[Ord. 206, 2/4/1985; as amended by Ord. 243, 2/27/1996]
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 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.
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 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.
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 chapter.
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. 206, 2/4/1985; as amended by Ord. 243, 2/27/1996]
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
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 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.
[Ord. 206, 2/4/1985; as amended by Ord. 243, 2/27/1996]
1.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
A.
Substantive challenges to the validity of any land use ordinance,
except those brought before the Borough Council pursuant to Sections
609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning
Code (hereinafter "MPC"), 53 P.S. §§ 10609.1 and 10916.1.
B.
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.
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 Section 910.2 of the MPC, 53 P.S. § 10910.2.
F.
Applications for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to Section 912.1 of the MPC, 53 P.S. § 10912.1.
G.
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.
H.
Appeals from the Zoning Officer's determination under Section
916.2 of the MPC, 53 P.S. § 10916.2.
I.
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
applications under Article V or VII of the MPC, 53 P.S. §§ 10501
et seq. and 10701 et seq.
2.
The Borough Council, shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
A.
All applications for approvals of planned residential developments
under Article VII of the MPC pursuant to the provisions of Section
702 of the MPC, 53 P.S. § 10702.
B.
All applications pursuant to Section 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.
C.
Applications for conditional use under the express provisions of
this chapter.
D.
Applications for curative amendment to this chapter or pursuant to
Sections 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1
and 10916.1(a).
E.
All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in Section 609 of the MPC, 53 P.S. § 10609.
F.
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 stormwater
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. and 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. 206, 2/4/1985; as amended by Ord. 243, 2/27/1996; and
by Ord. 295, 11/8/2005
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.
3.
Standards for Grant of Variance.
A.
Under no circumstances shall the Zoning Hearing Board grant a variance
to allow a use not permissible under the terms of this chapter in
the district involved or any use expressly or by implication prohibited
by the terms of this chapter in said district.
B.
A variance from the terms of this chapter shall not be granted by
the Zoning Hearing Board unless and until:
(1)
A written application is submitted in accordance with standards
set forth in the Pennsylvania Municipalities Planning Code (53 P.S.
§ 10910.2).
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No conforming use of neighboring lands, structures or buildings
in the same district and no permitted or nonconforming use of lands,
structures or buildings in other districts shall be considered grounds
for the issuance of a variance.
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(3)
The public hearing shall be held. Any party may appear in person
or by agent or by attorney.
(4)
The Zoning Hearing Board shall make findings that the requirements of Subsection 3B(1) have been met by the applicant for a variance.
(5)
The Zoning Hearing Board shall further make a finding that the
reasons set forth in the application justify the granting of the variance
and that the variance is the minimum variance that will make possible
the reasonable use of the land, building or structure.
[Ord. 206, 2/4/1985; as amended by Ord. 243, 2/27/1996; and
by Ord. 295, 11/8/2005]
1.
Where the Borough Council, in this chapter, has stated special exceptions
to be granted or denied by the Zoning Hearing Board pursuant to express
standards and criteria, the Board shall hear and decide requests for
such special exceptions in accordance with such 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 this
chapter and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101
et seq.
2.
A special exception shall not be granted by the Zoning Hearing Board
unless and until:
A.
A written application for a special exception is submitted indicating
the section of this chapter under which the special exception is sought
and stating the grounds on which it is requested.
B.
The Zoning Hearing Board shall make a finding that it is empowered
under the section of this chapter described in the application to
grant the special exception and that the grant of the special exception
will not adversely affect the public interest.
C.
Before any special exception shall be issued, the Zoning Hearing
Board shall make written findings certifying compliance with the specific
rules governing individual special exceptions and that satisfactory
provisions and arrangement has been made concerning the following,
where applicable:
(1)
Ingress and egress to property and proposed structures thereon,
with particular reference to automotive and pedestrian safety and
conveniences, traffic flow and control and access in case of fire
or catastrophe.
(2)
Off-street parking and loading areas where required, with particular attention to the items in Subsection 2B(3)(a) of § 27-808 above and the economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally in the district.
(3)
Refuse and service areas, with particular reference to the items in Subsections 2C(1) and 2B(3)(a) and (b) above.
(4)
Utilities, with reference to locations, availability and compatibility.
(5)
Screening and buffering with reference to type, dimensions and
character.
(6)
Signs, if any, and proposed exterior lighting with reference
to glare, traffic safety compatibility and harmony with properties
in the district.
(7)
Required yards and other open space.
(8)
General compatibility with adjacent properties and other property
in the district.
D.
In granting any special exception, the Zoning Hearing Board may prescribe additional conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this chapter and punishable under § 27-1404 of this chapter. The Zoning Hearing Board shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the special exception.
[Ord. 206, 2/4/1985; as added by Ord. 243, 2/27/1996]
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 transfer 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 stormwater 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. 206, 2/4/1985; as added by Ord. 243, 2/27/1996]
1.
A.
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. 206, 2/4/1985; as added by Ord. 243, 2/27/1996]
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.
