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Borough of Burnham, PA
Mifflin County
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Table of Contents
Table of Contents
[Ord. 1973-8, 5/23/1973, § 701; as amended by Ord. 1995-2, 3/14/1995]
1. 
Appointment and Powers of Zoning Officer.
A. 
For the administration of this Chapter, a Zoning Officer, who shall not hold any elective office in the Borough, shall be appointed.
B. 
The Zoning Officer shall meet the qualifications established by the Borough and shall be able to demonstrate to the satisfaction of the Borough a working knowledge of municipal zoning.
C. 
The Zoning Officer shall administer this Chapter in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to this Chapter.
D. 
The Zoning Officer is hereby authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope of his employment.
2. 
Deputy. The Zoning Officer may designate an employee of the Borough as his Deputy who shall exercise all the powers of the Zoning Officer during the temporary absence or disability of the Zoning Officer.
3. 
Compensation. The compensation for the Zoning Officer and the Deputy Zoning Officer shall be determined by the Borough Council.
4. 
Duties and Responsibilities. The Zoning Officer shall have all the duties and powers conferred by this Chapter in addition to those reasonably implied for that purpose. He shall not issue a permit in connection with any contemplated erection, construction, alteration, repair, extension, replacement and/or use of any building, structure, sign and/or land unless it first conforms with the requirements of this Chapter, all other ordinances of the Borough, and with the laws of the Commonwealth of Pennsylvania. He shall:
A. 
Receive applications, process the same, and issue permits for the erection, construction, alteration, repair extension, replacement, and/or use of any building, structure, sign, and/or land in the Borough.
B. 
At his discretion, examine or cause to be examined, all buildings, structures, signs, and/or land or portions thereof, for which an application has been filed for the erection, construction, alteration, repair, extension, replacement, and/or use before issuing any permit. Thereafter, he may make such inspections during the completion of work for which a permit has been issued. Upon completion of the building, structure, sign, and/or change, a final inspection shall be made and all violations of approved plans or permits shall be noted and the holder of the permit shall be notified of the discrepancies.
C. 
Keep a record of all applications received, all permits and certificates issued, reports of inspections, notices, and orders issued, and the complete recording of all pertinent factors involved. He shall file and safely keep copies of all plans permitted, and the same shall form a part of the records of his office and shall be available for the use of the Borough Council and other officials of the Borough Council. At least annually, he shall submit to the Borough Council a written statement of all permits and certificates of use and occupancy issued, and violations and stop work orders recommended or promulgated.
[Ord. 1973-8, 5/23/1973, § 702; as amended by Ord. 1978-6, 3/8/1978; by Ord. 1985-3, 9/25/1985, § 4; and by Ord. 1995-2, 3/14/1995]
1. 
Requirements. It shall be unlawful to commence the excavation for or the construction or erection of any building or structure, including an accessory building, or to commence the moving or alteration of any building or structure, including an accessory building, or to otherwise commence any construction or alteration and/or development until the Zoning Officer has issued a building permit for such work; provided, however, no permit shall be required for construction or alterations and/or development when the fair market value of such construction or alteration and/or development is less than $1,500 in all districts specified in § 401 except an I-1 Industrial District and is less than $25,000 in an I-1 Industrial District and, provided that said construction or alteration and/or development would not change the use classification and such construction or alteration and/or development is not located within any designated floodplain district. No permit shall be required for repairs or maintenance of any building, structure or grounds provided such repairs do not change the use or otherwise violate the provisions of this Chapter.
2. 
Form of Application. The application for a permit shall be submitted in such form as the Zoning Officer may prescribe and shall be accompanied by the required fee as hereinafter prescribed. Application for a permit shall be made by the owner or lessee of any building or structure, or the agent of either; provided, however, that if the application is made by a person other than the owner or lessee, it shall be accompanied by a written authorization of the owner or the qualified person making an application that the proposed work is authorized by this owner. The full names and addresses of the owner, lessees, applicant, and of the responsible officers, if the owner or leasee is a corporate body, shall be stated in the application.
3. 
Description of Work. The application shall contain a general description of the proposed work, use, and occupancy of all parts of the building, structure, or sign and such additional information as may be required by the Zoning Officer. The application for the permit shall be accompanied by a plot plan of the proposed building, structure, or sign drawn to scale with sufficient clarity to show the nature and character of the work to be performed, including off-street parking and loading space if required, the location of new and existing construction, and the distances of the same from the existing lot lines.
