A.
Conformance. Any activity regulated by this chapter shall only occur
or be undertaken and be continued in conformance with the requirements
of this chapter.
C.
Regulated activities. Any of the following activities or any other
activity or matter regulated by this chapter shall only be undertaken
after the required permit or approval has been obtained in full compliance
with this chapter:
D.
Repairs and maintenance. Ordinary repairs, structural strengthening,
facade improvements and maintenance to existing structures that do
not infringe upon a required setback may be made without a zoning
permit, provided such activity does not involve: 1) a change in use;
2) an expansion, construction or placement of a structure; 3) an increase
in the number of dwelling units or boardinghouse units; and/or 4)
any other activity regulated by this chapter.
A.
Principal permitted use. Within 90 days of receiving a proper and
complete application for a principal permitted use (permitted by right),
the Zoning Officer shall either:
B.
Reviews. Certain activities require review and/or approval of the
Zoning Hearing Board and/or of the Borough Council and/or the recommendation
of the Planning Commission. In such case, the Zoning Officer shall
not issue a zoning permit until such required review or approval occurs.
C.
Appeal. See § 400-81B, which describes processes to appeal actions of the Zoning Officer to the Zoning Hearing Board.
D.
Timing. After a zoning permit has been received by the applicant, the applicant may undertake the action permitted by the permit under this chapter, provided the work complies with other Borough 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. (See use permit process in § 400-78G.)
B.
Types of uses.
(1)
Principal permitted uses and accessory uses (permitted by right).
If a use is listed as a principal permitted or accessory use by this
chapter and meets the requirements of this chapter, the Zoning Officer
shall issue or deny a permit in response to a complete application.
(2)
Special exception use or application requiring a variance. A permit
under this chapter for a use requiring a special exception or variance
shall be issued by the Zoning Officer only upon the written order
of the Zoning Hearing Board after a hearing.
(3)
Conditional use. A permit under this chapter for a conditional use
shall be issued by the Zoning Officer only upon the written order
of the Borough Council, after the Planning Commission has been given
an opportunity to review the application.
C.
Applications.
(1)
Applications. Any request for a decision, interpretation or variance
by the Zoning Hearing Board, application for a conditional use or
for a permit under this chapter shall be made in writing on a form
provided by the Borough and in accord with the procedures established
by the Borough. Such completed application, with any required fees
and with any required site plans or other required information, shall
be submitted to the Borough employee responsible for processing such
application. The applicant is responsible to ensure that a responsible
Borough official notes the date of official receipt on the application.
(2)
Number of copies. Unless waived by the Zoning Officer, five copies
of a site plan shall be submitted if an application requires action
by the Zoning Hearing Board or Borough Council and two copies shall
be submitted if action by the Zoning Hearing Board or Borough Council
is not required.
(3)
Information required. Any application to the Zoning Officer, Zoning
Hearing Board, Planning Commission or Borough Council shall include
the following information.
(a)
In the case of an application involving the construction of any new structure or any addition to an existing structure, all of the information required in this § 400-78C shall be provided by the applicant. However, the Zoning Officer, Planning Commission, Borough Council, or the Zoning Hearing Board, as the case may be, may determine, as part of the review process, that certain information is not required for a particular application, and upon such determination, the specified information need not be provided by the applicant.
(b)
In the case of an application which does not involve the construction of any new structure or any addition to an existing structure, a narrative providing details of the project shall be provided as required by this section. However, a plot plan, as required by § 400-78C(3)(c)[6] which follows, shall not generally be required unless the Zoning Officer, Planning Commission, Borough Council or the Zoning Hearing Board, as the case may be, deems such plot plan necessary to evaluate and make a decision on the application. The Zoning Officer, Planning Commission, Borough Council or the Zoning Hearing Board, as the case may be, shall determine, as part of the review process, the type of information and level of detail of the plot plan if such plot plan is required.
(c)
In any case, the Zoning Officer, Planning Commission, Borough
Council or the Zoning Hearing Board, as the case may be, may require
any other additional information or any level of detail deemed necessary
to determine compliance with this chapter or to identify any impacts
of the proposed use.
[1]
Names and address of the applicant or appellant and the name
and address of the owner of the affected property.
[2]
A description of the existing and proposed use(s) of the property,
including numbers of dwelling units, minimum square feet of proposed
dwelling units, and number of proposed business establishments, if
any.
[3]
A description of any proposed nonresidential operations and
storage in sufficient detail to indicate potential nuisances and hazards
regarding noise, large truck traffic, glare, odors, dust, fire or
toxic or explosive hazards or other significant public health and
safety hazards.
[4]
If a principal nonresidential use is proposed within close proximity
to dwellings, a description of hours of operation and proposed methods
of storing garbage outdoors on site.
[5]
A listing of any specific sections of this chapters being appealed,
with the reasons for any appeal.
[6]
A plot plan legible in every detail and drawn to scale, but
not necessarily showing precise dimensions, and including the following
information:
[a]
Name of the development.
