The membership of the Zoning Hearing Board shall consist of
three residents of Bear Creek Township appointed by the Bear Creek
Township Board of Supervisors by resolution. The terms of office for
Board members shall be 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 Township Board of Supervisors 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 Township, including membership upon the Planning
Commission.
The Township Board of Supervisors may appoint by resolution one resident of Bear Creek Township to serve as an alternate member of the Board. When seated pursuant to the provisions of § 127-155 of this chapter, an alternate 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 proceedings, and shall have all the powers and duties set forth in this chapter and as otherwise provided by law. An alternate shall hold no other office in the Township, including membership on the Planning Commission. An alternate may participate in any proceedings or discussions of the Board, but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member pursuant to § 127-155 of this chapter. The term of office for an alternate member of the Zoning Hearing Board shall be one year.
Any Board member or alternate may be removed for malfeasance,
misfeasance or nonfeasance in office or for any other just cause by
the Township Board of Supervisors. Prior to any vote by the Township
Board of Supervisors, the member shall receive notice 15 days in advance
of the date at which it intends to take such a vote. A hearing before
the Township Board of Supervisors shall be held in connection with
the vote, if the member requests a hearing in writing.
A.
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. The Board, however, 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 § 127-157. If by any reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate the alternate member of the Board to be seated to establish a quorum. The 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.
B.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of Bear Creek Township and laws of the
commonwealth. The Board shall keep full public records of its business,
which records shall be the property of the Township, and shall submit
an annual report of its activities to the Township Board of Supervisors.
Within the limits of appropriated funds, the Board may employ
or contract for secretaries, clerks, legal counsel, consultants, and
technical services which they may deem necessary to augment the Board
in the performance of their duties.
The Zoning Hearing Board shall conduct hearings and render decisions
in accordance with the following:
A.
Notice of hearings before the Board shall be by public notice; a
notice published once a week for two successive weeks in a newspaper
of general circulation in the Township. Such notice shall state the
time and place of the hearing and the particular nature of matters
to be considered at the hearing by the Board. The first publication
shall not be more than 30 days and the second publication shall not
be less than seven days from the date of the hearing.
B.
Written notice.
(1)
Written notice of all hearings before the Board shall be conspicuously
posted on the affected property not less than one week prior to the
hearing.
(2)
Written notice of all hearings before the Board shall be conspicuously
posted on the affected property by the owner at least one week prior
to the hearing. The owner shall provide the Hearing Board with a notarized
affidavit of posting.
(3)
Written notice shall be given to the following parties:
(a)
The Zoning Officer.
(b)
The applicant.
(c)
The owner of record of the subject property before the Board,
if different than that of the applicant.
(d)
The owner of record of any property which has an adjoining or
contiguous property boundary with the subject property before the
Board. An adjoining or contiguous property boundary shall be deemed
to also include such properties which have any amount of opposite
front, rear or side yard areas, including those properties that are
separated from the subject property before the Board by a public or
private street, road, alley and/or similar right-of-way. In cases
of a corner property subject to a hearing before the Board, in addition
to the owners of record with an adjoining or contiguous property boundary,
notice shall also be given to any owner of record of any property
which has frontage along the intersection of the public or private
streets or roads in question.
(e)
Any party or person who has submitted a written request to receive
notification on the subject property.
(4)
The applicant shall be responsible for providing the Zoning
Hearing Board with the names and addresses of the true and correct
owners of record based upon the records contained in the Luzerne County
Tax Assessor's Office. While it shall be the intent of the Bear Creek
Township Zoning Hearing Board to provide written notice to property
owners which have a common side yard, rear yard or opposite frontage
to the subject property before the Board, failure to do so shall not
represent a basis for appeal or otherwise invalidate a decision and/or
finding of the Zoning Hearing Board.
C.
The Township Board of Supervisors may prescribe reasonable fees with
respect to hearings before the Board. Fees for said hearings may include
compensation for the secretary, and if applicable, 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 Board or expenses for engineering, architectural
or other technical consultants or expert witnesses.
D.
