City of Easton, PA Zoning Hearing Board

The membership of the Zoning Hearing Board shall, as determined by Council, consist of five members and two alternates, all of whom must be residents of the City. All members are nominated by the Mayor and approved by City Council. The terms of office of the five members and two alternate Board members shall be five years and shall be so fixed that the term of office of no more than two members shall expire each year. The Board shall promptly notify the Mayor and Council 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 City, except that no more than one member of the Board may also be a member of the Planning Commission.

The five-member Board shall not be changed to a three-member Board except upon an affirmative vote on the question by a majority of the electors of the City voting thereon at a referendum held at the municipal or general election prior to a year in which the terms of two of the members on the Board expire.

An alternate shall only serve as a voting member when a Board member cannot attend a meeting, or a Board member has a conflict of interest.

Removal of members. Any Zoning Hearing Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of 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.

Organization of Board. The Zoning Hearing 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 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 § 595-39, Hearings. The Board may make, alter and rescind rules and forms for its procedures consistent with ordinances of the City and laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to Council once a year.

Expenditures for services. Within the limits of funds appropriated by Council, the Zoning Hearing 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 Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of Council.

Board fees. Applications for any purpose to be heard by the Zoning Hearing Board shall be accompanied by reasonable fees to defray the costs thereof as provided in Chapter 285, Fees, of the Code of the City of Easton.

§ 595-39 Hearings.

General procedural rules.

Appeals shall be taken to the Zoning Hearing Board after an application has been made and denied by the Zoning Administrator.

Appeals shall be filed within 30 days of the decision of the Zoning Administrator.

Applicant shall show proof of legal interest to the property affected, whether the interest be as owner, tenant, purchaser or in any other capacity.

A plot plan of the real estate affected, indicating location and size of improvements now erected and/or proposed to be erected, shall be presented.

(5)

Applicant shall request a variance or exception or other reason for the appeal.

(6)

If the applicant is not the owner of property upon which permission is applied for, the owner's permission for proposed use shall be in writing.

(7)

Application for hearing on any sign shall include a sketch of the proposal.

(8)

Applicant shall be prepared to proceed with hearing at the advertised date and time of hearing, otherwise the petition shall be dismissed unless postponed by the Board upon just cause or upon the Board's own motion.

(9)

Zoning notice shall be posted by the applicant on the affected property seven days prior to hearing date in a conspicuous place plainly visible to passersby. (Zoning notice shall be furnished by the Board.) The applicant shall be responsible for maintenance of this notice and, should it be removed or destroyed, shall immediately obtain another copy. If notice is not displayed, the Board, at its discretion, may cancel or postpone the hearing.

(10)

A refusal to grant a permit on one application is not res judicata as to a second application when it is shown that the facts are different or other evidence is presented which was not available at the time of any prior hearing.

(11)

Public notice shall be given seven days prior to hearing. Notice shall be given to the applicant, Zoning Administrator and Planning Commission.

(12)

The decision of the Board shall be mailed to the applicant and to all persons requesting same, who have filed their names and addresses with the Board for the purpose of receiving such decision.

(13)

The Board shall make findings of fact and conclusions to be placed on file in the Secretary's office.

(14)

Public notice shall be by publication in a newspaper circulated in the City of Easton seven days prior to hearing.

(15)

Property owners within 100 feet of subject site shall be notified by the Board seven days prior to hearing.

(16)

A tie vote of the Board shall result in a denial of the application; the denial and the reasons for such denial shall be communicated to the applicant in a manner consistent with § 595-39I, Decisions or findings.

Hearing Officer. The hearing shall be conducted by the Zoning Hearing 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 a decision or findings by the Board and accept the decision or findings of the hearing officer, if appropriate, as final.

Parties to the hearing. The parties to the hearing shall be the City, any person affected by the application who has made a timely appearance of record before the Zoning Hearing 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.

Oaths and subpoenas. 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.

Right to counsel; presenting evidence; cross-examination. 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.

Formal rules of evidence inapplicable. Formal rules of evidence shall not apply but irrelevant, immaterial or unduly repetitious evidence may be excluded.

Record of proceedings. The Zoning Hearing Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings 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.

