[Ord. 1973-8, 5/23/1973, § 701; as amended by Ord.
1995-2, 3/14/1995]
1.
Appointment and Powers of Zoning Officer.
A.
For the administration of this Chapter, a Zoning Officer, who shall
not hold any elective office in the Borough, shall be appointed.
B.
The Zoning Officer shall meet the qualifications established by the
Borough and shall be able to demonstrate to the satisfaction of the
Borough a working knowledge of municipal zoning.
C.
The Zoning Officer shall administer this Chapter in accordance with
its literal terms, and shall not have the power to permit any construction
or any use or change of use which does not conform to this Chapter.
D.
The Zoning Officer is hereby authorized to institute civil enforcement
proceedings as a means of enforcement when acting within the scope
of his employment.
2.
Deputy. The Zoning Officer may designate an employee of the Borough
as his Deputy who shall exercise all the powers of the Zoning Officer
during the temporary absence or disability of the Zoning Officer.
3.
Compensation. The compensation for the Zoning Officer and the Deputy
Zoning Officer shall be determined by the Borough Council.
4.
Duties and Responsibilities. The Zoning Officer shall have all the
duties and powers conferred by this Chapter in addition to those reasonably
implied for that purpose. He shall not issue a permit in connection
with any contemplated erection, construction, alteration, repair,
extension, replacement and/or use of any building, structure, sign
and/or land unless it first conforms with the requirements of this
Chapter, all other ordinances of the Borough, and with the laws of
the Commonwealth of Pennsylvania. He shall:
A.
Receive applications, process the same, and issue permits for the
erection, construction, alteration, repair extension, replacement,
and/or use of any building, structure, sign, and/or land in the Borough.
B.
At his discretion, examine or cause to be examined, all buildings,
structures, signs, and/or land or portions thereof, for which an application
has been filed for the erection, construction, alteration, repair,
extension, replacement, and/or use before issuing any permit. Thereafter,
he may make such inspections during the completion of work for which
a permit has been issued. Upon completion of the building, structure,
sign, and/or change, a final inspection shall be made and all violations
of approved plans or permits shall be noted and the holder of the
permit shall be notified of the discrepancies.
C.
Keep a record of all applications received, all permits and certificates
issued, reports of inspections, notices, and orders issued, and the
complete recording of all pertinent factors involved. He shall file
and safely keep copies of all plans permitted, and the same shall
form a part of the records of his office and shall be available for
the use of the Borough Council and other officials of the Borough
Council. At least annually, he shall submit to the Borough Council
a written statement of all permits and certificates of use and occupancy
issued, and violations and stop work orders recommended or promulgated.
[Ord. 1973-8, 5/23/1973, § 702; as amended by Ord.
1978-6, 3/8/1978; by Ord. 1985-3, 9/25/1985, § 4; and by
Ord. 1995-2, 3/14/1995]
1.
Requirements. It shall be unlawful to commence the excavation for
or the construction or erection of any building or structure, including
an accessory building, or to commence the moving or alteration of
any building or structure, including an accessory building, or to
otherwise commence any construction or alteration and/or development
until the Zoning Officer has issued a building permit for such work;
provided, however, no permit shall be required for construction or
alterations and/or development when the fair market value of such
construction or alteration and/or development is less than $1,500
in all districts specified in § 401 except an I-1 Industrial
District and is less than $25,000 in an I-1 Industrial District and,
provided that said construction or alteration and/or development would
not change the use classification and such construction or alteration
and/or development is not located within any designated floodplain
district. No permit shall be required for repairs or maintenance of
any building, structure or grounds provided such repairs do not change
the use or otherwise violate the provisions of this Chapter.
2.
Form of Application. The application for a permit shall be submitted
in such form as the Zoning Officer may prescribe and shall be accompanied
by the required fee as hereinafter prescribed. Application for a permit
shall be made by the owner or lessee of any building or structure,
or the agent of either; provided, however, that if the application
is made by a person other than the owner or lessee, it shall be accompanied
by a written authorization of the owner or the qualified person making
an application that the proposed work is authorized by this owner.
The full names and addresses of the owner, lessees, applicant, and
of the responsible officers, if the owner or leasee is a corporate
body, shall be stated in the application.
3.
Description of Work. The application shall contain a general description
of the proposed work, use, and occupancy of all parts of the building,
structure, or sign and such additional information as may be required
by the Zoning Officer. The application for the permit shall be accompanied
by a plot plan of the proposed building, structure, or sign drawn
to scale with sufficient clarity to show the nature and character
of the work to be performed, including off-street parking and loading
space if required, the location of new and existing construction,
and the distances of the same from the existing lot lines.
4.
Time Limit for Application. An application for a permit for any proposed
work shall be deemed to have been abandoned six months after the date
of filing, unless such application has been diligently prosecuted
or a permit shall have been issued; except that reasonable extensions
of time for additional periods not exceeding 90 days each may be granted
at the discretion of the Zoning Officer.
5.
