Creation. The Board of Adjustment of West View Borough became a Zoning Hearing Board in accordance with the provisions of Act No. 247, on January 1, 1969. All matters brought before the Board after said date shall be heard and completed under the provisions of this article, which may be amended from time to time.
The membership of the Board shall consist of three residents of the Borough appointed by the Borough Council. Their 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 Board shall 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 within the Borough, except that not more than one member of the Board may also be a member of the Borough 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 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.
[Amended 2-2-1977 by Ord. No. 1191]
Organization. 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 § 290-46. 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.
Expenditures. Within the limit 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 such compensation exceed the rate of compensation authorized to be paid to the members of the Borough Council.
Notice. The Board shall conduct hearings and make decisions in accordance with Subsections B and C below. Notice shall be given to the public, the applicant, the Allegheny County Planning Commission, the Borough Secretary and such other persons as the Borough Council shall designate by ordinance, and to any person who has made a timely request for same. Notices shall be given at least 15 days before such hearing and in such manner as shall be prescribed by the rules of the Board. The Borough Council may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance.
Conduct of hearings.
Required 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 the decision or findings of the Board and accept the decision or findings of the hearing officer as final.
The parties to the hearing shall be any person who is entitled to notice under Subsection A above without special request therefor who has made a timely appearance of record before the Board and any other person permitted to appear by the Board.
The Chairman or Acting Chairman of the Board or the hearing officer presiding 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 the parties.
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond, 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, as the case may be, shall keep a record of the proceedings, either stenographically or by sound recording, 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.
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.
Take notice of any communication, reports, staff memoranda or other materials unless the parties are afforded an opportunity to contest the material so noticed.
Inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.
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. Each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions 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 the final decision or entry of findings. Where the Board has the 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 for by this chapter, the decision shall be deemed to have been rendered in favor of the applicant.
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 names and addresses with the Board not later than the last day of the hearing, the Board shall provide by mail or otherwise a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
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 procedure 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 the Pennsylvania Rules of Civil Procedure, Sections 1091 to 1098, relating to mandamus.
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, by rule, prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance, provided that the following findings are made where relevant in a given case.
There are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of the lot size or shape, or exceptional topographic 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.
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 therefor 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.
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.
That no use different from that permitted in this chapter shall be construed or used as a precedent in the adjudication of any other appeal.
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and this chapter. Financial hardship shall not be construed as the basis for granting variances.
Editor's Note: The words "this act" apparently refer to Act 247 of 1968, the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.).
Interpretation of Zoning Map; location of buildings or uses.
Whenever an issue before the Board involves the question of the location of a building or use in relation to the Borough's Long-Range Comprehensive Plan, the Board may request and may consider a report thereon from the Borough Planning Commission.
In appropriate cases and on appeal, and after receiving recommendations from the Planning Commission, when requested, the Board shall interpret the provisions of this chapter where the actual street layout varies from the street layout shown on the Zoning District Map, in such a way as to carry out the intent and purpose of the map.
Challenges to the validity of any ordinance or map. Except as provided in Subsection B relating to variances, the Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the Borough Council. Recognizing that challenges to the validity of an ordinance or map may present issues of fact and of interpretation which may lie within the special competence of the Board, and to facilitate the speedy disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation not hitherto properly determined at a hearing before another competent agency or body, and shall take evidence and make a record thereon. At the conclusions of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
Parties appellant before Board. Appeals under § 290-47A and proceedings to challenge an ordinance under § 290-47E may be filed with the Board, in writing, by any officer or agency of the municipality, or any person aggrieved. Requests for variance under § 290-47B and for a special exception under § 290-47C may be filed with the Board by any landowner, as defined by Pennsylvania Act No. 247.
Time limitations. The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:
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 not 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.
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 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.
Whenever the Zoning Hearing Board shall grant either a special exception or variance in accordance with all terms and conditions of this chapter and in accordance with any other special conditions or requirements which might be stipulated for said variance or special exception, the applicant shall be duly notified at the time of notification of approval that said variance or special exception shall be valid for a period of six months from the date of approval, and that said variance or special exception shall expire at the end of said six-month period if:
Reasonable efforts have not been made to expedite construction or occupancy sought under the variance or special exception;
No effort has been made to secure building permits or occupancy permits as required; or
Visible and measurable progress has not been completed on the project or projects which required the issuance of the variance or special exception.
In the case of such expiration, the original applicant or recipient of said variance or special exception shall be required to submit evidence to the Zoning Hearing Board in any request for an extension of said variance or special exception. The decision in this matter shall be the responsibility of the Zoning Hearing Board and, if denied, the original variance or special exception shall be null and void and the original procedures shall be followed for reissuance of any said waivers from the terms of this chapter.
An appeal to the Zoning Hearing Board of the Borough of West View from either a denial of a zoning application by the Zoning Officer, an appeal from the granting of a zoning application by the Zoning Officer or a direct appeal to the Zoning Hearing Board for a change of zoning should be accompanied by a fee of $30 for the purpose of reimbursing the Borough for the reasonable cost of advertisement of the hearing time, and/or other appropriate notice to the real parties in interest, and/or the costs of making a record of testimony of the hearing and/or other administrative costs.
Any person, agency, corporation or partnership entering an appearance and requesting personal notice of the hearing and/or personal notice of the decision of the Zoning Hearing Board shall deposit, upon the entry of said appearance and/or the making of said request, a fee of $5 to cover the costs thereof.