There is hereby created a Zoning Hearing Board. As used in this chapter, unless expressly indicated otherwise, the term "Board" shall refer to the Zoning Hearing Board. Members of the Board shall be appointed by the Borough Council in accordance with the Pennsylvania Municipalities Planning Code, as amended. Members shall be residents of the Borough and shall hold no other office in the Borough, except that no more than one member may also be a member of the Borough Planning Commission. Members shall be removable for cause by the Borough Council upon the bringing of written charges and after public hearing in accordance with Act 247, Pennsylvania Municipalities Planning Code, as amended.
The Board shall elect from its own membership its officers, who shall serve the 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 the 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 § 196-62B. The Board may make, alter and rescind rules and forms for its procedure, consistent with the ordinances of the Borough and laws of the Commonwealth of Pennsylvania. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine. All meetings of the Board shall be open to the public. The Board shall keep full public records of its business and shall submit a report of its activities to the Borough Council once a month.
Within the limits of the funds appropriated by the Borough Council, the 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 the Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice of all hearings shall be given to the public, the applicant, the County Planning Commission, the Zoning Officer, the Borough Secretary, the Borough Planning Commission and such other persons as the Borough Council shall designate by ordinance, and to any person who has made timely request for the same. Notices shall be given at such time and in such manner as shall be prescribed by ordinance or, in the absence of ordinance provisions, by rules of the Board. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land.
The Borough Council may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance. |
B.
The hearings shall be conducted by the Board, or the Board may appoint any member as a hearing officer. The decision or, where no decision is called for, the findings shall be made by the Board, but the parties may waive a decision or findings by the Board and accept the decision or findings of the hearing officer as final.
C.
The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the Board, and any other person, including civic or community organizations, permitted to appear by the Board. The Board shall have power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.
D.
The Chairman or Acting Chairman of the Board or the hearing officer presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
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 Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceeding 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.
H.
The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate; shall not take notice of any communication, reports, staff memoranda, or other materials 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 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. 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 Pennsylvania Municipalities Planning Code, as amended, or of this chapter 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 or findings are 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 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. Where 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 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 Borough shall give public notice of said decision within 10 days in the same manner as provided in this chapter. Nothing in this subsection shall prejudice the right of any party opposing the application to argue that such decision is erroneous.
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 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.
A.
The Board shall perform the following functions:
(1)
To hear and decide appeals where it is alleged that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of the Zoning Ordinance or Map or rules or regulations governing the actions of the Zoning Officer.
(2)
To hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.
(a)
In any instance where the Zoning Hearing Board is required to consider a variance, the Board shall not grant a variance unless it has:
[1]
Determined that the proposed use does not impair the development of the Comprehensive Plan for the Borough and that the proposed use is not inconsistent with the goals and policies of the Comprehensive Plan.
[2]
Determined that the surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed use.
[3]
Determined that the proposed use will not adversely affect the public health, safety or general welfare.
[4]
Determined that the proposed variance is consistent with the spirit, intent and purpose of this chapter.
[5]
Determined that the proposed change will not alter the essential character of the neighborhood or district in which the property is located, will not detract from the use of the surrounding property or from the character of the neighborhood, and that the use of the neighboring property is adequately protected.
[6]
Determined that the proposed change will not have an adverse effect upon the logical and economic extension of public services and facilities, such as public water, police and fire protection, and public schools.
[7]
Determined that the special conditions or circumstances or the unnecessary hardship forming the basis for the application for the variance did not result from the action of the applicant.
[8]
Determined that there are physical circumstances or conditions unique to the property for which the variance is sought and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located.
[9]
Determined that, because of the particular physical surroundings, shape or topographical conditions of the specific structure or land involved, there is no possibility that the land can be developed or the structure used 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.
[10]
Imposed such conditions and safeguards as are necessary to assure that the intent of this chapter is complied with.
[11]
Determined 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.
(b)
The person applying for a variance shall introduce evidence at the hearing which will allow the Zoning Hearing Board to make these determinations or to decide that it cannot make these determinations and thus cannot grant a variance.
(3)
To hear and decide requests for special exceptions where this chapter provides for special exceptions to be granted or denied by the Board pursuant to expressed standards and criteria.
(a)
No special exception shall be granted unless the Zoning Hearing Board shall determine that:
[1]
The proposed use does not impair the development of the Comprehensive Plan.
[2]
The surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed use.
[3]
The proposed use will not adversely affect the public health, safety or general welfare.
[4]
The required area, yard and bulk requirements and all other requirements of the applicable zoning district are met.
[6]
The proposed use is not incompatible with existing traffic conditions and the use of adjacent land.
[7]
Services and utilities are available to adequately service the proposed use.
(b)
In granting a special exception, the Board may require such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
(4)
To hear challenges to the validity of the Zoning Ordinance or Map, except as indicated in § 196-66. or when a landowner appeals a substantive question regarding the validity of this chapter to the Borough Council. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 196-62. 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 court.
(5)
Where the Board has jurisdiction over a zoning matter pursuant to Subsection A(1), (2) and (4) of this section, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same 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 § 196-62. 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 court.
(6)
To exercise any other power specifically granted to the Board under the terms of this chapter, provided these powers are not in conflict with the functions listed above.
B.
In exercising the above-mentioned functions, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination, including any order requiring an alleged violator to stop, cease and desist, or discontinue, and may make such order, requirement, decision or determination, including a stop order or orders to cease and desist as ought to be made.
Applications for those uses permitted as special exceptions in a particular zoning district shall be made in writing to the Board on a form specified for such purpose and shall contain the material required for a zoning permit.
Application for variances from the requirements of this chapter shall be made in writing to the Board on a form specified for such purpose and shall contain the material required for a zoning permit, together with statements providing evidence pertinent to the requirements of § 196-63A(2) above.
A.
Use variance. Where any variance request will provide for a use not specifically permitted by this chapter, the Board shall notify in writing the Borough Secretary and request the Borough Planning Commission to file its recommendations. There shall be a thirty-day period to formulate such recommendations. If no recommendations are provided within such time, it shall then be presumed that the Planning Commission has endorsed the application for a variance.
B.
Effect of approval. An approved variance shall have the effect of removing the restrictions of this chapter. If a building permit has been requested, the approved variance with any conditions imposed by the Board shall be attached to the application. Where the variance is approved prior to the application, the approved variance with any conditions imposed by the Board shall be forwarded to the Zoning Officer.
Proceedings for securing review of any ordinance or of any decision, determination or order of the Borough Council, their agencies or the Zoning Officer shall be in accordance with the Pennsylvania Municipalities Planning Code, as amended.