Issuance of Permits. Upon receiving the application, the Zoning Officer
shall examine the same within a reasonable time after filing. If the
application or plans do not conform to the provisions of all pertinent
local laws, he shall reject such application in writing, stating the
reasons therefor. He shall inform the applicant of his right of appeal
to the Zoning Hearing Board in the event such application is rejected.
If satisfied that the proposed work and/or use conforms to the provisions
of this Chapter and all laws and ordinances applicable thereto, and
that the certificate of use and occupancy as required herein has been
applied for, he shall be issue a permit therefor as soon as practical.
6.
Expiration of Permit. The permit shall expire after one year from
the date of issuance; provided, however, that the same may be extended
every six months for a period not to exceed an additional one year.
7.
Revocation of Permits. The Zoning Officer may revoke a permit or
approval issued under the provisions of this Chapter in case of any
false statement or misrepresentation of fact in the application or
on the plans on which the permit or approval was based or for any
other cause set forth in this Chapter.
8.
Posting of Permit. A true copy of the permit shall be kept on the
site of operations open to public inspection during the entire time
of prosecution of the work or use and until the completion of the
same as defined on the application.
9.
Temporary Permit. A temporary permit may be authorized by the Zoning
Hearing Board for a nonconforming structure or use which it deems
necessary to promote the proper development of the community, provided
that such nonconforming structure or use shall be completely removed
upon expiration of the permit without cost to the Borough. Such permits
shall be issued for a specified period of time not to exceed one year,
and may be renewed annually for an aggregate period not exceeding
three years.
10.
Payment of Fees. No permit to begin work for the erection, construction,
alteration, repair, extension, replacement, and/or use of any building,
structure, sign and/or land for construction or use purposes shall
be issued until the fees prescribed by the Borough Council pursuant
to resolution shall be paid to the Zoning Officer. The payment of
fees under this Section shall not relieve the applicant or holder
of said permit from payment of other fees that may be required by
this Chapter, or any other ordinance or law.
11.
Compliance with Ordinances. The permit shall be a license to proceed
with the work and should not be construed as authority to violate,
cancel, or set aside any of the provisions of this Chapter, except
as stipulated by the Zoning Hearing Board.
12.
Compliance with Permit and Plot Plan. All work or uses shall conform
to the approved application and plans for which the permit has been
issued as well as the approved plot plan.
13.
Special Requirements; Designated Floodplain District.
A.
If any proposed construction or development is located within or
partially within any designated floodplain district, applicants for
building permits shall also profile the following specific information:
(1)
A plan which details the ground and the lowest floor of the
proposed construction, the one-hundred-year flood elevation, special
reference to the level of floodproofing in relation to the one-hundred-year
flood, and other associated factors requested by the Zoning Officer,
such as storage elevation, size of the structure, location and elevation
of streets, water supply, sanitary facilities and soil types.
(2)
For all new construction and substantial improvements to nonresidential
structures where floodproofing techniques are utilized to comply with
the requirements of this Chapter, a document, certified by a registered
professional engineer or architect, which states that the proposed
construction has been adequately designed to withstand the flood depths,
pressures, velocities, impact and uplift forces and other hydrostatic
and hydrodynamic and buoyancy factors associated with the one-hundred-year
flood. Such statement shall include a description of the type and
extent of floodproofing measures which have been incorporated into
the design of the structure.
B.
A copy of all applications and plans for construction or development
in any designated floodplain district to be considered for approval
shall be submitted by the Borough Zoning Officer to the County Conservation
District for review and comment prior to the issuance of a building
permit. The recommendations of the conservation district shall be
considered by the Borough Zoning Officer for possible incorporation
into the proposed plan.
C.
Prior to the issuance of any building permit the Borough Zoning Officer
shall review the application for permit to determine if all other
necessary governmental permits such as those required by State and
Federal laws have been obtained including those required by Act 537,
the Pennsylvania Sewage Facilities Act, the Pennsylvania Dam Safety
and Encroachments Act, and the Federal Water Pollution Control Act
Amendments of 1972, Section 404, 33 U.S.C. § 1334. No permit
shall be issued until this determination has been made.
D.
For purposes of implementation of these provisions, construction
shall be considered to have started with the first placement of permanent
construction of the site, such as the pouring of slabs or footings
or any work beyond the stage of excavation. For a structure without
a basement or poured footings, the start of construction includes
the first permanent framing or assembly of the structure or any part
thereof on its pilings or foundation, or the affixing of any prefabricated
structure or mobile home to its permanent site. Permanent construction
does not include land preparation, land clearing, grading, filling,
excavation for basement, footings, piers, or foundations, erection
of temporary forms, the installation of piling under proposed subsurface
footings, or the installation of sewer, gas and water pipes, or electric
or other service lines from the street.
14.
Activities Requiring Special Permits.
A.
The provisions of this Section shall be applicable, in addition to
any other applicable provisions of this Chapter, or any other ordinance,
code, or regulations and the provisions hereof shall supersede any
other provisions of this Chapter inconsistent herewith.
B.
