A.
Formation of the Board. A Zoning Hearing Board, hereafter called
the "Board," is hereby created to carry out the functions described
in this article.
B.
Membership of the Board.
(1)
The membership of the Board shall consist of three persons,
all residents of Brady Township who shall be appointed by resolution
of the Board of Supervisors and may succeed themselves.
(2)
Members of the Board shall hold no other office in Brady Township,
either elective or appointed.
(3)
The Board of Supervisors shall appoint two persons who are residents
of Brady Township, as alternate members of the Board for three-year
terms. Such persons may, at the direction of the Board Chairperson,
replace a regular member who is unable to participate at the commencement
of a proceeding before the Board, and shall during that proceeding
function with the full authority of a regular Board member. Such alternates
shall hold no other office in Brady Township, either elective or appointed.
Any alternate may participate in any proceeding or discussion of the
Board but shall not be entitled to vote unless designated as a voting
member.
C.
Term of office.
(1)
Members of the Board shall be appointed for three-year staggered
terms, with one appointed each year to refill a completed term. In
the first appointment, one member shall be given a three-year term,
one member shall serve a two-year term and one member a one-year term.
(2)
Any member may be reappointed to another three-year term when
a preceding term is completed.
(3)
Appointments to fill vacancies shall be made by the Board of
Supervisors for the unexpired portion of a term only. The Zoning Hearing
Board shall promptly notify the Board when a vacancy occurs.
D.
Removal of members.
(1)
Any Board member may be removed by a majority vote of the Board
of Supervisors for malfeasance, misfeasance or nonfeasance in office
or for other just cause, taken after the Board member has received
a minimum 15 days' notice that such a vote will be taken.
(2)
The Board member thus accused may request by written communication
to the Township Secretary at least seven days prior to the meeting
of the Board of Supervisors at which the vote for removal is to be
taken, a hearing before the Supervisors after which the Supervisors,
at their discretion, may vote to remove the Board member.
E.
Organization of the Board.
(1)
The Board shall elect officers from among its membership, to
include a Chairperson, Vice Chairperson and Secretary.
(2)
The Board shall establish a regular monthly meeting date to
conduct business.
(3)
The Board shall reorganize at its first meeting in each calendar
year.
(4)
Board members may succeed themselves in their positions.
(5)
The Chairperson shall perform all duties required by the Pennsylvania
Municipalities Planning Code, as amended,[1] this chapter, and these rules; shall preside at all meetings
of the Board; shall decide on all points of order and procedure, subject
to these rules, unless directed otherwise by a majority of the Board;
shall draw up the agenda for all meetings; shall appoint any committees
found necessary to carry out the business of the Board; and shall
have power to administer oaths and issue subpoenas to compel the attendance
of witnesses and the production of relevant documents and papers.
The Chairperson's signature shall be the official signature of the
Board and shall appear on all decisions as directed by the Board.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(6)
The Vice Chairperson shall act in the absence of the Chairperson.
(7)
The Secretary shall record and maintain permanent minutes of
the Board's proceedings, showing the vote of each member upon every
question, or if absent or failing to vote, indicating that fact; shall
keep records of the Board's examinations and other official actions;
shall cause to be made a stenographic record of all hearings, including
the names and addresses of all persons appearing before the Board;
shall, subject to the Board and the Chairperson, conduct the correspondence
of the Board; shall cause to be published, in a local newspaper, public
notices of meetings and hearings as required by law and by those rules
of procedure; shall cause to be conspicuously posted a written notice
on the affected tract and the Township building at least one week
prior to the hearing shall send notices of the hearing to the applicant,
property owner, Planning Commission, Zoning Officer and to persons
requesting such notice; shall file Board minutes and records in the
Township office, which minutes and records shall be public record;
and shall submit a report of the Board's activities to the Board of
Supervisors once a year.
(8)
A quorum shall be not less than a majority of all members of
the Board.
(9)
The Board may appoint one of its members as a Hearing Officer
to conduct a hearing on behalf on the Board and parties to such a
hearing may waive further action by the Board prior to the decision
of the hearing, accepting the Hearing Officer's decision as final.
(10)
Members who have a conflict of interest with a case to be heard
shall excuse themselves from the hearing, in which case, an alternate
may be appointed by the Chairperson to hear the case in place of the
excused member.
(11)
The Board may make, alter, or rescind rules and forms for its
procedure consistent with this and other ordinances of Brady Township
and the law of the commonwealth.
(12)
The Board shall keep full public records of its business and
shall submit an annual report of its activities to the Board of Supervisors
not later than 60 days after the start of the subsequent year.
(13)
In conducting its business, the Board shall utilize Robert's
Rules of Order when procedural conflicts arise that are not addressed
by the article.
