The Zoning Hearing Board shall carry out the functions and procedures established for the operation of a Zoning Hearing Board, hereafter called the "Board," as described in this section and in accordance with § 310-77D and Article 9 of the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
B.
Term of office.
(1)
Members of the Board shall be appointed hereafter for five-year staggered
terms, with one appointment each year to refill a completed term.
The present members of the Zoning Hearing Board shall serve until
the expiration of their appointments. Appointments shall be made annually
for a five-year term so that the term of one member of the Board shall
expire each year.
(2)
Appointments to fill vacancies shall be made by the Township Council
for only the unexpired portion of a term.
C.
Removal of members.
(1)
Any Board member may be removed for malfeasance, misfeasance or nonfeasance
in office, or for other just cause, by a majority vote of the Township
Council taken after the Board has received at least 15 days'
notice such vote will be taken.
(2)
The Board member thus accused may request by written communication
to the Township Manager no later than seven days prior to the meeting
of the Township Council, at which the vote for removal is to be taken,
for a hearing before the Township Council after which the Township
Council, at its discretion, may take a vote for removal of the Board
member.
D.
Organization of the Board.
(1)
The Board shall elect officers from among its membership to include
a Chairman, Vice Chairman and Secretary.
(2)
The Board shall establish a regular monthly meeting date to conduct
business.
(3)
The Board shall reorganize at its first meeting in each calendar
year. Board members may succeed themselves in their positions.
(4)
The Chairman shall call and chair all meetings of the Board. The
Vice Chairman shall act in the absence of the Chairman. The Secretary
shall act in the absence of both the Chairman and Vice Chairman.
(5)
The Secretary shall assume the following responsibilities with the
assistance of the Township staff: shall keep a record of the proceedings,
recording the vote of each member, shall arrange for a stenographer
to transcribe the hearings and distribute all testimony given at hearings,
shall be responsible for preparing the agenda for each meeting, shall
be responsible for the placing of notices for public hearings and
shall handle all correspondence.
(6)
A quorum shall be not less than three members. If, by reason of absence
or disqualification of a member, a quorum is not reached, the Chairman
of the Board shall designate as many alternate members of the Board
to sit on the Board as may be needed to provide a quorum. Any alternate
member of the Board shall continue to serve on the Board in all proceedings
involving the matter or case for which the alternate was initially
appointed until the Board has made a final determination of the matter
or case. Designation of an alternate pursuant to this section shall
be made on a case-by-case basis in rotation according to declining
seniority among all alternatives.
(7)
The Board may appoint one of its members as a Hearing Officer to
conduct a hearing on behalf of the Board and parties to such a hearing
may waive further action by the Board if satisfied with the Hearing
Officer's ruling.
(8)
The Board may make, alter or rescind rules and forms for its procedure
consistent with this and other ordinances of Hampton Township and
the laws of the commonwealth.
(9)
The Board, with the assistance of the Township staff, shall keep
full public records of its business and shall submit a report of its
activities to the Township Council as requested.
The Board shall conduct hearings and make decisions in accordance
with the following:
A.
The Board shall call and hold a public hearing within 60 days of
receiving an application of appeal, requesting a hearing, accompanied
by the required filing fee. Each subsequent hearing may be held within
45 days of the prior hearing, and all hearings shall be completed
within 100 days after the applicant completes its case in chief unless
extended by application to the Court of Common Pleas. Two notices
shall be placed in the classified section of a newspaper of general
local circulation once in each of two consecutive weeks, the first
publication appearing not more than 30 days and the second publication
not less than seven days prior to the hearing. In addition, written
notice of said hearing shall be conspicuously posted on the affected
tract of land at least one week prior to the hearing. Notices shall
indicate the date, time, and place of the hearing and the particular
nature of the matter to be considered, as well as the street address
of the specific property involved. All property owners within 300
feet of the property involved shall be notified by letter at least
seven days before the hearing.
B.
The parties to the hearing shall be the applicant, 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 require all persons who wish to be considered parties
to enter an appearance and all those parties giving testimony or presenting
evidence shall be sworn in.
C.
The Chairman of the Board, or the Hearing Officer, shall conduct
the hearing and shall have the power to administer oaths and issue
subpoenas to compel attendance of witnesses and/or the production
of documents and papers, including witnesses and documents requested
by the parties. The parties in a hearing shall have the right to be
represented by counsel and shall be afforded the opportunity to respond,
present evidence and cross-examine adverse witnesses on all relevant
issues. Formal rules of evidence shall not apply, but irrelevant or
redundant evidence may be excluded.
D.
The Board, or the Hearing Officer (if he is conducting the hearings),
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 the Hearing Officer,
or shall be paid by the person appealing from the decision of the
Board if such an 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. The Board, or the Hearing Officer, shall
not communicate, directly or indirectly, with any party, and/or representatives
of any party in connection with any issue relevant to the hearing,
except upon notice and opportunity for all parties to participate;
shall not take notice of any communications, reports or other materials,
except advice from the Board legal counsel, unless all parties are
afforded an opportunity to contest the material so noticed; and shall
not inspect any site or its surroundings with any party and/or representative
of any party after the start of hearings unless all parties are given
an opportunity to be present.
