[Ord. 12-8-97A, 12/8/1997, § 1501]
There is hereby created a Zoning Hearing Board which shall,
for the purpose of this chapter, be referred to as the "Board." The
membership of the Board shall consist of three residents of the Borough
appointed by resolution of the Borough Council. The terms of office
of the Board members shall be three years and they shall be appointed
and vacancies shall be filled pursuant to the provisions of the Pennsylvania
Municipalities Planning Code, 53 P.S. § 10101 et seq.
[Ord. 12-8-97A, 12/8/1997, § 1502]
The Zoning Hearing Board shall adopt such rules and regulations
to govern its procedures as it may deem necessary. The Board shall
elect from its own membership its officers, who shall serve annual
terms as such and may succeed themselves. Meetings of the Board shall
be at the call of the Chairperson and at such other times as the Board
may determine. The Chairperson, or in the Chairperson's absence, the
acting Chairperson may administer oaths and compel the attendance
of witnesses. 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 to conduct
any hearing on its behalf. All meetings of the Board shall be open
to the public. The Board shall keep minutes of its proceedings showing
the vote of each member upon each question, or if absent, or failing
to vote, indicating such fact. The Board shall keep full public records
of its business at the Borough Municipal Building, which shall be
the property of the Borough, and shall submit a report of its activities
to the Borough Council once a year.
[Ord. 12-8-97A, 12/8/1997, § 1503]
1.
Notice. Written notices of all hearings by the Zoning Hearing Board
or Borough Council, as appropriate in accordance with the respective
functions, shall be given as follows:
A.
Two copies to the applicant. The applicant shall cause one of such
copies of the notice to be posted upon the premises which are the
subject of the hearing at least 10 days prior to the hearing and to
cause the same to remain so posted until the date of the hearing.
However, the failure to cause the same to be so posted or to remain
posted shall not be subject to protest except as the initial matter
in the hearing by the protestant. Otherwise, it shall be conclusively
presumed that the notice was so posted and remains so posted.
B.
One copy thereof to each Council person of the Borough.
C.
One copy thereof each to the Zoning Officer and Borough Secretary.
D.
A copy thereof to each member of the Planning Commission of the Borough.
E.
A copy thereof to each member of the Zoning Hearing Board or Borough
Council, as appropriate in accordance with the respective functions.
F.
A copy thereof to any person who has filed a request with the Council
of the Borough for such notices at least five days prior to the hearing,
whether as a request generally or merely for that particular meeting,
whichever is applicable.
G.
A copy thereof for the Solicitor of the Borough.
H.
To all persons owning property situated within 100 feet of the premises
which are the subject matter of the hearing.
2.
Public Notice. Public notice of all hearings shall also be published
each week for two successive weeks in a newspaper of general circulation
in the Borough or as required by the Pennsylvania Municipalities Planning
Code, 53 P.S. § 10101 et seq. A copy of the public notice
shall also be posted at the Borough Hall.
3.
Fees. Fees to be paid by persons requesting notice shall be set from
time to time by resolution of the Council.
4.
Failure to Give Notice. Failure to give notice to any of the parties
to whom notice is directed by this chapter shall not void any hearing.
Notice shall be presumed to have been given under this chapter when
certified to by the Secretary of the Zoning Hearing Board or Borough
Council, as appropriate in accordance with the respective functions,
or by the Solicitor of the Borough or any other person responsible
for giving such notice. Any objections to such certificate shall be
presented as a first item of business at any hearing for which notice
was given. If not presented at that time, notice shall be conclusively
presumed to have been given to the parties entitled to same hereunder.
5.
Purpose of Notice. The provision herein for notice shall not be deemed
to be a prerequisite for a valid hearing. It is the intent of this
chapter to direct notice as a convenience to those named but not to
establish any prerequisite to a valid hearing, such prerequisites
being limited to those established by the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10101 et seq., or decision of a
court of record.
[Ord. 12-8-97A, 12/8/1997, § 1504]
1.
The Board or Borough Council, as appropriate in accordance with the
respective functions, shall conduct hearings and make decisions in
accordance with the following requirements:
A.
The hearing shall be held in compliance with the provisions of the
Pennsylvania Municipalities Planning Code, 53 P.S. § 10101
et seq.
B.