F.
Expenditures for services.
(1)
Within the limits of its annual budget, the Board may employ
secretarial, legal, technical or other consulting services to assist
it in carrying out its duties.
(2)
In setting fees for public hearings, the Board of Supervisors
may not include the costs of legal services for the Board or expenses
for technical consultants or expert witnesses.
(3)
The attorney retained by the Board of Supervisors shall not
also provide legal services for the Zoning Hearing Board.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1)
(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 or the registration or refusal to register any nonconforming
use, structure or lot.
(3)
Appeals from a determination by the Township 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.
(6)
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.
(8)
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving Article V or VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended, applications.[6]
[6]
Editor's Note: See 53 P.S. § 10501 et seq. or 10701
et seq., respectively.
B.
Township Supervisors or, except as to § 350-1102B(3), (4) and (5), the Planning Commission, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments under Article VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended, pursuant to the provisions of Section 702 of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[7]
[7]
Editor's Note: See 53 P.S. § 10702.
(2)
All applications pursuant to Section 508 of the Pennsylvania
Municipalities Planning Code, Act 247, as amended,[8] for approval of subdivision or land developments under Article V of the Pennsylvania Municipalities Planning Code, Act 247, as amended. Any provision in a subdivision and land development ordinance requiring that final action concerning subdivision and land development applications be taken by the Planning Commission rather than the Township Supervisors shall vest exclusive jurisdiction in the Planning Commission in lieu of the Township supervisors for purposes of the provisions of this subsection.
[8]
Editor's Note: See 53 P.S. § 10508.
(5)
All petitions for amendments to land use ordinance, pursuant
to the procedures set forth in Section 609 of the Pennsylvania Municipalities
Planning Code, Act 247, as amended.[11] 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.
[11]
Editor's Note: See 53 P.S. § 10609.
(6)
Appeals from the determination of the Zoning Officer or the Township Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for land development under Article V and VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[12] Where such determination relates only to development not involving of Article V or VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended, application, the appeal from such determination of the Zoning Officer or the Township Engineer shall be to the Zoning Hearing Board pursuant to § 350-1102A(8). Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission and all appeals from the decision of the planning agency shall be to court.
[12]
Editor's Note: See 53 P.S. §§ 10501 et seq.
and 10701 et seq., respectively.
A.
Appeals from Decisions of the Zoning Officer:
(1)
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 misrepresented or misapplied any provision of any
ordinance governing land development adopted by Brady Township.
B.
Challenges to the validity of a land development ordinance.
(1)
The Board shall hear substantive challenges to the validity
of any land use ordinance, except those brought as curative amendments,
which shall be considered by the Board of Supervisors, and challenges
raising procedural questions or alleged defects in the process of
enactment or adoption of an ordinance or an amendment, provided such
challenge is brought to the Board within 30 days after the effective
date of the ordinance or amendment.
(2)
A substantive challenge may be brought by a landowner who contends
that any part of a land development ordinance prohibits or restricts
the proposed use or development of his land, or persons aggrieved
by a use or development permitted on lands of another party by any
part of such on ordinance.
(3)
The appellant shall file a written request with the Secretary
of the Board for a hearing on his challenge. Such a request shall
include the reasons for the challenge, the use or development proposed
in lieu of that permitted by the challenged section of the ordinance,
and other relevant materials in support of the challenge.
(4)
In making its decision on a substantive challenge, the Board
shall consider, in addition to the filed statement, evidence of the
impact of the proposed use or development on municipal services and
facilities; the extent to which the use or development provides low-
and moderate-income housing units if it is a residential plan; the
suitability of the site for the proposed intensity of the use; and
the effect of the development or use upon soils, slopes, woodlands,
drainage, floodplains, aquifers, natural features and agricultural
lands.
(5)
If the Board finds the challenge has merit, the Board's decision
shall include recommended amendments to the challenged ordinance which
will cure the defects found.
(6)
The public notice on a hearing for a challenge shall specify
the specific part of the particular ordinance whose validity is in
question.
(7)
The challenge shall be deemed to have been denied if the Board
fails to commence the hearing within 60 days of receiving the request
or the Board fails to act on the request within 45 days after the
end of the hearing.
C.
Variances.
(1)
The Board shall hear requests for variances where it is alleged
that the provisions of the Zoning Ordinance inflict unnecessary hardship
upon the applicant.
(2)
Variance from the terms of this chapter shall not be granted
by the Board unless a written application for a variance is submitted
in advance of the hearing to the Secretary of the Board demonstrating
all the following findings where relevant:
(a)
That there are unique physical circumstances or conditions,
including but not limited to 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 condition
generally created by the provisions of this chapter in the neighborhood
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 in which the property is located nor
substantially or permanently impair the appropriate use or development
of adjacent property and is not detrimental to the public welfare.
(e)
If authorized, the variance shall represent the least deviation
from the regulations that will afford relief and will represent the
least modification possible of the regulation in question.
(3)
In granting a variance the Board may attach appropriate conditions
necessary to protect the intent of this chapter, the Comprehensive
Plan of Brady Township and the public health and safety.
D.
Determinations upon nonconforming uses.
(1)
The Board shall hear appeals when an applicant proposes to change
an existing legal nonconforming use to a second nonconforming or less
nonconforming use.
(2)
If approving a nonconforming use, the Board shall determine
that the proposed nonconforming use is equally compatible or more
compatible with the uses permitted in the zoning district than the
preceding nonconforming use and will not downgrade the neighborhood
of which it is a part. The Board may attach conditions to approval
designed to minimize or eliminate any negative impacts of the proposed
nonconforming use.
(3)
A legal nonconforming use may be expanded following review and
approval by the Zoning Hearing Board, provided that:
(a)
Any such physical expansion shall comply with the use and dimensional
requirements otherwise applicable in the district in which the nonconforming
use is located;
(b)
With respect to an expansion involving an addition to an existing
building or structure, or the construction of a new building or structure,
the gross floor area of all such additions or new construction shall,
in the aggregate, be no more than 50% of the gross floor area of the
buildings and structures occupied by the nonconforming use at the
time of enactment of the original Zoning Ordinance;
(c)
The cost of such expansion shall not exceed 100% of the assessed
value of the land and improvements occupied by the nonconforming use
at the time of enactment of the original Zoning Ordinance; and
A.
An appeal, challenge, or request for a variance or other action may
be filed in writing with the Secretary of the Board by, or on behalf
of, any owner of land in the Township, by any tenant wishing a variance
with the permission of his landowner, by any officer or agency of
the Township, or by any aggrieved person.
(1)
Applicant obtains application provided by the Township from
the Secretary of the Zoning Hearing Board.
(2)
Applicant presents completed application with all fees, documentation,
and supportive materials to the Secretary of the Zoning Hearing Board
for approval.
(3)
When the Secretary accepts the application as being complete,
the secretary dates and signs the application.
(4)
Within three days, the Secretary notifies the Zoning Hearing
Board Chairperson of the completed application.
(5)
The Chairperson sets the date for the hearing.
B.
When a request for a hearing is received by the Secretary of the
Zoning Hearing Board, the Board shall schedule and commence the hearing
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, in writing or on the record. Any party
aggrieved by the hearing schedule may apply for relief to the Court
of Common Pleas. 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.
Upon the request of the applicant, the Board or Hearing Officer shall
assure that the applicant receives at least seven hours of hearing
within the 100 days including the first hearing. Persons opposed may
upon consent of the applicant and Township be granted additional hearings
provided the applicant is provided an equal number of additional hearings.
C.
The hearings shall be conducted by the Board or the Board may appoint
any member or an independent attorney 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 Township, 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.
D.
The parties to a hearing shall be the Township, the appellant, and
anyone affected by the application and/or any civic or community organization
who or which requests in writing the opportunity to appear prior to
the hearing, or on appearance forms provided at the hearing.
E.
Notice of a hearing shall be mailed at least 14 days before the hearing
date to all parties who have made a timely request for such notice,
and in addition to the Zoning Officer and to owners of properties
adjacent to or directly across a street from the boundary of the property
or properties affected by the hearing.
F.
Public notice shall be placed twice in a newspaper of general local
circulation by the Zoning Hearing Board Secretary, once in each of
two consecutive weeks, the first not more than 30 days and the second
notice not less than seven days before the hearing. In addition, if
a variance is sought, or an appeal requested, notice shall be placed
conspicuously on the affected property at least 14 days before the
hearing and posted at the Township Building at least seven days before
the hearing by the Zoning Hearing Board Secretary.
G.
Newspaper and letter notices shall indicate the date, time, and place
of the hearing and the specific nature of the matter to be heard.
H.
The Secretary shall deliver or mail a copy of the final report and
decision of the Zoning Hearing Board to the applicant no later than
one day after its date; send brief letters to all other persons whose
names appear on the Zoning Hearing Board report informing them of
the Zoning Hearing Board's decision; file a copy of the Zoning Hearing
Board minutes and reports in the Township office; once a year submit
a report of activities to the Board of Supervisors.
A.
The Chairperson or Hearing Officer shall conduct the hearing and
shall have the power to administer oaths and issue subpoenas to compel
attendance of witnesses and the production of relevant documents,
including those witnesses and documents requested by the parties.
B.
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and arguments, and to cross-examine adverse witnesses on all relevant
issues. Formal rules of evidence shall not apply but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
C.
