[Ord. No. 247-2018, 9/17/2018]
A. 
The purpose of this Chapter is to establish regulations to govern the establishment, functions, and procedures of the Borough Zoning Hearing Board, hereinafter called "Board."
B. 
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters based on the MPC:
1. 
Substantive challenges to the validity of this Chapter or Zoning Map, except those brought before the Borough Council pursuant to § 609.1 and 916.1(a)(2) of Act 247, as amended, 53 P.S. § § 10609.1, 10916.1(a)(2).
2. 
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, misinterpretation or misapplication of any provision of a valid ordinance or map, or any valid rule or regulation of the Borough governing the action of the Zoning Officer.
3. 
Applications for variances from the terms of this Chapter, pursuant to § 910.2 of Act 247, as amended, 53 P.S. § 10910.2.
4. 
Applications for special exceptions under this Chapter, or such provisions within a land use ordinance, pursuant to § 912.1 of Act 247, as amended, 53 P.S. § 10912.1.
5. 
Appeals from the Zoning Officer's determination under § 916.2 of Act 247, as amended.
6. 
Appeals from the determination of the Zoning Officer or Borough Engineer in the administration of this Chapter or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development, not involving applications under Article V or Part VII of Act 247, 53 P.S. § § 10501 et seq., 10701 et seq.
[Ord. No. 247-2018, 9/17/2018]
A. 
There shall be a Zoning Hearing Board consisting of three residents of the Borough who shall be appointed by resolution of the Borough Council.
B. 
The term of office shall be three (3) years and shall be fixed so that the term of office of one member shall expire each year.
C. 
The Zoning Hearing Board shall promptly notify the Borough Council of any vacancy. Appointments to fill vacancies shall be only for the unexpired portion of the term.
D. 
Members of the Zoning Hearing Board shall hold no other offices in the Borough.
E. 
The Borough Council shall appoint by resolution a resident of the Borough to serve as an alternate member of the Board. The term of the alternate member shall be 3 years, and the alternate member shall hold no other office in the Borough. When seated pursuant to the provisions of § 27-1503.3 below, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Zoning Hearing 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. Any alternate may participate in any proceeding or discussion of the Zoning Hearing Board but shall not be entitled to vote as a member of said Zoning Hearing Board nor be compensated pursuant to § 27-1505.2 below, unless designated as a voting alternate member pursuant to § 27-1503.3 below.
F. 
Any board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by majority vote of Borough Council, taken after the member has received 15 days advance notice of the intent to take such a vote. A hearing will be held in connection with the vote if the member shall request it in writing.
[Ord. No. 247-2018, 9/17/2018]
A. 
The Zoning Hearing Board shall elect, from its members, its officers, who shall serve annual terms as such and may succeed themselves.
B. 
For the conduct of any public hearing and the taking of any action, a quorum shall not be less than a majority of all the members of the Zoning Hearing Board, but the Zoning Hearing 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 § 27-1506.
C. 
If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate the alternate member to sit on the Zoning Hearing Board. The alternate member shall continue to serve on the Zoning Hearing Board in all proceedings involving the matter or case for which the alternate was initially appointed, until the Zoning Hearing Board has made a final determination of the matter or case.
D. 
The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure consistent with the provisions of this Chapter and the laws of the Commonwealth.
E. 
The Zoning Hearing Board shall keep full public record of its business, which records shall be property of the Borough, and shall submit a report of its activities to the Borough Council, as requested.
[Ord. No. 247-2018, 9/17/2018]
A. 
Applications for hearings before the Zoning Hearing Board shall be filed with the Board, together with the proper fee in accordance with § 27-1505 of this Chapter.
B. 
An application for a special exception or variance from the terms of this Chapter shall state:
1. 
The name and address of the applicant.
2. 
Name and address of the owner of the real estate to be affected by the proposed application.
3. 
Description and location of the real estate to be affected by such proposed change.
4. 
Statement of the present zoning classification, present land use, and existing improvements of the real estate in question.
5. 
Statement of the section of this Chapter authorizing the proposed special exception or variance and reasons why it should be granted.
6. 
Description of the proposed use and improvements.
7. 
Site plan indicating the location, use, arrangement, building height, and dimensional features showing compliance with applicable area, width, coverage, yard, and design standards as specified in the zoning district in which the site in question is located, of all existing and proposed improvements and facilities.
8. 
In the event that any required information is not furnished, the application shall be refused and the fee returned to the applicant.
[Ord. No. 247-2018, 9/17/2018]
A. 
Within the limits of funds appropriated by Borough Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. The Zoning Hearing Board may employ legal counsel, but the attorney can not be the Borough Solicitor.
B. 
Members of the Zoning Hearing Board, including the alternative member, may receive compensation for the performance of their duties, as may be fixed by the Borough Council. In no case shall the amount of compensation exceed the rate authorized to be paid to the members of the Borough Council.