4. 
Time Limit for Application. An application for a permit for any proposed work shall be deemed to have been abandoned six months after the date of filing, unless such application has been diligently prosecuted or a permit shall have been issued; except that reasonable extensions of time for additional periods not exceeding 90 days each may be granted at the discretion of the Zoning Officer.
5. 
Issuance of Permits. Upon receiving the application, the Zoning Officer shall examine the same within a reasonable time after filing. If the application or plans do not conform to the provisions of all pertinent local laws, he shall reject such application in writing, stating the reasons therefor. He shall inform the applicant of his right of appeal to the Zoning Hearing Board in the event such application is rejected. If satisfied that the proposed work and/or use conforms to the provisions of this Chapter and all laws and ordinances applicable thereto, and that the certificate of use and occupancy as required herein has been applied for, he shall be issue a permit therefor as soon as practical.
6. 
Expiration of Permit. The permit shall expire after one year from the date of issuance; provided, however, that the same may be extended every six months for a period not to exceed an additional one year.
7. 
Revocation of Permits. The Zoning Officer may revoke a permit or approval issued under the provisions of this Chapter in case of any false statement or misrepresentation of fact in the application or on the plans on which the permit or approval was based or for any other cause set forth in this Chapter.
8. 
Posting of Permit. A true copy of the permit shall be kept on the site of operations open to public inspection during the entire time of prosecution of the work or use and until the completion of the same as defined on the application.
9. 
Temporary Permit. A temporary permit may be authorized by the Zoning Hearing Board for a nonconforming structure or use which it deems necessary to promote the proper development of the community, provided that such nonconforming structure or use shall be completely removed upon expiration of the permit without cost to the Borough. Such permits shall be issued for a specified period of time not to exceed one year, and may be renewed annually for an aggregate period not exceeding three years.
10. 
Payment of Fees. No permit to begin work for the erection, construction, alteration, repair, extension, replacement, and/or use of any building, structure, sign and/or land for construction or use purposes shall be issued until the fees prescribed by the Borough Council pursuant to resolution shall be paid to the Zoning Officer. The payment of fees under this Section shall not relieve the applicant or holder of said permit from payment of other fees that may be required by this Chapter, or any other ordinance or law.
11. 
Compliance with Ordinances. The permit shall be a license to proceed with the work and should not be construed as authority to violate, cancel, or set aside any of the provisions of this Chapter, except as stipulated by the Zoning Hearing Board.
12. 
Compliance with Permit and Plot Plan. All work or uses shall conform to the approved application and plans for which the permit has been issued as well as the approved plot plan.
13. 
Special Requirements; Designated Floodplain District.
A. 
If any proposed construction or development is located within or partially within any designated floodplain district, applicants for building permits shall also profile the following specific information:
(1) 
A plan which details the ground and the lowest floor of the proposed construction, the one-hundred-year flood elevation, special reference to the level of floodproofing in relation to the one-hundred-year flood, and other associated factors requested by the Zoning Officer, such as storage elevation, size of the structure, location and elevation of streets, water supply, sanitary facilities and soil types.
(2) 
For all new construction and substantial improvements to nonresidential structures where floodproofing techniques are utilized to comply with the requirements of this Chapter, a document, certified by a registered professional engineer or architect, which states that the proposed construction has been adequately designed to withstand the flood depths, pressures, velocities, impact and uplift forces and other hydrostatic and hydrodynamic and buoyancy factors associated with the one-hundred-year flood. Such statement shall include a description of the type and extent of floodproofing measures which have been incorporated into the design of the structure.
B. 
A copy of all applications and plans for construction or development in any designated floodplain district to be considered for approval shall be submitted by the Borough Zoning Officer to the County Conservation District for review and comment prior to the issuance of a building permit. The recommendations of the conservation district shall be considered by the Borough Zoning Officer for possible incorporation into the proposed plan.
C. 
