[Ord. No. 247-2018, 9/17/2018]
A.
The purpose of this Chapter is to establish regulations to govern
the establishment, functions, and procedures of the Borough Zoning
Hearing Board, hereinafter called "Board."
B.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters based on the
MPC:
1.
Substantive challenges to the validity of this Chapter or Zoning
Map, except those brought before the Borough Council pursuant to § 609.1
and 916.1(a)(2) of Act 247, as amended, 53 P.S. § § 10609.1,
10916.1(a)(2).
2.
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, misinterpretation or misapplication of any provision of a valid
ordinance or map, or any valid rule or regulation of the Borough governing
the action of the Zoning Officer.
3.
Applications for variances from the terms of this Chapter, pursuant
to § 910.2 of Act 247, as amended, 53 P.S. § 10910.2.
4.
Applications for special exceptions under this Chapter, or such provisions
within a land use ordinance, pursuant to § 912.1 of Act
247, as amended, 53 P.S. § 10912.1.
5.
Appeals from the Zoning Officer's determination under § 916.2
of Act 247, as amended.
6.
Appeals from the determination of the Zoning Officer or Borough Engineer
in the administration of this Chapter or provision thereof with reference
to sedimentation and erosion control and stormwater management insofar
as the same relate to development, not involving applications under
Article V or Part VII of Act 247, 53 P.S. § § 10501
et seq., 10701 et seq.
[Ord. No. 247-2018, 9/17/2018]
A.
There shall be a Zoning Hearing Board consisting of three residents
of the Borough who shall be appointed by resolution of the Borough
Council.
B.
The term of office shall be three (3) years and shall be fixed so
that the term of office of one member shall expire each year.
C.
The Zoning Hearing Board shall promptly notify the Borough Council
of any vacancy. Appointments to fill vacancies shall be only for the
unexpired portion of the term.
D.
Members of the Zoning Hearing Board shall hold no other offices in
the Borough.
E.
The Borough Council shall appoint by resolution a resident of the
Borough to serve as an alternate member of the Board. The term of
the alternate member shall be 3 years, and the alternate member shall
hold no other office in the Borough. When seated pursuant to the provisions
of § 27-1503.3 below, an alternate shall be entitled to
participate in all proceedings and discussions of the Board to the
same and full extent as provided by law for Zoning Hearing Board members,
including specifically the right to cast a vote as a voting member
during the proceedings, and shall have all the powers and duties set
forth in this Chapter, and as otherwise provided by law. Any alternate
may participate in any proceeding or discussion of the Zoning Hearing
Board but shall not be entitled to vote as a member of said Zoning
Hearing Board nor be compensated pursuant to § 27-1505.2
below, unless designated as a voting alternate member pursuant to
§ 27-1503.3 below.
F.
Any board member may be removed for malfeasance, misfeasance or nonfeasance
in office or for other just cause by majority vote of Borough Council,
taken after the member has received 15 days advance notice of the
intent to take such a vote. A hearing will be held in connection with
the vote if the member shall request it in writing.
[Ord. No. 247-2018, 9/17/2018]
A.
The Zoning Hearing Board shall elect, from its members, its officers,
who shall serve annual terms as such and may succeed themselves.
B.
For the conduct of any public hearing and the taking of any action, a quorum shall not be less than a majority of all the members of the Zoning Hearing Board, but the Zoning Hearing 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 § 27-1506.
C.
If, by reason of absence or disqualification of a member, a quorum
is not reached, the Chairman of the Zoning Hearing Board shall designate
the alternate member to sit on the Zoning Hearing Board. The alternate
member shall continue to serve on the Zoning Hearing Board in all
proceedings involving the matter or case for which the alternate was
initially appointed, until the Zoning Hearing Board has made a final
determination of the matter or case.
D.
The Zoning Hearing Board may make, alter and rescind rules and forms
for its procedure consistent with the provisions of this Chapter and
the laws of the Commonwealth.
E.
