Appointment. The membership of the Zoning Hearing Board shall consist of three residents of the Borough appointed by resolution of the Borough Council. Each term of office shall be three years and shall be so fixed that the term of office of one member shall expire each year. The Zoning Officer shall not be eligible to serve as a member.
Vacancies. Appointments to fill vacancies on the Board shall be for the duration of the unexpired portion of the term only.
Removal of members. Any member of the Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council. No vote shall take place until such time as the member has received a fifteen-day 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.
Conduct of the Board. The Zoning Hearing 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. The Board may appoint a hearing officer from its own membership to conduct the hearing on its behalf, and the parties may waive further action by the Board and accept the decision or findings of the hearing officer as final, as provided in Section 908 of the Municipalities Planning Code.
Editor's Note: See 53 P.S. § 10908.
Establishment of procedure. The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and the laws of the commonwealth. The Board shall maintain full public records of its business.
Expenditures. Within the limits of funds appropriated by the Borough Council, the Zoning Hearing 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 established by the Borough Council.
Fees. An applicant before the Zoning Hearing Board shall deposit with the Zoning Officer the appropriate filing fee. Fees shall be established by resolution of the Borough Council, for purposes as prescribed in Section 908(1.1) of the Municipalities Planning Code.
Editor's Note: See 53 P.S. § 10908(1.1).
The Zoning Hearing Board shall function in strict accordance with and pursuant to the Municipalities Planning Code and shall have the following powers:
Appeals from the Zoning Officer. The Board shall 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 a valid ordinance or map of the Borough or any valid rule or regulation covering the duties of the Zoning Officer.
Special exceptions. The Board shall hear and decide requests for special exceptions authorized by this chapter in accordance with the standards and criteria set forth below. The Board may attach such reasonable conditions and safeguards as it may deem necessary, as prescribed in § 287-145, to implement the purposes of this chapter.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter create unnecessary hardship on an applicant when applied to a tract of land. In granting a variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary, including those prescribed in § 287-144, to implement the purposes of this chapter.
Validity of the Zoning Ordinance. The Board shall hear and make findings on challenges to the validity of any provision of this chapter with respect to substantive questions.
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:
Filing appeals and requests to the Zoning Hearing Board. Requests for hearings before the Zoning Hearing Board shall be made as follows:
An appeal to the Zoning Hearing Board may be filed by the landowner affected, any officer or agency of the Borough or any person aggrieved. Such appeal shall be taken within the time as stipulated by the Municipalities Planning Code and the rules of the Board, by filing with the Zoning Officer a notice of appeal specifying the grounds thereof. The Zoning Officer shall forthwith transmit to the Board all of the papers constituting the record upon which the action appealed from was taken.
A request for a variance or special exception may be filed by any landowner or any tenant with evidence of consent from the landowner.
The appropriate fee, established by the Borough, shall be paid in advance for each appeal or application for a special exception or variance.
Upon filing a request for a hearing, the Board shall fix a reasonable time and place for a public hearing and shall give notice thereof as follows:
By providing, by certified mail, a written notice thereof to the applicant at least 14 days before the date fixed for the hearing.
By mailing a written notice thereof to the Zoning Officer, the Borough Secretary, each member of the Borough Council, each member of the Planning Commission, the Director of the Chester County Planning Commission and to every person or organization who shall have registered with the Board for the purpose of receiving such notices, accompanied by the appropriate mailing fee. The Borough Council may fix an annual fee for provision of notices to such registered persons or organizations.
By posting the written notice of said hearing in a conspicuous location on the affected tract of land, at least one week prior to the hearing.
By sending a written notice thereof, by certified mail, return receipt requested, to the owner of every lot which abuts the property subject to the application, and by regular mail to the owner of every lot within a one-hundred-fifty-foot radius of the subject property which does not abut the subject property. "Owner" shall be defined as the person(s) listed as the owner on the tax rolls and notice shall be sent to the address contained in the tax rolls. The notice required hereunder shall be sent at least 10 days before the scheduled hearing.
[Amended 6-7-2006 by Ord. No. 2006-02]
The notice herein required shall state the location of the lot or building and the general nature of the question involved.
Timing. A hearing shall be held within 60 days from the official application date requesting a hearing.
Parties to the hearing. The parties to the hearing may be any person or entity entitled to notice under Subsection B above, and any other person permitted to appear by the Board.
Powers of the Chairman. The Chairman or Acting Chairman of the Board, presiding, shall have the 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.
Rights of the parties. The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond, to present evidence and to argue and cross-examine adverse witnesses on all relevant issues.
Exclusion of evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded by the Board.
Record of the proceedings. A stenographic record of the proceedings shall be made by a court reporter. The appearance fee for the court reporter shall be shared equally by the applicant and the Board. Any party requesting the original transcript or a copy of the transcript shall bear the cost of the same. Copies of graphic or written material received in evidence shall be made available to any party at cost.
Communications. Once a formal application has been duly filed, the Board shall not communicate, directly or indirectly, with any party or his representative in connection with any issue involved except upon notice and opportunity for all parties to participate. Further, the Board shall not take notice of any communication unless the parties are afforded an opportunity to contest the material and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.
The Board 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. Where the application is contested or denied, each decision shall be accompanied by findings and conclusions, together with the reasons for such conclusions. Conclusions based on any provisions of this chapter or of any act, 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. All decisions shall be made at a public hearing.
Notice of the final decision shall be delivered to the applicant personally or mailed to him not later than the day following its date. The Board shall provide, by mail or otherwise, a brief notice of the decision or findings and a statement of the place where the full decision may be examined to all other persons who have filed their names and addresses with the Board no later than the last day of the hearing.
Conditions. In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
The Zoning Hearing Board shall hear and decide all requests for special exceptions, as identified within this chapter, in accordance with the following standards:
Relationship to the Comprehensive Plan. Consideration of the size, scope, extent and character of the proposed special exception and assurance that such proposal is consistent with the purposes and objectives of the Downingtown Borough Comprehensive Plan.
Suitability of the tract. Consideration of the suitability of the proposed tract, including, as applicable, environmental conditions, highway access and availability of sewer and water service.
Impact on existing neighborhood character. Consideration of the extent to which the proposed special exception will alter unduly the character of the existing neighborhood and adjacent tracts and the effectiveness of proposed or potential mitigation measures.
Impact on circulation. Consideration of the effects the proposed special exception may have on traffic patterns and volumes, access and parking.
Economic impact. Consideration of the character and type of development proposed in terms of generating revenue for the Borough and imposing demands on municipal services.