Prior to the issuance of any building permit the Borough Zoning Officer shall review the application for permit to determine if all other necessary governmental permits such as those required by State and Federal laws have been obtained including those required by Act 537, the Pennsylvania Sewage Facilities Act, the Pennsylvania Dam Safety and Encroachments Act, and the Federal Water Pollution Control Act Amendments of 1972, Section 404, 33 U.S.C. § 1334. No permit shall be issued until this determination has been made.
D. 
For purposes of implementation of these provisions, construction shall be considered to have started with the first placement of permanent construction of the site, such as the pouring of slabs or footings or any work beyond the stage of excavation. For a structure without a basement or poured footings, the start of construction includes the first permanent framing or assembly of the structure or any part thereof on its pilings or foundation, or the affixing of any prefabricated structure or mobile home to its permanent site. Permanent construction does not include land preparation, land clearing, grading, filling, excavation for basement, footings, piers, or foundations, erection of temporary forms, the installation of piling under proposed subsurface footings, or the installation of sewer, gas and water pipes, or electric or other service lines from the street.
14. 
Activities Requiring Special Permits.
A. 
The provisions of this Section shall be applicable, in addition to any other applicable provisions of this Chapter, or any other ordinance, code, or regulations and the provisions hereof shall supersede any other provisions of this Chapter inconsistent herewith.
B. 
Identification of Activities Requiring a Special Permit. In accordance with the Pennsylvania Floodplain Management Act, Act of October 4, 1978, P.L. 851, No. 166, § 101 et seq., 32 P.S. § 679.101 et seq., as amended, and regulations adopted by the Department of Community Affairs as required by the said Act, 38 Pa. Code § 38.1 et seq., as amended, the following obstructions and activities are permitted only by special permit, if located partially or entirely within any floodplain district:
(1) 
Hospitals - public or private.
(2) 
Nursing homes - public or private.
(3) 
Jails.
(4) 
New mobile home parks and mobile home subdivisions, and subsequent improvements to existing mobile home parks.
C. 
Application Requirements. Applicants for special permits shall provide five copies of the following items:
(1) 
A written request including a completed building permit application form.
(2) 
A small scale map showing the vicinity in which the proposed site is located.
(3) 
A plan of the entire site, clearly and legibly drawn at a scale of one inch being equal to 100 feet or less, showing the following:
(a) 
North arrow, scale and date.
(b) 
Topography based upon the National Geodetic Vertical Datum of 1929, showing existing and proposed contours at intervals of two feet.
(c) 
All property and lot lines including dimensions, and the size of the site expressed in acres or square feet.
(d) 
The location of all existing streets, drives, other accessways, and parking areas, with information concerning widths, pavement types and construction, and elevations.
(e) 
The location of any existing bodies of water or watercourses, buildings, structures and other public or private facilities, including railroad tracks and facilities, and any other natural and man-made features affecting, or affected by, the proposed activity or development.
(f) 
The location of the floodplain boundary line, information and spot elevations concerning the one-hundred-year flood elevations, and information concerning the flow of water including direction and velocities.
(g) 
The location of all proposed buildings, structures, utilities, and any other improvements.
(h) 
Any other information which the Borough considers necessary for adequate review of the application.
(4) 
Plans of all proposed buildings, structures and other improvements, clearly and legibly drawn at suitable scale showing the following:
(a) 
Sufficiently detailed architectural or engineering drawings including floor plans, sections, and exterior building elevations, as appropriate.
(b) 
For any proposed building, the elevation of the lowest floor (including basement) and, as required, the elevation of any other floor.
(c) 
Complete information concerning flood depths, pressures, velocities, impact and uplift forces and other factors associated with the one-hundred-year flood.
(d) 
Detailed information concerning any proposed flood-proofing measures.
(e) 
Cross-section drawings for all proposed streets, drives, other accessways, and parking areas, showing all rights-of-way and pavement widths.
(f) 
Profile drawings for all proposed streets, drives and vehicular accessways including existing and proposed grades.
(g) 
Plans and profiles of all proposed sanitary and storm sewer systems, water supply systems, and any other utilities and facilities.
(5) 
The following data and documentation:
(a) 
Certification from the applicant that the site upon which the activity or development is proposed is an existing separate and single parcel, owned by the applicant or the client he represents:
(b) 
Certification from a registered professional engineer, architect, or landscape architect that the proposed construction has been adequately designed to protect against damage from the one-hundred-year flood.
