The Zoning Hearing Board which existed at the time of adoption
of this chapter shall continue in existence as previously established.
The membership of the Zoning Hearing Board shall consist of
three members who are residents of the Borough of Collingdale, and
they shall be appointed by the Borough Council. The terms of office
shall be three years and shall be so fixed that the term of office
of one member shall expire each year. The Zoning Hearing Board shall
promptly notify the Borough Council of any vacancies which occur.
Appointments to fill vacancies will be made by the Borough Council
to fill only the unexpired portion of the term. Members of the Zoning
Hearing Board shall hold no other office in the municipality, except
that no more than one member of the Board may also be a member of
the Planning Commission.
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.
The Board shall adopt rules in accordance with the provisions
of this chapter. Such rules shall include, but shall not be limited
to, the manner of filing appeals, the manner of filing applications
for special exceptions and variances from the terms of this chapter,
and the manner of giving notice of public hearing where required under
the terms of this chapter. Such rules shall be made available to the
public.
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 the 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.
The Zoning Hearing Board shall conduct hearings and make 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 the 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 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 its
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 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.
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.
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 and 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 of 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 Chapter 247, Floodplain Management, 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 Chapter 247, Floodplain Management, 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 stormwater
management[1] insofar as the same relate to development not involving applications under Article V or VII of the MPC, 53 P.S. §§ 10501 et seq. and 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
and 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 stormwater
management[2] 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.
A.
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:
(1)
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.
(2)
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.
(3)
That such unnecessary hardship has not been created by the applicant.
(4)
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.
(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.
B.
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.
Where the Borough Council, in this chapter, has stated special
exceptions to be granted or denied by the Zoning Hearing Board pursuant
to express standards and criteria, the Board shall hear and decide
requests for such special exceptions in accordance with such 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 this chapter and the Pennsylvania Municipalities Planning Code,
53 P.S. § 10101 et seq.
Meetings of the Zoning Hearing Board shall be held at the call
of the Chairman and at such other times as the Board may determine.
Such Chairman or, in his absence, the Acting Chairman may administer
oaths and compel the attendance of witnesses. For all meetings of
the Board, minutes shall be kept of its proceedings showing the vote
of each member upon each question, or if absent of failing to vote,
indicating such a fact, and shall keep records of its examinations
and other official actions. Every rule or regulation, every amendment
or repeal thereof, and every order, requirement, decision or determination
of the Board shall immediately be filed in the office of the Board
and shall be a public record.
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 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 of 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 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; 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
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.
A.
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.
B.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
A.
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.
B.
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.
C.
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.
D.
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's fees incurred by the petitioner.
