Borough of New Freedom, PA Zoning Hearing Board

The Board shall elect a chairman, vice chairman, and secretary from its membership who shall serve annual terms 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 prescribed in § 225-1002.

The Chairman of the Board shall designate the alternate member of the Board to sit on the Board as may be needed to provide a quorum. The alternate member shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate member was initially appointed until the Board has made a final determination of the matter or case.

The Board may make, alter, and rescind rules and forms for its procedures, consistent with ordinances of the municipality 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 once a year.

Removal of members. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council, 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.

Powers. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final decisions in the following matters:

Substantive challenges to the validity of any land use ordinance except those brought before the Borough Council pursuant to Sections 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code, Act 247, as amended.

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.

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.

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 provision within a land use ordinance.

(5)

Applications for variances from the terms of the Zoning Ordinance and flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 225-1003.

(6)

Applications for special exceptions under the Zoning Ordinance or floodplain or flood hazard ordinance or such provision within a land use ordinance, pursuant to § 225-1004.

(7)

Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provision of the Zoning Ordinance.

(8)

Appeals from the Zoning Officer's determination under Section 916.2, Procedure to Obtain Preliminary Opinion, of the Pennsylvania Municipalities Planning Code, Act 247, as reenacted and amended.

(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 stormwater management, insofar as the same is related to development not involving subdivision and land development or planned residential development applications.

Board calendar. Each application or appeal filed in the proper form with the required data must be numbered serially and be placed upon the calendar of the Board by the Zoning Officer. Applications and appeals must be assigned for hearing in the order in which they appear on the calendar. However, for good reason, the Board may order the advance of the application or appeal.

§ 225-1002 Public hearings.

Notice; conduct of meeting.

Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, to each property owner within 200 feet of the property involved, and to any person who, at least two weeks prior to the scheduled hearing, has made request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by ordinance, or in the absence of ordinance provision, by rules of the Board. In addition to the written notice provided herein, written notice of the hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.

The Borough Council may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the secretary and members of the Zoning Hearing Board, notice and advertising costs, and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural, or other technical consultants or expert witness costs.

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.

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.

(5)

Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

(6)

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 with any party or his representative unless all parties are given an opportunity to be present.

Representation; statements.

Parties to the hearings 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 the 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.

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.

Statements are to be made in the following order or as the Chairman may direct:

(a)

Applicant or appellant.

(b)

Zoning Officer and other officials.

(c)

Any private citizen.

The applicant or appellant must be given an opportunity for rebuttal.

Witnesses. The 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.

Decision procedure.

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 the Pennsylvania Municipalities Planning Code,[1] as amended, or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in 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 is 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 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 A 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.

[1]

Editor's Note: See 53 P.S. § 10101 et seq.

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.

Whenever the Board imposes a condition or conditions with respect to the granting of an application or appeal, this condition must be stated in the order of the Board and in the permit issued pursuant to the order by the Zoning Officer. This permit remains valid only as long as the condition or conditions upon which it was granted or the conditions imposed by this chapter are adhered.

Records. The Board or hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or hearing officer, or shall be paid by the person appealing from the decision of the Board if such appeal is made, and in either event the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases, the party requesting the original transcript shall bear the cost thereof.

§ 225-1003 Variances.

Filing of variance.

An application may be made to the Zoning Hearing Board for a variance where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the applicant. The application must be on a form provided for that purpose by the Zoning Officer. It must be filed with the Board and copies given to the Zoning Officer and Borough Planning Commission. The applicant must provide all the information requested on the form, together with any other information and data that may be requested to advise the Board of the variance, whether such information is called for by the official form or not.

Unless otherwise specified or extended by the Board, a variance authorized by it expires if the applicant fails to obtain a building permit or use certificate within six months from the date of the authorization of the variance.

Referral to Planning Commission. All applications for a variance shall be referred to the Planning Commission for a report.

