The Borough Council shall appoint a Zoning Hearing Board consisting
of three members. The Borough Council shall designate one such member
to serve until the first day of January following the original effective
date of this chapter, one until the first day of the second January
thereafter, and one until the first day of the third January thereafter.
The Borough Council shall reappoint or appoint three successors on
the expiration of their respective terms, to serve three years, and
shall fill any vacancy for the unexpired term of any member whose
term becomes vacant.
A.
The members of the Zoning Hearing Board shall be removable for cause
by the Borough Council upon written charges and after a public hearing.
B.
Zoning Hearing Board members may hold no other office in the Borough.
C.
The word "Board," when used in this article, shall mean the Zoning
Hearing Board.
The Borough Council may appoint by resolution no more than three
residents of the Borough to serve as alternate members of the Board.
The term of office of an alternate shall be three years.
A.
If, by reason of absence or disqualification of a member, a quorum
is not reached, the Chairman of the Board shall designate as many
alternate members of the Board to sit on the Board as may be needed
to provide a quorum. An alternate so designated 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, and shall have all the powers and duties set forth in
this article and as otherwise provided by law.
B.
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.
C.
Alternate members may hold no other office in the Borough.
A.
The Board shall annually elect officers from its membership.
B.
For the conduct of any hearing and the taking of any action, a quorum
shall be no fewer than two voting members; but the Board may appoint
from its own membership a hearing officer to conduct any hearing on
its behalf, and the parties may waive further action by the Board.
C.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the Borough and the laws of the commonwealth.
D.
The Board shall keep public records of its business, which records
shall be the property of the Borough, and shall submit reports of
its activities to the Borough as requested by the Borough Council.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in accordance with the requirements of Article IX of the Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
Challenges and appeals 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 variance or special exception may
be filed by any landowner or any tenant with permission of the landowner.
An appeal or application regarding a matter within the jurisdiction
of the Zoning Hearing Board may be filed with the Zoning Officer on
forms provided by the Zoning Hearing Board and shall state:
A.
The name and address of the applicant, and of the applicant's representative(s)
or agent(s) where applicable.
B.
The name and address of the record owner of the property that is
the subject of the application or appeal; where the applicant is not
the record owner of the subject property, a signed and notarized statement
from the record owner, authorizing the applicant to pursue the specific
appeal or application.
C.
A copy of the deed to the subject property.
D.
A brief description and location of the subject property, along with
a survey and/or sketch of the property boundaries.
E.
A statement of the present zoning classification of the subject property,
with the improvements thereon and the present use thereof.
F.
A statement of the section of this chapter under which consideration
by the Board is requested, along with a summary of reasons or arguments
in support of the request.
G.
A reasonably accurate description of the improvements or changes
intended to be made under the application. In addition, there shall
be attached a plot plan of the property to be affected, indicating
the location and size of the lot and the size and location of the
existing and proposed improvements or changes.
H.
A list of all landowners within 400 feet of the applicant's land,
to be supplied by applicant, who shall obtain the list at his or her
own cost and expense from the Montgomery County Board of Assessment
Appeals or from the Tax Collector of Pennsburg Borough and other municipalities
when the adjacent land is outside the Borough, along with prestamped
and preaddressed envelopes for all landowners shown on the aforesaid
list.
A.
Immediately upon receipt of an application, the Zoning Officer shall
promptly forward the application to the Zoning Hearing Board Solicitor.
B.
The Zoning Hearing Board Solicitor, in consultation with the Chairman,
shall fix a reasonable time and place for a public hearing on the
application. Said hearing shall occur no more than 60 days after the
application is made to the Borough, unless the applicant has agreed
in writing to an extension of time.
C.
A true and correct copy of the application and all related information
shall be forwarded to each member of the Zoning Hearing Board and
to the President of the Borough Council, the Borough Secretary, Mayor,
and Borough Solicitor.
The Board shall schedule a public hearing and shall give public
notice, as well as written notice as follows:
A.
