rather than the Borough
Council shall vest exclusive jurisdiction in the planning agency in
lieu of the Borough Council for purposes of the provisions of this
subsection.
(3) Applications for conditional use under the express provisions of
this chapter pursuant to § 603(c)(2) of the Pennsylvania
Municipalities Planning Code.
(4) Applications for curative amendment to a zoning ordinance pursuant
to § 609.1 of the Pennsylvania Municipalities Planning Code and Subsection
A(2) of this section.
(5) All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in § 609 of the Pennsylvania Municipalities
Planning Code. Any action on such petitions shall be deemed legislative
acts, provided that nothing contained in this section shall be deemed
to enlarge or diminish existing law with reference to appeals to court.
(6) Appeals from the determination of the Zoning Officer or his designee or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for land development under Articles
V and
VII of the Pennsylvania Municipalities Planning Code. Where such determination relates only to development not involving an Article
V or
VII application, the appeal from such determination of the Zoning Officer or his designee or the Borough Engineer shall be to the Zoning Hearing Board pursuant to Subsection
A(9). Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the planning agency, all appeals from determinations under this section shall be to the planning agency, and all appeals from the decision of the planning agency shall be to court.
(7) Applications for a special encroachment permit pursuant to § 405
and applications for a permit pursuant to § 406 of the Pennsylvania
Municipalities Planning Code.
[Added 9-17-2012 by Ord. No. 775]
Nothing contained in this article shall be construed to deny
the appellant the right to proceed directly to court where appropriate,
pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating
to action in mandamus).
Where a use requires a special exception review by the Board, as noted in §
450-23, the applicant shall request a hearing by the Board.
A. The Board shall hear and decide on the request in accordance with the standards and criteria for special exception uses as set forth in Article
VI of this chapter. In determining that a use shall be permitted, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
B. The Board may require the submission or presentation of such plans
and other materials as it deems necessary to make a proper determination.
Any subsequent amendment or addition to plans for which a permit is
sought shall be subject to review and public hearing of the Board.
C. If the special exception use involves the site plan review process,
the following procedure should also be in use. The Board's hearing
and decision shall follow the receipt of the Planning Commission's
site plan review report. The Planning Commission shall have 30 days
from the date of the regular meeting of the Planning Commission next
following the date the application is submitted within which to file
its report thereon. In the event the Planning Commission fails to
file its report within 30 days, such application shall be deemed to
have been approved by the Planning Commission. The Planning Commission
may have representation at the public hearing held by the Zoning Hearing
Board on such applications.
[Amended 12-2-2013 by Ord. No. 783]
(1) The applicant shall submit four sets of the site plans to the Secretary
of the Zoning Hearing Board when filing a request for a special use.
(3) One set of plans shall be submitted to the Planning Commission, which shall review the plans in accord with the criteria in §
450-78A(2) and also the relevant special exception use standards.
(4) One set of plans shall be submitted to the Zoning Officer or his
designee for review relative to Borough zoning standards.
D. A special exception use which is approved by the Zoning Hearing Board
shall be construed to be a conforming use, except when accomplished
by variance.
[Added 9-17-2012 by Ord.
No. 775; amended 4-18-2016 by Ord. No. 805]
A. Where the Borough Council, in this chapter, has stated conditional
uses to be granted or denied by the Borough Council pursuant to express
standards and criteria, the Borough Council shall hold a hearing on
and decide requests for such conditional uses in accordance with such
standards and criteria. The hearing 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 Borough, may,
prior to the decision of the hearing, waive decision or findings by
the Board and accept the decision or findings of the hearing officer
as final. In granting a conditional use, the Borough Council 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 article in this chapter.
B. Advisory report. No application for a conditional use shall be granted
by the Borough Council until Borough Council has first received and
considered an advisory report thereon from the Hellertown Planning
Commission with respect to the location of such use in relation to
the needs and growth pattern of the Borough and, where appropriate,
with reference to the adequacy of the site area and arrangement of
buildings, driveways, parking areas, off-street truck loading spaces,
and other pertinent features of the site plan. The Planning Commission
shall have 30 days from the date of receipt of the applicant's application
within which to file its report thereon.
C. Filing of conditional use application. For any use permitted by conditional
use, a conditional use must be obtained from the Borough Council.