The Zoning Hearing Board shall keep full public record of its business,
which records shall be property of the Borough, and shall submit a
report of its activities to the Borough Council, as requested.
[Ord. No. 247-2018, 9/17/2018]
A.
Applications for hearings before the Zoning Hearing Board shall be filed with the Board, together with the proper fee in accordance with § 27-1505 of this Chapter.
B.
An application for a special exception or variance from the terms
of this Chapter shall state:
1.
The name and address of the applicant.
2.
Name and address of the owner of the real estate to be affected by
the proposed application.
3.
Description and location of the real estate to be affected by such
proposed change.
4.
Statement of the present zoning classification, present land use,
and existing improvements of the real estate in question.
5.
Statement of the section of this Chapter authorizing the proposed
special exception or variance and reasons why it should be granted.
6.
Description of the proposed use and improvements.
7.
Site plan indicating the location, use, arrangement, building height,
and dimensional features showing compliance with applicable area,
width, coverage, yard, and design standards as specified in the zoning
district in which the site in question is located, of all existing
and proposed improvements and facilities.
8.
In the event that any required information is not furnished, the
application shall be refused and the fee returned to the applicant.
[Ord. No. 247-2018, 9/17/2018]
A.
Within the limits of funds appropriated by Borough Council, the Zoning
Hearing Board may employ or contract for secretaries, clerks, legal
counsel, consultants and other technical and clerical services. The
Zoning Hearing Board may employ legal counsel, but the attorney can
not be the Borough Solicitor.
B.
Members of the Zoning Hearing Board, including the alternative member,
may receive compensation for the performance of their duties, as may
be fixed by the Borough Council. In no case shall the amount of compensation
exceed the rate authorized to be paid to the members of the Borough
Council.
C.
The applicant before the Zoning Hearing Board shall deposit with
the Borough Treasurer the appropriate filing fee as set forth in the
fee schedule adopted by resolution of the Borough Council.
D.
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.
[Ord. No. 247-2018, 9/17/2018]
A.
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
1.
The Zoning Hearing Board shall fix a reasonable time and place for public hearings. Notification of said hearing shall be provided, as set forth in § 27-1507 below.
2.
The first hearing shall be commenced held within 60 days from the
date of the applicant's request, unless the applicant has agreed in
writing to an extension. Each subsequent hearing shall be held within
45 days of the prior hearing, unless otherwise agreed to by the applicant.
The hearing shall be completed no later than 100 days after the completion
of the applicant's case in chief, unless extended for good cause upon
application to the Court of Common Pleas.
3.
The hearings shall be conducted by the Zoning Hearing Board or the
Zoning Hearing Board may appoint any member or an independent attorney
as the hearing officer. The decision, or where no decision is called
for, the findings, shall be made by the Zoning Hearing 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 Zoning Board and accept the decision or findings
of the hearing officer as final.
4.
The parties to the hearing shall be the Zoning Hearing Board, 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 Zoning Hearing
Board. The Board shall have the power to require that all persons
who wish to be considered parties enter appearances in writing.
5.
The Chairman or Acting Chairman of the Zoning Hearing 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.
6.
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence,
to argument and to cross-examine adverse witnesses on all relevant
issues.
7.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
unduly repetitious and hearsay evidence may be excluded.
8.
The Zoning Hearing 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 Zoning Hearing Board. The cost of the original transcript shall
be paid in full by the Zoning Hearing Board if the transcript is ordered
by the Board or hearing officer, or shall be paid in full by the person
appealing from the decision of the Zoning Hearing 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.
9.
The Zoning Hearing Board or the hearing officer shall not communicate,
directly or indirectly, with any party or his/her 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 after the commencement of the
hearing unless all parties are given an opportunity to be present.
10.
The Zoning Hearing 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 Zoning Hearing Board or hearing officer.