Communications; notice of materials and site inspection. The Zoning Hearing 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 such 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.

Decision or findings.

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 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 Act 247[1] or of any ordinance, rule or regulation shall contain a reference to the provisions 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 on findings is 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 the final decision or entry of findings, and the Board's decision shall be entered no later than 45 days after the decision of the hearing officer.

Editor's Note: See the Pennsylvania Municipalities Code, 53 P.S. § 10101 et seq.

When the Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from the date 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 at the time of a public hearing, to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove provided, the City shall give public notice of such decision within 10 days in the same manner as provided in § 595-39A. Nothing in this section shall prejudice the right of any party opposing the application to urge that such decision is erroneous.

Notice and distribution of decision or findings. A copy of the final decision or, where no decision is called for, 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 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.

§ 595-40 Powers and functions.

Appeals from Zoning Administrator. The Zoning Hearing Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Administrator 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 Administrator. 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.

Challenge to validity of Zoning Ordinance or Map. The Zoning Hearing Board shall hear challenges to the validity of the Zoning Code, Ordinance or Map except as indicated in §§ 595-41B and 595-41C. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 595-39, Hearings. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the Court.

Special exceptions. Where Council has in this chapter stated special exceptions to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions after receipt of the Planning Commission's recommendations in accordance with such standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in the chapter, as it may deem necessary to implement the purposes of Act 247 and this chapter. The Board shall grant a special exception only if it finds adequate evidence presented by the applicant that the proposed special exception is duly authorized under provisions of this chapter, that the application falls within the terms of the specific provisions allowing for special exceptions, and that the proposed use complies with all other requirements of this chapter and the following criteria:

The special exception shall not cause overcrowding of the land beyond what would normally be expected from the proposed use.

The special exception shall not impair the adequate supply of light and air to adjacent properties.

The special exception shall not burden the water, sewer, school, park or other public facilities beyond what would be normally expected from the proposed use.

The proposed use shall not substantially change the character of any surrounding residential neighborhood, after considering any proposed conditions upon approval such as limits upon hours of operation.

(5)

The proposed use will promote preservation or adaptive reuse of the sites and structures identified by the Local Historic District regulations.

(6)

The special exception shall not cause congestion in public streets or transportation systems beyond what would normally be expected from the proposed use.

(7)

The special exception shall not create a significant hazard to the public health and safety, such as fire, toxic or explosive hazards.

(8)

The proposed use shall be suitable for the site, considering the disturbance of steep slopes, mature woodland, wetlands, floodplains, springs and other important natural features.

(9)

The proposed use, located on the particular property at issue, having all of the characteristics as proposed, and considering the present characteristics of neighboring lands will not cause negative impacts over and above those typically associated with such uses located and operated in a usual manner.

Variances.

The Zoning Hearing 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 grant a variance, provided the following findings are made where relevant in a given case:

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 the Zoning Ordinance in the neighborhood or district in which the property is located;

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 the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;

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 at issue; and

(f)

That, in the case of a use variance, the variance if authorized will meet the dimensional standards set forth in the zoning district where the use is permitted by right. In the case where a use is permitted in more than one district, the more restrictive dimensional standards shall apply.

In granting the variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of Act 247 and this chapter.

Variances shall expire if the applicant fails to submit the next required application within six months. The Zoning Administrator may grant up to two extensions of time for additional periods not exceeding 90 days each.

Unified appeals. Where the Zoning Hearing Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirements pertaining to a development plan or development. In any such case, the Board shall have no power to pass upon the nonzoning issues but shall take evidence and make a record thereon as provided in § 595-39, Hearings. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the Court.

Parties appellant before Board. Appeals under § 595-40A and proceedings to challenge an ordinance under § 595-40B may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the City, or any person aggrieved. Requests for a variance under § 595-40D and for special exception under § 595-40C may be filed with the Board by any landowner or any tenant with the permission of such landowner.

Time limitations.

Persons aggrieved. No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal 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/she 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/she shall be bound by the knowledge of his predecessor in interest.

The failure of anyone other than the landowner in appeal from an adverse decision on a tentative or preliminary plan from an adverse decision by a Zoning Administrator on a challenge to the validity of an ordinance or map shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or preliminary approval.

