The Zoning Hearing Board which existed at the time of adoption
of this article shall continue in existence as previously established.
The membership of the Zoning Hearing Board shall consist of
three members who are residents of the Borough of Trainer, and they
shall be appointed by the Borough Council. The terms of office shall
be three years and shall be so fixed that the term of office of one
member shall expire each year. The Zoning Hearing Board shall promptly
notify the Borough Council of any vacancies which occur. Appointments
to fill vacancies will be made by the Borough Council to fill only
the unexpired portion of the term. Members of the Zoning Hearing Board
shall hold no other office in the municipality, except that no more
than one member of the Board may also be a member of the Planning
Commission.
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, 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 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 where two members are disqualified to act in a particular matter, the remaining member may act for the Board. 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 §
265-61. 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 and shall submit a report of its activities to the Borough Council once a year.
The Board shall adopt rules in accordance with the provisions
of this chapter. Such rules shall include, but shall not be limited
to, the manner of filing appeals, the manner of filing applications
for special exceptions and variances from the terms of this article,
and the manner of giving notice of public hearing where required under
the terms of this chapter. Such rules shall be made available to the
public.
The Zoning Hearing Board shall perform the following functions:
A. 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.
B. Challenge to the validity of any ordinance or map. The Board shall hear challenges to the validity of the Zoning Ordinance or Map and shall take evidence and make a record thereon as provided in Article
XI, §
265-62 of this chapter. 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. Exceptions to the above are as indicated in Article
X of the Pennsylvania Municipalities Planning Act 247, as amended.
C. Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. Subject to the provisions of §
265-58, 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.
(1) That there are unique physical circumstances or conditions, including
irregularity, narrowness or shallowness of lot size of 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 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; 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.
(6) In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of the Pennsylvania Municipalities Planning Act 247, as amended, and
this Zoning Ordinance.
D. Special exceptions. Where the governing body 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
request 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 the chapter, as it may deem necessary to implement the purposes
of the Pennsylvania Municipalities Planning Act 247, as amended, and
this Zoning Ordinance.
E. Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to Subsections
A through
C of this section, the Board shall also hear all appeals which 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 upon the nonzoning issues but shall take evidence and make a record thereon as provided in §
265-61. 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.
F. Parties appellant before Board. Appeals under §
265-59A and proceedings to challenge an ordinance under §
265-59B may be filed with the Board in writing by the landowner affected, any officer or agency of the municipality, or any person aggrieved. Requests for a variance under §
265-59C and for a special exception under §
265-59D may be filed with the Board by any landowner or any tenant with the permission of such landowner.
G. Time limitations; persons aggrieved. 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
municipal 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.
H. Stay of proceedings. Upon filing of any proceeding referred to in §
265-59F 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 of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.
Meetings of the Zoning Hearing Board shall be held at the call
of the Chairman and at such other times as the Board may determine.
Such Chairman or, in his absence, the Acting Chairman may administer
oaths and compel the attendance of witnesses. All meetings of the
Board shall keep minutes of its proceedings showing the vote of each
member upon each question or, if absent of failing to vote, indicating
such a fact, and shall keep records of its examinations and other
official actions. Every rule or regulation, every amendment or repeal
thereof, and every order, requirement, decision or determination of
the Board shall immediately be filed in the office of the Board and
shall be a public record.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
A. Notice shall be given to the public, the applicant, the Zoning Officer,
such other persons as the governing body shall designate by ordinance,
and to any person who has made timely request for the same. Notices
shall be given at such time and in such manner as shall be prescribed
by rules of the Board in accordance with state law. The Borough Council
may establish a reasonable fee, based on cost, to be paid by the applicant
and by persons requesting any notice not required by ordinance.
B. The hearing 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.
C. 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 may require that all persons
who wish to be considered parties enter appearances in writing or
on forms provided by the Board for that purpose.
D. 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.
E. 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.
F. Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
G. The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings and a transcript of the proceedings,
and copies of graphic or written material received in evidence shall
be made available to any party at cost.
H. The Board or the hearing officer shall not communicate directly or
indirectly with any party or his representatives in connection with
any issue involved except upon notice and opportunity for all parties
to participate; shall not take notice of any communication, reports,
staff memoranda, or other materials unless the parties are afforded
an opportunity to contest the material so noticed; and shall not inspect
the site or its surroundings after the commencement of hearings with
any party or his representative unless all parties are given an opportunity
to be present.
I. 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 the Pennsylvania
Municipalities Planning Act, Act 247, as amended, or of any ordinance,
rule or regulation shall contain a reference to the provision relied
on and the reasons why the conclusion is deemed appropriate in the
light of the facts found. If the hearing is conducted by a hearing
officer, and there has been no stipulation that his decision or findings
are final, the Board shall make his report and recommendations available
to the parties, and the parties shall be entitled to make written
representations thereon to the Board prior to final decision or entry
of findings, and the Board's decision shall be entered no later than
30 days after the decision of the hearing officer. 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 subsection, 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. Nothing in this subsection shall prejudice
the right of any party opposing the application to urge that such
decision is erroneous.
J. 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.
The Zoning Hearing Board shall hear and decide appeals from
any order, requirement, decision or determination made by any administrative
officer charged with the enforcement of this chapter. It shall also
hear and decide all matters referred to it or upon which it is required
to pass under the terms of this chapter. Such appeal may be taken
by any person aggrieved or by any officer, department, board, or bureau
of the Borough affected by the decision of the administrative officer.
Such appeal shall be taken within a reasonable time as provided by
the rules of the Board by filing with the officer from whom the appeal
is taken and with the Board of Appeals a notice of appeal specifying
the grounds thereof. The officer from whom the appeal is taken shall
forthwith transmit to the Board all the papers constituting the record
upon which action the appeal was taken.
Any person or persons jointly or severally aggrieved by any
decisions of the Zoning Hearing Board, or any taxpayers, or any officer,
department, board or bureau of the Borough may present to the court
of common pleas a petition duly verified, setting forth that such
decision is illegal, in whole or in part, and specifying the grounds
of the illegality. Such appeal shall follow the format, procedures
and guidelines outlined in the Pennsylvania Municipalities Planning
Act, Act 247, as amended.