The first hearing shall be held within 60 days from the applicant's
request, unless the applicant has agreed in writing to an extension
of time. The sixty-day time period shall not commence until the applicant
has submitted a properly completed application, with all required
signatures, supporting information, the names and mailing addresses
of parties to receive notice of the hearing, and all required fees.
Each subsequent hearing shall be held within 45 days of the prior
hearing, unless otherwise agreed to by the applicant in writing or
on the record. An applicant shall complete the presentation of his
case-in-chief within 100 days of the first hearing. Upon the request
of the applicant, the Zoning Hearing Board or Hearing Officer shall
assure that the applicant receives at least seven hours of hearings
within the 100 days, including the first hearing. Persons opposed
to the application shall complete the presentation of their opposition
to the application within 100 days of the first hearing held after
the completion of the applicant's case-in-chief. An applicant may,
upon request, be granted additional hearings to complete his case-in-chief,
provided the persons opposed to the application are granted an equal
number of hearings. Persons opposed to the application may, upon written
consent or consent on the record by the applicant and municipality,
be granted additional hearings to complete their opposition to the
application provided the applicant is granted an equal number of additional
hearings for rebuttal.
E.
Hearings shall be conducted by the Board, or the Board may appoint
any member or an independent attorney as a hearing officer. The decision,
or where no decision is called for, the findings shall be made by
the Board, unless the appellant or applicant, as the case may be,
in addition to the Township, agree to waive any decision or findings
by the Board and accept the decision or findings of the hearing officer
as final. If the decision or findings of the hearing officer are to
be accepted as final, all parties to the hearing must agree to such
stipulation at the outset of the hearing.
F.
The parties to the hearing shall be the Township, any person affected
by the application who has made a 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 to the hearing
enter appearances in writing on forms provided by the Board for such
purpose.
G.
The presiding Chairman or acting Chairman of the Board or hearing
officer shall have the power to administer oaths and issue subpoenas
to compel attendance of witnesses and the production of relevant documents
and papers, including witnesses and documents requested by parties
to the hearing.
H.
The parties to the hearing shall have the right to be represented
by legal counsel and shall be afforded the opportunity to respond
and present evidence and arguments and to cross-examine adverse witnesses
on all relevant issues.
I.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
J.
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. The appearance fee for a
stenographer shall be shared equally by the applicant and the Board.
The cost of the original transcript shall be paid by the Board if
the transcript is ordered by the Board or hearing officer, or shall
be paid by the person appealing from the decision of the Board, if
such appeal is made and in the event the cost of additional copies
shall be paid by the person requesting such copies. In other cases,
the party requesting the original transcript shall bear the cost thereof.
K.
The Board, collectively or individually, or the hearing officer,
shall not communicate directly or indirectly with any party or his
representatives in connection with any issue before the Board involved
except upon notice and opportunity for all parties to participate,
shall not take notice of any communication, reports, staff memoranda,
or other materials, except advice from its solicitor, unless all 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.
L.
The Board or the hearing officer, as the case may be, shall render a written decision or, if no decision is called for, provide written findings on the application within 45 days after the last hearing before the Board or hearing officer. If 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 the Zoning Ordinance or any other ordinance, rule or regulation, shall contain a reference to the provisions relied upon and the reasons why the conclusion is deemed appropriate in 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 of record within 45 days. The parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, with the Board's decision entered no later than 30 days after the report of the hearing officer. If the Board fails to commence, conduct or complete the required hearing as provided for under Subsection D, 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. If 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 said decision within 10 days from the last day it could have met to render a decision in the same manner as provided under Subsection A and written notice of the decision shall be mailed to those parties identified under Subsection B. If the Board fails to provide such notice, the applicant may do so. Nothing contained within this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
M.
In any appeal of an enforcement notice under § 127-145A of this chapter to the Zoning Hearing Board shall require that the Zoning Officer and/or Township provide its evidence first to the Board regarding the basis, nature and supporting information regarding the subject enforcement notice. Upon the conclusion of the same, the appealing party shall provide the Board with his/her evidence in contesting the subject enforcement notice. Any filing fees paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to said party, if Zoning Hearing Board or any subsequent court rules in favor of the appealing party.
N.