C. 
The applicant before the Zoning Hearing Board shall deposit with the Borough Treasurer the appropriate filing fee as set forth in the fee schedule adopted by resolution of the Borough Council.
D. 
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.
[Ord. No. 247-2018, 9/17/2018]
A. 
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:
1. 
The Zoning Hearing Board shall fix a reasonable time and place for public hearings. Notification of said hearing shall be provided, as set forth in § 27-1507 below.
2. 
The first hearing shall be commenced held within 60 days from the date of the applicant's request, unless the applicant has agreed in writing to an extension. Each subsequent hearing shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant. The hearing shall be completed no later than 100 days after the completion of the applicant's case in chief, unless extended for good cause upon application to the Court of Common Pleas.
3. 
The hearings shall be conducted by the Zoning Hearing Board or the Zoning Hearing Board may appoint any member or an independent attorney as the hearing officer. The decision, or where no decision is called for, the findings, shall be made by the Zoning Hearing Board. 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 decision or findings by the Zoning Board and accept the decision or findings of the hearing officer as final.
4. 
The parties to the hearing shall be the Zoning Hearing Board, 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 Zoning Hearing Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing.
5. 
The Chairman or Acting Chairman of the Zoning Hearing 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.
6. 
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence, to argument and to cross-examine adverse witnesses on all relevant issues.
7. 
Formal rules of evidence shall not apply, but irrelevant, immaterial, unduly repetitious and hearsay evidence may be excluded.
8. 
The Zoning Hearing 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 Zoning Hearing Board. The cost of the original transcript shall be paid in full by the Zoning Hearing Board if the transcript is ordered by the Board or hearing officer, or shall be paid in full by the person appealing from the decision of the Zoning Hearing 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.
9. 
The Zoning Hearing Board or the hearing officer shall not communicate, directly or indirectly, with any party or his/her 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, except advice from their solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings with any party or his representative after the commencement of the hearing unless all parties are given an opportunity to be present.
10. 
The Zoning Hearing 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 Zoning Hearing Board or hearing officer. Each decision shall be accompanied by findings and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of this Chapter or of any act, 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 the hearing officer and there has been no stipulation that this decision or findings are final, the Zoning Hearing Board shall make his/her report and recommendations available to the parties within 45 days, and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings, and the decision of the Zoning Hearing Board shall be entered no later than 30 days after the report of the hearing officer. Where the Zoning Hearing Board fails to render a decision within the 45-day period required by this paragraph, or fails to hold a hearing within 60 days from the applicant's request, unless the applicant has agreed or shall agree in writing to an extension of time, the decision shall be deemed to have been rendered in favor of the applicant. Where a decision has been rendered in favor of the applicant because of the failure of the Zoning Hearing Board to meet or render a decision as herein above provided, the Zoning Hearing Board shall give public notice of said decision with 10 days from the last day the Zoning Hearing Board could have met to render a decision, as per Act 247, as amended. If the Zoning Hearing 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.
11. 
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/her not later than the day following its date. To all other persons who have filed their name and address with the Zoning Hearing 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.
[Ord. No. 247-2018, 9/17/2018]
A. 
The Zoning Hearing Board shall give public notice of any public hearing as follows:
1. 
The public notice herein required shall state the name of the applicant, the location of the lot or building; the general nature of the question involved, and the date, time and location of the hearing.
2. 
Public notice shall be published in a newspaper of general circulation within the Borough indicating the content described in subsection A.1 above. Such public notice shall be published once a week for two successive weeks, not less than seven (7), nor more than thirty (30) days prior to the hearing.
3. 
Written notice shall be given to the applicant, Borough Council, the Zoning Officer, Borough Secretary, Borough Planning Commission, and to any person who has made a timely request for the same, or who have registered their names and addresses for this purpose with the Board.
4. 
Written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
5. 
The Board may mail written notice thereof to the owner of every lot abutting the applicant's lot and to the owner of every lot within 150 feet of the applicant's lot. Failure to give this notice, either in part or in full, as stated by this paragraph, shall not invalidate any action taken by the Board.
6. 
In addition thereto, the public notice may note that a copy of the landowner's application, including plans and proposed amendments may be examined by the public at the Borough during regular business hours.
[Ord. No. 247-2018, 9/17/2018]
A. 
The landowner affected, any person aggrieved by any decision of the Zoning Hearing Board, or any officer of the Borough may file an appeal with the Zoning Hearing Board in writing specifying the grounds thereof within the time required by the Municipalities Planning Code, 53 P.S. § 10101 et seq., or as provided by the rules of the Board.
B. 
Requests for a variance or special exception may be filed by any landowner, or any tenant with permission of the landowner. The appropriate fee, as established by the fee schedule adopted by resolution by the Borough Council, shall be paid in advance for each appeal or application for a variance or special exception.
