Township of Newberry, PA Article VII Zoning Hearing Board

§ 380-71 Establishment and membership.

A. There shall be a Zoning Hearing Board which shall consist of five members who shall be appointed by resolution by the Board of Supervisors. The membership of the Zoning Hearing Board shall consist of residents of the Township. Their terms of office shall be five years and shall be so fixed that the term of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the Township. Any member of the Zoning Hearing Board may be removed for malfeasance, misfeasance, or nonfeasance in office or for other just cause by a majority vote of the Board of Supervisors 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.

B. The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 380-71, an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing 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. Alternates shall hold no other office in the Township, including membership on the Planning Commission or Zoning Officer. 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 the Zoning Hearing Board nor be compensated pursuant to § 380-72, unless designated as a voting alternate member pursuant to § 380-71 of this chapter.

§ 380-72 Organization of Zoning Hearing 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 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 Zoning Hearing Board, as provided in § 380-74. If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members of the Zoning Hearing Board to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board 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. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates. The Zoning Hearing Board may make, alter, and rescind rules and forms for its procedure, consistent with ordinances of the Township and laws of the commonwealth. The Zoning Hearing Board shall keep full public records of its business, which records shall be the property of the Township and shall submit a report of its activities to the Board of Supervisors upon request.

§ 380-73 Expenditures for services.

Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors. Alternate members of the Zoning Hearing Board may receive compensation as may be fixed by the Board of Supervisors, for the performance of their duties when designated as alternate members pursuant to § 380-71, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members by the Board of Supervisors.

§ 380-74 Hearings.

A. The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:

(1) Public notice (as defined herein) shall be provided. In addition, the Zoning Hearing Board shall notify by mail the Zoning Officer, Township Secretary, each member of the Board of Supervisors, Secretary of the Township Planning Commission and every other person or organization who shall have registered with the Zoning Hearing Board for the purposes of receiving such notices. Such mailed notices shall state the location of the site and the nature of the request. It shall also state the time, date and location of the proposed hearing. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing;

(2) The Board of Supervisors 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; and

(3) 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.

B. The hearings shall be conducted by the Zoning Hearing Board or the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board and accept the decision or findings of the hearing officer as final.

C. The parties to the hearing shall be the Township, any person affected by the application who has made timely appearance of record before the Zoning Hearing Board and any other person including civic or community organizations permitted to appear by the Zoning Hearing Board. The Zoning Hearing Board shall have power to require that all persons who wish to be considered parties enter appearances, in writing, on forms provided by the Zoning Hearing Board for that purpose.

D. 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.

E. 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.

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

G. 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 by the Zoning Hearing Board if the transcript is ordered by the Zoning Hearing Board or hearing officer; or shall be paid by the person appealing 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. In other cases, the party requesting the original transcript shall bear the cost thereof.

H. 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, 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.

I. 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. 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 the Act or of this chapter, 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 Zoning Hearing 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 Zoning Hearing Board prior to final decision or entry of findings, and the Zoning Hearing Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Zoning Hearing 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 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. When 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 hereinabove provided, the Zoning Hearing Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in § 380-74A of this chapter. 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.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

J. A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him not later than the day following its date. To all other persons who have filed their name and address with the Zoning Hearing Board not later than the last day of the hearing, the Zoning Hearing 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.

K. Effect of Board's decision.

(1) If the variance or special exception is granted or the issuance of a permit is approved or other action by the appellant is authorized, the necessary permit shall be secured and the authorized action begun within six months after the date when the variance or special exception is finally granted or the issuance of a permit is finally approved or the other action by the appellant is authorized, and the building or alteration, as the case may be, shall be completed within 12 months of said date. For good cause, the Zoning Hearing Board may, upon application in writing, state the reasons therefor to extend either of these deadlines.

(2) Should the appellant or applicant fail to obtain the necessary permits within said six-month period, or having obtained the permit should he fail to commence work thereunder within such six months' period, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn, or abandoned his appeal or his application and all provisions, variances and permits granted to him shall be deemed automatically rescinded by the Zoning Hearing Board.

(3) Should the appellant or applicant commence construction or alteration within said six months' period, but should he fail to complete such construction or alteration within said 12 months period, the Zoning Hearing Board may upon 10 days' notice, in writing, rescind or revoke the granted variance or special exception, or the issuance of the permit or permits or the other action authorized to the appellant or applicant if the Zoning Hearing Board finds that a good cause appears for the failure to complete within such 12 months period, and if the Zoning Hearing Board further finds that conditions have so altered or changed in the interval since the granting of the variance, permit or action that revocation or rescission of the action is justified.

§ 380-75 Zoning Hearing Board's functions.

The Zoning Hearing Board shall have the exclusive jurisdiction to hear and render decisions in the following matters:

A. Substantive validity challenges. Substantive validity challenges of this chapter, except those brought before the Board of Supervisors pursuant to § 380-83F, of this chapter:

(1) If a challenge heard by a Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommended amendment to the challenged section which will cure the defects found. In reaching its decision, the Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:

(a) The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;

(b) If the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of this chapter or the Zoning Map;

(c) The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodland, wetlands, floodplains, aquifers, natural resources and other natural features;

(d) The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and

(e) The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

(2) Public notice of the hearing shall be provided as specified in § 380-83B of this chapter.

(3) The Zoning Hearing Board shall commence its hearings within 60 days after the request is filed unless the landowner requests or consents to an extension of time.

