[Ord. 725-04, 11/8/2004]
1.
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.
2.
The membership of the Board shall consist of five 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.
3.
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 on 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.
4.
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 Part.
5.
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.
6.
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.
[Ord. 725-04, 11/8/2004]
The Zoning Hearing Board shall conduct hearings and make 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
additional 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. Each subsequent hearing shall be held within 45 days of the
prior hearing, unless otherwise agreed to by the applicant. Any party
aggrieved by the schedule or progress of the hearings may apply to
the court of common pleas for judicial relief. The hearing shall be
completed no later than 100 days after the completion of the applicant's
case in chief, unless extended for good cause upon application to
the court of common pleas.
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 he 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 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 noted 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 therefore. Conclusions based on any provision 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 form the last day it could have met to render a decision in the same manner as provided in § 27-802. 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.
[Ord. 725-04, 11/8/2004]
The Zoning Hearing Board shall have the following powers:
A.
Appeals from the Zoning Officer; Interpretation and Review.
(1)
To hear and decide appeals where it is alleged by the appellant
that the Zoning Officer has failed to follow prescribed procedures
or has misinterpreted or misapplied any provisions of this Chapter
or the official zoning map or any valid rule or regulation governing
the action of the Zoning Officer.
(2)
Nothing contained herein shall be construed to deny the appellant
the right to proceed directly to court where appropriate, pursuant
to Pennsylvania Rules of Civil Procedure, §§ 1091 to
1098 relating to mandamus.
B.
Challenges to the Validity of this Chapter or the Official Zoning Map. The Board shall hear challenges to the validity of this Chapter or the Official Zoning Map except as indicated in § 1003 and Subsection (1)(b) of § 1004 of the Pennsylvania Municipalities Planning Code, as amended. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 27-802 of this Part. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of act, which shall become part of the record on appeal to the court.
C.
Unified Appeals. When the Board has jurisdiction over zoning matters pursuant to Subsections (A), (B) and (D), the Board shall also hear all appeals, which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the non-zoning issues, but shall take evidence and make a record thereon as provided in § 27-802. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the court.
D.
Variances.
(1)
To authorize, upon appeal in specific cases, such variance(s)
from the terms of this Chapter as will not be contrary to public interest,
where a literal enforcement of the provisions of this Chapter will
result in unnecessary hardship. 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, as amended. 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 the
following findings are made where relevant in a given case:
(a)
There are unique physical circumstances or conditions including
irregularity, narrowness or shallowness of lot size, of 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 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 appellant,
subsequent to the adoption of this Chapter, whether in violation of
the provisions hereof or not, and that such circumstances or conditions
are such that strict application of the provisions of this Chapter
would deprive the applicant of the reasonable use of such land, structure
or building.
(d)
That for reason fully set forth in the findings of the Board,
the granting of the variance is necessary for the reasonable use of
the minimum variance that will afford relief and will represent the
least modification possible of the regulation in Issue.
(2)
The existence of nonconforming uses of land, structures or buildings
in the same or other zoning districts shall, in and of itself, not
be considered grounds for the granting of a variance.
(3)
In addition, economic gain or economic hardship shall not be
considered grounds for a variance.
(4)
In granting any variance, the Board may attach such reasonable
conditions and safeguards, as it may deem necessary to implement the
purpose of this Chapter and the Pennsylvania Municipalities Planning
Code, as amended.
E.
Special Exceptions.
(1)
To issue upon application, only such special exceptions to the
terms of this Chapter upon which the Board by the provisions of this
Chapter is specifically authorized to issue. The granting of a special
exception when specifically authorized by the terms of this Chapter
shall be subject to the following standards and criteria:
(a)
Such use shall be one which is specifically authorized as a
special exception use in the zoning district wherein the applicant
seek a special exception.
(b)
Such permits shall only be granted subject to any applicable
condition and safeguards as required by this Chapter.
(c)
Such permit may be granted subject to additional reasonable
conditions and safeguards as may be deemed by the Board to be advisable
and appropriate.
(d)
Such use shall be found by the Board to be in harmony with the
general purposes and intent of this Chapter.
(e)
Such use shall not adversely affect the character of the zoning
district, nor the conservation of property values nor the health and
safety of residents or workers on adjacent properties and in the general
neighborhood.
(f)
Such use shall be of such size and so located and laid out in
relation to its access streets that vehicular and pedestrian traffic
to and from such use will not create undue congestion or hazards prejudicial
to the general neighborhood.
(g)
Such use shall not conflict with the direction of building development
in accordance with any comprehensive plan or portion thereof, which
has been adopted by the Borough Council.
(h)
No special exception shall be granted until the Borough Planning
Commission has sufficient time to review and report on each special
exception or until 30 days has expired from the referral date.
(2)
All applications for special exceptions shall be submitted to
the Planning Commission for its review and recommendations. If the
Planning Commission does not make any recommendations within 30 days,
it shall be deemed that the Planning Commission has recommended approval
of the application for special exception.
[Ord. 725-04, 11/8/2004]
1.
The Board shall act in strict accordance with the procedure specified
by Article IX of the Pennsylvania Municipalities Planning Code, as
amended, and by this Chapter. All appeals and applications made to
the Board shall be in writing on forms prescribed the Board. Every
appeal or application shall refer to the specific provision of this
Chapter involved and shall exactly set forth the interpretation that
is claimed, the grounds for any challenges to the validity of this
Chapter, the use for which a special exception is sought or the details
of the variance that is applied for and the grounds on which it is
claimed that the variance should be granted, as the case may be. In
the event the procedures set forth in this Part shall be in conflict
with or contrary to the procedures set forth in the Pennsylvania Municipalities
Planning Code, as amended, then and in such event the procedures set
forth in the latter shall prevail.
2.
Applications and appeals, together with the required filing fee,
as established by resolution by the Borough Council, shall be submitted
to the Secretary of the Zoning Hearing Board.
A.
Parties Appellant before the Zoning: Hearing Board. Appeals under
§ 27-803(A) and proceedings to challenge this Part under
§ 27-803(B) may be filed with the Board in writing by the
landowner affected, by an officer or agency of the Borough or any
person aggrieved. Requests for a variance under § 27-803(D)
and for special exception under § 27-803(E) may be filed
with the Board by any landowner or any tenant with the permission
of such landowner.
B.
Time Limitations. No person shall be allowed to file any proceedings
with the Board later than 30 days after any application for development,
preliminary or final, has been approved by an appropriate officer
of the Borough, 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 has 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.
[Ord. 725-04, 11/8/2004]
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 there under, 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.
A.
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.
