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.
Any variance, special exception or conditional use granted under
this chapter will automatically lapse without notice if not used for
12 consecutive months.