Each decision shall be accompanied by findings and conclusions based
thereon, together with the reasons therefor. Conclusions based on
any provisions of this Chapter or of any act, 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 the hearing officer and there has been
no stipulation that this decision or findings are final, the Zoning
Hearing Board shall make his/her report and recommendations available
to the parties within 45 days, and the parties shall be entitled to
make written representations thereon to the Zoning Hearing Board prior
to final decision or entry of findings, and the decision of the Zoning
Hearing Board shall be entered no later than 30 days after the report
of the hearing officer. Where the Zoning Hearing Board fails to render
a decision within the 45-day period required by this paragraph, or
fails to hold a hearing within 60 days from the applicant's request,
unless the applicant has agreed or shall agree in writing to an extension
of time, the decision shall be deemed to have been rendered in favor
of the applicant. Where a decision has been rendered in favor of the
applicant because of the failure of the Zoning Hearing Board to meet
or render a decision as herein above provided, the Zoning Hearing
Board shall give public notice of said decision with 10 days from
the last day the Zoning Hearing Board could have met to render a decision,
as per Act 247, as amended. If the Zoning Hearing 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.
11.
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/her not later than the day following its date. To
all other persons who have filed their name and address with the Zoning
Hearing 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.
[Ord. No. 247-2018, 9/17/2018]
A.
The Zoning Hearing Board shall give public notice of any public hearing
as follows:
1.
The public notice herein required shall state the name of the applicant,
the location of the lot or building; the general nature of the question
involved, and the date, time and location of the hearing.
2.
Public notice shall be published in a newspaper of general circulation
within the Borough indicating the content described in subsection
A.1 above. Such public notice shall be published once a week for two
successive weeks, not less than seven (7), nor more than thirty (30)
days prior to the hearing.
3.
Written notice shall be given to the applicant, Borough Council,
the Zoning Officer, Borough Secretary, Borough Planning Commission,
and to any person who has made a timely request for the same, or who
have registered their names and addresses for this purpose with the
Board.
4.
Written notice of said hearing shall be conspicuously posted on the
affected tract of land at least one week prior to the hearing.
5.
The Board may mail written notice thereof to the owner of every lot
abutting the applicant's lot and to the owner of every lot within
150 feet of the applicant's lot. Failure to give this notice, either
in part or in full, as stated by this paragraph, shall not invalidate
any action taken by the Board.
6.
In addition thereto, the public notice may note that a copy of the
landowner's application, including plans and proposed amendments may
be examined by the public at the Borough during regular business hours.
[Ord. No. 247-2018, 9/17/2018]
A.
The landowner affected, any person aggrieved by any decision of the
Zoning Hearing Board, or any officer of the Borough may file an appeal
with the Zoning Hearing Board in writing specifying the grounds thereof
within the time required by the Municipalities Planning Code, 53 P.S.
§ 10101 et seq., or as provided by the rules of the Board.
B.
Requests for a variance or special exception may be filed by any
landowner, or any tenant with permission of the landowner. The appropriate
fee, as established by the fee schedule adopted by resolution by the
Borough Council, shall be paid in advance for each appeal or application
for a variance or special exception.
[Ord. No. 247-2018, 9/17/2018]
A.
The Zoning Hearing Board shall hear and decide requests for variances
where it is alleged that the provisions of this Chapter inflict unnecessary
hardship on the applicant. The Zoning Hearing Board may grant a variance,
provided 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 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 neither 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.
[Ord. No. 247-2018, 9/17/2018]
A.
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 Act 247, 53 P.S. § 10101 et seq. and this Chapter. The
Zoning Hearing Board shall hear and decide requests for special exceptions
where this Chapter has stated special exceptions to be granted or
denied by the Zoning Hearing Board pursuant to the following standards
and criteria, in addition to such other requirements and standards
as may be required by law and other provisions of this Chapter:
1.
The size, scope, extent and character of the special exception request
is consistent with the Honey Brook Township and Borough Multi-Municipal
Comprehensive Plan and with the purpose and intent of the zoning district
involved.
2.
The proposed special exception character and type of development
constitutes an appropriate use in the area consistent with the character
and type of development in the area surrounding the location for which
the request is made and will not substantially impair, alter, or detract
from the use of surrounding property or from the character of the
neighborhood, the number, extent, and scope of nonconforming uses
in the area, and the presence or absence in the neighborhood of conditions
or uses which are the same or similar in character to the condition
or use for which the applicant seeks approval.
