B.
Membership of the Board. The membership of the Board shall consist
of five residents of the Borough appointed by resolution by the Borough
Council. The terms of office shall be five years and shall be so fixed
that the term of office of one Board member shall expire each year.
The Board shall promptly notify Borough Council of any vacancies.
Appointments to fill vacancies shall be only for the unexpired portion
of the term. Members of the Board shall hold no other elected or appointed
office in the Borough.
[Amended 2-21-1994 by Ord. No. 742]
C.
Removal of members. Any 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 vote. A hearing shall be
held in connection with the vote if the member requests it in writing.
D.
Organization of the Board.
(1)
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 the majority of all members of the Board, but
where a majority of members are disqualified to act in a particular
matter, the remaining members may act for the Board. As provided for
in the MPC, 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 Section 908 of the MPC.[2]
[2]
Editor's Note: See 53 P.S. § 10908.
(2)
The Board shall adopt rules and forms for its procedure in accordance
with the provisions of this chapter. Meetings shall be held at the
call of the Chairman. The Chairman or Acting Chairman may administer
oaths and compel the attendance of witnesses. Meetings of the Board
shall be open to the public.
(3)
The Board shall keep minutes of its proceedings, showing the
vote of each member upon each question, or, if absent or failing to
vote, indicate such fact, and shall keep records of its examination
and other official actions, all of which shall be immediately filed
in the office of the Borough Secretary and shall be a public record.
(4)
The Board shall submit a report of its activities to the Borough
Council as requested.
E.
Expenditures for services. Within the limits 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 at a rate fixed by Borough Council.
A.
Appeals from the Code Enforcement Officer. The Board shall hear and
decide appeals where it is alleged that the Borough Code Enforcement
Officer has misinterpreted or misapplied any provision of this chapter
or map or any valid rule or regulation governing the action of the
Code Enforcement Officer.
B.
Applications. Applications for variances or special exceptions shall
include, as a minimum, the following information:
C.
Variances. The Board shall hear requests for variances where it is
alleged that the provisions of this chapter inflict unnecessary hardship
on the applicant. In granting a variance, the Board may attach such
reasonable conditions and safeguards as it may deem necessary to implement
the purposes of the MPC[1] and this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
Special exceptions. The Board shall hear and decide requests for special exceptions authorized by this chapter in accordance with the standards and criteria set forth in § 340-109 below. The Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the MPC and this chapter.
E.
Challenge to the validity of this chapter and/or map. The Board shall
conduct hearings and make decisions and findings in connection with
challenges to the validity of any provision of this chapter as authorized
by the MPC.
A.
Requirements and procedures. The Board shall conduct hearings and
make decisions in accordance with the following requirements:
(2)
The Board may establish reasonable fees, based on cost, to be
paid by the applicant and by persons requesting any notice not required
by this chapter.
(3)
The public 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.
(4)
The parties to the hearing shall be the Borough and the 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.
(5)
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.
(6)
The parties shall have the right to be represented by counsel
and shall be afforded the opportunity to respond and present evidence
and to cross-examine adverse witnesses on all relevant issues. At
the hearings, any party may appear in person or by agent or by attorney.
(7)
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 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 representatives
unless all parties are given an opportunity to be present.
In any case where the Board shall hold a public hearing, the
Board shall, at a minimum, give notice of such hearing as follows,
which notice shall state the time and the place of the hearing and
the particular nature of the matter to be considered at the hearing:
A.
By publishing a notice thereof once each week for two successive
weeks in a newspaper of general circulation in the Borough, provided
that the first publication shall be not more than 30 nor less than
seven days prior to the hearing.
B.
By mailing or delivering due notice thereof to the applicant and
other parties in interest, who shall be at least those persons whose
properties adjoin the property in question or be within a two-hundred-foot
radius of the property in question.
C.
By mailing or delivering notice thereof to Borough Council, the Borough
Secretary and the Code Enforcement Officer.
D.
By conspicuously posting notice of said hearing on the affected tract
of land at least one week prior to the hearing.
A.
The following requirements shall be observed in reporting of decisions
of the Board:
(1)
The Board or hearing officer 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, subject to the requirements of the MPC.[1] Where a decision is not rendered within the prescribed
time period or when the required hearing is not held within the prescribed
time period, 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
A copy of any final decision shall be delivered to the applicant
personally or mailed to the applicant not later than the day following
the day on which the decision was made. At the same time, the Board
will mail or deliver a brief notice of the decision or findings and
a statement of the place where the full decision or findings may be
examined to all other persons who have filed their name and address
with the Board.
B.
Decision of the Board shall include the following elements:
(1)
Findings of fact, including a brief summary of relevant testimony
and information entered during the proceedings of the Board.
(2)
Citation by quotation or by reference to the specific sections
of the local ordinances and/or the MPC which are relevant to the case.
(3)
Conclusions of the Board enumerating the reasons why such conclusions
are deemed appropriate in light of the facts found.
(4)
Ruling of the Board, indicating in writing any stipulation or
conditions attached to the ruling.
