A Zoning Hearing Board, consisting of five members appointed by resolution by the Borough Council, is established for the purposes of carrying out the functions of a Zoning Hearing Board as provided by law. Members of the Board shall be residents of the Borough and shall hold no other office in the Borough. The terms of office shall be five years and shall be so fixed that the term of office of one member shall expire each year.
[Amended 4-14-2015 by Ord. No. 361]
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. 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 when designated as a voting alternate, and shall have all the powers and duties set forth in this act and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion 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. The term of office of an alternate member shall be three years.
[Amended 4-14-2015 by Ord. No. 361]
Appointments to fill vacancies shall be only for the unexpired portion of the term.
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.
The Board shall elect a Chairman from its membership annually. For the conduct of any hearing and the taking of any action, the quorum shall be not less than a majority of all members of the Board, but the Board may appoint a hearing officer from its membership to conduct any hearing on its behalf, in accordance with the Pennsylvania Municipalities Planning Code, as amended.
Editor's Note: See 53 P.S. § 10101 et seq.
If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate from the officially appointed alternate members as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of the matter or case. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and laws of the commonwealth. Within the limits of funds provided by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. 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.
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, but in no case shall such compensation exceed the rate of compensation authorized to be paid to members of the Borough Council.
Appeals under this section 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 and for a special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to the Municipalities Planning Code.
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.
Appeals from the determination of the Zoning Officer, 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.
Appeals from a determination by a municipal engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
Applications for variances from the terms of this chapter.
Applications for special exceptions under this chapter.
Appeals from the determination of the Zoning Officer 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 relates to developments not involving applications for subdivisions or land developments, as defined by the Pennsylvania Municipalities Planning Code, as amended.
All action before the Board shall be initiated by a written application for hearing which shall be filed with the Zoning Officer. All applications shall be made on forms specified by the Board, and no applications shall be accepted unless the same shall be fully and legibly completed and unless all exhibits and supplemental material required by the application shall be attached.
Time limitations shall be in accordance with Section 914.1 of the Pennsylvania Municipalities Planning Code.
Editor's Note: See 53 P.S. § 10914.1.
The Board shall meet to hear and consider such matters which shall properly come before it. All such meetings shall be open to the public.
Notice. Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, and to all persons who shall own property adjoining or across a public street from the property which shall be the subject of an application before the Board. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
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 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.
The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time.
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; however, the appellant or the applicant, as the case may be, in addition to the municipality, may, prior to the decision of the hearing, waive decisions or findings by the Board and accept the decision or findings of the hearing officer as final. The Board shall render a written decision or written findings on the application within 45 days after the last hearing or, if such hearing is continued, within 45 days after said continued hearing. If the Board does not make a decision within 45 days after the hearing or continued hearing, it shall be deemed that such Board has decided in favor of the person or Borough official aggrieved or affected who is seeking relief, unless the applicant has agreed in writing or on the record to an extension of time.
The parties to the hearing may 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 the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.
The Chairman or Acting Chairman shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by parties.
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.
Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
The Board or the hearing officer 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.
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 their 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. "Board," as used herein, shall include the members of the Board as well as any secretary, clerk, legal counsel, or consultant.
The Board or hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the Board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code, this chapter, or other rule or regulation shall contain a reference to the provisions relied on and the reasons why the conclusions are deemed appropriate in the light of the facts found. Where the Board fails to render the decision within the period required 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 hereinafter 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 appellant may do so. 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, the findings, shall be delivered to the applicant personally or mailed to him not later than the day following the date of the decision. To all other persons who have filed their name and address with the Board not later than the last day of the hearing, the Board shall provide by mail or otherwise brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
Appeals to the court. Any person aggrieved by any decisions of the Board may, within 30 days after such decisions of the Board, file a written appeal to the Court of Common Pleas of Bucks County. Such appeals shall be made in accordance with the Pennsylvania Municipalities Planning Code (Act 247, as amended).
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship on the applicant. The Board shall have the power to vary or adapt the strict application of any of the dimensional requirements of this chapter where, by reason of the characteristics listed below, the strict application of any regulation enacted under this chapter would result in peculiar and exceptional and undue hardship upon the owner of such property, but in no other case. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance, provided the following findings are made where relevant in a given case:
That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions created by the provisions of the Zoning Ordinance in the neighborhood or district in which the property is located;
That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
That such unnecessary hardship has not been created by the appellant;
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
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 purpose of this chapter.
Where this chapter has provided for 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.
In passing upon applications for special exceptions and variances, the Board shall consider all relevant factors and procedures specified in other sections of this chapter, including Article IV, Use Regulations.
Special exceptions and/or variances shall only be issued after the Board has determined that the granting of such will not result in additional threats to public safety, extraordinary public expense, create nuisances, cause fraud or victimization of the public, or conflict with local laws or ordinances.
A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provisions thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either to the Zoning Hearing Board in accordance with this article or to the Borough Council, together with a request for a curative amendment in accordance with the provisions of this chapter.
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provisions thereof, who desires to challenge the validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon.
The Zoning Hearing Board shall commence its hearing within 60 days after the request is filed unless the landowner requests or consents to an extension of time.
Public notice of the hearing shall include notice that the validity of the ordinance or map is in question and shall give the place where and the times when a copy of the request, including any plans, explanatory material or proposed amendments may be examined by the public.
Stay of proceedings. Upon filing of any proceeding and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or any agency or body, and all official action thereunder, shall be stayed in accordance with Section 915.1 of the Pennsylvania Municipalities Planning Code, as amended.
Editor's Note: See 53 P.S. § 10915.1.