[b]
Name and address of landowner and/or land developer
(if corporation, give name of officers).
[c]
Location map.
[d]
North arrow, true or magnetic.
[e]
Graphic scale.
[f]
Written scale.
[g]
Date plot plan was completed.
[h]
Names of adjacent property owners and Tax Map numbers,
including those across adjacent roads.
[i]
Proposed and existing street and lot layout, including
street names and right-of-way widths.
[j]
Existing and proposed man-made and/or natural features:
[i]
Watercourses, lakes and wetlands (with names).
[ii]
Rock outcrops, ledges and stone fields.
[iii]
Buildings, structures, signs and setbacks required
by the chapter.
[iv]
Approximate location of tree masses.
[v]
Utility lines, wells and sewage system(s).
[vi]
Entrances, exits, access roads and parking areas,
including the number of spaces.
[vii]
Drainage and stormwater management facilities.
[viii]
Plans for any required buffer plantings.
[ix]
Any and all other significant features.
[7]
Location of permanent and seasonal high-water table areas and
one-hundred-year flood zones.
[8]
Tract boundaries accurately labeled.
[9]
The total acreage of the tract and extent of the areas of the
site to be disturbed and percentage of lot coverage when the project
is completed.
[10]
Location and type of rights-of-way or other existing
restrictive covenants which might affect the subdivision and/or development.
[11]
A statement of the type of water supply and sewage
disposal proposed.
[12]
The present zoning district and major applicable
lot requirements.
(4)
Other laws. The Zoning Officer may withhold issuance of a permit
under this chapter if there is clear knowledge by the Zoning Officer
that such a use would violate another Borough, state or federal law
or regulation.
(5)
Ownership. No person other than a landowner or his specifically authorized agent or a tenant or lessee with written permission of the landowner shall submit a zoning application. (See definition of "landowner" in Article III.)
(6)
Advisory reviews. The Zoning Officer may submit a copy of any plan
and application to any appropriate agencies and/or individuals (such
as the Planning Commission, the Lackawanna County Planning Commission,
the County Conservation District or the Borough Engineer) for review
and comment.
(7)
Subdivision approval. Applications for uses which also necessitate approvals under Chapter 300, Subdivision and Land Development, shall be processed in the manner provided for plat approval under that chapter. Such applications shall also contain all information or data normally required for a submission under the Subdivision and Land Development Ordinance. A zoning permit shall not be issued until the proposed use has been granted a preliminary approval under Chapter 300, Subdivision and Land Development. However, no building or property shall be occupied or used until final subdivision approval has been granted and a certificate of use has been properly issued pursuant to § 400-78G of this chapter.
D.
Issuance of permit.
(1)
At least two copies of any permit required under this chapter shall
be made.
(2)
One copy of any such permit shall be retained in Borough files, and
one copy shall be retained by the applicant. A copy of any such permit
shall be shown by the applicant to the Zoning Officer upon the Zoning
Officer's request.
(3)
The Zoning Officer shall issue or deny a permit for a principal permitted
use within a maximum of 90 days after a complete, duly filed application
and fees are submitted.
(4)
No owner, contractor, worker or other person shall perform building
or construction activity of any kind regulated by this chapter unless
a valid zoning permit has been issued for such work, nor shall such
persons conduct such work after notice that a zoning permit has been
revoked.
E.
Revocation of permits.
(1)
The Zoning Officer shall revoke a permit or approval issued under
the provisions of this chapter in cases of:
(a)
Any false statement or misrepresentation of fact in the application
or on the plans on which the permit or approval was based: (The Pennsylvania
Criminal Code provides for penalties for providing false information
to a municipal employee in the carrying out of his/her duties).
(b)
Upon violation of any condition lawfully imposed upon a special
exception, variance or conditional use.
(c)
Any work being accomplished or land or structures being used
in such a way that does not comply with this chapter or an approved
site plan or approved permit application.
(d)
For any other just cause set forth in this chapter.
(2)
If a zoning permit is revoked, the person holding the permit shall
immediately surrender such permit and all copies to the Zoning Officer.
F.
Changes to approved plans.
(1)
After the issuance of a permit and/or approval under this chapter by the Borough, such approved application shall not be changed without the written consent of the Borough, as stated in Subsection F(2) below.
(2)
Changes to an approval by the Zoning Hearing Board as a special exception
use or by the Borough Council as a conditional use shall require reapproval
of the changes by such bodies if the Zoning Officer determines that
such changes affect matters that were within the scope of approval
of such body. Such approval by the Hearing Board or the Borough Council
is not required for clearly minor technical adjustments or matters
that are solely corrections of information that do not affect any
of the significant features of the site plan or the intensity of the
use, as determined by the Zoning Officer.
(3)
A copy of such adjustment or correction shall be provided in writing
to the Chairperson of the Planning Commission, the President of the
Borough Council or the Chairperson of the Zoning Hearing Board, if
the change concerns a plan approved by such bodies.
G.
Certificate of use.