In addition to the information required to be shown on the zoning
permit application, the conditional use application must show:
(1) Floor plans and elevations of proposed structures;
(2) Names and addresses of adjoining property owners, including properties
directly across a public right-of-way;
(3) A scaled drawing (site plan) of the site with sufficient detail and
accuracy to demonstrate compliance with all applicable provisions
of this chapter; and
(4) A written description of the proposed use in sufficient detail to
demonstrate compliance with all applicable provisions of this chapter.
D. General criteria. Each applicant must demonstrate compliance with the following in addition to those set forth in §
450-66E:
(1) The proposed use shall be consistent with the purpose and intent
of this chapter;
(2) The proposed use shall not detract from the use and enjoyment of
adjoining nearby properties;
(3) The proposed use will not affect a change in the character of the
subject property's neighborhood;
(4) Adequate public facilities are available to serve the proposed use
(e.g., schools; fire, police, and ambulance protection; sewer, water,
and other utilities: vehicular access; etc.);
(5) For development within a floodplain, the application complies with
the requirements of the Borough's Floodplain Ordinance;
(6) The proposed use shall comply with all applicable regulations of
this chapter; and
(7) The proposed use will not substantially impair the integrity of the
Borough's Comprehensive Plan.
E. Conditions. Borough Council, in approving conditional use applications,
may attach conditions considered by it to be necessary to protect
the public welfare and the purposes listed above, including conditions
which are more restrictive than those established for other uses in
the same zone. These conditions shall be enforceable by the Zoning
Officer, and failure to comply with such conditions shall constitute
a violation of this chapter and be subject to the penalties described
in this article.
F. Site plan approval. Any site plan presented in support of the conditional use pursuant to Subsection
A shall become an official part of the record for said conditional use. Approval of any conditional use will also bind the use in accordance with the submitted site plan; therefore, should a change in the site plan be required as part of the approval of the use, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property, not reflected on the originally approved site plan, shall require another conditional use approval to be obtained.
G. Hearing procedures.
(1) Before voting on the approval of a conditional use, the Borough Council
shall hold a public hearing thereon, pursuant to public notice. The
hearing shall be conducted by the Borough Council. The Borough Council
shall submit each such application to the Borough Planning Commission
at least 30 days prior to the hearing on such application to provide
the Borough Planning Commission an opportunity to submit recommendations.
If, after any public hearing held upon an application, the proposed
application is revised, the Borough Council shall hold another public
hearing, pursuant to public notice, before proceeding to vote on the
application.
(2) Public notice, as defined herein, shall be published and written
notice given to the applicant, the Zoning Officer, the Borough Planning
Commission, and such other persons as the Borough Council may designate
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 Borough Council. 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
scheduled date of the hearing.
(3) The Borough Council may prescribe reasonable fees with respect to
hearings. 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, expenses for engineering, architectural, or
other technical consultants, or expert witness costs.
(4) The first hearing before the Borough Council 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 Borough Council 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 Borough Council 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. An 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
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.
(5) The hearings shall be conducted by the Borough Council. The decision,
or where no decision is called for, the findings shall be made by
Borough Council.
(6) The parties to the hearing shall be the Borough, any person affected
by the application who has made timely appearance of record before
the Borough Council, and any other person, including civic or community
organizations, permitted to appear by the Borough Council. The Borough
Council shall have power to require that all persons who wish to be
considered parties enter appearances in writing on forms provided
by the Borough Council for that purpose.
(7) The Borough Council President shall have power to administer oaths
and issue subpoenas to compel attendance of witnesses and production
of relevant documents and papers, including witnesses and documents
requested by the parties.
(8) 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.
(9) Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
(10)
The Borough Council shall keep a stenographic record of the
proceedings. The appearance fee for a stenographer shall be shared
equally by the applicant and the Borough Council. The cost of the
original transcript shall be paid by the Borough Council if the transcript
is ordered by the Borough Council or shall be paid by the person appealing
the decision of the Borough Council, 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.
[Amended 4-1-2019 by Ord. No. 829]
(11)
The Borough Council shall not communicate, directly or indirectly,
with any party or his representative 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 its 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.
H. Time limitation.
(1) If a conditional use is granted, the necessary permit shall be secured
and the authorized action begun within two years after the date when
the conditional use is finally granted, and the building or alterations,
as the case may be, shall be completed within three years of said
date. For good cause, the Borough Council may at any time, upon application
in writing, extend either of these deadlines.
