A.
Organization. The Zoning Hearing Board shall consist of three members
who are residents of the Borough of Swoyersville to be appointed by
Swoyersville Borough Council, one of whom shall be designated to serve
until the first day of January following the adoption of the Zoning
Ordinance, one until the first day of the second January thereafter,
one until the first day of the third January thereafter. On the expiration
of their appointed terms, their successors shall be appointed for
three-year terms. Vacancies shall be filled for the unexpired term
of any member. At the expiration of a member's term, he shall
remain in office until he is reappointed or replaced. The Board shall
elect from its own membership its officers who shall serve annual
terms as such.
B.
Procedure. The Board shall organize and adopt rules of procedure
not inconsistent with this chapter or the Pennsylvania Municipalities
Planning Code.[1]
(1)
Meetings. Meetings of the Board shall be held at the call of the
Chairman and at such other times as the Board, in its rules of procedure,
may specify. The Chairman, or in his absence the Acting Chairman or
hearing officer appointed from the membership of the Board presiding,
shall have the 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.
The Board or hearing officer, as the case may be, shall keep minutes
of its proceedings showing the vote of each member upon each question,
or if absent or failing to vote, indicating such fact and shall keep
records of its examinations and other official actions. The records
of the Board shall be kept in the office of the Zoning Officer and
shall be a public record. The Board shall meet at least once a month
if it has any cases to come before it.
(2)
Quorum. For the conduct of any hearing and the taking of any action,
a quorum shall not be less than two members of the Board. 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 Section 908, Pennsylvania Municipalities
Code.[2]
[2]
Editor's Note: See 53 P.S. § 10908.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
Applications, by whom taken. Applications for special exception in
cases in which the Board has original jurisdiction under the provisions
of this chapter shall be filed with the Zoning Officer, who shall
transmit same to the Board.
B.
Appeals.
(1)
Appeals, when and by whom taken. Appeals may be taken by the landowner
affected, any officer of the Borough or by any person aggrieved by
any decision of the Zoning Officer or the other administrative official
or agency. Such appeal shall be taken within 30 days after said decision
by filing with the Board a written notice of appeal specifying the
grounds thereof. Nothing contained herein shall be construed to deny
the appellant the right to proceed directly to court, where appropriate,
pursuant to Pennsylvania Rules of Procedure, Rules 1091 to 1098, relating
to mandamus.
(2)
Stay of proceedings. An appeal shall stay all proceedings in furtherance
of the action appealed from unless the Zoning Officer shall certify
to the Board facts indicating that such stay would cause imminent
peril to life or property, in which case proceedings shall not be
stayed otherwise than by a restraining order which may be granted
by the Board or the Common Pleas Court for cause shown after notice
to the officer from whom the appeal is taken.
(3)
Decision of the Board. The Board may, in conformity with the provisions
of this article, reverse or affirm, wholly or partly, or may modify
the order, requirement, decision or determination appealed from and
shall make such order, requirement, decision or determination as in
its opinion ought to be made, and to that end shall have all powers
of the Zoning Officer from whom the appeal is taken.
(4)
Refiling of disapproved or withdrawn cases. If a case is disapproved
by the Board, thereafter the Board shall take no further action on
another case for substantially the same proposal on the same property
until one year after the date of such disapproval. If a case before
the Board is advertised and thereafter withdrawn by the applicant
before or at the meeting of the Board, he shall be precluded from
filing another application for substantially the same proposal on
the same premises for six months and the case shall be readvertised.
C.
Filing. The Board may require the applicant to furnish such information
as it deems necessary when filing an application or appeal and may
require specific forms to be used.
Upon filing of an appeal or application, the Board shall fix
a time and place for a hearing and give due notice as follows:
A.
Public notice. The case shall be advertised at least once in a newspaper
of general circulation within the municipality in which the property
involved is located. The notice shall be advertised not less than
one week nor more than three weeks in advance of such hearing. The
applicant shall be notified by mail and the Board must notify contiguous
property owners and those within 100 feet of the property involved
as it deems necessary. The Board may require the applicant to post
the property so that the people in the area will have due notice.
B.
The hearings of the Board shall be public. However, the Board may
go into executive session.
C.