Identification of Activities Requiring a Special Permit. In accordance
with the Pennsylvania Floodplain Management Act, Act of October 4,
1978, P.L. 851, No. 166, § 101 et seq., 32 P.S. § 679.101
et seq., as amended, and regulations adopted by the Department of
Community Affairs as required by the said Act, 38 Pa. Code § 38.1
et seq., as amended, the following obstructions and activities are
permitted only by special permit, if located partially or entirely
within any floodplain district:
C.
Application Requirements. Applicants for special permits shall provide
five copies of the following items:
(1)
A written request including a completed building permit application
form.
(2)
A small scale map showing the vicinity in which the proposed
site is located.
(3)
A plan of the entire site, clearly and legibly drawn at a scale
of one inch being equal to 100 feet or less, showing the following:
(a)
North arrow, scale and date.
(b)
Topography based upon the National Geodetic Vertical Datum of
1929, showing existing and proposed contours at intervals of two feet.
(c)
All property and lot lines including dimensions, and the size
of the site expressed in acres or square feet.
(d)
The location of all existing streets, drives, other accessways,
and parking areas, with information concerning widths, pavement types
and construction, and elevations.
(e)
The location of any existing bodies of water or watercourses,
buildings, structures and other public or private facilities, including
railroad tracks and facilities, and any other natural and man-made
features affecting, or affected by, the proposed activity or development.
(f)
The location of the floodplain boundary line, information and
spot elevations concerning the one-hundred-year flood elevations,
and information concerning the flow of water including direction and
velocities.
(g)
The location of all proposed buildings, structures, utilities,
and any other improvements.
(h)
Any other information which the Borough considers necessary
for adequate review of the application.
(4)
Plans of all proposed buildings, structures and other improvements,
clearly and legibly drawn at suitable scale showing the following:
(a)
Sufficiently detailed architectural or engineering drawings
including floor plans, sections, and exterior building elevations,
as appropriate.
(b)
For any proposed building, the elevation of the lowest floor
(including basement) and, as required, the elevation of any other
floor.
(c)
Complete information concerning flood depths, pressures, velocities,
impact and uplift forces and other factors associated with the one-hundred-year
flood.
(d)
Detailed information concerning any proposed flood-proofing
measures.
(e)
Cross-section drawings for all proposed streets, drives, other
accessways, and parking areas, showing all rights-of-way and pavement
widths.
(f)
Profile drawings for all proposed streets, drives and vehicular
accessways including existing and proposed grades.
(g)
Plans and profiles of all proposed sanitary and storm sewer
systems, water supply systems, and any other utilities and facilities.
(5)
The following data and documentation:
(a)
Certification from the applicant that the site upon which the
activity or development is proposed is an existing separate and single
parcel, owned by the applicant or the client he represents:
(b)
Certification from a registered professional engineer, architect,
or landscape architect that the proposed construction has been adequately
designed to protect against damage from the one-hundred-year flood.
(c)
A statement, certified by a registered professional engineer,
architect, landscape architect, or other qualified person which contains
a complete and accurate description of the nature and extent of pollution
that might possibly occur from the development during the course of
a one-hundred-year flood, including a statement concerning the effects
such pollution may have on human life.
(d)
A statement, certified by a registered professional engineer,
architect, or landscape architect, which contains a complete and accurate
description of the effects the proposed development will have on one-hundred-year
flood elevations and flows.
(e)
A statement, certified by a registered professional engineer,
architect, or landscape architect, which contains a complete and accurate
description of the kinds and amounts of any loose buoyant materials
or debris that may possibly exist or be located on the site below
the one-hundred-year flood elevation and the effects such materials
and debris may have on one-hundred-year flood elevations and flows.
(f)
The appropriate component of the Department of Environmental
Resources "Planning Module for Land Development," as amended, or any
successor thereto.
(g)
Where any excavation or grading is proposed, a plan meeting
the requirements of the Department of Environmental Resources to implement
and maintain erosion and sedimentation control.
(h)
Any other applicable permits such as, but not limited to, a
permit for any activity regulated by the Department of Environmental
Resources under Section 302 of said Floodplain Management Act, 32
P.S. § 679.302, as amended.
(i)
An evacuation plan which fully explains the manner in which
the site will be safely evacuated before or during the course of a
one-hundred-year flood.
D.
Application Review Procedures. Upon receipt of an application for
a special permit by the Borough, the following procedures shall apply
in addition to all other applicable permit procedures which are already
established.
(1)
Within three working days following receipt of an application
meeting all of the requirements for an application for a special permit,
a complete copy of the application and all accompanying documentation
shall be forwarded to the County Planning Commission by registered
or certified mail for its review and recommendation. Copies of the
application shall also be forwarded to the Borough Planning Commission
and Borough Engineer for review and comment.
(2)
If an application is received that is incomplete, the Borough
shall notify the applicant, in writing, stating in what respects the
application is deficient.
(3)
If the Borough decides to disapprove an application, it shall
notify the applicant, in writing, of the reasons for the disapproval.
(4)
If the Borough approves an application, it shall file written
notification, together with the application and all pertinent information,
with the Department of Community Affairs, by registered or certified
mail, within five working days after the date of the approval.