(2) Should the appellant or applicant fail to obtain the necessary permits
within said two-year period or, having obtained the permit, should
he fail to commence work thereunder within such two-year period, it
shall be conclusively presumed that the appellant or applicant has
waived, withdrawn, or abandoned his application, and all approvals
and permits granted to him shall be deemed automatically rescinded
by the Borough Council.
(3) Should the appellant or applicant commence construction or alteration
within said two-year period but should he fail to complete such construction
or alteration within said three-year period, the Borough Council may,
upon 10 days' notice in writing, rescind or revoke the granted conditional
use, if the Borough Council finds that no good cause appears for the
failure to complete the construction or alteration within said three-year
period and if the Borough Council further finds that conditions have
so altered or changed in the interval since the granting of the conditional
use that revocation of the action is justified.
(4) As an alternative to the preceding, an applicant can request, as part of the original application before the Borough Council, the granting of a timetable associated with the request, which would supersede the deadlines imposed in Subsection
H(1) and
(2). In so doing, the applicant or appellant must demonstrate that the times requested are logically related to normal and expected progress of the project. In approving a timetable under this subsection, the Borough Council must establish a definite time frame for issuance of a zoning permit and completion of construction of the project.
I. Decisions.
(1) The Borough Council shall render a written decision or, when no decision
is called for, make written findings on the conditional use application
within 45 days after the last hearing before the Borough Council.
Where the application is contested or denied, each decision shall
be accompanied by findings of fact or conclusions based thereon, together
with any reasons therefor. Conclusions based on any provisions of
the Municipalities Planning Code 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.
(2) Where the Borough Council fails to render the decision within the period required by this section or fails to commence, conduct or complete the required hearing as provided in §
450-66G(4), 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 Borough Council to meet or render a decision as hereinabove provided, the Borough Council 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 required by the public notice requirements of §
450-66G(2). If the Borough Council shall fail to provide such notice, the applicant may do so.
(3) Nothing in this section shall prejudice the right of any party opposing
the application to appeal the decision to a court of competent jurisdiction.
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 no 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 Borough 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.
Appeals under §
450-62A(1) through
(9) may be filed with the Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance under §
450-65 and for special exception under §
450-64 may be filed with the Board by any landowner or any tenant with the permission of such landowner.
If the Borough determines that its Zoning Ordinance or any portion
thereof is substantially invalid, it shall take the following actions:
A. The Borough shall declare by formal action, its Zoning Ordinance
or portions thereof substantively invalid and propose to prepare a
curative amendment to overcome such invalidity. Within 30 days following
such declaration and proposal, the Borough Council of the Borough
shall:
(1) By resolution make specific findings setting forth the declared invalidity
of the Zoning Ordinance, which may include:
(a)
References to specific uses which are either not permitted or
not permitted in sufficient quantity.
(b)
Reference to a class of use or uses which require revision.
(c)
Reference to the entire ordinance which requires revisions.
(2) Begin to prepare and consider a curative amendment to the Zoning
Ordinance to correct the declared invalidity.
B. Within 180 days from the date of the declaration and proposal, the
Borough shall enact a curative amendment to validate or reaffirm the
validity of its Zoning Ordinance pursuant to the provisions required
by § 609 of the Pennsylvania Municipalities Planning Code in order to cure the declared invalidity of the Zoning
Ordinance.
C. Upon the initiation of the procedures, as set forth in Subsection
A, the Borough Council shall not be required to entertain or consider any landowner's curative amendment filed under §
450-71, nor shall the Zoning Hearing Board be required to give a report requested under §
450-62 or § 916.1 of the Pennsylvania Municipalities Planning Code subsequent to the declaration and proposal based upon the grounds identical to or substantially similar to those specified in the resolution required in Subsection
A(1)(a). Upon completion of the procedure as set forth in Subsections
A and
B, no rights to cure pursuant to the provisions of §
450-70 and § 916.1 of the Pennsylvania Municipalities Planning Code shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of the unamended zoning ordinance for which there has been a curative amendment pursuant to this section.
D. The Borough having utilized the procedures as set forth in Subsections
A and
B may not again utilize said procedure for a thirty-six-month period following the date of the enactment of a curative amendment, or reaffirmation of the validity of its Zoning Ordinance, pursuant to Subsection
B; provided, however, if after the date of declaration and proposal there is a substantially new duty or obligation imposed upon the Borough by virtue of a change in statute or by virtue of a Pennsylvania appellate court decision, the Borough may utilize the provision of this section to prepare a curative amendment to its ordinance to fulfill said duty or obligation.