Borough of Littlestown, PA Zoning Hearing Board

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 § 500-40.

The Zoning Hearing Board shall adopt riles in accordance with the provisions of this chapter. Meetings of the Zoning Hearing Board shall be held at the call of the Chairman and at such other times as the Zoning Hearing Board may determine. Such Chairman, or in his absence, the acting Chairman, may administer oaths, and compel the attendance of witnesses. All meetings of the Zoning Hearing Board shall be open to the public.

The Zoning Hearing Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicate such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Borough Secretary and shall be a public record.

The Zoning Hearing Board shall submit a report of its activities to the Littlestown Borough Council once a year.

Expenditures of services. Within the limits of funds appropriated by the Littlestown 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 Littlestown Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Littlestown Borough Council.

§ 500-40 Hearings.

Requirements and procedures. The Board shall conduct hearings and make decisions in accordance with the following requirements:

Notice shall be given the public, the applicant, the county planning agency, the Zoning Officer, such other persons as the governing body shall delegate by ordinance and to any person who has made timely request for the same. Said notice shall be given 15 days before such hearings. At the hearing, any party may appear in person or agent or attorney.

The Board may establish reasonable fees, based on cost, to be paid by the applicant and by persons requiring any notice not required by this chapter.

The hearings shall be conducted by the Board. The Chairman of 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, but the parties may waive decision or findings by the Board and accept the decision or findings of the Hearing Officer as final.

The parties to the hearing shall be any persons who is entitled to notice under Subsection A(1) without special request therefor who has made timely appearance before the Board and any other person permitted to appear by the Board.

(5)

The Chairman or Acting Chairman of the Board or the Hearing Officer presiding shall have 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 the parties.

(6)

The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and cross-examine adverse witnesses on all relevant issues.

(7)

Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

(8)

The Board or the Hearing Officer, as the case may be, shall keep a record of the proceedings, either stenographically or by sound recording, and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.

(9)

The Board or the Hearing Officer shall not communicate, directly or indirectly, with any party or his representative in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communications, reports, staff memoranda, or other materials unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.

Notice of decision.

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. 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 ordinance, rule or regulation shall contain a reference to the provision relied on 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, and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings. Where the Board has power to render a decision and the Board or the Hearing Officer, as the case may be, fails to render the same within the period required by this clause, the decision shall be deemed to have been rendered in favor of the applicant.

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.

§ 500-41 Powers and duties.

Appeals from the Zoning Officer. The Board shall hear and decide where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rules or regulation governing the action of the Zoning Officer. Nothing contained herein shall be construed to deny to the appellant the right to proceed directly to court, where appropriate pursuant to Pennsylvania Rules of Civil Procedure, Sections 1091 to 1098, relating to mandamus.

Challenge to the validity of any ordinance or maps. Except as provided in Subsection D relating to variances, the Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the governing body. Recognizing that challenges to the validity of an ordinance or map may present issues or fact and of interpretation which may lie within the special competence of the Board, and to facilitate speedy disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation, not hitherto properly determined at a hearing before another competent agency or body and shall take evidence and make a record thereon as provided in § 500-40. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

Challenges to Chapter 415, Subdivision and Land Development, and to the planned development ordinance;[1] special rules. Challenges to the validity of Chapter 415, Subdivision and Land Development, or to the validity of a planned development district as contained in this chapter and appeals from any action of the Zoning Officer thereunder shall be governed by Subsections A and B. But when the Planning Commission or Littlestown Borough Council has held a hearing upon an application for development under Chapter 415, Subdivision and Land Development, or the planned residential ordinance, such hearing shall be deemed in lieu of a hearing by the Board provided for under Subsection B and appeal from any decision or determination of the Planning Commission or Littlestown Borough Council (including challenge to the validity of any provision of an ordinance) shall lie directly as provided in § 500-44.

[1]

Editor's Note: See Article V, Planned Developments, of this chapter.

Variances. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the applicant. Subject to the provisions of § 500-38A, the Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Zoning Ordinance. All requests for variances will first be sent by the Board to the Planning Commission for review and recommendation in accordance with the Comprehensive Plan.

Special exceptions. Where the Littlestown Borough Council in the Zoning Ordinance has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for 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 the ordinance, as it may deem necessary to implement the purposes of this act and the Zoning Ordinance. All requests for special exception will first be sent by the Board to the Planning Commission for review and recommendation in accordance with the Comprehensive Plan.