The hearings shall be conducted by the Board or Borough Council,
as appropriate in accordance with the respective functions, or the
Board or Borough Council, as appropriate in accordance with the respective
functions, may appoint a hearing officer. The decision or, where no
decision is called for, the findings shall be made by the Board or
Borough Council, as appropriate in accordance with the respective
functions; 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 the decision or findings by the Board or Borough Council,
as appropriate in accordance with the respective functions, and accept
the decision or findings of the hearing officer as final.
C.
A court stenographer shall have the power to administer oaths. Additionally,
the Chairperson or acting Chairperson of the Board or Borough Council,
as appropriate in accordance with the respective functions, or the
hearing officer presiding, shall have power to administer oaths.
[Ord. 12-8-97A, 12/8/1997, § 1505]
1.
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 any land use ordinance,
except those brought before the Borough Council pursuant to §§ 609.1
and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (Act
247, as amended), 53 P.S. §§ 10609.1, 10916.1(a)(2).
B.
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.
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, or the issuance of any cease and
desist or similar order.
D.
Applications for variances from the terms of this chapter or such
provisions within a land use ordinance.
E.
Applications for special exceptions under this chapter or such provisions
within a land use ordinance.
F.
Appeals from the Zoning Officer's determination under § 916.2
of Act 247, 53 P.S. § 10916.2, as amended.
H.
Any other proceeding authorized or required by the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10101 et seq.
[Ord. 12-8-97A, 12/8/1997, § 1506]
1.
Variances.
A.
Section 910.2 of the Pennsylvania Municipalities Planning Code, 53
P.S. § 10910.2, states the following:
(1)
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)
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 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)
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.
(c)
That such unnecessary hardship has not been created by the appellant.
(d)
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.
(e)
That 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.
(2)
In granting any variance, the Board may attached such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of this act and this chapter.
(3)
The Board shall hear requests for Variances pursuant to the
Pennsylvania Municipalities Planning Code, 53 P.S. § 10101
et seq.
2.
Special Exceptions.
A.
Where this chapter has stated special exceptions to be granted or
denied by the Zoning Hearing Board, the Board shall hear and decide
requests for such special exceptions in accordance with such standards
and criteria.
B.
Each applicant shall additionally bear the burden of proving for
each use or structure compliance with the following:
(1)
The suitability of the property for the use desired.
(2)
That the proposed use will not have a substantial adverse effect
upon congestion of streets and highways or upon traffic levels of
service or any hazards arising therefrom. The Board may require the
applicant to submit a traffic study prepared by a qualified traffic
engineer to satisfy this requirement.
(3)
That the proposed use will not have a substantial adverse effect
on the availability of parking in the immediate area.
(4)
That the proposed use will not have a substantial adverse effect
on existing or proposed public water, public sewer, public transportation,
police and fire protection, public recreation, school facilities,
and other public organizations and systems.
(5)
That the proposed use will not have a substantial adverse effect
on the health and safety of the citizens of the Borough when such
use may present a danger from fire, explosion, electrocution, pollution,
asphyxiation, or other similar dangers.
(6)
That the proposed use will not have a substantial adverse effect
upon adjacent properties. Among any other effects on adjacent properties,
proposed uses shall not inure or detract from the use or enjoyment
or value of the adjacent properties.
(7)
The compatibility of the proposed use with the appearance and
general character of the immediate vicinity.
(8)
The compatibility of the proposed use with the Borough's Comprehensive
Plan.
(9)
The proposed use shall be in the best interest of the Borough,
and for the convenience of the community and shall not adversely affect
the general welfare of the community.
C.
The Board shall impose such reasonable conditions as it deems necessary
to effect the intent and purpose of this chapter and to protect the
health, safety, and welfare of the citizens of the Borough, especially
those citizens most directly affected by the proposed use. These conditions
may include, but are not limited to, the following:
(1)
Any promises or representations by the applicant with respect
to its use or development of the property involved.
(2)
_____
(a)
Hours of operation.
(b)
Special or additional screening or buffering including, but
not limited to, that for solid waste storage areas.
(c)
The design and location of buildings and other structures.
(d)
Restrictions on noise levels, lighting levels, odor, and other
potentially noxious effects.
(e)
Restrictions on the distances of the proposed use from adjacent
properties and between buildings and structures.
(f)
Restrictions on parking with respect to both number and location
of vehicles or spaces.
(g)
Public safety.
(h)
Safeguarding of uses on adjacent properties.
(i)
Health and sanitation.
