[HISTORY: Adopted by the Borough Council of the Borough of
Lewistown 3-24-1986 by Ord. No. 86-2 (Ch. 1, Part 5C, of the 1986 Code).
Amendments noted where applicable.]
A.
Pursuant to the authority granted Council by the Borough Code[1], the existent five-member Board of Building Appeals created
under previous ordinances of the Borough is confirmed as, and shall
continue as, the Board of Building Appeals of the Borough.
[1]
Editor's Note: See 8 Pa.C.S.A. § 101 et seq.
A.
The Board of Building Appeals shall be comprised of five residents
of the Borough appointed by Council. No elected official of the Borough,
no appointed officer or appointed official of the Borough, no employee
of the Borough, and no member of the Planning Commission, Zoning Hearing
Board, Recreation Board, Police Civil Service Commission or any other
board, commission, bureau or agency of the Borough shall be eligible
for appointment to the Board of Building Appeals; and no member of
the Board of Building Appeals shall serve in any of those offices
or positions or on any of those boards, commissions, bureaus or agencies
unless he first resigns from the Board of Building Appeals.
B.
The term of office of each member of the Board of Building Appeals
shall be five years — the term to expire on the second Monday
in January or at such time thereafter when a successor to the member
is appointed by Council. The terms of office of the five members of
the Board of Building Appeals shall be so staggered that the term
of office of one member expires each year.
A.
If a vacancy occurs in the Board of Building Appeals other than by
expiration of the term of a member, Council shall fill the vacancy
by appointing a resident of the Borough to serve for the balance of
the unexpired five-year term.
The members of the Board of Building Appeals shall serve without
compensation but may be reimbursed by Council for necessary and reasonable
expenses incurred in the performance of their duties.
[Amended 9-22-1986 by Ord. No. 86-4]
A.
No schedule of regular meetings is prescribed herein for the Board
of Building Appeals.
B.
Scheduling of meetings.
(1)
The Board of Building Appeals may schedule such regular meetings
and may hold such special meetings as it may determine are necessary
or appropriate for the purposes of conducting hearings on cases before
it, taking formal and final action on such cases before it as may
be ready for the entry of decisions, and resuming hearings in those
cases before it where previously scheduled hearings were continued,
postponed, rescheduled or otherwise adjourned for resumption at a
later date.
(2)
After taking into consideration the time limitations and procedural requirements prescribed by §§ 10-11 and 10-14 or other applicable law, the Board of Building Appeals may schedule, reschedule, postpone, continue or adjourn hearings on cases before it for or to such dates and times as it may determine are reasonably necessary or appropriate in order to accommodate the parties to the case, their counsel, the public, the hearing stenographer, or others or in order to satisfy any time limitations or procedural requirements prescribed by § 10-11 or 10-14 or other applicable law.
A.
If the Board of Building Appeals chooses to schedule regular meetings under § 10-5B, the Administrative Secretary to the Board of Building Appeals shall give public notice of the dates, times and places of the regular meetings so scheduled and shall include in that notice a general statement of the purposes of the regular meetings. This public notice shall be published and concomitantly posted at least four days before the date of the first regularly scheduled meeting of the Board of Building Appeals.
B.
The Administrative Secretary to the Board of Building Appeals shall give public notice of the date, time and place of a special meeting of the Board of Building Appeals and shall include in that notice a general statement of the purpose of the meeting. This public notice shall be published and concomitantly posted at least two days before the date of the special meeting. A public notice given under § 10-13 shall be deemed in compliance with the requirements of this § 10-6B.
A.
The members of the Board of Building Appeals may elect one member
as Chairman of the Board of Building Appeals and one member as Vice
Chairman of the Board of Building Appeals. If the members of the Board
of Building Appeals fail to elect a Chairman or a Vice Chairman, that
member of the Board of Building Appeals who has the longest tenure
on the Board shall be the Chairman and that member who has the next
longest tenure shall be the Vice Chairman. The officers of the Board
of Building Appeals shall serve for one year or until their successors
are either elected by the members of the Board of Building Appeals
or are determined on the basis of tenure. The officers of the Board
of Building Appeals may succeed themselves.
