Borough of Hellertown, PA Article VII Zoning Hearing Board

§ 450-57 Zoning Hearing Board.

[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[1] 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.

[1] Editor's Note: See 53 P.S. § 10101 et seq.

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.

§ 450-58 Organization of Board.

[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.

§ 450-59 Expenditures for services.

[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.

§ 450-60 Hearings.

[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,[1] 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.

[1] Editor's Note: See 53 P.S. § 10916.1.

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.

§ 450-61 Mediation option.

[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:

(1) Funding mediation.

(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.

§ 450-62 Jurisdiction.

[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.[1]

[1] Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1, respectively.

(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.[2]

[2] Editor's Note: See 53 P.S. § 10916.2.

(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.[3]

[3] Editor's Note: See 53 P.S. § 10702.

(2) All applications pursuant to § 508 for approval of subdivisions or land development under Article V of the Pennsylvania Municipalities Planning Code.[4] 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.

[4] Editor's Note: See 53 P.S. § 10508.

(3) Applications for conditional use under the express provisions of this chapter pursuant to § 603(c)(2) of the Pennsylvania Municipalities Planning Code.[5]

[5] Editor's Note: See 53 P.S. § 10603(c)(2).

(4) Applications for curative amendment to a zoning ordinance pursuant to § 609.1 of the Pennsylvania Municipalities Planning Code[6] and Subsection A(2) of this section.

[6] Editor's Note: See 53 P.S. § 10609.1.

(5) All petitions for amendments to land use ordinances, pursuant to the procedures set forth in § 609 of the Pennsylvania Municipalities Planning Code.[7] 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.

[7] Editor's Note: See 53 P.S. § 10609.

(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.[8]

[8] Editor's Note: See 53 P.S. §§ 10405 and 10406, respectively.

§ 450-63 Applicability of judicial remedies.

[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).

§ 450-64 Special exception uses.

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.

(2) The plans shall indicate the data cited in § 450-78A(1).

(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.

§ 450-65 Variances.

A. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant, such as appeal from a denial of a building permit by the Zoning Officer or his designee. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer or his designee. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

[Amended 9-17-2012 by Ord. No. 775]

(1) That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of 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 or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

B. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter. No variance shall be granted to allow a structure or use in a district in which such structure or use is restricted. A use permitted as the result of the granting of a variance shall be construed to be a nonconforming use.

C. The variance shall be considered void unless the construction or use which necessitated the variance request is undertaken within one year of the issuance of the variance.

§ 450-66 Borough Council's functions; conditional uses.

[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;[1]

[1] Editor's Note: See Ch. 204, Flood Damage Prevention.

(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[2] 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] Editor's Note: See 53 P.S. § 10101 et seq.

(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.

§ 450-67 Parties appellant before Board. [1]

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.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 450-68 Time limitations. [1]

A. No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate Borough officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner, unless such person alleges and proves that he had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to § 709 of the Pennsylvania Municipalities Planning Code or from an adverse decision by a zoning officer on a challenge to the validity of an ordinance or map pursuant to § 916.2 of the Pennsylvania Municipalities Planning Code shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative approval.

B. All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 450-69 Stay of proceedings. [1]

A. Upon filing of any proceeding referred to in § 450-67 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or his designee or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or his designee 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 his designee or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such person to post bond as a condition to continuing the proceedings before the Board.

B. After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellant 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.

C. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.

D. If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond, and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses and attorneys' fees incurred by the petitioner.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 450-70 Enactment of Zoning Ordinance amendments. [1]

A. For the preparation of amendments to this chapter, the procedure set forth in § 607 of the Pennsylvania Municipalities Planning Code for the preparation of a proposed zoning ordinance shall be optional.[2]

[2] Editor's Note: See 53 P.S. § 10607.

B. Before voting on the enactment of an amendment, the Borough Council shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a zoning map change, notice of said public hearing shall be conspicuously posted by the Borough at points deemed sufficient by the Borough along the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.

(1) In addition to the requirement that notice be posted under Subsection B, notice of the public hearing shall be mailed by the Borough at least 30 days prior to the date of the hearing by first class mail to the addresses to which real estate tax bills are sent for all real property located within the area being rezoned, as evidenced by tax records within the possession of the Borough. The notice shall include the location, date and time of the public hearing. A good faith effort and substantial compliance shall satisfy the requirements of this subsection.

(2) This subsection shall not apply when the rezoning constitutes a comprehensive rezoning.

