The Board shall perform all the duties and have all the powers
prescribed by the MPC[1] and as herein provided.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
Membership of Board.
(1)
The membership of the Board shall, upon the determination of the
governing body, consist of either three or five residents of the municipality
appointed by resolution by the governing body. The terms of office
of a three-member Board shall be three years and shall be so fixed
that the term of office of one member shall expire each year. The
terms of office of a five-member Board shall be five years and shall
be so fixed that the term of office of one member of a five-member
Board shall expire each year. If a three-member Board is changed to
a five-member Board, the members of the existing three-member Board
shall continue in office until their term of office would expire under
prior law. The governing body shall appoint two additional members
to the Board with terms scheduled to expire in accordance with the
provisions of this section. The Board shall promptly notify the governing
body 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 municipality.
(2)
The governing body may appoint by resolution at least one but no
more than three residents of the municipality 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 MPC,[1] an alternate 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, 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 municipality,
including membership on the 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 907 of the MPC[2] unless designated as a voting alternate member pursuant
to Section 906 of the MPC.
B.
Organization of board.
(1)
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.[3]
[3]
Editor's Note: See 53 P.S. § 10908.
(2)
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.
(3)
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the municipality and laws of the commonwealth.
The Board shall keep full public records of its business, which records
shall be the property of the municipality, and shall submit a report
of its activities to the governing body as requested by the governing
body.
C.
Removal of members. Any Board member may be removed for malfeasance,
misfeasance or nonfeasance in office or 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.
D.
Expenditures for services. Within the limits of funds appropriated
by the Board of Supervisors, the Board may employ or contract for
secretaries, clerks, legal counsel, consultants and other technical
and clerical services. Members of the Board and alternate members
of the Board may receive compensation for the performance of their
duties, as may be fixed by the Board of Supervisors, but in no case
shall it exceed the rate of compensation authorized to be paid to
the members of the Board of Supervisors.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
A.
Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, those property owners within 200 feet of the property line and to any person who has made timely request for the same. Public notice shall be given at such time and in such manner as prescribed in the § 500-7, Definitions. Written notice shall be mailed two weeks prior to the hearing. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted by the record owner on the affected tract of land at least one week prior to the hearing. The Board of Supervisors may by resolution 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, however, the
appellant or the applicant, as the case may be, in addition to Weisenberg
Township 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 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.
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
the 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.
A.
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 parties.
B.
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.
C.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
D.
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.
E.
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 representatives
unless all parties are given an opportunity to be present.
F.
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 findings of fact and conclusions based thereon together with the reasons therefore. Conclusions based on any provisions of this chapter 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. 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. 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 render 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 § 500-83A of this article. 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.
G.
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.
Parties to proceedings authorized in this section and Article X-A
of the MPC[1] may utilize mediation as an aid in completing such proceedings.
In proceedings before the Board, in no case shall the Board initiate
mediation or participate as a mediating party. Mediation shall supplement,
not replace, those procedures in this section and Article X-A of the
MPC once they have been formally initiated. Nothing in this section
shall be interpreted as expanding or limiting municipal police powers
or as modifying any principles of substantive law.
[1]
Editor's Note: See 53 P.S. § 11001 et seq.
B.
Participation in mediation shall be wholly voluntary. The appropriateness
of mediation shall be determined by the particulars of each case and
the willingness of the parties to negotiate. Any municipality offering
the mediation option shall assure that, in each case, the mediating
parties, assisted by the mediator as appropriate, develop terms and
conditions for:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working knowledge
of municipal zoning and subdivision procedures and demonstrated skills
in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in this chapter, provided
there is written consent by the mediating parties, and by an applicant
or municipal decisionmaking body if either is not a party to the mediation.
(5)
Identifying all parties and affording them the opportunity to participate.
(6)
Subject to legal restraints, determining whether some or all of the
mediation sessions shall be open or closed to the public.
(7)
Assuring that mediated solutions are in writing and signed by the
parties and become subject to review and approval by the appropriate
decisionmaking body pursuant to the authorized procedures set forth
in the other sections of the MPC.
C.
No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
The Board shall have exclusive jurisdiction to hear and render
final decisions in those matters set out in Section 909.1 of the MPC.[1] Nothing contained herein shall be construed to deny to
the appellant the right to proceed directly in court, where appropriate
pursuant to Pennsylvania RCP, Section 1091 (relating to action in
mandamus).[2]
A landowner who, on substantive grounds, desires to challenge
the validity of this chapter or the Zoning Map in any provision thereof
which prohibits or restricts the use or development of land in which
he has an interest shall submit the challenge in the manner set forth
in Section 916.1 of the MPC.[1]
[1]
Editor's Note: See 53 P.S. § 10916.1
Appeals under § 500-86 may be filed with the Board in writing by any officer or agency of the municipality or any person aggrieved. Requests for a variance under § 500-92 and for special exception under § 500-91 may be filed with the Board by any landowner or any tenant with the permission of such landowner.
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 on a tentative plan pursuant to Section 709
of the MPC[1] or 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[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 landowners shall be
filed by the landowner within 30 days after notice of the determination
is issued.
A.
Upon filing of any proceeding referred to in § 500-88 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 thereunder, 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 of 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 a 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 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 attorneys' fees incurred by the petitioner.
A.
Grant of power. In addition to and apart from the power to grant or recommend variances pursuant to § 500-92 the Board shall also have original jurisdiction and power, after advisory report by the Planning Commission, to grant a permit for a special exception use on a particular site. 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 purposes of this chapter.
B.
Guiding principles for standards.
(1)
Such use shall be one which is specifically authorized as a special
exception use in the district within which such particular site is
located.
(2)
For every special exception use, the Board shall make a special finding,
after a public hearing in the manner provided by law, that such use
will not be prejudicial to the character of the neighborhood.
C.
Procedure.
(1)
Application for a permit authorizing a special exception use shall
be made directly to the Township Administrator's office in the form
required by the said Board.
(2)
The Board's decision to grant a permit for a special exception use shall be made only after public and other notification and hearing pursuant to the requirements of § 500-83. Said permit shall apply specifically to the application and plans submitted and presented at said public hearing. Any subsequent amendments or additions shall be subject to review and public hearing by the Board as a special exception use.
(3)
No application for a permit shall be granted by the Board for any
special exception use until said Board has first received and considered
an advisory report thereon from the Planning Commission with respect
to the location of such use in relation to the needs and growth pattern
of the Township and, where appropriate, with reference to the adequacy
of the site area and the arrangements of buildings and other pertinent
features of the site plan. The Planning Commission shall have 30 days
from the date of its receipt of the application within which to file
its report thereon. In the event that the Planning Commission fails
to file its report within 30 days, such application shall be deemed
to have been approved by the Planning Commission. The Planning Commission
may have representation at the public hearing held by the Board on
such application.
(4)
A special exception use for which a permit is granted by the Board
pursuant to the provisions of this section shall be construed to be
a conforming use.
The Board shall hear request 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.
