[Ord. 561, 6/6/1988; as amended by Ord. 594, 1/7/1991]
1.
General
Grant of Power. The Zoning Hearing Board shall perform all the duties
and have all the powers prescribed by the Pennsylvania Municipalities
Planning Code and as herein provided.
2.
Membership
of the Board. The membership of the Board shall consist of three residents
of the Borough appointed by the Borough Council. Their terms of office
shall be three years, and shall be so fixed that the term of office
of one member shall expire each year. The Board shall promptly notify
the Borough 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 Borough.
3.
Alternate
Members. Borough Council may appoint, by resolution, at least one
but no more than three residents of the Borough to serve as alternate
members of the Board. The term of office of an alternate member shall
be three years. When seated pursuant to the provisions of Section
906 of the Municipalities Planning Code (hereinafter "MPC"), 53 P.S.
§ 10906, an alternate member shall be entitled to participate
in all proceedings and discussions of the Board to the same and full
extent as provided by law for Board members including specifically
the right to cast a vote as a voting member during the proceedings,
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 municipality, including membership on Planning Commission and
Zoning Officer. Any alternate may participate in any proceeding or
discussion of the Board but shall not be entitled to vote as a member
of the Board nor be compensated pursuant to Section 909 of the MPC
unless designated as a voting alternate member pursuant to Section
906 of the MPC, 53 P.S. §§ 10909, 10906.
4.
Organization
of Board.
A.
The 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 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 Section 908 of the MPC, 53 P.S. § 10908.
B.
If, by
reason of absence or disqualification of a member, a quorum is not
reached, the Chairman of the Board shall designate as many alternate
members of the Board to sit on the Board as may be needed to provide
a quorum. Any alternate member of the Board shall continue to serve
on the Board in all proceedings involving the matter or case for which
the alternate was initially appointed until the 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.
C.
The Board
may make, alter and rescind rules and forms for its procedure, consistent
with ordinances of the Borough and laws of the Commonwealth. The Board
shall keep full public records of its business, which records shall
be the property of the Borough, and shall submit a report of its activities
to the Borough Council as requested by the Borough Council.
5.
Expenditures
for Services. Within the limits of 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. Alternate members of the Board
may receive compensation, as may be fixed by the Borough Council,
for the performance of their duties, but in no case shall such compensation
exceed the rate of compensation authorized to be paid to the members
of the Borough Council.
[Ord. 561, 6/6/1988; as amended by Ord. 594, 1/7/1991]
1.
Rules
of Procedure. The Board may make, alter and rescind rules and forms
for its procedure consistent with the Pennsylvania Municipalities
Planning Code and this Chapter, as it may deem necessary for the proper
performance of its duties and the proper exercise of its powers.
2.
Notice
of Hearings. Public notice of the hearing shall be given and written
notice shall be given to the applicant, the Zoning Officer, those
property owners within 200 feet, and to any person who has made a
timely request for the same. Written notices shall be given by such
time and in such manner as shall be prescribed by the rules of the
Zoning Board. 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. Borough Council
may establish reasonable fees for said hearings within the guidelines
as set forth in Section 908 of the MPC, 53 P.S. § 10908.
3.
Conduct
of Hearings.
A.
All hearings
shall be held in 60 days from the date of the applicant’s request,
unless the applicant has agreed in writing to an extension of the
time.
B.
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; however, the appellant
or the applicant, as the case may be, in addition to the Borough,
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.
C.
The parties
to the hearing shall be the Borough, 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 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 by the Board if the transcript is
ordered by the Board or hearing officer or shall be paid by the person
appealing from the decision of the 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 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.
4.
Decision
of the Board. 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. Where the application
is contested or denied, each decision shall be accompanied by finding
of fact and conclusions based thereon together with the reasons therefore.
Conclusions based on any provisions of this act or of any ordinance,
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.
A.
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 within 45 days
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 30 days after
the report of the hearing officer.
B.
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 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 Board to meet or enter a decision as hereinabove provided, the 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 § 27-702, Subsection 4A, above. If the 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.
C.
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.
[Ord. 561, 6/6/1988; as amended by Ord. 594, 1/7/1991; by Ord. 595, 10/7/1991; and by Ord.
856, 3/2/2020]
1.
General
Grant of Jurisdiction. The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudications in the following
matters:
B.
Challenges
to the validity of a land use ordinance 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 said ordinance. Where the ordinance appealed
from is the initial zoning ordinance of the Borough and a Zoning Hearing
Board has not been previously established, the appeal raising procedural
questions shall be taken directly to court.
C.
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 therefore, the issuance of any cease and desist order,
or the registration or refusal to register any nonconforming use,
structure or lot.
D.
Appeals
from a determination by the Borough Engineer or the Zoning Officer,
with reference to the administration of any flood plain or flood hazard
ordinance or such provisions within a land use ordinance.
G.
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.
I.
Appeals
from the determination of the Zoning Officer or Borough Engineer in
the administration of any land use ordinance or provision thereof
with reference to sedimentation and erosion control and storm water
management insofar as the same relate to development not involving
MPC Articles V or VII applications.
2.
Variances.
The 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 by rule prescribe the form of application
and may require preliminary application to the Zoning Officer. The
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 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 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 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 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 Municipalities Planning Code and
this Chapter.
F.
All applications
for a Zoning Variance shall be submitted to the Borough Planning Commission
for its review and submission of an advisory recommendation to the
Zoning Hearing Board. The intent of this requirement is to allow the
Planning Commission the opportunity to comment on a matter that may
have Borough-wide impacts.