C. In the case of an amendment other than that prepared by the planning agency, the Borough Council shall submit each such amendment to the planning agency at least 30 days prior to the hearing on such proposed amendment to provide the planning agency an opportunity to submit recommendations.

D. If after any public hearing held upon an amendment, the proposed amendment is changed substantially or is revised to include land previously not affected by it, the Borough Council shall hold another public hearing, pursuant to public notice, before proceeding to vote on the amendment.

E. If the county planning commission shall have been created for the county in which the municipality proposing the amendment is located then, at least 30 days prior to the public hearing on the amendment by the Borough Council, the Borough shall submit the proposed amendment to the county planning commission for recommendations.

F. The Borough may offer a mediation option as an aid in completing proceedings authorized by this section. In exercising such an option, the Borough and mediating parties shall meet the stipulations and follow the procedures set forth in Article IX of the Pennsylvania Municipalities Planning Code.

G. Within 30 days after enactment, a copy of the amendment to this chapter shall be forwarded to the County Planning Commission.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 450-71 Procedure for landowner curative amendments. [1]

A. A landowner who desires to challenge on substantive grounds the validity of a zoning ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the Borough Council with a written request that his challenge and proposed amendment be heard and decided as provided in § 916.1 of the Pennsylvania Municipalities Planning Code.[2] The Borough Council shall commence a hearing thereon within 60 days of the request as provided in § 916.1 of the Pennsylvania Municipalities Planning Code. The curative amendment and challenge shall be referred to the planning agency or agencies as provided in § 450-72, and notice of the hearing thereon shall be given as provided in § 450-73 and in § 916.1 of the Pennsylvania Municipalities Planning Code.

[2] Editor's Note: See 53 P.S. § 10916.1.

B. The hearing shall be conducted in accordance with § 908 of the Municipalities Planning Code[3] and all references therein to the zoning hearing board shall, for purposes of this section, be references to the Borough Council; provided, however, that the provisions of § 908(1.2) and (9) shall not apply and the provisions of § 916.1 shall control. If a municipality does not accept a landowner's curative amendment brought in accordance with this subsection and a court subsequently rules that the challenge has merit, the court's decision shall not result in a declaration of invalidity for the entire zoning ordinance and map, but only for those provisions which specifically relate to the landowner's curative amendment and challenge.

[3] Editor's Note: See 53 P.S. § 10908.

C. The Borough Council of the Borough which has determined that a validity challenge has merit may accept a landowner's curative amendment, with or without revision, or may adopt an alternative amendment which will cure the challenged defects. The Borough Council shall consider the curative amendments, plans and explanatory material submitted by the landowner and shall also consider:

(1) The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities.

(2) If the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of person otherwise unlawfully excluded by the challenged provisions of the ordinance or map.

(3) The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features.

(4) The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features; the degree to which these are protected or destroyed; the tolerance of the resource to development and any adverse environmental impacts.

(5) The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 450-72 Procedure for Borough curative amendment. [1]

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[2] in order to cure the declared invalidity of the Zoning Ordinance.

[2] Editor's Note: See 53 P.S. § 10609.

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[3] 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.

[3] Editor's Note: See 53 P.S. § 10916.1.

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.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 450-73 Publication, advertisement and availability of ordinances. [1]

A. Proposed zoning ordinances and amendments shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section and shall include the time and place of the meeting at which passage will be considered, a reference to a place within the Borough where copies of the proposed ordinance or amendment may be examined without charge or obtained for a charge not greater than the cost thereof. The Borough Council shall publish the proposed ordinance or amendment once in one newspaper of general circulation in the Borough not more than 60 days nor less than seven days prior to passage. Publication of the proposed ordinance or amendment shall include either the full text thereof or the title and a brief summary, prepared by the Borough Solicitor and setting forth all the provisions in reasonable detail. If the full text is not included:

(1) A copy thereof shall be supplied to a newspaper of general circulation in the Borough at the time the public notice is published.

(2) An attested copy of the proposed ordinance shall be filed in the County Law Library or other county office designated by the County Commissioners, who may impose a fee no greater than that necessary to cover the actual costs of storing said ordinances.

B. In the event substantial amendments are made in the proposed ordinance or amendment, before voting upon enactment the Borough Council shall, at least 10 days prior to enactment, readvertise in one newspaper of general circulation in the Borough a brief summary setting forth all the provisions in reasonable detail, together with a summary of the amendments.

C. Zoning ordinances and amendments may be incorporated into official ordinance books by reference with the same force and effect as if duly recorded therein.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).