(j)
Hours for loading and unloading.
(k)
Traffic, street and highway improvements and controls.
[Ord. 12-8-97A, 12/8/1997, § 1507]
[Ord. 12-8-97A, 12/8/1997, § 1508]
1.
If the variance is granted or the issuance of a permit is finally
approved, or other action by the appellant is authorized, the necessary
permit shall be secured and the authorized action begun within 180
days after the date when the variance is finally approved or the other
action by the appellant is authorized, and the building or alteration,
as the case may be, shall be completed within one year of said date
of consent. For good cause, the Board or Borough Council, as appropriate
in accordance with the respective functions, may, upon application
in writing stating the reasons therefore, extend either time period.
2.
Should the appellant or applicant fail to obtain the necessary permits
within said one-hundred-eighty-day period or having obtained the permit
should appellant or applicant fail to commence work thereunder within
such one-hundred-eighty-day period, it shall be conclusively presumed
that the appellant or applicant has waived, withdrawn, or abandoned
its appeal or its application, and all provisions, variances, and
permits granted to appellant or applicant shall be deemed automatically
rescinded by the Board or Borough Council, as appropriate in accordance
with the respective functions.
3.
Should the appellant or applicant commence construction or alteration
within said one-hundred-eighty-day period but fail to complete such
construction or alteration within one year, the Board or Borough Council,
as appropriate in accordance with the respective functions, may, upon
10 days' notice in writing, rescind, or revoke the granted variance
or the issuance of the permit or permits or any other action authorized
to the appellant or applicant, if the Board or Borough Council, as
appropriate in accordance with the respective functions, finds that
no good cause appears for the failure to complete such construction
or alteration within said one-year period and if the Board or Borough
Council, as appropriate in accordance with the respective functions,
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.
[Ord. 12-8-97A, 12/8/1997, § 1509; as amended by
Ord. 99005, 7/12/1999, § 1.E]
1.
The Borough Council shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
A.
Applications for curative amendments to this chapter.
B.
All petitions for amendments to land use ordinances. Any action on
such petitions shall be deemed legislative acts, provided that nothing
contained in this clause shall be deemed to enlarge or diminish existing
law with reference to appeals to court.
C.
Any other proceeding authorized or required by the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10101 et seq.
D.
Applications for Conditional Uses.
[Ord. 12-8-97A, 12/8/1997, § 1509A; as added by
Ord. 99005, 7/12/1999, § 1.F]
1.
Statutory Basis. Section 913.2 of the Pennsylvania Municipalities
Planning Code states the following:
|
"Where the governing body, in this chapter, has stated conditional
uses to be granted or denied by the governing body pursuant to express
standards and criteria, the governing body shall hold hearings on
and decide requests for such conditional uses in accordance with such
standards and criteria. In granting a conditional use, the governing
body may attach such reasonable conditions and safeguards, in addition
to those expressed this chapter, as it may deem necessary to implement
the purposes of this act in this chapter."
|
2.
Conditional Use Procedures and Burdens.
A.
Where this chapter has stated Conditional Uses to be granted or denied
by the Borough Council, the Borough Council shall hear and decide
requests for such conditional uses in accordance with such standards
and criteria.
B.
Each applicant shall additionally bear the burden of proving for
each use or structure compliance with the following:
(1)
The suitability of the property for the use desired.
(2)
That the proposed use will not have a substantial adverse effect
upon congestion of streets and highways or upon traffic levels of
service or any hazards arising therefrom. The applicant shall submit
a traffic study prepared by a qualified traffic engineer to satisfy
this requirement.
(3)
That the proposed use will not have a substantial adverse effect
on the availability of parking in the immediate area.
(4)
That the proposed use will not have a substantial adverse effect
on existing or proposed public water, public sewer, public transportation,
police and fire protection, public recreation, school facilities,
and other public organizations and systems.
(5)
That the proposed use will not have a substantial adverse effect
on the health and safety of the citizens of the Borough when such
use may present a danger from fire, explosion, electrocution, pollution,
asphyxiation, or other similar dangers.
(6)
That the proposed use will not have a substantial adverse effect
upon adjacent properties. Among any other effects on adjacent properties,
proposed uses shall not inure or detract from the use or enjoyment
or value of the adjacent properties.
(7)
The compatibility of the proposed use with the appearance and
general character of the immediate vicinity.
