The Zoning Hearing Board shall have the authority, in accordance with the procedures hereinafter established, to authorize Use, Area or other Variances within the Mt. Lebanon. The Variance procedure is intended to provide a means by which relief may be granted only when no other applicable remedy, pursuant to other provisions of this Chapter, is available.
1005.1. Use Variances. Use Variance shall mean the authorization by the
Zoning Hearing Board for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning regulations. A
Use Variance is approved subject to specific plans, terms, and conditions. Modification of such plans, terms and conditions shall require approval by the
Zoning Hearing Board. The
Zoning Hearing Board shall have the authority to grant
Use Variances to restore
Structures damaged or destroyed or establish a use of greater intensity as outlined in §
20-903.
1005.2. Area Variances. Area Variance shall mean the authorization by the Zoning Hearing Board for the use of land in a manner that is not permitted by regulations of this Chapter related to:
1005.2.1. A dimension, such as size, height, and setbacks.
1005.2.2. Physical requirements of this Chapter.
1005.2.3. The expansion, structural Alteration or Enlargement of a legally existing Nonconforming Use as outlined in §
20-903.
1005.2.4. The waiver of the Additional Requirements for Specified Uses for permitted Uses set forth in Part
6.
1005.3. Variance Criteria.
1005.3.1. The Board shall hear requests for Variances where it is alleged that the provisions of the zoning ordinance 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.
1005.3.1.1. 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 that 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.
1005.3.1.2. 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.
1005.3.1.3. That such unnecessary hardship has not been created by the appellant.
1005.3.1.4. 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.
1005.3.1.5. 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.
1005.3.2. In granting any Variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and the zoning ordinance.
1005.4. Procedure.
1005.4.1. Hearings. In conducting hearings and issuing decisions, the Zoning Hearing Board shall follow the following procedures.
1005.4.1.1. Public Notice shall be given and, at least one week prior to the hearing, written notice shall be given to the Applicant, the Zoning Officer, record owners of property located within 200 feet of the property which is the subject of the hearing and to any person who has made timely request for the same. 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.
1005.4.1.2. The Commission 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.
1005.4.1.3. The first hearing before the board or hearing officer shall be commenced within 60 days from the date of receipt of the Applicant’s application unless the Applicant has agreed in writing to an extension of time. Each subsequent hearing before the board or hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the Applicant in writing or on the record. An Applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing. Upon the request of the Applicant, the board or hearing officer shall assure that the Applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the Applicant’s case-in-chief. An Applicant may, upon request, be granted additional hearings to complete his case-in-chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the Applicant and Municipality, be granted additional hearings to complete their opposition to the application provided the Applicant is granted an equal number of additional hearings for rebuttal.
1005.4.1.4. The hearings shall be conducted by the board or the board may appoint any member or an independent attorney 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 Municipality, 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.
1005.4.1.5. 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.
1005.4.1.6. 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.
1005.4.1.7. 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.
1005.4.1.8. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
1005.4.1.9. 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.
1005.4.1.10. 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.
1005.4.1.11. 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 thereof. Conclusions based on any provisions of the Municipal Planning Code 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. Except for challenges filed under §916.1 of the Municipal Planning Code where the board fails to render the decision within the period required by this Subsection or fails to commence, conduct, or complete the required hearing as provided in §1005.4.1.3, 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 §
1005.4.1.1. 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.
1005.4.1.12. 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.
1005.4.2. Mediation Option.
1005.4.2.1. Parties to proceedings may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this Section 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.
1005.4.2.2. 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:
1005.4.2.2.2. Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and Subdivision procedures and demonstrated skills in mediation.
1005.4.2.2.3. Completing mediation, including time limits for such completion.
1005.4.2.2.4. Suspending time limits otherwise authorized in this act, provided there is written consent by the mediating parties, and by an Applicant or municipal decision-making body if either is not a party to the mediation.
1005.4.2.2.5. Identifying all parties and affording them the opportunity to participate.
1005.4.2.2.6. Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
1005.4.2.2.7. Assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval by the appropriate decision-making body pursuant to the authorized procedures set forth in the other sections of this act.
1005.4.2.3. 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.