(c) 
A statement, certified by a registered professional engineer, architect, landscape architect, or other qualified person which contains a complete and accurate description of the nature and extent of pollution that might possibly occur from the development during the course of a one-hundred-year flood, including a statement concerning the effects such pollution may have on human life.
(d) 
A statement, certified by a registered professional engineer, architect, or landscape architect, which contains a complete and accurate description of the effects the proposed development will have on one-hundred-year flood elevations and flows.
(e) 
A statement, certified by a registered professional engineer, architect, or landscape architect, which contains a complete and accurate description of the kinds and amounts of any loose buoyant materials or debris that may possibly exist or be located on the site below the one-hundred-year flood elevation and the effects such materials and debris may have on one-hundred-year flood elevations and flows.
(f) 
The appropriate component of the Department of Environmental Resources "Planning Module for Land Development," as amended, or any successor thereto.
(g) 
Where any excavation or grading is proposed, a plan meeting the requirements of the Department of Environmental Resources to implement and maintain erosion and sedimentation control.
(h) 
Any other applicable permits such as, but not limited to, a permit for any activity regulated by the Department of Environmental Resources under Section 302 of said Floodplain Management Act, 32 P.S. § 679.302, as amended.
(i) 
An evacuation plan which fully explains the manner in which the site will be safely evacuated before or during the course of a one-hundred-year flood.
D. 
Application Review Procedures. Upon receipt of an application for a special permit by the Borough, the following procedures shall apply in addition to all other applicable permit procedures which are already established.
(1) 
Within three working days following receipt of an application meeting all of the requirements for an application for a special permit, a complete copy of the application and all accompanying documentation shall be forwarded to the County Planning Commission by registered or certified mail for its review and recommendation. Copies of the application shall also be forwarded to the Borough Planning Commission and Borough Engineer for review and comment.
(2) 
If an application is received that is incomplete, the Borough shall notify the applicant, in writing, stating in what respects the application is deficient.
(3) 
If the Borough decides to disapprove an application, it shall notify the applicant, in writing, of the reasons for the disapproval.
(4) 
If the Borough approves an application, it shall file written notification, together with the application and all pertinent information, with the Department of Community Affairs, by registered or certified mail, within five working days after the date of the approval.
(5) 
Before issuing the special permit, the Borough shall allow the Department of Community Affairs 30 days after receipt of the notification by the Department to review the application and the decision made by the Borough.
(6) 
If the Borough does not receive any communication from the Department of Community Affairs, during the thirty-day review period, it may issue a special permit to the applicant.
(7) 
If the Department of Community Affairs should decide to disapprove an application, it shall notify the Borough and the applicant, in writing, of the reasons for the disapproval, and the Borough shall not issue the special permit.
E. 
Technical Requirements for Development Requiring a Special Permit. In addition to any other applicable requirements, the following provisions shall also apply to the activities requiring a special permit. If there is any conflict between any of the following requirements and any otherwise applicable provisions, the more restrictive provision shall apply.
(1) 
No application for a special permit shall be approved unless it can be determined that the structure or activity will be located, constructed and maintained in a manner which will:
(a) 
Fully protect the health and safety of the general public and any occupants of the structure. At a minimum, all new structures shall be designed, located and constructed so that:
1) 
The structure will survive the inundation by waters of the 100 years flood without any lateral movement or damage to either the structure itself, or to any of its equipment or contents below the one-hundred-year flood elevation.
2) 
The lowest floor elevation (including basement) will be at least 1 1/2 feet above the one-hundred-year flood elevation.
3) 
The occupants of the structure can remain inside for an indefinite period of time and be safely evacuated at any time during the one-hundred-year flood.
(b) 
Prevent any significant possibility of pollution, increased flood levels or flows, or debris endangering life and property.
(2) 
All hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analysis, computations, etc., shall be submitted in sufficient detail to allow a thorough technical review by the Borough and the Department of Community Affairs.
F. 
Except for possible modification of the freeboard requirements involved, no variance shall be granted for any of the other requirements of this Section.
G. 
Freeboard requirements may only be modified pursuant to the provisions of § 506.6F of this Chapter.
[Ord. 1973-8, 5/23/1973, § 703]
1. 