(8)
The compatibility of the proposed use with the Borough's Comprehensive
Plan.
(9)
The proposed use shall be in the best interest of the Borough,
and for the convenience of the community and shall not adversely affect
the general welfare of the community.
C.
Any master development plan presented in support of the conditional
use pursuant to this section shall become an official part of the
record for said conditional use. Approval of any conditional use will
also bind the use in accordance with the submitted master development
plan; should a more than insubstantial change in the master development
plan be required as part of the approval of the use, the applicant
shall revise the master development plan prior to issuance of a use
and occupancy permit. Any more than insubstantial change to the use
on the subject property not reflected on the originally approved master
development plan shall require the obtaining of another conditional
use approval.
D.
The Borough Council shall impose such reasonable conditions as it
deems necessary to effect the intent and purpose of this chapter and
to protect the health, safety, and welfare of the citizens most directly
affected by the proposed use. These conditions may include, but are
not limited to, the following:
(1)
Any promises or representations by the applicant with respect
to its use or development of the property involved.
(2)
_____
(a)
Hours of Operation.
(b)
Special or additional screening or buffering including, but
not limited to, that for solid waste storage areas.
(c)
The design and location of buildings and other structures.
(d)
Restrictions on noise levels, lighting levels, odor, and other
potentially noxious effects.
(e)
Restrictions on the distances of the proposed use from adjacent
properties and between buildings and structures.
(f)
Restrictions on parking with respect to both number and location
of vehicles or spaces.
(g)
Public safety.
(h)
Safeguarding of uses on adjacent properties.
(i)
Health and sanitation.
(j)
Hours for loading and unloading.
(k)
Traffic, street and highway improvements and controls.
E.
Before voting on the approval of a conditional use, the Borough Council
shall hold a hearing thereon, pursuant to public notice. The Borough
Council shall submit each application to the Planning Commission at
least 30 days prior to the hearing on such application to provide
the Planning Commission an opportunity to submit recommendations.
If, after any public hearing upon an application, the proposed application
is revised, the Borough Council shall hold another public hearing,
pursuant to public notice, before voting on the application.
[Ord. 12-8-97A, 12/8/1997, § 1510]
1.
A landowner who, on substantive grounds, desires to challenge the
validity of this chapter or map or any provision thereof which prohibits
or restricts the use or development of land in which the landowner
has an interest shall submit the challenge either to the Zoning Hearing
Board or to the Borough Council, together with a request for a curative
amendment.
2.
Persons aggrieved by a use or development permitted on the land of
another by this chapter or map, or any provision thereof, who desire
to challenge its validity on substantive grounds shall first submit
their challenge to the Zoning Hearing Board for a decision thereon.
3.
The submissions referred to in subsection .1 and .2 shall be governed
by the following:
A.
In challenges before the Zoning Hearing Board, the challenging party
shall make a written request to the Board that it hold a hearing on
its challenge. The request shall contain the reasons for the challenge.
Where the landowner desires to challenge the validity of such ordinance
and elects to proceed by curative amendment, the landowner's application
to the Borough Council shall contain, in addition to the requirements
of the written request hereof, the plans and explanatory materials
describing the use or development proposed by the landowner in lieu
of the use or development permitted by the challenged ordinance or
map. Such plans or other materials shall not be required to meet the
standards prescribed for preliminary, tentative, or final approval
or for the issuance of a permit, so long as they provide reasonable
notice of the proposed use or development and a sufficient basis for
evaluating the challenged ordinance or map in light thereof. Nothing
herein contained shall preclude the landowner from first seeking a
final approval before submitting the landowner's challenge.
B.
If the submission is made by the landowner to the Borough Council,
the request also shall be accompanied by an amendment or amendments
to this chapter proposed by the landowner to cure the alleged defects
therein.
C.
If the submission is made to the Borough Council, the Borough Solicitor
shall represent and advise it at the hearing or hearings.
D.
The Borough Council may retain an independent attorney to present
the defense of the challenged ordinance or map on its behalf and to
present witnesses on its behalf.
E.
Based upon the testimony presented at the hearing or hearings, the
Borough Council or the Zoning Hearing Board, as the case may be, shall
determine whether the challenged ordinance or map is defective, as
alleged by the landowner. If a challenge heard by the Borough Council
is found to have merit, the Borough Council shall proceed. If a challenge
heard by a Zoning Hearing Board is found to have merit, the decision
of the Zoning Hearing Board shall include recommended amendments to
the challenged ordinance which will cure the defects found. In reaching
its decision, the Zoning Hearing Board shall consider the amendments,
plans, and explanatory material submitted by the landowner and shall
also consider the following:
(1)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools, and other public service facilities.
