Borough of Chambersburg, PA Article XVIII Zoning Hearing Board

§ 300-104 Establishment.

In order that the objectives of this chapter may be more fully and equitably achieved and a means for competent interpretation thereof provided, there is hereby established a Zoning Hearing Board which shall conduct hearings and perform the duties herein set forth.

§ 300-105 Appointment; terms of office.

[Amended 8-13-2007 by Ord. No. 2007-09]

The Mayor and Town Council shall appoint a Board consisting of five residents of the Borough. 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 of a five-member Board shall expire each year. 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 Borough, nor shall any member be an employee of the municipality. The Mayor and Town Council shall appoint no more than three residents of the Borough to serve as alternate members of the Board. The term of office of an alternate member shall be three years.

§ 300-106 Removal of members.

Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Mayor and Town Council which appointed the member, 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.

§ 300-107 Procedures, meetings, records and decisions.

A. Procedures. The Board shall elect a Chairman from its membership, shall appoint a Secretary, and shall prescribe rules in accordance with the provisions of the state statutes and this chapter for the conduct of its affairs.

B. Meetings shall be open to the public and shall be at the call of the Chairman and at such other times as the Board shall specify in its rules of procedure.

C. Records and decisions. Minutes shall be recorded of all proceedings which shall contain evidence and data relevant to every case considered together with the votes of the members and the final disposition of each case. Every decision of the Board shall bear the signature of the Chairperson of the Board, or his or her designee if unavailable.

[Amended 5-16-2022 by Ord. No. 2022-07]

D. Decisions of the Board shall be communicated to the Zoning Officer, Planning Commission and Mayor and Town Council and shall be filed with official Borough records.

§ 300-108 Notice of hearing; standard of proof.

[Amended 4-23-2007 by Ord. No. 2007-04]

A. Notice of hearing. Upon filing with the Board of an application for special exception, registration and/or request for expansion of a nonconforming use, variance or appeal from alleged error of the Zoning Officer, the Board shall fix a reasonable time and place for a public hearing thereof and give notice of the time and place of the public hearing and the issue to be considered, as follows:

(1) At least seven days prior to the date fixed for public hearing, publishing notice in a newspaper of general circulation in the Borough.

(2) Posting a conspicuous notice in a conspicuous place, as determined by the Zoning Enforcement Officer, on the property involved, such posting to take place at least seven days prior to the public hearing.

(3) By personal delivery of the notice at the principal residence or business located on the premises, of those properties adjoining the property in question as well as those properties located within 300 feet of the property in question. While it is desirable for the personal notice to be delivered to an occupant, in the event no occupant is available at the time of delivery, the notice can be left at a conspicuous place to be found by the occupant.

(4) The giving of written notice, by ordinary mail, by mailing not less than 10 days prior to the scheduled hearing, to the owners of record of properties adjacent to the lot in question as well as the owners of all properties within 300 feet of the property in question.

B. Standard of proof. The standard of proof for registration of a nonconforming use or to establish the extent of a nonconforming use at the time a property or building(s) first became nonconforming shall be on the applicant to prove by clear and convincing evidence.

§ 300-109 Conduct of hearings; decisions.

[Amended 5-27-1992 by Ord. No. 92-5]

The Board shall conduct hearings and make decisions in accordance with the following requirements:

A. Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, such other persons as the governing body shall designate by ordinance and to any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by ordinance or, in the absence of ordinance provision, 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 governing body 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.

C. 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.

D. 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 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.

E. 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.

F. 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.

G. 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.

H. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.

I. 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.

J. 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 after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.

K. 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 this act 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.

(1) 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.

(2) 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 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. If the Board shall fail to provide such notice, the applicant may do so.

(3) Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

L. 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.

§ 300-110 Interpretation.

Upon appeal from a decision by the Zoning Officer, the Board shall decide any question:

A. Involving the interpretation of any provisions of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.

B. Where it is alleged there is error in any order, requirements, decisions or determinations, including any order requiring an alleged violation to stop, cease, and desist, made by the Zoning Officer in the enforcement of this chapter.

§ 300-111 Challenges to the validity of any ordinance or map.

