A.
The word "Board" when used in this article shall mean the Zoning
Hearing Board.
B.
The membership of the Board shall, upon the determination of the
Borough Council, consist of either three or five residents of the
Borough appointed by resolution. The terms of office of a three-member
board shall be determined by the Municipalities Planning Code,[1] as last amended, 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 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 term of office would expire
under prior law. Borough Council shall appoint two additional members
to the Board with terms scheduled to expire in accordance with the
provisions of this section. The Board shall promptly notify the governing
body 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
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 governing body which appointed the member, taken after the member
has received advanced notice pursuant to the Municipalities Planning
Code 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.
The Borough Council may appoint by resolution no more than three
residents of the Borough to serve as alternate members of the Board.
The term of office of an alternate shall be determined by the Municipalities
Planning Code.[1]
A.
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. An alternate so designated 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 article and as otherwise provided by law.
B.
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.
C.
Alternate members may hold no other office in the Borough.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
The Board shall elect a chairperson from its own membership, 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 not be 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 § 680-17.
B.
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 site 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 as
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 alternates.
C.
The Board may make, alter, or 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, which records
shall be the property of the municipality, and shall submit a report
of its activities to the governing body as requested by the governing
body.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in accordance with the requirements of Article IX of the Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
Challenges and appeals from decisions made by the Borough Zoning
Officer 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 variance or special exception may be filed by any landowner or
any tenant with permission of the landowner. An appeal or application
regarding a matter within the jurisdiction of the Zoning Hearing Board
may be filed with the Zoning Officer on forms provided by the Zoning
Hearing Board, and shall state:
A.
The name and address of the applicant, and of the applicant's representative(s)
or agent(s) where applicable.
B.
The name and address of the owner of record of the property that
is the subject of the application or appeal. Where the applicant is
not the owner of record of the subject property, a signed and notarized
statement from the owner of record, authorizing the applicant to pursue
the specific appeal or application.
C.
A copy of the deed to the subject property.
D.
A brief description and location of the subject property, along with
a survey and/or sketch of the property boundaries.
E.
A statement of the present zoning classification of the subject property
with the improvements thereon, and the present use thereof.
F.
A statement of the section of this chapter under which consideration
by the Board is requested, along with a summary of reasons or arguments
in support of request.
G.
A reasonably accurate description of the improvements or changes
intended to be made under the application. In addition, there shall
be attached a plot plan of the property to be affected, indicating
the location and size of the lot, and the size and location of the
existing and proposed improvements or changes.
H.
A list of all landowners within 500 feet of the applicant's land,
to be supplied by applicant, who shall obtain the list at his or her
own cost and expense from the Montgomery County Board of Assessment
Appeals, or from Collegeville Borough and other municipalities when
the adjacent land is outside the Borough.
A.
Immediately upon receipt of an application, the Zoning Officer shall
promptly forward the application to the Zoning Hearing Board Solicitor.
B.
The Zoning Hearing Board Solicitor, in consultation with the Board's
chairperson, shall fix a reasonable time and place for a public hearing
on the application. Said hearing shall occur no more than 60 days
after the application is made to the Borough, unless the applicant
has agreed in writing to an extension of time.
C.
A true and correct copy of the application and all related information
shall be forwarded to each member of the Zoning Hearing Board, and
to the President of the Borough Council, the Borough Manager, and
the Borough Solicitor.
The Board shall schedule a public hearing and shall give public
notice, as well as written notice as follows:
A.
Written notice shall be given to:
B.
Written notice shall be conspicuously posted on the affected tract
of land at least one week prior to the hearing. Written notices must
be removed no later than one week after the Board has made its final
decision, unless directed otherwise by the Board's Solicitor.
A.
Zoning Hearing Board hearings shall be held at the call of the chairperson
and at such times as the Board may determine. The Board shall make
a good faith effort to schedule hearings at a time convenient for
as many residents as possible.
B.
Hearings may be conducted by the Board, which may appoint any member
as a hearing officer. The decision or findings shall be made by the
Board; however, the applicant may, prior to a decision, waive a decision
or findings by the Board and accept the decision or findings of the
hearing officer as final.
C.
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 for that purpose.
D.
The chairperson or acting chairperson or hearing officer may administer
oaths and issue subpoenas to compel the attendance of witnesses and
production of relevant documents and papers, including witnesses and
documents requested by the parties.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
G.
The Board or the hearing officer 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.
H.
The Board or hearing officer shall not, except upon notice and opportunity
for all parties to be present, participate, and inspect and contest
materials, engage in the any of the following activities:
(1)
Communicate, directly or indirectly, with any party or his or her
representative in connection with any issue involved.
(2)
Take notice of any communication, reports, staff memoranda, or other
materials, except advice from the Solicitor.
(3)
Inspect the subject site or its surroundings after commencement of
hearings with any party or his or her representative.
A.
The Zoning Hearing Board or hearing officer shall render a written
decision or, when no decision is called for, make written findings
on the application within 45 days of the last hearing. When the application
is contested or denied, the decision shall be accompanied by findings
of fact and conclusions based upon findings. Conclusions based on
any provision of a Borough ordinance shall contain a reference to
the provision.
B.