Stay of proceedings.

Upon filing of any proceeding referred to in § 595-40F and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Administrator or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Administrator 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 Administrator 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.

§ 595-41 Zoning appeals.

Proceedings exclusive. The proceedings set forth in this section shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of Council, its agencies or offices adopted or issued pursuant to Act 247.[1]

Editor's Note: See the Municipalities Planning Code, 53 P.S. § 10101 et seq.

Procedural validity. Questions of an alleged defect in the process of enactment or adoption of any ordinance or map shall be raised by an appeal taken directly from the action of Council to the Court.

Substantive validity; landowner appeals.

A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he/she has an interest shall submit the challenge either:

To the Zoning Hearing Board for a report thereon under § 595-40B, Challenge to validity of Zoning Ordinance or Map, or § 595-40E, Unified appeals; or

To council together with a request for a curative amendment.

The submissions referred to in Subsection A hereof shall be governed by the following:

The landowner shall make a written request to the Zoning Hearing Board or Council that it hold a hearing on his challenge. The request shall contain a short statement reasonably informing the Board or the Council of the matters that are in issue and the grounds for the challenge. Such statement shall contain a certification that the landowner did not know at the time of the application:

That the City had resolved to consider a particular scheme of rezoning by publication of notice of hearings on a proposed Comprehensive Plan or proposed zoning ordinance or otherwise; or

[2]

That the scheme of rezoning would be inconsistent with the landowner's proposed use, provided that this rezoning scheme had reached sufficient particularity to disclose that, if adopted, it would cure the defect in the zoning ordinance attached by the substantive challenge.

The request may be submitted at any time after the Ordinance or Map takes effect but if an application for a permit or approval is denied thereunder, the request shall be made not later than the time provided for appeal from the denial thereof. In such case, if the landowner elects to make the request to Council and the request is timely, the time within which he/she may seek review of the denial of the permit or approval on other issues shall not begin to run until the request to Council is finally disposed of.

The requests shall be accompanied by plans and other materials describing the use of development proposed by the landowner in lieu of the map or development permitted by the challenged ordinance or map. Such plans and 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 the light thereof. Nothing contained herein shall preclude the landowner from first seeking a final permit or approval before submitting his challenge to the Board or Council.

(d)

If the submission is made to Council under Subsection C(1) hereof, the request shall be accompanied by an amendment or amendments to the Ordinance proposed by the landowner to cure the alleged defects therein.

(e)

Notice of the hearing required by this chapter shall include notice that the validity of the Ordinance or Map is in question and shall give the place where and the times when a copy of the landowner's request, including the plans submitted pursuant to Subsection B(3) hereof and the proposed amendments, if any, submitted under Subsection B(4) hereof may be examined by the public.

(f)

The Board or Council, as the case may be, shall hold a hearing upon the landowner's request, commencing not later than 60 days after the request is filed unless the landowner requests or consents to an extension of time.

The landowner's request for a curative amendment is denied when:

Council notifies the landowner that it will not adopt the amendment;

Council adopts another amendment which is unacceptable to the landowner, or

Council fails to act on the landowner's request, in which event the denial is deemed to have occurred on the 30th day after the close of the last hearing on the request unless the time is extended by mutual consent between the landowner and the City.

SUBSTANTIVE VALIDITY; APPEALS BY PERSONS AGGRIEVED. Persons aggrieved by use or development permitted on the land of another by an ordinance 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 report thereon.

The aggrieved persons shall submit a written request to the Board that it hold a hearing on the challenge. The request shall contain a short statement reasonably informing the Board of the matters that are in issue and the grounds for the challenge.

The request shall be submitted within the time limitations prescribed by § 595-40G. In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he/she proposes to build is free from challenge, and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will run under § 595-255 by the following procedure:

The landowner may submit plans and other materials describing his proposed use of development to the Zoning Administrator for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.

If the Zoning Administrator's preliminary opinion is that the use or development complies with the Ordinance or Map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the City. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary opinion of the Zoning Administrator shall be deemed to be a preliminary approval under § 595-40G, and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.