Except as provided in § 300-113 hereunder, relating to variances, the Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the Mayor and Town Council. Recognizing that challenges to the validity of an ordinance or map may present issues of fact and of interpretation which may lie within the special competence of the Board, and to facilitate speedy disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation not hitherto properly determined at a hearing before another competent agency or body and shall take evidence and make a record. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact which shall become part of the record.

§ 300-112 Challenges to subdivision and planned residential development ordinances.

Challenges to the validity of a subdivision and land development ordinance or to the validity of a planned residential development ordinance[1] and appeals from any action of the Zoning Officer thereunder shall be governed by §§ 300-110 and 300-111 above, but when the Planning Commission or Mayor and Town Council have held a hearing upon an application for development under the subdivision and land development ordinance or the planned residential development ordinance, such hearing shall be deemed in lieu of a hearing by the Board provided for under § 300-111.

[1] Editor's Note: See Ch. 258, Subdivision and Land Development, and Art. XIX, Planned Residential Development (PRD), of this chapter, respectively.

§ 300-113 Variances.

The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.

A. Findings required.

(1) The Board may grant a variance provided 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 unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provision 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 therefor 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 nor 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) Grant under certain circumstances.

[Added 12-10-2018 by Ord. No. 2018-17[1]]

(a) The Board shall have the limited authority to grant a use variance if the evidence provided to the Board, in judgement of the Board establishes one or more of the following circumstances:

[1] The physical features of the property are such that it cannot be used for a purpose permitted in the applicable zoning district; or

[2] The property can be conformed for a use permitted within the applicable zoning district only at a prohibitive expense; or

[3] The property has no value for any purpose permitted within the applicable zoning district.

(b) A use variance granted under these circumstances must be for a use which, in the judgement of the Board, would constitute the least conflict with adjacent uses. In this context, a use permitted as a special exception use shall be considered a permitted use, but shall only be allowed by full compliance with the applicable special exception use process and criteria.

[1] Editor’s Note: In order to properly accommodate the additions made by this ordinance, Subsection A was reorganized.

B. Variances within the floodplain district. If compliance with any of the requirements of this article or the use requirements of the Floodplain Management Ordinance[2] would result in an exceptional hardship for a prospective builder, developer, or landowner, the Zoning Hearing Board may, upon request, grant relief from the strict application of the requirements.

[Amended 11-28-2011 by Ord. No. 2011-14]

(1) Variance procedures and requirements. Requests for variances shall be considered by the Zoning Hearing Board in accordance with the following:

(a) No variance shall be granted for any construction, development, use or activity within any floodway area that would cause any increase in the one-hundred-year flood elevation.

(b) Except for a possible modification of the freeboard requirements involved, no variance shall be granted for any of the other requirements pertaining specifically to development which may endanger human life.[3]

[3] Editor's Note: See also § 154-405, Development which may endanger human life.

(c) If granted, a variance shall involve only the least modification necessary to provide relief.

(d) In granting any variance, the Zoning Hearing Board shall attach whatever reasonable conditions and safeguards it considers necessary in order to protect the public health, safety, and welfare and to achieve the objectives of this chapter.

(e) Whenever a variance is granted, the Zoning Hearing Board shall notify the applicant in writing that:

[1] The granting of the variance may result in increased premium rates for flood insurance.

[2] Such variances may increase the risks to life and property.

(f) In reviewing any request for a variance, the Zoning Hearing Board shall consider, but not be limited to, the following:

[1] That there is good and sufficient cause.

[2] That failure to grant the variance would result in exceptional hardship to the applicant.

[3] That the granting of the variance will not result in an unacceptable or prohibited increase in flood elevations, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with any other applicable local or state ordinances and regulations.

[4] Notwithstanding any of the above, however, all structures shall be designed and constructed so as to have the capability of resisting the one-hundred-year flood.

(2) A complete record of all variance requests and related actions shall be maintained by the Zoning Hearing Board. In addition, a report of all variances granted during the year shall be included in the annual report to the Federal Emergency Management Agency.

[2] Editor's Note: See Ch. 154.

C. In granting any variance, the Board may attach some reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

[Amended 11-28-2011 by Ord. No. 2011-14]

D. The Board shall have no authority to hear a request for a use variance.

[Added 11-28-2011 by Ord. No. 2011-14]

§ 300-114 Special exceptions.

