The membership of the Zoning Hearing Board shall consist of
five residents of the Borough appointed by resolution of the Borough
Council. Their terms of office shall be five years and shall be so
fixed that the term of office of one member shall expire each year.
The Zoning Hearing Board shall promptly notify Borough Council when
vacancies occur. Appointments to fill vacancies shall be only for
the unexpired portion of the term. Members of the Zoning Hearing Board
shall hold no other office in the Borough.
A.
Appointment of alternative members. Borough Council may appoint
by resolution at least one, but no more than three, residents of the
Borough to serve as alternate members of the Zoning Hearing Board.
The term of office of an alternate member shall be three years. When
seated pursuant to the provisions of § 212-2702B, an alternate
shall be entitled to participate in all proceedings and discussions
of the Zoning Hearing Board to the same and full extent as provided
by law for board members, including specifically the right to cast
a vote as a voting member during the proceedings, and shall have all
the power and duties set forth in this chapter and as otherwise provided
by law. Alternates shall hold no other office in the Borough, including
membership on the Planning Commission and Zoning Officer. Any alternate
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 be compensated pursuant to § 212-2715C
unless designated as a voting alternate member pursuant to § 212-2702B.
[Amended 11-20-2013 by Ord. No. 606-2013]
B.
Participation by alternate members. If by reason of absence
or disqualification of a member a quorum is not reached, the Chairman
of the Zoning Hearing Board shall designate as many alternate members
to sit on the Board as may be needed to provide a quorum. Any alternate
member of the Zoning Hearing 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. Designation of an alternate pursuant
to this subsection 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 hearing shall
be held in connection with the vote if the member shall request it
in writing.
The Zoning Hearing Board shall elect, from its own membership,
its officers, who shall serve annual terms 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
Zoning Hearing 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 § 212-2712C.
The Zoning Hearing Board may make, alter and rescind rules and
forms for its procedure, consistent with the ordinances of the Borough
and the laws of the commonwealth.
The Zoning Hearing 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 Borough Council once a
year.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudication in the following matters:
B.
(Reserved)
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 or the registration or refusal to register any nonconforming
use, structure or lot.
D.
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.
E.
Applications for variances from the terms of this chapter and
flood hazard ordinance or such provisions within a land use ordinance
pursuant to § 212-2710.
G.
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 stormwater
management insofar as the same relate to development not involving
subdivision and land development or planned residential development
applications.
H.
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.
A.
The Zoning Hearing Board, upon appeal, shall have the power
to authorize variances from the requirements of this chapter where
it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the appellant. A variance may be granted if all of the
following findings are made where relevant in a given case:
(1)
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)
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;
(3)
Such unnecessary hardship has not been created by the appellant;
(4)
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; and
(5)
The variance, if authorized, will represent the minimum variance
necessary to afford relief and will represent the least modification
possible of the regulation in issue.
B.
In granting any variance, the Zoning Hearing Board may attach
such reasonable conditions and safeguards as it may deem necessary
to implement the purposes of this chapter and protect the public health,
safety and welfare.
A.
A public hearing shall be held on any appeal filed under § 212-2709
of this chapter within 60 days of filing a complete application, unless
the applicant has agreed, in writing, to an extension of time. Each
subsequent hearing before the Board or hearing officer 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 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 that the persons opposed to the application are
granted an equal number of additional hearings. Persons opposed to
the application may, upon the written consent or consent on the record
by the applicant and the Borough, be granted additional hearings to
complete their opposition to the application, provided that the applicant
is granted an equal number of additional hearings for rebuttal.
B.
The public hearing shall be held pursuant to public notice,
as defined by this chapter. In addition to the public notice, the
Zoning Hearing Board shall give written notice to the applicant, the
Zoning Officer, the Borough Manager, the Secretary of the Borough
Planning Commission, the President of Borough Council and to any person
who has made timely request for the same. Written notice of said public
hearing shall also be conspicuously posted on the affected tract of
land at least one week prior to the hearing.