The Board shall hold a hearing upon the aggrieved person's request commencing not later than 60 days after the request is filed. If a hearing has been held by Council covering the same matters, at which a stenographic record has been taken, the Board shall upon motion of any party accept such record as the record in the case before the Board, but the Board shall not be precluded from taking additional evidence unless such evidence ought to be excluded under § 595-39F.

After submitting his challenge to the Board, as provided in Subsections A and B hereof, any party aggrieved may take the same to Court by appeal.

DECISIONS AND ORDERS NOT INVOLVING ORDINANCE VALIDITY; LANDOWNER APPEALS.

A landowner who desires to file a zoning application or to secure review or correction of a decision or order of Council or of any officer or agency of the City which prohibits or restricts the use or development of land in which he/she has an interest on the ground that such decision or order is not authorized by or is contrary to the provisions of an ordinance or map shall proceed as follows:

From a decision of Council or a planning agency under a subdivision or land development ordinance the landowner may appeal directly to Court or to the Zoning Hearing Board where applicable. An adverse decision on preliminary or tentative plans shall, at the landowner's election, be treated as final and appealable.

From the decision of Council or a planning agency denying tentative approval of a development plan or, if tentative approval has been granted, from any adverse decision on an application for final approval, the landowner may appeal directly to Court or to the Zoning Hearing Board where applicable.

To the extent that the Board has jurisdiction on all other appeals shall lie exclusively to the Zoning Hearing Board.

(d)

Applications under § 595-40C, Special exceptions, and § 595-40D, Variances, shall be made exclusively to the Zoning Hearing Board.

Appeals to the Zoning Hearing Board pursuant to Subsection A(1) and (3) hereof shall be filed within 30 days after notice of the decision is issued or, if no decision is made, within 30 days from the date when a decision is deemed to have been made.

Appeals to Court.

Appeals to Court may be taken by the landowner from any decision of City Council or planning agency under Subsections A(1) and (2) hereof after the decision is issued or, if any decision is made, when a decision is deemed to have been made.

Appeals to Court from any decision of the Zoning Hearing Board may be taken by any party aggrieved.

DECISIONS AND ORDERS NOT INVOLVING ORDINANCE VALIDITY; APPEALS BY PERSONS AGGRIEVED.

Persons aggrieved by a use or development permitted on the land of another who desire to secure review or correction of a decision or order of Council or of any officer or agency of the City which has permitted the same, on the grounds that such decision or order is not authorized by or is contrary to the provisions of an ordinance or map shall first submit their objections to the Zoning Hearing Board. The submission shall be governed by the provision of § 595-41D. Appeals to Court from the decision of the Zoning Hearing Board may be taken by an aggrieved party.

The landowner shall make a written request to the Zoning Hearing Board or Council that it hold a hearing on his challenge. The request shall contain a short statement reasonably informing the Board or the Council of the matters that are an issue and the grounds for the challenge. Such statement shall contain a certification that the landowner did not know at the time of the application:

That the City had resolved to consider a particular scheme of rezoning by publication of notice of hearing on a proposed Comprehensive Plan or proposed zoning ordinance or otherwise; or

[2]

The request may be submitted at any time after the ordinance or map takes effect, but if an application for a permit or approval is denied thereunder, the request shall be made not later than the time provided for appeal from the denial thereof. In such case, if the landowner elects to make the request to Council and the request is timely, the time within which he/she may seek review of the denial of the permit or approval on other issues shall not begin to run until his/her request to Council is finally disposed of.

If the submission is made to Council under Subsection A(2) hereof, the request shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.

(5)

Notice of the hearing required by this chapter shall include notice that the validity of the ordinance or map is in question and shall give the place where and the times when a copy of the landowner's request, including the plans submitted pursuant to Subsection F(3) hereof and the proposed amendments, if any, submitted under Subsection F(4) hereof may be examined by the public.

(6)

The Board or Council, as the case may be, shall hold a hearing upon the landowner's request commencing not later than 60 days after the request is filed unless the landowner requests or consents to an extension of time.

(7)

The landowner's request of a curative amendment is denied when:

Council notifies the landowner that it will not adopt the amendment;

Council adopts another amendment which is unacceptable to the landowner; or