[Amended 5-27-1992 by Ord. No. 92-5; 10-23-1996 by Ord. No. 96-10]

A. The Board shall have the power to approve issuance of a special exception permit for any of the uses for which this chapter requires the obtaining of such permits and for no other use or purpose.

B. In granting such permit, the Board shall make findings of fact consistent with the provisions of this chapter and shall not grant such permit except in conformance with the conditions and standards outlined in this chapter.

C. Bed-and-breakfast residential use. A bed-and-breakfast residential use may be granted a special exception in the Low-Density Residential District and the Moderate-Density Residential District by the Zoning Hearing Board, provided that it meets the following requirements:

(1) The bed-and-breakfast residential use establishment does not adversely affect the residential character of the neighborhood and such use is carried on in an existing residential structure.

(2) The building proposed for use as a bed-and-breakfast residential use must have the owner of the bed-and-breakfast residential use residing in the building as his/her principal residence.

(3) Primary use of the building shall remain residential.

(4) The quarters to be utilized by the guests and the occupants of the premises shall be in the principal residential structure. Separate structures, accessory buildings and garages are not permitted to be used as living units or sleeping rooms.

(5) One off-street parking space shall be provided for each sleeping area designated for guests, plus two off-street parking spaces for the owners of the bed-and-breakfast residential use.

(6) All off-street parking areas for the bed-and-breakfast residential use and for the owner shall be in the rear yard area, and the area of the parking lots, including driveways, shall be graded, surfaced with asphalt or other suitable material and drained to the satisfaction of the Borough Engineer to the extent necessary to prevent dust, erosion or excessive water flow across streets or adjoining properties.

(7) All parking areas for bed-and-breakfast residential use shall be screened from adjacent properties by five-foot-high sight-obscuring vegetation.

(8) No exterior additions shall be made to a building or structure for additional sleeping area rooms for guests. Additions may be permitted for purposes such as kitchen areas, dining rooms, bathrooms or additional living area for the owner's living quarters only, necessary to accommodate the change of use to a bed-and-breakfast residential use.

(9) The owner of the bed-and-breakfast residential use shall have the kitchen area inspected by the Health Officer of the Borough of Chambersburg and secure the necessary health permit.

(10) Serving of meals shall be permitted only to overnight guests and shall be limited to breakfast only.

(11) The owner of the bed-and-breakfast residential use shall secure the necessary bed-and-breakfast permit from the Borough of Chambersburg on an annual basis and pay the necessary fee. Such fee will be established by resolution by the Mayor and Town Council.

(12) Each room that is designated for guest occupancy must be provided with an operating smoke detector.

(13) The total allowable signage for a bed-and-breakfast residential use, including freestanding signs, shall be no larger than 1,000 square inches on the property. Such signs may be illuminated if such lighting is shielded but shall not include neon signs.

(14) Any lighting used to illuminate off-street parking shall be arranged so that the direct rays from the lights will not fall on any residential property beyond the property line. In no case shall any lighting standard used to illuminate the off-street parking area be higher than eight feet.

(15) The owner is advised that he/she may need Pennsylvania Department of Labor and Industry approval.

D. Special exceptions in floodplain districts.

[Added 11-28-2011 by Ord. No. 2011-14]

(1) Review factors. In reviewing applications for special exceptions in floodplain districts, as permitted by the Floodplain Management Ordinance[1] or the Zoning Ordinance, the Zoning Hearing Board shall consider all relevant factors and procedures specific in other sections of the Zoning Ordinance and:

(a) The danger to life and property due to increased flood elevations or velocities caused by encroachments.

(b) The danger that materials may be swept onto other lands or downstream to the injury of others.

(c) The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions.

(d) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners.

(e) The importance of the services provided by the proposed facility to the community.

(f) The requirements of the facility for a waterfront location.

(g) The availability of alternative locations not subject to flooding for the proposed use.

(h) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.

(i) The relationship of the proposed use to the comprehensive plan and floodplain management program for the area.

(j) The safety of access to the property in time of flood of ordinary and emergency vehicles.