G.
The Zoning
Hearing Board shall not decide on a variance application prior to
receipt of a written advisory opinion from the Planning Commission.
The Planning Commission shall have 45 days to submit an opinion after
receipt of an application. If the Planning Commission fails to timely
submit a written opinion, the Zoning Hearing Board may, at its discretion,
hold a hearing on the application and render a decision.
3.
Special
Exceptions. Where this Chapter has provided special exceptions to
be granted or denied by the Board pursuant to express standards and
criteria, the Board shall hear and decide requests for such special
exceptions 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 this Chapter, as
it may deem necessary to implement the purpose of this Chapter.
4.
Parties Appellant Before Board. Appeals under § 27-703, Subsection 1A, B, C, D, G, H and I, may be filed with the Board in writing by the landowners affected, any officer or agency of the Borough, or any person aggrieved. Requests for variance under § 27-703, Subsection 2, and for special exception under § 27-703, Subsection 3, may be filed with the Board by any landowner or any tenant with the permission of such landowner.
5.
Time Limitations.
A.
No person
shall be allowed to file any proceeding with the 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 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 shall be bound by the knowledge of his predecessor
in interest. The failure of anyone other than the landowner to appeal
from an adverse decision by a Zoning Officer on a challenge to the
validity of an ordinance or map pursuant to Section 916.2 of the MPC,
53 P.S. § 10916.2, shall preclude an appeal from a final approval
except in the case where the final submission substantially deviates
from the approved tentative approval.
B.
All appeals
from determinations adverse to the landowner shall be filed by the
landowner within 30 days after notice of the determination is issued.
6.
Stay of
Proceedings.
A.
Upon filing of any proceeding referred to in § 27-703, Subsection 4, and during its pendency before the 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 there under, shall be stayed unless the Zoning Officer 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 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 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.
B.
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.
C.
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 bond shall be interlocutory.
D.
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 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.
7.
Validity
of Ordinance; Substantive Questions.
A.
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 has an interest shall submit
the challenge either:
B.
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 27-703, Subsection 1A.
C.
(1)
In challenges before the Zoning Hearing Board, the challenging party
shall make a written request to the Board that it holds a hearing
on its challenge. The request shall contain the reasons for the challenge.
Where the landowner desires to challenge the validity of such ordinance
and elects to proceed by curative amendment under Section 609.1 of
the MPC, 53 P.S. § 10609.1, and his application to the Borough
Council shall contain in addition to the requirements of the written
request hereof, the plans and explanatory materials describing the
use or development proposed by the landowner in lieu of the use or
development permitted by the challenged ordinance or map. Such plans
or 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 light thereof. Nothing herein contained shall
preclude the landowner from first seeking a final approval before
submitting his challenge.
(3)
If the submission is made to the Borough Council, the Borough Solicitor shall represent and advise it at the hearing or hearings referred to in § 27-702.
(4)
The Borough Council may retain an independent attorney to present
the defense of the challenged ordinance or map on its behalf and to
present their witnesses on its behalf.
(5)
Based upon the testimony presented at the hearing or hearings, the
Borough Council or the Zoning Hearing Board, as the case may be, shall
determine whether the challenged ordinance or map is defective, as
alleged by the landowner. If a challenge heard by Borough Council
is found to have merit, the Borough Council shall proceed as provided
in Section 609.1 of the MPC, 53 P.S. § 10609.1. If a challenge
heard by a Zoning Hearing Board is found to have merit, the decision
of the Zoning Hearing Board shall include recommended amendments to
the challenged ordinance, 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 need 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 the ordinance or map.
(c)
The suitability or the site for the intensity of use proposed by
the site's soils, slopes, woodlands, 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.
(e)
The impact of the proposal on the preservation of agriculture and
other land uses which are essential to public health and welfare.
(6)
The Borough Council or the Zoning Hearing Board, as the case may
be, shall render its decision within 45 days after the conclusion
of the last hearing.
D.
The Zoning
Hearing Board or Borough Council, as the case may be, shall commence
its hearings within 60 days after the request is filed unless the
landowner requests or consents to an extension of time.
E.
Public
notice of the hearing 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 request, including any plans, explanatory
material or proposed amendments, may be examined by the public.
F.
The challenge
shall be deemed denied when:
(2)
The Borough Council notifies the landowner that it will not adopt
the curative amendment,
(3)
The Borough Council adopts another curative amendment which is unacceptable
to the landowner; or
(4)
The Zoning Hearing Board or Borough Council, as the case may be,
fails to act on the request 45 days after the close of the last hearing
on the request, unless the time is extended by mutual consent by the
landowner and Borough.
G.
Where, after the effective date of Act 170 of 1988, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to Section 909.1 (b)(4) of MPC, 53 P.S. § 10909.1(b)(4), or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 27-703, Subsection 7C(1), or the court acts finally on appeal from denial of a curative amendment proposal or a validity challenge; and, the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner, which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of § 27-703, Subsection 7, shall apply. Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
8.
Procedure to Obtain Preliminary Opinion. In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he 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 § 27-703, Subsection 5, by the following procedure:
A.
The landowner
may submit plans and other materials describing his proposed use or
development to the Zoning Officer 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.
B.
If the Zoning Officer'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 Borough. 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 approval under § 27-703, Subsection 5, 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.
