Borough of Zelienople, PA Article XV Administration

§ 280-1501 Zoning Hearing Board.

The following regulations shall govern the Zoning Hearing Board:

A. Creation and appointment.

(1) The membership of the Zoning Hearing Board shall consist of three residents of the Borough appointed by resolution of the Borough Council. Their terms of office shall be three years and shall be so fixed that the terms of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Borough Council of any vacancies that occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the municipality.

(2) The Borough Council may appoint by resolution at least one but no more than three residents of Zelienople Borough to serve as alternate members of the Board. The term of office of an alternate member shall be three years. Alternates shall hold no other elective or appointive office in the Borough. Any alternate may participate in proceedings or discussions of the Board but shall not be entitled to vote as a member of the Board nor be compensated unless designated as a voting alternate member pursuant to the following process:

(a) 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.

(b) 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.

(c) Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

B. 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 by law. The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality and laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the Borough Council once a year.

C. 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 may receive similar compensation when designated to participate in hearing as specified in § 280-1501A(2), above.

D. The Zoning Hearing Board may employ or contract for and fix the compensation of legal counsel, as the need arises. The legal counsel shall be an attorney other than the Borough Solicitor. The Board may also employ or contract for and fix the compensation of experts and other staff and may contract for services as it shall deem necessary. The compensation of legal counsel, experts and staff and the sums expended for services shall not exceed the amount appropriated by the Borough Council for this use.

§ 280-1502 Powers, duties, procedures and appeals.

A. Hearings: The Board shall conduct hearings and make decisions in accordance with the following requirements:

(1) Notice shall be given to the public, the applicant, the Zoning Officer, such other persons as the Borough Council shall designate by ordinance and to any person who has made timely request for the same. Hearings shall be held within 60 days following an applicant's request for a development permit. 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, notice of said hearing shall be conspicuously posted on the affected tract of land. Fees based on cost shall be paid by the applicant and by persons requesting any notice not required by this chapter. Adopted fees are cited in § 280-1503 of this chapter.

(2) The hearings shall be conducted by the Board or the Board may appoint any member as a hearing officer. The decision, or where, no decision is called for, the findings, shall be made by the Board, but the parties may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.

(3) The parties to the hearing shall be the municipality, 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.

(4) 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.

(5) 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.

(6) Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

(7) 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 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.

(8) The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate; shall not take notice of any communication, reports, staff, memoranda, or other materials unless the parties are afforded an opportunity to contest the material so noticed; and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.

(9) 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. Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of this chapter or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendation available to the parties and the parties shall be entitled to make written representations thereon to the Board prior to the final decision or entry of findings. Where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same within the period required by this clause, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time.

(10) When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or decision as hereinabove provided, the municipality shall give public notice of said decision within 10 days in the same manner as provided in Subsection A(1) of this section. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.

(11) 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.

B. Board's functions; appeals from the Zoning Officer. The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer. Nothing contained herein shall be construed to deny to the appellant the right to proceed directly in court, where appropriate, pursuant to Pa. R.C.P. 1091 to 1098 relating to mandamus.

C. Board's functions; challenge to the validity of any ordinance or map. The Board shall hear challenges to the validity of a zoning ordinance or map except as indicated in Section 1003 and subsection (1)(b) of Section 1004 of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[1] In all such challenges, the Board shall take evidence and make a record thereon as provided in this chapter for the conduct of hearings. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

[1] Editor's Note: See 53 P.S. §§ 11003 and 11004(1)(b), respectively.

D. Board's functions: variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may grant a variance provided the following findings are made where relevant in a given case:

(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions 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 the zoning ordinance 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 the zoning ordinance 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; and

(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

E. Board's Function: special exceptions. Where the Borough Council, in this chapter, has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter.

F. Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to § 280-1502B through D, the Board shall also hear all appeals an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass on the non-zoning issues, but shall take evidence and make a record thereon as provided in § 280-1502. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

G. Parties appellant before Board. Appeals under § 280-1502B and proceedings to challenge an ordinance under § 280-1502C may be filed with the Board in writing by any officer or agency of the Borough, or any person aggrieved. Requests for a variance under § 280-1502D and for special exception under § 280-1502E may be filed with the Board by any landowner or any tenant with the permission of such landowner.

H. Time limitations. The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:

(1) No issue of alleged defect in the process of enactment of any ordinance or map or any amendment thereto shall be raised in any proceeding filed with the board later than 30 days from the time such ordinance, map or amendment takes effect unless the person raising such issue alleges and proves that he failed to receive adequate notice of the enactment or amendment. If such person has succeeded to his interest after the enactment of the ordinances, adequate notice to his predecessor in interest shall be deemed adequate notice to him.

(2) No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate 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 failed to receive adequate notice of such approval. If such person has succeeded to his interest after such approval, adequate notice to his predecessor in interest shall be deemed adequate notice to him.

I. Stay of proceedings. Upon filing of any proceeding referred to in § 280-1502G and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. 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.

§ 280-1503 Fees.

The Borough Council shall set and adopt a reasonable schedule of fees and charges as well as collection procedures for permits, conditional uses, special exceptions, variances, amendments and other administrative procedures pertaining to this chapter and may prescribe reasonable fees with respect to hearing before the Zoning Hearing Board. Fees for these hearings may include compensation for the secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.