A.
Membership of Board.
(1)
The membership of the Board shall, upon the determination
of the Borough Council, consist of either three or five residents
of the Borough appointed by resolution of the Borough Council. 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 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 Borough Council shall appoint two additional members to the Zoning
Hearing Board with terms scheduled to expire in accordance with the
provisions of this subsection. The Zoning Hearing 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.
(2)
The 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 Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of Subsection B, 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 Borough. 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 Pennsylvania Municipalities Planning Code, Act 247, as amended,[1] unless designated as a voting alternate member pursuant to Subsection B.
[1]
Editor's Note: See 53 P.S. § 10907.
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 § 240-38.
(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 subsection 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 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 once
a year.
C.
Powers. The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final decisions in the following matters:
(2)
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.
(3)
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 therefor, the issuance of any
cease-and-desist order or the registration or refusal to register
any nonconforming use, structure or lot.
(4)
Applications for variances from the terms of this chapter or such provisions within a land use ordinance, pursuant to § 240-39.
(5)
Applications for special exceptions under this chapter or such provisions within a land use ordinance, pursuant to § 240-40.
(7)
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 stormwater management insofar as the same related to development
not involving a subdivision and land development application.
D.
Board calendar. Each application or appeal, filed
in the proper form with the required data, must be numbered serially
and be placed upon the calendar of the Board by the Zoning Officer.
Applications and appeals must be assigned for hearing in the order
in which they appear on the calendar. However, for good reason, the
Board may order the advance of the application or appeal. A hearing
must be held within 60 days from the date of the appeal or application
is filed, unless the applicant has agreed, in writing, to an extension
of time.
A.
Notice; conduct of meeting.
(1)
Public notice shall be given and written notice shall
be given to the applicant, the Zoning Officer, to each property owner
within 200 feet of the property involved, and to any person who, at
least two weeks prior to the scheduled hearing, has made a request
for the same. The Borough Secretary, upon notification by the Secretary
of the Zoning Hearing Board, shall give written notices by personal
delivery or by regular mail to said persons at their last-known address
at least 14 days, but not more than 30 days, prior to the date of
the hearing, stating the time and place of the hearing and the particular
nature of the matter to be considered at the hearing. If mailed, the
notice shall be deemed to be given on the date mailed. In addition
to the written notice provided herein, written notice of the hearing
shall be conspicuously posted on the affected tract of land at least
one week prior to the hearing.
(2)
The Borough Council may prescribe reasonable fees
with respect to hearings before the Zoning Hearing Board. Fees for
said hearings may include compensation of 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, expenses
for engineering, architectural or other technical consultants or expert
witness costs.
(3)
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 the Borough, may, prior to the decision of the hearing,
waive decision or findings by the Board and accept the decision of
the hearing officer as final.
(4)
Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
(5)
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 its
Solicitor, unless the parties are afforded an opportunity to contest
the material so noticed; 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.
B.
Representation; statements.
(1)
Parties to the hearings 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 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.
(2)
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.
(4)
The applicant or appellant must be given an opportunity
for rebuttal.
C.
Witnesses. The Chairman or Acting Chairman of the
Board or the hearing officer 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.
D.
Decision procedure.
(1)
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 therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code, as amended, 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 light of the facts found. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision of findings is 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 the appeal or application is filed with the Borough, 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 Subsection A of this section. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(2)
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.
(3)
Whenever the Board imposes a condition or conditions
with respect to the granting of an application or appeal, this condition
must be stated in the order of the Board and in the permit issued
pursuant to the order by the Zoning Officer. This permit remains valid
only as long as the condition or conditions upon which it was granted
or the conditions imposed by this chapter are adhered to.
E.
Records. 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.
A.
Filing of variance.
(1)
An application may be made to the Zoning Hearing Board
for a variance where it is alleged that the provisions of this chapter
inflict unnecessary hardship upon the applicant. The application must
be on a form provided for that purpose by the Zoning Officer. It must
be filed with the Board and copies given to the Zoning Officer and
Borough Planning Commission. The applicant must provide all the information
requested on the form, together with any other information and data
that may be required to advise the Board of the variance, whether
such information is called for by the official form or not.
(2)
Unless otherwise specified or extended by the Board,
a variance authorized by it expires if the applicant fails to obtain
a building permit or use certificate within 12 months from the date
of the authorization of the variance.
B.
Referral to Planning Commission. All applications
for a variance shall be referred to the Planning Commission for a
report.
C.
Standards for variance. Where there is unnecessary
hardship, the Board may grant a variance in the application of the
provisions of this chapter, provided that the following findings are
made where relevant in a given case:
(1)
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 zone
in which the property is located.
(2)
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.
(3)
The unnecessary hardship has not been created by the
appellant.
(4)
The variance, if authorized, will not alter the essential
character of the neighborhood or zone 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.
(5)
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.
D.
Conditions. In granting any variance, the Board may
attach such reasonable conditions and safeguards as it may deem necessary
to implement the purposes of this chapter.
A.
Filing of special exceptions.
(1)
For any use permitted by special exception, a special
exception must be obtained from the Zoning Hearing Board. In addition
to the information required on the building permit application, the
special exception application must show:
(2)
Unless otherwise specified or extended by the Zoning
Hearing Board, a special exception authorized by the Board expires
if the applicant fails to obtain, where required to do so, a building
permit or use certificate within 12 months of the date of the authorization
of the special exception.
B.
Temporary special exceptions.
(1)
A temporary special exception must be obtained from
the Zoning Hearing Board for any nonconformity which is or will be
seasonal or is or will be in the public interest. The Zoning Hearing
Board may grant a temporary special exception for a nonconforming
use or structure, existing or new, which:
(2)
The temporary special exception may be issued for
a period not exceeding one year and may be renewed for an aggregate
period not exceeding three years. The nonconforming structure or use
must be completely removed upon the expiration of the special exception
without cost to the Borough.
C.
Referral to Planning Commission. All applications
for a special exception shall be referred to the Borough Planning
Commission for a report prior to the hearing by the Zoning Hearing
Board.
D.
Conditions. The Zoning Hearing Board, in passing upon
special exception applications, may attach conditions considered necessary
to protect the public welfare and the Comprehensive Plan, including
conditions which are more-restrictive than those established for other
uses in the same zone.
E.
Application of extent-of-use regulations. The extent-of-use
regulations as set forth in this chapter must be followed by the Zoning
Hearing Board. Where no extent-of-use regulations are set forth for
the particular use, the Board must impose extent-of-use requirements
as necessary to protect the public welfare and the Comprehensive Plan.
F.
General standards.
(1)
A special exception may be granted when the Zoning
Hearing Board finds, from a preponderance of the evidence produced
at the hearing, that:
(a)
The proposed use, including its nature, intensity
and location, is in harmony with the orderly and appropriate development
of the zone; and
(b)
That adequate water supply, sewage disposal,
storm drainage and fire and police protection are or can be provided
for the use; and
(c)
That the use of adjacent land and buildings
will not be discouraged and the value of adjacent land and buildings
will not be impaired by the location, nature and height of buildings,
walls and fences; and
(d)
That the use will have proper location with
respect to existing or future streets giving access to it and will
not create traffic congestion or cause industrial or commercial traffic
to use residential streets; and
(e)
That the specific standards set forth for each
particular use for which a special exception may be granted have been
met.
(2)
The applicant for a special exception shall have the
burden of proof, which shall include the burden of going forward with
the evidence and the burden of persuasion on all questions of fact
which are to be determined by the Zoning Hearing Board.