E.
The Board, or Hearing Officer, shall render a written decision, or,
when no decision is required, a written finding on the application
within 45 days after the conclusions of the hearing before the Board
or Hearing Officer. Decisions shall be based on findings of fact and
conclusions based on them, together with the reasons therefor. Conclusions
based on any provisions of this chapter or any other ordinance or
regulation of the municipality shall contain a reference to the provisions
relied on and the reasons why the conclusion is deemed appropriate
in the light of the facts. All hearings shall be conducted in accordance
with Section 908 of the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10908.
F.
If the hearing is conducted by a Hearing Officer, and there has been no stipulation that his/her decision or findings are final, the Board shall make the Hearing Officer's 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. 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 herein above provided, the Board shall give public notice of said decision within 10 days from the last day it could have to render a decision in the same as provided in Subsection E of this section.
G.
If the 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.
H.
A developer whose project has been approved, at either the preliminary
or final level, but who is forced to suspend the project as the result
of an appeal brought by a third party, may petition the Court to require
the appealing party to post a bond as a condition of continuing the
appeal, the amount to be determined by the Court. The Court shall
hear the petition, determine whether the appeal is frivolous, and
if so, may require the posting of the bond. Any appeals to the decision
of the Zoning Hearing Board shall be conducted in accordance with
the appeals procedure set out in the Municipalities Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
I.
A copy of the final decision, or the findings, if no decision is
required, shall be mailed to the applicant not later than the day
after the date of the decision. All others requesting notice of the
decision not later than the last day of the hearing shall receive
by mail a summary of the findings or decision and a statement of the
place at which the full decision or findings may be examined.
A.
Parties to proceedings authorized in this article 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 article once they have been
formally initiated. Nothing in this section 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. The Township of Hampton
assures that in each case, the mediating parties, assisted by the
mediator as appropriate, will 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, provided there is written
consent by the mediating parties, and by an applicant or municipal
decision-making body, if either is not a party to the mediation.
(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
decision-making body pursuant to the authorized procedures set forth
in the Municipalities Planning Code.
C.
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.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudication in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to Subsection A(10)(d) and § 310-123 of this chapter and Sections 609.1 and 909.1(a)(1) of the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. §§ 10609.1
and 10909.1(a)(1), respectively.
(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.
(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 Chapter 155, Flood Damage Prevention, 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 this chapter.
(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 stormwater
management insofar as the same relate to development not involving
the subdivision and PRD applications.
(10)
The Township Council shall have exclusive jurisdiction to hear
and render final adjudication in the following matters:
(c)
Applications for conditional use under the express provisions of this chapter pursuant to Article XII.
(e)
All petitions for amendments to land use ordinances, pursuant to the procedures set forth in § 310-122. 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.
(f)
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 Article IX of this chapter, as amended, and Chapter 280, Subdivision and Land Development, as amended. Where such determination relates only to development, not involving Article IX, as amended, and the Chapter 280, Subdivision and Land Development, as amended, 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).
B.
Applicability of judicial remedies. Nothing contained in this article
shall be construed to deny the appellant the right to proceed directly
to court where appropriate, pursuant to the procedures provided in
the Municipalities Code or any appropriate statute of the Commonwealth
of Pennsylvania.
A.
Variances.
(1)
The Board shall hear request for variances where it is alleged that
the provisions of the Zoning Ordinance inflict unnecessary hardship
upon the applicant.
(2)
Variance from Board unless a written application for a variance is
submitted to the Secretary of the Board. 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 but not limited to, 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 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 or be detrimental to the public
welfare; and
(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.
(3)
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.
B.
Special exceptions.
(1)
The Board shall hear and decide requests for special exceptions,
which are specified for the various zone districts, pursuant to express
standards and criteria in this chapter.
(2)
If a special exception is granted, the Board may attach such reasonable
conditions and safeguards, in addition to those expressed in this
chapter, as it may deem necessary to implement the purposes of this
Zoning Ordinance, predicated upon the developers submission of a written
application to the Secretary of the Board demonstrating that the development
for which the special exception is sought:
(a)
Will not endanger the public health, safety and welfare if located
where proposed, and that the use will not deteriorate the environment
or generate nuisance conditions such as traffic congestion, noise,
dust, smoke, glare or vibration;
(b)
Meets all other requirements of this chapter in the zoning district
where the use is proposed;
(c)
Is in general conformity with the Comprehensive Plan for the
Township of Hampton and in harmony with the area in which it is proposed;
and
(d)
Is an appropriate use on the proposed site.
C.
Validity of ordinance: substantive questions.
(1)
A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof, which prohibits
or restricts the use or development of land in which he has an interest,
shall submit the challenge either:
(a)
To the Zoning Hearing Board under § 310-97A(1); or
(b)
To the governing body under § 310-97A(10), together with a request for a curative amendment under § 310-123.
