A.
The purpose of this article is to establish regulations to govern
the establishment, functions, and procedures of the Borough Zoning
Hearing Board, hereinafter called the "Board."
B.
A Zoning Hearing Board shall be established for the purpose of carrying out zoning functions as provided by Article IX of Act 247, the Pennsylvania Municipalities Planning Code, as amended. The Board shall consist of three members appointed by Borough Council for overlapping terms of three years each, with one term of office to expire each year. Members of the Board shall be residents of the Borough and shall hold no other office. The Board shall promptly notify Borough Council of any vacancy. Appointments to fill vacancies shall be only for the unexpired portion of the term.
C.
The Borough Council may, by resolution, appoint a resident of
the Borough to serve as alternate member of the Board. The term of
the alternate member shall be three years, and the alternate member
shall hold no other office in the Borough. An alternate may participate
in any proceeding or discussion of the Board, but shall not be entitled
to vote as a member of the Board nor be compensated pursuant to § 220-2804,
unless designated as a voting alternate member pursuant to § 220-2801.
Alternatives shall hold no other office in the Borough.
D.
Any Board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by majority vote
of Borough Council, taken after the member has received 15 days' advance
notice of the intent to take such a vote. A hearing will be held in
connection with the vote if the member shall request it in writing.
A.
The Board shall elect officers from its membership annually,
and such officers may succeed themselves. For the conduct of any hearing
and the taking of any action, the 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 § 220-2805.
B.
If, by reason of absence or disqualification of a member, a
quorum is not reached, the chairman of the Board shall designate the
alternate member(s) to sit on the Board. The alternate member shall
continue to serve on the Board in all proceedings involving the matter
or case for which the alternate was initially appointed, until the
Board has made a final determination of the matter or case.
C.
The Board, subject to the conditions of this chapter and the
laws of the commonwealth, may adopt, alter, and rescind rules and
forms for its procedure. The Board shall file a copy of each decision
with the Borough Manager, and with the Borough Zoning Officer. The
Board shall keep full public records of its business, which records
shall be the property of the Borough, and shall submit a full report
of its activities to the Borough Council, as requested.
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 this chapter or Zoning
Map, except those brought before the Borough Council pursuant to Section
609.1 and 916.1(a)(2) of Act 247, the Pennsylvania Municipalities
Planning Code, as amended.
B.
Challenges to the validity of this chapter or Map raising procedural
questions or alleged defects in the process of enactment or adoption
shall be raised by an appeal taken within 30 days after the effective
date of said chapter. Where the ordinance appealed from is the initial
Zoning Ordinance of the municipality and a 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, misinterpretation or misapplication of any provision
of a valid ordinance or map, or any valid rule or regulation of the
Borough governing the action of the Zoning Officer.
D.
Appeals from a determination by the Borough Engineer or the
Zoning Officer with reference to the administration of any floodplain
or flood hazard article within this chapter.
E.
Applications for variances from the terms of this Zoning Ordinance
pursuant to § 220-2808, such provisions within a land use
ordinance pursuant to Section 910.2 of Act 247, the Pennsylvania Municipalities
Planning Code, as amended.
F.
Applications for special exceptions under the Zoning Ordinance
pursuant to § 220-2809, or such provisions within a land
use ordinance, pursuant to Section 912.1 of Act 247, the Pennsylvania
Municipalities Planning Code, as amended.
G.
Appeals from the Zoning Officer's determination of preliminary
opinion about a proposed development or use under Section 916.2 of
Act 247, the Pennsylvania Municipalities Planning Code, as amended.
H.
Appeals from the determination of the Zoning Officer or Borough
Engineer in the administration of this chapter or provision thereof
with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to development.
A.
Applications for hearings before the Board shall be filed with
the Zoning Officer, together with the proper fee in accordance with
§ 220-2804.
B.
An application for a special exception or variance from the
terms of this chapter shall state:
(1)
The name and address of the applicant.
(2)
Name and address of the owner of the real estate
to be affected by the proposed application.