In any instance where the Zoning Hearing Board is required to
consider a variance or special exception, the Board shall, among other
things, consider the following standards:
A.
MPC[1] criteria for variances.
(1)
An applicant for a variance shall have the burden of establishing:
(a)
That there are unique physical conditions or circumstances peculiar
to the subject property, and that the unnecessary hardship is not
due to the circumstances or conditions generally created by this chapter
in the district in which the property is located.
(b)
That, because of such physical conditions or circumstances,
the property cannot be developed in strict conformity with the provisions
of this chapter, and, therefore, a variance is necessary.
(c)
That such unnecessary hardship has not been created by the applicant.
(d)
That the variance, if authorized, will not alter the character
of the neighborhood or district, nor impair the appropriate use or
development of adjacent property, nor be detrimental to the public
welfare.
(2)
In granting any variance, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of the MPC and this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Standards for review of special exceptions.
(1)
In any instance where the Board is required to consider a request
for a special exception, the Board shall consider the following factors:
(a)
That the proposed use is appropriate for the site in question
in terms of size, topography, natural features, drainage, accessibility,
and availability of public services, and that adequate provisions
will be made to protect sensitive environmental features, including
slopes and mature trees.
(b)
That the proposed use is compatible with the character of the
surrounding neighborhood and will not interfere with or detract from
other legitimate uses and adjacent properties, and that adequate measures
will be provided through building design, site layout, landscaping,
planting, and operational controls to minimize any adverse impacts
caused by noise, lights, glare, odors, smoke, fumes, traffic, parking,
loading, signage or other proposed features.
(c)
That the proposed special exception will serve the best interest
of the Borough and convenience of the community and the public, health,
safety and welfare.
(d)
That the proposed use is consistent with the Clifton Heights
Borough Comprehensive Plan.
(e)
That the proposed use promotes orderly development, proper population
density, and the provision of adequate community facilities and services,
including fire and police protection.
(f)
That the proposed use is suitable in terms of its effect on
highway safety and traffic circulation, and that access, on-site circulation,
and parking are adequate in view of anticipated traffic.
(2)
In cases where uses permitted by special exception are not accompanied by standards for such uses, the regulations in Article XIV of this chapter shall apply.
(3)
Financial hardship shall not be construed as a basis for granting
a special exception.
(4)
In granting any special exception, the Board may attach reasonable
conditions and safeguards, in addition to those expressed in this
chapter, as it may deem necessary to implement the purposes of the
MPC and this chapter. Such special exception shall be clearly authorized
by a provision of this chapter and shall comply with the more specific
standards relating to such special exception contained in the sections
of this chapter relating to uses by special exception.
A.
Standards of proof for variances. An applicant for a variance shall
have the burden of establishing both:
B.
Standards of proof for special exceptions. An applicant for a special
exception shall have the burden of establishing both:
C.
Evaluation of the impact of an application on the public interest.
In determining whether the allowance of a special exception or variance
is contrary to the public interest, the Board shall consider whether
the application, if granted, will:
(1)
Adversely affect the public health, safety and welfare due to
changes in traffic conditions, drainage, air quality, noise levels,
neighborhood property values, natural features, and neighborhood aesthetic
characteristics.
(2)
Be in accordance with the Clifton Heights Borough Comprehensive
Plan.
(4)
Adversely affect the logical, efficient and economical extension
or provision of public services and facilities such as public water,
sewers, refuse collection, police, fire protection and public schools.
(5)
Otherwise adversely affect the public health, safety or welfare.
Unless otherwise specified by the Board, a special exception
or variance shall expire if the applicant fails to obtain a building
permit within six months from the date of authorization thereof.
A.
Appeals before the Zoning Hearing Board and to court. All appeals,
applications or challenges which properly come before the Board in
accordance with the requirements of the MPC[1] and all appeals to court shall be subject to the time
limitations and requirements of the MPC. Appeals to court shall be
taken to the Court of Common Pleas of Delaware County.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Parties appellant before the Zoning Hearing Board. Appeals under
Section 909.1 of the MPC[2] and proceedings to challenge an ordinance under Section
909.1 may be filed with the Board in writing by the landowner affected,
any office or agency of the Borough, or person aggrieved. Request
for a variance under Section 910.2 and for a special exception under
Section 912.1[3] may be filed with the Board by any landowner or any tenant
with the permission of such landowner.
C.
Time limitations. No persons shall be allowed to file any proceedings
with the Board later than 30 days after any application for development,
preliminary or final, has been approved by the 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 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.
D.
Stay of proceedings. Upon filing of any proceeding referred to in
Section 913.3 of the MPC[4] and during its pendency before the Board, all land development
pursuant to any challenged ordinance, order or approval of the Code
Enforcement Officer, or any agency or body, and all official action
thereunder shall be stayed unless the Code Enforcement Officer or
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 of the Code Enforcement 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 persons other than the applicant, the applicant may petition
the court having jurisdiction over 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, as prescribed in Section 915.1 of the MPC.[5]