Written notice shall be given to:
(1)
The record owner, applicant, and applicant's representative.
(2)
Adjacent landowners, utilizing the envelopes provided by the applicant pursuant to § 110-1804H of this chapter.
(3)
The Borough Council, Borough Solicitor, Mayor, and Zoning Officer.
(4)
All parties in interest who have entered their appearance and
any other person registered for that purpose.
B.
Written notice shall be conspicuously posted on the affected tract
of land at least one week prior to the hearing.
A.
Zoning Hearing Board hearings shall be held at the call of the Chairman
and at such times as the Board may determine.
B.
Hearings may be conducted by the Board, which may appoint any member
as a hearing officer. The decision or findings shall be made by the
Board; however, the applicant may, prior to a decision, waive a 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 shall have the power to
require that all persons who wish to be considered parties enter appearances
in writing on forms provided for that purpose.
D.
The Chairman or Acting Chairman or hearing officer may administer
oaths and issue subpoenas to compel the attendance of witnesses and
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 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.
H.
The Board or hearing officer shall not, except upon notice and opportunity
for all parties to be present, participate in, inspect and contest
materials, or engage in the any of the following activities:
(1)
Communicate, directly or indirectly, with any party or his or
her representative in connection with any issue involved.
(2)
Take notice of any communication, reports, staff memoranda,
or other materials, except advice from the Solicitor.
(3)
Inspect the subject site or its surroundings after commencement
of hearings with any party or his or her representative.
A.
The Zoning Hearing 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 of the last hearing. When the application
is contested or denied, the decision shall be accompanied by findings
of fact and conclusions based upon findings. Conclusions based on
any provision of a Borough ordinance shall contain a reference to
the provision.
B.
If the hearing is conducted by a hearing officer and there has been
no stipulation that his or her decision or findings are final, the
Board shall make his or her report and recommendations available to
the parties within 45 days, and the parties shall be entitled to make
written representations to the Board prior to final decision or entry
of findings. The Board's decision shall be entered no later than 30
days after the report of the hearing officer.
C.
Where the Board fails to render the decision within the required
period, or fails to hold the required hearing within 60 days of application,
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.
D.
When a decision has been deemed to have been rendered in favor of
the applicant because of the failure of the Board to hold a hearing
or render a decision as provided, the Board shall give public notice
of said deemed decision within 10 days from the last day it could
have met to render a decision. 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.
E.
A copy of the final decision or findings shall be delivered to the
applicant personally or mailed to him or her 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, brief notice of the
decision or findings and a statement of the place at which the full
decision or findings may be examined.
In the consideration of an application, the Board shall:
A.
Consider the suitability of the property for the use desired; assure
itself that the proposed change is consistent with the spirit, purpose,
and intent of the Zoning Ordinance and Comprehensive Plan.
B.
Determine that the proposed change will not substantially injure
or detract from the use of neighboring property or from the character
of the neighborhood and that the use of the adjacent property is adequately
safeguarded.
C.
Determine that the proposed change will serve the best interests
of the Borough, the convenience of the community (where applicable),
and the public welfare.
D.
Consider the effect of the proposed change upon the logical, efficient,
and economical extension of public services and facilities, such as
public water, sewers, police and fire protection, and public schools.
E.
Consider the suitability of the proposed location of use with respect
to probable effects upon highway traffic and assure adequate access
arrangements in order to protect major roads from undue congestion
and hazard.
F.
Be guided in its study, review, and recommendation by sound standards
of subdivision and land development practice, where applicable.
G.
Impose such conditions and safeguards, in addition to those required,
as are necessary to assure that the intent of this chapter and the
Comprehensive Plan are complied with, which conditions may include
(but are not limited to) harmonious design of buildings, planting
and its maintenance as a sight or sound screen, the minimizing of
noxious, offensive or hazardous elements, and adequate standards of
parking, loading and sanitation.
H.
