Borough of Brentwood, PA Article X Zoning Hearing Board

§ 210-80 Membership.

A. Appointment. The membership of the Zoning Hearing Board shall consist of five residents of the Borough appointed by motion of the Borough Council. Their terms of office shall be five years and shall be so fixed that the terms of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Borough Council of any vacancies that occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other elected or appointed office in the municipality nor shall any member be an employee of the municipality.

B. The Borough Council may appoint by resolution at least one but no more than three residents of the Borough to serve as alternate members of the Board. The term of office of an alternate member shall be three years. Alternates shall hold no other elective or appointive office in the Borough including service as a member of the Planning Commission or as a Zoning Officer, nor shall any alternate be an employee of the municipality. Any alternate may participate in proceedings or discussions of the Board but shall not be entitled to vote as a member of the Board nor be compensated unless designated as a voting alternate member pursuant to the following process:

(1) The Chairman of the Board may designate alternate members of the Board to replace any absent or disqualified member and if, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum.

(2) Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final decision on the matter or case.

(3) Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

C. Vacancies. Appointments to fill vacancies on the Board shall be for the duration of the unexpired portion of the term only.

D. Removal of members. Any member of the Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Council. No vote shall take place until such time as the member has received a fifteen-day 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.

E. Compensation. 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. Alternate members may receive similar compensation when designated to participate in hearing as specified above.

§ 210-81 Organization.

A. Conduct of the Board. The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Board. The Board may appoint a hearing officer from its own membership to conduct the hearing on its behalf, and the parties may waive further action by the Board and accept the decision or findings of the hearing officer as final, as provided in Section 908 of the MPC.[1]

[1] Editor's Note: See 53 P.S. § 10908.

B. Establishment of procedure. The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and the laws of the Commonwealth. The Board shall maintain full public records of its business.

§ 210-82 Expenditures; fees.

A. Expenditures. Within the limits of funds appropriated by the Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.

B. Fees. An applicant before the Zoning Hearing Board shall deposit with the Zoning Officer the appropriate filing fee. Fees shall be established by resolution of the Council.

§ 210-83 Powers and functions.

The Zoning Hearing Board shall function in strict accordance with and pursuant to the MPC and shall have the following powers:

A. Appeals from the Zoning Officer. The Board shall hear and decide appeals where it is alleged that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map of the Borough or any valid rule or regulation covering the duties of the Zoning Officer.

B. Special exceptions. The Board shall hear and decide requests for special exceptions authorized by this chapter in accordance with the standards and criteria set forth in this section and Article IV of this chapter. The Board may attach such reasonable conditions and safeguards as it may deem necessary.

C. Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter create unnecessary hardship on an applicant when applied to a tract of land. In granting a variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary.

D. Validity of this chapter. The Board shall hear and make findings on challenges to the validity of any provision of this chapter with respect to substantive questions.

E. Jurisdiction in the matters as granted by Section 909.1 of the MPC.[1]

[1] Editor's Note: See 53 P.S. § 10909.1

§ 210-84 Hearing procedures.

The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements. Filing appeals and requests to the Zoning Hearing Board. Requests for hearings before the Zoning Hearing Board shall be made as follows:

A. An appeal to the Zoning Hearing Board may be filed by the landowner affected, any officer or agency of the Borough or any person aggrieved. Such appeal shall be taken within the time as stipulated by the MPC and the rules of the Board, by filing with the Zoning Officer a notice of appeal specifying the grounds thereof. The appropriate fee, established by the Borough, shall be paid in advance for each appeal or application. Requests for a variance and special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.

B. Notice. Public notice shall be given pursuant to this chapter and written notice shall be given to the applicant, 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.

C. Timing. A hearing shall be held within 60 days from the official application date requesting a hearing unless the applicant has agreed to an extension of time. The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney as a hearing officer. The decision, or, when 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 municipality, 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. Parties to the hearing. The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the Board, and any other person including civic or community organizations permitted to appear by the Board. The Board shall 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. Powers of the Chairman. The Chairman, Acting Chairman, or hearing officer, presiding, shall have the 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. Rights of the parties. The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond, to present evidence and to argue and cross-examine adverse witnesses on all relevant issues.

G. Exclusion of evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded by the Board.

H. Record of the proceedings. A stenographic record of the proceedings shall be made by a court reporter. The appearance fee for the court reporter shall be shared equally by the applicant and the Board. Any party requesting the original transcript or a copy of the transcript shall bear the cost of the same. Copies of graphic or written material received in evidence shall be made available to any party at cost.

I. Communications. Once a formal application has been duly filed, the Board shall not communicate, directly or indirectly, with any party or his representative in connection with any issue involved except upon notice and opportunity for all parties to participate. Further, the Board shall not take notice of any communication unless the parties are afforded an opportunity to contest the material 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.

§ 210-85 Decisions.

A. 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.

(1) Conclusions based on any provisions of any act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the 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. Except for challenges filed under Section 916.1[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection A, 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. § 10916.1.

B. 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.

§ 210-86 Standards for review of variance requests.

A. Required findings. The Zoning Hearing Board may grant a variance to the provisions of this chapter, provided that the findings prescribed in Section 910.2 of the MPC (53 P.S. § 10910.2) are made where relevant in a given case.

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

§ 210-87 Standards for review of special exception requests.

The Zoning Hearing Board shall hear and decide all requests for special exceptions, as identified within this section and Article IV of this chapter.

§ 210-88 Appeals to Court.

The provisions for appeals to court that are stated in the Pennsylvania MPC, as amended, shall apply.