B.
Council shall assign the Borough Secretary (or Assistant Borough
Secretary), or the Borough Manager shall assign some other employee
of the Borough, to serve as Administrative Secretary to the Board
of Building Appeals. The duties of the Administrative Secretary shall
be to provide the Board of Building Appeals with such administrative
services as scheduling meetings, giving notice of meetings, preparing
agendas for meetings, preparing minutes of meetings, scheduling hearings,
giving notice of hearings, securing the services of a hearing stenographer,
securing the services of an attorney to serve as hearing or case counsel
to the Board, preparing agendas for hearings, distributing copies
of hearing decisions, and other like services.
The Board of Building Appeals may make such rules to govern
its meetings, hearings or hearing procedures and may require the use
of such forms in connection with its proceedings or procedures as
are permitted by and consistent with the Pennsylvania Local Agency
Law,[1] this chapter and other applicable laws.
[1]
Editor's Note: See 2 Pa.C.S.A. §§ 551 et seq. and
751 et seq.
A.
The Board of Building Appeals shall have jurisdiction to hear and decide a case arising under the Borough's building, plumbing, electrical and property maintenance codes ordinances, the Floodplain Ordinance (but see Subsection B), Sanitary Sewer Connection and Use Ordinance, Trailer Regulations Ordinance (but see Subsection B), or Fire Prevention Code Ordinance,[1] where it is alleged by the petitioner that a department,
bureau official, officer, employee, agent or representative of the
Borough has made a requirement, notice, order or decision which incorrectly
interprets, administers, applies or enforces a provision, standard
or regulation of the ordinance or a code adopted by the ordinance,
or which inflicts unnecessary hardship upon the petitioner.
B.
The Board of Building Appeals shall not have jurisdiction over a case arising under Chapter 240, Zoning, and shall not have jurisdiction over a case arising under Chapter 148, Mobile Home Parks, or Chapter 125, Flood Damage Prevention, where, because of the nature of the case, jurisdiction over the case is assigned by the ordinance to the Zoning Hearing Board.
A.
All forms, statements, documents, sketches, plans and other materials comprising the case papers of the petitioner to the Board of Building Appeals shall be submitted to the Administrative Secretary to the Board of Building Appeals by not later than: (a) the 30th day after the date on which the requirement, notice, order or decision which is the subject of the case was made, or (b) the third day after the date fixed in the requirement, notice, order or decision as the date by which the petitioner was to complete the particular act or task from which he requests relief or was to stop the particular activity which he requests he be permitted to continue, whichever day in (a) or (b) first occurs. Exception: If the requirement, notice, order or decision specified a date as the last date by which an appeal to the Board of Building Appeals might be filed and if that date was fixed or determined pursuant to the provisions of an ordinance referred to in § 10-9A, then that date shall be the last date for submitting the case papers to the Administrative Secretary to the Board of Building Appeals. The case papers submitted to the Administrative Secretary shall be accompanied by the filing fee prescribed by the separate Borough Costs and Fees Schedule adopted by Council.[1]
[1]
Editor's Note: The current Borough Costs and Fees Schedule
is on file in the Borough's offices.
B.
Review for completeness.
(1)
The Administrative Secretary to the Board of Building Appeals shall
examine the case papers submitted by a petitioner within two business
days after the case papers have been submitted.
(2)
The Administrative Secretary shall ensure that: a) the filing fee
has been paid; b) all information required by any Board of Building
Appeals form has been disclosed; c) all forms, statements, documents,
sketches, plans and other materials comprising the case papers are
complete; and d) the appeal, request or other substantive basis of
the case is not time-barred. If the Administrative Secretary is satisfied
that all the foregoing prerequisites have been met, the Administrative
Secretary shall accept the case papers for filing and mark the case
papers filed as of the date when they were accepted by the Administrative
Secretary.
C.
