A Zoning Hearing Board is established in order that the objectives
of this chapter may be fully and equitably achieved and as a means
for competent interpretation of this chapter.
A.
The Sellersville Borough Zoning Hearing Board shall consist of five
members, appointed by the Borough Council. The term of office of each
member shall be five years, so fixed that the term of office of at
least one but no more than two members shall expire each year. Members
of the Board shall be residents of the Borough and shall hold no other
office in the Borough.
B.
The Board shall elect a Chairman, Vice Chairman and Secretary from
its membership, who shall serve annual terms and may succeed themselves.
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.
C.
Alternate members. The governing body may appoint by resolution at
least one but not more than three residents of the municipality to
serve as alternate members of the Zoning Hearing Board, subject to
the following provisions:
(1)
The term of office of an alternate member shall be three years.
(2)
Alternate members shall hold no office in the municipality.
(3)
Any alternate member may participate in any proceeding or discussion
of the Zoning Hearing Board but shall not be entitled to vote as a
member of the Zoning Hearing Board nor receive any compensation (if
such compensation exists) unless designated as a voting alternate
member.
(4)
If, by reason of absence or disqualification of a Zoning Hearing
Board member, a quorum is not reached, the Chairman of the Zoning
Hearing Board shall designate as many alternate members of the Zoning
Hearing Board to sit on the Zoning Hearing Board as may be needed
to provide a quorum. Any alternate member of the Zoning Hearing Board
shall continue to serve on the Zoning Hearing Board in all proceedings
involving the matter of case for which the alternate member was initially
appointed until the Zoning Hearing Board has made a final determination
of the matter or case. Designation of an alternate member shall be
made on a case-by-case basis in rotation according to declining seniority
among all alternates.
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 public hearing
shall be held in connection with the vote if the member shall request
it, in writing.
A.
Officers. The Zoning Hearing Board shall elect a Chairman from its
membership and shall appoint a Secretary. The Chairman or, in his
absence, the Acting Chairman may administer oaths and compel the attendance
of witnesses.
B.
Procedures. The Zoning Hearing Board may make, alter and rescind
rules and forms for its procedures, consistent with ordinances of
the municipality and laws of the commonwealth.
C.
Meetings. Meetings shall be open to the public and shall be at the
call of the Chairman and at such other times as the Zoning Hearing
Board shall specify in its rules of procedure. For the conduct of
any hearing and the taking of any action, quorum shall be not less
than a majority of all members of the Zoning Hearing Board.
D.
Records and decisions. The Zoning Hearing Board shall keep minutes
of its proceedings, showing the vote of each member upon each question
or, if absent or failing to vote, indicating such fact, and shall
keep records of its examinations and other official actions, all of
which shall be the property of the municipality and shall be a public
record. The Zoning Hearing Board shall submit a report of its activities
to the Borough Council as requested by the Borough Council.
A.
The Borough Council shall fix per-meeting compensation for the members
of the Zoning Hearing Board according to a schedule adopted by resolution
of the Council upon enactment of this chapter or as such schedule
may be amended from time to time.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to § 160-131A(2) of this chapter.
(2)
Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption,
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said ordinance.
(3)
Appeals from the determination of the Zoning Officer, including
but not limited to the granting or denial of any permit or failure
to act on the application, the issuance of any cease and desist order
or the registration or refusal to register any nonconforming use,
structure or lot.
(4)
Appeals from a determination by a Municipal Engineer or the
Zoning Officer with reference to the administration of any floodplain
provision.
(7)
Appeals from the determination of the Zoning Officer or Municipal
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to development not involving
an application for a subdivision, land development or planned residential
development.
B.
The Borough Council shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
(1)
All applications for approval of planned residential developments under § 160-21 of this chapter.
(2)
All applications for subdivisions and land developments pursuant to Chapter 135, Subdivision and Land Development. Any provision in Chapter 135, Subdivision and Land Development, requiring that final action concerning subdivision and land development applications be taken by the Planning Commission rather than the Borough Council shall vest exclusive jurisdiction in the Planning Commission in lieu of the Borough Council for purposes of the provisions of this subsection.