C.
The hearings shall be conducted by the Zoning Hearing 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; 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 Zoning Hearing Board, and any other person, including civic
or community organizations, permitted to appear by the Board. The
Zoning Hearing Board shall have the 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 the 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.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
G.
The Zoning Hearing Board or the hearing officer, as the case
may be, shall keep a stenographic record of the proceedings.
H.
The Zoning Hearing Board or 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 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.
A.
The Zoning Hearing 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 of the
last hearing before the Board or hearing officer.
B.
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 provision
of the Pennsylvania Municipalities Planning Code or any Borough ordinance
shall contain a reference to the provision relied on and the reasons
why the conclusions are deemed appropriate in light of the facts found.
C.
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 its 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 the 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.
D.
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 the date of the
decision. 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.
Except for substantive validity challenges, where the Board
fails to render the decision within the period required by § 212-2712A
or fails to commence, conduct or complete the required hearing as
provided in § 212-2711A, 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 said decision within
10 days from the last day it could have met to render a decision in
the same manner as provided in § 212-2712A. If the Board
shall fail to provide such notice, the applicant may do so. Nothing
in this section shall prejudice the right of any party opposing the
application to appeal the decision to a court of competent jurisdiction.
A.
Parties to proceedings authorized by Article IX and Article
X-A of the Municipalities Planning Code may utilize mediation as an
aid in completing such proceedings. In proceedings before the Zoning
Hearing Board, in no case shall the Zoning Hearing Board initiate
mediation or participate as a mediating party. Mediation shall supplement,
not replace, those procedures in Article IX and Article X-A of the
Municipalities Planning Code as enacted by the Borough once they have
been formally initiated. Nothing in this subsection shall be interpreted
as expanding or limiting municipal police powers or as modifying any
principles of substantive law.
B.
Participation in mediation shall be wholly voluntary. The appropriateness
of mediation shall be determined by the particulars of each case and
the willingness of the parties to negotiate. The Borough shall assure
that, in each case, the mediating parties, assisted by the mediator
as appropriate, develop terms and conditions for:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedures and demonstrated
skills in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in this chapter
or in the Pennsylvania Municipalities Planning Code (Act 247, as amended),
provided that there is written consent by the mediating parties and
by an applicant or Borough decisionmaking body, if either is not a
party to the mediation.
(5)
Identifying all parties and affording them the opportunity to
participate.
(6)
Subject to legal restraints, determining whether some or all
of the mediation sessions shall be open or closed to the public.
(7)
Assuring that mediated solutions are in writing and signed by
the parties and become subject to review and approval by the appropriate
decisionmaking body pursuant to the authorized procedures set forth
in this chapter.
C.
No offers 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.
A.
Fees. Borough Council may prescribe reasonable fees with respect
to hearings before the Zoning Hearing Board. 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.
B.
Stenographer's appearance fee and transcripts. The appearance
fee for a stenographer shall be shared equally by the applicant and
the Board. The cost of the original transcript shall be paid by the
Board if the transcript is ordered by the Board or hearing officer
or shall be paid by the person appealing from the decision of the
Board if such appeal is made, and in either event the cost of additional
copies shall be paid by the person requesting such copy or copies.
In other cases, the party requesting the original transcript shall
bear the cost thereof.
C.
Expenditures. Members of the Board may receive compensation
for the performance of their duties as may be fixed by Borough Council,
but in no case shall it exceed the rate of compensation authorized
to be paid to the members of Borough Council. Within the limits of
funds appropriated by Borough Council, the Board may employ or contract
for secretaries, clerks, legal counsel, consultants and other technical
and clerical services. Alternate members of the Board may receive
compensation, as may be fixed by Borough Council, for the performance
of their duties when designated as alternate members pursuant to § 212-2702,
but in no case shall such compensation exceed the rate of compensation
authorized to be paid to the members of Borough Council.
A.