If the Administrative Secretary does not accept the case papers for filing under § 10-10B, the Administrative Secretary shall give the petitioner a brief written explanation setting forth the reasons why the case papers were not accepted for filing and the manner in which the matters faulted might be corrected in order that the case papers might be accepted for filing.
A.
Upon the filing of the case papers under § 10-10B, the Administrative Secretary to the Board of Building Appeals shall fix a date, time and place for the public hearing to be conducted by the Board of Building Appeals on the case. The date fixed by the Administrative Secretary for the public hearing may, but need not, be the date of a regular meeting of the Board of Building Appeals scheduled under § 10-5B. In any event, the date fixed by the Administrative Secretary for the public hearing shall be not more than 40 days and not less than 10 days after the date on which the case papers in the matter were accepted for filing by the Administrative Secretary under § 10-10B.
B.
The Administrative Secretary shall give public notice of the date, time and place fixed under § 10-11A for the Board of Building Appeals' public hearing on the case and shall include in that notice:
(1)
The name of the petitioner;
(2)
A citation of the case number assigned to the case;
(3)
A statement of the particular nature of the case;
(4)
A statement of the relief requested or the remedy sought by the petitioner;
and
(5)
A reference to the Borough office where the case papers are on file
and where they may be examined during normal business hours.
C.
The Administrative Secretary shall ensure that counterparts of the
public notice of the hearing are published and posted and mailed or
delivered, as follows:
(1)
A counterpart of the notice shall be published in the newspaper one
time. This single publication shall appear not more than 30 days and
not less than five days prior to the date of the hearing.
(2)
Not more than 30 days and not less than five days prior to the date
of the hearing a counterpart of the notice shall be posted in a conspicuous
place in the Lewistown Municipal Building.
(3)
Not more than 30 days and not less than five days prior to the date
of the hearing a counterpart of the notice shall be mailed by ordinary
mail to the petitioner; the owner of the land, building or structure
involved in the case if the owner is different from the petitioner;
and any person who has made a timely request that notice be specifically
given him.
(4)
Not more than 30 days and not less than five days prior to the date
of the hearing a counterpart of the notice shall be mailed by ordinary
mail or delivered by hand to the department, official, officer, employee,
agent or representative of the Borough who made the requirement, notice,
order or decision which is the subject of the case; the Borough Manager;
the Borough Secretary; and the President of Council.
D.
In addition to the counterparts of the notice to be given under § 10-11C, counterparts of the notice may be given to such other persons, at such times and in such manner as the Board of Building Appeals or the Administrative Secretary to the Board of Building Appeals may deem appropriate under the circumstances of the case before the Board.
A.
Rescheduled or postponed meetings.
(1)
If notice of a hearing has been given under § 10-1 but before the hearing is convened it is rescheduled or postponed to a different date, time or place, the Administrative Secretary to the Board of Building Appeals shall give public notice of the date, time and place to which the hearing was rescheduled or postponed and shall include in that notice:
(2)
Not less than five days prior to the date on which the rescheduled or postponed hearing is to be held a counterpart of this notice shall be published in the newspaper one time; a counterpart posted in the place described in § 10-11C(2); a counterpart mailed by ordinary mail to each of the persons referred to in § 10-11C(3); and a counterpart mailed by ordinary mail or delivered by hand to each of the persons referred to in § 10-11C(4).
B.
Continued meetings.
(1)
If a hearing is convened but then continued indefinitely by consent
of the parties, and thereafter the parties agree to resume the hearing
on a given date, the Administrative Secretary to the Board of Building
Appeals shall give public notice of the date, time and place at which
the hearing will be resumed and shall include in that notice:
(2)
Not less than five days prior to the date on which the hearing is to be resumed, a counterpart of this notice shall be published in the newspaper one time; a counterpart posted in the place described in § 10-11C(2); a counterpart mailed by ordinary mail to each of the persons referred to in § 10-11C(3); and a counterpart mailed by ordinary mail or delivered by hand to each of the persons referred to in § 10-11C(4).
C.
