A.
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.
B.
The membership of the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board shall hold no other office in the Borough and may not be employees of the Borough. The 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 this subsection, all alternate members 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 powers and duties set forth in this chapter and as otherwise provided by law. Alternate members shall hold no other office in the Borough, including membership on the Borough Planning Commission and Zoning Officer. Any alternate member 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 Subsection F of this section unless designated as a voting alternate member pursuant to this section. 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 of the Zoning Hearing Board to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board shall continue to serve on the Zoning Hearing Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Zoning Hearing Board has made a final determination of the matter or case. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternate members.
C.
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 public
hearing shall be held in connection with the vote if the member shall
request it in writing.
D.
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 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.
E.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the Borough, the Code of Ordinances
of the Borough of West Reading 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.
F.
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.
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. Public notice shall be
published once each week for two successive weeks in a newspaper of
general circulation in the Borough. Such notice shall state the time
and place of the hearing and the particular nature of the matter to
be considered at the hearing. The first publication shall not be more
than 30 days and the second publication shall not be less than seven
days from the date of the hearing.
B.
The first hearing before the Board or hearing officer shall be commenced
within 60 days from the date of receipt of the applicant's 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 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 the applicant
is granted an equal number of additional hearings for rebuttal.
C.
The hearings shall be conducted by the Board or the Board may appoint
any member or an independent attorney as a hearing officer. The decision,
or, where no decision is called for, the findings shall be made by
the Board, 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, 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 issues 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 communications,
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 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 the MPC, 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 had 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. Except
for challenges filed under Section 916.1 of the MPC,[1] where the Board fails to render the decision within the period required by this subsection or fails to commence or complete the required hearing as provided in Subsection B of this section, 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 Subsection A 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.
[1]
Editor's Note: See 53 P.S. § 10916.1.
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. The Zoning
Hearing 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 to all other persons who
have filed their name and address with the Board not later than the
last day of the hearing.
L.
The Borough Council shall establish, by resolution, fees with respect
to hearings before the Zoning Hearing Board.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance,
except those brought before the Borough Council pursuant to §§ 609.1
and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code,
53 P.S. §§ 10609.1, 10916.1.[1]
(2)
Appeals from the determination of the Zoning Officer, including,
but not limited to, enforcement notices, notices of violation, 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.
(3)
Appeals from a determination by the Borough Engineer or Zoning Officer
with reference to the administration of any floodplain or flood hazard
ordinance or such provisions within a land use ordinance.
(4)
Applications for variances from the terms of this chapter and flood
hazard ordinance or such provisions within a land use ordinance, pursuant
to § 910.2 of the MPC, 53 P.S. § 10910.2.
(5)
Application for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to § 912.1 of the MPC, 53 P.S. § 10912.1.
(6)
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.
(7)
Appeals from the Zoning Officer's determination under § 916.2
of the MPC, 53 P.S. § 10916.2.
(8)
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., 10701 et seq.
B.
The Borough Council shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
(3)
Applications for conditional use under the express provisions of
this chapter.
(6)
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.[6] 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 Borough Planning Commission, all appeals from determinations under this subsection shall be to the Borough Planning Commission and all appeals from the decision of the Borough Planning Commission shall be to court.
[6]
Editor's Note: See 53 P.S. §§ 10501 et seq.,
10701 et seq.
A.
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:
(1)
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.
(2)
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.
(3)
That such unnecessary hardship has not been created by the applicant.
(4)
That the variance, if authorized, will not alter the essential character
of the neighborhood or district in which the property is located,
not substantially or permanently impair the appropriate use or development
of adjacent property, or not be detrimental to the public welfare.
(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 in issue.
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.
Where the Borough Council, in this chapter, 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. The hearings shall be conducted by Borough Council, or Borough Council may appoint any member or an independent attorney as a hearing officer. The decision, or if no decision is called for, the findings shall be made by Borough Council. A decision shall be rendered within 45 days following the conclusion of the hearing. However, the appellant or the applicant, as the case may be, in addition to Borough Council, may, prior to the decision of the hearing officer, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final. In granting a conditional use, the Borough Council 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. Where Borough Council fails to render the decision within the period required by this section or fails to commence, conduct or complete the required hearing as provided in § 455-15B hereof, 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 Borough Council to meet or render a decision as hereinabove provided, Borough Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of the MPC. If Borough Council shall fail to provide such notice, the applicant may do so.
Appeals raising the substantive validity of any land use ordinance
(except those to be brought before the Borough Council pursuant to
the Pennsylvania Municipalities Planning Code,[1] 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 transfers of development rights or performance density provisions
of this chapter; from the determination of the Zoning Officer or the
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 planning 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
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 a preliminary subdivision/land development plan, or from
an adverse decision by the Zoning Officer on a challenge to the validity
of this chapter or an amendment hereto or Zoning Map or any 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.
B.
All appeals from determinations adverse to the landowner shall be
filed by such landowner within 30 days after notice of the determination
is issued.
C.
Unless otherwise specified by the Zoning Hearing Board, a special
exception or variance shall expire if the applicant fails to implement
the proposed use or commence construction within 12 months from the
date of the authorization of the special exception or variance, unless
an extension is granted by the Zoning Hearing Board.
[Added 8-19-2014 by Ord. No. 1035]
D.
Unless otherwise specified by the Borough Council, a conditional
use approval shall expire if the applicant fails to implement the
proposed use or commence construction within 12 months from the date
of the authorization of the conditional use approval, unless an extension
is granted by the Borough Council.
[Added 8-19-2014 by Ord. No. 1035]
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.