(2)
If the proposal is for a 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 this chapter or map.
(3)
The suitability of the site for the intensity of use proposed
by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers,
natural resources, and other natural features.
(4)
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources, and natural features,
the degree to which these are protected or destroyed, the tolerance
of the resources to development, and any adverse environmental impacts.
(5)
The impact of the proposal on the preservation of other land
uses which are essential to public health and welfare.
F.
The Borough Council or the Zoning Hearing Board, as the case may
be, shall render its decision in compliance with the provisions of
the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101
et seq.
4.
Public notice of the hearing shall include notice that the validity
of this chapter or map is in question and shall give the place where
and the times when a copy of the request, including any plans, explanatory
material, or proposed amendments maybe examined by the public.
5.
The challenge shall be deemed denied when one of the following occurs:
A.
The Zoning Hearing Board or Borough Council, as the case may be,
fails to commence the hearing within the time limits required by law.
B.
The Borough Council notifies the landowner that it will not adopt
the curative amendment.
C.
The Borough Council adopts another curative amendment which is unacceptable
to the landowner.
D.
The Zoning Hearing Board or Borough Council, as the case may be,
fails to act on the request 45 days after the close of the last hearing
on the request, unless the time is extended by mutual consent by the
landowner and Borough.
6.
Where a curative amendment proposal is approved by the grant of a
curative amendment application by the Borough Council or a validity
challenge is sustained by the Zoning Hearing Board or the court acts
finally on appeal from denial of a curative amendment proposal or
a validity challenge, and the proposal or challenge so approved requires
a further application for subdivision or land development, the developer
shall have two years from the date of such approval to file an application
for preliminary or tentative approval. Within the two-year period,
no subsequent change or amendment in the zoning, subdivision, or other
governing ordinance or plan shall be applied in any manner which adversely
affects the rights of the applicant as granted in the curative amendment
or the sustained validity challenge. Where the proposal appended to
the curative amendment application or the validity challenge is approved
but does not require further application under any subdivision or
land development ordinance, the developer shall have one year within
which to file for a building permit. Within the one-year period, no
subsequent change or amendment in the zoning, subdivision, or other
governing ordinance or plan shall be applied in any manner which adversely
affects the rights of the applicant as granted in the curative amendment
or the sustained validity challenge.
[Ord. 12-8-97A, 12/8/1997, § 1511]
1.
The Borough Council may from time to time, after public notice and
hearing as hereinafter prescribed, amend, supplement, change, or repeal
this chapter including the Zoning Map. Any amendment, supplement,
change, or repeal may be initiated by the Borough Planning Commission,
the Borough Council, or by a petition to the Borough Council. Such
amendment, supplement, change or repeal shall be submitted to the
Borough Planning Commission for its recommendations and shall be specifically
found by the Borough Council to be in accordance with the spirit and
intent of the formally adopted portions of the Comprehensive Plan
before final action shall be taken by the Borough Council.
A.
Amendments Initiated by the Borough Planning Commission. When an
amendment, supplement, change, or repeal is initiated by the Borough
Planning Commission, the proposal shall be presented to the Borough
Council, who shall then proceed in the same manner as with a petition
to the Borough Council, which has already been reviewed by the Borough
Planning Commission.
B.
Amendment Initiated by the Borough Council. When an amendment, supplement,
change, or repeal is initiated by the Borough Council, it shall submit
the proposal to the Borough Planning Commission for review and recommendations.
C.
Procedure for Petition. The petition for amendment, supplement, change,
or repeal shall contain as fully as possible all the information requested
by the Zoning Officer and shall be signed by all record owners of
the property in question whose signature shall be notarized attesting
to the truth and correctness of all the facts and information presented
in the petition. A fee to be established by the Borough Council shall
be paid upon the filing of such petition for change and for the purpose
of defraying the costs of the proceedings prescribed herein.
D.
Public Hearing. The Borough Council shall fix a time and place for
a public hearing at which parties of interest and citizens shall have
an opportunity to be heard. Notice of the time and place of such hearing
shall be given in compliance with the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10101 et seq.