(5)
Appeals from the determination of the Zoning Officer or the
Municipal Engineer in the administration of any land use ordinance
or provisions thereof with reference to sedimentation and erosion
control and stormwater management insofar as the same relate to an
application for a subdivision, land development or planned residential
development.
Where unnecessary hardship exists resulting from the strict
interpretation of specific provisions of this chapter, the Board may
grant a variance. In considering any appeal for a variance, the Board
shall pursue the following procedure:
A.
Upon appeal from a decision by the Code Enforcement Officer, the
Board shall hear requests for variance where it is alleged that the
provisions of this chapter inflict unnecessary hardship on the applicant.
The Board shall prescribe the form of application and require preliminary
application to the Code Enforcement Officer.
B.
The Board's decision to grant a permit for a variance shall be made
only after public notice and hearing. Such permit shall apply specifically
to the appeal and plans submitted and presented at said public hearing.
Any subsequent amendments or additions shall be subject to additional
review and public hearing by the Zoning Hearing Board.
C.
The Board may thereafter grant a variance authorizing the Code Enforcement
Officer to issue a zoning permit, provided that all of the following
findings are made 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 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.
(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 the authorization
of a variance is therefore necessary to enable the reasonable use
of the property.
(3)
That such unnecessary hardship had 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.
(5)
That the variance, if authorized, will represent the minimum
variance which will afford relief and the least modification possible
of the regulation in issue and will not permit the establishment of
a principal or accessory use not otherwise permitted by this chapter.
D.
In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purpose of
this chapter.
In this chapter, special exceptions may be granted or denied by the Board pursuant to express standards and criteria contained in Article VI and general provisions contained in this section. The Board shall pursue the following procedure:
A.
The Board's decision to grant a permit for special exception use
shall be made only after public notice and hearing. Such permit shall
apply specifically to the application and plans submitted and presented
at said public hearing. Any subsequent amendments or additions shall
be subject to review and public hearing by the Zoning Hearing Board
as a special exception use.
B.
No application for a special exception use shall be considered by the Zoning Hearing Board until the Board has first received and considered an advisory report thereon from the Planning Commission with respect to the location of such use in relation to the needs and growth pattern of the area and, where appropriate, with reference to the adequacy of the site area and arrangement of buildings, driveways, parking areas, off-street truck loading spaces, traffic impact, and other pertinent features of the site plan. A copy of the application and plans submitted to the Board, together with a transportation impact study in a form and format consistent with the requirements of § 135-11 of Chapter 135, Subdivision and Land Development, of the Code of the Borough of Sellersville, shall be submitted to the Planning Commission. The Planning Commission shall have 60 days from the date of receipt of such material to file its advisory report with the Board. In the event the Planning Commission shall fail to timely file an advisory report with the Board, such application shall be deemed to have been viewed favorably by the Planning Commission. The Planning Commission may have representation at the public hearing held by the Board on such application. After receipt of the advisory report, the Board shall hear the application in the same manner and under the same procedure as it is empowered by law and this chapter.
[Amended 11-12-2012 by Ord. No. 681]
C.
The Zoning Hearing Board may thereafter authorize the Code Enforcement
Officer to issue a zoning permit if, in its judgment, the use meets
all specific standards and criteria contained in this chapter and
the following general provisions:
(1)
Purpose. The intended purpose of the proposed use must be consistent
with the Borough's community development objectives established in
the Comprehensive Plan.
(2)
Compatibility. The proposed use shall be in the best interest
of properties in the general area as well as the community at large.
The proposed use will be reviewed as to its relationship to and effect
on surrounding land uses and existing environmental conditions regarding
the pollution of air, land and water; noise; potential of hazards
and congestion; illumination and glare; and restrictions to natural
light and circulation of air.
(3)
Suitability. The proposed use shall be suitable for the property
in question and shall be designed, constructed, operated and maintained
suitable for the anticipated activity and population served, numbers
of participating population, frequency of use, adequacy of space and
traffic generation.
(4)
Serviceability. Assurance shall be made as to the adequacy and
availability of utility services and facilities such as sanitary and
storm sewers, water, trash and garbage collection and disposal and
the ability of the Borough to supply such services.
(5)
Accessibility. The proposed use shall provide adequate ingress
and egress, interior circulation of both pedestrians and vehicles,
off-street parking and accessibility to the existing or proposed Borough
street system.