The final decision or, where no decision is called for, the findings
shall be rendered by the Zoning Hearing Board at a public hearing
and/or public meeting. A copy of the written decision or findings
shall be delivered to the applicant personally or mailed to him not
later than the day following the date of the Board's decision or findings.
The Zoning Hearing Board shall provide by mail or otherwise, to all
persons who have filed their name and address with the Board, not
later than the last day of the hearing, a statement of brief notice
of the decision or findings and a statement of the place and at which
a copy of the full decision or findings may be examined.
A.
Mediation may be utilized as an aid designed to supplement, as opposed
to replacing, any proceedings before and under the jurisdiction of
the Zoning Hearing Board. In no case, however, shall the Board or
any member of the Board initiate the use of mediation. No member of
the Board shall be allowed to participate as a mediating party or
be present during any sessions of mediation. Nothing within this section
shall be interpreted as expanding or limiting municipal police powers
or modifying any principles of substantive law.
B.
Mediation shall be voluntary among all subject parties with the appropriateness
of mediation determined by the particular issues of each case and
the willingness among all the subject parties to negotiate. In order
to supplement proceedings before the Zoning Hearing Board, the following
information shall be submitted to the Board in written form and signed
by all parties to the mediation, the selected mediator, and the Zoning
Hearing Board:
(1)
Method and commitment of funding of mediation.
(2)
The mediator shall be an attorney and/or an individual who is
certified by the American Arbitration Association, who shall possess
a working knowledge of municipal zoning and subdivision practices
and procedures.
(3)
A schedule which shall clearly prescribe the time limitations
for both the start and completion of mediation. The completion date
shall be adhered to even if the negotiations fail to result in a mediated
agreement by said date.
(4)
Suspension of the appropriate time limitations which apply to
the Zoning Hearing Board in convening a hearing and/or rendering a
decision, once a hearing is convened, subject to executing a document
of expressed written consent by the mediating parties, and by the
Zoning Hearing Board.
(5)
Identification of all subject parties and affording them the
opportunity to participate.
(6)
A determination of whether some or all of the mediation sessions
shall be opened or closed to the public, subject to governing legal
constraints.
(7)
An agreement among the mediating parties that any mediated solution
be in written form and subject to review and approval by the Zoning
Hearing Board.
(8)
Any mediation which concludes within the prescribed time limits under Subsection B(3) of this section, which does resolve in whole or in part, the issues subject to mediation, shall then proceed under the hearing process before the Zoning Hearing Board.
(9)
No offer or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
The Zoning Hearing Board, in accordance with the Pennsylvania
Municipalities Planning Code, Act 247, as amended,[1] shall have exclusive jurisdiction to hear and render final
adjudication in the following matters:
A.
Substantive challenges to the validity of any land use ordinance, except for those brought before the Township Board of Supervisors under § 127-149A of this chapter.
B.
Challenges to the validity of any land use ordinance based upon procedural
questions or alleged defects in the process of enactment or adoption.
Challenges based upon procedural questions or alleged defects shall
be raised by an appeal to the Board within 30 days after the effective
date of the ordinance subject to the appeal.
C.
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, the revocation of a zoning permitted/or building permit or
the registration or refusal to register any nonconforming use, structure
or lot.
D.
Appeals from a determination by the Zoning Officer with reference
to the administration of any floodplain provision or regulation within
any land use ordinance.
G.
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 not related to development which is classified as a subdivision,
land development, or a planned residential development.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
Initial determination by Zoning Officer. An application for a variance
shall not be submitted to or considered by the Zoning Hearing Board
until the following procedure has been completed:
(1)
The applicant submits an application for a zoning permit to the Zoning Officer in accordance with § 127-144 of this chapter.
(2)
The Zoning Officer is reviewing the subject application renders
a determination that the proposed development and/or use of property
fails to comply with an applicable provisions and/or regulations of
this chapter.
(3)
The Zoning Officer specifies the applicable sections of this
chapter relative to the applicant's need to secure a variance(s) from
the Zoning Hearing Board.
B.
Provisions for granting variances.
(1)
The Zoning Hearing Board shall hear requests for variances if
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 the Zoning Ordinance 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 the Zoning Ordinance 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 appellant.
(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.
A.