It shall be unlawful to use and/or occupy any structure, building, sign, and/or land or portion thereof for which a permit is required herein until a certificate of use and occupancy for such structure, building, sign, and/or land or portion thereof has been issued by the Zoning Officer. The application for issuance of a certificate of use and occupancy shall be made at the same time an application for a permit is filed with the Zoning Officer as required herein.
2. 
The application for a certificate of use and occupancy shall be in such form as the Zoning Officer may prescribe and may be made on the same application as is required for a permit.
3. 
The application shall contain the intended use and/or occupancy of any structure, building, sign, and/or land or portion thereof, for which a permit is required herein.
4. 
The Zoning Officer shall inspect any structure, building, or sign within 10 days upon notification that the proposed work that was listed under the permit has been completed and, if satisfied that the work is in conformity and compliance with the work listed in the issued permit and all other pertinent laws, he shall issue a certificate of use and occupancy for the intended use listed in the original application.
5. 
The certificate of use and occupancy or a true copy thereof shall be kept available for official inspection at all times.
6. 
Upon request of a holder of a permit, the Zoning Officer may issue a temporary certificate of use and occupancy for a structure, building, sign, and/or land, or portion thereof, before the entire work covered by the permit shall have been completed, provided such portion or portions may be used and/or occupied safely prior to full completion of the work without endangering life or public welfare. The Zoning Officer shall also issue a temporary certificate of use and occupancy for such temporary uses as tents, use of land for religious or other public or semipublic purposes and similar temporary use and/or occupancy. Such temporary certificates shall be for the period of time to be determined by the Zoning Officer, however, in no case for a period exceeding six months.
[Ord. 1973-8, 5/23/1973, § 704; as amended by Ord. 1995-2, 3/14/1995]
1. 
Enforcement Notice.
A. 
If it appears to the Borough that a violation of this Chapter has occurred, the Borough shall initiate enforcement proceedings by sending an enforcement notice as provided in this Section.
B. 
The enforcement notice shall be sent to the owner of record of the parcel on which the violation has occurred, to any person who has filed a written request to receive enforcement notices regarding that parcel, and to any other person requested in writing by the owner of record.
C. 
An enforcement notice shall state at least the following:
(1) 
The name of the owner of record and any other person against whom the Borough intends to take action.
(2) 
The location of the property in violation.
(3) 
The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of this Chapter.
(4) 
The date before which the steps for compliance must be commenced and the date before which the steps must be completed.
(5) 
That the recipient of the notice has the right to appeal to the Zoning Hearing Board within a period of 10 days.
(6) 
That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with possible sanctions clearly described.
2. 
Causes of Action. In case any building, structure, landscaping or land is, or is proposed to be, erected, constructed, reconstructed, altered, converted, maintained or used in violation of this Chapter, the Borough Council or, with the approval of the Borough Council, an officer of the Borough, or any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation. When any such action is instituted by a landowner or tenant, notice of that action shall be served upon the Borough at least 30 days prior to the time the action is begun by serving a copy of the complaint on the Borough Council. No such action may be maintained until such notice has been given.
3. 
Enforcement Remedies.
A. 
Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this Chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the Borough, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the Borough as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgment, the Borough may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating this Chapter to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice and thereafter each day that a violation continues shall constitute a separate violation.
B. 
The court of common pleas, upon petition, may grant an order of stay, upon cause shown, tolling the per diem fine pending a final adjudication of the violation and judgment.
C. 
Nothing contained in this Section shall be construed or interpreted to grant to any person or entity other than the Borough the right to commence any action for enforcement pursuant to this Section.
D. 
District justices shall have initial jurisdiction over proceedings brought under this Section.
[Ord. 1973-8, 5/23/1973, § 705; as amended by Ord. 1980-10, 12/30/1980, § 1; and by Ord. 1995-2, 3/14/1995]
1. 
Zoning Hearing Board.
A. 
There is hereby created for the Borough a Zoning Hearing Board in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
B. 
The membership of the Board shall consist of three residents of the Borough appointed by resolution by the Borough Council. The terms of office shall be for three years and shall be so fixed that the term of office of one member shall expire each year. The Board shall promptly notify the Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the Borough.
C. 
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 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.
D. 
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, but the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf and the parties may waive further action by the Board as provided in this Chapter.
E. 