§ 500-42 Standards for Zoning Hearing Board action.

In any instance where the Zoning Hearing Board is required to consider a special exception or variance in accordance with the provisions of this chapter, the Board shall, among other things, consider the following standards:

For variances.

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;

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;

That such unnecessary hardship has not been created by the appellant;

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; and

(5)

That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.

For special exceptions.

Consider the suitability of the property for the use desired. Assure itself that the proposed request is consistent with the spirit, purpose and intent of the Zoning Ordinance.

Determine that the proposed special exception will not substantially injure or detract from the use of neighboring property or from the character of the neighborhood and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.

Determine that the proposed special exception will serve the best interests of the Borough, the convenience of the community, and the public welfare.

Consider the effect of the proposed special exception upon the logical efficient and economical extension of public services and facilities, such as water, sewers, police and fire protection, and public schools.

(5)

Impose such conditions, in addition to those required, as are necessary to assure that the intent of the Zoning Ordinance is complied with, which conditions may include, but are not limited to, harmonious design of buildings, planting and its maintenance as a sight or sound screen, the minimizing of noxious, offensive or hazardous elements, adequate standards of parking and sanitation.

(6)

Determine that the unique circumstances for which the special exception is sought were neither created by the owner of the property, nor were due to or the result of general conditions in the zoning district in which the property is located.

(7)

Consider the suitability of the proposed location of an industrial or commercial use with respect to probable effects upon the highway traffic, and assure adequate access arrangements in order to protect major streets and highways from undue congestion and hazard.

(8)

Ascertain the adequacy of sanitation and public safety provisions, where applicable, and require a certificate of adequacy of sewage and water facilities from a governmental health agency in such case required herein or deemed advisable.

(9)

Financial hardship shall not be construed as the basis for granting special exceptions.

§ 500-43 Appeals before Zoning Hearing Board.

Parties appellant before Board. Appeals under § 500-41A and proceedings to challenge an ordinance under § 500-41B may be filed with the Board in writing by any officer or agency of the municipality, or any person aggrieved. Requests for a variance under § 500-41D and for special exception under § 500-41D may be filed with the Board by any landowner or any tenant with the permission of such landowner.

Time limitations. The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:

No issue of an alleged defect in the process of enactment of any ordinance or map or any amendment thereto shall be raised in any proceeding filed with the Board later than 30 days from the time such ordinance, map or amendment takes effect unless the person raising such issue alleges and proves that he failed to receive adequate notice of the enactment or amendment. If such person has succeeded to his interest after the enactment of the ordinance, adequate notice to his predecessor in interest shall be deemed adequate notice to him.

No person shall be allowed to file any proceeding with the Board later than 30 days after any application for 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 failed to receive adequate notice of such approval. If such person has succeeded to his interest after such approval, adequate notice to his predecessor in interest shall be deemed adequate notice to him.

Stay of proceedings. Upon filing of any proceeding referred to in Subsection A 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. 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.

§ 500-44 Zoning appeals before courts.

Zoning appeals. Zoning appeals shall include appeals from the decision of the Board of Zoning appeals and appeals upon reports of the Board are proceedings to challenge the validity of any ordinance or map.

Application. Zoning appeals may be taken to the Common Pleas Court of Adams County by any party before the Board, or any officer or agency of the Borough.

Time limitation upon appeal. All zoning appeals shall be filed not later than 30 days after issuance of notice of the decision or report of the Board.

Commencement of zoning appeals.

Zoning appeals shall be entered as of course by the prothonotary or Clerk upon the filing of a zoning appeal notice which concisely sets forth the grounds on which the appellant relies, verified to the extent that it contains averments of fact. The zoning appeal notice shall be accompanied by a true copy thereof.

Upon filing of a zoning appeal, the prothonotary or Clerk shall forthwith as of course, and to the Board by registered or certified mail, the copy of the zoning appeal notice together with writ of certiorari commanding the Board within 20 days after receipt thereof to certify to the court its entire record in the matter in which the zoning appeal has been taken, or a true and complete copy thereof, including any transcript of testimony in existence and owned by the Board at the time it received the writ of certiorari.