(2)
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 310-97A(1).
(3)
(a)
In challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Board that it hold a hearing on the challenge. The request shall contain the reasons for the challenge. Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment, under § 310-123, his/her application to the governing body shall contain, in addition to the requirements of the written request thereof, the plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans or other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit, so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in light thereof. Nothing herein contained shall preclude the landowner from seeking a final approval before submitting his/her challenge.
(b)
If the submission is made by the landowner to the governing body under Subsection C(1), the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
(c)
If the submission is made to the governing body, the municipal solicitor shall represent and advise it at the hearing or hearings referred to in § 310-123.
(d)
The governing body may retain an independent attorney to present
the defense of the challenged ordinance or map on its behalf and to
present their witnesses on its behalf.
(e)
Based upon the testimony presented at the hearing or hearings, the governing body or the Zoning Hearing Board, as the case may be, shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If a challenge heard by a governing body is found to have merit, the governing body shall proceed as provided in § 310-123. If a challenge heard by a Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommending amendments to the challenged ordinance, which will cure the defects found. In reaching its decision, the Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
[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 the 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;
and
[5]
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health, safety and
welfare.
(f)
The governing body or the Zoning Hearing Board, as the case
may be, shall render its decision within 45 days after the conclusion
of the last hearing.
(4)
The Zoning Hearing Board or governing body, as the case may be, shall
commence its hearing within 60 days after the request is filed, unless
the landowner requests or consents to an extension of time.
(5)
Public notice of the hearing shall include notice that the validity
of the ordinance or map is in question and shall give the place where
and the times when a copy of the request, including any plans, explanatory
material or proposed amendments may be examined by the public.
(6)
The challenge shall be deemed denied when:
(a)
The Zoning Hearing Board or governing body may, as the case may be, fails to commence the hearing within the time limits set forth in Subsection C(4);
(b)
The governing body notifies landowner that it will not adopt
the curative amendment;
(c)
The governing body adopts another curative amendment which is
unacceptable to the landowner; or
(d)
The Zoning Hearing Board or governing body, as the case may
be, 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 municipality.
(7)
Where a curative amendment proposal is by the governing body pursuant to § 310-97A(10)(d), or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 310-97A(1), or the Court acts finally on appeal from denial of a curative amendment proposal or a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval pursuant to Article IX or Chapter 280, Subdivision and Land Development. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of Chapter 280, Subdivision and Land Development, and Article IX shall apply. Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the Court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
(8)
Procedure to obtain preliminary opinion. In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposed to build is free from challenge, and recognizing that the procedure for preliminary approval of his/her development may be too cumbersome or may be unavailable, the landowner may advance the date from which time any challenge to the ordinance or map will run under § 310-99B by the following procedure:
(a)
The landowner may submit plans and other materials describing
his/her proposed use or development, to the Zoning Officer for a preliminary
opinion as to their compliance with the applicable ordinances and
maps. Such plans and other materials shall not be required to meet
the standards prescribed for preliminary, tentative or final approval
or for the issuance of a building permit so long as they provide reasonable
notice of the proposed use or development and a sufficient basis for
a preliminary opinion as to its compliance.
(b)
If the Zoning Officer's preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval under § 310-99B and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.
A.
Parties appellant Before the Board. Appeals under § 310-97A(1), (2), (3), (4), (7), (8) and (9) may be filed with the Board in writing by the landowner affected, any officer or agency of the municipality, or any person aggrieved. Requests for a variance under § 310-98A and for special exception under § 310-98B may be filed with the Board by any landowner or any tenant with the permission of such landowner.
B.
Time limitations.
(1)
No person shall be allowed to file any proceeding with the Board
later than 30 days after an application for development, preliminary
or final, has been approved by an appropriate municipal 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 notice, knowledge, or reason to believe that such approval
had been given. If such person has succeeded to his/her interest after
such approval, he/her shall be bound by the knowledge of his/her predecessor
in interest.
(2)
The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to Article IX or from an adverse decision by the Township Council on a challenge to the validity or an ordinance or map, pursuant to § 310-98C(1)(b), shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
(3)
All appeals from determinations adverse to the landowners shall be
filed by the landowners within 30 days after notice of the determination
is issued.
A.
Upon the filing of an appeal, and while an appeal is pending before
the Board, any 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 the Court having jurisdiction of zoning appeals, on petition,
after notice to the Zoning Officer or other appropriate agency or
body.
B.
Zoning appeals to court.
(1)
Zoning appeals shall include any appeals from the decisions
of the Board.
(2)
The court having jurisdiction shall be the Allegheny County
Court of Common Pleas.
(3)
Zoning appeals may be taken to Court by any party before the
Board or any officer or agency of the Township of Hampton.
(4)
All zoning appeals shall be filed not later than 30 days after
issuance of notice of the decision or report of the Board.
(6)
Rehearing. If any application for a variance, special exception
or appeal from the Zoning Officer is denied by the Board, another
application for the same request shall not be filed within a period
of one year from the date of denial.
