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.
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.
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.
J.
All commercial or industrial parking, loading, access or service areas will be adequately illuminated at night while in use as per Article
XXIII, and the Malvern Borough Subdivision and Land Development Ordinance relating to access and street frontage.
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.
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.