(3)
Description and location of the real estate to
be affected by such proposed change.
(4)
Statement of the present zoning classification,
present land use, and existing improvements of the real estate in
question.
(5)
Statement of the section of this chapter authorizing
the proposed special exception or variance and reasons why it should
be granted.
(6)
Description of the proposed use and improvements.
(7)
Site plan and design of proposed changes:
[Amended 6-16-2020 by Ord. No. 2020-5]
(a)
Indicating the metes and bounds of the property,
any proposed modification of property boundaries, location, arrangement,
use, setback, and dimensional features showing compliance with applicable
area, width, coverage, yard, and design standards of all proposed
new structures, existing structures, additions to existing structures,
and any significant features, existing and proposed improvements and
facilities, such as, but not limited to, drainage facilities, utility
lines, driveways, paved areas, curb cuts, and any additional information
pertinent to the application.
(b)
Where a variance is sought for increased building
coverage or building height in any base residential zoning district,
architectural renderings shall be provided to illustrate the intended
general design of new construction and shall demonstrate to the satisfaction
of the Zoning Hearing Board that building mass, scale, proportions,
and form of new construction - including rooflines, reflect those
generally characteristic of Malvern Borough, in accordance with the
following. This requirement shall not apply where a conditional use
application in accordance with base zoning provisions shall be applicable
and shall be satisfied. Demonstration of "generally characteristic"
shall be interpreted to mean:
[1]
Window size and placement should minimize direct
views onto neighboring properties bordering on any side yard to respect
privacy;
[2]
Where overall building mass or scale, or proportions
of component parts, including dormer or shed roofs, bays, or overhangs,
are larger than the average mass, scale, or proportions exhibited
in residences within 500 feet and that fall within the same zoning
district as the proposed construction, building mass and roof lines
should be broken so that the constituent parts more closely reflect
traditional residential construction;
[3]
Buildings should include pedestrian scale elements
such as porches and porticos;
[4]
Box-like straight facades and flat roofs should
be avoided;
[5]
Peaked roofs at approximately 8/12 rise-over-run
ratio are encouraged;
[6]
Gables should be broken where necessary such that
the rise in a peaked roof does not exceed 12 feet;
[7]
Building height should not impose upon residential
buildings on adjacent properties by being more than 10 feet higher
at or near the minimum side yard;
[8]
Garage doors should be designed to recede from
view due to greater prominence of other architectural features; and
[9]
Attached garages with more than two bays should
be accessed from the side or rear of the residence where feasible;
detached garages at the rear of the lot are encouraged.
(c)
In the case of an application involving a proposed
modification of property boundaries, the site plan must be prepared
by a licensed engineer or surveyor. In the case of other applications,
the site plan may be prepared by the applicant's representative, but
the information must, nevertheless, be sufficiently accurate to provide
the Zoning Hearing Board with the factual basis to determine the issues.
C.
In the event that any required information is not furnished,
the application shall be refused and the fee returned to the applicant.
A.
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, including the alternative member when designated in accordance
with § 220-2801, may receive compensation for the performance
of their duties, as may be fixed by the Borough Council, but in no
case shall the amount of compensation exceed the rate of compensation
authorized to be paid to the members of the Borough Council.
B.
The Borough Council may prescribe reasonable fees with respect
to hearings before the Board. Fees for said hearings may include compensation
for the secretary and members of the Board, notice and advertising
costs and necessary administrative overhead connected with the hearing.
The costs, however, shall not include legal expenses of the Board,
expenses for engineering, architectural or other technical consultants
or expert witness costs. The applicant, before any action by the Board,
shall deposit with the Zoning Officer the appropriate filing fee as
set forth in the fee schedule adopted by resolution of the Borough
Council.
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
The Board shall fix a reasonable time and place for public hearings.
Notification of said hearing shall be provided, as set forth in § 220-2806.
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 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 municipality, be granted additional hearing
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 the 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
the power to require that all persons who wish to be considered parties
enter appearances in writing on forms provided by the Board for that
purpose.