The Zoning Hearing Board shall be limited to consideration of applications
as they relate to ordinance provisions in effect at the time of the
application. The Borough Council shall retain the exclusive right
to enact and amend ordinances.
A.
Variances. The Board shall hear requests for variances where it is
alleged that the provisions of the Zoning Ordinance inflict unnecessary
hardship upon the applicant. The Board may grant a variance, provided
that all of 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 or
shape, or exceptional topographical or other physical 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 the Zoning Ordinance and that the
authorization of a variance is therefore necessary to enable the reasonable
use of the property.
(3)
That the unnecessary hardship has not been created by the applicant.
(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 at issue.
B.
Special exceptions. The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of the Zoning Ordinance that permits application for said special exception and with the general standards in § 110-1809 of this article.
C.
Burden of proof. For variances, the burden of proof shall be on the
applicant. For special exceptions, the applicant shall be entitled
to the special exception unless others can prove that it would adversely
affect the public health, safety, morals, or welfare.
A.
Time limitations on appeals.
(1)
All appeals from determinations adverse to the landowner shall
be filed by the landowner within 30 days after notice of the determination
is issued.
(2)
Appeals designed to secure reversal or limit the approval of
any application for development, preliminary or final, shall be filed
with the Board no later than 30 days after the application is approved
by an appropriate Borough officer or agency, unless the person filing
alleges and proves that he or she had no notice, knowledge, or reason
to believe that such approval had been given. If such person succeeded
to his or her interest after such approval, he or she shall be bound
by the knowledge of his or her predecessor in interest.
B.
Effect of filing. When an appeal is filed, further development or
official action pursuant to the appealed determination or approval
shall be stayed until issuance of a final decision or findings by
the Board. If the Zoning Officer or other Borough agency presents
facts to the Board indicating that such a stay would cause imminent
peril to life or property, development or official action can only
be stayed by restraining order granted by the Board or by a court
of competent jurisdiction.
C.
Substantive validity challenge. A landowner who desires to challenge,
on substantive grounds, the validity of a map or ordinance provision
which prohibits or restricts the use or development of land in which
he or she has an interest may submit the challenge either to the Zoning
Hearing Board or, with a request for curative amendment, to the Borough
Council.
(1)
The written application to the Zoning Hearing Board shall contain
the reasons for the challenge.
(2)
Public notice of the hearing shall include notice that the validity
of the ordinance or map is in question and shall specify the place
and time where a copy of the request and its accompanying materials
may be examined by the public.
(3)
Based upon the testimony at the hearing(s), the Board shall
determine whether the challenged ordinance or map is defective, as
alleged. If the challenge is found to have merit, the decision of
the Board shall include recommended amendments to the challenged ordinance
which will cure the defects found.
(4)
In reaching its decision, the Board shall consider the plans
and explanatory material submitted by the landowner and shall also
consider:
(a)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities.
(b)
If the proposal is for residential use, the impact of the proposal
upon regional housing needs and the effectiveness of the proposal
in providing housing units of a type actually available to and affordable
by classes of persons otherwise unlawfully excluded by the challenged
provisions of the ordinance or map.
(c)
The suitability of the site for the intensity of use proposed,
by the site's soils, slopes, woodland, wetlands, floodplains, aquifers,
natural resources and other natural features.
(d)
The impact of the proposed use on the site's soils, slopes,
woodland, wetlands, floodplains, aquifers, natural resources and other
natural features, the degree to which these are protected or destroyed,
the tolerance of the resources to development, and any adverse environmental
impacts.
(e)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(5)
If the Board fails to act on the request within 45 days of the
last hearing, a denial of the request is deemed to have occurred.
Unless otherwise specified by the Board, a special exception
or variance shall expire if the applicant fails to obtain any and
all permits within six months of the date of authorization thereof.
Any persons aggrieved by the decision of the Board may, within
30 days thereafter, appeal to the Court of Common Pleas of Montgomery
County in accordance with the provisions of Article X-A of the Municipalities
Planning Code, as amended.