(1)
A certificate of use shall be required by the Borough upon a change
of use or completion of work authorized by a permit or approval under
this chapter. It shall be unlawful to use and/or occupy a structure,
building and/or land or portions thereof until such certificate has
been issued. A new certificate of use shall be required if a change
in use of the property is proposed, and then such certificate shall
be issued only after all required approvals are obtained.
(2)
An application for such certificate shall be made on an official
Borough form. If such use is in conformance with Borough ordinances
and approvals, such certificate should be issued in duplicate within
10 days of a properly submitted and duly filed application. A minimum
of one copy shall be retained in Borough records.
(3)
The Zoning Officer shall inspect such structure or land related to
an application for such certificate. If the Zoning Officer determines,
to the best of his/her current knowledge, that such work conforms
with this chapter and applicable Borough codes, approvals and permits,
then the certificate of use shall be issued.
(4)
The applicant shall show a valid certificate of use to the Zoning
Officer upon request.
A.
Application fees. As authorized by Sections 617.3(e) and 908(1.1)
of the Pennsylvania Municipalities Planning Code,[1] the Borough Council shall establish a uniform schedule
of fees, charges and expenses, as well as a collection procedure,
for zoning permits, conditional use permits, Zoning Hearing Board
proceedings and other matters pertaining to this chapter. Permits,
certificates, conditional use permits, special exception permits and
variances shall be issued only after fees have been paid in full,
and the Zoning Hearing Board shall take no action on appeals until
all fees have been paid in full.[2]
B.
Stenographer fees. The appearance fee for a stenographer shall be
shared equally by the applicant and the Borough. The cost of the original
transcript shall be paid by the Borough if the transcript is ordered
by the Borough or shall be paid by the person appealing the decision
of the Borough 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.
B.
Duties and powers. The Zoning Officer shall:
(1)
Administer the Zoning Ordinance.
(2)
Provide information to applicants regarding required procedures.
(3)
Receive and examine all applications required under the terms of
this chapter and issue or refuse permits within this chapter.
(4)
Receive written complaints of violation of this chapter and issue
a written notice of violation to any person violating any provision
of this chapter.
(5)
Keep records of applications, permits, certificates, written decisions
and interpretations issued, of variances and special exception granted
by the Zoning Hearing Board, of conditional uses approved by the Borough
Council, of complaints received, of inspections made, of reports rendered,
and of notices or orders issued.
(6)
Make all required inspections and perform all other duties as called
for in this chapter.
(7)
Not have the power to permit any activity which does not conform
to this chapter or all other ordinances of the Borough known to the
Zoning Officer.
C.
Qualifications. Pursuant to Section 614 of the Pennsylvania Municipalities
Planning Code,[2] the following minimum qualifications shall apply to any
Zoning Officer(s) appointed to serve the Borough after the adoption
of this chapter, unless such mandatory qualifications are waived by
motion of the Borough Council:
(1)
The person shall demonstrate a working knowledge of zoning.
(2)
The person shall have one of the following combinations of education
and experience:
(a)
High school diploma or equivalent and a minimum of four years'
responsible experience in administering and enforcing municipal zoning
and/or subdivision and land development ordinances; or
(b)
A high school diploma or equivalent and two additional years
of continuing education, such as an associate degree (such continuing
education preferably should be in a field such as law enforcement,
community planning and/or public administration) and a minimum of
two years' responsible experience in administering and enforcing municipal
zoning and/or subdivision and land development ordinances; or
(c)
A college or university bachelor's degree in a field related
to zoning (such as law enforcement, community planning and/or government
administration) and a minimum of eight months' responsible experience
in administering and enforcing municipal zoning and/or subdivision
and land development ordinances.
(3)
The person shall be familiar with constitutional issues concerning
search and seizure and with the process of filing actions with the
Magisterial District Judge.
(4)
The person shall exhibit an ability to thoroughly evaluate site plans
and building plans.
(5)
The person shall demonstrate excellent oral and written communication
skills.
[2]
Editor's Note: See 53 P.S. § 10614.
D.
Other Borough officials. Police officers, firefighters, construction
inspectors, other Borough staff and Borough officials and the general
public may report possible zoning violations to the Zoning Officer
for his/her determination.
A.
Appointment and qualifications.
(1)
Appointment. The Borough Council shall appoint a Zoning Hearing Board, which shall have the number of members and alternate members with such powers and authority, and which shall conduct all proceedings, as set forth in Article IX of the Pennsylvania Municipalities Planning Code, as enacted or hereafter amended.[1]
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
(2)
Recommended qualifications. Each Zoning Hearing Board member should:
(3)
Vacancies. The Board shall promptly notify the Borough Council of
any vacancies which occur. Appointments to fill vacancies shall be
only for the unexpired portion of a term.
(5)
Organization.
(a)
Officers. The Board shall elect officers from its own membership.
Officers shall serve annual terms and may succeed themselves.