E.
The chairman or acting chairman of the Board or the hearing
officer presiding shall have 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,
to argument and to cross-examine adverse witnesses on all relevant
issues.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
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 in full by
the Board if the transcript is ordered by the Board or hearing officer,
or shall be paid in full 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 that party's representatives in connection
with any issue involved, except upon notice and opportunity for all
parties to participate 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 with any party
or his representative after the commencement of the hearing 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
and conclusions based thereon, together with the reasons therefor.
Conclusions based on any provisions of this chapter or of any act,
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 the decision or findings
of the hearing officer are final, the Board shall make the hearing
officer's 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 decision of the Board shall be entered no later than 30 days
after the report of the hearing officer. Except for challenges filed
under Act 247, Section 916.1, where the Board fails to render a decision
within the forty-five-day period required by this section, or fails
to commence, conduct, or complete the required hearing as provided
in § 220-2805B, the decision shall be deemed to have been
rendered in favor of the applicant, unless the applicant has agreed
or shall agree 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 § 220-2806. 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, the findings shall be delivered to the applicant personally or
mailed to the applicant 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.
Public notice of any public hearing shall be given as follows:
A.
The public notice herein required shall state the name of the
applicant, the location of the lot or building and the general nature
of the question involved, and the date, time and location of the hearing.
B.
Public notice shall be published as per Act 247.
C.
Public notice of said hearing shall be conspicuously posted
on the affected tract of land at least one week prior to the hearing.
D.
Notice of all hearings shall be given in writing to the applicant;
the Zoning Officer; the Borough Manager; and Borough Planning Commission,
by mail to the owner, if the address is known, or to the occupant
of every lot on the same street within 500 feet of the lot or building
in question and of every lot not on the same street within 200 feet
of said lot or building; and to any person who has made a timely request
for same, or who have registered their names and addresses for this
purpose with the Board. Such written notice shall be given at least
10 days prior to the hearing. The Board may mail written notice thereof.
Failure to give this notice, either in part or in full, as stated
by this subsection, shall not invalidate any action taken by the Board.
E.
In addition thereto, the public notice may note that copy of
the landowner's application may be examined by the public at the Borough
Hall during regular business hours.
A.
Any landowner affected, any person aggrieved by any decision
under § 220-2802A, B, C, D, G, or H, or any officer of the
Borough, may file an appeal to the Zoning Hearing Board in writing
specifying the grounds thereof with the time required by Act 247,
the Pennsylvania Municipalities Planning Code, as amended, and in
the manner required by the rules of the Zoning Hearing Board. These
appeals must be filed within 30 days of the date that the decision
or determination appealed from is issued. All appeals shall be on
forms prescribed by the Zoning Hearing Board, accompanied by the requisite
fees, shall refer to the specific provision of this chapter involved
and reasonably state the basis for the appeal.
[Amended 6-19-2012 by Ord. No. 2012-3]
B.
Requests for a variance or special exception may be filed by
any landowner or any tenant with permission of the landowner. The
appropriate fee, as established by the fee schedule adopted by resolution
by the Borough Council, shall be paid in advance for each appeal or
application for a variance or special exception.
A.
The Board shall hear requests for variances where it is alleged
that the provisions of the Zoning Ordinance inflict unnecessary hardship
upon the applicant. The Board may grant a variance, provided 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 the Zoning 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 neither
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.
(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.
B.
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.
Where this chapter provides special exception uses to be authorized
or denied by the Board, pursuant to express standards and criteria,
the Board shall hear and decide requests for such uses in accordance
with such standards and criteria, as follows, in addition to such
other requirements and standards listed in this chapter for the proposed
use. 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 the
Pennsylvania Municipalities Planning Code (MPC) and this chapter.
A.
The size, scope, extent and character of the special exception
request is consistent with the Borough Comprehensive Plan and with
the purpose and intent of the zoning district involved, and promotes
harmonious and orderly development.
B.
