The membership of the Zoning Hearing Board shall consist of
five residents of the City appointed by the City Council. Their terms
of office shall be five years and shall be so fixed that the terms
of office of one member shall expire each year. The Board shall promptly
notify the City Council when vacancies occur. Appointments to fill
vacancies shall be only for the unexpired portion of the term. Members
of the Board shall hold no other elected or appointed office in the
City, including membership on the Planning Commission and the position
of Zoning Officer. No member shall be an employee of the City. The
membership of the Zoning Hearing Board may be decreased to three members
by Resolution of City Council in accordance with the provisions of
Section 903(a) of the Pennsylvania Municipalities Planning Code (MPC)
(Act 247, as amended)[1] and may subsequently be increased back to five members
by resolution of City Council.
[1]
Editor's Note: See 53 P.S. § 10903(a).
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudication in the following matters:
A.
Substantive challenges to the validity of any land use ordinance,
except curative amendments brought before the City Council.
B.
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 the ordinance.
C.
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.
D.
Appeals from a determination by the City Engineer or the Zoning Officer
with reference to the administration of any floodplain or flood hazard
ordinance or such provisions within a land use ordinance.
H.
Appeals from the determination of the Zoning Officer or City 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 relate to development not involving
subdivision and land development or planned residential development.
The Board, upon appeal, shall have the power to authorize variances
from the requirements of this chapter, and to attach such conditions
to the variance as it deems necessary to assure compliance with the
purposes of this chapter. A variance may be granted if all of the
following findings are made where relevant in a given 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 necessary 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,
not substantially or permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public welfare.
E.
That the variance, if authorized, will represent the minimum variance
necessary to afford relief and will represent the least modification
possible of the regulation in issue.
F.
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 and protect the public health, safety and welfare.
The Board shall have the power to hear and decide on applications
for uses by special exception where such uses are not specifically
listed as a permitted or conditional use in any zoning district as
authorized by this chapter, in harmony with its general purpose and
intent, and in accordance with the standards set forth in this chapter.
The Board shall approve a use by special exception only if it meets
all applicable requirements of this chapter. In granting a use by
special exception, the Board may attach such reasonable safeguards,
in addition to those expressed in this chapter, as it may deem necessary
to properly implement this chapter and protect the public health,
safety and welfare.
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, or, if all parties agree to a Hearing Officer,
shall accept the decision or findings of the Hearing Officer as final.
The conduct of the hearing shall meet the following standards:
A.
Public notice as defined by the MPC shall be given and written notice
shall be given to the applicant, the Zoning Officer, such other persons
as the governing body shall designate and to any person who has made
timely request for the same. Written notices shall be given, at such
time and manner as set by rules of the Board. 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.
B.
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,
provided the persons opposed to the application are granted an equal
number of additional hearings. Persons opposed to the application
may, upon written consent or consent on the record by the applicant
and City, be granted additional hearings to complete their opposition
to the application, provided the applicant is granted an equal number
of additional hearings for rebuttal.
C.
The parties to the hearing shall be the applicant, the City, 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
may require that all persons who wish to be considered parties enter
appearances in writing on forms provided by the Board for that purpose.
D.
The Chairman of the Board or the Hearing Officer shall have the power
to administer oaths and issue subpoenas to compel the attendance of
witnesses and documents requested by the parties.
E.
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.
F.
Formal rules of evidence do not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
G.
The Board, or Hearing Officer, as the case may be, shall keep a stenographic
record of the proceedings. The appearance fee of a stenographer shall
be shared equally by the applicant and the Board. The cost of the
original transcript shall be paid by the party requesting the transcript.
The cost of additional copies shall be paid by the party requesting
such copy or copies.
H.
The Board or 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, report, 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, after the commencement
of hearings with any party or his representatives unless all parties
are given an opportunity to be present.
I.
The Board or Hearing Officer 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. Each decision shall be accompanied by findings of fact and
conclusions based thereon, together with the reasons therefor. Conclusions
based on any provision of this chapter or of any act, law, rule or
regulation shall contain a reference to the provision relied upon
and the reasons why the conclusions is deemed appropriate in light
of the fact found. If the hearing is conducted by a Hearing Officer
and there has been no stipulation that his decision or findings of
fact 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 the 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.
J.
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 no later than the day following its date. To all other
persons who have filed their name and address with the Zoning Hearing
Board no 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.
A.
Where the Board fails to render a decision within the required forty-five-day
period or fails to hold the required hearing within 60 days 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.
B.
When a decision has been rendered in favor of the applicant because
of failure of the Board to meet or render a decision, the Board shall
give public notice of the decision within 10 days from the last day
it could have met to render a decision. If the Board shall fail to
provide such notice, the applicant may do so. Nothing in this section
shall prejudice the right of any party opposing the application to
appeal the decision to the Court of Common Pleas.
A.
Parties to proceedings authorized in this chapter 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 chapter once they have been
formally initiated. Nothing in this Subsection shall be interpreted
as expanding or limiting municipal police powers or as modifying any
principles of substantive law.
B.
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:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedures and demonstrated
skills in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in this chapter
or in the Pennsylvania Municipalities Planning Code (Act 247, as amended),[1] provided there is written consent by the mediating parties,
and by an applicant or City decisionmaking body, if either is not
a party to the mediation.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(5)
Identifying all parties and affording them the opportunity to
participate.
(6)
Subject to legal restraints, determining whether some or all
of the mediation sessions shall be open or closed to the public.
(7)
Assuring that mediated solutions are in writing and signed by
the parties, and become subject to review and approval by the appropriate
decisionmaking body pursuant to the authorized procedure set forth
in this chapter.
(8)
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.
A.
Fees. The City Council 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, expenses for engineering,
architectural or other technical consultants or expert witness costs.
B.
Stenographer's appearance fee and transcripts. 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.
C.
Expenditures. Members of the Board may receive compensation for the
performance of their duties as may be fixed by the City Council, but
in no case shall it exceed the rate of compensation authorized to
be paid to the members of City Council. Within the limits of funds
appropriated by the City Council, the Board may employ or contract
for secretaries, clerks, legal counsel, consultants and other technical
and clerical services.
A.
No person shall file any proceeding before the Zoning Hearing Board
later than 30 days after preliminary or final application for development
has been approved by an appropriate City officer, agency or body,
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 prior 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.
B.
The failure of anyone, other than the landowner, to appeal from an
adverse decision on an application for tentative approval of a planned
residential development or from an adverse decision by a Zoning Officer
on a challenge to the validity of an ordinance or map filed pursuant
to Section 916.2 of the Pennsylvania Municipalities Planning Code
(Act 247, as amended),[1] shall preclude an appeal from a final approval, except
in the case where the final submission substantially deviates from
the approved tentative approval.
[1]
Editor's Note: See 53 P.S. § 10916.2.
C.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
A.
Upon filing of any proceeding and during its pendency before the
Board, all land development pursuant to any challenged ordinance,
order or approval of the Zoning Officer or of any agency or body,
and all official action thereunder shall be stayed unless the Zoning
Officer 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 Zoning Officer 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 the 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.
B.
All appeals from decisions rendered by the Zoning Hearing Board shall
be taken to the Westmoreland County Court of Common Pleas and shall
be filed within 30 days after the entry of the decision or, in the
case of a deemed decision, within 30 days after the date upon which
notice of said deemed decision is given.
