A.
The Zoning Hearing Board shall hold hearings on appeals from rulings
of the Zoning Officer or of the Planning Commission, challenges to
the validity of this chapter or to the Zoning Map,[1] and requests for variances, special exceptions or changes
to other nonconforming uses. The hearing shall be held within 45 days
of receipt of written request for a hearing. Written request must
be by registered mail or hand delivered to the Borough Secretary for
delivery to the Zoning Hearing Board. All prescribed fees must be
paid prior to the hearing.
[1]:
Editor's Note: The Zoning Map is on file in the Borough offices.
B.
The Zoning Hearing Board shall hear and decide appeals where it is
alleged that the Zoning Officer or the Planning Commission has failed
to follow prescribed procedures or has misinterpreted or misapplied
any provision of a valid code or map.
C.
The Zoning Hearing Board shall hear challenges to the validity of
this chapter or the Zoning Map, except challenges based on an alleged
defect in the process of enactment or adoption. The Zoning Hearing
Board shall decide all contested questions and shall make findings
on all relevant issues of fact, which shall become part of the record
on appeal to the Court of Common Pleas.
D.
The Zoning Hearing Board shall retain legal counsel independent of
the Borough Solicitor. Legal counsel or engineering or other professional
advisors, as may be necessary, shall be retained by the Zoning Hearing
Board as needed. The reasonable cost of professional advisors shall
be borne by the applicant.
E.
The Zoning Hearing Board shall hear and decide requests for variances
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The Zoning Hearing Board may grant a
variance, provided the following findings are made where relevant
in a given case:
(1)
That there are unique physical circumstances or conditions, including
irregularity, narrowness, or shallowness of lot size or shape, or
exceptional topographical or other physical peculiarity 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 district in which the property is located;
(2)
That, because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity
with this chapter, and that the authorization of a variance is therefore
necessary to enable the reasonable use of the property;
(3)
That the unnecessary hardship has not been created by the applicant;
(4)
That the variance, if granted, 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 the adjacent property, nor be detrimental to the public welfare;
(5)
That the variance not be based on economies of developing the project;
and
(6)
That the variance, if granted, will represent the minimum variance
that will afford relief and will represent the least modification
possible of the regulation in issue. In granting any variance, the
Zoning Hearing Board may attach such reasonable conditions and safeguards
as it may deem necessary to implement the purposes of this chapter.
F.
The Zoning Hearing Board shall hear and decide requests for special
exceptions, if any, provided for in this chapter, as amended. The
decision shall be based on the standards and criteria stated in this
Code. In granting a special exception, the Zoning Hearing Board may
attach such reasonable conditions as it may deem necessary to implement
the purpose of the Pennsylvania Municipalities Planning Code[2] and this chapter.
[2]:
Editor's Note: See 53 P.S. § 10101 et seq.
G.
The Zoning Hearing Board shall hear and decide requests for a change
from an existing nonconforming use to another nonconforming use. The
proposed use may not detract from the character of the neighborhood
to a greater extent than the existing nonconforming use. The Zoning
Hearing Board shall evaluate any change in hours of operation, extent
of activity, traffic generated, noise, odors and any other appropriate
matters in deciding if the proposed use is or is not more nonconforming
than the existing nonconforming use. In permitting such a change,
the Board may require appropriate conditions and safeguards as may
be reasonable.
H.
Hearings.
(1)
The
time and place of the hearing and the nature of the matter to be considered
at a hearing shall be given to the public, the applicant, the Zoning
Officer, the Borough Secretary and any person who has made a timely
request for the same. In the event of a dispute with the rulings of
the Planning Commission, challenges to the validity of this chapter
or to the Zoning Map, and requests for variances, special exceptions
or changes to other nonconforming uses, the Chairman of the Planning
Commission shall also be notified. The notice shall be published once
a week for two consecutive weeks in a newspaper in general circulation
in the Borough, with the first advertisement not more than 30 days
nor less than 14 days prior to the hearing. Notice shall be posted
at the Borough building and shall be conspicuously posted on that
part of the property's perimeter which abuts the street.
(2)
The
parties to the hearing shall be the Borough of Mars, any person affected
by the application and who has made a timely appearance of record
before the Zoning Hearing Board and any other person, including civic
or community organizations permitted to appear by the Zoning Hearing
Board. The Zoning Hearing Board shall have the power to require that
all persons who wish to be considered parties to the hearing file
an "Entry of Appearance" form provided at the hearing. 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.
(3)
The
Chairman or the Vice Chairman of the Zoning Hearing Board 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 any recognized parties.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
(4)
The
Zoning Hearing Board shall not communicate directly or indirectly
with any party or their representative 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 memorandum,
or other materials unless all parties are afforded an opportunity
to contest the materials, and shall not inspect the site or its surroundings
after the commencement of the hearings with any party or their representative
unless all parties are given an opportunity to be present.
(5)
The
Zoning Hearing Board shall keep a stenographic or recorded record
of the proceedings. A transcript of the proceedings and copies of
the graphic or written material received in evidence shall be made
available to any party at cost.
(6)
A
copy of the final decision and/or findings shall be mailed to or hand
delivered to the applicant not later than the day following the date
of the decision. The Zoning Hearing Board shall provide a brief notice
of the decision or findings to all other persons who have filed an
"Entry of Appearance" form at the hearing and have filed a request
for a copy of the decision. Should more than 45 days elapse between
the receipt of a written request for a hearing and the start of the
hearing or between the end of the last hearing and a decision, a decision
shall be deemed to have been in favor of the applicant, unless the
applicant has agreed, in writing, to an extension of time. If this
happens, the Borough shall give public notice of such a decision within
10 days.
(7)
Any
decision or findings of the Zoning Hearing Board may be appealed to
the Court of Common Pleas by any party properly signed into the hearing
with an "Entry of Appearance" form available at the hearing within
30 days from the date of the decision or findings.
I.
The Zoning
Hearing Board shall hear and decide appeals from and review any order,
requirement, decision or determination made by the Zoning Officer
in the administration of this chapter.
J.
The Zoning
Hearing Board shall hear and decide all matters referred to it or
upon which it is required to pass under this chapter.
K.
The Zoning
Hearing Board may issue special permits for any of the uses for which
this chapter requires the obtaining of such permits. In granting any
special permit, the Board shall prescribe any conditions that it deems
to be necessary or desirable for the public interest. No special permit
shall be granted by the Zoning Hearing Board unless it finds that
the use for which such permit is sought will not be injurious to the
neighborhood or otherwise detrimental to the public welfare and will
be in harmony with the general purpose of this chapter.
L.
The Zoning
Hearing Board may adopt or vary the strict application of any requirements
of this chapter in the case of irregular, narrow, shallow or steep
lots, or other physical conditions whereby such strict application
would result in practical difficulty or unnecessary hardship that
would deprive the owner of the reasonable use of the land or building
involved, but in no other case.
(1)
No such variance in the strict application of any provision of this
chapter shall be granted by the Zoning Hearing Board unless it finds
that there are special circumstances or conditions which are such
that the strict application of the provisions of this chapter would
deprive the applicant of the reasonable use of land or buildings.
(2)
The granting of any variance shall be in harmony with the general
purpose and intent of this chapter and shall not be injurious to the
neighborhood or otherwise detrimental to the public welfare.
The procedure of the Zoning Hearing Board shall be governed
by the provisions of applicable laws of the Commonwealth of Pennsylvania
and such rules, not inconsistent herewith, as the Board may adopt.
In general, the procedure for appeal from action of the Zoning Officer
shall be as follows:
A.
Any appeal from the requirements of this chapter shall be taken by
filing with the officer from whom the appeal is taken and with the
Zoning Hearing Board a notice of appeal specifying the grounds thereof.
The officer from whom the appeal is taken shall forthwith transmit
to the Board all of the documentary material constituting the record
upon which the action appealed was taken.
B.
Each appeal shall be tried on its merits at a public hearing. Notice
of such appeal shall be given by publishing in a newspaper of general
circulation in the Borough of Mars and in accordance with the applicable
law. Written notice to all landowners within 150 feet in all directions
of the subject property shall be provided by registered mail. applicants
shall provide a list of all adjacent landowners to the Borough Secretary.
The Board shall give the additional notice required by law to all
parties in interest, and they may join any hearing for the purpose
of giving such further notice.
C.
The Planning Commission shall furnish all pertinent narrative material,
maps, charts and other data relative to the problem involved for reference
by all concerned. The Board may join any hearing for the purpose of
reviewing such data as may be pertinent to the problem involved and
to request interpretations of said data by a representative of the
Planning Commission.
D.
The Board shall decide each appeal within a reasonable time, and
notice thereof shall be given to all parties in interest. The Board's
decision shall be immediately filed in its office and be a public
record. In the exercise of its functions upon such appeals or upon
exceptions, the Board may, in conformity of the law, reverse or affirm,
wholly or partly, or modify the order, requirement, decision or determination
as, in its opinion, ought to be made.
E.
Any person aggrieved by any decision of the Board or any municipal
officer affected thereby may appeal therefrom within 30 days to the
Court of Common Pleas as provided by law.