(k) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site.

(l) Such other factors which are relevant to the purposes of this chapter.

[1] Editor's Note: See Ch. 154.

(2) Supplemental technical review. The Zoning Hearing Board may refer any application and accompanying documentation pertaining to any request for a special exception to any engineer or other qualified persons or agency for technical assistance in evaluating the proposed project in relation to flood heights and velocities and the adequacy of the plans for protection and other related matters.

(3) Conditions for approving special exceptions.

(a) Special exceptions shall only be issued after the Zoning Hearing Board has determined that the granting of such will not result in:

[1] Unacceptable or prohibited increases in flood heights;

[2] Additional threats to public safety;

[3] Extraordinary public expense;

[4] The creation of nuisances;

[5] Any fraud or victimization of the public; or

[6] Any conflict with local laws or ordinances.

(b) No special exception shall be granted for any proposed use, development, or activity within any Floodway District (FW) that will cause any increase in flood elevations.

§ 300-115 Changing nonconforming uses; general standards for all special exceptions.

A. In instances involving changing a nonconforming use to another nonconforming use, the applicant shall show that the proposed change will be not more objectionable in external effects than the existing nonconforming use with respect to:

(1) Traffic generation and congestion, including truck, passenger car and pedestrian traffic.

(2) Noise, smoke, dust, fumes, vapors, gases, heat, odor, glare or vibration.

(3) Storage and waste disposal.

(4) Appearance.

B. General requirements and standards applicable to all special exceptions. The Board shall grant a special exception use only if it finds adequate evidence that any proposed use submitted will meet the following general requirements as well as any specific requirements and standards listed for the proposed use. The Board shall, among other things, require that any proposed use and location be:

(1) In accordance with the Comprehensive Plan of the Borough and consistent with the spirit, purposes and intent of this chapter.

(2) In the best interests of the Borough, the convenience of the community, and the public welfare and a substantial improvement to property in the immediate vicinity.

§ 300-116 Exercise of powers.

In exercising the above-mentioned powers, the Board may, in conformity with law and the provisions of this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination, including a stop order or orders to cease and desist, as ought to be made. Notice of such decision shall forthwith be given to all parties in interest.

§ 300-117 Who may file appeals and requests for variances.

Appeals under § 300-110 and proceedings to challenge an ordinance under § 300-111 or 300-112 may be filed with the Board in writing by any officer or agency of the Borough or any person aggrieved. Requests for a variance under § 300-113 and for special exception under Article XXI of this chapter may be filed with the Board by any landowner or any tenant with the permission of such landowner.

§ 300-118 Rules and procedures for filing applications and appeals.

A. General rules and procedures for appeals and application.

(1) Any appeal shall be made by filing the same with the Zoning Officer within 30 days after the date of the Zoning Officer's adverse decision.

(2) All appeals and applications made to the Board shall be in writing on standard forms prescribed by the Board.

(3) All appeals and applications shall refer to the specific provisions of this chapter involved.

B. Interpretation appeals. Appeals concerning the interpretation of any provision of this chapter shall exactly set forth the interpretation that is claimed.

C. Variance appeals. Appeals for variance from the strict application of this chapter shall include the zoning permit application denied by the Zoning Officer together with a statement with any supporting evidence regarding the requirements listed in § 300-113.

D. Special exception applications. Applications for special exception shall include a zoning permit application with all information required therein and a statement with any supporting evidence regarding the merits of the proposed use at the proposed location and how the proposal complies with the general and specific requirements of this chapter.

§ 300-119 Stay of proceedings.

Upon filing of any proceeding referred to in § 300-118 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.

§ 300-120 Review by Planning Commission on applications for special exceptions; appeals to Court of Common Pleas.

A. The Board may request an advisory opinion from the Planning Commission on any application for a special exception, the Planning Commission to submit a report of such advisory opinion within 15 days of referral. If the Planning Commission does not submit a report within 15 days of this referral, it shall be deemed that the Planning Commission is not opposed to this application.

B. Any person aggrieved by any decision of the Board or any taxpayer or member of the governing body may, within 30 days after such decision of the Board, appeal to the Court of Common Pleas of the county by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law and specifying grounds upon which he relies.