[Amended 8-1-1994 by Ord. No. 455]
A Zoning Hearing Board is hereby established
which shall consist of three members, residing within the Borough,
to be appointed by the Council. One member shall be appointed for
one year, one member for two years and one member for three years,
and each subsequent term shall be for three years. Members of the
Board shall hold no other office in the municipality, except that
no more than one member of the Board may also be a member of the Planning
Commission. Any Board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by a majority vote
of the Council, 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.
Vacancies shall be filled by resolution of the Council for the unexpired
term of the member affected.
A.
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, 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 Subsection B hereof. The Board shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings shall be scheduled at a regular time each month and may also be called by the Chairman. The Board may cancel the regular monthly meeting if no matters are pending for its consideration. The Board shall keep full public records of its business and shall submit a report of its activities to the Council once a year.
B.
Hearings. The Board shall conduct hearings and make
decisions in accordance with the following requirements:
[Amended 8-1-1994 by Ord. No. 455]
(1)
Notice shall be given to the public, the applicant,
the Code Official, such other persons as the Borough Council shall
designate by ordinance and any other person who has made timely request
for notice. Written notices shall be sent to the recipient's last
known address of record not less than 15 days before the hearing.
(2)
Public notice shall be published twice, once in each
of two consecutive weeks, in a newspaper of general circulation in
the Borough. The first publication shall be not more than 30 days
and the second notice shall be not less than seven days from the date
of the hearing. The notice shall state the date, time and place of
the hearing and the particular nature of the matter to be considered.
A written notice shall also be posted at the municipal building not
less than seven days before the date of the hearing until the hearing.
If the hearing involves a particular property, a notice of the hearing
shall be conspicuously posted on the affected location at least seven
days before the hearing.
(3)
Fees, as set forth in Chapter A200, Fees, shall be established and collected in order to cover advertising costs and administrative overhead. Such costs shall not include legal expenses, expert witness costs or fees charged by consultants retained by the Board.
(4)
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.
(5)
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 applicant or appellant, as the case may be, in
addition to the Borough, may, prior to the decision of the hearing,
waive the decision or findings by the Board and accept the decision
or findings of the hearing officer as final.
(6)
The 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 person or civic or community organization
permitted to appear by the Board. All persons or organizations who
or which wish to be considered parties shall enter appearances in
writing on forms provided by the Board.
(7)
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.
(8)
The parties shall have the right to be represented
by counsel and shall be afforded the opportunity to respond and present
evidence and arguments and to cross-examine adverse witnesses on all
relevant issues.
(9)
Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
(10)
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 the 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.
(11)
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.
(12)
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 day of the 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 Municipalities
Planning Code,[1] or of this chapter or 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 of the last day of the hearing, and the parties shall
be entitled to make written representations thereon to the Board prior
to final decision or entry of findings. The Board's decision shall
be entered no later than 30 days after the report of the hearing officer.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
(13)
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, 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 B(2) above. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(14)
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 the date
of the decision. 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.
[Amended 8-1-1994 by Ord. No. 455]
The Zoning Hearing Board shall have the following
powers and duties:
A.
Appeals from rulings of the Code Official. The Board
shall hear and decide appeals where it is alleged by the appellant
that the Code Official has failed to follow prescribed procedures
or has misinterpreted or misapplied any provision of this chapter
or the Zoning Map, including but not limited to the granting or denial
of any permit or the failure to act on a permit application or the
issuance of any cease-and-desist order.
B.
Procedural challenges to any ordinance or map. Challenges
to the validity of a land use ordinance raising procedural questions
or alleged defects in the process of enactment or amendment shall
be brought by an appeal taken to the Board within 30 days after the
effective date of the ordinance or amendment.
C.
Substantive challenges to any ordinance or map. Persons
aggrieved by a use or development permitted on the land of another
by any provision of an ordinance or map and who desire to challenge
the validity of such use or development on substantive grounds shall
first submit their challenge to the Zoning Hearing Board. The challenging
party shall make a written request to the Board containing the reasons
for the challenge. Based on the testimony presented at the hearing,
the Board shall determine whether the challenged ordinance section
or map is defective as alleged. If the challenge is found to have
merit, the Board's decision shall include recommended amendments to
the challenged ordinance or map which will cure the defects found.
In making its decision, the Board shall consider the plans and explanatory
material submitted by the challenging party, as well as the proposal's
impact on local streets, utilities and schools; its effect on the
availability of affordable housing; and the suitability of the proposed
site to receive development of the intensity of the proposed use.
If the Board fails to schedule a hearing within 60 days of receiving
the challenge or fails to make a decision within 45 days after the
hearing, the challenge shall be considered denied. If the Board finds
that the challenge has merit, the Board's recommended amendments may
become the basis for appeal by the challenging party to the Borough
Council to formally adopt the amendments.
D.
