A.
Membership. Council shall, by resolution, appoint five qualified
residents, who do not serve as elected officials and are not employees
or appointees thereof, to the Zoning Hearing Board. Initial appointments
shall be staggered so that one expires each year for the first five
years and all subsequent appointments shall be for five-year terms.
B.
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 Borough Council appointing said 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 within the aforementioned
time period.
C.
The 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. The Board shall
also appoint a hearing officer from its own membership to conduct
any hearing on its behalf where the parties agree to waive further
action by the Board.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance,
except those brought before Borough Council pursuant to §§ 609.1
and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code,
as amended.
(2)
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 municipality and a Zoning
Hearing Board has not been previously established, the appeal raising
procedural questions shall be taken directly to court.
(3)
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.
(4)
Appeals from a determination by a Municipal 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.
(5)
Applications for variances from the terms of the zoning ordinance
and flood hazard ordinance or such provisions within a land use ordinance,
pursuant to § 910.2 of the Pennsylvania Municipalities Planning
Code, as amended.
(6)
Applications for special exceptions under the zoning ordinance
or flood plain or flood hazard ordinance or such provisions within
a land use ordinance, pursuant to § 912.1. of the Pennsylvania
Municipalities Planning Code, as amended.
(7)
Appeals from the determination of any officer or agency charged
with the administration of any transfers of development rights or
performance density provisions of the zoning ordinance.
(8)
Appeals from the Zoning Officer's determination under § 916.2.
of the Pennsylvania Municipalities Planning Code, as amended.
(9)
Appeals from the determination of the Zoning Officer or Municipal Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and storm water management insofar as the same relate to development, not involving Article V or VII applications.
B.
Borough Council or, except as to Subsection B(3), (4) and (5), the Planning Commission, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments under Article VII pursuant to the provisions of § 702 of the Pennsylvania Municipalities Planning Code, as amended.
(2)
All applications pursuant to § 508 for approval of subdivisions or land developments under Article V of the Pennsylvania Municipalities Planning Code, as amended.
(3)
Any provision in a subdivision and land development ordinance
requiring that final action concerning subdivision and land development
applications be taken by a planning agency rather than Borough Council
shall vest exclusive jurisdiction in the Planning Commission in lieu
of Borough Council for purposes of the provisions of this subsection.
(4)
Applications for conditional use under the express provisions
of the zoning ordinance pursuant to § 603(c)(2) of the Pennsylvania
Municipalities Planning Code, as amended.
(5)
Applications for curative amendment to a zoning ordinance pursuant
to §§ 609.1 and 916.1(a)(2). of the Pennsylvania Municipalities
Planning Code, as amended.
(6)
All petitions for amendments to land use ordinances, pursuant
to the procedures set forth in § 609 of the Pennsylvania
Municipalities Planning Code, as amended. Any action on such petitions
shall be deemed legislative acts, provided that nothing contained
in this clause shall be deemed to enlarge or diminish existing law
with reference to appeals to court.
(7)
Appeals from the determination of the Zoning Officer or the Municipal Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for land development under Articles V and VII of the Pennsylvania Municipalities Planning Code, as amended. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the zoning officer or the municipal engineer shall be to the zoning hearing board pursuant to Subsection A(9). Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the planning agency, all appeals from determinations under this paragraph shall be to the planning agency and all appeals from the decision of the planning agency shall be to court.
(8)
Applications for a special encroachment permit pursuant to § 405
and applications for a permit pursuant to § 406 of the Pennsylvania
Municipalities Planning Code, as amended.
A.
The Zoning Officer shall accept complete applications and shall provide
them to the Zoning Hearing Board within five working days of receipt.
B.
The Board shall advertise each hearing stating the purpose thereof,
the location of the subject property when applicable, the name of
the applicant, a brief description of the appeal, and the date, time,
and location scheduled. Advertisements shall occur in accordance with
public notice. Where the hearing relates to property, said property
shall be posted with the aforesaid information no later than one week
prior to the scheduled hearing. The Zoning Officer shall notify the
applicant and Borough Council of the date, time, and purpose of the
respective hearing.
C.
The first hearing before the Zoning Hearing 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 Zoning
Hearing 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 Zoning Hearing 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 on the record
by the applicant and municipality, 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 Zoning Hearing Board shall conduct the hearings or the Zoning
Hearing 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 Zoning Hearing Board; however, the
appellant or the applicant, as the case may be, in addition to the
Borough Council, may, prior to the decision of the hearing, waive
decision or findings by the Zoning Hearing Board and accept the decision
or findings of the hearing officer as final.
E.
The chairman or acting chairman of the Zoning Hearing 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.
F.
Parties to every hearing shall be the Borough, the applicant(s),
and any affected party that enters a verbal or written appearance
or statement at the hearing. The Zoning Hearing Board may require
attendees to enter a written appearance as a condition of being a
party.
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 Zoning Hearing Board shall keep a stenographic record of each
hearing.
J.
The Zoning Hearing 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.
K.
The Zoning Hearing 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 Zoning Hearing 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 MPC 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. If the hearing is conducted
by a hearing officer and there has been no stipulation that his decision
or findings are final, the Zoning Hearing 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 Zoning Hearing Board prior to final decision or entry of findings,
and the Zoning Hearing Board's decision shall be entered no later
than 30 days after the report of the hearing officer. Excepting validity
challenges, where the Zoning Hearing Board fails to render the decision
within the period required by this subsection or fails to commence
or complete the required hearing as provided herein, 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 Zoning Hearing Board to meet or render
a decision as hereinabove provided, the Zoning Hearing 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 (1) of this section. If the Zoning Hearing Board shall
fail to provide such notice, the applicant may do so. 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 Zoning Hearing
Board not later than the last day of the hearing, the Zoning Hearing
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, or may choose to mail a complete copy
of the decision.