The Board or the Hearing Officer, as the case may be, shall cause
to have kept a stenographic record of the proceedings. The appearance
fee for a stenographer shall be shared equally by the applicant and
the Board. The cost of the original transcript shall be paid for by
the Board if the Board requests it, or by the appellant if contesting
a decision of the Board or the Hearing Officer. Any other transcript
of the proceedings and/or copies of graphic or written material received
in evidence shall be made available to any party at cost to that party.
D.
The Board, or the Hearing Officer, shall not communicate, directly
or indirectly, with any party and/or representatives of any party
in connection with any issue relevant to the hearings, except upon
notice and opportunity for all parties to participate; shall not take
notice of any communications, reports or other materials, except advise
from the Board's solicitor, unless all parties are afforded an opportunity
to contest the material so noticed; and shall not inspect any site
or its surroundings with any party and/or representative of any party
after the start of hearings unless all parties are given an opportunity
to be present.
E.
The Board or Hearing Officer shall render a written decision, or,
when no decision is called for, 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, the 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 any other ordinance or regulation of the Township
or the Pennsylvania Municipalities Planning Code, Act 247, as amended,[1] shall contain a reference to the provision relied on and
the reasons why a conclusion is deemed appropriate in the light of
the facts found.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
F.
If the hearing is conducted by a Hearing Officer and there has been
no stipulation that the Hearing Officer's decision or findings are
final, the Board shall make the Officer's report and recommendations
available within 45 days after the hearing to the parties who shall
be entitled to make written representations thereon to the Board which
shall convene as a whole and render a final decision and entry of
findings, not later than 30 days after the Hearing Officer's report.
G.
Except for challenges filed under Section 916.1 of the Pennsylvania
Municipalities Planning Code, Act 247, as amended,[2] where the Board or Hearing Officer fails to render the
decision within 45 days after the last hearing on the application,
or fails to commence, conduct or complete the required hearing within
the period required by Section 908 of the Pennsylvania Municipalities
Planning Code,[3] the decision shall be deemed to have been rendered in
favor to the applicant, unless the applicant and Board have agreed
in writing or on the record to a specific time extension.
H.
When the decision favors the applicant as a result of the Board's
failure to render a decision or schedule and complete a hearing, the
Board shall give public notice of the decision within 10 from the
last day it could have met to render a decision. Nothing in this subsection
shall prejudice the right of any party opposing the application, to
appeal the decision of a court of competent jurisdiction.
I.
A copy of the final decision, or the findings if no decision is required,
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 name and address with the Board, brief notice by mail
or otherwise shall be made available to interested parties at a place
where the full decision or findings may be examined during regular
business hours.
A.
Once the Zoning Officer has acted on a development proposal pursuant
to the regulations of this chapter, any party may appeal the decision
to the Board not later than 30 days after the construction for which
the Zoning Officer has issued a permit has commenced, unless the party
can prove he had no knowledge of the decision within the thirty-day
period. A second party succeeding in interest shall be bound by the
first party's knowledge.
B.
Upon the filing of an appeal and while an appeal is pending before
the Board, any development affected by the appeal shall be halted
unless the Zoning Officer certifies to the Board that suspension would
cause imminent peril to life and property. In this case, suspension
will occur only by a restraining order granted by the Board or Butler
County Court. When an application for development has been duly approved,
and proceedings intended to reverse or limit the approval are filed
with the Board persons other than the applicant, the applicant shall
have the right to petition the court to require the appealing party
to post a bond as a condition of continuing the appeal, the amount
to be determined by the Court. The Court shall hear the petition,
determine whether the appeal is frivolous, and if so, may require
the posting of the bond.
C.
Appeals from decision of the Board, or upon reports of the Board
in proceedings to challenge the validity of any ordinance, shall be
filed within 30 days of the decision or completion of the report,
with the Clerk of the Butler County Court of Common Pleas.
D.
If any application for a variance is denied by the Board, another
application for the same variance shall not be filed within a period
of one year from the date of denial, except upon the initiation by
the Board after a showing of a change of circumstances which would
warrant a rehearing.
A.
Parties to proceedings authorized in this article and Article X-A,
Appeals to Court, of the Pennsylvania Municipalities Planning Code,
Act 247, as amended,[1] 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 and Article X-A once they have been formally initiated.
Nothing in this section shall be interpreted as expanding or limiting
municipal police powers or as modifying any principals of substantive
law.
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.
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. Any municipality offering
the mediation option shall assure that, in each case, the mediating
parties, assisted by the mediator as appropriate, develop 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 act, provided
there is written consent by the mediating parties, and by an applicant
or municipal 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 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 the other sections of this act.
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.