[Ord. No. 247-2018, 9/17/2018]
A. 
The Zoning Hearing Board shall hear and decide requests for variances where it is alleged that the provisions of this Chapter inflict unnecessary hardship on the applicant. The Zoning Hearing Board may grant a variance, provided 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 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 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 such unnecessary hardship has not been created by the applicant.
4. 
That the variance, if authorized, will neither 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 in issue.
B. 
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.
[Ord. No. 247-2018, 9/17/2018]
A. 
In granting a special exception, the Zoning Hearing 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 Act 247, 53 P.S. § 10101 et seq. and this Chapter. The Zoning Hearing Board shall hear and decide requests for special exceptions where this Chapter has stated special exceptions to be granted or denied by the Zoning Hearing Board pursuant to the following standards and criteria, in addition to such other requirements and standards as may be required by law and other provisions of this Chapter:
1. 
The size, scope, extent and character of the special exception request is consistent with the Honey Brook Township and Borough Multi-Municipal Comprehensive Plan and with the purpose and intent of the zoning district involved.
2. 
The proposed special exception character and type of development constitutes an appropriate use in the area consistent with the character and type of development in the area surrounding the location for which the request is made and will not substantially impair, alter, or detract from the use of surrounding property or from the character of the neighborhood, the number, extent, and scope of nonconforming uses in the area, and the presence or absence in the neighborhood of conditions or uses which are the same or similar in character to the condition or use for which the applicant seeks approval.
3. 
The proposed special exception serves the health, safety, welfare, and the best interest of the Borough.
4. 
The proposed modification is reasonable in terms of the logical, efficient and economical extension of public services and facilities, such as public water and sewers, police and fire protection, transportation and public schools.
5. 
The proposed special exception shall comply with the Borough Subdivision and Land Development Ordinance [Chapter 22].
6. 
The recommendations of the Planning Commission on the proposed development plan should be reviewed, where such plan is required. The Board shall not be bound by such recommendations, nor shall the Board be bound by the action of the Borough Council in relation to the development plan.
7. 
The proposed use shall limit the total number of new access points, reduce the need for on-street parking, and encourage the frontage of buildings on parallel marginal roads, or on roads perpendicular to the highway.
8. 
The proposed special exception is suitable with respect to traffic on the roads or highways in order to protect streets and highways from undue congestion and provides for adequate access and off-street parking arrangements in order to protect major streets and highways from undue congestion and hazard.
9. 
The natural features and processes characterizing the proposed site and its surroundings shall not suffer unmitigated degradation, that the management of stormwater, the provision of water or sewer service, and any other alterations to the site's predevelopment condition, shall be consistent with Borough goals, practices and plans in these regards, and that demand for water and energy by the proposed use shall be minimized to the optimal extent.
10. 
All commercial or industrial parking, loading, access or service areas shall be illuminated at night while in use, in accordance with Part 11, General Regulations, and that such lighting, including sign lighting, shall be arranged so as to protect neighboring properties from discomfort or hazardous interference of any kind.
[Ord. No. 247-2018, 9/17/2018]
Unless otherwise specified by the Zoning Hearing Board, a special exception or variance shall expire and become null and void if the applicant fails to obtain a building permit, a use and occupancy permit, or a subdivision and land development approval as the case may be, within six (6) months from the date of authorization thereof. The Zoning Hearing Board, upon a written request, may for good cause extend the variance or special exception for an additional six (6) month period. Such extension may be granted without the necessity of a formal hearing.
[Ord. No. 247-2018, 9/17/2018]
A. 
No aggrieved person shall be allowed to file any proceedings with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by the Borough Council if such proceeding is designed to secure reversal or to limit approval in any manner unless such person alleges and proves that he/she had no notice, knowledge, or reason to believe that such approval had been given. The failure of anyone other than the applicant to appeal from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 709 of Act 247, the Municipalities Planning Code, 53 P.S. § 10709, or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 916.2 of Act 247, the Municipalities Planning Code, 53 P.S. § 10916.2, shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative approval.
B. 
All appeals from determinations adverse to the landowners shall be filed by the landowner within thirty (30) days after notice of determination is issued.
[Ord. No. 247-2018, 9/17/2018]
Upon filing of any proceeding referred to in § 27-1508 and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged zoning 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 such 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. Procedures shall be in accordance with Act 247.
[Ord. No. 247-2018, 9/17/2018]
Any person aggrieved by any decision of the Board, or any taxpayer, or any officer of the Borough may, within 30 days after entry of the decision of the Board as provided in 42 Pa.C.S.A. § 5572, or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as set forth in § 27-1406.1.J of this Chapter appeal to the Court of Common Pleas of Chester County by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, specifying the grounds upon which such person relies.