M.
The Zoning Officer shall keep written files or meeting transcripts,
evidence presented, correspondence, applications, names and addresses
of parties, evidence of delivery by certified mail of notice and decisions
to all applicable parties, and other files which shall remain the
property of the Borough Council.
The Zoning Hearing Board shall have exclusive power to hear
appeals for dimensional and use variances from the provisions of this
chapter.
A.
The landowner shall submit an application to the Zoning Officer including
a survey showing existing structures and the location and detail of
the proposed activity or structure for which the applicant requires
a variance; the required fee for a variance as outlined in the fee
schedule or schedules of the Borough Council and a completed application
with all required contact information as well as additional information,
if any, required by the Board.
B.
The Board shall grant a variance only when findings of fact are supported
by all of the following where relevant in a given case and therefore
constitute an unnecessary hardship inflicted by this chapter.
(1)
That there are unique physical circumstances or conditions,
including irregularity, narrowness, or shallowness of lot size or
shape, or exceptional topographical 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.
(2)
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.
(3)
That such unnecessary hardship has not been created by the appellant.
(4)
That the variance, if authorized, will not alter the essential
character of the neighborhood 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.
(5)
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.
C.
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.
The Board is authorized to consider special exceptions.
A.
Expansions and changes of nonconforming uses shall be evaluated as per the following standards cited in Article X and the general standards cited in this section.
B.
The landowner shall submit an application to the Zoning Officer including
a survey showing existing structures and the location and detail of
the proposed activity or structure for which the applicant requires
the special exception, including representations of parking and circulation;
the required fee for the special exception fee as outlined in the
schedule or schedules of the Borough Council, and a completed application
with all required contact information as well as additional information,
if any, required by the Board.
C.
Special exceptions for nonconforming uses shall be evaluated by the
following criteria at a minimum.
(1)
The impact of any proposed use on the neighborhood of which
it is a part compared with the impact of the existing nonconforming
use. A proposed use shall not present a greater adverse impact as
compared with the existing use.
(2)
The impact of an expansion of the nonconforming use and the
manner in which the expansion changes or redefines the impact of the
current nonconforming use.
(3)
The extent to which a proposed expansion changes the scale of
use such that the use itself may be changed such that it does not
present an adverse impact on the neighborhood and district in which
it is located. The expansion shall be considered a natural outgrowth
necessary to the economic vitality and sustainability of the current
nonconforming use.
(4)
The consistency of any proposed expansion with the current character
of a neighborhood or district.
(5)
The change in parking required and traffic circulation associated
with any proposed expansion or change in use.
D.
In granting any special exception, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of this chapter.
E.
Proposed additions shall conform dimensionally and otherwise to the
standards of the present ordinance, or shall otherwise require a dimensional
variance.
F.
Appeals from the Determination of the Zoning Officer. The Board shall
hear appeals from the determination of the Zoning Officer in matters
concerning the denial of a permit, a cease and desist order, and all
other matters outlined in § 909.1 of the Municipalities
Planning Code as amended. The aggrieved party shall make application
to the Zoning Officer for the appeal of the disputed decision. The
application shall include the fee as defined in the Borough's
adopted fee schedule, name and contract information, copies of the
permit application, and any additional details relating to the denial
or order issued.
G.
The Zoning Hearing Board recognizes its jurisdiction as defined above
and as additionally defined within § 909.1 of the MPC, as
amended, including the challenge of this chapter's validity within
30 days after its initial adoption based on procedural defects associated
with the adoption process.
A.
Where a landowner desires to challenge the validity of the chapter
in regards to the application of the ordinance to a property within
the Borough either under his ownership or other than his own, the
landowner shall submit an application for a validity challenge to
the Zoning Officer. The application shall include the section of chapter,
of which validity is challenged, the property to which the challenge
relates, the landowner's basis for challenge, and proposals by
the landowner concerning amendments that would cure the alleged defect.
Additionally, the required fee shall be submitted in accordance with
the Borough's fee schedule.
B.
Upon acceptance, the Zoning Officer shall forward the application
to the Zoning Hearing Board for consideration within five business
days of receipt.
C.
The Board shall conduct a hearing pursuant to public notice within
60 days of the application submission. The Board shall issue a decision
within 45 days of the close of the last hearing on the application.
D.
The Zoning Hearing Board's decision shall be based on the following:
(1)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities.
(2)
If the proposal is for a residential use, the impact of the
proposal upon regional housing needs and the effectiveness of the
proposal in providing housing units of a type actually available to
and affordable by classes of persons otherwise unlawfully excluded
by the challenged provisions of the ordinance or map.
(3)
The suitability of the site for the intensity of use proposed
by the site's soils, slopes, woodlands, wetlands, floodplains,
aquifers, natural resources and other natural features.
(4)
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources and natural features,
the degree to which these are protected or destroyed, the tolerance
of the resources to development and any adverse environmental impacts.
(5)
The impact of the proposal on land uses which are essential
to public health and welfare.
E.
If the Board fails to act on the landowner's request within
the time limits referred to herein, a denial of the request is deemed
to have occurred on the 46th day after the close of the last hearing.
The request shall also be deemed denied when the Board fails to act
on the request 45 days after the close of the last hearing on the
request, unless the time is extended by mutual consent by the landowner
and Board.
F.
Where the Zoning Hearing Board rules in favor of the landowner, the
Board shall draft proposed amendments to the ordinance which the Board,
in its decision, believes will cure the validity challenge and associated
defects. Said amendments shall be forwarded to the Borough.
The Zoning Hearing Board shall hear any variance or special exception with regard to § 265-1407, Floodplain regulations.