A.
A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof which prohibits
or restricts the use or development of land in which he has an interest
shall submit the challenge either:
(1)
To the Zoning Hearing Board under § 160-128A(1) of this chapter; or
(2)
To the Borough Council under § 160-128B(3) of this chapter, together with a request for a curative amendment.
B.
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map or any provision thereof, who desires to challenge its validity on substantive grounds, shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 160-128A(1) of this chapter.
C.
(1)
In challenges before the Zoning Hearing Board, the challenging
party shall make a written request to the Zoning Hearing Board that
it hold a hearing on its challenge. The request shall contain the
reasons for the challenge. Where the landowner desires to challenge
the validity of such ordinance and elects to proceed by curative amendment,
his application to the Borough Council shall contain, in addition
to the requirements of the written request hereof, the plans and explanatory
materials describing the use or development proposed by the landowner
in lieu of the use or development permitted by the challenged ordinance
or map. Such plans or other materials shall not be required to meet
the standards prescribed for preliminary, tentative or final approval
or for the issuance of a permit, so long as they provide reasonable
notice of the proposed use or development and a sufficient basis for
evaluating the challenged ordinance or map in light thereof. Nothing
herein shall preclude the landowner from first seeking a final approval
before submitting his challenge.
(2)
If the submission is made by the landowner to the Borough Council under Subsection A(2) hereof, the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
(3)
If the submission is made to the Borough Council, the Municipal
Solicitor shall represent and advise it at the hearing or hearings.
(4)
The Borough Council may retain an independent attorney to present
the defense of the challenged ordinance or map on its behalf and to
present its witnesses on its behalf.
(5)
Based upon the testimony presented at the hearing or hearings,
the Borough Council or the Zoning Hearing Board, as the case may be,
shall determine whether the challenged ordinance or map is defective,
as alleged by the landowner. If a challenge heard by the Borough Council
is found to have merit, the Borough Council may accept a landowner's
curative amendment, with or without revision, or may adopt an alternative
amendment which will cure the challenged defects. If a challenge heard
by the Zoning Hearing Board is found to have merit, the decision of
the Zoning Hearing Board shall include recommended amendments to the
challenged ordinance which will cure the defects found. In reaching
its decision, the Zoning Hearing Board or the Borough Council, as
the case may be, shall consider the amendments, plans and explanatory
material submitted by the landowner and shall also consider the following:
(a)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities.
(b)
If the proposal is for a residential use, the impact of the
proposal upon regional housing needs and 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, woodlands, wetlands, floodplains, aquifers,
natural resources and other natural features.
(d)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(6)
The Borough Council or the Zoning Hearing Board, as the case
may be, shall render its decision within 45 days after the conclusion
of the last hearing.
D.
The Zoning Hearing Board or the Borough Council, as the case may
be, shall commence its hearings within 60 days after the request is
filed unless the landowner requests or consents to an extension of
time.
E.
Public notice of the hearing shall include notice that the validity
of the ordinance or map is in question and shall give the place where
and the times when a copy of the request, including any plans, explanatory
material or proposed amendments, may be examined by the public.
F.
The challenge shall be deemed denied when:
(1)
The Zoning Hearing Board or the Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in Subsection D.
(2)
The Borough Council notifies the landowner that it will not
adopt the curative amendment.
(3)
The Borough Council adopts another curative amendment which
is unacceptable to the landowner.
(4)
The Zoning Hearing Board or the Borough Council, as the case
may be, fails to act on the request 45 days after the close of the
last hearing on the request, unless the time is extended by mutual
consent by the landowner and municipality.
G.
Where, after the effective date of this chapter, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to § 160-127B(3) of this chapter or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 160-127A(1) of this chapter or the Court acts finally on appeal from denial of a curative amendment proposal or a validity challenge and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval pursuant to Chapter 135, Subdivision and Land Development, or § 160-21 of this chapter. Within the two-year period, no subsequent change or amendment in the zoning, subdivision and land development or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision and land development or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the Court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
H.
If a municipality does not accept a landowner's curative amendment
and a court subsequently rules that the challenge has merit, the court's
decision shall not result in a declaration of invalidity for the entire
zoning ordinance and map, but only for those provisions which specifically
relate to the landowner's curative amendment and challenge.
