The Zoning Hearing Board (Board) created and existing at the
time of adoption of this chapter shall continue under and in accordance
with the provisions of this article. Matters pending before the Board
at the time this chapter becomes effective shall continue and be completed
under the Zoning Ordinance in effect at the time the zoning application
was filed.
The members of the Board shall consist of three members who
are residents of the Borough appointed by the Council. Their terms
of office shall be three years and shall be so fixed that the term
of office of no more than 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. At
no time shall there be two members of the Board from the same profession
or business.
Council may appoint by resolution at least one, but not 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 provisions of this section, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same 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 unless designated as a voting alternate member pursuant to § 675-25C hereof.
Any member or alternate member may be removed for malfeasance,
misfeasance or nonfeasance in office or for other just cause by majority
vote of Council taken after the member has received 15 days' advanced
written notice of the intent to take such vote. A public hearing shall
be held in connection with the vote if the member shall request the
same in writing.
A.
The Board shall elect officers from its own membership. Officers
shall serve annual terms and may succeed themselves.
B.
For the conduct of any hearing and taking of any action, a quorum
shall be not less than a majority of all regular members of the Board.
C.
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 section shall be made on a case-by-case
basis.
E.
The fees for all proceedings, hearings and actions by the Board shall
be paid by the applicant.
F.
The Board may appoint a hearing officer from its own membership to conduct any hearing on its own behalf, and the parties may waive further action by the Board as provided in § 675-30G.
G.
The Board shall keep full public records of its business and shall
submit a report of its activities to the Council at least once a year.
The Zoning Hearing Board shall be responsible for the following:
A.
Appeals from the Zoning Officer.
(1)
The Board shall hear and decide appeals where it is alleged
by the appellant (the landowner affected, any office or agency of
the Borough, or any person aggrieved) that the Zoning Officer has
failed to follow prescribed procedures, failed to grant or deny a
permit, failed to act on an application for a permit, failed or refused
to register a nonconforming building, lot, structure or sign, has
improperly issued a cease-and-desist order, or has misinterpreted
or misapplied any valid provision of this chapter or any valid rule
or regulation governing the action of the Zoning Officer.
(2)
All appeals which allege that the Zoning Officer has made an
error shall be filed directly with the Secretary of the Board within
30 days of the Zoning Officer's alleged error.
(3)
Such appeals shall be in writing and shall explain fully the
facts and parties in the case and shall clearly state the reasons
and provisions of the chapter on which the appeal is based.
B.
Challenges to the validity of the chapter or map.
(2)
The Board shall hear 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.
(3)
At the conclusion of the hearing, the Board shall decide all
contested questions and shall make findings on all relevant issues
of fact which shall become part of the record on appeal to the court.
C.
Other appeals.
(1)
The Board shall also hear appeals from a determination by the
Borough Engineer with reference to the administration of the Borough
floodplain ordinance or such provisions within a land use ordinance.
(2)
The Board shall also hear appeals from the determination of
any officer or agency charged with the administration of any transfers
of development rights or performance density provisions of the Zoning
Ordinance.
(3)
The Board shall also hear appeals from the determination of the Zoning Officer or Borough 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 the provisions of Chapter 580, Subdivision and Land Development.
D.
Variances.
(1)
The Board shall hear requests for variances filed with the Board
in writing by any landowner (or any tenant with the permission of
such landowner) which allege that the provisions of this chapter inflict
unnecessary hardship upon the land.
(2)
The Board may grant a variance only if the following findings,
where relevant, are made:
(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
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 generally
created by the provisions of this chapter in the neighborhood or district
in which the property is located;
(c)
Such unnecessary hardship has not been created, or contributed
to, enhanced, worsened, or magnified by any action by the appellant;
(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; and
(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.
(3)
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.
E.
Special exceptions.
(1)
The Board shall hear and decide requests for all special exceptions
filed with the Board in writing by any landowner (or any tenant with
the permission of such landowner), as provided in this chapter and
in accordance with such standards and criteria contained in this chapter.
(2)
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 and intent of this
chapter.