Appeals from the decision of the Municipal Engineer
or the Code Official. The Board shall hear and decide appeals from
the determinations of the Municipal Engineer or the Code Official
with reference to the administration of the Borough's floodplain regulations[1] or sedimentation and erosion control and stormwater management
requirements.
E.
Variances from the terms of this chapter or the floodplain
regulations. The Board shall hear requests for variances where it
is alleged that the provisions of this chapter or other ordinance
inflict unnecessary hardship upon the applicant.
(1)
The applicant shall submit to the Secretary of the
Board prior to the scheduling of the hearing a written statement demonstrating
where relevant that all the following criteria are applicable to the
particular 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, not 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.
(2)
In addition to written and public notices [see § 195-13B(1) and (2) above], property owners of record within 200 feet of the exterior boundaries of the property for which the variance is sought shall be notified by mail at least 15 days before the hearing.
(3)
The Board shall make findings that the relevant requirements of Subsection E(1) have been met by the applicant and shall further make a finding that the granting of a variance will be in harmony with the general purpose and intent of this chapter and the Comprehensive Plan of the Borough of Evans City.
(4)
In granting any variance, the Board may prescribe
appropriate conditions and safeguards in conformity with this chapter.
(5)
The Zoning Hearing Board shall prescribe a time limit
within which the action for which the variance is required shall be
begun or completed, or both. Failure to begin or complete, or both,
such action within the time limit set shall void the variance.
(6)
Under no circumstances shall the Board grant a variance
to allow a use not permissible under the terms of this chapter in
the district involved or any use expressly or by implication prohibited
by the terms of this chapter in that District.
F.
Special exceptions under the terms of this chapter
or the floodplain regulations. The Zoning Hearing Board shall hear
and decide requests for special exceptions as stated in this chapter.
(1)
A special exception shall not be granted by the Board
until:
(2)
The Board, before it grants a special exception, shall
make findings of fact and state its reasons for granting the special
exception. The findings of fact shall include:
(a)
That the use will not endanger the public health
or safety if located where proposed and developed, and that the use
will not allow conditions which will tend to generate nuisance conditions
such as noise, dust, glare or vibration.
(b)
That the use meets all required conditions and
specifications set forth in the district where it proposes to locate.
(c)
That the location and character of the use,
if developed according to the plan as submitted and approved, will
be in harmony with the area in which it is to be located and in general
conformity with the comprehensive plan for the Borough.
(3)
To ensure the establishment of the above conditions,
the Zoning Hearing Board shall have the authority to require and approve
specific plans and to increase the requirements set forth above and
requirements elsewhere in this chapter, but in no case shall the Board
have the authority to decrease the requirements of this chapter for
any use in the district it proposes to locate. Any such decrease in
the requirements of this chapter shall only be granted upon the issuance
of a variance. All conditions required by the Board shall be entered
in the minutes of the meeting at which the permit is granted and also
on the certificate of the special exception.
(4)
The Board shall prescribe a time limit within which
the action for which the special exception is required shall be begun
or completed, or both. Failure to begin or complete, or both, such
action within the time limit set shall void the special exception
permit.
[Amended 8-1-1994 by Ord. No. 455]
Upon filing of any proceeding and during its
pendency before the Zoning Hearing Board, all land development pursuant
to any challenged ordinance, order or approval of the Code Official
or of any agency or body and all official action thereunder shall
be stayed unless the Code Official 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
or 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 Code Official 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. 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.
Any person or persons or any board, taxpayer,
department or bureau of the Borough aggrieved by any decision of the
Zoning Hearing Board may seek review by the Court of Common Pleas.
Such appeal shall be initiated by serving and filing a petition for
the writ within 30 days after the Board's decision has become final.
[Amended 8-1-1994 by Ord. No. 455]
If an application for a variance, appeal from
the Code Official or special exception is denied by the Zoning Hearing
Board, another application shall not be filed within a period of one
year from the date of denial, except upon the initiation of the Zoning
Hearing Board after a showing of a change of circumstances which would
warrant a rehearing.
[Added 8-1-1994 by Ord. No. 455]
No person shall be allowed to file any proceedings
with the Board later than 30 days after an application for development,
preliminary or final, has been approved by the appropriate Borough
official or agency, 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.
A.
It is the intent of this chapter that all questions
of interpretations and enforcement be first presented to the Code
Official and/or Planning Commission and that such questions shall
be presented to the Zoning Hearing Board only on appeal from the decision
of the Code Official and that recourse from the decisions of the Zoning
Hearing Board shall be to the courts as provided by state law.
[Amended 8-1-1994 by Ord. No. 455]
B.
It is further the intent of this chapter that the
duties of the Council in connection with this chapter shall not include
hearing and deciding questions of interpretations and enforcement
that may arise. The procedure for deciding such questions shall be
as stated in this section and this chapter. Under this chapter, the
Council shall have only the duties of:
