This chapter shall apply throughout Paxtang Borough, Dauphin
County, Pennsylvania. Any activity regulated by this chapter shall
only occur in such a way that conforms to the regulations of this
chapter.
A.
The provisions of this chapter shall be enforced by the Zoning Officer
appointed by the Paxtang Borough Council. The Zoning Officer may have
designated an employee of the Borough as his assistant, who shall
exercise all the powers of the Zoning Officer during the temporary
absence or disability of the Zoning Officer.
B.
The duties of the Zoning Officer shall be to:
(1)
Administer this chapter in accordance with its literal terms;
(2)
Receive, examine and process all applications and permits as
provided by the terms of this chapter. The Zoning Officer shall also
issue zoning permits for special exception and conditional uses, or
for variances after the same have been approved by the body having
the respective jurisdiction;
(3)
Receive and process all requests for reasonable accommodation under the Fair Housing Amendments Act and/or the American Disabilities Act, as applicable. Criteria and procedures for the handling of such requests shall be in accordance with Subsection C below;
(4)
Review proposed subdivisions and land developments for compliance
with this chapter;
(5)
Determine the date before which steps for compliance shall be
commenced and the date before which the steps shall be completed.
The Zoning Officer shall determine an appropriate duration of time
for compliance of the specified activity, not to exceed 30 days. Extensions
up to a total of 90 days from the date of receipt of the enforcement
notice may be granted at the discretion of the Zoning Officer if applied
for in writing;
(6)
Record and file all applications for zoning permits, certificates
of use and occupancy, and other permits as may be set forth in this
chapter, and accompanying plans and documents, and keep them for public
record;
(7)
Inspect properties to determine compliance with all provisions
of this chapter as well as conditions attached to the approval of
variances, special exceptions, conditional uses and curative amendments;
(8)
Upon the request of the Paxtang Borough Council or the Zoning
Hearing Board, present to such bodies facts, records and any similar
information on specific requests to assist such bodies in reaching
their decisions;
(9)
Be responsible for keeping this chapter and the Official Zoning Map listed in Article III of this chapter up-to-date, including any amendments thereto;
(10)
Revoke a permit or approval issued under the provisions of this
chapter in case of any false statement or misrepresentation of fact
in the application or on the plans on which the permit or approval
was based or for any other cause set forth in this chapter, or otherwise
permitted by law; and
(11)
Take enforcement actions as provided by the Municipalities Planning
Code (MPC), as amended.
C.
Reasonable accommodation. The Borough complies with the Federal Fair
Housing Act (FHA), as amended, and/or the Americans with Disabilities
Act (ADA), as amended, to ensure that policies and regulations, including
but not limited to this chapter, do not discriminate against persons
on the basis of race, color, religion, national origin, disability
or family status.
(1)
The Borough shall grant requests for reasonable accommodations
if such requests provide equal housing and accessibility opportunities
to persons with disabilities, and such requests do not constitute
substantial changes or deviations to standards and provisions of this
chapter.
(2)
Persons requesting reasonable accommodation under the Fair Housing
Amendments Act and/or the Americans with Disabilities Act shall submit
a request in writing to the Zoning Officer, which shall, at a minimum,
include the following information:
(a)
The name and address of the applicant.
(b)
Specific sections, standards and provisions of this chapter
from which reasonable accommodation is being requested.
(c)
The specific description of the reasonable accommodation being
sought and the other pertinent information, including a detailed listing
of any proposed structural or location-related accommodations.
(d)
The specific condition(s) of the applicant for which reasonable
accommodation is sought.
(e)
A description of the hardship, if any, that the applicant will
incur should the request for reasonable accommodation being sought
not be granted.
(f)
A description of any alternative methods of relieving the claimed
hardship that have been considered, as well as the reason, if any,
why the applicant have rejected such alternatives.
(g)
A statement describing why the requested accommodation is necessary
to afford the applicant an opportunity equal to a nonhandicapped or
nondisabled person to use and enjoy the dwelling, building or structure
in question.
(h)
A description of the manner in which the accommodation, if granted,
will be removed, terminated and/or discontinued if no longer necessary
to afford equal opportunity to a nonhandicapped or nondisabled person
to use and enjoy the dwelling, building or structure in question.
(i)
A statement of any facts indicating whether or not nonhandicapped
or nondisabled persons would be permitted to utilize the property
in question in a manner similar to that which is sought by the applicant.
(3)
The Zoning Officer, at his discretion, may hold any meetings
and/or hearings to solicit information or argument pertinent to the
request for accommodation.
(4)
The Zoning Officer's decision shall be in writing and state
the reasons for the decision, including references to the specific
sections of this chapter, and any other relevant and related chapters
of the Code of the Borough.
(5)
The Zoning Officer shall issue his written decision to the applicant
and the Borough within 30 days of filing of the request for accommodation.
(6)
A request for reasonable accommodation should be directed in
the first instance to the Zoning Officer. In considering a request
for reasonable accommodation, the Zoning Officer shall, with the advice
of the counsel of the Borough Solicitor and/or Borough Engineer, apply
the following criteria:
(a)
Whether the applicant is handicapped or disabled within the
meaning of the Federal Fair Housing Act Amendments and/or the Americans
with Disabilities Act.
(b)
The degree to which the accommodation sought is related to the
handicap or disability of the applicant.
(c)
A description of hardship, if any, that the applicant will incur
should the request for reasonable accommodation being sought not be
granted.
(d)
The extent to which the requested accommodation is necessary
to afford the applicant opportunities equal to a nonhandicapped or
nondisabled person to use and enjoy the dwelling, building or structure
in question.
(e)
The extent to which the proposed accommodation may impact other
property owners in the immediate vicinity.
(f)
The extent to which the proposed accommodation may be consistent with or contrary to the zoning purposes of promoted by this Chapter, the most recent version of the Paxtang Borough Comprehensive Plan, and/or other applicable plans adopted by Paxtang Borough, and the community development objectives set forth in Article I of this chapter relating to purpose of enactment.
(g)
The extent to which the requested accommodation would impose
financial and administrative burdens upon the Borough.
(h)
The extent to which the requested accommodation would impose
an undue hardship upon the Borough.
(i)
The extent to which the accommodation would require a fundamental
alteration in the nature of the Borough's regulatory policies, objectives
and regulations.
(j)
The extent to which the requested accommodation would result
in a subsidy, privilege or benefit not available to nonhandicapped
or nondisabled persons.
(k)
The permanency of the requested accommodation and the conditions
under which such accommodation will be removed, terminated and/or
discontinued when it is no longer needed to provide handicapped or
disabled persons with equal opportunity to use and enjoy the dwelling,
building or structure in question.
A.
A zoning permit indicates that a zoning application complies with this chapter to the best knowledge of the Zoning Officer or his designee. No zoning permit or certificate of use and occupancy shall be granted by him for any purpose except in compliance with the literal provisions of this chapter. The Zoning Officer may be authorized to institute enforcement proceedings as set forth in this Article XVII relating to enforcement, violations and penalties.
B.
A zoning permit is required to be issued prior to the start of any
of the following activities:
(1)
Use, occupation, erection, construction, reconstruction, addition,
conversion, alteration, movement, placement, or extension (vertical
or horizontal) of any structure or building.
(2)
Change in the type of use and expansion of the use of a structure,
building and/or area of land, including nonconformities.
(3)
Creation or establishment of a new use of a structure and/or
area of land.
(4)
Other activities required to have a permit and/or approval by
this chapter.
(5)
No zoning permit shall be required for repairs or routine maintenance
of any structure, building, or land provided such repairs or maintenance
do not change the use or the exterior dimensions of the structure,
building, or otherwise violate the provisions of this chapter.
C.
The Borough may, at its option, issue combined or separate building
permits and zoning permits, and related certificates of use and occupancy,
and may utilize a single or separate application for the permits.
D.
The only determination by the Zoning Officer that shall be official
shall be a written determination after the Zoning Officer receives
a duly submitted written official application.
E.
Any zoning permit shall be issued or denied within 90 days from the
date of application.
G.
In all instances in which the Zoning Officer expresses a reasonable
doubt as to the ability of a proposed use to meet all of the above-described
requirements, it will be incumbent upon the applicant to furnish adequate
evidence in support of his application. If such evidence is not presented,
the zoning permit may be denied.
H.
Application for a zoning permit shall be made by the owner or authorized
agent of any building, structure or land; provided, however, that
if the application is made by a person other than the owner, it shall
be accompanied by a written authorization of the owner that the proposed
work is authorized by the owner. The full names and addresses of the
owner, applicant and responsible officers, if the owner is a corporate
body, shall be stated in the application.
I.
The Zoning Officer may call upon other Borough staff and/or appointed
consultants in the review of submitted materials for applications.
J.
The Zoning Officer may revoke a permit or approval issued under the
provisions of this chapter in case of any false statement or misrepresentation
of fact in the application or plans on which the permit or approval
was based or for any other cause set forth in this chapter.
K.
Where a zoning permit is required by this chapter, but the work is
commenced or changed prior to obtaining such permit, and after notice
by the Borough, the fees set by ordinance or resolution of the Paxtang
Borough Council for such permit shall be doubled. The doubling of
the permit fee shall be required to reflect the additional expense
incurred by the Borough resulting from the need to inspect the property,
respond to any complaints, issue any enforcement notices, or process
the application as soon as it is received. The payment of such increased
permit fees shall not relieve any person from complying with all requirements
of this chapter or any other applicable Borough chapters, ordinances,
regulations or from any penalties or enforcement actions authorized
by this chapter.
L.
Issuance of permits. Upon receiving the application, the Zoning Officer
shall examine the same within the required time frame set forth in
this subsection after filing. If the application or plans do not conform
to the provisions of all applicable local laws, the Zoning Officer
shall reject such application in writing, stating the reasons therefor.
The Zoning Officer shall inform the applicant of his right to appeal
to the Zoning Hearing Board in the event such application is rejected.
If satisfied that the proposed work and/or use conforms to the provisions
of this chapter and all laws and ordinances applicable thereto, and
that the zoning permit as required herein has been applied for, the
Zoning Officer shall issue a permit therefor to the maximum extent
feasible but not later than 90 days from receipt of the application.
M.
Reconsideration of application. An applicant whose request for a
zoning permit has been denied by the Zoning Officer may make a later
application for a permit, provided all deficiencies which were the
basis for the prior denial of the permit have been eliminated. Additional
fees may apply as set by the Paxtang Borough Council.
N.
Expiration of zoning permit. Should the applicant fail to commence
work within six months of the date of issuance of the zoning permit,
the permit shall expire; provided, however, that the same may be extended
one time for six additional months, upon written request by the applicant
at least 30 days prior to the permit expiration date, and upon subsequent
approval by the Zoning Officer.
O.
Compliance with this chapter. The permit shall be a license to proceed with the work and should not be construed as authority to violate, cancel or set aside any of the provisions of this chapter, except as stipulated by the Zoning Hearing Board. This shall not relieve the applicant from obtaining any required building permit approvals as required under Chapter 160 of this Code, relating to buildings.
P.
Compliance with permit and plot/site plan. All work or uses shall
conform to the approved application and plans for which the permit
has been issued as well as the approved plot/site plan.
Q.
Display of zoning permit. All approved zoning permits shall be prominently
displayed on the subject property during construction, renovation,
reconstruction, repair, remodeling or the conduct of other site improvements.
Such permit displays shall occur within five days of permit issuance
or prior to the commencement of actual work on the site, whichever
occurs first. Such permit display shall be continuous until the site
receives its certificate of use and occupancy.
R.
Inspections. Inspections of the property in question by the Zoning
Officer or other duly appointed official may be required at various
intervals during the construction, renovation, reconstruction, repair,
remodeling or the conduct of other site improvements process. By submitting
an application for a zoning permit, the landowner or applicant authorizes
the Borough to perform such inspections as required.
A.
It shall be unlawful to use and/or occupy any structure, sign, land
area or portion thereof for which a zoning permit is required until
a certificate of use and occupancy for such activity has been issued
by the Zoning Officer.
B.
The Borough staff may permit the building permit and zoning permit
application to serve as the application for the certificate of use
and occupancy.
C.
The certificate of use and occupancy shall only be issued by the
Zoning Officer if the Zoning Officer determines that the activity
complies with this chapter, to the best knowledge of the Zoning Officer.
D.
The applicant shall keep a copy of the certificate of use and occupancy
available for inspection.
E.
Upon request of the applicant, the Zoning Officer may issue a temporary
certificate of use and occupancy. Such temporary certificate may permit
an activity to occur in all or part of a structure or on all or part
of the land before the entire work covered by the zoning permit has
been completed.
(1)
However, such temporary certificate shall only be issued if
the applicant proves to the Zoning Officer that the activity or occupancy
can occur safely without endangering public health or safety.
(2)
The temporary certificate shall establish in writing a maximum
time period under which it is valid. A six-month maximum time period
shall apply if not otherwise specified.
(3)
Failure to receive a permanent certificate of use and occupancy
within such time period shall be a violation of this chapter.
(4)
The temporary certificate may be conditioned upon compliance
with certain specific requirements within certain time periods.
F.
The Zoning Officer shall inspect any structure, building or land within 15 days upon notification that the proposed work that was listed under a zoning permit has been completed, and if satisfied that the work is in conformity and compliance with the work listed in the issued permit and all other pertinent laws, he shall issue a certificate of use and occupancy for the intended use listed in the original application. Where a building permit is required under Chapter 160 of this Code, relating to buildings, a certificate of use and occupancy shall not be issued until a final inspection by the Building Code Official is complete and found to be satisfactory.
A.
A zoning permit for a temporary use or structure (including signs)
may be issued by the Zoning Officer for any of the following:
(1)
Customary, routine and accessory short-term special events,
provided that only a well-established nonprofit organization or a
permitted place of worship proposing a temporary use demonstrates
clearly that the proposed use will primarily serve a charitable, public
service or religious purpose in order to be eligible to receive approval
for commercial or business type activities in a zoning district where
the commercial or business use would not otherwise be permitted;
(2)
Temporary storage and office trailers that are necessary to
serve on-site construction, while such construction is actively underway;
B.
Time period. The Zoning Officer shall state a reasonable maximum time period on the temporary permit. If no time limit is stated or otherwise specifically provided in Article XII of this chapter, then a one-hundred-eighty-day maximum period shall apply. A temporary permit may be renewed not more than one additional time beyond the initial approval, for just cause.
A.
Use permitted by right. The Zoning Officer shall issue a zoning permit
under this chapter in response to an application for a use that is
"permitted by right" if it meets all of the requirements of this chapter.
B.
Special exception use. A zoning permit under this chapter for a use
requiring a special exception shall be issued by the Zoning Officer
only in response to a written approval by the Zoning Hearing Board,
following a hearing, and compliance with any conditions set by the
Zoning Hearing Board and any conditions required by this chapter.
C.
Conditional use. A zoning permit under this chapter for a use requiring
a conditional use shall be issued by the Zoning Officer only in response
to a written approval by the Paxtang Borough Council, following a
hearing, and compliance with any conditions set by the Paxtang Borough
Council and any conditions required by this chapter.
D.
Application requiring a variance. A permit under this chapter for
a use requiring a variance shall be issued by the Zoning Officer only
in response to a written approval by the Zoning Hearing Board, following
a hearing, and in compliance with any conditions set by the Zoning
Hearing Board.
A.
Submission. All applications for a zoning permit shall be made in
writing on a form provided by the Borough. Such completed application,
with required fees, shall be submitted to a designated Borough official.
B.
Application information. Any application under this chapter shall
include the following information, unless the Zoning Officer determines
such information is unnecessary to determine compliance with this
chapter:
(1)
Address of the lot.
(2)
Name and address of the applicant and of the owner of the property,
if different from the applicant.
(3)
Description of the proposed use of the property.
(4)
All other applicable information listed on the official Borough
application form.
(5)
Such additional information that the Zoning Officer may determine
is reasonably necessary to determine compliance with this chapter.
(6)
Applications for zoning and/or building permits involving the construction of new principal buildings or additions/expansions to existing principal buildings, etc., in the Development Compatibility Standards Overlay Zoning District (DCSO) shall be submitted with the information required in Article XI of this chapter relating to the Development Compatibility Standards Overlay Zoning District (DCSO).
C.
Plot/site plan. The applicant shall submit a minimum of two copies
of a plot/site plan with the application. The plot/site plan shall
be drawn to scale and show the following:
(1)
The approximate layout of the lot, with lot width, lot area
and other applicable dimensional standards and requirements.
(2)
The total number of lots, units of occupancy, density and proposed
land use(s). If multiple land uses are proposed, the location of each
land use shall be indicated.
(3)
The approximate location and configuration of existing and proposed
buildings, structures, parking compounds, loading areas, streets,
access drives, driveways, alleys, sidewalks, easements and general
stormwater management facilities and locations, with existing features
clearly distinguished from proposed features.
(4)
Setback lines and yards with notes showing the dimensions of
all structures and buildings from lot lines and street rights-of-way.
(5)
Location of any watercourses and any one-hundred-year floodplain.
D.
Application for zoning permits for nonresidential uses shall include
the following, unless the Zoning Officer determines such information
is unnecessary to determine compliance with this section:
(1)
A location map showing the tract to be developed, zoning district
boundaries, adjoining tracts, significant natural features including
wetlands, stands of trees, streams, etc., and streets for a distance
of 200 feet from all tract boundaries;
(2)
A plot/site plan, certified by a qualified professional land
surveyor, engineer or landscape architect licensed and registered
to practice in the Commonwealth of Pennsylvania, of the lot, showing
the location of all existing and proposed buildings, structures, access
drives, driveways, circulation patterns, curb cuts and lot access,
parking and loading facilities, screening, fences and walls, buffer
yards, waste disposal or other methods of sewage disposal, other construction
and development features on the lot, and the location of all topographical
features;
(3)
A hours of operation and management plan as required in Article XII of this chapter relating to hours of operation and management plan, as applicable.
(4)
A schematic architectural drawing of the principal building's
front facade(s).
E.
Areas subject to flooding. If the proposed development, excavation or construction is located within an area subject to Article XI of this chapter relating to the Floodplain Overlay Zoning District (FPO) and to Chapter 220 of this Code, relating to floodplain management, the information set forth in the applicable sections shall accompany all applications.
F.
The Borough building code ordinance. Where the proposed use is regulated under Chapter 160 of this Code, relating to buildings, the applicant may submit an application for a building permit concurrently with the zoning permit. A zoning permit will not be issued until satisfactorily meeting the requirements of Chapter 160 of this Code, relating to buildings.
A.
At least one copy of each zoning permit application and any other
zoning approvals shall be retained in the Borough files.
B.
PennDOT permit. Where necessary for access onto a state-owned street
or road, a Borough zoning or building permit shall be automatically
conditioned upon issuance of a PennDOT Highway Occupancy Permit.
A.
Revocation. The Zoning Officer shall revoke, withhold or suspend
a permit or approval issued under the provisions of this chapter in
the case of one or more of the following:
(1)
Any false statement or misrepresentation of fact in the application
or on the plans on which the permit or approval was based. (Note:
Title 18 Pa.C.S.A., the Pennsylvania Crimes and Offenses Code, provides
for penalties for providing false information to a municipal employee
in the carrying out of his duties).
(2)
Upon violation of any condition lawfully imposed by the Zoning
Hearing Board for a special exception use or a variance.
(3)
Upon violation of any condition lawfully imposed by the Paxtang
Borough Council for a conditional use.
(4)
Any work being accomplished or use of land or structures in
such a way that does not comply with this chapter or an approved plot/site
plan or approved permit application.
(5)
Any other just cause set forth in this chapter.
B.
Appeals. A party with legitimate standing, or as otherwise provided
by state law, may appeal decisions made under this chapter within
the provisions of the MPC, as amended. Such appeal shall occur within
the time period established by the MPC, as amended.
If an application under this chapter is also regulated by Chapter 370 of this Code, relating to subdivision and land development, then any permit or approval under this chapter (the Zoning Ordinance) shall automatically be conditioned upon compliance with Chapter 370 of this Code, relating to subdivision and land development. However, if the granting of a variance, special exception or conditional use is necessary, such approval shall be obtained prior to submitting an application for subdivision and/or land development approval:
A.
Example 1: If an applicant applies for a permit for a single-family
detached dwelling on a proposed new lot, the zoning and building permit
for such dwelling shall not be valid until after the lot is granted
final subdivision and land development approval and the lot is officially
recorded by the Dauphin County Recorder of Deeds.
A.
After receiving a proper application, the Zoning Officer, within the prescribed time frames set forth in this Article XVII relating to Permits and Certificates, shall either:
B.
The only determination by the Zoning Officer that shall be official
shall be a written determination after the Zoning Officer receives
a duly submitted written official application.
C.
Unless other approvals are required prior to the issuance of a permit,
after the permit under this chapter has been issued the applicant
may undertake the action specified in the permit, in compliance with
other Borough codes and ordinances. However, it is recommended that
applicants wait 30 days to begin construction if there is a possibility
of an appeal by another party to have the permit revoked. Any commencement
of construction or a use within this thirty-day appeal period shall
be at the risk of the applicant.
A.
Minimum requirements. Where more than one provision of this chapter
controls a particular matter, the provision that is more restrictive
upon uses, structures and buildings shall apply. The provisions of
this chapter are in addition to any other applicable Borough code
or ordinance.
B.
Interpretation of this chapter text and boundaries.
(1)
The Zoning Officer shall literally apply the wording of this chapter and the location of all zoning district boundaries to applications, see Article III of this chapter relating to zoning district boundaries. In any case, the Zoning Officer may also request an advisory opinion from the Borough Solicitor and/or Borough Engineer, or the Zoning Hearing Board Solicitor, to aid in the Zoning Officer's determination.
(2)
If an applicant disagrees with the Zoning Officer's determination
and believes that the chapter should be interpreted in the applicant's
favor, the applicant may appeal to the Zoning Hearing Board.
All of the enforcement, violations and penalties provisions
of the MPC, as amended, are hereby incorporated into this chapter
by reference.
A.
Violations. Any person who shall commit or who shall permit any of
the following actions violates this chapter:
(1)
Failure to secure a zoning permit prior to pursuing any activity
listed in this article relating to permits and certificates.
(2)
Placement of false statements on or omitting relevant information
from an application for a zoning permit.
(3)
Undertaking any action in a manner which does not comply with
an approved zoning permit.
(4)
Violation of any conditions imposed by a decision of the Zoning
Hearing Board in granting a variance, special exception or other approval.
(5)
Violation of any condition imposed by a decision of the Borough
Council in granting a conditional use.
B.
Causes of action; enforcement; remedies.
(1)
Enforcement. If it appears to the Borough that a violation of
this chapter has occurred, the Borough shall initiate enforcement
proceedings by sending an enforcement notice. Prior to sending an
official enforcement notice, the Zoning Officer may at his option
informally request compliance.
(2)
Enforcement notice. The enforcement notice shall be sent to
the owner of record of the parcel on which the violation has occurred,
to any person who has filed a written request to receive enforcement
notices regarding that parcel, and to any other person requested in
writing by the owner of record. If the owner of record of the parcel
on which the violation has occurred is not to whom the zoning permit
was issued, then the enforcement notice shall also be sent to the
person(s) to whom the zoning permit was granted. An enforcement notice
shall state the following, at minimum:
(a)
The name of the owner of record and any other person against
whom the Borough intends to take action.
(b)
The location and address of the property in violation.
(c)
The specific violation with a description of the requirements
which have not been met, citing in each instance the applicable provisions
of this chapter.
(d)
The date before which the steps for compliance shall be commenced
and the date before which the steps shall be completed.
(e)
That the recipient of the notice has the right to appeal to
the Zoning Hearing Board within a prescribed period of time in accordance
with procedures set forth in this chapter.
(f)
That failure to comply with the notice within the time specified,
unless extended by appeal to the Zoning Hearing Board, constitutes
a violation, with possible sanctions clearly described.
(3)
Evidence and fees. In any appeal of an enforcement notice to
the Zoning Hearing Board, the Borough shall have the responsibility
of presenting its evidence first. Any filing fees paid by a party
to appeal an enforcement notice to the Zoning Hearing Board shall
be returned to the appealing party by the Borough if the Zoning Hearing
Board, or any court in a subsequent appeal, rules in the appealing
party's favor.
(4)
Cause of action. If the enforcement notice is not complied with
within the specified time period, the Zoning Officer shall notify
the Paxtang Borough Council. With the consent of the Paxtang Borough
Council, the Borough Solicitor or other officer of the Borough may
institute any appropriate action or proceeding to prevent, restrain,
correct or abate such building, structure, landscaping or land, or
to prevent in or about such premises, any act, conduct, business or
use constituting a violation.
(5)
Violations and penalties. Any person, partnership or corporation
who or which has violated or permitted the violation of the provisions
of this chapter shall, upon being found liable therefor in a civil
enforcement proceeding commenced by the Borough, pay a judgment of
not more than $500 plus all court costs, including the reasonable
attorney's fees incurred by the Borough as a result thereof. No judgment
shall commence or be imposed, levied or be payable until the date
of the determination of a violation by the Magisterial District Judge.
If the defendant neither pays nor timely appeals the judgment, the
Borough may enforce the judgment pursuant to the applicable rules
of civil procedure. Each day that a violation continues shall constitute
a separate violation, unless a Magisterial District Judge determining
that there has been a violation further determines that there was
a good faith basis for the person, partnership or corporation violating
this chapter to have believed that there was no such violation, in
which event there shall be deemed to have been only one such violation
until the fifth day following the date of the determination by the
Magisterial District Judge, and thereafter each day that a violation
continues shall constitute a separate violation. All judgments, costs
and reasonable attorney's fees collected for the violation of this
chapter shall be paid over to the Borough. Imprisonment shall not
be authorized by this chapter.
The Borough Council may establish fees for the administration
of this chapter. All fees shall be determined by a schedule that is
made available to the general public. The Borough Council may reevaluate
the fees schedule and make necessary alterations to it. Such alterations
shall not be considered an amendment to this chapter and may be adopted
at any public meeting of the Paxtang Borough Council.
[1]
Editor's Note: The current Schedule of Fees is on file in
the Borough office and on the Borough's website.
All of the amendment provisions of the MPC, as amended, are
hereby incorporated into this chapter by reference.
A.
Power of amendment. The Borough Council may from time to time amend, supplement, change or repeal this chapter, including the Official Zoning Map listed in Article III of this chapter. Any amendment, supplement, change or repeal may be initiated by the Borough Planning Commission, the Paxtang Borough Council or by a petition to the Borough Council by an interested party;
B.
Hearing and enactment procedures for zoning amendments. Before conducting
any hearing and considering enacting any amendment, supplement, change
or repeal to this chapter, including any petitions for text and rezonings
or map changes, the Borough shall comply with the procedures and time
frames established by the MPC, as amended.
(1)
Public notice. Before conducting a public hearing, the Paxtang
Borough Council shall provide public notice as follows:
(a)
The notice shall be published once each week for two successive
weeks in a newspaper of general circulation in the Borough. Such notice
shall state the time and place of the hearing and the particular nature
of the matter to be considered at the hearing. The first publication
shall not be more than 30 days and the second publication shall not
be less than seven days from the date of the hearing. Publication
of the proposed amendment shall include either the full text thereof
or the title and brief summary, prepared by the municipal solicitor
and setting forth all the provisions in reasonable detail.
(b)
For Official Zoning Map amendments, public notice shall also
include the posting of a sign at conspicuous locations along the perimeter
of the subject property; these sign(s) shall be posted at least one
week prior to the hearing and will exhibit the nature, date, time,
municipality and location of the hearing. In addition to the requirement
that notice be posted on the subject property, where the proposed
amendment involves a Zoning Map change, notice of the public hearing
shall be mailed by the Borough at least 30 days prior to the date
of the hearing by first class mail to the addresses to which real
estate tax bills are sent for all real property located within the
area being rezoned, as evidenced by tax records within the possession
of the Borough. The notice shall include the location, date and time
of the public hearing. The provisions of this section shall not apply
when the rezoning constitutes a comprehensive rezoning.
(c)
For curative amendments, public notice shall also indicate that
the validity of this chapter and/or map is in question and shall give
the place where and the times when a copy of the request, including
any plans, explanatory material or proposed amendments, may be examined
by the public.
(d)
If after any public hearing held upon an amendment the proposed
amendment is changed substantially or is revised to include land previously
not affected by it, the Paxtang Borough Council shall hold another
public hearing, pursuant to public notice, before proceeding to vote
on the amendment.
(2)
Enactment notice. In addition to the public notice requirements
defined herein, the Paxtang Borough Council shall publish a reference
to the time and place of the meeting at which passage of this chapter
or amendment will be considered and a reference to a place within
the Borough where copies of the proposed chapter or amendment may
be examined without charge or obtained for a charge not greater than
the cost thereof. Enactment notice shall be published at least once
in one newspaper of general circulation in the Borough not more than
60 days nor less than seven days prior to passage. The published content
of the enactment notice shall be the same as that required for public
notice described in the preceding subsection.
(3)
Borough Planning Commission referrals. For amendments proposed
by interested parties other than the Borough Planning Commission,
the Paxtang Borough Council shall submit each amendment at least 30
days prior to public hearing to the Borough Planning Commission for
review and comment. The Borough Planning Commission shall submit a
report of its review, together with any recommendations, to the Paxtang
Borough Council within 45 days from the date of said referral. The
recommendation of the Borough Planning Commission may include a specific
statement as to whether or not the proposed amendment is in accordance
with the intent of this chapter and the most recent version of the
Paxtang Borough Comprehensive Plan, and/or other applicable plans
adopted by Paxtang Borough. The Paxtang Borough Council cannot act
upon the amendment until it has received a recommendation from the
Borough Planning Commission; however, should the Borough Planning
Commission fail to submit its recommendation within 45 days, the Paxtang
Borough Council may proceed without its recommendation.
(4)
Dauphin County Planning Commission referrals. All proposed amendments
shall be submitted to the Dauphin County Planning Commission at least
30 days prior to public hearing on such amendments. The Dauphin County
Planning Commission may submit recommendations to the Paxtang Borough
Council within 30 days of such referral. The Paxtang Borough Council
cannot act upon the amendment until it has received a recommendation
from the Dauphin County Planning Commission; however, should the Dauphin
County Planning Commission fail to submit its recommendation within
30 days, the Paxtang Borough Council may proceed without its recommendation;
(5)
Adjournment of public hearing. If during the public hearing
process the Borough needs additional time to understand the proposal,
inform the public, receive public comment, and/or render a decision,
it may adjourn the public hearing to a specific time and place.
(6)
Within 30 days after enactment, a copy of the amendment to this
chapter shall be forwarded to the Dauphin County Planning Commission;
C.
Amendment initiated by a petition from an interested party.
(1)
All petitions for amendment, supplement, change or repeal for
a portion of this chapter shall include but not be limited to:
(a)
A statement of why proposed amendment would be in the best interests
of the Borough.
(b)
A statement of how the proposed amendment is in accordance with
the intent of this chapter.
(c)
A statement of how the proposed amendment furthers the objectives
of the most recent version of the Paxtang Borough Comprehensive Plan
and/or other applicable plans adopted by Paxtang Borough.
(d)
All fees established by Paxtang Borough Council shall be paid
upon the filing of such petition for change and for the purpose of
defraying the costs of the proceedings prescribed herein.
(e)
The Borough reserves the right to require duplicate sets of
petition materials and request additional information in order to
evaluate the applicability of the petition.
(2)
In addition to the requirements and procedures set forth in this Article XVII relating to amendments, including specific time frames and county planning reviews, petitions involving rezoning or map change amendments shall also be processed in accordance with the following:
(a)
Purpose of rezoning or map change procedures and requirements.
[1]
The purpose of these rezoning or map change procedures and requirements
is to protect the safety, capacity and efficiency of the Borough's
existing infrastructure systems; to maintain fiscal responsibility;
and to uphold the objectives of the most recent version of the Paxtang
Borough Comprehensive Plan and/or other applicable plans adopted by
Paxtang Borough.
[2]
Borough rezoning or map change recommendations shall be based
on the projected beneficial and/or detrimental effects not only on
the immediate neighborhood but also on the Borough as a whole.
(b)
Request for rezoning or map change. All requests for rezoning
or map change shall be accompanied by a package of the plans, analyses
and reports required below to demonstrate the compatibility of a rezoning
or map change request.
(c)
Review of request for rezoning or map change package.
[1]
Upon receipt of a request for rezoning or map change package,
the Zoning Officer will review the package for completeness. If the
Zoning Officer finds the submission to be incomplete or insufficient,
the rezoning or map change request package will be returned to the
applicant. When the rezoning or map change request package is found
to be complete by the Zoning Officer, one copy shall be forwarded
to each member of the Paxtang Borough Council, Borough Planning Commission
and the Dauphin County Planning Commission. As part of the rezoning
or map change request package, the Borough shall consider the motivation
and implications of each plan, analysis and report.
[2]
The Borough shall review and act on the rezoning or map change
request in compliance with the following procedural guidelines:
[a]
The Borough shall decide if the proposed rezoning
or map change request is or is not generally consistent with the most
recent version of the Paxtang Borough Comprehensive Plan and/or other
applicable plans adopted by Paxtang Borough.
[b]
If the rezoning or map change request is found
to be generally consistent with the most recent version of the Paxtang
Borough Comprehensive Plan and/or other applicable plans adopted by
Paxtang Borough, the Borough shall consider any projected beneficial
and/or detrimental effects not only on the immediate neighborhood
but also on the Borough as a whole.
[c]
The Paxtang Borough Council shall render a decision
in favor or not in favor of the rezoning or map change request proposal.
The Borough shall compose a brief summary explanation of its decision
and forward the decision and explanation to the Zoning Officer.
(d)
Rezoning or map change request criteria.
[1]
There are two categories of rezoning or map change requests:
minor and major. Minor and major rezoning or map change requests are
differentiated based on the size of the area to be rezoned and the
anticipated fiscal, physical, environmental and social impacts not
only on the immediate neighborhood but also on the Borough as a whole.
[2]
Minor rezoning or map change requests. Minor rezoning or map
change requests are expected to have a lesser impact on the traffic,
fiscal resources and existing physical and environmental character
of the Borough. The following situations constitute eligibility for
the minor application:
[3]
Major rezoning or map change requests. Any rezoning project that does not meet either of the criteria in Subsection C(2)(d)[2] is a major application.
(e)
Rezoning or map change request package. Plans, analyses and
reports.
[1]
All rezoning or map change request shall include a signature
by at least one record owner of the property in question, whose signature
shall be notarized attesting the truth and correctness of all the
facts and information presented in the petition.
[2]
Minor rezoning or map change requests. Plans, analyses and reports
required to be submitted as part of a minor rezoning or map change
requests shall include a scaled plot/site plan certified by a qualified
professional land surveyor, engineer or landscape architect licensed
and registered to practice in the Commonwealth of Pennsylvania and
shall be submitted in accordance with the following:
[a]
Location and identification.
[i]
The name and address of the owner(s) of the tract,
or authorized agent, the developer and the firm that prepared the
plan.
[ii]
A North arrow, a graphic scale and a written scale.
[iii]
A location map, drawn to a scale of a minimum
of one inch equals 2,000 feet, relating the subdivision and/or development
to at least two intersections of street center lines. The approximate
distance to the intersection of the center lines of the nearest improved
street intersection shall be identified.
[iv]
If the tract of land is located within 200 feet
of a Borough or zoning district boundary line(s), the location of
such boundary shall be shown and labeled accordingly.
[v]
The source of title, including the deed, lot and
plan of record number, to the subject tract.
[vi]
Tax parcel identification number(s) for the subject
tract.
[b]
Existing features.
[i]
Existing contours. Dauphin County Geographic Information
System (GIS) topography may be accepted.
[ii]
The following items, when located within the subject
tract, including: the name and approximate location and approximate
dimensions of existing rights-of-way and/or easements relating to
streets, cartways, access drives, driveways, alleys, sidewalks, railroads,
public utilities, stormwater management facilities, telecommunications,
electric, gas and oil transmission lines. The approximate location
of building and development features, including buildings and structures,
parking and loading areas, circulation patterns, curb cuts, lot access,
parking stalls, screening, fences and walls, buffer yards, waste disposal
or other methods of sewage disposal, other features; and environmental
and topographic features, including, but not limited to, floodplains,
wetlands, mineral extraction sites, woodlands, habitats for threatened
and endangered species, solid waste disposal areas, historic resources,
cemetery or burial sites, archeological sites or areas with highly
erosive soils.
[iii]
When available, the following items when located
within 200 feet of the subject tract: the names of adjacent landowners;
names and approximate location and approximate dimensions of existing
rights-of-way and/or easements relating to streets, cartways, access
drives, driveways, alleys, sidewalks, railroads, public utilities,
stormwater management facilities, telecommunications, electric, gas
and oil transmission lines. The approximate location and general uses
of land, buildings, parking and loading areas, floodplains and wetlands.
[iv]
If applicable, existing and proposed protective
covenants running with the land.
[c]
Proposed features and plan information.
[i]
The total approximate acreage of the entire existing
tract.
[ii]
The zoning district and lot size and/or density,
and other requirements of the applicable zoning regulations.
[iii]
The approximate layout of the lot(s), with approximate
dimensions, setback lines, yards, etc.
[iv]
The total number of lots, units of occupancy,
density and proposed land use (if multiple land uses are proposed,
the location of each land use shall be indicated).
[v]
The approximate layout of streets, alleys and sidewalks
including cartway and right-of-way widths.
[vi]
The approximate location and configuration of
proposed uses, building and structures, parking and loading areas,
circulation patterns, curb cuts and lot access, parking stalls, screening,
fences and walls, buffer yards, waste disposal or other methods of
sewage disposal, general stormwater management facilities and locations,
easements, and other features.
[vii]
A note on the plan indicating the types of sewer
or water facilities to be provided.
[d]
A schematic architectural drawing of the principal
building's front facade(s).
[e]
Additional information. The Borough reserves the
right to request additional information as part of the rezoning or
map change request process in order to evaluate the applicability
of the rezoning or map change request.
[3]
Major rezoning or map change requests. Plans, analyses and reports
required to be submitted as part of a major rezoning or map change
requests shall include:
[a]
All of the plans, analyses and reports set forth
above for minor rezoning or map change requests.
[b]
Site conditions report. The applicant shall describe
the following existing characteristics about the site proposed for
development.
[i]
Total site acreage.
[ii]
Existing zoning district(s), land use(s) and covenants.
[iii]
Existing land characteristics, including general
topographic form, site accessibility, length of public road frontage,
pattern and density of vegetative cover, significant adjacent and
long-range views to and from the site, hydrological patterns.
[iv]
Relationship of proposed development to adjacent,
existing and proposed community facilities which serve or influence
the site; available utilities; number of lots and acreage; business
areas; playgrounds; main traffic thoroughfares; elementary and high
schools; and street improvements.
