The membership of the Zoning Hearing Board shall consist of
three residents of the Borough appointed by Council. Their terms of
office shall be three years and shall be so fixed that the term of
office of one member shall expire each year. The Board shall promptly
notify Council when vacancies 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, including membership
on the Planning Commission and Zoning Officer.
A.
Appointment of alternate members. Borough Council may appoint at least one, but no 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 § 170-1202B, 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 Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the power and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer. 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 § 170-1202B of this chapter.
B.
Participation by alternate members. 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 subsection shall be made
on a case-by-case basis in rotation according to declining seniority
among all alternates.
Any Zoning Hearing Board member may be removed for malfeasance,
misfeasance or nonfeasance in the office or for other just cause by
a majority vote of Borough Council taken after the member has received
15 days' advance notice of the intent to take such vote. A hearing
shall be held in connection with the vote if the member shall request
it in writing.
A.
Officers. The Zoning Hearing Board shall elect from its own membership
its officers, who shall serve annual terms as such and may succeed
themselves.
B.
Quorum. For the conduct of any hearing and the taking of any action,
a quorum shall be not less than a majority of all members of the Zoning
Hearing Board except when member(s) of the Zoning Hearing Board are
disqualified to act in a particular matter, alternate members shall
be appointed to provide a quorum.
C.
Hearing Officer. 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 Zoning Hearing Board and
accept the findings or decision of the hearing officer as final.
D.
Procedures. The Zoning Hearing Board may make, alter and rescind
rules and forms for its procedure, consistent with ordinances of the
Borough and laws of the commonwealth of Pennsylvania.
E.
Files and annual report. The Zoning Hearing Board shall keep full
public records of its business, and shall submit a report of its activities
to Borough Council once a year.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudication in the following matters:
A.
Substantive challenges to the validity of any land use ordinance,
except curative amendments brought before Borough Council.
B.
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 or the registration or refusal to register any nonconforming
use, structure or lot.
C.
Appeals from a determination by the Borough Engineer or the Zoning
Officer with reference to the administration of any floodplain or
flood hazard ordinance or such provisions within a land use ordinance.
D.
Applications for variances from the terms of this chapter and flood hazard ordinance or such provisions within a land use ordinance pursuant to Section § 170-1206.
G.
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
subdivision and land development or planned residential development.
H.
Appeals from decisions of the Zoning Officer with respect to requests for reasonable accommodation under the Fair Housing Act Amendments or the Americans with Disabilities Act. In hearing such an appeal, the Board shall apply the criteria set forth in § 170-1105B of this chapter. In granting a request for reasonable accommodation, the Board may attach such reasonable safeguards and/or limitations as it may deem necessary to properly implement this chapter and protect the public health, safety and welfare in a manner consistent with the requirements of the Fair Housing Amendments Act or the Americans with Disabilities Act.[2]
[2]
Editor's Note: See 42 U.S.C. § 12101 et seq.
I.
In handling a request for reasonable accommodation, the Board shall
be governed by the provisions of this article to the fullest extent
as may be consistent with the Fair Housing Act Amendments and the
Americans with Disabilities Act.
The Board, upon appeal, shall have the power to authorize variances
from the requirements of this chapter, and to attach such conditions
to the variance as it deems necessary to assure compliance with the
purposes of this chapter. A variance may be granted if 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
necessary to afford relief and will represent the least modification
possible of the regulation in issue.
The Board shall have the power to hear and decide on applications for uses by special exception as authorized by this chapter, in harmony with its general purpose and intent, and in accordance with the standards set forth in Article 7. The Board shall approve a use by special exception only if it meets all applicable requirements of this chapter and the express standards and criteria set forth in Article 7. In granting a use by special exception, the Board may attach such reasonable safeguards in addition to those expressed in this chapter as it may deem necessary to properly implement this chapter and protect the public health, safety and welfare.
A.
Notice.
(1)
Written notice of the hearing shall be given to the public,
the applicant, the Zoning Officer, Borough Council, the Planning Commission
and to any person who has made timely request for the same. A notice
of the hearing shall be given to other persons at such a time and
in such manner as Borough Council or the Zoning Hearing Board shall
designate.
(2)
Public notice, as defined herein, shall be given for the hearing.
In addition, written notice of said hearing shall be conspicuously
posted on the affected tract or tracts of land or water body at least
one week prior to the hearing.
B.
Conduct of hearing.
(1)
The hearing shall be held within 60 days from the date of the
applicant's request, unless the applicant has agreed, in writing,
to an extension of time.