Initial determination by Zoning Officer. An application for a special
exception use shall not be submitted to or considered by the Zoning
Hearing Board until the following procedure has been completed:
(1)
The applicant submits an application for a zoning permit to the Zoning Officer in accordance with § 127-144 of this chapter.
(2)
The Zoning Officer shall also render a determination regarding
whether the proposed development and/or use is required to secure
any variances from the Zoning Hearing Board, in addition to securing
a special exception approval.
B.
Provisions for granting a special exception approval.
(1)
The Zoning Hearing Board shall hear and decide requests for
uses and/or development which are permitted as special exception uses.
Special exception uses may be referred to the Planning Commission
for its review, comments and recommendations prior to final action
by the Board. The Board shall grant approval only upon the determination
that the proposed use and/or development conforms with all applicable
standards and provisions within this chapter and the following expressed
standards and criteria:
(a)
The proposed use shall not jeopardize community development
objectives as set forth in this chapter and the Bear Creek Township
Comprehensive Plan, including any updates, revisions and/or amendments
thereto.
(b)
Public services and facilities such as streets, sewers, water,
police, and fire protection shall be adequate for the proposed use
and/or development.
(c)
Existing streets and proposed access to the site shall be adequate
regarding the width and pavement for emergency service vehicles.
(d)
Existing streets and proposed access to the site shall be adequate
to accommodate anticipated traffic volumes in a manner that avoids
undue traffic congestion, and provides for the safety and convenience
of pedestrian and vehicular traffic. The proposed use shall not result
in unsafe or dangerous traffic conditions.
(e)
The proposed use shall be compatible with adjoining development
and the character of the zoning district and neighborhood in which
it is proposed to be located. The nature and intensity of the operation
of the proposed use shall be considered regarding its compatibility
or lack thereof.
(f)
The proposed use shall not substantially impair the value of
other property in the neighborhood where it is proposed to be located.
(g)
The proposed use and/or development shall not be more objectionable
in its operations in terms of noise, fumes, odors, vibration, or lights
than would be the operations of any permitted use in the subject zoning
district.
(h)
The submission of any reports and/or studies, required by the Zoning Hearing Board within the context of the definition "impact analysis" as contained defined in Article II of this chapter, which conclusively demonstrates that the proposed use or development will not have a negative impact upon the particular subject or subjects as defined by the Zoning Hearing Board, in requiring such reports and/or studies.
(i)
The proposed use and/or development shall not be injurious to
the public interest.
Appeal and/or applications for hearings before the Zoning Hearing Board pursuant to those matters contained within § 127-160 of this chapter may be filed with the Board in writing by the affected landowner or by any aggrieved person or party. The Board shall not accept appeals or applications for hearings from any tenant or equitable owner of a property without the express written consent of the landowner. In such cases, the landowner's signature shall be required upon all applicable forms, applications or documents which are to be submitted to the Board.
A.
No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than 30 days after an application for the development,
preliminary or final, has been approved by an appropriate municipal
officer, agency or body if such proceeding is designed to secure reversal
or to limit the approval in any manner unless such person alleges
and proves that he had no notice, knowledge, or reason to believe
that such approval had been given. If such person has succeeded to
his interest after such approval, he shall be bound by the knowledge
of his predecessor in interest. The failure of anyone other than the
landowner to appeal from an adverse decision on a tentative plan for
a planned residential development, pursuant to Section 709 of the
Pennsylvania Municipalities Planning Code, Act 247, as amended,[1] or from an adverse decision by a Zoning Officer on a challenge
to the validity of an ordinance or map based upon substantive grounds,
pursuant to Section 916.2 of the Pennsylvania Municipalities Planning
Code, Act 247, as amended,[2] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
B.
Any landowner wishing to appeal a decision of the Zoning Hearing
Board shall be required to file such appeal to a court of competent
jurisdiction within 30 days after the notice of the Board's determination
is issued. Failure to do so within the prescribed thirty-day time
period shall preclude any further appeal of the Board's decision.
A.
Upon filing of any proceeding referred to in § 127-162 of this chapter, and during its pendency before the Zoning Hearing 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 the 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 a bond as a condition to continuing the proceedings before the Board.
B.
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 the 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.
C.
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.
D.
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 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.