[v]
Reservations, if any, by the landowner and/or developer
of any area designed for use as public grounds shall be of suitable
size and location for designated uses.
[vi]
Land which is subject to flooding or subsidence
either shall be made safe for the purpose for which such land is proposed
to be used, or such land shall be set aside for use which shall not
endanger life or lot or further aggravate or increase existing menace.
[vii]
A copy of the option agreement or certificate
of title shall be submitted as evidence of the applicant's interest
in the lot.
[c]
Infrastructure demand statement. The infrastructure
demand statement shall be submitted to the Borough, containing the
following information:
[i]
Predevelopment data for overall demand.
[ii]
Estimated gallons of sanitary sewage created per
average day.
[iii]
Estimated gallons of potable water consumed/utilized
per average day.
[iv]
Estimated number of school-age children.
[v]
Estimated total residents, occupants, patrons and/or
employees, as applicable.
[e]
Fiscal impact analysis. An evaluation providing
the following information shall be completed:
[i]
Potential Borough and school district tax generation
of the proposed development.
[ii]
Population projections including the number of
school-aged children at build-out of the proposed development.
[iii]
Length of road to be dedicated to the Borough.
[iv]
Length of sewer and water lines to be dedicated
to the Borough.
[v]
The Borough will evaluate the proposed development
of the proposed zoning in relationship to the potential development
in the existing zoning.
[f]
Additional information. The Borough reserve the
right to request additional information as part of the rezoning or
map change request review and approval process in order to evaluate
the applicability of the rezoning or map change request, including
but not limited to:
[i]
Environmental impacts that are likely to be generated
(e.g., odor, noise, smoke, dust, litter, glare, vibration, electrical
disturbance, wastewater, stormwater, solid waste, etc.) and specific
measures employed to mitigate or eliminate any negative impacts.
[ii]
Traffic impact studies in accordance with Chapter 370 of this Code, relating to subdivision and land development; and/or
[iii]
Phase I Environmental Assessments.
D.
Curative amendments by a landowner or by the Paxtang Borough Council.
The procedures for curative amendments shall be in accordance with
the MPC, as amended.
E.
Authentication of Official Zoning Map. Whenever there has been a change in the boundary of a zoning district or a reclassification of the zoning district adopted in accordance with the above, the change on the Official Zoning Map listed in Article III of this chapter relating to Zoning Map shall be made and shall be duly certified by the designated Borough official and shall thereafter be refiled as part of the permanent records of the Borough.
All of the Zoning Hearing Board provisions of the MPC, as amended,
are hereby incorporated into this chapter by reference.
A.
Establishment and membership.
(1)
There shall be a Zoning Hearing Board, which shall consist of
three members who shall be appointed by resolution by the Paxtang
Borough Council. The membership of the Zoning Hearing Board shall
consist of residents of Paxtang Borough. Their 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 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 Borough nor shall any member be an employee of the Borough.
(2)
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 Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of this section, an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing 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. Alternates shall hold no other office in the Borough, including membership on the Borough Planning Commission and Zoning Officer. 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 the Zoning Hearing Board nor be compensated unless designated as a voting alternate member pursuant to this Article XVII.
(3)
Any member of the Zoning Hearing Board 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.
B.
Organization of Zoning Hearing 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 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 Zoning Hearing Board, as provided in Subsection D(2). If by reason of absence or disqualification of a member a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members of the Zoning Hearing Board to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board 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. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates. The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with codes or ordinances of the Borough and laws of the Commonwealth. The Zoning Hearing 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 upon request.
C.
Expenditures for services. Within the limits of funds appropriated by the Paxtang Borough Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Paxtang Borough Council. Alternate members of the Zoning Hearing Board may receive compensation, as may be fixed by the Paxtang Borough Council, for the performance of their duties when designated as alternate members pursuant to Subsection A, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members by the Paxtang Borough Council.
D.
Hearings.
(1)
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
(a)
Public notice shall be provided. In addition, the Zoning Hearing
Board shall notify in writing by mail the applicant, Zoning Officer
and other such persons, whether owners or tenants of property located
within 200 feet of the subject property for which the application
was submitted, and every other person or organization who shall have
registered with the Zoning Hearing Board for the purposes of receiving
such notices. Such mailed notices shall state the location of the
site and the nature of the request. It shall also state the time,
date and location of the proposed hearing. 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 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;
(c)
The first hearing before the Zoning Hearing Board or hearing
officer shall be commenced within 60 days from the date of receipt
of the applicant's application, unless the applicant has agreed in
writing to an extension of time. Each subsequent hearing before the
Zoning Hearing Board or hearing officer shall be held within 45 days
of the prior hearing, unless otherwise agreed to by the applicant
in writing or on the record. An applicant shall complete the presentation
of its case-in-chief within 100 days of the first hearing. Upon the
request of the applicant, the Zoning Hearing Board or hearing officer
shall assure that the applicant receives at least seven hours of hearing
within the 100 days, including the first hearing. Persons opposed
to the application shall complete the presentation of their opposition
to the application within 100 days of the first hearing held after
the completion of the applicant's case-in-chief. An applicant may,
upon request, be granted additional hearings to complete its case-in-chief,
provided the persons opposed to the application are granted an equal
number of additional hearings to complete their opposition to the
application, and provided the applicant is granted an equal number
of additional hearings for rebuttal.
(2)
The hearings shall be conducted by the Zoning Hearing Board,
or the Zoning Hearing Board may appoint any member or an independent
attorney as a 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 decisions
or findings by the Zoning Hearing Board and accept the decision or
findings of the hearing officer as final.
(3)
The parties to the hearing shall be the Borough, any person
affected by the application who has made timely appearance of record
before the Zoning Hearing Board, and any other person including civic
or community organizations permitted to appear by the Zoning Hearing
Board. The Zoning Hearing Board shall have power to require that all
persons who wish to be considered parties enter appearances in writing
on forms provided by the Zoning Hearing Board for that purpose.
(4)
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.
(5)
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.
(6)
Formal rules of evidence shall not apply, but irrelevant, immaterial,
and unduly repetitious evidence may be excluded.
(7)
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 by the Zoning Hearing Board if the transcript is ordered by
the Zoning Hearing Board or hearing officer or shall be paid by the
person appealing 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. In other
cases, the party requesting the original transcript shall bear the
cost thereof.
(8)
The Zoning Hearing 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 materials 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.
(9)
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. Where the application is contested or denied, each decision shall be accompanied by the findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of this 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 are final, the Zoning Hearing 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 Zoning Hearing Board prior to final decision or entry of findings, and the Zoning Hearing Board's decision shall be entered no later than 30 days after the report of the hearing officer. Except for challenges filed under Article IX of the MPC, as amended, where the Zoning Hearing 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 D of this section, 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 Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing Board shall give public notice of said decision with 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection D of this section. 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.
(10)
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 next business 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 Zoning Hearing 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.
(11)
Effect of Zoning Hearing Board's decision.
(a)
If the variance or special exception is granted or the issuance
of a permit is approved, or other action by the appellant is authorized,
the necessary permit shall be secured and the authorized action begun
within two years after the date when the variance or special exception
is finally granted or the issuance of a permit is finally approved
or the other action by the appellant is authorized, and the building
or alteration, as the case may be, shall be completed within three
years of said date. For good cause, the Zoning Hearing Board may at
any time, upon application in writing, extend either of these deadlines;
(b)
Should the appellant or applicant fail to obtain the necessary
permits within said two-year period or, having obtained the permit,
should he fail to commence work thereunder within such two-year period,
it shall be conclusively presumed that the appellant or applicant
has waived, withdrawn or abandoned his appeal or his application,
and all provisions, variances and permits granted to him shall be
deemed automatically rescinded by the Zoning Hearing Board;
(c)
Should the appellant or applicant commence construction or alteration
within said two-year period, but should he fail to complete such construction
or alteration within said three-year period, the Zoning Hearing Board
may, upon 10 days' notice in writing, rescind or revoke the granted
variance or special exception or the issuance of the permit or permits
or the other action authorized to the appellant or applicant, if the
Zoning Hearing Board finds that no good cause appears for the failure
to complete within such three-year period, and if the Zoning Hearing
Board further finds that conditions have so altered or changed in
the interval since the granting of the variance, permit or action
that revocation or rescission of the action is justified; and
(d)
As an alternative to the preceding, an applicant can request,
as part of the original application before the Zoning Hearing Board,
the granting of a timetable associated with the request which would
supersede the deadlines imposed. In so doing, the applicant shall
demonstrate that the times requested are logically related to normal
and expected progress of the project. In approving a timetable under
this section, the Zoning Hearing Board shall establish and bind a
definite time frame for issuance of a zoning permit and completion
of construction of the project.