(b)
Quorum. For the conduct of any hearing and taking of any action,
a quorum shall be not less than a majority of all members of the Board,
except that the Board may appoint a hearing officer from its own membership
to conduct any hearing on its behalf and the parties may waive further
action by the Board, as provided by the Pennsylvania Municipalities
Planning Code.[3] The quorum may be met by alternate members serving as
permitted by the Pennsylvania Municipalities Planning Code.
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
(c)
Rules. The Board may make, alter and rescind rules and forms
for its procedures, consistent with all applicable Borough ordinances
and state law.
B.
Jurisdiction. The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance,
except those brought before the governing body pursuant to Section
609.1 (curative amendments) and Section 916.1(a)(2) (ordinance validity)
of the Pennsylvania Municipalities Planning Code.[4]
[4]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2).
(2)
Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption,
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said ordinance. Where the ordinance appealed
from is the initial zoning ordinance of the municipality and a zoning
hearing board has not been previously established, the appeal raising
procedural questions shall be taken directly to court.
(3)
Appeals from the determination of the Zoning Officer, including,
but not limited to, the granting or denial of any permit or failure
to act on the application therefor, the issuance of any cease and
desist order, or the registration or refusal to register any nonconforming
use, structure or lot.
(7)
Appeals from the determination of the Zoning Officer or Municipal
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and stormwater
management, insofar as the same relate to development not involving
subdivision and land development applications.
(8)
The Zoning Hearing Board shall not, under any circumstances, have
the authority to order any specific change in or amendment to the
Zoning Map or to allow any use of property substantially different
from those permitted under the Schedule of Use Regulations for the
particular district.
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with Section 908 of the Pennsylvania Municipalities
Planning Code, as amended,[1] and the provisions of this § 400-82. The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney as a hearing officer. The decision or, where no decision is called for, the findings shall be made by the Board; however, the appellant or the applicant, as the case may be, in addition to the Borough, may prior to the decision of the hearing waive decision or findings by the Board and accept the decision or findings of the hearing officer as final. (For the purposes of this section, "Board" shall mean the Board or the hearing officer, if a hearing officer is appointed.)
A.
Notice of hearings. Notice of all hearings of the Board shall be
given as follows:
(1)
Advertisement. Public notice shall be published, as defined by Section
107 of the Pennsylvania Municipalities Planning Code.[2] The notice shall state the time and place of the hearing
and the particular nature and property address of the matter to be
considered.
[2]
Editor's Note: See 53 P.S. § 10107.
(2)
Posting. Notice of such hearing shall be conspicuously posted on
the affected tract of land at least one week prior to the hearing.
Such notice shall state the time and place of the hearing and a general
description of the request.
(3)
Persons given notices. All notice under this subsection should be
intended to be received or posted at least five days prior to the
hearing date.
(a)
Written notice shall be mailed or personally delivered to the
applicant or his/her representative listed on an official application
form.
(b)
Notice may be delivered or mailed to the Chairperson of the
Planning Commission or Borough Secretary and the last known address
of owners of record of property abutting or directly across the street
from the boundaries of the subject property. The applicant shall provide
the Borough with a list of such property-owners. Failure of the Borough
to notify all such persons shall not invalidate any action by the
Board.
(c)
Also, such notice shall be mailed or delivered to the address
of any other person or group (including civic or community organizations)
who has made a written timely request (including an address) for such
notice.
(4)
Adjacent municipalities. In any matter which relates to a lot which
lies within 250 feet of the boundary of another municipality, and
where the Zoning Officer determines the proposed activity may have
significant impact on that municipality, the Borough staff may transmit
to the offices of the adjacent municipality a copy of the official
notice of the public hearing on such matter prior to the hearing date.
Representatives of such adjacent municipality shall have the right
to appear and be heard at the public hearing. Failure of the Borough
to notify such municipality shall not invalidate any action by the
Board.
(5)
Fees. The Borough Council may, by resolution, establish a reasonable
fee schedule, based on cost, to be paid by: a) the applicant for any
notice required by this chapter; and b) those persons requesting any
notice not required by the chapter.
B.
Parties in hearings. The Zoning Hearing Board shall have the authority,
if it chooses to exercise it, to determine who has standing on each
case before the Board.
(1)
The parties to a hearing shall be the Borough Council, the Planning
Commission, any person affected by the application who has made timely
appearance of record before the Board, representatives of any legitimate
civic or community organization, and any other person permitted to
appear before the Board.
(2)
The Board shall have power to require that all persons who wish to
be considered parties enter appearances in writing on forms provided
by the Board for that purpose.
(3)
The Board shall determine that a person or business does not have
standing if the Board finds that such person or business is apparently
motivated primarily by an attempt to inhibit competition in an area
of business and that such person or business would not otherwise be
threatened with substantive harm from the application.
C.
Oaths and subpoenas. The Chairperson of the Board or hearing officer
shall have the power to administer oaths and issue subpoenas to compel
the attendance of witnesses and the production of relevant documents
and papers, including witnesses and documents reasonably needed by
and requested by the parties.
D.