3.
The proposed special exception serves the health, safety, welfare,
and the best interest of the Borough.
4.
The proposed modification is reasonable in terms of the logical,
efficient and economical extension of public services and facilities,
such as public water and sewers, police and fire protection, transportation
and public schools.
5.
The proposed special exception shall comply with the Borough Subdivision and Land Development Ordinance [Chapter 22].
6.
The recommendations of the Planning Commission on the proposed development
plan should be reviewed, where such plan is required. The Board shall
not be bound by such recommendations, nor shall the Board be bound
by the action of the Borough Council in relation to the development
plan.
7.
The proposed use shall limit the total number of new access points,
reduce the need for on-street parking, and encourage the frontage
of buildings on parallel marginal roads, or on roads perpendicular
to the highway.
8.
The proposed special exception is suitable with respect to traffic
on the roads or highways in order to protect streets and highways
from undue congestion and provides for adequate access and off-street
parking arrangements in order to protect major streets and highways
from undue congestion and hazard.
9.
The natural features and processes characterizing the proposed site
and its surroundings shall not suffer unmitigated degradation, that
the management of stormwater, the provision of water or sewer service,
and any other alterations to the site's predevelopment condition,
shall be consistent with Borough goals, practices and plans in these
regards, and that demand for water and energy by the proposed use
shall be minimized to the optimal extent.
10.
All commercial or industrial parking, loading, access or service
areas shall be illuminated at night while in use, in accordance with
Part 11, General Regulations, and that such lighting, including sign
lighting, shall be arranged so as to protect neighboring properties
from discomfort or hazardous interference of any kind.
[Ord. No. 247-2018, 9/17/2018]
Unless otherwise specified by the Zoning Hearing Board, a special
exception or variance shall expire and become null and void if the
applicant fails to obtain a building permit, a use and occupancy permit,
or a subdivision and land development approval as the case may be,
within six (6) months from the date of authorization thereof. The
Zoning Hearing Board, upon a written request, may for good cause extend
the variance or special exception for an additional six (6) month
period. Such extension may be granted without the necessity of a formal
hearing.
[Ord. No. 247-2018, 9/17/2018]
A.
No aggrieved person shall be allowed to file any proceedings with
the Zoning Hearing Board later than 30 days after an application for
development, preliminary or final, has been approved by the Borough
Council if such proceeding is designed to secure reversal or to limit
approval in any manner unless such person alleges and proves that
he/she had no notice, knowledge, or reason to believe that such approval
had been given. The failure of anyone other than the applicant to
appeal from an adverse decision by the Zoning Officer on a challenge
to the validity of an ordinance or map pursuant to § 709
of Act 247, the Municipalities Planning Code, 53 P.S. § 10709,
or from an adverse decision by the Zoning Officer on a challenge to
the validity of an ordinance or map pursuant to § 916.2
of Act 247, the Municipalities Planning Code, 53 P.S. § 10916.2,
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 landowners shall be
filed by the landowner within thirty (30) days after notice of determination
is issued.
[Ord. No. 247-2018, 9/17/2018]
Upon filing of any proceeding referred to in § 27-1508 and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged zoning 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 such 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. Procedures shall be in accordance with Act 247.
[Ord. No. 247-2018, 9/17/2018]
Any person aggrieved by any decision of the Board, or any taxpayer,
or any officer of the Borough may, within 30 days after entry of the
decision of the Board as provided in 42 Pa.C.S.A. § 5572,
or, in the case of a deemed decision, within 30 days after the date
upon which notice of said deemed decision is given as set forth in
§ 27-1406.1.J of this Chapter appeal to the Court of Common
Pleas of Chester County by petition, duly verified, setting forth
that such decision is arbitrary, capricious, an abuse of discretion
or otherwise not in accordance with law, specifying the grounds upon
which such person relies.