Adjourned hearings. Upon the day for hearing on any application or
appeal, the Board may adjourn the hearing in order to permit the obtaining
of additional information or to cause such further notice as it deems
proper to be served upon such other property owners as it decides
may be substantially interested in said application or appeal. In
the case of an adjourned hearing, persons previously notified and
persons already heard need not be notified of the time of resumption
of said hearing, unless the Board so decides, provided the Board publicly
states the date of hearing at the time; otherwise, they shall be notified.
D.
Decisions of the Board or hearing officer. The Board or the hearing
officer, as the case may be, shall decide all applications and appeals
within 45 days after the final hearing thereon. A copy of the final
decision shall be given to the appellant and all other parties so
requesting. The Board's decision shall be binding on the Zoning
Officer, and he shall incorporate the terms and conditions of the
same in any permit issued. If the Board does not render its decision
within 45 days of the final hearing, it shall be deemed that the Board
has decided in favor of the applicant, unless the applicant has agreed,
in writing, to an extension of time.
A.
Administrative review. The Board shall have the power to hear and
decide appeals where it is alleged by the appellant that there is
error in any order, requirement, decision or determination made by
the Zoning Officer or other administrative official or agency, based
on or made in the enforcement of the Zoning Ordinance.
B.
Special exceptions.
(1)
Special exceptions previously listed. The Board shall have the power to hear and decide requests for special exceptions set forth in this chapter as follows: §§ 93-6A, 93-7A, 93-17, 93-18, 93-19, 93-20, 93-21, 93-22, 93-23, 93-24, 93-25, 93-41C(1), 93-45, 93-50A, 93-50B, and 93-54. In considering an application for special exception, the Board shall give due regard to the nature and condition of all adjacent uses and structures; and in authorizing a special exception, the Board may impose such requirements and conditions with regard to location, construction, maintenance and operation in addition to those expressly stipulated in this chapter for the particular special exception, as the Board may deem necessary for the protection of adjacent properties and the public interest.
(2)
Temporary uses and permits. In addition to permitting the special
exceptions heretofore specified, the Board shall have authority to
hear and decide on requests for temporary structures and uses in any
district for a purpose or use that does not conform to the regulations
prescribed elsewhere in this chapter for the district in which it
is located, provided that such use be of temporary nature, which does
not involve the erection of a substantial structure. Any request for
such structure or use, when approved, shall be granted in the form
of a temporary and revocable permit for not more than a twelve-month
period, subject to such conditions as will safeguard the public health,
safety, convenience and general welfare.
C.
Interpretations of the Zoning Map. Where the street or lot layout
actually on the ground or as recorded differs from the street and
lot lines as shown on the Zoning Map, the Board, after notice to the
owners of the property and after public hearing, shall interpret the
Map in such a way as to carry out the intent and purpose of this chapter.
In case of any question as to the location of any boundary line between
zoning districts, a request for interpretation of the Zoning Map may
be made to the Board.
D.
Variances. On an appeal from an order, requirement, decision or determination
of the Zoning Officer or any other administrative officer or agency,
the Board may grant a variance in the application of the provisions
of the Zoning Ordinance, only if all of the following findings are
made (except for industrial variances where a substantial number of
persons will be employed or retained and where more flexibility may
be exercised):
(1)
That there are unique physical circumstances or conditions, including
irregularity, narrowness or shallowness of lot size or shape or exceptional
topographical or other physical conditions peculiar to the particular
property, and 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;
(2)
That because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity
with the provisions of the Zoning Ordinance and that the authorization
of a variance is, therefore, necessary to enable the reasonable use
of the property;
(3)
That such unnecessary hardship has not been created by the appellant;
(4)
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; and
(5)
That the variance, if authorized, will represent the minimum variance
that will afford relief and will represent the least modification
possible of the regulation in issue. In granting any variance, the
Board may attach such reasonable conditions and safeguards as it may
deem necessary to implement the purposes of the Zoning Ordinance.
E.
Specific limitations of powers of the Board.
(1)
The Board does not have the power to amend any zoning ordinance,
to rezone any land or to allow any use not permitted by this chapter.
(2)
The fact that a property owner will suffer financial hardship if
not granted a special exception or a variance from this chapter is
of itself insufficient ground for granting a variance.
Any person aggrieved by any decision of the Board may appeal
to the Court of Common Pleas of Luzerne County setting forth the grounds
on which the appellant relies. Such appeal must be filed not later
than 30 days after notice of the decision is issued.