Standards for variance. Where there is unnecessary hardship, the Board may grant a variance in the application of the provisions of this chapter, provided that the following findings are made where relevant in a given case:

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 the Zoning Ordinance in the neighborhood or zone in which the property is located.

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 the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

That such unnecessary hardship has not been created by the appellant.

That the variance, if authorized, will not alter the essential character of the neighborhood or zone in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

(5)

That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

Conditions. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Zoning Ordinance.

§ 225-1004 Special exceptions.

Filing of special exceptions.

For any use permitted by special exception, a special exception must be obtained from the Zoning Hearing Board. In addition to the information required on the building permit application, the special exception application must show.

(a)

Ground floor plans and elevations of proposed structures.

(b)

Names and addresses of adjoining owners.

Unless otherwise specified or extended by the Zoning Hearing Board, a special exception authorized by the Board expires if the applicant fails to obtain, where required to do so, a building permit or use certificate within six months of the date of authorization of the special exception.

Referral to Planning Commission. All applications for a special exception shall be referred to the Borough Planning Commission for a report.

Conditions. In granting a special exception, the Zoning Hearing 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 chapter, the Pennsylvania Municipalities Planning Code[1] and/or the New Freedom Borough Comprehensive Plan.

[1]

Editor's Note: See 53 P.S. § 10101 et seq.

Application of extent-of-use regulations. The extent-of-use regulations as set forth in this chapter must be followed by the Zoning Hearing Board. Where no extent-of-use regulations are set forth for the particular use, the Board must impose extent-of-use requirements as necessary to protect the public welfare and the Comprehensive Plan.

General standards.

A special exception may be granted when the Zoning Hearing Board finds, from a preponderance of the evidence produced at the hearing, that:

(a)

The proposed use, including its nature, intensity, and location, is in harmony with the orderly and appropriate development of the zone; and

(b)

Adequate water supply, sewage disposal, storm drainage, and fire and police protection are, or can be, provided for the use; and

(c)

The use of adjacent land and buildings will not be discouraged and the value of adjacent land and buildings will not be impaired by the location, nature, and height of buildings, walls, and fences; and

(d)

The use will have proper location with respect to existing or future streets giving access to it, and will not create traffic congestion or cause industrial or commercial traffic to use residential streets; and

(e)

The specific standards set forth for each particular use for which a special exception may be granted have been met.

The applicant for a special exception shall have the burden of proof, which shall include the burden of going forward with the evidence, and burden of persuasion on all questions of fact which are to be determined by the Zoning Hearing Board.

Specific standards. In addition to the general standards for all special exceptions as contained in § 225-1004E, the specific standards for particular uses as listed in Article IV must be met prior to the granting of a special exception.

§ 225-1005 Conditional use.

[Added 7-12-1999 by Ord. No. 1999-4]

The Borough Council shall have the power to approve or disapprove applications for use of any land for which this chapter requires the obtaining of a conditional use permit. No site or other parcel of land requiring a conditional use permit shall be improved by laying out, constructing, opening or dedicating any public facilities, and no building or use requiring a conditional use permit shall be constructed or established except upon approval of the Borough Council in strict conformance with the provisions of these regulations.

Pursuant to Section 603(c) of the Pennsylvania Municipalities Planning Code (Act 247), as amended, the Council shall make its decision to allow or deny any application for additional usage pursuant to express standards and criteria. To be considered by the Council are the general standards and criteria set forth below and specific standards and criteria set forth in the applicable sections of this chapter for the use in question.

Compatibility. The proposed use will be reviewed as to its relationship to and effect upon surrounding land use and existing environmental conditions regarding the pollution of air, land and water; noise, potential of hazards and congestion; illumination and glare; restriction to natural light and circulation of air.

Purpose. Review the intended purpose of the proposed use as it relates to the Borough's development objectives established in the Comprehensive Plan.

Suitability. The nature of the activity and population served, numbers of participating population, frequency of use, adequacy of space and spatial requirements, potential generation and impact of congestion will be reviewed as suitable related to the proposed location of the potential use.