Appeals from a decision of the Code Enforcement Officer and
proceedings to challenge the validity of the ordinance may be filed
with the Board, in writing, by any officer or agency of the Borough
or any person aggrieved. Requests for a variance or special exception,
however, must be filed with the Board by any landowner or any authorized
agent of such landowner.
A.
The Board shall conduct hearings on any interpretation, variance,
special exception, challenge or other matter requiring the Board's
decision or other official action.
B.
Upon filing with the Zoning Hearing Board of an appeal or application,
the Board shall fix a reasonable time and place for a public hearing
thereon and give notice as follows:
(1)
It shall publish public notice in accordance with the definition of "public notice" in § 160-13.
(2)
It shall post, in a conspicuous place on the property involved,
a notice of pending action; such posting is to take place at least
seven days prior to the public hearing.
(3)
The Borough Council may prescribe reasonable fees by resolution
with respect to hearings. Fees for said hearings may include compensation
for the Secretary and members of the Zoning Hearing Board, notice
and advertising costs and necessary administrative overhead connected
with the hearing. The costs, however, shall not include legal expenses
of the Zoning Hearing Board, expenses for engineering, architectural
or other technical consultants or expert witness costs.
(4)
The 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.
(5)
The hearings shall be conducted by the Zoning Hearing Board.
The decision or, where no decision is called for, the findings shall
be made by the Board.
(6)
The parties to the hearing shall be the municipality, any person
affected by the application who has made timely appearance of record
before the Zoning Hearing Board and any other person, including civic
or community organizations permitted to appear by the Zoning Hearing
Board. The Zoning Hearing Board shall have power to require that all
persons who wish to be considered parties enter appearances, in writing,
on forms provided by the Zoning Hearing Board for that purpose.
(7)
The Chairman or Acting Chairman of the Zoning Hearing Board
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.
(8)
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.
(9)
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
(10)
The Zoning Hearing Board shall keep a stenographic record of
the proceedings. The appearance fee for a stenographer shall be shared
equally by the applicant and the Zoning Hearing Board. The cost of
the original transcript shall be paid by the Zoning Hearing Board
if the transcript is ordered by the Zoning Hearing Board or shall
be paid by the person appealing from the decision of the Zoning Hearing
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.
(11)
The Zoning Hearing Board shall not communicate, directly or
indirectly, with any party or his representatives in connection with
any issue involved except upon notice and where all parties have opportunity
to participate. The Zoning Hearing Board shall not take notice of
any communication, report, 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.
(12)
The Zoning Hearing Board shall render a written decision or, where no decision is called for, make written findings on the application within 45 days after the last hearing before the Zoning Hearing Board. 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 the provisions of any act of the commonwealth or any ordinance, rule or regulation shall contain a reference to the provision relied upon and the reasons why the conclusion is deemed appropriate in light of the facts found. Where the Zoning Hearing Board fails to render its decision within 45 days or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, 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 Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing Board shall give public notice of 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 B(1) of this section. If the Zoning Hearing 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.
(13)
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 Zoning
Hearing Board not later than the last day of the hearing, the Zoning
Hearing 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 Board shall prescribe rules for the conduct of its meetings,
such rules to be in conformance with the Pennsylvania Municipalities
Planning Code[1] and this chapter. Meetings shall be held at the call of
the Chairman and at such other times as the Board may specify in its
rules of procedure. Meetings shall be open to the public, and a quorum
of three members shall be required for the Board to take action.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
The Board 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.
B.
The Board shall keep full public records of its business and shall
submit a report of its activities to the Borough Council or to the
Mayor once a year.
C.
The Board 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.
Any person aggrieved by any decision of the Zoning Hearing Board may, within 30 days after such decision of the Board, appeal to the Court of Common Pleas of Bucks County, Pennsylvania, by petition duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law and specify the grounds on which he relies. Such appeals shall be made in accordance with Article IX of the Pennsylvania Municipalities Planning Code[1] (Act 247 of 1968, as amended).
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
In cases where the decision of the Zoning Hearing Board requires
issuance of a zoning permit by the Code Enforcement Officer prior
to construction or occupancy, application for such permit shall be
made not later than six months following the date of the affirmative
decision by the Zoning Hearing Board.