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and laws of the Commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Borough and shall submit a report of its activities to the Borough Council as requested by the Borough Council.
F. 
Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.
2. 
Hearings. The Zoning Hearing Board shall conduct hearings and made 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 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 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 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.
C. 
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 Borough, 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.
D. 
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.
E. 
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.
F. 
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.
G. 
Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
H. 
The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee, including mileage, 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.
I. 
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 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.
J. 
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 Chapter or of any law, 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 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. 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 the 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 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.
K. 
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.
L. 
The Borough Council shall establish, by resolution, fees with respect to hearings before the Zoning Hearing Board.
3. 
Jurisdiction.
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 the Borough Council pursuant to §§ 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. §§ 10609.1, 10916.1.
(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 Borough 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 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.
(5) 
Applications for variances from the terms of this Chapter and flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 910.2 of the MPC, 53 P.S. § 10910.2.
(6) 
Applications for special exceptions under this Chapter or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 912.1 of the MPC, 53 P.S. § 10912.1.
(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.
(8) 
Appeals from the Zoning Officer's determination under § 916.2 of the MPC, 53 P.S. § 10916.2.
(9) 
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 storm water management insofar as the same relate to development not involving applications under Article V or VII of the MPC, 53 P.S. §§ 10501 et seq., 10701 et seq.
B. 
The Borough Council, 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 of the MPC pursuant to the provisions of § 702 of the MPC, 53 P.S. § 10702.
(2) 
All applications pursuant to § 508 of the MPC, 53 P.S. § 10508, for approval of subdivisions or land developments under Article V of the MPC, 53 P.S. § 10501 et seq.
(3) 
Applications for conditional use under the express provisions of this Chapter.
(4) 
Applications for curative amendment to this Chapter or pursuant to §§ 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1, 10916.1(a).
(5) 
All petitions for amendments to land use ordinances, pursuant to the procedures set forth in § 609 of the MPC, 53 P.S. § 10609.
(6) 
Appeals from the determination of the Zoning Officer or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and storm water management insofar as the same relate to applications for land development under Articles V and VII of the MPC, 53 P.S. §§ 10501 et seq., 10701 et seq. 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 Borough Engineer shall be to the Zoning Hearing Board pursuant to this Section. Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission and all appeals from the decision of the Planning Commission shall be to court.
[Ord. 1973-8, 5/23/1973, § 706; as amended by Ord. 1995-2, 3/14/1995]
1. 
Enactment of Zoning Ordinance Amendments.
A. 
The Borough Council may from time to time amend, supplement, or repeal any of the regulations and provisions of this Chapter. The procedure for the preparation of a proposed zoning ordinance as set forth in § 607 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10607, is hereby declared optional.
B. 
Before voting on the enactment of an amendment, the Borough Council shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a zoning map change, notice of said public hearing shall be conspicuously posted by the Borough at points deemed sufficient by the Borough along the perimeter of the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.
C. 
In the case of an amendment other than that prepared by the Planning Commission the Borough Council shall submit each such amendment to the Planning Commission at least 30 days prior to the hearing on such proposed amendment to provide the Planning Commission an opportunity to submit recommendations.
D. 
If, after any public hearing held upon an amendment, the proposed amendment is changed substantially, or is revised, to include land previously not affected by it, the Borough Council shall hold another public hearing, pursuant to public notice, before proceeding to vote on the amendment.
E. 
At least 30 days prior to the public hearing on the amendment by the Borough Council, the Borough shall submit the proposed amendment to the county planning agency for recommendations.
F. 
Within 30 days after enactment, a copy of the amendment to this Chapter shall be forwarded to the county planning agency.
2. 
Procedure for Landowner Curative Amendments.
A. 
A landowner who desires to challenge on substantive grounds the validity of this Chapter or the Zoning Map or any provision thereof, which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the Borough Council with a written request that his challenge and proposed amendment be heard and decided as provided in § 916.1 of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. § 10916.1. The curative amendment and challenge shall be referred to the Planning Commission and the county planning agency as provided in § 609 and notice of the hearing thereon shall be given as provided in §§ 610 and 916.1 of the MPC, 53 P.S. §§ 10609, 10610, and 10916.1.
B. 