(5)
Before issuing the special permit, the Borough shall allow the
Department of Community Affairs 30 days after receipt of the notification
by the Department to review the application and the decision made
by the Borough.
(6)
If the Borough does not receive any communication from the Department
of Community Affairs, during the thirty-day review period, it may
issue a special permit to the applicant.
(7)
If the Department of Community Affairs should decide to disapprove
an application, it shall notify the Borough and the applicant, in
writing, of the reasons for the disapproval, and the Borough shall
not issue the special permit.
E.
Technical Requirements for Development Requiring a Special Permit.
In addition to any other applicable requirements, the following provisions
shall also apply to the activities requiring a special permit. If
there is any conflict between any of the following requirements and
any otherwise applicable provisions, the more restrictive provision
shall apply.
(1)
No application for a special permit shall be approved unless
it can be determined that the structure or activity will be located,
constructed and maintained in a manner which will:
(a)
Fully protect the health and safety
of the general public and any occupants of the structure. At a minimum,
all new structures shall be designed, located and constructed so that:
1)
The structure will survive the inundation by waters of the 100
years flood without any lateral movement or damage to either the structure
itself, or to any of its equipment or contents below the one-hundred-year
flood elevation.
2)
The lowest floor elevation (including basement) will be at least
1 1/2 feet above the one-hundred-year flood elevation.
3)
The occupants of the structure can remain inside for an indefinite
period of time and be safely evacuated at any time during the one-hundred-year
flood.
(b)
Prevent any significant possibility of pollution, increased
flood levels or flows, or debris endangering life and property.
(2)
All hydrologic and hydraulic analyses shall be undertaken only
by professional engineers or others of demonstrated qualifications,
who shall certify that the technical methods used correctly reflect
currently accepted technical concepts. Studies, analysis, computations,
etc., shall be submitted in sufficient detail to allow a thorough
technical review by the Borough and the Department of Community Affairs.
F.
Except for possible modification of the freeboard requirements involved,
no variance shall be granted for any of the other requirements of
this Section.
G.
Freeboard requirements may only be modified pursuant to the provisions
of § 506.6F of this Chapter.
[Ord. 1973-8, 5/23/1973, § 703]
1.
It shall be unlawful to use and/or occupy any structure, building,
sign, and/or land or portion thereof for which a permit is required
herein until a certificate of use and occupancy for such structure,
building, sign, and/or land or portion thereof has been issued by
the Zoning Officer. The application for issuance of a certificate
of use and occupancy shall be made at the same time an application
for a permit is filed with the Zoning Officer as required herein.
2.
The application for a certificate of use and occupancy shall be in
such form as the Zoning Officer may prescribe and may be made on the
same application as is required for a permit.
3.
The application shall contain the intended use and/or occupancy of
any structure, building, sign, and/or land or portion thereof, for
which a permit is required herein.
4.
The Zoning Officer shall inspect any structure, building, or sign
within 10 days upon notification that the proposed work that was listed
under the permit has been completed and, if satisfied that the work
is in conformity and compliance with the work listed in the issued
permit and all other pertinent laws, he shall issue a certificate
of use and occupancy for the intended use listed in the original application.
5.
The certificate of use and occupancy or a true copy thereof shall
be kept available for official inspection at all times.
6.
Upon request of a holder of a permit, the Zoning Officer may issue
a temporary certificate of use and occupancy for a structure, building,
sign, and/or land, or portion thereof, before the entire work covered
by the permit shall have been completed, provided such portion or
portions may be used and/or occupied safely prior to full completion
of the work without endangering life or public welfare. The Zoning
Officer shall also issue a temporary certificate of use and occupancy
for such temporary uses as tents, use of land for religious or other
public or semipublic purposes and similar temporary use and/or occupancy.
Such temporary certificates shall be for the period of time to be
determined by the Zoning Officer, however, in no case for a period
exceeding six months.
[Ord. 1973-8, 5/23/1973, § 704; as amended by Ord.
1995-2, 3/14/1995]
1.
Enforcement Notice.
A.
If it appears to the Borough that a violation of this Chapter has
occurred, the Borough shall initiate enforcement proceedings by sending
an enforcement notice as provided in this Section.
B.
The enforcement notice shall be sent to the owner of record of the
parcel on which the violation has occurred, to any person who has
filed a written request to receive enforcement notices regarding that
parcel, and to any other person requested in writing by the owner
of record.
C.
An enforcement notice shall state at least the following:
(1)
The name of the owner of record and any other person against
whom the Borough intends to take action.
(2)
The location of the property in violation.
(3)
The specific violation with a description of the requirements
which have not been met, citing in each instance the applicable provisions
of this Chapter.
(4)
The date before which the steps for compliance must be commenced
and the date before which the steps must be completed.
(5)
That the recipient of the notice has the right to appeal to
the Zoning Hearing Board within a period of 10 days.
(6)
That failure to comply with the notice within the time specified,
unless extended by appeal to the Zoning Hearing Board, constitutes
a violation, with possible sanctions clearly described.
2.