If the appellant is a person other than the owner of property directly involved in the decision or report of the Board, the appellant, within five days after the zoning appeal is filed, shall serve a true copy of the zoning appeal notice upon such owner in the manner specified by the Rules of Civil Procedure for the service of a complaint in equity and shall file proof of such service. For identification of such owner, the appellant may rely upon the record of the Board and, in the event of good faith mistakes as to such identity, may make such service nunc pro tunc by leave of court.

Intervention. Within 30 days following the filing of a zoning appeal, the Borough and any owner of property directly involved in the decision or report of the Board may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same upon each appellant or each appellant's counsel of record. All other intervention shall be governed by the Rules of Civil Procedure relating to intervention in actions.

Transcript of Board testimony. The appellant, before proceeding to hearing or argument upon the zoning appeal, shall obtain and file with the court a transcript thereof.

Supersedeas. At any time during the pendency of a zoning appeal, the court or a judge thereof may grant an order of supersedeas upon such terms and conditions, including the filing of security, as the court or judge thereof may prescribe.

Hearing and argument of zoning appeal. If no verbatim record of testimony before the Board was made, or if upon motion it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive such evidence or may remand the case to the Board or refer it to a referee to receive such evidence. Final decision of each zoning appeal shall be made by the court, or a judge thereof considering the record and the findings of fact made by the Board as supplemented and replaced by findings of fact made by judge or referee. The final decision shall contain conclusions of law, and:

Where the appeal is from the decision of the Board, the court may reverse, affirm or modify the decision appealed.

Where the appeal involves a challenge to the validity of any ordinance or map, the court shall have power to declare the ordinance, map or any provisions thereof invalid and, in addition thereto, shall have power to:

(a)

Enter judgement in favor of the landowner as provided in § 500-38B; or

(b)

Stay the effect of its judgement for a limited time to give the local governing body an opportunity to modify or amend the ordinance or map in accordance with the opinion of the court.

Costs. No costs shall be allowed against the Board, unless it shall appear to the court that the Board acted with gross negligence or in bad faith or with malice.

Other types of appeals. For the purpose of hearing and deciding appeals from decisions with respect to the approval or disapproval of subdivision plats, other particular matters under Chapter 415, Subdivision and Land Development, and under the planned development district provisions of this chapter, the procedure prescribed by this section shall be used and may be adapted, to the extent deemed necessary and convenient, by special or general order or rule of court.

Appellate review. Appeals from decisions of courts made under this act shall be taken to the Supreme Court of Pennsylvania in the manner provided for other civil cases, but no such appeal shall be entertained unless it is filed within 30 days after the date of entry of the decision of the lower court.

§ 500-44.1 Conditional uses.

[Added 3-27-2018 by Ord. No. 685]

General. Where the Zoning Ordinance has stated conditional uses to be granted or denied by the Borough Council pursuant to express standards and criteria, the Borough Council shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria.

Applications for any conditional use shall be made to the Borough Council through the Zoning Officer. The Zoning Officer shall concurrently refer the matter to the Planning Commission for a report thereon as specified in this section.

All applications shall include the following:

The submittal of an application for a hearing before the Borough Council.

A plan drawing that provides information sufficient to evaluate conformance with the criteria for conditional use as set forth in this section.

Information sufficient to evaluate conformance with the standards specified in the pertinent section of this chapter.

Public hearing. Conditional use applications shall be subject to the same public hearing requirements and decision-making process as special exception applications, with the exception that the Borough Council shall conduct the public hearing instead of the Zoning Hearing Board. Specifically, the Borough Council shall follow the public hearing process as established in § 500-40.

In granting a conditional use, the Borough Council may attach such reasonable conditions and safeguards in addition to those expressed in the Zoning Ordinance as it may deem necessary to implement the purposes of the Municipalities Planning Code, the Zoning Ordinance and to anticipate and ameliorate any negative impacts on the health, safety, and welfare of citizens residing nearby as well as the general public.

In considering conditional uses, the Borough Council shall utilize the following procedures.

The Borough Council's decision to approve or deny a conditional use application shall be made only after public notices and hearing as set forth in § 500-40 of this chapter. Such decision to approve or deny shall apply only after public notice and hearing.

No approval shall be granted by the Borough Council for any conditional use until the Borough Council has received and considered advisory reports thereon received from the Planning Commission with respect to the location of such use in relation to growth patterns within the Borough, and wherever appropriate, with reference to the adequacy of the site plan design and the arrangement of buildings, driveways, access points, parking areas, off-street loading spaces, signage, lighting and any other pertinent features of a site plan.