No person shall file any proceeding before the Zoning Hearing
Board later than 30 days after a preliminary or final application
for development has been approved by an appropriate Borough officer,
agency or body, if such proceeding is designed to secure reversal
or to limit the approval in any manner, unless such person alleges
and proves that he had no notice, knowledge or reason to believe that
such approval had been given. If such person has succeeded to his
interest after such approval, he shall be bound by the knowledge of
his predecessor in interest.
B.
The failure of anyone, other than the landowner, to appeal from
an adverse decision by a Zoning Officer on a challenge to the validity
of an ordinance or map filed pursuant to Section 916.2 of the Municipalities
Planning Code[1] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the plans and other materials submitted to the Zoning Officer for
a preliminary opinion.
[1]
Editor's Note: See 53 P.S. § 10916.2.
C.
All appeals from determinations adverse to the landowner shall
be filed by the landowner within 30 days after notice of the determination
is issued.
A.
Upon filing of any proceeding 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.
B.
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 the zoning
appeals to order such persons to post bond as a condition to continuing
the proceedings before the Board. 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.
C.
All appeals from decisions rendered by the Zoning Hearing Board
shall be taken to the Allegheny County Court of Common Pleas and shall
be filed within 30 days after the entry of the decision or, in the
case of a deemed decision, within 30 days after the date upon which
notice of said deemed decision is given as required by Section 908(9)
of the Pennsylvania Municipalities Planning Code (Act 247, as amended).[1]
[1]
Editor's Note: See 53 P.S. § 10908(9).
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:
B.
Persons aggrieved by a use or development permitted on the land
of another by an ordinance or map, or any provision thereof, who desire
to challenge its validity on substantive grounds, shall first submit
their challenge to the Zoning Hearing Board for a decision thereon
under § 212-2709A.
C.
The submissions to the Zoning Hearing Board shall be governed
by the following:
(1)
The challenging party shall make a written request to the Board
that it hold a hearing on its challenge. The request shall contain
the reasons for the challenge and may contain a proposed amendment,
plans and explanatory material.
(2)
Based upon the testimony presented at the hearing or hearings,
the Board shall determine whether the challenged ordinance or map
is defective, as alleged by the landowner. If a challenge heard by
the Board is found to have merit, the decision of the Board shall
include recommended amendments to the challenged ordinance which will
cure the defects found. In reaching its decision, the Board shall
consider the amendments, plans and explanatory material submitted
by the landowner and shall also consider:
(a)
The impact of the proposal upon roads, sewer facilities,
water supplies, schools and other public service facilities;
(b)
If the proposal is for 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 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 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; and
(e)
The impact of the proposal on the preservation
of agriculture and other land uses which are essential to public health
and welfare.
(3)
The Board shall render its decision within 45 days after the
conclusion of the last hearing. If the Board fails to act on the landowner's
request within this time limit, a denial of the request is deemed
to have occurred on the 46th day after the close of the last hearing.
D.
The Board 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 Board fails to commence the hearing within the time limits
set forth in this section;
(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; or
(4)
The Board 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 the Borough.
G.
Where a validity challenge is sustained by the Board or the court acts finally on appeal from denial of 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 184, Subdivision and Land Development. Within the two-year period, no subsequent change or amendment in the zoning, subdivision 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. Upon the filing of the preliminary or tentative plan, the provisions of Section 508(4) of the Municipalities Planning Code shall apply.[1] 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 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.
[1]
Editor's Note: See 53 P.S. § 10508(4).
H.
A landowner who has challenged on substantive grounds the validity
of a zoning ordinance or map to the Board shall not submit any additional
substantive challenges involving the same parcel, group of parcels
or part thereof until such time as the status of the landowner's original
challenge has been finally determined or withdrawn; provided, however,
that, if after the date of the landowner's original challenge the
Borough adopts a substantially new or different zoning ordinance or
zoning map, the landowner may file a second substantive challenge
to the new or different zoning ordinance or zoning map under this
section.