Causes of Action. In case any building, structure, landscaping or
land is, or is proposed to be, erected, constructed, reconstructed,
altered, converted, maintained or used in violation of this Chapter,
the Borough Council or, with the approval of the Borough Council,
an officer of the Borough, or any aggrieved owner or tenant of real
property who shows that his property or person will be substantially
affected by the alleged violation, in addition to other remedies,
may institute any appropriate action or proceeding to prevent, restrain,
correct or abate such building, structure, landscaping or land, or
to prevent, in or about such premises, any act, conduct, business
or use constituting a violation. When any such action is instituted
by a landowner or tenant, notice of that action shall be served upon
the Borough at least 30 days prior to the time the action is begun
by serving a copy of the complaint on the Borough Council. No such
action may be maintained until such notice has been given.
3.
Enforcement Remedies.
A.
Any person, partnership or corporation who or which has violated
or permitted the violation of the provisions of this Chapter shall,
upon being found liable therefor in a civil enforcement proceeding
commenced by the Borough, pay a judgment of not more than $500 plus
all court costs, including reasonable attorney fees incurred by the
Borough as a result thereof. No judgment shall commence or be imposed,
levied or payable until the date of the determination of a violation
by the district justice. If the defendant neither pays nor timely
appeals the judgment, the Borough may enforce the judgment pursuant
to the applicable rules of civil procedure. Each day that a violation
continues shall constitute a separate violation, unless the district
justice determining that there has been a violation further determines
that there was a good faith basis for the person, partnership or corporation
violating this Chapter to have believed that there was no such violation,
in which event there shall be deemed to have been only one such violation
until the fifth day following the date of the determination of a violation
by the district justice and thereafter each day that a violation continues
shall constitute a separate violation.
B.
The court of common pleas, upon petition, may grant an order of stay,
upon cause shown, tolling the per diem fine pending a final adjudication
of the violation and judgment.
C.
Nothing contained in this Section shall be construed or interpreted
to grant to any person or entity other than the Borough the right
to commence any action for enforcement pursuant to this Section.
D.
District justices shall have initial jurisdiction over proceedings
brought under this Section.
[Ord. 1973-8, 5/23/1973, § 705; as amended by Ord.
1980-10, 12/30/1980, § 1; and by Ord. 1995-2, 3/14/1995]
1.
Zoning Hearing Board.
A.
There is hereby created for the Borough a Zoning Hearing Board in
accordance with the provisions of Article IX of the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10901 et seq.
B.
The membership of the Board shall consist of three residents of the
Borough appointed by resolution by the Borough Council. The terms
of office shall be for 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 in the
Borough.
C.
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.
D.
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 this Chapter.
E.
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, which records
shall be the property of the Borough and shall submit a report of
its activities to the Borough Council as requested by the Borough
Council.
F.
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,
as may be fixed by the Borough Council, but in no case shall it exceed
the rate of compensation authorized to be paid to the members of the
Borough Council.
2.
Hearings. The Zoning Hearing Board shall conduct hearings and made
decisions in accordance with the following requirements:
A.
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.
B.
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.
C.
The 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, 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.
D.
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.
E.
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.
F.
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.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
H.
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. The appearance fee, including
mileage, 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.
I.
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 their
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.
J.
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.
Where the Board fails to render the decision within the period required
by this subsection, 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 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
(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.
K.
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.
L.
The Borough Council shall establish, by resolution, fees with respect
to hearings before the Zoning Hearing Board.
3.
Jurisdiction.
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 §§ 609.1
and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (hereinafter
"MPC"), 53 P.S. §§ 10609.1, 10916.1.
(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. Where the ordinance appealed
from is the initial zoning ordinance of the Borough and a Zoning Hearing
Board has not been previously established, the appeal raising procedural
questions shall be taken directly to court.
(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 therefor, 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 the Borough Engineer or the
Zoning Officer with reference to the administration of any floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
(5)
Applications for variances from the terms of this Chapter and
flood hazard ordinance or such provisions within a land use ordinance,
pursuant to § 910.2 of the MPC, 53 P.S. § 10910.2.
(6)
Applications for special exceptions under this Chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to § 912.1 of the MPC, 53 P.S. § 10912.1.
(7)
Appeals from the determination of any officer or agency charged
with the administration of any transfers of development rights or
performance density provisions of this Chapter.
(8)
Appeals from the Zoning Officer's determination under § 916.2
of the MPC, 53 P.S. § 10916.2.
(9)
Appeals from the determination of the Zoning Officer or Borough
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and storm
water management insofar as the same relate to development not involving
applications under Article V or VII of the MPC, 53 P.S. §§ 10501
et seq., 10701 et seq.
B.
The Borough Council, shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments
under Article VII of the MPC pursuant to the provisions of § 702
of the MPC, 53 P.S. § 10702.
(2)
All applications pursuant to § 508 of the MPC, 53
P.S. § 10508, for approval of subdivisions or land developments
under Article V of the MPC, 53 P.S. § 10501 et seq.
(3)
Applications for conditional use under the express provisions
of this Chapter.
