C.
The Board shall hold meetings, adopt rules of procedure,
keep minutes and records and, pursuant to notice, take testimony under
oath, render decisions or findings all in accordance with the powers
and time limits as set forth by the Pennsylvania Municipalities Planning
Code. The Board shall also have such powers as are expressly set forth
or as are reasonably inferred either by this chapter or the Pennsylvania
Municipalities Planning Code.
D.
Also, in accordance with the Pennsylvania Municipalities
Planning Code, the Borough Council may, by resolution, appoint up
to three alternate members to the Board, whose duties shall be as
set forth in the Municipalities Planning Code.
[Amended 2-2-1998 by Ord. No. 429]
Fees for the filing of appeals or other proceedings
in front of the Board will be set by resolution of the Borough Council.
[Amended 2-5-1996 by Ord. No. 420]
The New Wilmington Zoning Hearing Board shall
have the following powers, duties and functions, as well as those
reasonably inferred from this chapter or the Pennsylvania Municipalities
Planning Code:
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 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.
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 Borough 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.
G.
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 relate to development not involving Article V or VII applications of the Planning Code.[4]
[4]
Editor's Note: See 53 P.S. § 10501
et seq., and 53 P.S. § 10701 et seq, respectively.
H.
Variances.
(1)
The Board shall hear requests for variances where
it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The Board may, by rule, prescribe the
form of application and may require preliminary application to the
Zoning Officer. The Board may grant a variance, provided that 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 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 applicant.
(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)
In granting any variance, the Board may attach such
reasonable conditions and safeguards as it may deem necessary to implement
the purpose of this chapter.
Within the limits of funds appropriated by the
Borough Council, the Board may employ or contract for secretaries,
clerks, legal counsel, consultants or other services as may be required.
[Amended 5-7-2001 by Ord. No. 453; 10-4-2004 by Ord. No.
476]
The Board shall conduct hearings and make decisions
in accordance with Article IX of the Pennsylvania Municipalities Planning
Code[1] and the following requirements:
A.
Notice of hearings shall be given to the public by
public notice as set forth in the Pennsylvania Municipalities Planning
Code in a newspaper of general circulation in the Borough. Such notice
shall state the time and place of the hearing and the particular nature
of the matter to be considered at the hearing. Written notice shall
be given to the applicant, the Zoning Officer and to any person who
has made timely request for the same. Written notices shall be prescribed
by rules of the Board. In addition to the 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 Borough 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.
C.
The first hearing shall be held 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
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.
An applicant may, upon request, be granted additional hearings to
complete his 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 the written consent or consent of the
record by the applicant and Borough, be granted additional hearings
to complete their opposition to the application, provided the applicant
is granted an equal number of additional hearings for rebuttal.
D.
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, but the parties may 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 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 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, except that advice from the Board's Solicitor
is exempt from this restriction; shall not take notice of any communication,
reports, staff memoranda or other materials 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 application
is contested or denied, each decision shall be accompanied by findings
of fact and conclusions based thereon, together with the reasons therefore.
Conclusions based on any provisions of this chapter or the Pennsylvania
Municipalities Planning Code or any 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,
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. Except for challenges filed under
Section 916.1 of the Pennsylvania Municipalities Planning Code, where
the Board fails to render the decision within the period required
by this chapter or the Pennsylvania Municipalities Planning Code,
or fails to commence, conduct or complete the required hearing as
required by Article IX of the Pennsylvania Municipalities Planning
Code, 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 in the same manner as
provided in Subsection 607(1) of the Pennsylvania Municipalities Planning
Code. Nothing in this subsection shall prejudice the right of any
party 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 no later than the last day of the hearing, the Board shall provide,
by mail or otherwise, a brief notice of the decision or findings and
a statement of the place at which the full decision or findings may
be examined.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
In accordance with Section 912 of the Pennsylvania
Municipalities Planning Code,[1] the Board, upon appeal, shall have the power to authorize
variances from the provisions of this chapter provided that 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 provisions of this chapter in the neighborhood 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, 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. In authorizing a
variance, the Board may attach such reasonable conditions as it deems
necessary to assure compliance with the objectives of this chapter.
[1]
Editor's Note: 53 P.S. § 10912 was
repealed 12-21-1988, P.L. 1329, No. 170, § 90; see now 53
P.S. § 10910.2.
The Board shall have the power to decide applications
for special exceptions as specified in this chapter, in harmony with
its general purposes and intent and in accordance with the standards
set forth. The Board shall approve a special exception only if it
meets the following standards and criteria:
In cases involving performance standards:
A.
The Board may require a plan of the proposed construction
or development, a description of machinery proposed and specifications
for the mechanisms and techniques to be used.
B.
The Board may obtain qualified expert consultants
to testify as to whether a proposed use will conform to the performance
requirements.
[Amended 10-4-2004 by Ord. No. 476]
Any person aggrieved by any decision of the Board, or any taxpayer of the Borough, may appeal therefrom in accordance with Article X of the Pennsylvania Municipalities Planning Code. [1]
[1]
Editor's Note: Sections 11001 and 11003 through 11011 of Article X of the Municipalities Planning Code were repealed 12-21-1988, P.L. 1329, No. 170. Section 11002 of Article X was repealed 4-28-1978, P.L. 202, No. 53. For provisions regarding appeals, see now Article X-A of the Municipalities Planning Code (53 P.S. § 11001-A et seq.).