(4) The Zoning Hearing Board shall render its decision within 45 days after the conclusion of the last hearing. If the Zoning Hearing Board fails to act on the landowner's request within this time limit, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.

B. Procedural validity challenges. Challenges to the validity of this chapter raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of this chapter.

C. Special exceptions. Special exceptions as provided for in this chapter and subject to all applicable requirements, including but not limited to:

(1) Filing requirements. In addition to the required zoning permit information (see § 380-81), each special exception application shall include the following:

(a) Ground floor plans and elevations of proposed structures.

(b) Names and addresses of adjoining property owners, including properties directly across a public right-of-way.

(c) A scaled drawing (site plan) of the site with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of this chapter.

(d) A written description of the proposed use in sufficient detail to demonstrate compliance with all applicable provisions of this chapter.

(2) General criteria. Each applicant must demonstrate compliance with the following:

(a) The proposed use shall be consistent with the purpose and intent of this chapter.

(b) The proposed use shall not detract from the use and enjoyment of adjoining or nearby properties.

(c) The proposed use will not substantially change the character of the subject property's neighborhood.

(d) Adequate public facilities are available to serve the proposed use (sewer, water and other utilities, vehicular access, etc.).

(e) For development within the floodplain protection overlay, that the application complies with those requirements of § 380-32 of this chapter.

(f) The proposed use shall comply with those criteria specifically listed in Article V of this chapter. In addition, the proposed use must comply with all other applicable regulations contained in this chapter.

(g) The proposed use will not substantially impair the integrity of the Newberry Township Comprehensive Plan.

(3) Conditions. The Zoning Hearing Board, in approving special exception applications, may attach conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other uses in the same zoning district. These conditions shall be enforceable by the Zoning Officer and failure to comply with such conditions shall constitute a violation of this chapter and be subject to the penalties described in Article VIII.

(4) Site plan approval. Any site plan presented in support of the special exception pursuant to § 380-75C(1) shall become an official plan of the record for said special exception. Approval of any special exception will also bind the use in accordance with the submitted site plan. Therefore, should a change in the site plan be required as part of the approval of the use, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved site plan shall require the obtainment of another special exception approval.

D. 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 Zoning Hearing Board may by rule prescribe the form of application to the Zoning Officer.

(1) The Zoning Hearing Board may grant a variance, provided that 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 zoning 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 reasonable use of the property.

(c) That such unnecessary hardship has not been created by the applicant.

(d) That the variance, if authorized, will not alter the essential character of the zoning district or neighborhood 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 regulations in issue.

(2) In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter. These conditions shall be enforceable by the Zoning Officer and failure to comply with such conditions shall constitute a violation of this chapter and be subject to the penalties described in Article VIII.

E. Appeals.

(1) 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.

(2) Appeals from a determination by a municipal engineer or the Zoning Officer with reference to the administration of any provisions contained within the floodplain protection overlay.

(3) Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of this chapter.

(4) Appeals from the Zoning Officer's determination under Section 916.2 (and any subsequent amendments) of the MPC.[1]

[1] Editor's Note: See 53 P.S. § 10916.2.

(5) Appeals from the determination of the Zoning Officer or municipal engineer in the administration of any land use ordinance with reference to sedimentation and erosion control, and/or stormwater management for applications not involving a subdivision and/or land development, or a planned residential development as regulated in Articles V and VII of the MPC, respectively.[2]

[2] Editor's Note: See 53 P.S. §§ 10501 et seq. and 10701 et seq., respectively.

§ 380-76 Parties appellant before Board.

Appeals under § 380-75E(1) through (5), and proceedings to challenge chapter under § 380-75A and B may be filed with the Zoning Hearing Board, in writing, by the landowner affected, any officer or agency of the Township, or any person aggrieved. Requests for a variance under § 380-75D and for special exception under § 380-75C may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of such landowner. Any appeal shall state:

A. The name and address of the appellant and applicant;

B. The name and address of the landowner of the real estate to be affected;

C. A brief description and location of the real estate to be affected by such proposed change together with a plot plan drawn to scale with sufficient clarity to show the nature and character of the request;

D. A statement of the present zoning classification of the real estate in question, the improvements thereon and the present use thereof; and

E. A statement of the section of this chapter under which the request may be allowed and reasons why it should or should not be granted.

§ 380-77 Time limitations.

A. 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 the Zoning Officer or the agency responsible for granting such approval 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 or 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 the Zoning Officer on a challenge to the validity of this chapter or the Official Zoning Map pursuant to Section 916.2 of the Municipalities Planning Code, as amended,[1] shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative preliminary approval.

[1] Editor's Note: See 53 P.S. § 10916.2.

§ 380-78 Stay of proceeding.

A. Upon filing of any proceeding referred to in § 380-76 and during its pendency before the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board or by the court hearing, 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 Zoning Hearing 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 Zoning Hearing Board. After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee but such waiver may be revoked by him if an appeal is taken from a final decision of the court. 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. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.

B. If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by the petitioner.

§ 380-79 Appeal.

Any person, taxpayer, or the Township aggrieved by any decision of the Board may, within 30 days after such decision of the Zoning Hearing Board, seek review by the Court of Common Pleas of such decision in the manner provided by the laws of the Commonwealth of Pennsylvania and Article X-A of the Act, as amended.[1]

[1] Editor's Note: See 53 P.S. § 11001-A et seq.