(4)
Applications for curative amendment to this Chapter or pursuant
to §§ 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1,
10916.1(a).
(5)
All petitions for amendments to land use ordinances, pursuant
to the procedures set forth in § 609 of the MPC, 53 P.S.
§ 10609.
(6)
Appeals from the determination of the Zoning Officer or the
Borough Engineer in the administration of any land use ordinance or
provisions thereof with reference to sedimentation and erosion control
and storm water management insofar as the same relate to applications
for land development under Articles V and VII of the MPC, 53 P.S.
§§ 10501 et seq., 10701 et seq. Where such determination
relates only to development not involving an Article V or VII application,
the appeal from such determination of the Zoning Officer or the Borough
Engineer shall be to the Zoning Hearing Board pursuant to this Section.
Where the applicable land use ordinance vests jurisdiction for final
administration of subdivision and land development applications in
the Planning Commission, all appeals from determinations under this
subsection shall be to the Planning Commission and all appeals from
the decision of the Planning Commission shall be to court.
[Ord. 1973-8, 5/23/1973, § 706; as amended by Ord.
1995-2, 3/14/1995]
1.
Enactment of Zoning Ordinance Amendments.
A.
The Borough Council may from time to time amend, supplement, or repeal
any of the regulations and provisions of this Chapter. The procedure
for the preparation of a proposed zoning ordinance as set forth in
§ 607 of the Pennsylvania Municipalities Planning Code,
53 P.S. § 10607, is hereby declared optional.
B.
Before voting on the enactment of an amendment, the Borough Council
shall hold a public hearing thereon, pursuant to public notice. In
addition, if the proposed amendment involves a zoning map change,
notice of said public hearing shall be conspicuously posted by the
Borough at points deemed sufficient by the Borough along the perimeter
of the tract to notify potentially interested citizens. The affected
tract or area shall be posted at least one week prior to the date
of the hearing.
C.
In the case of an amendment other than that prepared by the Planning
Commission the Borough Council shall submit each such amendment to
the Planning Commission at least 30 days prior to the hearing on such
proposed amendment to provide the Planning Commission an opportunity
to submit recommendations.
D.
If, after any public hearing held upon an amendment, the proposed
amendment is changed substantially, or is revised, to include land
previously not affected by it, the Borough Council shall hold another
public hearing, pursuant to public notice, before proceeding to vote
on the amendment.
E.
At least 30 days prior to the public hearing on the amendment by
the Borough Council, the Borough shall submit the proposed amendment
to the county planning agency for recommendations.
F.
Within 30 days after enactment, a copy of the amendment to this Chapter
shall be forwarded to the county planning agency.
2.
Procedure for Landowner Curative Amendments.
A.
A landowner who desires to challenge on substantive grounds the validity
of this Chapter or the Zoning Map or any provision thereof, which
prohibits or restricts the use or development of land in which he
has an interest may submit a curative amendment to the Borough Council
with a written request that his challenge and proposed amendment be
heard and decided as provided in § 916.1 of the Pennsylvania
Municipalities Planning Code (hereinafter "MPC"), 53 P.S. § 10916.1.
The curative amendment and challenge shall be referred to the Planning
Commission and the county planning agency as provided in § 609
and notice of the hearing thereon shall be given as provided in §§ 610
and 916.1 of the MPC, 53 P.S. §§ 10609, 10610, and
10916.1.
B.
The hearing shall be conducted in accordance with § 908
of the MPC, 53 P.S. § 10908, and all references therein
to the Zoning Hearing Board shall, for purposes of this Section be
references to the Borough Council. If the Borough does not accept
a landowner's curative amendment brought in accordance with this
subsection and a court subsequently rules that the challenge has merit,
the court's decision shall not result in a declaration of invalidity
for this entire Chapter and Zoning Map, but only for those provisions
which specifically relate to the landowner's curative amendment
and challenge.
C.
The Borough Council, if it determines that a validity challenge has
merit, may accept a landowner's curative amendment, with or without
revision, or may adopt an alternative amendment which will cure the
challenged defects. The Borough Council shall consider the curative
amendments, plans and explanatory material submitted by the landowner
and shall also consider:
(1)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities.
(2)
If the proposal is for a 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 this Chapter or Zoning Map.
(3)
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.
(4)
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources and natural features,
the degree to which these are protected or destroyed, the tolerance
of the resources to development and any adverse environmental impacts.
(5)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
3.
Procedure for Borough Curative Amendments.
A.
If the Borough determines that this Chapter, or any portion hereof,
is substantially invalid, it shall take the following actions:
(1)
The Borough shall declare by formal action, this Chapter or
portions hereof substantially invalid and propose to prepare a curative
amendment to overcome such invalidity. Within 30 days such declaration
and proposal the Borough Council shall:
(a)
By resolution make specific findings setting forth the declared
invalidity of this Chapter which may include:
(b)
References to specific uses which are either not permitted or
not permitted in sufficient quantity;
(c)
Reference to a class of use or uses which requires revision;
or
(d)
Reference to this entire Chapter which requires revisions.