Representation by counsel. The parties shall have the right to be
represented by legal counsel and shall be afforded the opportunity
to respond and present evidence and argument and cross-examine adverse
witnesses on relevant issues.
E.
Evidence and record. Formal rules of evidence shall not apply, but
irrelevant, immaterial or unduly repetitious evidence may be excluded.
The Board or the hearing officer, as applicable, shall keep a record
of the proceedings as required by state law.
F.
Communications outside of hearings.
(1)
The Board shall not meet with, visit the site with or directly communicate
specifically on the matter with the applicant or any officially protesting
party or their representatives in connection with any issue involved,
except if opportunity is provided for the applicant and any officially
protesting party to participate.
(2)
The Board shall not take notice of any communications, reports, staff
memoranda, or other materials directly affecting a proposed application
unless the parties are afforded an opportunity to examine and contest
the material so noticed or unless such materials are already a matter
of public record. This restriction shall not apply to advice from
the Board's solicitor.
G.
Advisory review. The Zoning Hearing Board may request that the Planning
Commission, County Conservation District or Borough Engineer provide
an advisory review on any matter before the Board.
I.
Solicitor conflict.
(1)
The Zoning Hearing Board solicitor shall not represent private clients
in cases before the Zoning Hearing Board.
(2)
If a conflict of interest exists for the Zoning Hearing Board solicitor
on a particular application, the Zoning Hearing Board solicitor shall
notify the Chairperson of the Board at least seven days before the
scheduled hearing date.
(3)
The Borough Council may appoint an alternate solicitor to the Zoning
Hearing Board to serve as needed for a specific application or for
a term of office.
[1]
Editor's Note: See 53 P.S. § 10908.
The Board shall hear requests for variances filed with the Board
in writing by any landowner (or any tenant with the permission of
such landowner).
A.
Standards. The Board may grant a variance only within the limitations
of the Municipalities Planning Code.[1] The applicant shall have the burden of proof to show compliance
with such standards. As of 1993, the Municipalities Planning Code
provided that all of the following findings must be made, where relevant
in a particular case:
(1)
There are unique physical circumstances or conditions (including
irregularity, narrowness or shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the particular
property) and that the unnecessary hardship is due to such conditions
and not the circumstances or conditions generally created by the provisions
of this chapter in the neighborhood or district in which the property
is located; and
(2)
Because of such physical circumstances or conditions there is no
possibility that the property can be developed in strict conformity
with the provisions of the chapter, and a variance is therefore necessary
to enable the reasonable use of the property; and
(3)
Such unnecessary hardship has not been created by the appellant;
and
(4)
The variance, if authorized, will not alter the essential character
of the neighborhood or district in which the property is located,
nor substantially or permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public welfare; and
(5)
The variance, if authorized, will represent the minimum variance
that will afford relief and will represent the least modification
possible of the regulation in issue.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Reapplication. The Zoning Officer shall refuse to accept a proposed
application that is not materially or significantly different from
an appeal on the same property that was denied by the Board within
the previous year.
C.
Variance conditions. In granting any variance, the Board may attach
such reasonable conditions and safeguards as it may deem necessary
to implement the purposes of the Municipalities Planning Code[2] and this chapter and to protect the public health, safety
and welfare.
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
Planning Commission review of variance applications.
(1)
The Planning Commission shall be provided with an opportunity to
review any proposed variance at a regular meeting prior to a decision
by the Zoning Hearing Board. The Commission, at its option, may provide
a written advisory review.
(2)
If such review is not received within the time limit within which
the Board must issue a decision, or within 30 days of such application
being sent to the Planning Commission, then the Board may make a decision
without having received comments from the Planning Commission.
A.
Applications. Applications for conditional uses and special exceptions shall, at a minimum, include the information required in § 400-84F. The Borough Planning Commission, Borough Council or the Zoning Hearing Board shall require any other information deemed necessary for the review of the proposal.
B.
Conditional uses. Uses specified as conditional uses shall be permitted only after review and approval pursuant to the express standards as provided for specific conditional uses in this chapter and in § 400-84D and any other applicable standards in this chapter.
(1)
Expansions. Expansions or additions to uses classified as conditional
uses shall also be considered conditional uses. The addition of an
accessory structure shall not be considered a conditional use.
(2)
Procedure.
(a)
Submission. The applicant shall submit the application as follows:
(b)
Distribution. The Zoning Officer shall distribute copies of
the site plan to the Planning Commission and the Borough Council.
A minimum of one copy shall be retained in the Borough files. The
Borough Fire Company should be given an opportunity for a review,
if deemed appropriate by the Zoning Officer.
(c)
Zoning Officer review. The Zoning Officer shall report in writing
or in person to the Planning Commission or the Borough Council, stating
whether the proposal complies with this chapter. The Zoning Officer
may request a review by the Borough Engineer.
(d)
Planning Commission review.
[1]
The Planning Commission shall be provided with an opportunity
to review any proposed conditional use at a regular meeting prior
to a decision by the Borough Council. The Commission, at its option,
may provide a written advisory review.