The hearing shall be conducted in accordance with § 908 of the MPC, 53 P.S. § 10908, and all references therein to the Zoning Hearing Board shall, for purposes of this Section be references to the Borough Council. If the Borough does not accept a landowner's curative amendment brought in accordance with this subsection and a court subsequently rules that the challenge has merit, the court's decision shall not result in a declaration of invalidity for this entire Chapter and Zoning Map, but only for those provisions which specifically relate to the landowner's curative amendment and challenge.
C. 
The Borough Council, if it determines that a validity challenge has merit, may accept a landowner's curative amendment, with or without revision, or may adopt an alternative amendment which will cure the challenged defects. The Borough Council shall consider the curative 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 this Chapter or Zoning 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 the preservation of agriculture and other land uses which are essential to public health and welfare.
3. 
Procedure for Borough Curative Amendments.
A. 
If the Borough determines that this Chapter, or any portion hereof, is substantially invalid, it shall take the following actions:
(1) 
The Borough shall declare by formal action, this Chapter or portions hereof substantially invalid and propose to prepare a curative amendment to overcome such invalidity. Within 30 days such declaration and proposal the Borough Council shall:
(a) 
By resolution make specific findings setting forth the declared invalidity of this Chapter which may include:
(b) 
References to specific uses which are either not permitted or not permitted in sufficient quantity;
(c) 
Reference to a class of use or uses which requires revision; or
(d) 
Reference to this entire Chapter which requires revisions.
(2) 
Begin to prepare and consider a curative amendment to this Chapter to correct the declared invalidity.
B. 
Within 180 days from the date of the declaration and proposal, the Borough shall enact a curative amendment to validate, or reaffirm the validity of, this Chapter pursuant to the provisions of § 609 of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. § 10609, in order to cure the declared invalidity of this Chapter.
C. 
Upon the initiation of the procedures as set forth in subsection (1), the Borough Council shall not be required to entertain or consider any landowner's curative amendment filed under § 609.1 of the MPC, 53 P.S. § 10609.1, nor shall the Zoning Hearing Board be required to give a report requested under §§ 909.1 or 916.1 of the MPC, 53 P.S. §§ 10909.1, 10916.1, subsequent to the declaration and proposal based upon the grounds identical or substantially similar to those specified by the resolution required by subsection (1)(A). Upon completion of the procedures set forth in subsections (1) and (2), no rights to a cure pursuant to the provisions of §§ 609.1 and 916.1 of the MPC, 53 P.S. §§ 10609.1, 10916.1, shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of this Chapter for which there has been a curative amendment pursuant to this Section.
D. 
The Borough, having utilized the procedures set forth in this Section, may not again utilize said procedure for a period of 36 months following the date of enactment of a curative amendment, or reaffirmation of the validity of this Chapter; provided, however, if after the date of declaration and proposal there is a substantially new duty imposed upon the Borough by virtue of a change in statute or by virtue of a Pennsylvania Appellate Court decision, the Borough may utilize the provisions of this Section to propose a curative amendment to this Chapter to fulfill said duty or obligation.
[Ord. 1973-8, 5/23/1973, § 707; as amended by Ord. 1980-10, 12/30/1980, § 1; and by Ord. 1995-2, 3/14/1995]
The following guidelines and procedures are hereby established as regards an application for conditional use pursuant to this Chapter.
1. 
An application for conditional use shall be submitted to the Borough Council, together with a reasonable fee prescribed by Borough Council by resolution, and of necessity must contain the following information:
A. 
The name and address of the applicant.
B. 
The name and address of the owner of the real estate to be affected by said conditional use.
C. 
A brief description of the location of the real estate to be affected by the proposed conditional use including, but not limited to, the street address, Mifflin County Deed Book number and page and the Mifflin County Tax Map Number.
D. 
A statement of the present zoning classification of the real estate in question, the improvements thereon and the present use thereof.
E. 
A statement of the Section or provision of this Chapter under which the conditional use may be allowed and the reasons why the applicant contends that it should be granted.
2. 
If Borough Council desires, in its discretion, the applicant shall, upon written request of said Council, file a plan for the proposed use. Such plan shall indicate the location and specification of all structures, parking areas, vehicle access routes, open spaces, landscaping and storm drainage and sanitary sewer facilities, if applicable. Additionally, the plan shall indicate property lines and abutting landowners. Finally, said plan shall contain any other information which Borough Council, at its discretion, may require in order to properly review and consider the application for conditional use. If such a plan is requested, final decision on said application may, in Borough Council's sole discretion, be postponed pending receipt thereof.