The proposed special exception use constitutes an appropriate
use in the area consistent with the character and type of development
in the area surrounding the location for which the request is made
and will not substantially impair, alter, or detract from the use
of surrounding property or from the character of the neighborhood;
its effect on the other properties in the area; and is consistent
with the presence or absence in the neighborhood of conditions or
uses which are the same or similar in character to the condition or
use for which the applicant seeks approval.
C.
The proposed special exception serves the health, safety, welfare,
and the best interest of the Borough.
D.
The proposed use has adequate access and off-street parking, in accordance with Article XXV, and will not cause undue traffic congestion and hazard.
E.
Major street and highway frontage will be developed so as to
limit the total number of access points and encourage access from
parallel marginal roads or on roads perpendicular to the major street
or highway.
F.
The proposed modification is reasonable in terms of the logical,
efficient and economical extension of public services and facilities,
such as public water and sewers, police and fire protection, transportation
and public schools.
G.
The natural features and processes characterizing the proposed
site and its surroundings shall not suffer unmitigated degradation,
that the management of stormwater, the provision of water or sewer
service, and any other alterations to the site's predevelopment condition
shall be consistent with Borough goals, practices and plans in these
regards.
H.
Conditions are being imposed on the grant of this use to insure
that the general purpose and intent of this chapter is complied with
and that the use of adjacent property is adequately safeguarded with
respect to harmonious design of buildings, aesthetics, planting and
its maintenance as a sight or sound screen, landscaping, hours of
operation, lighting, number of persons involved, allied activities,
ventilation, noise, sanitation, safety, smoke and fume control and
the minimizing of noxious, offensive or hazardous elements.
I.
The recommendations of the Planning Commission on the proposed
development plan should be reviewed, where such plan is required.
The Board shall not be bound by such recommendations, nor shall the
Board be bound by the action of the Borough Council in relation to
the development plan.
The applicant or appellant shall have the burden of proof in
all proceedings before the Board, including the burden of establishing
that all conditions specified in this chapter have been met, and with
regard to a variance or special exception, that the express standards
and criteria to be considered by the Board have been met.
Unless otherwise specified by the Board, a special exception
or variance shall expire if the applicant fails to obtain a building
permit, a use and occupancy permit, or a subdivision and land development
approval, as the case may be, within six months from the date of authorization
thereof.
A.
No person shall be allowed to file any proceeding with the Board
later than 10 days after any permit has been issued or refused, or
any other decision made by the Zoning Officer, or an application for
development, preliminary or final, has been approved by the Borough
Council, if such proceeding is designed to secure reversal or to limit
approval in any manner unless such person alleges and proves that
they 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, that person shall be bound by the knowledge of their
predecessor in interest. The failure of anyone other than the landowner
to appeal from an adverse decision by the Zoning Officer on a tentative
plan pursuant to Section 709 of the Act 247, as amended, or from an
adverse decision by the Zoning Officer on a challenge to the validity
of an ordinance or map pursuant to Section 916.2 of Act 247, the Pennsylvania
Municipalities Planning Code, as amended 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 landowners, to
either the Zoning Hearing Board or Borough Council, shall be filed
with the Borough Zoning Officer by the landowner within 30 days after
notice of determination is issued.
A.
Upon filing of any proceeding referred to in § 220-2807
and during its pendency before the Board, all land development pursuant
to any challenged zoning 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 such case, the
development or official action shall not be stayed otherwise than
by a restraining order, which may be granted by the Board, or by the
Court having jurisdiction of zoning appeals on petition after notice
to the Zoning Officer or other appropriate agency or body.
B.
When an application for preliminary or final development has
been duly approved and proceedings designed to reverse or limit the
approval area 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. Procedures shall be in accordance
with Act 247, Section 915.1.
All appeals from all land use decisions rendered pursuant to Article IX of Act 247 shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S.A. § 5572 (relating to time of entry of order) or, in the case of a deemed decision, within 30 days after the date upon which the notice of said deemed decision to given as set forth in Section 908(9) of Act 247.