(2)
Begin to prepare and consider a curative amendment to this Chapter
to correct the declared invalidity.
B.
Within 180 days from the date of the declaration and proposal, the
Borough shall enact a curative amendment to validate, or reaffirm
the validity of, this Chapter pursuant to the provisions of § 609
of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"),
53 P.S. § 10609, in order to cure the declared invalidity
of this Chapter.
C.
Upon the initiation of the procedures as set forth in subsection
(1), the Borough Council shall not be required to entertain or consider
any landowner's curative amendment filed under § 609.1
of the MPC, 53 P.S. § 10609.1, nor shall the Zoning Hearing
Board be required to give a report requested under §§ 909.1
or 916.1 of the MPC, 53 P.S. §§ 10909.1, 10916.1, subsequent
to the declaration and proposal based upon the grounds identical or
substantially similar to those specified by the resolution required
by subsection (1)(A). Upon completion of the procedures set forth
in subsections (1) and (2), no rights to a cure pursuant to the provisions
of §§ 609.1 and 916.1 of the MPC, 53 P.S. §§ 10609.1,
10916.1, shall, from the date of the declaration and proposal, accrue
to any landowner on the basis of the substantive invalidity of this
Chapter for which there has been a curative amendment pursuant to
this Section.
D.
The Borough, having utilized the procedures set forth in this Section,
may not again utilize said procedure for a period of 36 months following
the date of enactment of a curative amendment, or reaffirmation of
the validity of this Chapter; provided, however, if after the date
of declaration and proposal there is a substantially new duty imposed
upon the Borough by virtue of a change in statute or by virtue of
a Pennsylvania Appellate Court decision, the Borough may utilize the
provisions of this Section to propose a curative amendment to this
Chapter to fulfill said duty or obligation.
[Ord. 1973-8, 5/23/1973, § 707; as amended by Ord.
1980-10, 12/30/1980, § 1; and by Ord. 1995-2, 3/14/1995]
The following guidelines and procedures are hereby established
as regards an application for conditional use pursuant to this Chapter.
1.
An application for conditional use shall be submitted to the Borough
Council, together with a reasonable fee prescribed by Borough Council
by resolution, and of necessity must contain the following information:
A.
The name and address of the applicant.
B.
The name and address of the owner of the real estate to be affected
by said conditional use.
C.
A brief description of the location of the real estate to be affected
by the proposed conditional use including, but not limited to, the
street address, Mifflin County Deed Book number and page and the Mifflin
County Tax Map Number.
D.
A statement of the present zoning classification of the real estate
in question, the improvements thereon and the present use thereof.
E.
A statement of the Section or provision of this Chapter under which
the conditional use may be allowed and the reasons why the applicant
contends that it should be granted.
2.
If Borough Council desires, in its discretion, the applicant shall,
upon written request of said Council, file a plan for the proposed
use. Such plan shall indicate the location and specification of all
structures, parking areas, vehicle access routes, open spaces, landscaping
and storm drainage and sanitary sewer facilities, if applicable. Additionally,
the plan shall indicate property lines and abutting landowners. Finally,
said plan shall contain any other information which Borough Council,
at its discretion, may require in order to properly review and consider
the application for conditional use. If such a plan is requested,
final decision on said application may, in Borough Council's
sole discretion, be postponed pending receipt thereof.
3.
After receipt of the application for conditional use, Borough Council
shall present it and any accompanying information to the Borough Planning
Commission for review and recommendations at least 30 days prior to
a public hearing of said review, together with any recommendations,
shall be given to Borough Council within 30 days from the date of
said referral. If the Borough Planning Commission shall fail to file
such a report within the time and manner specified, it shall be conclusively
presumed that the Planning Commission has approved the proposed conditional
use.
4.
Upon receiving an application, Borough Council shall fix a reasonable
time and place for and hold a hearing thereon in accordance with the
requirements for a hearing before the Zoning Hearing Board in accordance
with § 705.1 hereof.
5.
Borough Council 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 Council, and shall notify the
applicant in writing of the decision or findings within 45 days following
the signing of said written decision or findings. Depositing said
written decision or findings in the U.S. Mail or personally delivering
said written decision or findings shall be considered sufficient notice.
6.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
7.
Borough Council 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.
8.
The time periods of §§ 707.3, 707.4 and 707.5 shall
be considered to be directory as opposed to mandatory, and failure
to act within such time periods shall not be construed as acquiescence
nor as a decision in favor of applicant.
[Ord. 1973-8, 5/23/1973, as added by Ord. 1995-2, 3/14/1995]
1.
The Zoning Hearing 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 all of the
following findings are made where relevant in a given case:
A.
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.
B.
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.
C.
That such unnecessary hardship has not been created by the applicant.
D.
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.
E.
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.
2.