(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;
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 Board and accept the decision or findings of the
hearing officer as final.
(3)
The parties to the hearing shall be the Borough, any person
affected by the application who has made timely appearance of record
before the Board, and any other person including civic or community
organizations permitted to appear by the Board. The Board shall have
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.
(4)
The Chairman or Acting Chairman of the 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.
(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 stenographic record of the proceedings. Fees for the stenographer and transcript are governed by § 170-1211 of this chapter.
(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, 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
after the commencement of hearings 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 after the last
hearing before the Board or hearing officer. Where the application
is contested or denied, each decision shall be accompanied by findings
of fact and conclusions based thereon together with the reasons therefor.
Conclusions based on any provisions 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 the 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
within 45 days and the parties shall be entitled to make written representations
thereon to the Board prior to final decision or entry of findings,
and the Board's decision shall be entered no later than 30 days
after the report of the hearing officer.
A.
Where the Board fails to render a decision within the required forty-five-day
period or fails to hold the required hearing within 60 days of the
applicant's request for a hearing, the decision shall be deemed
to have been rendered in favor of the applicant, unless the applicant
has agreed, in writing or on the record, to an extension of time.
B.
When a decision has been rendered in favor of the applicant because
of failure of the Board to meet or render a decision, the Board shall
give public notice of the decision within 10 days from the last day
it could have met to render a decision. If the Board shall fail to
provide such notice, the applicant may do so. Nothing in this section
shall prejudice the right of any party opposing the application to
appeal the decision to the Court of Common Pleas.
A.
Parties to proceedings authorized in this article may utilize mediation
as an aid in completing such proceedings. In proceedings before the
Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate
mediation or participate as a mediating party. Mediation shall supplement,
not replace, those procedures in this article once they have been
formally initiated. Nothing in this subsection shall be interpreted
as expanding or limiting municipal 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 municipality, in
offering the mediation option, shall assure that in each case, the
mediating parties, assisted by the mediator as appropriate, develop
terms and conditions for funding mediation.
(1)
Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedures and demonstrated
skills in mediation.
(2)
Completing mediation, including time limits for such completion.
(3)
Suspending time limits otherwise authorized in this chapter
or in the Pennsylvania Municipalities Planning Code (Act 247, as amended),[1] 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(4)
Identifying all parties and affording them the opportunity to
participate.
(5)
Subject to legal restraints, determining whether some or all
of the mediation sessions shall be open or closed to the public.
(6)
Assuring that mediated 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 this chapter.
(7)
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.
Fees. 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.
B.
Stenographer's appearance fee and transcripts. The appearance
fee for a stenographer shall be shared equally be the applicant and
the Board. The cost of the original transcript shall be paid by the
Board if the transcript is ordered by the Board or hearing officer
or shall be paid by the person appealing from the decision of the
Board if such appeal is made, and, in either event, the cost of additional
copies shall be paid by the person requesting such copy or copies.
In other cases, the party requesting the original transcript shall
bear the cost thereof.
C.
Expenditures. Members of the Board may receive compensation for the
performance of their duties as may be fixed by Borough Council, but
in no case shall it exceed the rate of compensation authorized to
be paid to the members of Borough Council. Within the limits of funds
appropriated by Borough Council, the Board may employ or contract
for secretaries, clerks, legal counsel, consultants and other technical
services.
A.
No person shall file any proceeding before the Zoning Hearing Board
later than 30 days after a preliminary or final application for development
has been approved by an appropriate Borough officer, agency or body
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
had been given. If such person has succeeded to his interest after
such approval, he shall be bound by the knowledge of his predecessor
in interest.
B.
The failure of anyone, other than the landowner, to appeal from an
adverse decision by a Zoning Officer on a challenge to the validity
of an ordinance or map filed pursuant to Section 916.2 of the Pennsylvania
Municipalities Planning Code[1] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
[1]
Editor's Note: See 53 P.S. § 10916.2
C.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
A.
Upon filing of any proceeding 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 the zoning appeals to order such persons to post bond as a condition
to continuing the proceedings before the Board. The question whether
or not such petition should be granted and the amount of the bond
shall be within the sound discretion of the court.
B.
All appeals from decisions rendered by the Zoning Hearing Board shall
be taken to the Allegheny County Court of Common Pleas and shall be
filed within 30 days after the entry of the decision or, in the case
of a deemed decision, within 30 days after the date upon which notice
of said deemed decision is given as required by Subsection 908(9)
of the Pennsylvania Municipalities Planning Code (Act 247, as amended).[1]
[1]
Editor's Note: See 53 P.S. § 10908(9).