[Ord. 457, 1/31/1994, § 601]
There is hereby created a Zoning Hearing Board, herein referred
to as the "Board," consisting of five residents of the Borough appointed
by the Borough Council pursuant to the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10101 et seq., as amended. Said
Board shall perform all the duties, and exercise all powers prescribed
by said Code and as herein further provided.
[Ord. 457, 1/31/1994, § 602; as amended by Ord.
585, 9/12/2011]
The terms of office of the Board shall be five years and shall be so fixed that the term of office of one member shall expire each year. The Board shall promptly notify the Council of any vacancies which 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, nor be a member of the Planning Commission. Council shall also appoint one alternate member to the Board. The appointment, rights and duties of the alternate shall be in accordance with Article
IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
[Ord. 457, 1/31/1994, § 603]
Any Board member may be removed for misfeasance or nonfeasance
in office, or for other just cause, by a majority vote of Council,
taken after the member has received 15 days' advance notice of the
intent to take such a vote. A hearing shall be held in connection
with the vote if the member shall request it in writing.
[Ord. 457, 1/31/1994, § 604]
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 or the taking of any action, a quorum shall
be not less than the majority of all the members of the Board, but
where three members are disqualified to act in a particular matter,
the alternate member shall be seated. 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 § 908 of the Municipalities Planning Code, 53 P.S. § 10908.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with Borough ordinances 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 Council once a year or as requested
by Council.
[Ord. 457, 1/31/1994, § 605]
Within the limits of funds appropriated by 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 from time to time by Council, but in no case shall it exceed
the rate of compensation authorized to be paid to the members of Council.
[Ord. 457, 1/31/1994, § 606]
Where legal counsel is desired, an attorney, other than the
Borough Solicitor, shall be used.
[Ord. 457, 1/31/1994, § 607]
1. The Board shall conduct hearings and make decisions in accordance
with the following requirements.
A. Notice shall be given to the public and shall conform to requirements
for same contained in the Pennsylvania Municipalities Planning Code,
53 P.S. § 10101 et seq. In addition to the 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.
B. The Borough Council may prescribe reasonable fees with respect to
hearings before the Zoning Hearing Board. Fees for said hearings may
include compensation for 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
required by the Board.
C. 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 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.
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 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
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, except that advice from the Board's Solicitor
is exempt from this restriction; shall not take notice of any communication,
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 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 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 application is contested
or denied, each decision shall be accompanied by findings of fact
and conclusions based thereon together with the reasons therefore.
Conclusions based on any provisions of this chapter or the Municipalities
Planning Code, 53 P.S. § 10101 et seq., or any 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 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. Where the Board fails
to render the decision within the period required by this chapter
or the Municipalities Planning Code, or fails to hold the required
hearing within 60 days from the date of the applicant's request for
a hearing, 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 herein above provided, the Board shall give
public notice of said decision within 10 days in the same manner as
provided in § 607(1) of the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10607(1). Nothing in this paragraph
shall prejudice the right of any party to appeal the decision to a
court of competent jurisdiction.
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. To all other
persons who have filed their name and address with the Board no later
than the last day of the hearing, the Board shall provide by mail
or otherwise, a brief notice of the decision or findings and a statement
of the place at which the full decision or findings may be examined.
[Ord. 457, 1/31/1994, § 608; as amended by Ord.
545, 2/26/2007, § 27-608]
1. Substantive challenges to the validity of any land use ordinance,
except those brought before the governing body pursuant to §§ 609.1
and 916.1(a)(2) of the Planning Code, 53 P.S. §§ 10609.1,
10916.1(a)(2).
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 chapter. Where the ordinance appealed
from is the initial zoning ordinance of the Borough and a Zoning Hearing
Board has not been previously 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.
4. Appeals 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.
5. Applications for variances from the terms of the zoning ordinance and flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 910.2 of the Municipalities Planning Code, 53 P.S. § 10910.2 and Subsection
8 of this section.
6. Appeals from the Zoning Officer's determination under § 916.2
of the Municipalities Planning Code, 53 P.S. § 10916.2.
7. Appeals from the determination of the Zoning Officer or municipal 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 Article
V or
VII applications of the Municipalities Planning Code, §§ 10501 et seq., 10701 et seq.
8. Variances. The 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:
A. 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.
B. 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.
C. Such unnecessary hardship has not been created by the applicant.
D. 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.
E. 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. In granting any variance, the
Board may attach such reasonable conditions and safeguards as it may
deem necessary to implement the purpose of this chapter.
9. Special Exceptions. The Board shall hear and decide requests for
special exceptions in accordance with the standards and criteria of
this chapter. In granting a special exception, the Board may attach
such reasonable conditions and safeguards, in addition to those expressed
in the 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.
[Ord. 457, 1/31/1994, § 609]
Appeals under §
27-608 and proceedings to challenge this chapter under §
27-608 may be filed with the Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance under §
27-608 may be filed with the Board by any landowner or any tenant with the permission of such landowner.
[Ord. 457, 1/31/1994, § 610]
No person shall be allowed to file any proceeding with the Board
later than 30 days after an application for development, preliminary
or final, has been approved by an appropriate Borough 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 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. See also § 914.1 of the Municipalities Planning
Code, 53 P.S. § 10914.1.
[Ord. 457, 1/31/1994, § 611]
Upon filing of any proceeding referred to in §
27-608 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. See also § 915.1 of the Municipalities Planning Code, 53 P.S. § 10915.1.