E.
Zoning Hearing Board's functions. The Zoning Hearing Board shall
have the exclusive jurisdiction to hear and render decisions in the
following matters:
(1)
Substantive challenges to the validity of this chapter, except
those brought before the Borough Council pursuant to Section 916.1(a)(2)
of the MPC, as amended.
(a)
If a challenge heard by the Zoning Hearing Board is found to
have merit, the decision of the Zoning Hearing Board shall include
recommended amendments to the challenged chapter which will cure the
defects found. In reaching its decision, the Zoning Hearing Board
shall consider the amendments, plans and explanatory material submitted
by the landowner and shall also consider:
[1]
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities;
[2]
If the proposal is for a residential use, the impact of the
proposal upon regional housing needs and the effectiveness of the
proposal in providing housing units of a type actually available to
and affordable by classes of persons otherwise unlawfully excluded
by the challenged provisions of this chapter or Official Zoning Map;
[3]
The suitability of the site for the intensity of use proposed
by the site's soils, slopes, woodland, wetlands, floodplains, aquifers,
natural resources and other natural features;
[4]
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources and nature features;
the degree to which these are protected or destroyed; the tolerance
of the resources to development; and any adverse environmental impacts;
and
[5]
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(c)
The Zoning Hearing Board shall commence its hearings within
60 days after the request is filed unless the landowner requests or
consents to an extension of time.
(d)
The Zoning Hearing Board shall render its decision within 45
days after the conclusion of the last hearing. If the Board fails
to act on the landowner's request within this time limit, a denial
of the request is deemed to have occurred on the 46th day after the
close of the last hearing.
(2)
Challenges to the validity of this chapter, 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 this chapter.
(3)
Special exceptions as provided for in this chapter and subject
to all applicable requirements, including, but not limited to:
(a)
Filing requirements. In addition to the required zoning permit
information, each special exception application shall include the
following:
[1]
Ground-floor plans and elevations of proposed structures;
[2]
Names and address of abutting property owners, including properties
directly across a public right-of-way;
[3]
A scaled drawing (plot/site plan) of the site with sufficient
detail and accuracy to demonstrate compliance with all applicable
provisions of this chapter; and
[4]
A written description of the proposed use in sufficient detail
to demonstrate compliance with all applicable provisions of this chapter.
(b)
General criteria. Each applicant shall demonstrate compliance
with the following:
[1]
The proposed use shall be consistent with the purpose and intent
of this chapter;
[2]
The proposed use shall not detract from the use and enjoyment
of adjacent or nearby properties;
[3]
The proposed use will not substantially change the character
of the subject property's neighborhood;
[4]
Adequate public facilities are available to serve the proposed
use (e.g., schools, fire, police and ambulance protection, sewer,
water and other utilities, vehicular access, etc.);
[6]
The proposed use shall comply with those criteria specifically listed in Article XVI of this chapter. In addition, the proposed use shall comply with all other applicable regulations contained in this chapter; and
[7]
The proposed use will not substantially impair the integrity
of the most recent version of the Paxtang Borough Comprehensive Plan
and/or other applicable plans adopted by Paxtang Borough.
(c)
Conditions. The Zoning Hearing Board, in approving special exception
applications, may attach conditions considered necessary to protect
the public welfare and the purposes listed above, including conditions
which are more restrictive than those established for other uses in
the same zoning district. The conditions shall be enforceable by the
Zoning Officer, and failure to comply with such conditions shall constitute
a violation of this chapter.
(d)
Plot/site plan approval. Any plot/site plan presented in support of the special exception pursuant to Subsection E(1)(a)[3] shall become an official part of the record for said special exception. Approval of any special exception will also bind the use in accordance with the submitted plot/site plan; therefore, should a change in the plot/site plan be required as part of the approval of the use, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved plot/site plan shall require the obtainment of another special exception approval.
(4)
Variances. 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 Zoning Hearing
Board may, by rule, prescribe the form of application to the Zoning
Officer. The Zoning Hearing Board may grant a variance, provided that
all of the following findings are made where relevant in a given case:
(a)
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 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 zoning
district in which the property is located;
(b)
That because of such physical circumstances or conditions, there
is not a 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 reasonable use of the
property;
(c)
That such unnecessary hardship has not been created by the appellant;
(d)
That the variance, if authorized, will not alter the essential
character of the zoning district or neighborhood in which the property
is located, nor substantially or permanently impair the appropriate
use or development of adjacent property, and will not be detrimental
to the public welfare;
(e)
That the variance, if authorized, will represent the minimum
variance that will afford relief and will represent the least modification
possible of the regulations in issue;
(g)
Filing requirements. In addition to the required zoning permit,
each variance application shall include the following:
[1]
Ground-floor plans and elevations of existing and/or proposed
structures;
[2]
Names and addresses of adjoining property owners, including
properties directly across a public right-of-way;
[3]
A scaled drawing (plot/site plan) of the site with sufficient
detail and accuracy to demonstrate compliance with all applicable
provisions of this chapter; and
[4]
A written description of the proposed use in sufficient detail
to demonstrate compliance with all applicable provisions of this chapter.
(h)
Conditions. The Zoning Hearing Board, in approving variance
applications, may attach conditions considered necessary to protect
the public welfare and the purposes listed above, including conditions
which are more restrictive than those established for other uses in
the same zoning district. These conditions shall be enforceable by
the Zoning Officer and failure to comply with such conditions will
constitute a violation of this chapter.
(i)
Plot/site plan approval. Any site/plot plan presented in support of the variance pursuant to Subsection E(4)(g)[3] shall become an official part of the record for said variance. Approval of any variance will also bind the use in accordance with the submitted plot/site plan; therefore, should a change in the plot/site plan be required as part of the approval of the use, the applicant shall revise the plot/site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved plot/site plan shall require the obtainment of another variance approval.
(5)
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 and/or lot.
(6)
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.
(7)
Appeals from the Zoning Officer's determination under Section
916.2 (and any subsequent amendments) of the MPC, as amended.
(8)
Appeals from the determination of the Zoning Officer or Borough
Engineer in the administration of any land use ordinance with reference
to sedimentation and erosion control and/or stormwater management
for applications not involving a subdivision/land development.
F.
Parties appellant before the Zoning Hearing Board. Appeals under Subsection E(5), (6), (7) and (8) of this section and proceedings to challenge this chapter under Subsection E 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 or a special exception may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of such landowner. Any appeal shall state:
(1)
The name and address of the appellant and applicant;
(2)
The name and address of the landowner of the real estate to
be affected;
(3)
A brief description and location of the real estate to be affected
by such proposed change, together with a plot/site plan drawn to scale
with sufficient clarity to show the nature and character of the request;
(4)
A statement of the present zoning classification of the real
estate in question, the improvements thereon, and the present use
thereof; and,
(5)
A statement of the section of this chapter under which the request
may be allowed, and reasons why it should or should not be granted.
G.
Time limitations.
(1)
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 Zoning Officer or the
agency responsible for granting such approval 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 or 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.
(2)
The failure of anyone other than the landowner to appeal from an adverse decision by the Zoning Officer a challenge to the validity of this chapter or the Official Zoning Map listed in Article III of this chapter pursuant to Section 916.2 of the MPC, as amended, shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative preliminary approval.
