A.
Membership of Board.
(1)
The membership of the Board shall, upon the determination of the
Borough Council, consist of either three or five residents of the
Borough by resolution of the Borough Council. The terms of office
of a three-member Board shall be three years and shall be so fixed
that the term of office of one member shall expire each year. The
terms of office of a five-member Board shall be five years and shall
be so fixed that the term of office of one member shall expire each
year. If a three-member Board is changed to a five-member Board, the
members of the existing three-member Board shall continue in office
until their terms of office would expire under prior law. The Borough
Council shall appoint two additional members to the Board with terms
scheduled to expire in accordance with the provisions of this subsection.
The Board shall promptly notify the Borough Council of any vacancies
which should occur. Appointments to fill vacancies shall be only for
the unexpired portion of the term. Members of the Board shall hold
no other office in the Borough.
(2)
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 Board. The term of office of an alternate member shall be three years. When seated pursuant to the provision of Subsection B, an alternate shall be entitled to participate in all proceedings and discussions of the 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. Alternates shall hold no other office in the Borough. Any 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 Section 907 of the Pennsylvania Municipalities Planning Code, Act 47,[1] unless designated as a voting alternate member pursuant to Subsection B.
[1]
Editor's Note: See 53 P.S § 10907.
B.
Organization of Board.
(1)
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 § 224-41.
(2)
If, by reason of absence or disqualification of a member, a quorum
is not reached, the Chairman of the Board shall designate as many
alternate members of the Board to sit on the Board as may be needed
to provide a quorum. Any alternate member of the Board 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. Designation of an
alternate pursuant to this subsection shall be made on a case-by-case
basis in rotation according to declining seniority among all alternates.
(3)
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the municipality and laws of the commonwealth.
The Board shall keep full public records of its business and shall
submit a report of its activities to the Borough.
C.
Powers. The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final decisions in the following matters:
(1)
Substantial challenges to the validity of any land use ordinance
except those brought before the Borough Council pursuant to Sections
609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning
Code, Act 247, as amended.[2]
[2]
Editor's Note: See 53 P.S §§ 10609.1 and 10916.1(a)(2),
respectively.
(2)
Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said ordinance. Where the ordinance appealed
from is the initial Zoning Ordinance of the Borough and a Zoning Hearing
Board has not previously been established, the appeal raising procedural
questions shall be taken directly to court.
(3)
Appeals from the determination of the Zoning Officer, including but
not limited to the granting or denial of any permit or failure to
act on the application therefor, the issuance of any cease and desist
order or the registration or refusal to register any nonconforming
use, structure or lot.
D.
Board calendar. Each application or appeal filed in the proper form
with the required data must be numbered serially and be placed upon
the calendar of the Board by the Zoning Officer. Applications and
appeals must be assigned for hearing in the order in which they appear
on the calendar. However, for good reason, the Board may order the
advance of the application or appeal. A hearing must be held within
60 days from the date the appeal or application is filed, unless the
applicant has agreed, in writing, to an extension of time.
A.
Notice; conduct of meeting.
(1)
Public notice shall be given and written notice shall be given to
the applicant, the Zoning Officer, such other person as the Borough
shall designate by ordinance and to any person who, at least 15 days
prior to the scheduled hearing date, has made request for the same.
The Borough Secretary, upon notification by the Secretary of the Zoning
Hearing Board, shall give written notices by personal delivery or
by regular mail to said persons at their last known address at least
14 days, but not more than 30 days, prior to the date of the hearing,
stating the time and place of the hearing and the particular nature
of the matter to be be considered at the hearing. If mailed, the notice
shall be deemed to be given on the date mailed. 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.
(2)
The Borough Council may prescribe reasonable fees with respect to
hearings before the Zoning Hearing Board. Fees for said hearings may
include compensations of the Secretary and members of the Zoning Hearing
Board, notice and advertising costs and necessary administrative overhead
connected with the hearing. The costs, however, shall not include
legal expenses of the Zoning Hearing Board, expenses for engineering,
architectural or other technical consultants or expert witness costs.
(3)
The hearings shall be conducted by the Board or the Board may appoint
any member as a hearing officer. The decision or, where no decision
is called for, the findings shall be 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 of the hearing officer as final.
(4)
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded. The Board or the hearing
officer shall not communicate, directly or indirectly, with any party
or his representatives in connection with any issue involved except
upon notice and opportunity for all parties to participate, shall
not take notice of any communication, reports, staff memoranda or
other materials except advice from their solicitor, unless the parties
are afforded any 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.
B.
Representation; statements.
(1)
Parties to the hearings 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.
(2)
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.
(4)
The applicant or appellant must be given an opportunity for rebuttal.
C.
Witnesses. The Chairman or Acting Chairman of the Board or the hearing
officer presiding shall have the 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.
D.
Decision procedure.
