Municipal Council shall appoint a Zoning Hearing Board consisting
of five members as provided for in the Pennsylvania Municipalities
Planning Code (53 P.S. § 10101 et seq.). All appointments
of members to said Board shall be subject to the approval and confirmation
of the Municipal Council by an affirmative vote of four members of
the Council. All approvals and confirmations of the Council's appointments
shall be by written resolution specifically identifying the initiation
and termination of the terms of office of each member so appointed.
The word "Board," when used in this article, shall mean the Zoning
Hearing Board.
The membership of the Board shall consist of five residents
of the Municipality. Their terms of office shall be five years and
shall be so fixed that the term of office of one member shall expire
each year at the end of the calendar year. Initiation of the terms
of office of the five-member Board shall be as provided in the Municipalities
Planning Code. 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 municipality.
Any Board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by a majority vote
of the Municipal Council which appointed the member, 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.
The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Board, but the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf, and the parties may waive further action by the Board as provided in § 320-355. The Board may take, alter and rescind rules and forms for its procedure consistent with the ordinances of the Municipality and the laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the Municipal Council once a year.
Within the limits of funds appropriated by the governing body,
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 by the Municipal Council, but in no case shall it
exceed the rate of compensation authorized to be paid to the members
of the Municipal Council.
A.
Hearings. The Board shall conduct hearings and make decisions in
accordance with the following requirements:
(1)
Notice of such application and hearing including the date, time,
and location of the hearing and the nature of the relief sought in
the application shall be given to each of the owners of property lying
within 300 feet of the boundary lines of the lot for which the application
has been filed. Notice shall be served upon the owner by first-class
mail at the last known address of the property owner according to
county records. If service cannot be made upon the owner or occupant,
then such property shall be posted by placing the notice on a conspicuous
place on the dwelling house, if any, on the property. Such notices
shall be supplied by the Administrative Officer, as well as a list
of the person or persons to be served, and it shall be the obligation
of the applicant to see that such service is made at the applicant's
expense and proper return of such service made to the Board.
(2)
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.
(3)
The parties to the hearing shall be the Municipality and any person who is entitled to notice under Subsection A(1) without special request therefor who has made timely appearance of record before the Board and any other person permitted to appear by the Board.
(4)
The Chairman or Acting Chairman of the Board or the hearing
officer presiding shall have the power to administer oaths and issue
subpoenas to compel the attendance of witnesses and the production
of relevant documents and papers, including witnesses and documents
requested by the parties.
(5)
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.
(6)
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
(7)
The Board or the hearing officer, as the case may be, shall
keep a record of the proceedings, either stenographically or by sound
recording, and a transcript of the proceedings and copies of graphic
or written material received in evidence shall be made available to
any party at cost.
(8)
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party or his representatives in connection
with any issue involved except upon notice and opportunity for all
parties to participate; shall not take notice of any communication,
reports, staff memoranda or other materials unless the parties are
afforded an opportunity to contest the material so noticed; and shall
not inspect the site of its surroundings with any party or his representative
unless all parties are given an opportunity to be present.
(9)
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. Each decision
shall be accompanied by findings of fact and conclusions based thereon,
together with the reasons therefor. Conclusions based on any provisions
of this chapter or of any ordinance, rule or regulation shall contain
a reference to the provision relied on and the reasons why the conclusion
is deemed appropriate in 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, and the parties
shall be entitled to make written representations thereon to the Board
prior to a final decision or entry of findings. Where the Board has
the power to render a decision and the Board or the hearing officer,
as the case may be, fails to render the same within the period required
by this subsection, the decision shall be deemed to have been rendered
in favor of the applicant.
(10)
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 names and addresses with the Board
not 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.
The Board shall hear and decide appeals where it is alleged
by the appellant that the Zoning Officer has failed to follow prescribed
procedures or has misinterpreted or misapplied any provision of a
valid ordinance or map or any valid rule or regulation governing the
action of the Zoning Officer. Nothing contained herein shall be construed
to deny to the appellant the right to proceed directly in court, where
appropriate, pursuant to Pa.R.C.P., Sections 1091 to 1098, relating
to mandamus.
A.
Standards.
(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 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 applicant.
(d)
That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is
located or substantially or permanently impair the appropriate use
or development of adjacent property or 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.
(f)
When hearing requests for commercial uses in or adjacent to
residential areas, consideration shall be given to minimizing the
potential impact that the use could have on the area. Issues such
as limiting hours of operation, noise, exterior lighting, deliveries,
trash collection, signage, and other related issues shall be considered.
(2)
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.
(3)
In a floodplain district, variances may be issued by the Municipal
for new construction and substantial improvements to be erected on
a lot of 1/2 acre or less in size contiguous to and surrounded by
lots with existing structures constructed below the base flood level
in conformance with the requirements of this section above and additional
requirements as follows:
(a)
Variances shall only be issued by a community upon a showing
of good and sufficient cause, a determination that failure to grant
the variance would result in exceptional hardship to the applicant
and a determination that the granting of a variance would not result
in increased flood heights, additional threats to public safety or
extraordinary public expense or create nuisances, cause blight on
or victimization of the public or conflict with existing local laws
or ordinances.
(b)
All provisions of Article XXV, Nonconformities, of this chapter pertaining to nonconforming uses shall be complied with.
(c)
Variances shall not be issued which would cause any rise in
the heights of the water surface elevation of the one-hundred-year
flood.
(d)
The Municipality shall maintain a record of all variance actions
pertaining to floodplain districts, including justification for their
issuance, and report such variances issued in its annual report submitted
to the Federal Insurance Administrator.
When the Municipal Council, in this chapter, has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards, criteria, and the general standards for review found in Article XXI, Special Exceptions. In granting a special exception, the Board may attach such reasonable conditions and safeguards in addition to those expressed in this chapter as it may deem necessary to implement the purposes of this chapter.
Appeals under § 320-356 and proceedings to challenge an ordinance under § 320-357 may be filed with the Board, in writing, by any officer or agency of the Municipal or any person aggrieved. Requests for a variance under § 320-357 and for a special exception under § 320-215 may be filed with the Board by any landowner or any tenant with the permission of such landowner.
A.
Standards. The time limitations for raising certain issues and filing
certain proceedings with the Board shall be the following:
(1)
No issue of alleged defect in the process of enactment of any
ordinance or map or any amendment thereto shall be raised in any proceeding
filed with the Board later than 30 days from the time such ordinance,
map or amendment takes effect, unless the person raising such issue
alleges and proves that he failed to receive adequate notice of the
enactment or amendment. If such person has succeeded to his interest
after the enactment of the ordinance, adequate notice to his predecessor
in interest shall be deemed adequate notice to him.
(2)
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 Municipal 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 failed to receive adequate
notice of such approval. If such person has succeeded to his interest
after such approval, adequate notice to his predecessor in interest
shall be deemed adequate notice to him.
Upon filing any proceeding referred to in § 320-359 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. 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. The question of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.
