The Zoning Hearing Board which is presently in existence shall
continue to constitute the Zoning Hearing Board of the Borough of
Munhall under this chapter. Matters pending before the Zoning Hearing
Board at the time this chapter becomes effective shall continue and
be completed under the law(s) in effect at the time the particular
petition(s) regarding the issue was filed.
Those members of the Board existing under the prior zoning ordinance
are hereby reappointed and shall serve out their unexpired terms as
members of the present Board, in accordance with the provisions of
this article.
The Zoning Hearing Board shall consist of three residents of the Borough of Munhall appointed by Council. The members of the existing Board shall continue to serve in office in accordance with § 440-79. The term of office shall be three years and shall be so fixed so that the term of office of one member of the Board shall expire each year. Members of the Board shall hold no other office in the Borough of Munhall.
The Board shall promptly notify the Council of any vacancies
which occur. Appointments by the Council to fill vacancies shall be
only for the unexpired portion of the term.
A member of the Board may be removed for malfeasance of nonfeasance
in office or for other just cause by a majority vote of Council. The
Board member must receive a majority vote of Council. The Board member
must receive 15 days' advance written notice of the intent of Council
to vote on the member's removal. The written notice shall be
accompanied by a clear, written statement of the specific charges.
A hearing shall be held in connection with the vote if the Board member
shall so request in writing.
The Board shall elect its officers from its own membership.
The officers shall serve annual terms 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 hearings on its behalf, and the parties may waive further
action by the Board, as provided by the MPC.
The Board may make, alter and rescind rules and regulations
and forms for its procedures, such as are consistent with the ordinances
of the Borough of Munhall and the laws of Pennsylvania. The Board
shall keep full public records of its business and shall submit a
report of its activities to the Council annually. All records and
rules of the Board shall be on file for public inspection in the office
of the Borough Manager.
Within the limit of funds appropriated by 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 Council, but in no case shall such compensation exceed the
rate of compensation authorized to be paid to Council members.
A.
Meetings of the Zoning Hearing Board shall be held:
B.
All meetings of the Board shall be open to the public. The Board
shall keep minutes of its proceedings, showing whether a member was
present or absent and the vote of each member upon each question,
and shall keep stenographic records of its hearings and other official
actions. All Board records shall be filed with the Zoning Officer
and shall be available for public inspection. Upon the filing of an
application or appeal, the Board shall fix a time and place for a
public hearing and shall, in the manner prescribed by this chapter
and Council, give public notice thereof. The Board shall conduct the
hearings and render decisions in the manner prescribed by Council
as now established or as hereafter amended.
C.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:[2]
(1)
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. The 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 or consent on the
record by the applicant and the Borough, be granted additional hearings
to complete their opposition to the application, provided the applicant
is granted an equal number of additional hearings for rebuttal.
(2)
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.
(3)
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.
(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 the 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.
(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, 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.
(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. 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 this chapter or of any law,
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 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
Municipalities Planning Code,[3] as amended, 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(1) of this section, 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 the 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 C(1) 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.
[3]
Editor's Note: See 53 P.S. § 10916.1.
(10)
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.
(11)
Council shall establish, by resolution, fees with respect to
hearings before the Zoning Hearing Board.
Public notice of any public hearing shall be in accordance with
the standards and procedures established in the MPC. Public notice
shall be given and written notice shall be given to the applicant,
the Zoning Officer 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 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.
[Amended 6-16-1998 by Ord. No. 1426]
The Board shall, in accordance with the provisions of the MPC,
have the power and duty to perform the following functions:
A.
To hear and decide appeals from any administrative order, determination
or requirement made by the Zoning Officer in the administration and
enforcement of this chapter where it is alleged that the Zoning Officer
has failed to follow prescribed procedures or has misinterpreted or
misapplied any provision of a valid ordinance, map or rule or regulation
governing the action of the Zoning Officer.
C.
To hear and decide requests for a variance from the requirements
of this chapter where it is alleged that the strict application of
the provisions of this chapter would result in an unnecessary hardship
that would deprive the owner of the reasonable use of the land. The
Board shall also have the power to attach such conditions to the variance
as it deems necessary to implement the general purpose and intent
of this chapter. No variance shall be granted unless the Board determines,
and fully describes in its findings, that all of the following tests
can be answered in the affirmative:
(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 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
(applicant) or a predecessor in title.
(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.
D.
To hear and decide requests for special exceptions which are expressly permitted by the provisions of this chapter and subject to the standards and criteria set forth in Article X of this chapter.
E.
To hear, where the Board has jurisdiction over zoning matters in
this article, all other appeals which the applicant may elect to bring
before it with respect to any Borough ordinance or requirement pertaining
to the same development plan or development. The Board shall take
evidence and make findings on all relevant issues of fact. However,
the Board shall have no power to act upon issues which do not relate
directly to this chapter. Nor shall the Board assume any authority
to grant relief not specifically authorized by this chapter.
F.
Whenever any person or entity files an appeal to the Munhall Zoning Board pursuant to Subsection A hereof and pays a fee in connection with that appeal, the Board in its discretion may order the return of all or a portion of the fee paid by the appealing, successful party, provided that there is no appeal to the Court of Common Pleas within the applicable time. If there is an appeal from the decision of the Board, such refund will not be payable until final resolution in favor of the appellant by the exhaustion of all further appeals.
A.
Upon the granting of a variance by the Board, the petitioner of record
shall be required to:
Any previously approved variance shall be automatically revoked
under any one of the following three circumstances:
A.
Immediately upon adoption of this chapter, provided that a building
permit authorizing the work approved by the Board has not been issued
within the past 24 calendar months and any portion of the work has
not been completed in full accordance with the approved plans and/or
conditions.
B.
Immediately upon adoption of this chapter, provided that a building
permit authorizing the work approved by the Board has been issued
within the past 24 calendar months, but substantial progress has not
made toward completion of the project in full accordance with the
approved plans and/or conditions within the one-hundred-eighty-calendar-day
period immediately preceding adoption of this chapter.
C.
At any point in time in the future, provided that a building permit
authorizing the work approved by the Board has been issued within
the past 24 calendar months and substantial progress has been made
toward completion of the project within the one-hundred-eighty-calendar-day
period immediately preceding adoption of this chapter, but not all
of the work is completed in full accordance with approved plans and/or
conditions within a period of 24 calendar months of the original date
of approval.
Any party aggrieved by any decision of the Board may appeal
therefrom within 30 days to the Court of Common Pleas of Allegheny
County.