(3)
Special exception uses shall not be permitted if they:
(a)
Substantially increase traffic congestion in the streets;
(b)
Increase the danger of fire or panic or otherwise endanger the
public safety;
(c)
Overcrowd the land or create an undue concentration of population;
(d)
Impair an adequate supply of light and air to adjacent property;
(e)
Are inconsistent with the surrounding zoning and uses;
(f)
Adversely affect the Comprehensive Plan of the Borough;
(g)
Unduly burden water, sewer, school, park or other public facilities;
(h)
Are detrimental to the appropriate use of adjacent property;
(i)
Endanger the safety of persons or property by improper location
or design of facilities for ingress or egress; or
(j)
Otherwise adversely affect the public health, safety, morals
or general welfare.
G.
Reporting requirements. The Board shall keep full public records
of its business, which are the property of the Borough, and shall
submit an annual report of its activities to the Borough Council.
Such record shall be maintained at the Municipal Building or such
other location as designated by Borough Council.
H.
Court appeals.
(1)
In the case of an appeal from the Board to the Court of Common
Pleas, the Board shall make the return or file the certiorari required
by law, and shall promptly notify the Zoning Officer and Solicitor
of the Zoning Hearing Board of such appeal and furnish him with a
copy of the return including the transcript of testimony.
(2)
Any decision of the Board not appealed within 30 days after
notice thereof shall be final.
Within the limitations budgeted by Council, the Board may employ
or contract for secretaries, clerks, legal counsel, consultants and
other technical and clerical services. The members of the Board may
receive compensation for the performance of their duties as may be
fixed by Council as provided in Section 907 and Section 908(1.1) of
the MPC.[1]
[1]
Editor's Note: See 53 P.S. §§ 10907 and 10908(1.1),
respectively.
Every application for a variance, special exception or interpretation
of a ruling of the Zoning Officer shall be made in writing on a form
prepared by the Hearing Officer. Such application shall be filed with
the Board, and shall include the following:
A.
The name and address of the applicant or appellant.
B.
The name and address of the owner of the property to be affected
by such proposed change or appeal.
C.
A brief description and location of the property to be affected by
such proposed change or appeal.
D.
A statement of the present zoning classification of the property
in question, the improvements thereon and the present use thereof.
E.
A reasonably accurate description of the additions or changes intended
to be made under this application indicating the size, material and
general construction of such proposed improvements. A plot plan of
the property to be affected, indicating the location and size of the
lot and the size of existing and intended improvements, shall be attached
to the description. Plot plans shall be clear, legible and accurately
drawn to scale.
F.
Such fees as are established from time to time by Council.
The time limitations for raising and filing certain proceedings
with the Board shall be the following:
A.
No person shall be allowed to file any proceeding with the Board
later than 30 days after any application for development, preliminary
or final, has been approved by the Borough Council 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 has been given.
B.
No personal shall be allowed to file an appeal from an enforcement
notice issued by the Zoning Officer later than 15 days after receipt
of such notice.
C.
If such person has succeeded to his interest after such approval,
he shall be bound by the knowledge of his predecessor in interest.
D.
The failure of anyone other than the landowner to appeal from an
adverse decision on a preliminary plan or from an adverse decision
by the Zoning Officer on a challenge to the validity of this chapter
or Zoning Map pursuant to Section 909.1(a) of Act 170 of 1988 (regarding
validity of chapters)[1] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative or preliminary approval.
[1]
Editor's Note: See 53 P.S. § 10909.1(a).
E.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
The Board shall conduct hearings and make decisions in accordance
with the following:
A.
Notice of hearings. Notice of all hearings of the Board shall be
given as follows:
(1)
Advertisement.
(a)
Notice to the public shall be published once each week for two
successive weeks in a newspaper of general circulation in the Borough.
(b)
The first publication shall not be more than 30 days and second
publication shall not be less than seven days from the date of the
hearing.
(c)
The notice shall state the time and place of the hearing and
the particular nature of the matter to be considered.
(2)
Posting. Written notice of such hearing shall be conspicuously
posted on the affected tract of land at least one week prior to the
hearing.