If the hearing is conducted by a hearing officer, and there has been
no stipulation that his or her decision or findings are final, the
Board shall make his or her report and recommendations available to
the parties within 45 days and the parties shall be entitled to make
written representations to the Board prior to final decision or entry
of findings. The Board's decision shall be entered no later than 30
days after the report of the hearing officer.
C.
Where the Board fails to render the decision within the required
period, or fails to hold the required hearing within 60 days of application,
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.
D.
When a decision has been deemed to have been rendered in favor of
the applicant because of the failure of the Board to hold a hearing
or render a decision as provided, the Board shall give public notice
of said deemed decision within 10 days from the last day it could
have met to render a decision. 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.
E.
A copy of the final decision or findings shall be delivered to the
applicant personally or mailed to him or her not later than the day
following its date. To all other persons who have filed their names
and addresses 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.
In the consideration of an application, the Board shall:
A.
Consider the suitability of the property for the use desired. Assure
itself that the proposed change is consistent with the spirit, purpose,
and intent of this chapter and Comprehensive Plan.
B.
Determine that the proposed change will not substantially injure
or detract from the use of neighboring property or from the character
of the neighborhood and that the use of the adjacent property is adequately
safeguarded.
C.
Determine that the proposed change will serve the best interests
of the Borough, the convenience of the community (where applicable),
and the public welfare.
D.
Consider the effect of the proposed change upon the logical, efficient,
and economical extension of public services and facilities such as
public water, sewers, police and fire protection, and public schools.
E.
Consider the suitability of the proposed location of use with respect
to probable effects upon highway traffic, and assure adequate access
arrangements in order to protect major roads from undue congestion
and hazard.
F.
Be guided in its study, review, and recommendation by sound standards
of subdivision and land development practice where applicable.
G.
Impose such conditions and safeguards in addition to those required
as are necessary to assure that the intent of this chapter and the
Comprehensive Plan are complied with, which conditions may include
(but are not limited to) harmonious design of buildings, planting
and its maintenance as a sight or sound screen, the minimizing of
noxious, offensive or hazardous elements, and adequate standards of
parking, loading, and sanitation.
H.
The Zoning Hearing Board shall be limited to consideration of applications
as they relate to ordinance provisions in effect at the time of the
application. The Borough Council shall retain the exclusive right
to enact and amend ordinances.
A.
Variance. 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 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 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 the 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,
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 at issue.
B.
Special exception. The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of this chapter that permits application for said special exception, and with the general standards in § 680-19 of this article.
C.
Burden of proof. For variances, the burden of proof shall be on the
applicant. For special exceptions, the applicant shall be entitled
to the special exception unless others can prove that it would adversely
affect the public health, safety, morals, or welfare.
A.
Time limitations on appeals.
(1)
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
(2)
Appeals designed to secure reversal or limit the approval of any
application for development, preliminary or final, shall be filed
with the Board no later than 30 days after the application is approved
by an appropriate Borough officer or agency, unless the person filing
alleges and proves that he or she had not notice, knowledge, or reason
to believe that such approval had been given. If such person succeeded
to his or her interest after such approval, he or she shall be bound
by the knowledge of his or her predecessor in interest.
B.
Effect of filing. When an appeal is filed, further development or
official action pursuant to the appealed determination or approval
shall be stayed until issuance of a final decision or findings by
the Board. If the Zoning Officer or other Borough agency presents
facts to the Board indicating that such a stay would cause imminent
peril to life or property, development or official action can only
be stayed by restraining order granted by the Board or by a court
of competent jurisdiction.
C.
Substantive validity challenge. A landowner who desires to challenge,
on substantive grounds, the validity of a map or ordinance provision
which prohibits or restricts the use or development of land in which
he or she has an interest, may submit the challenge either to the
Zoning Hearing Board or, with a request for curative amendment, to
the Borough Council.
(1)
The written application to the Zoning Hearing Board shall contain
the reasons for the challenge.
(2)
Public notice of the hearing shall include notice that the validity
of the ordinance or map is in question, and shall specify the place
and time where a copy of the request and its accompanying materials
may be examined by the public.
(3)
Based upon the testimony at the hearing(s), the Board shall determine
whether the challenged ordinance or map is defective, as alleged.
If the challenge is found to have merit, the decision of the Board
shall include recommended amendments to the challenged ordinance which
will cure the defects found.
(4)
In reaching its decision, the Board shall consider the plans and
explanatory material submitted by the landowner, and shall also consider:
(a)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools, and other public service facilities.
(b)
If the proposal is for residential use, the impact of the proposal
upon regional housing needs and the effectiveness of the proposal
in providing housing units of a type actually available to and affordable
by classes of persons otherwise unlawfully excluded by the challenged
provisions of the ordinance or map.
(c)
The suitability of the site for the intensity of use proposed,
by the site's soils, slopes, woodland, wetlands, floodplains, aquifers,
natural resources, and other natural features.
(d)
The impact of the proposed use on the site's soils, slopes,
woodland, wetlands, floodplains, aquifers, natural resources, and
other natural features, the degree to which these are protected or
destroyed, the tolerance of the resources to development, and any
adverse environmental impacts.
(e)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(5)
If the Board fails to act on the request within 45 days of the last
hearing, a denial of the request is deemed to have occurred.
Unless otherwise specified by the Board, a special exception
or variance shall expire if the applicant fails to obtain any and
all permits within six months of the date of authorization thereof.