H.
Stay of proceeding.
(1)
Upon filing of any proceeding referred to in Subsection F above, and during its pendency before the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such person to post bond as a condition to continuing the proceedings before the Zoning Hearing Board. 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. 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.
(2)
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 appellant 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 attorneys' fees incurred by the petitioner.
I.
Appeal. Any person, taxpayer or the Borough aggrieved by any decision
of the Zoning Hearing Board may, within 30 days after such decision
of the Zoning Hearing Board, seek review by the Court of Common Pleas
of such decision in the manner provided by the laws of the Commonwealth
of Pennsylvania and the MPC, as amended.
A.
Filing of conditional use. For any use permitted by conditional use,
a conditional use shall be obtained from the Paxtang Borough Council.
In addition to the information required on the zoning permit application,
the conditional use application shall show:
(1)
Ground-floor plans and elevations of proposed structures;
(2)
Names and address of abutting property owners, including properties
directly across a public right-of-way;
(3)
A scaled drawing (plot/site plan) of the site with sufficient
detail and accuracy to demonstrate compliance with all applicable
provisions of this chapter; and
(4)
A written description of the proposed use in sufficient detail
to demonstrate compliance with all applicable provisions of this chapter.
(5)
General criteria. Each applicant shall demonstrate compliance
with the following:
(a)
The proposed use shall be consistent with the purpose and intent
of this chapter;
(b)
The proposed use shall not detract from the use and enjoyment
of adjacent or nearby properties;
(c)
The proposed use will not substantially change the character
of the subject property's neighborhood;
(d)
Adequate public facilities are available to serve the proposed
use (e.g., schools, fire, police and ambulance protection, sewer,
water and other utilities, vehicular access, etc.);
(f)
The proposed use shall comply with those criteria specifically listed in Article XVI of this chapter. In addition, the proposed use shall comply with all other applicable regulations contained in this chapter; and
(g)
The proposed use will not substantially impair the integrity
of the most recent version of the Paxtang Borough Comprehensive Plan,
and/or other applicable plans adopted by Paxtang Borough.
B.
Conditions. The Borough Council, in approving conditional use applications,
may attach conditions considered necessary to protect the public welfare
and the purposes listed above, including conditions which are more
restrictive than those established for other uses in the same zone.
These conditions shall be enforceable by the Zoning Officer, and failure
to comply with such conditions shall constitute a violation of this
chapter.
C.
Plot/site plan approval. Any plot/site plan presented in support of the conditional use pursuant to Subsection A(1) of this section shall become an official part of the record for said conditional use. Approval of any conditional use will also bind the use in accordance with the submitted plot/site plan; therefore, should a change in the plot/site plan be required as part of the approval of the use, the applicant shall revise the plot/site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved plot/site plan shall require the obtainment of another conditional use approval;
D.
Hearing procedures.
(1)
Before voting on the approval of a conditional use, the Borough
Council shall hold a public hearing thereon, pursuant to public notice.
The Borough Council shall submit each such application to the Borough
Planning Commission at least 30 days prior to the hearing held upon
an application to provide the Borough Planning Commission an opportunity
to submit recommendations. If after any public hearing held upon an
application the proposed application is revised, the Paxtang Borough
Council shall hold another public hearing, pursuant to public notice,
before proceeding to vote on the application.
(2)
Public notice, as defined herein, shall be provided. In addition,
the Paxtang Borough Council shall notify in writing by mail the applicant,
Zoning Officer and other such persons whether owners or tenants of
property located within 200 feet of the subject property for which
the application was submitted, and every other person or organization
who shall have registered with the Borough for the purposes of receiving
such notices, and other persons as the Paxtang Borough Council shall
designate by ordinance, 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 ordinance or, in the absence of ordinance
provisions, by rules of the Paxtang Borough Council. In addition to
the written notice provided for herein, written notice of said hearing
shall be conspicuously posted on the affected tract of land at least
one week prior to the hearing.
(3)
The Borough Council may prescribe reasonable fees with respect
to hearings. Fees for said hearings may include compensation for the
secretary, notice and advertising costs, and necessary administrative
overhead connected with the hearing. The costs, however, shall not
include legal expenses, expenses for engineering, architectural or
other technical consultants, or expert witness costs.
(4)
The parties to the hearing shall be the Borough, any person
affected by the application who has made timely appearance of record
before the Paxtang Borough Council, and any other person, including
civic or community organizations permitted to appear by the Paxtang
Borough Council. The Borough Council shall have power to require that
all persons who wish to be considered parties enter appearance in
writing on forms provided by the Borough Council for that purpose.
(5)
The President, Vice President, or acting President of the Borough
Council shall have power to administer oaths and issue subpoenas to
compel the attendance of witnesses and the production of relevant
documents and paper, 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
and argument and cross-examine adverse witnesses on all relevant issues.
(7)
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
(8)
The Borough Council may keep a stenographic record of the proceedings.
The appearance fee for a stenographer shall be shared equally by the
applicant and the Paxtang Borough Council. The cost of the original
transcript shall be paid by the Borough Council if the transcript
is ordered by the Paxtang Borough Council, or shall be paid by the
person appealing the decision of the Borough Council, 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.
(9)
The Borough Council 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 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.
(10)
The hearing shall be conducted by the Paxtang Borough Council
or the Borough Council may appoint any member or an independent attorney
as a hearing officer. The decision or, where there is no decision,
the findings shall be made by the Paxtang Borough Council. However,
the appellant or the applicant, as the case may be, in addition to
the Borough, may, prior to the decision of the hearing officer, waive
decision or findings by the Borough Council and accept the decision
or findings of the hearing officer as final.
(11)
The Borough Council shall render a written decision or, when
no decision is called for, make written findings on the conditional
use application within 45 days after the last hearing before the Paxtang
Borough Council. Where the application is contested or denied, each
decision shall be accompanied by findings of fact or conclusions based
thereon, together with any reasons therefor. Conclusions based on
any provisions of this chapter or of any ordinance, rule or regulation
shall contain a reference to the provision relied on and the reasons
way the conclusion is deemed appropriate in the light of the facts
found.
(12)
Where the Borough Council fails to render the decision within the period required by this Article XVII or fails to commence, conduct or complete the required hearing as provided in Subsection E(2) of this section, 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 Borough Council to meet or render a decision as hereinabove provided, the Borough Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this Article XVII. If the Borough Council shall fail to provide such notice, the applicant may do so.
E.
Time limitation.
(1)
If a conditional use is granted, the necessary permit shall
be secured and the authorized action begun within two years after
the date when the conditional use is finally granted, and the building
or alteration, as the case may be, shall be completed within three
years of said date. For good cause, the Borough Council may at any
time, upon application in writing, extend either of these deadlines;
(2)
Should the appellant or applicant fail to obtain the necessary
permits within said two-year period or, having obtained the permit,
should he fail to commence work thereunder within such two-year period,
it shall be conclusively presumed that the appellant or applicant
has waived, withdrawn or abandoned his application, and all approvals
and permits granted to him shall be deemed automatically rescinded
by the Paxtang Borough Council;
(3)
Should the appellant commence construction or alteration within
said two-year period, but should he fail to complete such construction
or alteration within said three-year period, the Borough Council may,
upon 10 days' notice in writing, rescind or revoke the granted conditional
use, if the Borough Council finds that no good cause appears for the
failure to complete within such three-year period and if the Borough
Council further finds that conditions have altered or changed in the
interval since the granting of the conditional use such that revocation
or rescission of the action is justified; and,
(4)
As an alternative to the preceding, an applicant can request, as part of the original application before the Borough Council, the granting of a timetable associated with the request which would supersede the deadlines imposed in this Article XVII. In so doing, the applicant shall demonstrate that the times requested are logically related to normal and expected progress of the project. In approving a timetable under this section, the Borough Council shall establish and bind a definite time frame for the issuance of a zoning permit and for the completion of construction of the project.