[2]
If such review is not received within the time limit within
which the Board must issue a decision, or within 30 days of such application
being sent to the Planning Commission, then the Board may make a decision
without having received comments from the Planning Commission.
(e)
Borough Council action. The Borough Council shall conduct hearings
and make decisions in accordance with Sections 908 and 913.2 of the
Pennsylvania Municipalities Planning Code, as amended.[1] In granting a conditional use, the Board may attach such
reasonable conditions and safeguards (in addition to those expressed
in this chapter) as it determines are necessary to implement the purposes
of the Pennsylvania Municipalities Planning Code and this chapter,
and to protect the public health, safety and welfare.
[1]
Editor's Note: See 53 P.S. §§ 10908 and 10913.2.
C.
Special exceptions. Uses specified as special exceptions shall be permitted only after review and approval by the Borough Zoning Hearing Board pursuant to the express standards as provided for specific special exceptions in this chapter and in § 400-84D.
(1)
Expansions. Expansions or additions to uses classified as special
exceptions shall also be considered special exceptions. The addition
of an accessory structure shall not be considered a conditional use.
(2)
Procedure.
(a)
All applicants for a special exception use shall submit five
sets of plans for the proposed use to the Zoning Officer together
with a written application. Photographs of the existing site or buildings
may also be requested to be presented by the applicant.
(c)
Borough procedures.
[1]
The Zoning Officer shall forward the application to the Zoning
Hearing Board, the Planning Commission and the Zoning Hearing Board
solicitor. A minimum of one copy shall be retained in the Borough
files.
[2]
The Zoning Officer shall, prior to the next Zoning Hearing Board
meeting where the application will be discussed, review the plan to
determine compliance with this chapter and report these findings to
the Zoning Hearing Board.
(d)
Planning Commission review of special exception uses.
[1]
The Planning Commission shall be provided with an opportunity
to review any proposed special exception use at a regular meeting
prior to a decision by the Zoning Hearing Board. The Commission, at
its option, may provide a written advisory review.
[2]
If such review is not received within the time limit within
which the Board must issue a decision, or within 30 days of such application
being sent to the Planning Commission, then the Board may make a decision
without having received comments from the Planning Commission.
(e)
Zoning Hearing Board action on special exception uses.
[1]
The Board shall hear and decide such request for a special exception use under the procedures in § 400-82.
[2]
In granting a special exception, the Zoning Hearing Board may
attach such reasonable conditions and safeguards (in addition to those
expressed in this chapter) as it determines are necessary to implement
the purposes of the Pennsylvania Municipalities Planning Code[2] and this chapter, and to protect the public health, safety
and welfare.
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
Standards and criteria.
(1)
The standards and criteria applied to conditional uses and special
exceptions are intended to ensure that the proposed use will be in
harmony with the purposes, goals, objectives and standards of this
chapter and other ordinances of the Borough. In addition to the applicable
general provisions of this chapter and to the standards provided in
this chapter for specific conditional uses and special exceptions,
the following standards and criteria shall be applied in the review
of applications for conditional uses and special exceptions:
(a)
The proposed use shall be in harmony with purposes, goals, objectives
and standards of the Borough Comprehensive Plan, this chapter and
all other ordinances of the Borough.
(b)
The proposal shall also be evaluated as to the degree to which
the proposed location may be particularly suitable or unsuitable for
the proposed use in terms of the physical characteristics of the site.
(c)
The proposed use at the proposed location shall not result in
a substantial or undue adverse effect on adjacent property, the character
of the neighborhood, traffic conditions, parking, public improvements,
public sites or rights-of-way, adjacent property values, or other
matters affecting the public health, safety and general welfare, either
as they now exist or as they may in the future be developed as a result
of the implementation of this chapter or any other plan, program,
map or ordinance of the Borough or other government agency having
jurisdiction to guide growth and development.
(d)
The proposed use shall not impose an undue burden on any of
the improvements, facilities, utilities and services of the Borough,
whether such services are provided by the Borough or some other entity.
The applicant shall be wholly responsible for providing such improvements,
facilities, utilities or services as may be required to adequately
serve the proposed use when the same are not available or are inadequate
to serve the proposed use in the proposed location. As part of the
application and as a condition of approval of the proposed use, the
applicant shall be responsible for establishing ability, willingness
and binding commitment to provide such improvements, facilities, utilities
and services in sufficient time and in a manner consistent with this
and other ordinances of the Borough. The permit approval shall be
so conditioned.
(e)
In reviewing an application, the following additional factors
shall be considered:
[1]
Location, arrangement, size, design and general site compatibility
of buildings, lighting and signs.
[2]
Adequacy and arrangement of vehicular traffic access and circulation,
including intersections, road widths, pavement surfaces, dividers
and traffic controls.
[3]
Location, arrangement, appearance and sufficiency of off-street
parking and loading.
[4]
Adequacy and arrangement of pedestrian traffic access and circulation,
walkway structures, control of intersections with vehicular traffic
and overall pedestrian convenience.
[5]
Adequacy of stormwater and drainage facilities stormwater leaving
any site shall not exceed predevelopment levels, and facilities shall
be designed to accommodate a ten-year storm.
[6]
Adequacy of water supply and sewage disposal facilities.
[7]
Adequacy, type and arrangement of trees, shrubs and other landscaping
constituting a visual and/or noise buffer between the applicant's
and adjoining lands, including the maximum retention of existing vegetation.
[8]
Adequacy of fire lanes and other emergency zones and the provision
of fire hydrants.
[9]
Special attention to the adequacy and impact of structures,
roadways and landscaping in areas with susceptibility to ponding,
flooding and/or erosion.
(f)
Approval of application.
[1]
No application shall be approved unless it is found that, in
addition to complying with each of the standards enumerated above,
any of the applicable standards contained in this chapter shall be
met. In instances where the supplemental standards contained herein
do not adequately protect the general health, safety and welfare of
parties affected, all conditions and safeguards deemed necessary by
the Board to protect the general health, safety and welfare and implement
the purposes of this chapter and the Pennsylvania Municipalities Planning
Code shall be imposed as conditions of approval in accord with Section
912.1 or 913.2 of the Pennsylvania Municipalities Planning Code,[3] as the case may be.
[3]
Editor's Note: See 53 P.S. § 10912.1 or 10913.2.
[2]
Conditions which might be imposed shall include (but not be
limited to) provisions for additional parking, traffic control, submission
of landscaping plans for screening, setbacks, special measures addressing
sales period activities, environmental controls and other measures
which mitigate any potential adverse impact the use may have on adjoining
uses.
(2)
The applicant shall supply evidence regarding compliance with the
express standards and criteria contained herein, and data or evidence
may be accepted from protestants. Such evidence shall be evaluated
relative to the injurious impact on the health, safety and welfare
of the Borough, and the proposed use shall be approved with appropriate
conditions or denied based on said evaluation.
E.
Limitation of approval. Any conditional use approval granted by the
Borough Council and any special exception approval granted by the
Zoning Heating Board shall expire one year from the date such approval
was granted if no building construction as approved has taken place
or the use is not otherwise established as a functional and constructive
activity prior to the expiration date. Upon such expiration, the said
approval, and any permit issued subsequent thereto, shall be deemed
null and void, and the developer shall be required to submit another
application for the same. The Borough Council or Zoning Hearing Board,
as the case may be, however, may grant an extension of the time limitations
for good cause.
F.
Information required. The applicant shall supply the information required by § 400-78C of this chapter and evidence regarding compliance with the express standards and criteria contained herein, and data or evidence may be accepted from protestants. Such evidence shall be evaluated relative to the injurious impact on the health, safety and welfare of the Borough, and the proposed use shall be approved with appropriate conditions or denied based on said evaluation.
A.
Zoning permit. After a variance is approved or a conditional or special
exception approval is officially authorized under this chapter, then
a zoning permit shall be secured by the applicant within 12 months
of such approval; otherwise, such approval shall be deemed null and
void, and the developer shall be required to submit another application
for the same.
B.
Review completion. If the applicant submits complete plans for a
subdivision or land development approval or special exception or conditional
use approval that is related to the variance or issuance of a permit
under this chapter within the above time limits, then such time limits
shall begin after such plan review is completed or such plan approval
is granted.
C.
Extension. For good cause, the Zoning Officer may, upon application
in writing stating the reasons therefor, extend in writing the twelve-month
application period to up to 18 months.
D.
Expiration. If an applicant fails to obtain the necessary permits
within the above time period or after having obtained the permit fails
to diligently commence substantial construction within 12 months or
allows interruptions in substantial construction of longer than six
months, it shall be conclusively presumed that the applicant has waived,
withdrawn or abandoned the approval, and all such approvals, variances
and permits shall be deemed automatically rescinded.
E.
Completion. Any building construction shall be completed within 12
months of issuance of an applicable permit, unless a written extension
is granted by the Zoning Officer for good cause. Otherwise, a permit
shall be considered to have automatically expired at the end of such
twelve-month period.
Parties to proceedings authorized by this chapter and the Pennsylvania
Municipalities Planning Code may use the mediation option as authorized
by and in accord with Section 908.1 of said Code.[1]
[1]
Editor's Note: See 53 P.S. § 10908.1.
The time limitations for appeals shall be as follows:
A.
Zoning Hearing Board – County Court. No person shall be allowed
to file any appeal with the Zoning Hearing Board later than 30 days
after the officially issued decision by the Zoning Officer or appeal
with the County Court of Common Pleas later than 30 days after the
officially issued decision of the Borough Council or the Zoning Hearing
Board, except as may be provided under Section 914.1 of the Pennsylvania
Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10914.1.
B.
Temporary permits. This thirty-day time limit for appeal shall not apply to the revocation of a permit under § 400-78E.
C.