(1)
The Board or the Hearing Officer, as the case may be, shall render
a written decision or, when no decision is called for, make written
findings on the application within 45 days after the last hearing
before the Board or hearing officer. Where the application is contested
or denied, each decision shall be accompanied by findings of fact
and conclusions based on thereon, together with the reasons therefor.
Conclusions based on any provisions of the Pennsylvania Municipalities
Planning Code, as amended,[1] 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 the light of the facts found. If the hearing is conducted by a hearing officer and there is no stipulation that his decision of findings is final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings and the Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Board fails to render the decision within the period required by this subsection or fails to hold the required hearing within 60 days from the date the appeal or application is filed with the Borough, 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 in the same manner as provided in Subsection A of this section. 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. § 10101 et seq.
(2)
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. A copy of
said decision shall also be delivered or mailed to the Borough Zoning
Officer in the same manner as the applicant. 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 statement of the place
at which the full decision or findings may be examined.
(3)
Whenever the Board imposes a condition or conditions with respect
to the granting of an application or appeal, this condition must be
stated in the order of the Board and in the permit issued pursuant
to the order by the Zoning Officer. This permit remains valid only
as long as the conditions or condition upon which it was granted or
the conditions imposed by this chapter are adhered to.
E.
Records. 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
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.
A.
Filing of variance.
(1)
An application may be made to the Zoning Hearing Board for a variance
where it is alleged that the provisions of the Zoning Ordinance inflict
unnecessary hardship upon the applicant. The application must be on
a form provided for that purpose by the Zoning Officer. It must be
filed with the Board and copies given to the Zoning Officer and Borough
Planning Commission. The applicant must provide all the information
requested on the form, together with any other information and data
that may be required to advise the Board of the variance, whether
such information is called for by the official form or not.
(2)
Unless otherwise specified or extended by the Board, a variance authorized
by it expires if the applicant fails to obtain a building permit or
use certificate within six months from the date of the authorization
of the variance.
B.
Referral to Planning Commission. All applications for a variance
shall be referred to the Planning Commission for a report.
C.
Standards for variance. Where there is unnecessary hardship, the
Board may grant a variance in the application of the provisions of
this chapter, provided that the following findings are made where
relevant in a given case:
(1)
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 zone in which the property
is located.
(2)
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.
(3)
The unnecessary hardship has not been created by the appellant.
(4)
The variance, if authorized, will not alter the essential character
of the neighborhood or zone 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)
The variance, if authorized, will represent the minimum variance
that will provide relief and will represent the least modification
possible of the regulation in existence.
D.
Conditions. 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.
A.
Filing of special exceptions.
(1)
For any use permitted by special exception, a special exception must
be obtained from the Zoning Hearing Board. In addition to the information
on the building permit application, the special exception application
must show:
(2)
Unless otherwise specified or extended by the Zoning Hearing Board,
a special exception authorized by the Board expires if the application
fails to obtain, where required to do so, a building permit or use
certificate within six months of the date of the authorization of
the special exception.
B.
Temporary special exceptions.
(1)
A temporary special exception must be obtained from the Zoning Hearing
Board for any nonconformity which is or will be seasonal or is or
will be in the public interest. The Zoning Hearing Board may grant
a temporary special exception for a nonconforming use or structure,
existing or new, which:
(2)
The temporary special exception may be issued for a period not exceeding
one year and may be renewed for an aggregate period not exceeding
three years. The nonconforming structure or use must be completely
removed upon the expiration of the special exception without cost
to the Borough.
C.
Referral to Planning Commission. All applications for a special exception
shall be referred to the Borough Planning Commission for a report.
D.
Conditions. The Zoning Hearing Board, in passing upon special exception
applications, may attach conditions considered necessary to protect
the public welfare and the Comprehensive Plan, including conditions
which are more restrictive than those established for other uses in
the same zone.
E.
Application of extent-of-use regulations. The extent-of-use regulations
as set forth in this chapter must be followed by the Zoning Hearing
Board. Where no extent-of-use regulations are set forth for the particular
use, the Board must impose extent-of-use requirements as necessary
to protect the public welfare and the Comprehensive Plan.
F.
General standards.
(1)
A special exception may be granted when the Zoning Hearing Board
finds from a preponderance of the evidence produced at the hearing
that:
(a)
The proposed use, including its nature, intensity and location,
is in harmony with the orderly and appropriate development of the
zone;
(b)
Adequate water supply, sewage disposal, storm drainage and fire
and police protection are or can be provided for the use;
(c)
The use of adjacent land and buildings will not be discouraged
and the value of adjacent land and buildings will not be impaired
by the location, nature and height of buildings, walls and fences;
(d)
The use will have proper location with respect to existing or
future streets giving access to it and will not create traffic congestion
or cause industrial or commercial traffic to use residential streets;
and
(e)
The specific standards set forth for each particular use for
which a special exception may be granted have been met.
(2)
The applicant for a special exception shall have the burden of proof,
which shall include the burden of going forward with the evidence
and the burden of persuasion on all questions of fact which are to
be determined by the Zoning Hearing Board.