(3)
Notification requirements. The Board shall give public notice
of all matters to be heard at any given meeting and shall give, by
certified first-class mail, written notice to the owner, appellant,
Council, Planning Commission, to the governing body of any municipality
located within 500 feet of the property at issue, and to all other
interested parties who have registered their names and addresses with
the Board, and at the sole discretion of the Zoning Officer, to the
occupant of every lot on the same street within 200 feet of the lot
in question and of every lot not on the same street within 100 feet
of such lot. The notices herein required shall state the location
of the building or lot, the general nature of the question involved
and the time and place of the hearing. In addition to the notices
provided herein, notice of said hearing shall be conspicuously posted
on the affected tract of land, building or sign. Failure to remit
written notice shall not be a fatal procedural defect so long as an
appeal is properly advertised.
B.
Fees and costs. Council may, by resolution, establish a reasonable
fee schedule, based on cost, to be paid by the applicant for any notice
required by this chapter and by persons requesting any notice not
required by this chapter.
C.
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 or her case-in-chief within 100 days
of the first hearing. Upon the 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 or her case-in-chief, provided the person 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 hearings to complete their opposition to the application
provided the applicant is granted an equal number of additional hearings
for rebuttal.
[Amended 2-3-2003 by Ord.
No. 556]
D.
Parties.
(1)
The parties to the hearing shall be the applicant, the Borough,
any person affected by the application who has made a timely appearance
of record before the Board, and any other person including civic or
community organizations permitted to appear by the Board.
(2)
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.
Oaths and subpoenas. The Chairman or acting Chairman of the Board
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.
Representation by counsel. 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.
Conduct of hearings. 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. The parties may, however, waive the decision or findings
by the Board and accept the decision or findings of the hearing officer
as final.
H.
Evidence. Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
I.
Record.
(1)
The Board or the hearing officer, as the case may be, shall
make a stenographic record of the proceedings. The appearance fee
for a stenographer shall be shared equally by the applicant and the
Board.
(2)
The cost of the original transcript shall be paid by the Board
if the transcript is ordered by the Board 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.
J.
Ex parte communications.
(1)
The Board shall not communicate, directly or indirectly, with
any party or his representative in connection with any issues involved,
except upon notice and opportunity for all parties to participate.
(2)
The Board shall not take notice 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.
(3)
After the commencement of hearings, the Board shall not inspect
the site or its surroundings with any party or his representative,
unless all parties are given an opportunity to be present.
K.
Conflicts of interest. No member of the Board shall vote upon or
participate in deliberations concerning any application for which
the member has a conflict of interest or for which such note or participation
would give the appearance of a conflict of interest.
A.
Upon filing of any proceeding referred to in § 675-28 of this chapter and during its pendency before the Board, all land development pursuant to any challenged chapter, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder shall be stayed.
B.
Action by appropriate Borough officials shall not be stayed if the
Zoning Officer or any other appropriate agency or body certifies as
to the Board facts indicating that such stay would cause imminent
peril to life or property.
C.
Notwithstanding Subsection B, a restraining order may be granted by a court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body.
(1)
When an application for development, preliminary or final, has
been duly approved and proceedings designed to reverse or limit the
approval are 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.
(2)
The granting of a petition presented pursuant to Subsection
C(1) and the amount of any bond related thereto shall be within the
sound discretion of the court.
A.
The Board shall render a written decision or make written findings
(when no decision is called for) on the application, within 45 days
after the last hearing before the Board.
B.
Where the application is contested or denied, the decision shall
be accompanied by findings of fact and conclusions based thereon,
together with the reasons therefor.
C.
Any conclusion based on any provision of Act 170 of 1988, as amended,[1] or of this chapter, or of any other chapter, rule or regulation
shall contain a reference to the provision relied on and the reasons
why the conclusion is deemed appropriate in fight of the facts found.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
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
and the parties shall be entitled to make written recommendations
thereon 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 decision of the hearing officer.
E.
Except for challenges filed under Section 916.1 of the Pennsylvania
Municipalities Planning Code,[2] where the Board fails to render the decision within the
period required by this section, or fails to commence, conduct or
complete the required hearing, within the periods required by this
section, the decision shall be deemed to have been rendered in favor
of the application unless the applicant has agreed in writing or on
the record to an extension of time.