3. 
After receipt of the application for conditional use, Borough Council shall present it and any accompanying information to the Borough Planning Commission for review and recommendations at least 30 days prior to a public hearing of said review, together with any recommendations, shall be given to Borough Council within 30 days from the date of said referral. If the Borough Planning Commission shall fail to file such a report within the time and manner specified, it shall be conclusively presumed that the Planning Commission has approved the proposed conditional use.
4. 
Upon receiving an application, Borough Council shall fix a reasonable time and place for and hold a hearing thereon in accordance with the requirements for a hearing before the Zoning Hearing Board in accordance with § 705.1 hereof.
5. 
Borough Council 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 Council, and shall notify the applicant in writing of the decision or findings within 45 days following the signing of said written decision or findings. Depositing said written decision or findings in the U.S. Mail or personally delivering said written decision or findings shall be considered sufficient notice.
6. 
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
7. 
Borough Council shall keep a stenographic record of the proceedings and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.
8. 
The time periods of §§ 707.3, 707.4 and 707.5 shall be considered to be directory as opposed to mandatory, and failure to act within such time periods shall not be construed as acquiescence nor as a decision in favor of applicant.
[Ord. 1973-8, 5/23/1973, as added by Ord. 1995-2, 3/14/1995]
1. 
The Zoning Hearing 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 purposes of this Chapter and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
[Ord. 1973-8, 5/23/1973; as added by Ord. 1995-2, 3/14/1995]
The Board shall hear and decide requests for special exceptions in accordance with express standards and criteria where this Chapter states special exceptions to be granted or denied pursuant to express standards and criteria. In granting a special exception, 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 the Pennsylvania Municipalities Planning Code and this Chapter.
[Ord. 1973-8, 5/23/1973; as added by Ord. 1995-2, 3/14/1995]
Where this Chapter states that conditional uses are to be granted or denied by the Borough Council pursuant to express standards and criteria, the Borough Council shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria. In granting a conditional use, the Borough Council 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 the Pennsylvania Municipalities Planning Code and this Chapter.
[Ord. 1973-8, 5/23/1973; as added by Ord. 1995-2, 3/14/1995]
Appeals raising the substantive validity of any land use ordinance (except those to be brought before the Borough Council pursuant to the Pennsylvania Municipalities Code, procedural questions or alleged defects in the process of enactment or adoption of a land use ordinance; or 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; 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; 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; 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 storm water management insofar as the same relate to development not involving subdivision and land development or planned residential development may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance and for special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.
[Ord. 1973-8, 5/23/1973, as added by Ord. 1995-2, 3/14/1995]
1. 
No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by the Borough 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 interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan or from an adverse decision by the Zoning Officer on a challenge to the validity of this Chapter or an amendment hereto or map or an amendment thereto shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
2. 
All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
[Ord. 1973-8, 5/23/1978; as added by Ord. 1995-2, 3/14/1995]
1. 
Upon filing of any appeal proceeding before the Zoning Hearing Board 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. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board.
2. 
After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court.
3. 
The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.
4. 
If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by the petitioner.
[Ord. 1973-8, 5/23/1973, § 708; and by Ord. 1980-10, 12/30/1980, § 1]
If any article, section, subsection, provision, regulation, limitation, restriction, sentence, clause, phrase, or work in the Zoning Ordinance is, for any reason, declared to be illegal, unconstitutional or invalid, by any court of competent jurisdiction, such decision shall not affect or impair the validity of this Chapter as a whole, or any other article, section, subsection, provision, regulation, limitation, restriction, sentence, clause, phrase, word or remaining portion of this Chapter The Borough Council of the Borough of Burnham, Mifflin County, Pennsylvania, hereby declares that it would have adopted the Zoning Ordinance and each article, section, subsection, provision, regulation, limitation, restriction, sentence, clause, phrase and word thereof, irrespective of the fact that anyone or more of the sections, subsections, provisions, regulations, limitations, restrictions, sentences, clauses, phrases, or words may be declared illegal, unconstitutional or invalid.