In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this Chapter and the Pennsylvania Municipalities Planning Code,
53 P.S. § 10101 et seq.
[Ord. 1973-8, 5/23/1973; as added by Ord. 1995-2, 3/14/1995]
The Board shall hear and decide requests for special exceptions
in accordance with express standards and criteria where this Chapter
states special exceptions to be granted or denied pursuant to express
standards and criteria. In granting a special exception, the board
may attach such reasonable conditions and safeguards, in addition
to those expressed in this Chapter, as it may deem necessary to implement
the purposes of the Pennsylvania Municipalities Planning Code and
this Chapter.
[Ord. 1973-8, 5/23/1973; as added by Ord. 1995-2, 3/14/1995]
Where this Chapter states that conditional uses are to be granted
or denied by the Borough Council pursuant to express standards and
criteria, the Borough Council shall hold hearings on and decide requests
for such conditional uses in accordance with such standards and criteria.
In granting a conditional use, the Borough Council may attach such
reasonable conditions and safeguards, in addition to those expressed
in this Chapter, as it may deem necessary to implement the purposes
of the Pennsylvania Municipalities Planning Code and this Chapter.
[Ord. 1973-8, 5/23/1973; as added by Ord. 1995-2, 3/14/1995]
Appeals raising the substantive validity of any land use ordinance
(except those to be brought before the Borough Council pursuant to
the Pennsylvania Municipalities Code, procedural questions or alleged
defects in the process of enactment or adoption of a land use ordinance;
or 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 therefor, the issuance of any cease and desist
order or the registration or refusal to register any nonconforming
use, structure or lot; from a determination by the Borough Engineer
or the Zoning Officer with reference to the administration of any
floodplain or flood hazard ordinance or such provisions within a land
use ordinance; from the determination of any officer or agency charged
with the administration of any transfers of development rights or
performance density provisions of this Chapter; from the determination
of the Zoning Officer or Borough Engineer in the administration of
any land use ordinance or provision thereof with reference to sedimentation
and erosion control and storm water management insofar as the same
relate to development not involving subdivision and land development
or planned residential development may be filed with the Zoning Hearing
Board in writing by the landowner affected, any officer or agency
of the Borough, or any person aggrieved. Requests for a variance and
for special exception may be filed with the Board by any landowner
or any tenant with the permission of such landowner.
[Ord. 1973-8, 5/23/1973, as added by Ord. 1995-2, 3/14/1995]
1.
No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than 30 days after an application for development,
preliminary or final, has been approved by the Borough 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. The failure of anyone
other than the landowner to appeal from an adverse decision on a tentative
plan or from an adverse decision by the Zoning Officer on a challenge
to the validity of this Chapter or an amendment hereto or map or an
amendment thereto shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
2.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
[Ord. 1973-8, 5/23/1978; as added by Ord. 1995-2, 3/14/1995]
1.
Upon filing of any appeal proceeding before the Zoning Hearing Board
and during its pendency before the Board, all land development pursuant
to any challenged ordinance, order or approval of the Zoning Officer
or of any agency or body, and all official action thereunder, shall
be stayed unless the Zoning Officer or any 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 to the Zoning 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 the approval are filed with the Board by persons
other than the applicant, the applicant may petition the court having
jurisdiction of zoning appeals to order such persons to post bond
as a condition to continuing the proceedings before the Board.
2.
After the petition is presented, the court shall hold a hearing to
determine if the filing of the appeal is frivolous. At the hearing,
evidence may be presented on the merits of the case. It shall be the
burden of the applicant for a bond to prove the appeal is frivolous.
After consideration of all evidence presented, if the court determines
that the appeal is frivolous, it shall grant the petition for a bond.
The right to petition the court to order the appellants to post bond
may be waived by the appellee, but such waiver may be revoked by him
if an appeal is taken from a final decision of the court.
3.
The question whether or not such petition should be granted and the
amount of the bond shall be within the sound discretion of the court.
An order denying a petition for bond shall be interlocutory. An order
directing the responding party to post a bond shall be interlocutory.
4.
If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal
to post a bond and the appellate court sustains the order of the court
below to post a bond, the respondent to the petition for a bond, upon
motion of the petitioner and after hearing in the court having jurisdiction
of zoning appeals, shall be liable for all reasonable costs, expenses
and attorney fees incurred by the petitioner.
[Ord. 1973-8, 5/23/1973, § 708; and by Ord. 1980-10,
12/30/1980, § 1]
If any article, section, subsection, provision, regulation,
limitation, restriction, sentence, clause, phrase, or work in the
Zoning Ordinance is, for any reason, declared to be illegal, unconstitutional
or invalid, by any court of competent jurisdiction, such decision
shall not affect or impair the validity of this Chapter as a whole,
or any other article, section, subsection, provision, regulation,
limitation, restriction, sentence, clause, phrase, word or remaining
portion of this Chapter The Borough Council of the Borough of Burnham,
Mifflin County, Pennsylvania, hereby declares that it would have adopted
the Zoning Ordinance and each article, section, subsection, provision,
regulation, limitation, restriction, sentence, clause, phrase and
word thereof, irrespective of the fact that anyone or more of the
sections, subsections, provisions, regulations, limitations, restrictions,
sentences, clauses, phrases, or words may be declared illegal, unconstitutional
or invalid.