Subdivision or land development approval. The failure of an aggrieved
person other than the landowner to appeal an adverse decision directly
related to a preliminary subdivision or land development plan shall
preclude an appeal from a final plan approval except in the case where
the final submission substantially deviates from the approved preliminary
plan.
Appeals to court and other administrative proceedings shall be governed by Article X-A and Article IX of the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 11001-A et seq. and
53 P.S. § 10901 et seq., respectively.
See Section 619 of the Pennsylvania Municipalities Planning
Code.[1]
[1]
Editor's Note: See 53 P.S. § 10619.
The minimum lot area requirements of this chapter shall not
apply to uses or structures owned by the Borough for uses and structures
that are intended for a legitimate governmental, recycling, public
recreation, stormwater control or public health and safety purpose.
The Borough Council may amend the Zoning Ordinance by complying with the requirements set forth in Article VI of the Pennsylvania Municipalities Planning Code.[1] A landowner who desires to challenge on substantive grounds
the validity of an ordinance or map, or any provision thereof, which
prohibits or restricts the use or development of land in which he
has an interest, may submit a curative amendment to the governing
body with a written request that his challenge and proposed amendment
be heard and decided on as provided in Sections 609.1 and 916.1 of
the Pennsylvania Municipalities Planning Code.[2]
A.
Compliance. Failure to comply with any provision of this chapter;
failure to secure or comply with a decision of the Borough Council
or Zoning Hearing Board; or the failure to secure a permit, when required,
prior to or (when ordered) after the erection, construction, extension
or addition to a building or prior to or after the use or change of
use of land; or failure to secure a certificate of use permit shall
be violations of this chapter.
B.
Complaints. Whenever a violation of this chapter occurs, any person
may file a complaint in regard thereto. All such complaints must be
in writing and shall be filed with the Zoning Officer, who shall record
receipt of the said complaint and investigate and report thereon.
C.
Enforcement notice. When written notice of a violation of any of
the provisions of this chapter shall be served by the Zoning Officer,
personally or by certified mail, in the manner prescribed by Section
616.1 of the Pennsylvania Municipalities Planning Code[1] and set forth in this § 400-92C, such violation shall be discontinued or corrected as set forth in said notice.
(1)
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 as provided in this § 400-92C.
(2)
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.
(3)
An enforcement notice shall state at least the following:
(a)
The name of the owner of record and any other person against
whom the municipality intends to take action.
(b)
The location 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 the ordinance.
(d)
The date before which the steps for compliance must be commenced
and the date before which the steps must 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.
(4)
In any appeal of an enforcement notice to the Zoning Hearing Board,
the Borough shall have the responsibility of presenting its evidence
first.
(5)
Any filing fee 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 subsequent
appeal, rules in the appealing party's favor.
[1]
Editor's Note: See 53 P.S. § 10616.1.
A.
Causes of action. In case any building, structure or land is, or
is proposed to be, erected, constructed, reconstructed, altered, converted,
maintained or used in violation of any provisions of this chapter,
the Borough Council or, with the approval of the Borough Council,
an officer of the municipality, or any aggrieved owner or tenant of
real property who shows that his property or person will be substantially
affected by the alleged violation, in addition to other remedies,
may institute any appropriate action or proceeding to prevent, restrain,
correct or abate such building, structure or land, or to prevent,
in or about such premises, any act, conduct, business or use constituting
a violation. When any such action is instituted by a landowner or
tenant, notice of that action shall be served upon the Borough at
least 30 days prior to the time the action is begun by serving a copy
of the complaint on the Borough Council. No such action may be maintained
until such notice has been given.
B.
Enforcement remedies.
(1)
Any person, partnership or corporation who or which has violated
or permitted the violation of any 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 (state
law) plus all court costs, including reasonable attorneys' 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 the 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 the ordinance 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 of a violation by the
Magisterial District Judge, and thereafter each day that a violation
continues shall constitute a separate violation. All judgments, costs
and reasonable attorneys' fees collected for the violation of this
chapter shall be paid over to the Borough.
(2)
The Court of Common Pleas, upon petition, may grant an order of stay,
upon cause shown, tolling the per-diem fine pending a final adjudication
of the violation and judgment.
(3)
Nothing contained in this section shall be construed or interpreted
to grant to any person or entity, other than the Borough, the right
to commence any action for enforcement pursuant to this section.
A.
Neither the approval nor the granting of any review, issuance of
permit or approval related to construction, activity within the floodplain,
site plan review, subdivision or land development approval erosion
control, stormwater runoff, activity on steep slopes or any other
review or permit of this chapter, by an officer, employee, consultant
or agency of the Borough, shall constitute a representation, guarantee
or warranty of any kind by the Borough or its employees, officials,
consultants or agencies of the practicality or safety of any structure,
use or subdivision and shall create no liability upon, nor a cause
of action against, such public body, official, consultant or employee
for any damage that may result pursuant thereto.
B.
If the Zoning Officer mistakenly issues a permit under this chapter,
the Borough shall not be liable for any later lawful withdrawal of
such permit for valid cause shown.