[Amended 2-3-2003 by Ord.
No. 556]
[2]
Editor's Note: See 53 P.S. § 10916.1.
A.
A copy of the final decision or a copy of the findings (when no decision
is called for), shall be delivered to the applicant personally or
mailed to him at his last known address of record or served upon his
legal representative of record or as otherwise directed in writing
by the applicant or landowner not later than the day following its
date.
B.
The Board shall provide (by mail or otherwise) a brief notice of
the decision or findings and a statement of the place where the full
decision or findings may be examined to all other persons who have
filed their names and addresses with the Board not later than the
last day of the hearing.
C.
When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a timely decision, as required by §§ 675-30C or 675-31E hereof, 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 § 675-30A. If the Board shall fail to provide such notice, the applicant may do so.
A.
If a variance is granted or the issuance of a permit is approved,
or other action by the appellant is authorized, the necessary permit
shall be secured and the authorized action begun within three months
after the date when the variance is finally granted or the issuance
of a permit is finally approved or other action by the appellant is
authorized; and the building or alteration, as the case may be, shall
be completed within 12 months of said date. For good cause, the Board
may, upon application in writing stating the reasons therefor, extend
the three-month commencement period.
B.
Should the appellant or applicant fail to obtain necessary permits
within a six-month period from the date of approval, or having obtained
the permit should he fail to commence work thereunder within such
six-month period, it shall be conclusively presumed that the appellant
or applicant has waived, withdrawn or abandoned his appeal or his
application, and all provisions, variances and permits granted to
him shall be deemed rescinded by the Board without further action.
C.
Should the appellant or applicant commence construction or alteration
within said six-month period, but should he fail to complete such
construction or alteration within said twelve-month period, the Board
may, upon 10 days' notice in writing, rescind or revoke the granted
variance, or the issuance of the permit or permits, or the other action
authorized to the appellant or applicant, if, and only if, the Board
finds that a good cause appears for the failure to complete within
such twelve-month period, and if the Board further finds that conditions
have so altered or changed in the interval since the granting of the
variance, permit or action, that revocation or rescission of the action
is justified.
A.
Parties to proceedings authorized in this chapter may utilize mediation
as an aid in completing such proceedings. The Board shall neither
initiate mediation nor participate as a mediating party in any proceeding
pending before the Board. Mediation shall supplement, not replace,
those procedures in this chapter once said procedures have been formally
initiated. Nothing in this section shall be interpreted as expanding
or limiting Borough police powers or as modifying any principles of
substantive law.
B.
Participation in mediation shall be wholly voluntary. The appropriateness
of mediation shall be determined by the particulars of each case and
the willingness of the parties to negotiate. The Board shall not initiate
mediation proceedings until the Borough shall have assured that, in
such case, the mediating parties, assisted by the mediator, as appropriate,
have developed terms and conditions for:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedures and demonstrated
skills in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in this chapter,
provided there is written consent by the mediating parties and by
an applicant or Borough decisionmaking body if either is not a party
to the mediation.
(5)
Identifying all parties and affording them the opportunity to
participate.
(6)
Subject to legal restraints, determining whether some or all
of the mediation sessions shall be open or closed to the public.
(7)
Assuring that mediation solutions are in writing and signed
by the parties, and become subject to review and approval by the appropriate
decisionmaking body pursuant to the authorized procedures set forth
in the other sections of this chapter.
C.
No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
A.
All appeals for securing review of this chapter or any decision,
determination or order of this Board or of Council, or of any of the
Boroughs agencies or officers issued pursuant to this chapter, shall
be in conformance with Article X-A of the Municipalities Planning
Code (Act 170 of 1988), as amended.[1]
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.
B.
Questions of an alleged defect in the process of enactment or adoption
of this chapter or the Zoning Map(s) associated herewith shall be
raised by an appeal taken directly from the action of Borough Council
to the Northampton County Court of Common Pleas filed no later than
30 days from the effective date of such chapter or map.