Adjournment and resumption. If a hearing is convened but the extent
of the testimony or other factors warrant adjourning the hearing for
resumption at a later date, the Board of Building Appeals, by public
announcement at the hearing, may adjourn the hearing to a stated date,
time and place for resumption of the hearing. Except for the public
announcement at the hearing, no further notice of the adjournment
of the hearing to the stated date, time and place need be given.
Because any meeting of the Board of Building Appeals to take
formal and final action on a case (whether the meeting is held immediately
following the hearing on the case or at a later date) is subject to
the requirements of the Pennsylvania Sunshine Act,[1] the Administrative Secretary to the Board of Building Appeals shall give public notice of the date, time and place of the meeting at which the Board plans to take formal and final action on the case and shall include in that notice: a) the name of the petitioner; b) the case number of the case; c) a general statement of the nature of the case; and d) a general statement of the purpose of the meeting. The notice of the meeting of the Board of Building Appeals to take formal and final action on the case may be given as part of the public notice required to be given under § 10-12A or B. However, if the notice of the meeting of the Board to take action on the case is not given as part of the public notice under § 10-11 or as part of a public notice under § 10-12A or B, then not less than two days prior to the date of the meeting to take action on the case a counterpart of the notice of the meeting to take action on the case shall be published in the newspaper one time; a counterpart posted in the place described in § 10-11C(2); and a counterpart mailed by ordinary mail or delivered by hand to each of the persons referred to in § 10-11C(3) and (4).
[1]
Editor's Note: See 65 Pa.C.S.A. § 701 et seq
The Board of Building Appeals shall conduct hearings and render
a decision on a case before it in accordance with the requirements
of the Pennsylvania Local Agency Law[1] and the additional requirements, and with the powers,
next set forth.
A.
Unless the parties to the hearing agree to a lesser number of members
of the Board, the presence of three members of the Board shall constitute
a quorum for convening and conducting a hearing and the affirmative
or concurring votes of a majority of those members of the Board who
were present at the hearing shall be the decision of the Board at
the meeting at which formal and final action on the case is taken.
Members of the Board who were not present at the hearing shall not
vote on the decision. A tie vote shall be deemed to affirm the requirement,
notice, order or decision which is the subject of the case.
B.
The Board shall have the power to administer oaths and, issue subpoenas
to compel the attendance of witnesses and the production of relevant
documents and other evidence.
C.
Decisions.
(1)
In rendering a decision, the Board shall have the power to:
(a)
Affirm, modify or reverse, in whole or in part, the requirement,
notice, order or decision which is the subject of the case or make
such other decision as in its opinion ought to be made after balancing
the interests of the parties, the public, and others who might be
affected by the decision; and/or
(b)
Grant a variance from the provision, standard or regulation
which is at issue in the case, provided that:
[1]
The case is one where, because of special or unique circumstances
or conditions, the literal enforcement of the provision, standard
or regulation would result in unnecessary hardship but with the grant
of the variance the spirit of the provision, standard or regulation
can be observed and substantial justice done;
[2]
The grant of the variance will not be contrary to the public
interest and will not result in harm to those who might be affected
by the variance; and
[3]
The grant of the variance represents the minimum variance necessary
to afford relief.
D.
The Board shall render a written decision on the case within 30 days
after the date of the last hearing on the case. The decision shall
include findings of fact, conclusions, and the reasons for the conclusions
and the decision. A copy of the decision shall be mailed by ordinary
mail or delivered by hand to the parties to the hearing, the Borough
Secretary, and such other persons as the Board or the Administrative
Secretary to the Board may deem appropriate.
[1]
Editor's Note: See 2 Pa.C.S.A. §§ 551 et seq. and
751 et seq.
The Board of Building Appeals shall keep complete and full records
of its activities, hearings, actions and decisions, and these records
shall be public records within the meaning and scope of the Pennsylvania
Open Records Act.[1]
[1]
Editor's Note: See now the Right-To-Know Law, 65 P.S. §
67.101 et seq.
